Okoh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Okoh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3183 (29 August 2022)
Division: GENERAL DIVISION
File Number(s): 2022/4853
Re:Joseph Ehimen Okoh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date:29 August 2022
Date of written reasons: 29 September 2022
Place:Sydney

The decision of a delegate of the Respondent dated 6 June 2022 not to revoke the mandatory cancellation of the Applicant’s visa is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
........................................[Sgd]................................
Mr S Evans, Member
Catchwords
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – risk of reoffending low - best interests of minor children – impediments if removed – contribution to the Australian community - Direction no. 90 considered
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs [2019] FCAFC 185
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
29 September 2022

Joseph Ehimen Okoh (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his WA Subclass 010 Bridging A visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the decision of the delegate was set aside and substituted on 29 August 2022.
introduction
The Applicant is a 36 year old citizen of Nigeria. On 18 September 2019 he pled guilty to money laundering and was sentenced to 5 years and 4 months imprisonment with a non-parole period of 2 years.[1]
[1] G3/40
The procedural background to the application is set out in the Respondent’s Statement of Facts, Issues and Contentions (RSFIC), and the Applicant’s Statement of Facts, Issues and Contentions (ASFIC). At the time of his imprisonment the Applicant was in the process of applying for a Class SN Subclass 190 Skilled Nomination visa and had been issued WA Subclass 010 Bridging A visa (the visa).[2] On 31 October 2019 the Applicant’s visa was mandatorily cancelled (the mandatory cancellation decision) as he did not pass the character test having been sentenced to a term of imprisonment of 12 months or more and serving a term of imprisonment on a full-time basis.[3]
[2] Applicant’s Statement of Facts, Issues and Contentions, [5]
[3] Respondent’s Statement of Facts, Issues and Contentions, [8]
On 9 December 2019 the Applicant made representations seeking revocation of the mandatory cancellation decision. The representations were made outside the time period specified in the regulation but were accepted by the Respondent as the Applicant was deemed to have made a genuine attempt to submit the request within time.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions, [9]
On 13 December 2021 the Applicant was re-notified of the cancellation decision as the previous cancellation decision did not comply with the requirements of the Act[5] identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6] and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[7]. On 15 December 2021 the Applicant made further representations seeking revocation of the cancellation decision within the period and in the manner specified in the regulations after being re-notified of the visa cancellation decision.[8]
[5] G15/182
[6] [2021] FCAFC 173
[7] [2021] FCAFC 174
[8] G3/188-191
On 6 June 2022 a delegate of the Respondent determined that the cancellation of the Applicant’s visa should not be revoked under s 501CA(4) of the Act (the non-revocation decision). The Applicant was notified of the decision the same day.[9] On 13 June 2022 the Applicant lodged an application seeking review of the non-revocation decision with the Administrative Appeals Tribunal (the Tribunal).[10]
[9] G2/11-15
[10] G1/1
Issue to be determined
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied under subsection 501CA(4)(b) of the Act:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 501(7)(c) provides that a person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ and it is agreed by both parties that the Applicant does not pass the character as defined by the Act.
As the Applicant was sentenced to 5 years and 4 months imprisonment with a non-parole period of 2 years and 8 months on 18 September 2019, I am satisfied that the Applicant does not pass the character test.
Therefore, the only relevant issue is whether there is another reason to revoke the mandatory cancellation decision.
Relevant law and Ministerial direction no. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4)(b) of the Act.
Subsection 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister not to revoke a decision to cancel a visa under subsection 501CA(4).
