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

[2022] AATA 2542

Okoh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2542 (6 July 2022)

Division:GENERAL DIVISION

File Number(s):      2022/3301

Re:Christian Okoh

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:6 July 2022

Date of written reasons:        3 August 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Bridging C (Class WC) visa application not be refused under s. 501(1) of the Migration Act 1958.

...........................[sgnd]....................................

Senior Member Dr N A Manetta

MIGRATION – refusal of bridging visa under s 501(1) of the Migration Act – Direction 90 -applicant guilty of participation in online frauds – sentence of two years – substantial criminal record – primary considerations in Direction 90 weigh against applicant –applicant refused protection visa but has filed review application in Tribunal that is awaiting listing – applicant not removed to detention despite having no visa – applicant not eligible to work without visa – doubts about ability of applicant to work and support himself on an ongoing basis pending hearing of review application - circumstances of case very unusual – other considerations may prevail over primary considerations in an appropriate case - decision set aside

Legislation

Migration Act, 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[2021] AATA 2119

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

Senior Member Dr N A Manetta

3 August 2022

1. After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I delivered orally with relatively minor amendments only.

2. This is an application by Mr Christian Okoh seeking a review of a decision of the respondent’s delegate dated 4 April 2022. By this decision, the delegate refused to grant Mr Okoh a bridging visa.  As I understand matters, this type of visa is taken to be applied for when a protection-visa application is made.  Mr Okoh had applied for a protection visa in July 2020.

3. The bridging-visa application was refused in the following circumstances. Mr Okoh was found to have failed the so-called “character test” under section 501(1) of the Migration Act 1958 (“the Act”). The discretion to refuse the visa under this section was, therefore, enlivened.  The delegate then decided, in the exercise of his or her discretion and after applying Direction 90[1], to refuse Mr Okoh’s application for a bridging visa.  His protection visa application had already been refused by a delegate on its merits in October 2020.

   [1] “Direction no. 90 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

4. It is an unusual feature of this matter that since the delegate’s decision in April 2022, some months ago, Mr Okoh has continued to live in the community: he is not presently in immigration detention.  As at the date of my oral decision, he was living in Mt Isa in Queensland. 

   TRIBUNAL’S TASK

5. Hearing the matter afresh on the evidence adduced before me, I must address the preliminary question of whether Mr Okoh fails the character test under the Act; and, if that question is answered in the affirmative, I must then address the further question of whether, in the exercise of my discretion, a decision to refuse the bridging visa under section 501(1) should be made. I, too, must apply Direction 90 in considering whether to exercise the discretion in section 501(1).

6. In exercising my jurisdiction, I note that I proceed de novo; that is to say, I reach the correct or preferable decision based on the evidence before me. This implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasoning if this is the correct or preferable decision on the evidence before me; equally I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. At the hearing before me, Mr Fredericks appeared for the applicant; Mr Chan, for the respondent.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review and substitute a decision that Mr Okoh’s application for a bridging visa not be refused under section 501(1) of the Act. I now turn to set out the background facts and the reasons for this conclusion. I should say at once that there is no doubt Mr Okoh fails the “character test”, as defined, as he was sentenced to a term of imprisonment exceeding 12 months and thereby had a “substantial criminal record” as defined: see section 501(6) and (7)(c). The only controversial question of substance agitated before me involved the exercise of the enlivened discretion under s 501(1).

   BACKGROUND FACTS

8. Mr Okoh was born in Nigeria in 1988. He studied law in Nigeria, graduated from university in 2011, and was then admitted to the Nigerian bar. He said he worked as a civil lawyer for a Nigerian law firm for approximately one year.  Mr Okoh also has a history of working in the Nigerian community: he worked for one year as part of a compulsory program administered by the Nigerian Government.  I accept his evidence in this regard.  I infer from the successful completion of his studies and also from his sophisticated conduct before the Tribunal that Mr Okoh is a person of ability and intellectual capacity.  I note further by way of background that Mr Okoh’s first language is English. 

