Okoh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3313

Okoh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3313 (26 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3493
Re:Emmanuel Eghonghon Okoh
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:26 August 2020
Place:Adelaide

The decision under review is affirmed.
.........................[Sgnd]....................................
Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhumane or Degrading treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)
REASONS FOR DECISION
Senior Member K Millar
26 August 2020
INTRODUCTION

Mr Okoh is a 26-year-old citizen of Nigeria who came to Australia in June 2014 on a Student (Subclass 573) visa. On 10 October 2015, Mr Okoh was granted a Class SN Subclass 190 Skilled-Nominated (Permanent) visa (“visa”) as a dependent of his brother, Festus Okoh.
On 29 March 2019, Mr Okoh was convicted of money laundering, and was sentenced to a term of imprisonment of three years. He was released on parole on 6 January 2020 and is currently in immigration detention.
On 7 October 2019, Mr Okoh’s visa was cancelled by a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, (“the Minister”) under s 501(3A) of the Migration Act 1958 (“the Act”) because he had a substantial criminal record.
On 14 October 2019, Mr Okoh sought revocation of the mandatory cancellation of his visa, and, on 4 June 2020, a delegate of the Minister decided not to revoke the cancellation of Mr Okoh’s visa.
Mr Okoh has applied for a review of the delegate’s decision not to revoke the cancellation of his visa.
CIRCUMSTANCES OF THE OFFENCE
Mr Okoh pleaded guilty to having dealt with the proceeds of crime. This comprised deposits to his bank account of $42,591.18. In sentencing, His Honour Riley AJ described the offending, and this account of the offence is taken from the sentencing remarks.[1]
[1] G14/72-78.
The funds were received from online fraud known as “phishing”. A construction company commenced construction of a retirement village and had engaged a landscape business to design and construct gardens. The landscape business invoiced the construction company by email to its accounts payable section.
On 29 March 2018, the construction company received an email purporting to be from the landscape business and sent from the email address used by the landscape business. It was a false email as an unknown person had hacked the email service. The email requested payment of an invoice to a bank account held in Mr Okoh’s name.
On the same day, Mr Okoh received a WhatsApp communication from a contact with the username “Rabbit Nig”, which was linked to a Nigerian telephone number. Attached to the communication was a screenshot of an invoice sent to the construction company, totalling $16,191.18. There followed communication between Mr Okoh and “Rabbit Nig” where this person sought payment of half the amount of the fraudulently received money, said to be in accordance with a previous agreement, with which Mr Okoh was not complying.
On 30 March 2018, an identity recorded as “SA Guy”, linked to a South African mobile telephone number, contacted Mr Okoh and attempted to have him transfer part of the unlawfully obtained funds. Mr Okoh later sent a money transfer in accordance with the instructions of “SA Guy”.
On 6 April 2018, SA Guy sent two screenshots of emails sent to the construction company purporting to be from the landscaping business requesting payment of outstanding invoices. The construction company made further payments to Mr Okoh’s account of $9,900 and $16,500. Screenshots of emails from the construction company confirming payment were sent to Mr Okoh, who then told SA Guy his account was closed, and he could not use it to transfer money to his co-offenders.
The construction company became aware of the fraud after being contacted by the landscape business seeking payment and the matter was referred to police. A search warrant was issued for Mr Okoh’s address where $10,000 in cash, mobile phones and computers were located. Mr Okoh was arrested and participated in an interview, at which he gave a false account in an attempt to exculpate himself.
Mr Okoh was contacted by the Commonwealth Bank fraud team. He provided the bank with misleading information, namely that he said he had spent the $26,000 withdrawn from the account. This was untrue as the police found $10,000 at his home and he had given a further $11,000 to another person for safekeeping.
In light of Mr Okoh’s guilty plea, he was sentenced to imprisonment for three years with a non-parole period of one year and six months, and an order for restitution of $21,591.18 was made.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a “substantial criminal record”, and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
A person does not pass the character test if he or she has a substantial criminal record.[2] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[2] Section 501(6)(a) of the Act.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[3]
[3] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[4]
[4] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The issues to be decided in this case are whether the Applicant does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 29 March 2019, the Applicant was convicted of money laundering and sentenced to imprisonment for three years. He concedes that he does not pass the character test.
The remaining question is whether there is another reason to revoke the cancellation of his visa.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether to the cancellation of Mr Okoh’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in Paragraph 6.3, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[5]
[5] Paragraph 7(1)(b) of the Direction.
Principles that inform the decision-maker
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker. They are:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Mr Okoh has been convicted of a serious offence, being money laundering. This is an offence that does not involve violence to others and, in this case, did not involve vulnerable members of the community. The harm caused if the conduct were to be repeated involves financial loss to businesses and, while serious, it is not of itself of a nature that should the risk be repeated it would outweigh strong countervailing considerations.
Mr Okoh arrived in Australia in June 2014. The offence of money laundering was committed in March 2018, a relatively short period after his arrival in Australia. At the time his visa was cancelled, he held a permanent visa.
After arriving in Australia, Mr Okoh studied and completed a Bachelor of Humanitarian and Community Studies and his degree was conferred on 13 October 2017.[6] Mr Okoh said he started work as a personal carer in 2015. At the time of his offending he was working three jobs with employers Life Without Barriers, Drake Medox and Lifestyle Solutions. On being granted a permanent visa in March 2015, he was able to work full time, and worked long hours with some overnight shifts. He was the Secretary of the Nigerian Association Northern Territory Australia (“NANTA”) from 2016 to 2018.[7] Mr Okoh has made a positive contribution to Australian society through his work and participation in the activities of NANTA for a period of approximately three years prior to his offending.
[6] G21/144.
[7] AS4/10, [9].
The Primary and Other Considerations
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides three Primary Considerations being:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in Paragraph 14(1) of the Direction, these considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection[8] Colvin J, in applying the identical condition to Paragraph 8(3) from Direction 65 stated, at [23], that while generally Primary Considerations should be given greater weight, the Direction:
… requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[8] [2018] FCA 594.
An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the Primary Considerations may outweigh the Other Considerations in accordance with Paragraph 8(3) of the Direction, Other Considerations can outweigh the Primary Consideration in the particular circumstances of the case.
THE PRIMARY CONSIDERATIONS
Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the 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.
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. In working looking at factors:
(a)Mr Okoh has been convicted of a serious offence, with the maximum penalty being imprisonment for 20 years. It is not, however, a sexual or violent offence, nor was it committed against vulnerable members of the community or government representatives.
(b)the sentencing judge said that, but for Mr Okoh’s plea of guilty, he would have sentenced him to a term of imprisonment for four years. He was sentenced to a term of imprisonment to three years, with a non-parole period of one year and six months, and an order was made for restitution of $21,591.18.
(c)the frequency of offending, trend of seriousness and cumulative effect of offending has limited relevance, as money laundering is the only offence for which Mr Okoh has been convicted. He has been in custody or immigration detention since 18 June 2018 and has not reoffended. There is no record of him committing further offences whilst imprisoned or in immigration detention.
(d)Mr Okoh has not provided false or misleading information to the Department; however, he did attempt to mislead police during their investigation. He provided no assistance to police beyond his admissions, a matter which the sentencing judge noted was his right.
Of the factors specified in Paragraph 13.1.1 of the Direction, the nature and seriousness of the offending is reflected by the sentence imposed, which is significant. The nature and significance of the offending weighs in favour of not revoking the cancellation of the visa; however, not to the extent it would if the offence involved violence, sexual offences of vulnerable members of the community.
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, 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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to others in the community should Mr Okoh commit similar offences is financial loss. This has other harmful effects. The owner of the landscape business was relying on the proceeds to pay for his wedding and honeymoon,[9] and was placed under considerable financial pressure while matters were worked out.[10] The construction company suffered financial loss. The employees of the construction company felt guilt about the loss of the owner’s money, and time and effort were wasted taking action to report the offending and updating internal processes.[11] Financial crimes can have significant harmful effects on individuals and the community.
[9] G14/83.
[10] G14/75.
[11] G14/75.