The Minister has made written directions under section 499 of the Act which apply to decision makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.[11]
[11] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)best interests of minor children in Australia affected by the decision; and
(4)expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Evidence
Factual background
The Applicant was born in Nigeria where he resided until immigrating to Australia as holder of a Student (subclass 573) visa on 9 August 2013. He has resided in Australia since.[12]
[12] Applicant’s Statement of Facts, Issues and Contentions, [5]
On 8 November 2014 the Applicant returned to Nigeria where he married Amenaghawon Blossom Okoh (Ms Okoh).[13] In March 2015 Ms Okoh was granted a dependent student visa and joined the Applicant in Australia.[14] On 1 February 2016 they had their first child together, a son who I will refer to as BR.[15] In January the following year Ms Okoh gave birth to the couple’s daughter, who I will refer to as RO.[16]
[13] G7/64
[14] Applicant’s Statement of Facts, Issues and Contentions, [6]
[15] G10/104
[16] G10/105
Prior to immigrating to Australia, the Applicant fathered his eldest child, FF, who was born in April 2004.[17] FF currently lives with the Applicant’s parents in Nigeria.[18]
[17] G10/103
[18] G7/65-66
Upon completing his high school studies, the Applicant was admitted to university in Nigeria where he studied a bachelor’s degree in science. After graduating he returned to live with his parents in the north of Nigeria. He completed volunteer work at St Vincent de Paul between 2010 and 2012, before commencing as a college advisor.[19]
[19] Transcript of proceedings dated 11 October 2022, 10
One of the Applicant’s brothers, Festus Okoh, was residing in Australia and encouraged him to consider studying in Australia where he would have better opportunities. Festus Okoh helped the Applicant gain admission into a university in the Northern Territory and in August 2013 he travelled to Australia to commence his studies.[20]
[20] Transcript of proceedings dated 11 October 2022, 11
After arriving in Australia, the Applicant began casual work at a high school working with disabled children. He was later employed by the Northern Territory Department of Health Specialist Support and Forensic Disability Support Unit, where he provided support for clients with complex behaviours. [21] He began a placement at the NT Department of Health in 2015 and graduated from University in 2016.[22]
[21] Transcript of proceedings dated 11 October 2022, 11-12
[22] G8/77
In 2014 the Applicant was introduced to gambling by a work colleague. At first the Applicant’s gambling was occasional, but he found he would gravitate towards online gambling when he became bored. He increasingly found himself at his computer ‘gambling or spending time with people chatting online’.[23]
[23] Transcript of proceedings dated 11 October 2022, 13
In 2017 Ms Okoh confronted the Applicant about his gambling and raised concerns it was becoming an addiction. The Applicant did not change his behaviour.[24] His gambling losses continued and he accumulated more debt which he found increasingly difficult to manage. The Applicant borrowed money from friends and took out a bank loan to support his gambling habit.[25]
[24] Transcript of proceedings dated 11 October 2022, 13
[25] Transcript of proceedings dated 11 October 2022, 14
In September 2017 the Applicant’s mother-in-law visited from Nigeria to stay with the Applicant and his family. As the Applicant and his mother-in-law did not get along he sought to avoid engaging with her. After work he would retreat to a bedroom where he would spend time gambling and ‘chatting’ online.[26]
[26] Transcript of proceedings dated 11 October 2022, 13
Around this time he met an individual named ‘Guzel’ online. The Applicant gave evidence that he and Guzel ‘started chatting’ after the Applicant made contact via Instagram. Guzel told the Applicant about an opportunity to receive a commission in exchange for receiving the proceeds of crime. With his gambling debts mounting, the Applicant was receptive to Guzel’s offer and began to launder money for him in exchange for a ‘commission’.[27]
[27] Transcript of proceedings dated 11 October 2022, 14
The Applicant wishes to stay in Australia for the benefit of his three children, both RO and BR in Australia, and his eldest child FF. Whilst FF is currently in Nigeria, the Applicant was in the process of applying for her to come to Australia to live with Applicant and Ms Okoh prior to his arrest and conviction.[28] He submits he would have brought FF to Australia but for a custody dispute with FF’s mother, which was only recently settled in the Applicant’s favour.[29]
[28] Transcript of proceedings dated 11 October 2022, 28
[29] G10/101
The Applicant worries that should he and his family return to Nigeria, he will face great difficulty establishing himself and supporting his family owing to the lack of employment opportunities and lower standard of living he can expect in Nigeria. He fears that his children will have fewer opportunities and a lower standard of living in Nigeria.[30]
[30] Transcript of proceedings dated 11 October 2022, 21
Evidence of Blossom Okoh, the Applicant’s wife
In a written statement dated 10 November 2019[31] Ms Okoh writes of the Applicant’s strong work ethic and the love his children have for him. She gave oral evidence at the hearing during which she confirmed that she and her children would return to Nigeria with the Applicant should his visa remain cancelled.[32]
[31] G8/98
[32] Transcript of proceedings dated 11 October 2022, 55-56
She told the Tribunal that returning to Nigeria would ‘ruin’ her and her children’s lives. In Australia, Ms Okoh works as a community support coordinator and she earns enough money to support not only herself and her children but also her family in Nigeria who depend on her to send them money. She told the Tribunal that $20 is enough for her family in Nigeria to ‘put food on the table for three days’.[33]