9. Turning to his time here, I note that Mr Okoh arrived in Australia in 2016 on a five-year student visa.  He enrolled in Charles Darwin University in the Northern Territory.  He undertook an MBA, which he said he completed in 2019 after three years of full-time study. Again, I infer from the successful completion of this Master’s degree that Mr Okoh has an above-average level of intellectual capacity.  While studying for his MBA, Mr Okoh worked as a disability carer for approximately 20 hours earning some $800 to $1,000 per week, he said.  I accept this evidence.

10. Mr Okoh is married, but his wife and child live in Nigeria.

11. Mr Okoh lived with his brother Joseph on his arrival in Australia. As I understand Mr Okoh’s evidence, it was his brother Joseph who was the instigator of the criminal enterprise that involved Mr Okoh and led to the refusal of his bridging visa application under section 501(1) of the Act.

12. I now turn to describe that criminal offending. Mr Okoh gave evidence, which I accept, that his brother approached him and informed him that his (that is, the brother’s) bank account had been blocked by the bank.  He requested permission from Mr Okoh to use Mr Okoh’s bank account for a series of “business transactions”. Mr Okoh maintained before me that he thought these transactions were honest.

13. As I say, Mr Okoh maintained before me that he gave his permission to what he thought was an honest series of transactions. The transactions were not honest, however, but were in fact plainly dishonest. The transactions are described in the sentencing remarks, which were in evidence before me: Ex R1 at pp 33ff.  They involved the “scamming” of community members, who were duped into transferring money to Mr Okoh’s account.  Monies from the account were withdrawn by Mr Okoh periodically and were passed to his brother. The sentencing remarks record that Mr Okoh accessed moneys in the account and used them for his own personal purposes: see Ex R1 at pp 35 and 36.

14. Mr Okoh was charged in due course before the Supreme Court of the Northern Territory in respect of one count of dealing with the proceeds of crime, a so-called “money-laundering” offence.  I do not need to detail in these reasons the precise modus operandi. It is sufficient to say that, according to the sentencing remarks, approximately $16,200 and a further $72,200 were defrauded from, respectively, a member of the public (a foreign student studying in Sydney) and a corporation associated with the Adani group.  The frauds all occurred in 2018.  As I have said, the sentencing remarks record withdrawals from the account by Mr Okoh for personal purposes. 

15. The remarks also record (see Ex R1 at p 37) Mr Okoh’s voluntary attendance at the Palmerston police station where he participated in two separate interviews with police and lied to them in an attempt to exculpate himself and presumably also his brother.

16. Mr Okoh was eventually charged and he promised to give evidence against his brother.  Mr Okoh was convicted and sentenced to imprisonment for two years.  The sentence was suspended upon Mr Okoh agreeing to a home-detention order for a period of 10 months.  This Mr Okoh did.

17. Mr Okoh maintained before me that as a result of his co-operation with police, he has become known as “a snitch”, or informer, and he and his family in Nigeria have received a series of threats to their personal safety from gangs there.  These prompted him to make a claim for a protection visa.  That application was refused on 21 October 2020: see Ex R1 at pp 97ff.  Mr Okoh’s application in this Tribunal seeking a review of that adverse decision is presently awaiting listing in the Migration Division.

18. As I understand matters, Mr Okoh was also taken in law to have applied for a bridging visa once he applied for a protection visa: see Ex R1 at p 48. This was refused by the delegate, as I have said, on 4 April 2022: see Ex R1 at pp 20ff.  Mr Okoh brought an application to this Tribunal in respect of the refusal of the bridging visa, and this refusal is the matter I am tasked with reviewing.

19. It is a striking feature of this matter that Mr Okoh is presently living in the community, in Mount Isa.  As he is not the holder of any visa, however, he is not permitted in law to work to maintain himself. He depends, he said, on the charity of family members and acquaintances so that he can continue to maintain himself while his application for review in respect of the refusal of his protection-visa application awaits listing and determination in this Tribunal. Of course, had he been confined in immigration detention, his immediate personal needs for accommodation, food, and any necessary medical care, would be met by the Australian government.  At the present time, he is without the lawful ability to work and support himself. This makes the application before me a rather unusual one.