In the course of the sentencing remarks, Riley AJ noted that Mr Okoh withheld money from his co-offenders and found beyond reasonable doubt that this was not because he did not want to be involved, as submitted by Mr Okoh, but because he thought he should receive a greater amount of money as he was taking a greater risk. It was further stated he did not withhold money due to a crisis of conscience but because of greed. He had time to think about his actions but continued regardless, and that: [12]
Indeed, the text messages, to which I have now been taken show that you intended to continue on with your offending conduct but only in relation to what I call romance frauds.
[12] G14/77.
In cross-examination, and in submissions, the Minister focussed on this statement and the prospect of Mr Okoh engaging in “romance fraud”. It was submitted that this goes to his risk of reoffending. Mr Okoh submitted that the police took his computer, and there have been no further charges. He also stated this finding was made before he undertook courses in prison and while in immigration detention, and the Tribunal is required to asses him as the person he is today. It was submitted he now understands his offending and has learned his lesson.
The prospect of romance fraud, which Mr Okoh described as pretending to be in love with someone and resulting in a transfer of money, raises the prospect that he may exploit people who are vulnerable in the community. That Mr Okoh considered romance fraud a preferable approach, due to a perception that there was a lower risk, does not reflect well on him. The nature of the harm to individuals should he engage in this type of fraud, as was found to be his intention at that time, is significant.
Given the nature of the harm, the Tribunal has looked carefully at Mr Okoh’s rehabilitation and his risk of reoffending at the time of this decision. The sentencing judge found Mr Okoh had moderate prospects for rehabilitation. He stated Mr Okoh had tried to deflect responsibility for his offending and minimise his culpability. The sentencing judge found Mr Okoh’s letter to the court stating he felt shame and embarrassment to be self-serving as it came at a late stage and it was regarded as being of limited assistance.
At hearing before the Tribunal, Mr Okoh again said he withheld money from his co-accused because he knew he would get into trouble, and that if the money were to be recovered it would have to be in Australia. He said if the money was sent offshore his co-offenders would not help him with repaying the money. As a further explanation for his past behaviour, this continues to avoid the finding by the sentencing judge that this was a matter of greed.
Mr Okoh’s explanation and careful statements about his culpability at hearing, while superficially insightful, did not allay concerns about his behaviour. He was careful to preface and end each explanation with a statement that he was not attempting to minimise his offending. He acknowledged at the time of his offending he was earning good money, estimating his taxable income at between $80,000 and $120,000. He stated he was remitting amounts to his parents and others in Nigeria but could not point to transactions in his accounts to support his evidence, and said he had other accounts that were not in evidence.
Mr Okoh said he was convinced to participate in the offending by a friend with whom he had done national service in Nigeria and who was unable to get a job. His friend told him he knew way they could each make money, and that giving them his bank details was an easy way to make money. Mr Okoh’s implied motivation to also help his friend is not consistent with him later withholding money from his co-offenders.
He stated in his response to the cancellation of his visa that:[13]
Though I may seem a person of ill reputation … I consider myself to be a person of good moral character … my expectations of the Australian community is not to condone my action, but also to realise how inherently flawed we can be as humans.
[13] G19/123.
His view of himself as being of good moral character and in specifying his own expectations of Australia community, rather than what the community may expect of him, is not consistent with his past offending. He has some understanding on the part of the Australian community that he did not extend to the victims of his offending.
Two of Mr Okoh’s brothers, Christian and Joseph, have also been convicted of money laundering offences.[14] Mr Okoh said that his brothers’ offences related to different scams and were separate to the phishing scam that resulted in his own conviction. In his initial written statement to the Department in respect of his visa cancellation,[15] Mr Okoh stated he saw his brothers engaging in online scams and saw that they were not prosecuted or cautioned by police so he joined them. He thought the consequence if he was caught would be that he had to pay the money back, and it would not involve a prison sentence.[16] In oral evidence, he said that Christian had been found guilty of two counts of money laundering, and Joseph had been found guilty of three or four counts, but he did not really know. He said he did not know because they are all ashamed and disappointed in what they had done, and that while he was not trying to minimise their behaviour, if his brothers had known what was right they would have warned him as their younger brother.
[14] G14/79.
[15] G19/120-139.
[16] G19/130.
As described by the sentencing judge, Mr Okoh’s role was different from so-called “money mules” who have no direct connection with the fraudulent conduct, as Mr Okoh was fully aware of the communications that led to the deposits to his account. It was found that the offending could not have occurred without Mr Okoh’s participation, that it was well-thought out and that it involved the use of sophisticated technology. Mr Okoh was described as a highly educated man who knew what he was doing. The sentencing judge found he was not the instigator of the scheme but was a vital part in carrying out the scheme.
Mr Okoh’s explanation that he does not really know the details of his brothers’ offending, and that they would have warned him if they had known it was not right, presents him in a more innocent light than warranted. Mr Okoh is highly educated and was aware through the emails sent to him what was done to have the money paid into his account. I do not accept that he thought he was just providing his bank account details.
While the visa status of his brothers is unclear, and Mr Okoh stated he is closest to his brother Festus, they are a tight knit family, and if he and his brothers are released, he will be in contact with his brothers who have an offending background. This is a similar environment to that in which his offences were committed.