[33] Transcript of proceedings dated 11 October 2022, 57
Ms Okoh described the period in which the Applicant was imprisoned and has been held in immigration detention as being extremely difficult for both her and their two children.[34] Regarding the children she explained that their lives in Darwin is all they know and she fears for their futures if they were to return to Nigeria. She expressed concerns about her ability to find work in Nigeria which would make it difficult for her to support her family in Nigeria.[35]
[34] Transcript of proceedings dated 11 October 2022, 55
[35] Transcript of proceedings dated 11 October 2022, 57
Samuel Ehi Ativie, former colleague
Mr Ehi Ativie has known the Applicant for 7 years since meeting at university. He believes that the Applicant is a good father and hard-working individual. In his view the Applicant has learnt the lesson of his offending and notes an open offer of employment exists for the Applicant should he be released into the community.[36]
[36] G15/134-135
Johnpaul Ativie, friend
Mr Ativie met the Applicant through the Applicant’s older brother Festus. He claims to have visited the Applicant in jail ‘many times’ during which he has observed the Applicant’s remorse for his offending. He believes that it is not in the best interests of the Applicant’s children if the Applicant and his family return to Nigeria.[37]
[37] G15/136-137
Other references
Victor E Okafor is a former president of the Nigerian Association Northern Territory of Australia and has known the Applicant since February 2015. He considers the Applicant an active and honest member of the community. Having worked with the Applicant in a professional capacity, Mr Okafor considers him a dedicated and hard worker. He believes the Applicant’s offending is out of character and that he has reflected on his actions, corrected his behaviour, learnt from his mistakes and will not reoffend.[38]
[38] G15/133
Tim Johnson is the Coordinating Chaplain at Darwin Correctional Centre who has observed the Applicant to be ‘reliable and respectful’ in all their interactions. He believes the Applicant is remorseful and eager to learn from his past behaviour and accepts that he will need to rebuild trust with his family, friends and the wider community. He writes that the Applicant now has ‘mental, emotional and educational’ measures in place to prevent a reoccurrence of his offending.[39]
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
[39] G15/132
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Money Laundering
On 28 June 2018 the Applicant was arrested and charged with multiple offences including obtain benefit by deception, dealing in proceeds of crime and identity sharing to facilitate an offence.[40]
[40] Applicant’s Tender Bundle, 4

On 18 September 2019 the Applicant was sentenced to 5 years and 4 months imprisonment with a non-parole period of 2 years and 8 months having pled guilty to money laundering.[41] The details of the offending, taken from the sentencing remarks of Acting Justice Mildren of the Northern Territory Supreme Court, are set out in the RSFIC.
[41] G3/40
Between 10 September 2017 and 9 March 2018, the Applicant dealt with deposits in a bank account totalling $376,563.55. Those deposits were the proceeds of crime, obtained by way of online fraud committed by associates of the Applicant. The dealing with funds occurred on five separate occasions over a six-month period.[42]
[42] Respondent’s Statement of Facts, Issues and Contentions, [6]
The harm caused by the Applicant’s offending was detailed to the court and recounted in the sentencing remarks of Acting Justice Mildren:
The prosecutor read to the court the effect that [the Applicant’s] crimes have had on some of the victim[s].LB was placed in financial difficulty and had to borrow money from her family in order to survive. She was only in part-time work. The offending caused her emotional stress and frustration that she lost all her savings. Fortunately, her bank reversed the transaction so it appears that she did not suffer any loss in the end.
AH, who had engaged a firm of solicitors relating to a property purchase, lost $20,000 of the $21,000, which was supposed to have been deposited in the firm's trust account. As a result of this fraud, an employee of the firm has given up being involved in the property sector.[43]
[43] G4/45
The seriousness of the offending was also stated emphatically in the sentencing remarks with Acting Justice Mildren observing:
Offending of this nature is very serious, as indicated by the maximum penalty. It is properly classified as cybercrime. It is prevalent and incredibly difficult to detect. It affects all facets of society, including individuals or businesses that the fraud has been perpetrated upon, a breach of their security systems, the access to personal identification information to facilitate other fraud-related offending, and the use of a financial system as a conduit for the flow of illegally obtained funds.
There are also the financial consequences of this offending which affect the cash flow and reliability of businesses and individuals and the stress that this causes to the victim and their employees.
This type of offending is attractive, as technology is used to permit the offending to be carried out worldwide whilst expending minimal resources. The identity and location of the principal cybercriminal is obscured. It is a low-risk activity with a potential for higher returns.[44]
[44] G4/46
The Applicant does not dispute the seriousness of his offending and accepts the Court’s finding. He emphasised that he was not directly involved in defrauding victims, but acknowledged his role in the scheme was crucial to its success.