20. I further note that if Mr Okoh were in detention, his application for review of the refusal of his protection visa application would be listed as promptly as possible, as I understand the Tribunal’s practice in this regard.   A priority listing is given to those who are detained.  At the present time, however, Mr Okoh’s application is one of many thousands in the Tribunal that constitute a serious backlog, and it may be some considerable time before it is listed for hearing and eventually determined on its merits.

    REASONS

21. I now turn to consider the application of Direction 90, which I must apply.  I have already indicated that Mr Okoh does not pass the so-called “character test”.

22. In the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[2021] AATA 2119 at [32]ff, I discussed the objectives and principles expressed in paragraphs 5.1 and 5.2 of the Direction.  I customarily include in my section-501 decisions a quotation setting out these paragraphs. I would do so here. But I do note that my remarks in Re Rai concerned the statutory power to revoke the mandatory cancellation of a visa, not the discretion to refuse a visa under s 501(1). Paragraphs 5.1 and 5.2 apply also, however, to the refusal of a visa under section 501(1), and I believe my remarks are apposite, although they need to be read mutatis mutandis: 

    “32 I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33 I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5).  I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34 First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4(2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35 I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36 Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9.  I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

1. I turn now to apply the Direction.  The first primary consideration I must consider is the protection of the Australian community from criminal or other serious conduct: paragraph 8(1).   I accept the respondent’s submissions in this regard. I note, without quoting them, the principles that appear in paragraph 8.1(1) of the Direction.

2. I must have regard to the nature and seriousness of Mr Okoh’s conduct to date (paragraph 8.1(2)(a)) and the risk to the Australian community should he commit further offences or engage in other serious conduct (paragraph 8.1(2)(b)).  I regard Mr Okoh’s offending as very serious. It is sometimes thought that financial or economic crimes are inevitably to be regarded less seriously than those involving physical violence. That is not always so. “Scams” and cybercrime are very serious social problems at the present time.

3. Enormous sums are stolen from members of the community through scams of the type in which Mr Okoh was engaged. I think I can legitimately take notice of the fact that Australians and community members in other countries are often subjected to so-called “phishing” emails that lure them into parting with money (or important personal information).  I proceed on the basis that this sort of crime is widespread, very serious, and disruptive.

4. I must have regard to the sentence imposed by the Court. I regard the principal sentence of two years as an important indicator reflecting the gravity of the offending in this case.   The seriousness of the offending is not reduced by the fact that home detention was permitted. 

5. I note that Mr Okoh’s offending comprised at least two occasions when significant sums of money were defrauded from others; and had it not been for the intervention of police, the fraud might have continued indefinitely. Accordingly, I regard this offending as of a type that would have gone on unchecked unless and until the police intervened. I am directed to have regard to the cumulative effect of repeated offending and I do so.

1. I must assess the risk to the Australian community of Mr Okoh’s reoffending. In my opinion, the risk of reoffending (paragraph 8.1.2(2)(b)) cannot be accurately estimated on the basis of the evidence before me, but it cannot be said to be low. Despite being very well educated and having paid employment as a carer, Mr Okoh opted to enrich himself unlawfully at the expense of others through his participation in an ongoing fraud. He took, in my opinion, a dispassionate and calculated decision to do so. He was 30 years of age at the time of the offending and as I have said he is a person of above-average ability. I do not accept his submission that he acted under pressure from his brother. No doubt his brother introduced him to the scheme and actively encouraged his participation for a “cut” of the proceeds; but in my opinion it was open to Mr Okoh, as a mature 30-year-old, to reject the invitation to participate in a criminal enterprise. 

2. I further note that Mr Okoh did not merely “lend” his account to his brother but also sought personally to benefit from the crimes being committed according to the sentencing remarks.