In his initial written statement to the Department, Mr Okoh stated his involvement in money laundering offence followed a contact with a friend with whom he did national service. He said his friend was unemployed and told Mr Okoh he knew a way they would both get some easy money. Mr Okoh said it was easy to think he was helping out his friend. He stated that he has now cut ties with his friends.
In his initial written statement, Mr Okoh also stated that when he was growing up in Nigeria, his family relocated often to be away from harm, and as a result he was unable to form true friendships. He stated the few friendships he had were cut short by unstable conditions in the country. Mr Okoh stated that death always had an impact on him, making him feel sad and that life was not worth living. To fill this vacuum, he stated that he tried to fulfil a desire to be somebody and to be accepted by friends and peers as “cool”.
Mr Okoh said at the time of his offending he was grieving the death of a friend who died in Nigeria and of a client he has cared for through his work at Life Without Barriers. He stated that before his friend in Nigeria died, he had asked him for financial help as he was not employed. It is difficult to draw the connection invited by Mr Okoh between the death of his friend and the person he cared for and his offence of money laundering, particularly when at the time he was earning a relatively high income.
Mr Okoh referred to a traumatic event when he was studying in Nigeria in which he attended a market where there was an attack by Muslim extremists on Christians. He stated he did not believe at the time he would survive and was told when he returned to university that two of his classmates did not survive.
Mr Okoh provided a psychological report of Dr Phil Watts dated 5 July 2020,[17] an Adjunct Associate Professor in clinical psychology endorsed in forensic psychology. Dr Watts reported that he assessed Mr Okoh in a two and a half hour telehealth consultation by administering an interview and a Personality Assessment Inventory (“PAI”), which comprises 344 questions.
[17] Exhibit A1.
Dr Watts stated that the PAI showed that Mr Okoh did not attempt to paint himself in a positive light and showed an elevation of the negative impression scale. He reported that the malingering scale was not elevated in the assessment, which measures if a person is attempting to intentionally distort the assessment. Dr Watts gave evidence that this showed a greater reliability in the scores produced.
Dr Watts reported that in regard to Mr Okoh’s fraud charges, there tended to be two broad positions; those who mastermind the process, and those who tend to be gullibly drawn into the situation. Those who mastermind the process typically display evidence of a personality disorder, and those who tend to get manipulated into the process are typically more psychologically vulnerable, naïve or able to be manipulated. Dr Watts stated that Mr Okoh appeared to fall into the latter category as he did not conduct the fraud but was party to the process by managing money through his account.
The PAI reported that Mr Okoh had moderately high levels of stress, depression, anxiety and paranoia. Dr Watts noted the trauma scale was elevated, which he found was likely a product of witnessing the incident in Nigeria where Christians were attacked and/or his friend dying. The paranoia showed difficulty in trust relationships.
Dr Watts also reported the aspects of warmth and dominance were low and, as a result, Mr Okoh is likely to avoid social interactions and to have problems being assertive and standing up for himself. Dr Watts considered he may be targeted by predatory individuals who perceive his submissive tendencies as a weakness. As a result, Dr Watts concluded that Mr Okoh’s personality is more in keeping with someone who can be manipulated due to vulnerabilities rather than an instigator of an offence. Dr Watts considered the offending to be out of Mr Okoh’s normal character and that it was more likely a problem because of him being manipulated rather than just greed alone. He also considered that there was a strong element of naivety as Mr Okoh provided a bank account with his own details. Dr Watts considered the likelihood of reoffending to be low.
The results of the PAI were not attached to the Dr Watts’ report and the Tribunal did not have the benefit of seeing the source data. This assessment was a self-report but did have an additional scale to measure malingering. Dr Watts interpreted the scores in the context of a history provided by Mr Okoh in his report.
Dr Watts reported that it appeared that Mr Okoh ‘believed the elaborate stories being told to him’,[18] without specifying what these stories were, or how they affected Mr Okoh. At hearing, Mr Okoh said he was approached by a friend with whom he did national service, and who had been unemployed. This does not appear to be an elaborate story. It is unclear the nature of the elaborate stories purported to have been told to Mr Okoh that prompted his involvement in the offending.
[18] Ibid 5.
Mr Okoh told Dr Watts that when the money came into his account, he regained perspective, lost his nerve and tried to pull out of the situation by removing money from his account and not providing it to his co-offenders as agreed. He kept $10,0000 in cash at his premises and deposited $11,000 into a friend’s bank account. The explanation that he had suffered a crisis of conscience and attempted to withdraw the funds was expressly rejected by the sentencing judge.
Dr Watts was aware of the sentencing remarks. and said he had been provided with these prior to preparing his report. He wrote his opinion with the knowledge that the sentencing judge was critical of Mr Okoh’s deception of his co-offenders.
Dr Watts stated that poor money management was a small factor in Mr Okoh’s offending, with a larger being factor greed and another factor being stupidity. Dr Watts was not aware of the debt Mr Okoh had to a bank and stated that if money management was an issue, this would in fact lower the risk of reoffending, and that the existence of a debt did not affect his assessment. This was of significance as the Minister sought to highlight Mr Okoh’s debt if released from immigration detention, as he has a bank loan of approximately $6,000 or $7,000 and a restitution order of $21,591.18.