Driving related offences and other conduct
In 2014 the Applicant was convicted of driving an unregistered and uninsured vehicle at a dangerously high speed following a single incident which occurred in late 2013. He was fined $1,040 and disqualified from driving for 6 months.[45]
[45] G3/41
The circumstances of the driving offences were detailed by the Applicant in a written submission. He was running late for a shift at a residential youth facility where he was working. When his brother failed to pick him up as arranged, he decided to drive his own vehicle. His vehicle was unregistered as the Applicant was still saving to pay for the insurance and registration.[46] The Applicant submits that the driving offences were ‘an aberration in an otherwise decent driving record’ but acknowledged the seriousness of the offences and the risk his conduct posed to other road users.
[46] Applicant’s Tender Bundle, 3
The Applicant also failed to declare his conviction for the driving offences on his immigration arrival card when he returned from Nigeria in 2014.[47]
[47] Transcript of proceedings dated 11 October 2022, 12
The seriousness of the Applicant’s offending is reflected in the substantial term of imprisonment imposed upon him. The laundering of the proceeds of crime facilitated a criminal enterprise which, as the sentencing judge noted, is ‘prevalent and incredibly difficult to detect’.[48] It is not in dispute that the impact on the individuals and businesses on which the fraud had been perpetrated caused substantial financial loss and stress. In laundering the proceeds of criminal activity, he played a crucial role in the successful commission of these crimes and the harm caused to the victims.
[48] G4/46
I am satisfied that the Applicant’s offending was extremely serious and the harm caused to the victims of the fraud was severe.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
It is submitted on the part of the Applicant that ‘it is difficult to identify what additional harm might be caused to members of the Australian community should he reoffend in a similar manner’. It is argued that the defrauding of victims was merely antecedent to the Applicant’s participation in the scheme as a ‘money mule’, rather than a core component of the criminal enterprise, as another individual could be used to perform the same function.[49] I do not accept this argument. The role of a ‘money mule’ is essential for the criminal enterprise to be of benefit to the perpetrators and carries significant risk for the community and potential victims of online fraud. In taking on the role he did, the Applicant became an essential participant in the criminal enterprise.
[49] Applicant’s Statement of Facts, Issues and Contentions, [26]
Based on his past conduct, I accept the Respondent’s submission that there is a very serious risk of emotional and financial stress to members of the Australian community should the Applicant reoffend.
In regard to the likelihood of further offending, the Applicant submits he is ‘highly unlikely’ to engage in further offending and argues his remorse and rehabilitation demonstrates the risk to the Australian community is low.[50]
[50] Applicant’s Statement of Facts, Issues and Contentions, [27]
In terms of rehabilitation, the Applicant has completed and participated in programs to address his offending whilst in prison and immigration detention. His evidence is that shortly after his arrest it became clear to him that his problem gambling and ‘bad decision making’ had played a significant role in his decision to engage in money laundering. He subsequently completed a program related to drug and alcohol addiction in prison and participated in other self-improvement and skills building programs whilst in immigration detention. Whilst not specifically targeting problem gambling, he claims to have been able to adapt the ideas and insights provided to addressing his problem gambling.[51]
[51] Applicant’s Tender Bundle, 4
The Applicant maintains a desire to pursue assistance directed specifically at gambling and has received regular counselling since September 2020 and has seen a psychologist whilst in immigration detention.[52]
[52] Applicant’s Tender Bundle, 4
When the Applicant was arrested his bank accounts were frozen by Court order. One account contained $46,000 which had been fraudulently obtained from an individual in Canada. The victim of the fraud to whom the money belonged did not respond to approaches by the NT police regarding the return of the money, and upon closure of the account in which the funds were held the Applicant was issued a cheque for $46,000.[53] In a written submission the Applicant states that he has not deposited the cheque and does not intend to use the money for his own benefit. Instead, he intends using all of the money to partially repay the other victims of his offending in proportion to the amounts they remain out of pocket.[54]
[53] Transcript of proceedings dated 11 October 2022, 16
[54] Applicant’s Tender Bundle, 5
The Applicant submits he is remorseful for his offending but the sentencing remarks demonstrate Acting Justice Mildren did not accept his remorse as genuine. Acting Justice Mildren identified that whilst he pled guilty to the offending, he did so shortly before the trial, and after being presented with evidence disproving his earlier denials of involvement. He stated in part:
Initially, you made a conscious decision to become involved by providing the use of your bank account. Once that risk became too great, as your bank accounts were frozen and banks were communicating to you that they were no longer prepared to do business with you, you provided the bank details, in third names, for your criminal associates who used the funds to be transferred into.
The offending occurred over a period of six months. You were employed during this period. You used some of the funds which you obtained for your own personal use. I am unable to quantify the financial benefit which you received. There is a dispute between the Crown and you as to the exact amount, and which has not been resolved.