3. Mr Okoh also gave evidence before me which I must say impressed me as quite brazen in its disowning of personal responsibility.  Mr Okoh maintained that whilst he was regretful, he was guilty of nothing more than negligence in his lax supervision of his account and of undue trust of his brother. I reject this submission and do so quite firmly. Mr Okoh’s own evidence to me was that he knew his brother’s bank account had been blocked when he agreed “to lend” his account to his brother for the so-called business venture.  I do not believe there could be any doubt that Mr Okoh knew that if his brother’s account had been blocked by the bank, there must have been some very good reason for that occurrence.  I refer again to Mr Okoh’s relative sophistication.   He could simply have said to his brother that he ought to get his account unblocked and operate the business venture through his own account.  

4. Moreover, it is undoubtedly the fact that Mr Okoh, who attended the Palmerston police station voluntarily on two occasions in connection with an investigation, lied to the police. Mr Okoh’s lies at these interviews were a serious matter. The interviews were voluntary, as I have said: Mr Okoh could have chosen not to participate. Instead, he chose to mislead the police in their investigation. I regard that as serious misconduct that is indicative of guilt: it is inconsistent in my opinion with any honest belief held by Mr Okoh in the propriety of his brother’s transactions.

1. Many applicants to the Tribunal make the mistake of giving a false version of events in the hope of improving their chances. I appreciate that the decision to minimise personal responsibility is one that is sometimes taken wrongly as it has been in this case. Mr Okoh is a lawyer, however, and ought, in my opinion, to have known better than to present to this Tribunal a “dressed-up” version of events that was inconsistent with the sentencing remarks. Despite what he said to me, I am unable to detect any real remorse. He did not mention to me any regret that the victims of the frauds have not recouped any of the monies that they have lost. He did not indicate to me that he had any intention of seeking to pay them back when he could.  His written submission[2] that the prosecutor was “out to get blood” and the implicit suggestion that he was dealt with harshly in the Northern Territory Supreme Court appear to me to be also quite brazen.  Mr Okoh ought to have appreciated that in circumstances where no money had been repaid to victims, and where he had benefited personally from substantial frauds, he was, perhaps, fortunate not to find himself incarcerated as a punishment and deterrent for his offending.  But in any event it can hardly be said that the Court treated him with harshness. He was permitted to serve his sentence in home detention and he received a suspended sentence.

   [2] Ex R1, at p 7.

2. All in all, I am not prepared to find that the risk to the Australian community of Mr Okoh reoffending is low, although I cannot on the evidence before me estimate the level of risk.  Certainly, Mr Okoh will be aware that any further offences in the Australian community will result in a sentence that will require to be served in jail and he will also appreciate that any visa he has at that time will be cancelled with a view to his deportation. I believe he fully understands that consequence. Nevertheless, whilst I appreciate that this prospect does operate as a significant deterrent to him, I do not have much confidence in Mr Okoh’s basic integrity. 

3. I note further that any risk Mr Okoh poses must be added[3] to the nature of the harm to individuals or the Australian community “should he” (that is on the assumption that he in fact proceeds to) engage in further criminal or other serious misconduct (paragraph 8.1.2(2)(a)). In this regard, I regard the danger to the Australian community as very serious indeed.

   [3] Cf the use of the word “cumulatively” in paragraph 8.1.2(2).

4. Scams and fraud are a very serious feature of Australian life. The nature of financial transactions have evolved dramatically within a generation or so.  A generation or so ago, cash and cheque transactions were frequent. The use of the internet to make payments from bank accounts via a computer terminal is now prevalent.  It is certainly convenient. Many people in the community have lost money, and continue to lose very large sums indeed, due to online fraud. I regard the threat of this sort of crime to the well-being of ordinary Australians and to the overall well-being of Australian society as very serious.  All in all, therefore, the protection-of-the- Australian-community consideration counts heavily against Mr Okoh.