Dr Watts considered that if Mr Okoh were to settle with his partner upon being released this would decrease his risk of reoffending. The effect of his family would depend on the nature of the family. For example, if his brothers Christian and Joseph are returned to the community, this would suggest a criminal pathway. Similarly, if he was in contact with dysfunctional friends this would also suggest a criminal pathway. Dr Watts considered that if Mr Okoh had a shallow understanding of his offending this would indicate a greater risk than a deeper understanding of his conduct.
The sentencing judge considered Mr Okoh’s prospects for rehabilitation to be moderate in 2019, and Dr Watts considered his risk of reoffending to be low at the time of his report in July 2020.
In looking at the risk of reoffending, I have also considered the courses or other rehabilitation Mr Okoh has undertaken.
In November 2019, Mr Okoh completed the apprenticeship program to be a recognised instructor in the Quicksmart Basic Skills Literacy and Numeracy Programs with a Certificate III and IV in Education Support, he attained food handling certificates, and completed a Certificate I in Business and a Certificate II in Skills for Work Vocational Pathways.[19] He tutored in the Quicksmart program while in prison, which involved teaching inmates basic literacy and numeracy. He has attended parenting and men’s group sessions at Yongah Hill.[20] His behaviour both in prison and while in immigration detention has not attracted any adverse comments, and he received positive employment reports in his time in prison.[21]
[19] G21/145.
[20] G23/195-203.
[21] G23/182.
Mention was made of a domestic violence flag on Mr Okoh’s prison records.[22] Mr Okoh said, and the Tribunal accepts, that this flag was entered in error. After the hearing, he provided written confirmation of the error. The Minister objected to the production of this document. The Tribunal has not had regard to the later written confirmation; however, is satisfied that Mr Okoh does not have any history of domestic violence as there is no other record of this being the case.
[22] G23/183.
While in prison, Mr Okoh voluntarily completed a basic, advanced and training for facilitators certificates for the Alternatives to Violence Project.[23] He became a facilitator for this program. Mr Okoh credits this course with being able to address his own issues of self-worth. He said he previously thought if he had money it would cover his lack of confidence, and if he had money his family would love him more and his partner would not leave him. He said his perspective has now changed and he knows his actions were wrong and that he does not have to prove himself financially for his family to love him.
[23] G19/140.
Mr Okoh has been extensively involved in education programs available to him, and clearly places value on education. He has achieved some insight into the cause of his offending.
Mr Okoh provided a reference from a priest dated 25 March 2020,[24] who stated he had been attending Anglican Church Services at Yongah Hill Immigration Detention Centre.
[24] G22/153.
The Minister argued that a cause of Mr Okoh’s offending was his perception of being under financial pressure, with his initial response to the cancellation of his visa citing poor money management, spending everything he earned, and that ‘the debt I owed the bank became a ticking time bomb waiting to explode’.[25] He stated that he felt the need to care and provide for anyone who reached out and that this led to him being dishonest. The Minister pointed to the lack of any money management skills training or money management programs as adding to his risk of reoffending. The difficulty with this argument is that Dr Watts does not consider that this would contribute to his risk of reoffending.
[25] G19/130.
Mr Okoh stated he was sending money to his family in Nigeria, estimating that he sent $1,000 to $2,000 at irregular intervals. This is inconsistent with AUSTRAC records cited by the police application for a search warrant, showing he transferred $131,000 to locations in Nigeria, South Africa, Singapore and Luxembourg in the period 1 June 2017 to 30 May 2018. However, Mr Okoh could not show in the account statements available where this money had been sent, and said he had other accounts where statements were not made available to the Tribunal. He could not explain why he would transfer money to South Africa, Singapore or Luxembourg except as it relates to the transfers requested of him by his co-accused.
Mr Okoh has a history of showing remorse and insight at a time that will best suit his case. This is shown in his sentencing submissions before the Supreme Court of the Northern Territory, that withholding money from his co-offenders occurred because he had a crisis of conscience, and that he was embarrassed and ashamed for his actions. The sentencing judge expressly rejected that submission and found that it self-serving, and of limited assistance as it came at a late stage of the proceedings.
At the time of his offending, Mr Okoh did not have an objective need for a greater income as, by his own admission, he was earning a significant amount at the time. He then also withheld money from his co-offenders. This has been found to be because of greed, which is not consistent with his stated low self-worth or an ability to be manipulated.
Mr Okoh stated he felt he was taking a bigger risk than others and deserved a greater share of the proceeds. In his statement of 4 May 2020,[26] he stated that he felt invincible and entitled and that he ‘wanted to live the Australian dream quicker than I had anticipated’.[27] An expressed feeling of entitlement and invincibility is not consistent with a low self-worth. He stated that he gave into greed and forgot about others. I do not accept that he became nervous or wanted to be able to repay the money if he was caught. I find that he has continued to express views that will best suit his case.
[26] G23/155-159.
[27] G23/155.
I do not accept that a significant factor in his offending was stupidity as expressed by Dr Watts. Mr Okoh has two degrees and a number of other qualifications. Dr Watts said that Mr Okoh did not present as having any cognitive impairment and his attention, concentration and memory seemed appropriate. Mr Okoh stated he realised he could be in significant trouble when he saw the victim of the scam was an Australian business, rather than an offshore business, and that he considered it a lower risk and would be prepared to continue with romance fraud. This shows a level of awareness and an ability to weigh the risks of various courses of action. The fact that Mr Okoh stated, despite his offending, that he is a person of good moral character shows he has not genuinely engaged with his offending behaviour. He has not cut ties with his brothers who were engaged in similar offending.