Your role in the offending was crucial to the success of the frauds. Without an Australian bank account for the funds to be deposited into, the payee would have become suspicious and not made the payments as instructed.
You participated in an interview with the police, during which you denied the offending conduct. You created a version of the events to exculpate yourself. However, the police obtained your bank records and phone communication and were able to disprove your assertion. This is relevant to any consideration of whether or not you are truly remorseful.
Because of the prevalence and difficult of detection of crimes of this kind give rise to and the minimal chances of recovery of the funds, the primary considerations in cases of this kind are general deterrence, denunciation by the courts and protection of the community. Consequently, there must be a significant head sentence to show you and others like you that this kind of behaviour will not be tolerated.
As to the fact that you have pleaded guilty, I note that this was at a very late stage, resolved only two days before the trial was due to start. It was put on your behalf that you are remorseful, but I am unable to accept this. You may well be sorry for yourself and for the pain that you have caused your wife and children, but that does not translate into true remorse.
You have accepted, eventually, and taken responsibility for your behaviour and your plea has saved the government the cost of a lengthy trial. You are entitled to some benefit for this. Accordingly, I reduce the sentence which I would have otherwise imposed by 10 per cent.[55]
[Emphasis added]
[55] G4/47
The Applicant claims it was his intention to plead guilty to dealing with the proceeds of crime and identity sharing to facilitate an offence soon after his arrest in June 2018 and being prepared to enter a guilty plea shortly after.[56]
[56] Transcript of proceedings dated 11 October 2022, 40
During the hearing the Applicant was questioned at length about his decision to plead guilty. He confirmed that when he was arrested he acknowledged receiving money into his bank accounts, but told police but told the police he did not know Guzel ‘was committing cybercrime’, which he acknowledged ‘was a lie at that point’.[57] He also gave evidence confirming the Court’s understanding it was just two days before his trial in the Supreme Court that he agreed to plead guilty to money laundering.[58]
[57] Transcript of proceedings dated 11 October 2022, 40
[58] Transcript of proceedings dated 11 October 2022, 40
The Applicant attributes not entering a guilty plea earlier to a significant delay in him having access to a legal adviser who explained to him that police were seeking to establish he had engaged in defrauding the victims – which the Applicant denies – and negotiate appropriate charges on his behalf with police. He told the Tribunal that by ‘late in November or early December 2018’ he had decided to plead guilty to the offence of dealing with the proceeds of crime.[59] His account is consistent with an email to the Applicant from his Legal Aid representative confirming singed instructions to that effect were provided on 11 December 2018.[60]
[59] Transcript of proceedings dated 11 October 2022, 40
[60] Applicant’s Tender Bundle, 27
The Applicant gave evidence that on the day he was arrested police came to his home as he was preparing to go to work. Police provided him a warrant to search his property and he gave officers his phone and laptop, both of which were locked. Police told him they would not force him to open the devices and asked if he was willing to provide the passwords for his phone and laptop, which he did.[61]
[61] Transcript of proceedings dated 11 October 2022, 43
In the Applicant’s evidence, he maintains that a ‘gambling addiction’ was the genesis of his offending. He claims to have been introduced to online sports betting in 2014 and by 2016 he realised his gambling had become problematic as his debts continued to increase despite a significant increase in his salary.[62]
[62] Transcript of proceedings dated 11 October 2022, 50
In a handwritten submission the Applicant states that his addiction ‘made [him] start to seek other means for financial gains’.[63] He repeats this claim in a personal circumstances form submitted to the Respondent dated 21 November 2019. Asked to outline any factors which he believed may explain his offending, he writes:
I have come to accept my addiction to gambling which has completely ruined me as I was blindsided to it. This was the singular factor that led to my financial hardship and indebtedness. Even though I had 2 full-time jobs and a part-time job all my earnings went into gambling and I sorted [sic] another means of getting money.[64]
[63] G6/56
[64] G6/70
It is the Applicant’s evidence that he did not seek to become involved in money laundering. When asked specifically how it was that he became involved in money laundering, he gave evidence that owing to his gambling debts he was susceptible when he received an approach to do so from the man he had met online, Guzel.
In relation to the serendipitous coincidence of the indebted Applicant being approached by a stranger offering an easy way to obtain money, the Tribunal was directed by the Applicant’s representative to a statutory declaration from Kingsley Ebelebe, who is a leader of the Nigerian community in the Northern Territory.[65] Mr Ebelebe describes the prevalence of online fraud in the Nigerian community, and the mechanisms with which participants were recruited.[66] He writes in part:
It is very common for Nigerians that have moved to Australia to be approached by these Nigerian scammers living overseas, mostly in countries such as China, South Africa, Ghana and Malaysia. They will send you message through Facebook or Whatsapp. They want to use your bank account to move money back and will offer you a percentage of the fraud money to do this.