5. There is no family violence of which I must take account: paragraph 8.2. I do not believe there are any minor children in Australia whose interests need to be considered: paragraph 8.3. I accept that Mr Okoh is an uncle to a number of nephews and nieces but the evidence before me suggests that Mr Okoh is largely estranged from his extended family due to his being, as he put it, “a snitch”; and I note that in any event these are not parent-child relationships. Moreover, I bear in mind that I am only considering a bridging-visa application and the effect of my decision is not, therefore, to decide finally whether these relationships would be unduly impacted by Mr Okoh’s removal from Australia. All in all, therefore, I regard the best interests of minor children in Australia as neutral.

6. I must have regard to the expectations of the Australian community: paragraph 8.4. I accept what is put in paragraph 8.4. In particular I accept that the Australian community expects Mr Okoh amongst others to obey Australian laws while in Australia. As a norm it would be expected that Mr Okoh should not be permitted to remain in Australia. This consideration is consistent with a decision to affirm the decision under review. I would also regard Mr Okoh’s engagement in the offending as a crime that is of serious international concern (cf paragraph 8.4.2(e)). International cybercrime and scanning now have a trans-global purview.  They can involve victims across multiple jurisdictions and the secreting of money in foreign accounts where it will effectively be beyond recovery by local authorities. Money was transferred outside Australia in this case. In normal circumstances, applying paragraph 8.4, I would regard this sort of crime as very serious and one where the person who has engaged in it for no good reason other than self-enrichment should expect to have his or her visa refused. I note that the community expectations I am to apply are embedded in the relevant paragraph and I am to apply them regardless of whether Mr Okoh poses a measurable risk of causing physical harm in the Australian community.

7. It is quite clear to me that the primary considerations, to which I ordinarily ought to give more weight than the so-called other considerations, count heavily against Mr Okoh.

8. I now turn to consider the “other” considerations under paragraph 9. The first of the considerations is international non-refoulement obligations.  Mr Okoh maintained before me that he would face a serious threat in Nigeria. In my opinion I ought not to consider give non-refoulement obligations any weight. I note that Mr Okoh has an application in this regard before this Tribunal: his protection-visa application will be adjudicated de novo in due course. In my opinion, this is not an appropriate case to make any assumptions that the claimed harm will occur: cf paragraph 9.1(6). The application before me concerns, I note, a bridging visa only. In my opinion, it is not appropriate for me to make assumptions about claimed harm in the circumstances of this case.

9. I do not believe the criterion of impediments on removal is relevant since my decision will not result in Mr Okoh being removed from Australia. I am only concerned with a bridging visa, as I have said. That visa is of its nature temporary, and it will be the determination by this Tribunal of Mr Okoh’s application in respect of his protection visa that will govern Mr Okoh’s right to remain in Australia.

10. I do not have any information concerning the impact on victims of my decision. I do not believe that I should attach any particular weight to Mr Okoh’s links to the Australian community in Mr Okoh’s favour. His immediate family comprising his wife and child are overseas in Nigeria. He has been in Australia a relatively short time only on a student visa. He came here as an adult student and has not settled into Australian life for any considerable period of time.  He is estranged, he said, from his family in Australia because he gave evidence against his brother.

11. There are no impacts on Australian business interests to consider.

12. The other considerations I am required to address are only listed non-exhaustively, as paragraph 9(1) itself makes clear. There is another consideration to which I believe I ought to have regard. Mr Okoh has not been taken into detention, as I have noted. I note that Mr Chan was not provided with instructions from the respondent in relation to Mr Okoh’s continued residence in the community.  I rather had the impression that it came as a surprise to him. 

13. Had Mr Okoh being held in immigration detention, I would have found it the preferable or correct decision to affirm the decision under review. Mr Okoh would have the opportunity to have his protection visa application heard and determined in this Tribunal and, as I have said, my understanding is that applications before the Tribunal in protection visa matters are progressed with as much expedition as the Tribunal can apply in respect of applicants who are in detention. His immediate needs for food, shelter, and medical care when necessary would be met.