Overall, the sentencing judge considered Mr Okoh had moderate prospects of rehabilitation. He has taken the opportunities available to him to attend courses while incarcerated and in immigration detention. I find Mr Okoh has a low to moderate risk of engaging in further criminal conduct. The prospect of him engaging in other types of fraud, being romance fraud, remains a real possibility. This involves an element of exploiting members of the community who are vulnerable.
A low to moderate risk of reoffending in light of the nature of the harm to individuals or the Australian community should Mr Okoh engage on further criminal conduct, weigh somewhat in favour of not revoking the visa cancellation.
The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Okoh identifies three nephews and three nieces that would be affected if he were to be removed from Australia.
His brother Festus has four children:
(a)Child “I” aged seven years;
(b)Child “Z” aged five years;
(c)Child “K” aged three years, and
(d)Child “E” who is 10 months old.
Child I moved from Darwin to Victoria with her mother in 2015, and Mr Okoh has little contact with her. He has not seen her in person since 2015. When Mr Okoh lived in Darwin, he would see Child I when she visited Festus as he was living with Festus at that time.
Mr Okoh lived with the Festus and his family from the time he arrived in Australia in June 2104, he lived with Child Z from his birth in May 2015 to September 2016. He spent time with Child Z as a newborn. Festus acknowledged Child Z had little memory of that time but said Child Z knows Mr Okoh as his uncle.
When Festus and his family moved to Alice Springs, Mr Okoh visited on one occasion for Child Z’s birthday, and also visited on another two or three occasions. Since being in detention, he speaks to Child Z every week for a lengthy period.
Child K was born in Alice Springs and met Mr Okoh in person in 2016 when Mr Okoh visited the family in Alice Springs. Mr Okoh has not seen Child K since but speaks to him on the telephone.
Child E was born while Mrs Okoh was in prison, and he has not met her in person.
As Mr Okoh was unclear where he would live if released from detention, his future involvement with children is uncertain. His brother Festus said he would be willing to employ Mr Okoh as a taxi driver in his business in Mount Isa. This is a considerable distance from Ipswich, where Festus’ wife and children live. Mr Okoh also said if returned to the community, it was possible he would remain in Darwin or relocate to Adelaide for his studies.
Mr Okoh has had little face to face contact with Festus’ children, and they speak by telephone or FaceTime. He said he sends the children birthday cards when he cannot see them on their birthdays and that even while in prison, he has told Child K’s parent to buy a present, wrap it up and say it is from him.
Festus gave evidence of the positive effect that Mr Okoh has on his children as a role model when he is not around, and that he acts as a father figure in Festus’ absence. He said the children would feel bad if Mr Okoh is removed from Australia, and they would be unable to see him due to the cost of flights to Nigeria.
Festus stated that the cost of keeping in contact over the telephone would be prohibitive if Mr Okoh is in Nigeria. Festus’ evidence about the cost of telephone calls to Nigeria was not consistent with the evidence of the other witnesses, who also regularly contact with family members in Nigeria, and I do not accept this is the case. I find that Mr Okoh could and would maintain contact with the children by telephone and other means if he were removed from Australia.
His brother Joseph has two children:
(a)Child “G” aged four years; and
(b)Child “A” aged three years.
Both children live with their mother in Darwin. His brother Joseph is in prison and Child G and Child A would occasionally visit Mr Okoh when he was also in prison after they had visited their father. Before he was imprisoned, Mr Okoh said he would babysit Child G and Child A when their parents were at work and he lived close to them. He also said he would take Child G out for bike rides and evening walks.
It was not before the Tribunal how long Joseph will remain in prison. Mr Okoh does not refer to having a parental role for Child G and Child A but does refer to having a good uncle/nephew relationship with Child G and a good uncle/niece relationship with Child A. As Mr Okoh was uncertain where he will live if released from detention in the longer term, the Tribunal infers he will not play an ongoing parental role with Child G and Child A.
In looking to the nature and duration of Mr Okoh’s relationship with his nieces and nephews, he has had a non-parental relationship with all of his nieces and nephews. He has little contact with Child I. He has contact with Child Z and Child K primarily by telephone, and he had not had any in person contact with Child E, who is too young to have telephone contact.
He has had in person contact with Child G and Child A when they visited him in prison, and prior to his imprisonment had regular contact with them. The Tribunal has not been advised when his brother, Joseph, will be released from prison and if he will have a parental role while Joseph remains in prison.
Mr Okoh does not play a parental role in any of his nieces and nephews lives and it remains uncertain what role he will have in the future as he is uncertain where he will live in the medium to long term, although he is likely to have increased contact in the short term as he would live in Darwin if released back into the community. All of the children are relatively young, giving a greater opportunity for Mr Okoh to play a positive role during their childhood due to the length of time before they each turn 18 years old.