I myself have been approached a couple of times. Some of them are people that I have known from my past life. I have never taken this up and I just block them. None or my immediate family or close friends would ever do this.[67]
[65] Transcript of proceedings dated 11 October 2022, 53
[66] SG/186-193
[67] ST/192
The Applicant was assessed as being at low risk of reoffending using the Level of Service Inventory – Revised (LSI-R) assessment in November 2019.[68] A reference to the LSI-R is made in a NT Government offender file which also identifies the Applicant’s brother Christian as a co-offender.[69] The offender file also notes that one of the Applicant’s brothers had been placed into immigration detention.[70]
[68] Applicant’s Tender Bundle, 7
[69] ST/35
[70] Applicant’s Tender Bundle, 10
In his oral evidence the Applicant acknowledged involving Christian in his offending. He gave evidence that he approached Christian about ‘using his bank account for commission’.[71] Christian agreed and the Applicant provided Christian’s bank account details to Guzel and the brothers subsequently shared the ‘commission’.[72] The role of the Applicant’s brother and the extent to which he may have been involved in the Applicant’s offending was not raised by either party as a relevant consideration.
[71] Transcript of proceedings dated 11 October 2022, 16
[72] Transcript of proceedings dated 11 October 2022, 15
In any event, The Respondent did not make submissions directly challenging the Applicant’s account of his gambling debts being the primary motivation for his offending. Nor was it contested that the Applicant was engaged by Guzel in anything other than the serendipitous circumstances detailed by the Applicant.
Conclusion as to the Protection of the Australian community
There is agreement by the parties that the risk of the Appellant reoffending is low.[73] The explanation that his offending was motivated by a gambling debt and commenced following a serendipitous approach by a stranger he met online was not disputed at the hearing.
[73] Respondent’s Statement of Facts, Issues and Contentions, [34]; Applicant’s Statement of Facts, Issues and Contentions, [27]
In relation to his gambling problem, the Applicant has sought and continues to receive treatment. In the absence of programs targeting specifically at problem gambling, the Applicant participated in programs directed at substance abuse. I accept the skills he has learnt through substance abuse treatment can also be used to help overcome process or behavioural addictions such as gambling. His commitment to continued treatment with a counsellor and psychologist indicates a desire to understand his behaviour and determination to make positive changes.
I also accept that the Applicant has come to appreciate the consequences of his offending including the devastating impact on the victims of fraud, his ability to hold a visa and the significant implications for he and his family.
The sum of the evidence leads to a conclusion that the Applicant is remorseful for his offending. The delay in the Applicant pleading guilty which was identified by the Court is partly explained by the delay in appropriate charges being brought. His preparedness to plead guilty at an earlier date was recorded in instructions provided to his legal representatives. His cooperation with police including by providing access to his laptop and phone when he was arrested supports a finding that he was cooperative if not entirely truthful at the time. For these reasons, I accept the Applicant’s remorse as genuine.
I am satisfied that should the Applicant be released back into the community the risk of his reoffending is low. However, the Applicant’s conduct to date is serious and the nature of the offending and the pernicious harm it causes is potentially devastating. As such this primary considerations weights against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 - Family violence committed by the non-citizen

The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in paragraph 1 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As there is no evidence of the Applicant having engaged in family violence, this primary consideration is not relevant to this application and is afforded neutral weight.
primary consideration 3 - BEST INTERESTS of MINOR children in australia
Subparagraph 8.3 of Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child in the future, the likely effect that any separation from the person would have on the child and whether the individual can keep contact with the child through other methods, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant has two minor children in Australia who would be affected by the decision to cancel his visa. His son BR is age 6 and his daughter RO is age 5. Whilst both were born in Australia, neither are Australian citizens. Both children currently reside with Ms Okoh.
Like Ms Okoh, the Applicant’s two minor children are dependents on the Applicant’s substantive Class SN Subclass 190 Skilled Nomination visa application[74] which was refused under s 501F(2) as a consequence of the mandatory cancellation of his visa. As outlined earlier, should the decision to cancel the Applicant’s visa not be revoked the Applicant and Ms Okoh have given evidence that both they and their children will return to Nigeria together.
[74] Applicant’s Statement of Facts, Issues and Contentions, [5]
On this basis, I accept the Respondent’s contention that a decision not to revoke the cancellation of the Applicant’s visa will not result in the family being separated.