14. That is not the case here. Whilst I am not prepared to make the assumption in paragraph 9.1(6), I do not believe it is appropriate for me to make an assumption that there is no merit in the claims Mr Okoh has made.  Their proper determination will occur in due course.  When that will be is not yet clear.  It may well be a significant period of time in the future given the backlog of cases. There is no evidence before me that the respondent has endeavoured to track Mr Okoh down for the purposes of detaining him but has been frustrated in its attempt.

15. At the present time, it is appropriate, I believe, that I proceed on the basis that Mr Okoh would continue to reside in the community even if I affirmed the decision under review.  Mr Chan made the point, which is undoubtedly correct, that if I affirmed the decision under review Mr Okoh would continue to be liable to be detained; but it is equally the case on the evidence before me that matters might drift as they appear to have done to date. Mr Okoh might well be left in the community were I to affirm the decision under review.

16. I am particularly concerned that Mr Okoh is not eligible, in the absence of a visa, to work so as to support himself. He finds himself in the very undesirable position of not being able to seek work and support himself while he remains in the community. Of course, if he had been in detention, his immediate personal needs for accommodation, food, and medical care (as and when necessary) would be met. Whilst he is in the community, that is not the case and Mr Okoh must depend, lawfully, on the charity of others in order to support himself. That is a highly disadvantageous position in which to find oneself when there is no clear date in the near future when one’s review application in this Tribunal will be heard and determined. 

17. It is the case, of course, that Mr Okoh has somehow managed to live in the community and he has received help from family and friends.  But I do not think it would be right to assume that this support would necessarily continue indefinitely until his application in this Tribunal is determined.  I accept that a right to work is not an automatic incident of a bridging visa, but where there is no right to work, the bar to working may be lifted in cases of hardship as I understand matters.  That is an important safeguard for bridging-visa holders. 

    WEIGHING OF THE DISCRETIONARY FACTORS  

18. The weighing of the discretionary factors in this case has proved difficult. I accept that the primary considerations all count against Mr Okoh and the primary considerations ought generally to be given more weight than the so-called “other” considerations listed non-exhaustively in paragraph 9. It is the case, however, that in any individual case a so-called “other” consideration or considerations may outweigh the primary considerations. As I have already indicated, had this been a situation where Mr Okoh’s immediate needs for food and accommodation and medical care (where necessary) were met in a detention centre, I would have affirmed the decision under review. It is not, however, that case. I am very concerned that Mr Okoh remains in the community without a lawful right to seek employment.  I assume also that he is not eligible to receive the usual social-welfare benefits (e.g., unemployment benefits) that Australian citizens and some visa-holders at least are eligible to receive when they cannot secure employment.  On the face of matters, therefore, Mr Okoh has been left in the invidious position of having to support himself in the community without a lawful right to work and, it would appear, without the right to apply for a supporting social-welfare benefit.  That is a situation that has been brought about by the continued presence of Mr Okoh in the community.  On the other hand, if Mr Okoh had a bridging visa, even if the visa contained a condition restricting his right to work, I understand the condition could be lifted in circumstances involving financial hardship.  That is a real advantage to Mr Okoh in circumstances where the listing of his protection-visa matter in the Tribunal is as yet uncertain.

19. In these unusual circumstances, I believe it is appropriate to give this other consideration very significant weight, and in my evaluation, it has outweighed the undoubtedly significant considerations favouring affirmation of the decision under review.  

    FORMAL DECISION

20. Accordingly, having reached this conclusion, I shall set aside the decision under review and substitute a decision that Mr Okoh’s application for a bridging visa not be refused under section 501(1) of the Act.

…………[Sgnd]……………

Associate

Dated: 3 August 2022

Date of hearing:	20 and 21 June 2022
Advocate for the Applicant:	Mr Iyke Victor Fredericks-Ifeajika Ericks and Fredericks International Consulting
Advocate for the Respondent:	Mr Alex Chan Sparke Helmore Lawyers