There is no information about the impact of Mr Okoh’s prior conduct on the children, other than removing him from a greater level of contact with Child G and Child A while imprisoned.
Mr Okoh’s primary contact with his nephews and nieces is by telephone or by other electronic means, that he can maintain this type of contact regardless of his location. I do not accept that the costs of maintaining contact would be prohibitive.
Of the children, the effect of Mr Okoh being removed from Australia would be greatest on Child Z, Child K, Child G and Child A, as Mr Okoh has little contact with Child I and Child E was born while he was in prison. While Child Z, Child K, Child G and Child A may miss their uncle, there is nothing before the Tribunal to indicate they would suffer significant hardship if he were removed.
It is in the best interests of Child I, Child Z, Child K, Child E, Child G and Child A that Mr Okoh remain in Australia; however, as he does not play a parental role for any of the children and he has maintained contact with them by telephone and could do so regardless of his location, this weighs somewhat in his favour to revoke the cancellation of his visa.
Expectations of the Australian Community
Paragraph 13.3(1) of the Direction sets out the third of the Primary Considerations and provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(5) and (7) of the Direction provides:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
This Primary Consideration has been considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (‘FYBR’),[28] Charlesworth J clarified that, ‘It is not for the decision-maker to make his or her own assessment of the community expectations’[29] and that this provision ‘concerns what the government has deemed the community’s expectation to be’.[30] Justice Stewart agreed with Charlesworth J that the effect of this provision is to deem what community expectations are,[31] and that it is not for the decision-maker to decide what community expectations are.[32]
[28] [2019] FCAFC 185 (‘FYBR’).
[29] Ibid [67].
[30] Ibid [68].
[31] Ibid [89].
[32] Ibid [93].
As a result, this weighs against Mr Okoh, and in favour of not revoking the cancellation of his visa.
However, the weight to be given to this factor is a matter to be decided. The guiding principles state that Primary Considerations should generally be given greater weight than Other Considerations.[33]
[33] Paragraph 8(4) of the Direction.
Mr Okoh was in Australia for a relatively short period of time before his offending commenced. He does not play a parental role in relation to minor children, and while it is in the best interests of his nieces and nephews that he remains Australia, his ability to maintain in person contact is reduced due the disparate locations of his family.
Overall, this consideration weighs moderately in favour of not revoking cancellation of his visa.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in Paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Mr Okoh does not rely on any non-refoulement obligations. The visa that is cancelled is a Subclass 190 visa, and Mr Okoh can apply for a protection visa.
The principle of non-refoulement is contained in Article 33 of the Convention Relating to the Status of Refugees (‘Refugee Convention’)[34] and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
[34] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugee Convention’).
Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights (‘ICCPR’),[35] the Second Optional Protocol to the ICCPR,[36] Convention on the Rights of the Child[37] and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment[38] (‘Convention Against Torture’).
[35] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[36] Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991).
[37] Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[38] Convention against Torture and Other Cruel, Inhumane or Degrading treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘Convention Against Torture’).
The Tribunal is mindful of the recent decision of the Full Court of the Federal Court in Ali v Minister for Home Affairs,[39] and that the breach of a non-refoulement obligation has an impact on Australia’s reputation as well as an impact on the individual. The Tribunal is also mindful that non-refoulement obligations are broader than the criteria for a protection visa. For example, internal relocation has a broader application in the Refugee Convention and poses the question of whether it is reasonable to relocate a person, rather than whether the person has a well-founded fear of persecution in the place they may relocate.
[39] [2020] FCAFC 109.
Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture. Torture is defined, among other things, as severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he or she has committed or is suspected of having committed.
Mr Okoh raised fears of harm if he were to return to Nigeria. Specifically, he claims to have been detained by police on his last visit to Nigeria, and he also claims threats of harm have been made against him and against his parents who live in Nigeria. He claims to have a general fear of unemployment, poverty, police brutality and lawlessness.
In oral evidence, Mr Okoh gave an account of being detained by Police on his visit to Nigeria in 2018. He said this occurred after he had a haircut and was standing outside on the street using his iPhone. Mr Okoh said that when he was using his iPhone, police approached and required him to get into a van. He was told to get in a bus and taken to the police station and questioned, and it was implied by the Police he held a fraudulent Australian driver’s licence. He stated that he was held at the police station for six hours. He did not say what happened other than he was released and that it was inferred he needed to ‘do the right thing’ to be released, by which he meant the payment of money.