The Applicant submits that should he and his family be returned to Nigeria it would deprive both his children the opportunity to become permanent residents of Australia and ultimately Australian citizens. In addition to being deprived of the advantages of living in Australia, they would be relocated to Nigeria, a country to which they have never visited and have no social connections. The eldest child, RO, has already commenced schooling in Australia and moving to Nigeria would be disruptive to his education. Further, the Applicant submits that his children would suffer from a significant reduction in their quality of life in Nigeria on account of he and Ms Okoh’s reduced earning capacity and the difficulty securing paid employment.[75]
[75] Transcript of proceedings dated 11 October 2022, 21
The Applicant also has two minor nephews who reside in Brisbane who he claims to have had regular contact with until his incarceration. It is unclear what role he expects to play in their lives in the future but he does not claim any parental or caring responsibilities for the children.
As Ms Okoh’s visa is dependent on the Applicant’s, I accept that affirming the reviewable decision would result in the Applicant and his family returning to Nigeria. The evidence supports a finding that relocating to Nigeria would not be in the best interests of the Applicant’s children as they have not lived in Nigeria and it would be disruptive to them and particularly RO who has already started school in Australia. I also accept that they would be expected to have a lower quality of life in Nigeria than they currently experience in Australia.
Whilst acknowledging the family would likely remain together, I afford this consideration significant weight in favour of revoking the cancellation decision in light of the disruption it would cause both RO and BR and the consequences on their quality of life.
primary consideration 4 - Expectations of the austrAlian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[76] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[76] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
The Applicant submits that the weight afforded to this primary consideration is mitigated by factors including his low risk of reoffending and remorse, which I have considered as part of the protection of the Australian community.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
Other considerations
I now turn to considering the other relevant considerations set out in Direction 90.
International Non-refoulement Obligations
I am required to consider whether Australia’s international non-refoulment obligations are engaged in relation to the Applicant. The Applicant does not make any claim that he is at risk of harm for a convention related reason.[77] However, he contends that there is a risk of kidnapping and harm from violence in Nigeria, which I have addressed under the consideration related to impediments he may face should he return to Nigeria.[78]
[77] Applicant’s Statement of Facts, Issues and Contentions, [20]
[78] G7/73
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in Nigeria.
The Applicant accepts that his age would not prevent him from establishing and maintaining a basic standard of living in Nigeria or that he would face signification language or cultural barriers should he return. He also concedes he would not be at a significant disadvantage as compared to other members of the Nigerian community. This is particularly the case given he is well qualified – he holds both a Bachelor of Science and Post Graduate Diploma of Education degree obtained in Nigeria in addition to the Bachelor of Humanitarian and Community Studies he obtained in Australia.
The Applicant submits that upon returning to Nigeria he would face disadvantage having been absent from the country for 9 years. He has also been diagnosed with Hepatitis B. Though medication for this condition is available to him in Nigeria, he gave evidence it would be so expensive relative to his income in Nigeria that it would be unaffordable.[79]
[79] Transcript of proceedings dated 11 October 2022, 21
The Applicant acknowledges that he can expect to have some emotional support from family in Nigeria but submits he could not rely on his family to provide financial support or accommodation.[80]
[80] Transcript of proceedings dated 11 October 2022, 27
The Respondent notes that the Applicant did not leave Nigeria until he was 27 years of age and both his parents and first born daughter reside in Nigeria. In relation to the Applicant’s Hepatitis B, the Respondent submits that the condition has to date not required treatment beyond ongoing screening at 6 monthly intervals to detect any hepatocellular carcinomas which may require treatment. It is submitted that there is no evidence that the Nigerian health system cannot accommodate the Applicant’s ongoing medical needs.
In addition to treatment for his medical condition, the Applicant submits there is a real risk of him being the victim of violence should he return to Nigeria. He also claims that as a person perceived to have money, there is a risk he may be kidnapped for ransom. He gave evidence that a friend who later became a priest was kidnapped and killed before his church could raise the money to pay a ransom which had been demanded in exchange for his safe return.[81]
[81] Transcript of proceedings dated 11 October 2022, 22
Recounting his 2017 return visit to Nigeria, the Applicant conceded that he did not personally experience any violence but gave evidence of witnessing acts of violence, which he submits are widespread. Whilst in Nigeria he attended a wedding where bottles were broken during a fight and one guest was cut with a machete.[82]
[82] Transcript of proceedings dated 11 October 2022, 32
The Respondent acknowledges that the DFAT Country Information Report Nigeria (dated 3 December 2020) states that kidnappings by criminals demanding ransom have become a concern in Nigeria. The Country Information Report also states that kidnappers usually target prominent or wealthy figures. I acknowledge the Applicant’s submissions that individuals returning from overseas are subject to higher risk as they are seen as wealthy, but as he has identified a lack of financial support as an impediment to his returning to Nigeria, and has returned to Nigeria on two occasions since coming to Australia, I do not consider the prospect of being kidnapped a determinative impediment to his return.
Nonetheless, on the basis of the Applicant’s medical condition, the difficulty in accessing the required medication for his condition and the expected emotional and financial challenges he would be expected to face when readjusting to life in Nigeria whilst supporting his family, this consideration weighs in favour of revoking the cancellation of the Applicant’s visa.
Links to the community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia including immediate family members in Australia where those family members have a right to remain in Australia indefinitely.
Whilst acknowledging the Applicant has been imprisoned or immigration detention since his arrest in 2018, he has been residing in Australia for 9 years and is entitled to some weight under subparagraph 9.4.1(2) of the Direction.
The Applicant’s family ties to Australia extend to his brother Festus Okoh, who is an Australian citizen, and father to the Applicant’s two Australian citizen nephews. The Applicant has ties to the Nigerian community in the Northern Territory in which he is an active participant. References such as that of Mr Victor Okafor confirm the local Nigerian community would be impacted by his removal.
The Applicant’s wife and children are dependents on his visa and do not have the right to stay in Australia indefinitely. The impact of the cancellation decision on the Applicant’s children has already been taken into account.
Ms Okoh has lived in Australia for seven years and gave evidence that the cancellation of the Applicant’s visa would result in significant hardship and distress for her. She is distressed at the prospect of her children being required to relocate to Nigeria.
The Applicant is a qualified disability support worker and submits that there is a shortage of disability support workers across Australia and this should be a factor which weighs in his favour. Paragraph 9.4.2 of Direction 90 requires the Tribunal to consider the impact on Australian business interests where a decision may compromise the delivery of a major project or service. Whilst Mr Okoh’s skills are valuable, they do not meet the criteria set out in paragraph 9.4.2.
However, subparagraph 9.4.1(2)(a)(ii) of the Direction does provide that weight should be given to time the non-citizen has contributed positively to the Australian community. The Applicant was consistently employed until his arrest, and the contribution he has made as a disability support worker and carer for individuals with intellectual disabilities weighs in his favour. He has an offer of employment from Victor Okafor who owns a business providing disability services, which is indicative of his potential to continue to make a contribution should he be released back into the community.[83]
[83] G15/133
Based on the evidence, I find that the Applicant has strong if limited ties to the Australian community to which he has made a meaningful contribution, and this consideration weighs in favour of revoking the cancellation of his visa.
Conclusion
The nature of the Applicant’s offending was serious as reflected in the significant term of imprisonment imposed upon him. His explanation, that he had been seduced into gambling, found himself in debt and was vulnerable to being recruited into a criminal enterprise by a stranger, is accepted based on the evidence before the Tribunal. His remorse was questioned by the Court in relation to the timing and circumstances of his guilty plea, but his actions since have demonstrated a determination to make right what he can and to address the root cause of his offending. For these reasons, whilst protection of the Australian community and the expectations of the Australian community weigh against the Applicant, they are afforded less weight than they might otherwise be.
The best interests of the Applicant’s children are served by having the visa cancellation revoked so that they may remain in Australia. The primary consideration related to their interests is afforded significant weight.
The Applicant would be expected to face some impediments upon his return to Nigeria and accessing treatment for his health condition may prove challenging, primarily for financial reasons. However, these challenges are not insurmountable, and I afford this consideration moderate weight in favour of revocation.
The Applicant’s ties to the community weigh in favour of revocation and he has, primarily through his work, made a positive contribution to the community. As a separate consideration, Ms Okoh has resided in Australia for 7 years and is dependent on the Applicant for her right to remain in Australia. I found her evidence that she wished to stay in Australia for the benefit of her children and so that she may continue to support her family in Nigeria was genuine, impassioned and persuasive and this consideration is afforded significant weight as a consequence.
In balancing the considerations outlined in the Direction, I find that there is another reason why the cancellation of the Applicant’s visa should be revoked.
decision
For the reasons stated above, the decision of a delegate of the Respondent dated 6 June 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...........................................[Sgd].............................
Associate
Dated: 29 September 2022

Date(s) of hearing: 11 and 12 August 2022

Solicitors for the Applicant: Joel McComber

Solicitors for the Respondent: Cameron Retallick

[2022] AATA 3183

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date(s) of hearing:	11 and 12 August 2022
Solicitors for the Applicant:	Joel McComber
Solicitors for the Respondent:	Cameron Retallick