This claim was first raised in oral evidence at the hearing and was not supported by any written material provided before the hearing.
Article 9 of the ICCPR states that everyone has a right to liberty and security of person, and that no one shall be subject to arbitrary arrest or detention. No one should be deprived of his or her liberty except on such grounds and procedures as are established by law. While this does not contain a non-refoulment obligation, the question arises that if Mr Okoh is detained, whether this would result in severe pain or suffering intentionally inflicted on him. There is no information before the Tribunal that this would occur. Mr Okoh said he was released after several hours. There is no evidence he suffered severe harm.
This claim came late in the proceedings, and was unsupported by a written statement, other than a general allegation of lawlessness and inadequate policing. The Tribunal cannot have regard to this claim under s 501(6H) of the Act. However, even if it had regard to this claim, the Tribunal does not regard it as supporting a non-refoulment obligation, as Mr Okoh did not claim he was harmed when he was detained, and did not suggest it resulted in severe mental or physical pain or that suffering was intentionally inflicted on him.
In his written statement to the Department in respect of his visa cancellation, Mr Okoh stated if he were returned to Nigeria he would live in fear as he had received threatening messages for him to send the balance of funds of his money laundering offence. He made allegations about corruption and lawlessness in Nigeria. He referred to a report of a Nigerian “torture house” but did not explain how this applies to his circumstances. He stated he fears unemployment and loss of skills, poverty, police brutality and corruption, and no social, medical and/or economic support unless you are wealthy. The general nature of these claims, as well as the lack of further information about how these apply to his specific circumstances, means the Tribunal places little weight on these factors.
Mr Okoh also stated that there have been threats made against his family by person named Farouk. He said he grew up in the same neighbourhood as Farouk. Farouk also asked Mr Okoh to provide his bank account details to receive money and keep a percentage of it. Mr Okoh provided Farouk with his account details, but no money was deposited to his account. Farouk did, however, arrange for money to be transferred to Joseph and Christian, who then refused to give the money to Farouk. Mr Okoh said he has been contacted by Farouk to tell his brothers to pay back the money. Mr Okoh stated that in March or April of this year, Farouk said he would track down their parents in Nigeria. Mr Okoh said Farouk had contacted him over Facebook, and that he told Farouk that he would ask his brother what happened.
Mr Okoh’s father provided an undated document, expressed as an affidavit, which stated:[40]
That one Farouk and three others who are involved in cyber crime personally approached me, that children have given information about their cyber criminal organisation to the Australia[n] Federal Police in Darwin and that on getting to “Nigeria” they would go after their lives.
In view of the serious threats to my children lives, and the inability of the “Nigeria” police to protect lives and property effectively, I strongly believe that my children lives would be at risk on getting to “Nigeria”.
Farouk and his cohorts say they have no issue with me and my wife and that I should warn my children, to watch their back.
[40] AS3/8.
The Tribunal does not find this document convincing evidence of a risk to Mr Okoh should he be removed from Australia. This claim was first raised immediately prior to the hearing. In his initial response to the cancellation of his visa, Mr Okoh stated he received threatening messages to send the balance of funds that had been transferred to his account, and that he might end up being kidnapped/captured, tortured and used as a scapegoat. In this response there was no reference to Farouk or his threats to his father, which are said to have occurred after his response. His father’s statement is not dated, and it is unclear when these events occurred, or if they could have been raised at an earlier date. Mr Okoh expressly denied involvement with Farouk by transfer of money to his account, although he does state he gave Farouk his account details. He did not provide any information to support his father’s assertion that the authorities in Nigeria would be unable protect him. He was found not to have cooperated with police and having provided a false account when he was arrested.
Mr Okoh’s oral evidence and the written statement of his father about threats from Farouk were not convincing and did not to relate to the vague written claims made by Mr Okoh at the time his visa was cancelled. Mr Okoh’s parents have not been harmed. The Tribunal finds these threats did not occur and are a recent fabrication to bolster his claims to fear harm if he were returned to Nigeria.
Conditions in Nigeria are less favourable for Mr Okoh in Nigeria than in Australia and he stated he fears unemployment, poverty, police brutality and lawlessness. He has not submitted information to show how these factors specifically apply to him, or how this could breach Australia’s non-refoulement obligations.
The Tribunal considers this factor dies not weigh for or against revoking the cancellation of Mr Okoh’s visa.
The strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
Mr Okoh has been in Australia for six years. His offence occurred in March 2018, four years after he arrived. In the context of the seriousness of the offence, this is relatively short period before his offending began.
Mr Okoh has been in a committed relationship with Ms Olaremi Agbede for five years, although he has been in prison or in immigration detention for the last two years. Ms Agbede gave evidence to the Tribunal and stated that she is willing to live elsewhere in Australia with Mr Okoh if he is released from detention but is not be willing to return to Nigeria with him as her life is now in Australia.
Mr Okoh has three brothers and a sister who live in Australia, as well as three nephews and three nieces. His brother Festus is an Australian citizen. His sister is an Australian citizen and is studying at the University of Southern Queensland. She provided a signed statement dated 19 April 2020[41] in support of revoking the cancellation of the visa.
[41] G23/165-166.
In addition to those who gave oral evidence to the Tribunal, Mr Okoh provided statements in support of revoking the cancellation of his visa from Victor Okafor,[42] Gbenga Olusoji[43] and Onyinye Maduneme.[44]
[42] G20/142; AS5/12.
[43] G20/143.
[44] G23/167.
Victor Okafor is a past President of NANTA. He stated he has established a new business, Amazing Grace Community Services, which is a registered NDIS provider. Mr Okafor stated he would offer Mr Okoh a position as a carer in this business. His earlier statement stated that Mr Okoh is a well-known figure in the community and a role model for younger Nigerians.
Mr Olusoji stated that he believes Mr Okoh was pressured into playing a role in the crime because Mr Okoh can put his own welfare into jeopardy to help others and he did not understand the gravity or extent of the offence. He reiterated Mr Okoh’s involvement in the community as Secretary of NANTA and stated that he believes his risk of reoffending is negligible. Mr Maduneme provided a general reference as to Mr Okoh’s character.
Mr Okoh has been employed from the date of his arrival in Australia, starting with a role as an early learning educator, then as a youth, community or disability support worker. He has contributed positively to the community through his work as an educator and carer, and through his involvement in NANTA. He has sought to contribute while incarcerated by becoming a facilitator for Quicksmart and for the Alternative to Violence Program.
Mr Okoh has contributed to the community for a short period prior to his offending. He has family members who are Australian permanent residents and citizens. Overall, the Tribunal considers this a neutral factor in this matter, as the relatively short time he has contributed to the Australian community balances his family ties in Australia.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While Mr Okoh has previously worked in community services, he has been in prison or immigration detention for the last two years, and no impact has been identified on Australian business interests.
If he is removed from Australia, there is the prospect that he will not meet the order for restitution, which will mean that the construction company is left without restoration of the funds.
Mr Okoh provided a letter from Northern Territory Legal Aid dated 24 June 2019 regarding advice about the restitution order.[45] This followed a telephone appointment and suggests that he has provided authority so that further information could be obtained from the Court about the restitution order. His written submissions to the Department stated that he sought assistance to set up a payment plan for the amount.
[45] AS8/17.
In cross-examination, Mr Okoh accepted that if released into the community he would be in debt, he accepted that he will have to pay the restitution and said that he will work hard to pay his debts. If he were returned to Nigeria, he said it would be unlikely that he would be able to pay for the restitution due to high unemployment rates and as he would be unlikely to find a job.
Mr Okoh stated that if he remains in Australia, he will make arrangements to pay restitution, and gave evidence that his brother, Festus is willing to make payments on his behalf. It was evident from Festus this only applies if Mr Okoh works for him and will be part of his salary.
There will be an impact on the construction business if Mr Okoh is removed from Australia as he will likely not be able to pay, or only pay in part, the order for restitution. Mr Okoh argues that he is actively seeking to repay the money; however, one approach to Legal Aid and the possibility it may be paid though working for his brother does not engender a high degree of confidence that this will occur, given Mr Okoh also stated he would like to return to study and has been accepted in the Masters of Social Work program in South Australia.
This factor weighs slightly in favour of revoking the cancellation of his visa.
Impact on victims
Paragraph 14.4(1) of the Direction provides that decision-makers must have regard to the following where relevant:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The sentencing remarks included reference to a victim impact statement from the construction company which stated that the company suffered loss and the landscape business was placed under considerable financial pressure while matters were worked out. The employees of the construction company felt considerable guilt for the loss of the owner’s money, and much time and effort were spent taking action to report the offending and to update internal processes. That impact statement was not before the Tribunal.
The principal of the landscape business stated he was relying on the money from that contract to pay for his wedding and honeymoon, and the money did not arrive until some months later. The offending had a negative impact on his health and business.
There is no information before the Tribunal about the impact of a decision not to revoke cancellation on members of the community including the victims and family members of the victims.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Okoh is 26 years of age and does not have any health concerns. He is highly educated. He holds a Bachelor in Political Science and Public Administration from Benson Idahosa University in Nigeria, a Bachelor of Humanitarian and Community Studies from Charles Darwin University, and various other certificates. He would not face language or cultural barriers in Nigeria.
His parents and one of his sisters live in Nigeria. He stated his parents, who previously worked as a teacher and a banker, paid for their education until they came to Australia and have now retired. His parents are therefore unable to provide financial support. As a young healthy single male who is highly educated, there is nothing to indicate he would have significant impediments if he relocates within Nigeria.
He stated he fears unemployment and that he and his brothers will struggle to support his parents who are now retired. The cancellation of his visa will cause financial hardship to him. Given his relatively good position in terms of education, youth and health the Tribunal does not consider he would face significant impediments establishing himself and maintaining basic living standards in the context of what is generally available to citizens of Nigeria.
If removed from Australia, he will also suffer hardship as a result of the separation from his partner, who has made it clear the she will not relocate in Nigeria. Mr Okoh stated that the relationship would not be supported by his partner’s family in Nigeria due to the difference in their status.
CONCLUSION
Mr Okoh has been convicted of one offence. It did not involve violence or harming vulnerable members of the community. However, crimes of a financial nature have a far-reaching effect on members of the community, and at the time of his offending, Mr Okoh expressed an intention to continue his crimes but only in relation to romance fraud. Mr Okoh’s remorse and rehabilitation is unconvincing, and there remains a prospect that he will reoffend, even if this prospect is lower than at the time he committed the offence.
The Primary Considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation of Mr Okoh’s visa. The Primary Consideration of the best interests of minor children in Australia weighs in favour of revoking the cancellation.
In respect of the Other Considerations, there are no international non-refoulement obligations owed to Mr Okoh. There is an impact on family members who are in Australia if he is removed from Australia, and the possibility he will pay restitution will be lost. He will be required to re-establish himself in Nigeria. These factors weigh somewhat in favour of revoking the cancellation of his visa.
Two Primary Considerations weigh in favour of not revoking the cancellation of his visa, and one weighs against. The Tribunal places less significant weight on the best interests of the child in relation to the other Primary Considerations as Mr Okoh does not play a parental role and is able to otherwise maintain contact with the children. The Other Considerations that weigh in Mr Okoh’s favour do so to a moderate extent.
The Tribunal considers the protection of Australian community and the expectations of the Australian community outweigh the interests of minor children in Australia and the Other Considerations, and the decision under review is affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

............................[Sgnd]....................................
Associate
Dated: 26 August 2020

Date of hearing:

5 and 6 August 2020

Applicant

By Microsoft Teams

Representative for the Applicant:

Amanda Valenti, Putt Legal

Representative for the Respondent:

Alex Chan, Sparke Helmore

Date of hearing:	5 and 6 August 2020
Applicant	By Microsoft Teams
Representative for the Applicant:	Amanda Valenti, Putt Legal
Representative for the Respondent:	Alex Chan, Sparke Helmore