Omoregie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4590

Omoregie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4590 (10 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6900
Re:Robert Ogbeide Omoregie
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:10 December 2021
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 21 September 2021 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, pursuant to s 501CA(4) of the Migration Act 1958 (Cth).
...........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – ties to Australia – impediments to removal – international non-refoulement obligations considered – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 500, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284
SECONDARY MATERIALS
DFAT Country Information Report - Nigeria (3 December 2020)
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
10 December 2021
BACKGROUND

The Applicant is a citizen of Nigeria, born on 19 May 1997. The Applicant arrived in Australia on 3 August 2012 and has not departed since.[1]
[1] G-Documents, 302.
On 25 July 2017, the Applicant was convicted of ‘Robbery in company’ and ‘Dishonestly obtain property by deception’ in the Parramatta District Court and sentenced to in total 20 months imprisonment suspended on entry of a good behaviour bond.[2] It appears that on 14 June 2015, the Applicant and two other males approached and assaulted a person. They then took the victim’s phone and bank card. A knife was involved in the commission of the crime. The Applicant and his associates then used the bank card to withdraw $800, and the Applicant was given $300.[3]
[2] G-Documents, 35.
[3] Respondent’s Tender Bundle, 54.
On 5 April 2018, the Applicant went to his then-girlfriend’s house to confront her about their relationship status. She was in the bathroom at the time, and he threatened to smash the bathroom door down. Once she opened the door, he took her hands and walked her over to the front door.[4] The Applicant was subsequently convicted of ‘Stalk/intimidate intend fear physical etc harm (personal)’ on 4 October 2019. As the Applicant committed this further offence while he was subject to the good behaviour bond, on 27 September 2019, he was re-sentenced to an Intensive Correction Order for 17 months.[5]
[4] G-Documents, 48; Respondent’s Tender Bundle, 73.
[5] G-Documents, 34, 49-53.
On 9 October 2020, the Applicant was convicted of 3 counts of ‘Recklessly deal with proceeds of crime >$5000’ and sentenced to a term of imprisonment of 12 months. The circumstances of the offending were as follows:
(a)Ms E, who was residing in London at the time, instructed her solicitor Mr R to act for her in relation to the purchase of a property in Kogarah;
(b)on 26 June 2019, Mr R sent an email to Ms E’s email address which outlined the funds that would be required to settle the property purchase. Mr R requested the victim to transfer $290,000 to his firm’s trust account;
(c)by unknown means, that email was intercepted and the trust account details were altered to those of the Applicant; and
(d)on 28 June 2019, $289,500 was transferred into the Applicant’s bank account. On 28 June, 1 and 2 July 2019, the Applicant used funds from this bank account to purchase gold bars. He then gave the gold to his associate in exchange for $5,000.[6]
[6] G-Documents, 38-39; Respondent’s Tender Bundle, 86-87.
On 5 November 2020, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[7] On 1 December 2020, the Applicant made representations about revocation of the visa cancellation and provided further information to the Department.[8]
[7] G-Documents, 73-79.
[8] G-Documents, 84-187.
On 21 September 2021, a delegate of the Minister refused to revoke the mandatory cancellation of the Applicant’s visa (the reviewable decision).[9]
[9] G-Documents, 10.
On 24 September 2021, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision not to revoke the mandatory cancellation of his visa.
LEGAL FRAMEWORK
Legislation
Under s 501(3A) of the Act, the Minister must cancel a visa held by a non-citizen, if the non-citizen does not pass the ‘character test’ and is serving a full-time custodial sentence of imprisonment. Section 501(3A) is in the following terms:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person 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.
The ‘character test’ is set out in s 501(6) of the Act, which relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Whether a person has a ‘substantial criminal record’ is defined in s 501(7), which relevantly states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
Any cancellation decision made under s 501(3A) of the Act may be revoked pursuant to s 501CA(4) of the Act, which provides as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined in section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
Ministerial Directions
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory (Direction 90), which commenced on 15 April 2021. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 5.1(2) of the Direction provides, in part:
Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 provides general guidance and directs that the “factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2”.
That paragraph also sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles 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)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction, contained in Part 2, sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 5.2, I must “take into account” the relevant primary and other considerations in sections 8 and 9 in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. Primary considerations should generally be given greater weight than the other considerations. However, other considerations should not properly be viewed as ‘secondary’; in certain cases, other considerations may outweigh primary considerations.
Section 8 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)   protection of the Australian community from criminal or other serious conduct;
(2)   whether the conduct engaged in constituted family violence;
(3)   the best interests of minor children in Australia;
(4)   expectations of the Australian community.
Section 9 sets out other considerations to be taken into account where relevant. It provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests
ISSUES
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by s 501(6) of the Act, as he has been sentenced to an aggregate term of 12 months imprisonment.
The issue for the Tribunal’s determination is therefore whether there is ‘another reason’ why the mandatory cancellation of the Applicant’s visa should be revoked pursuant to s 501CA(4) of the Act.
EVIDENCE
The Applicant
The Applicant said that he had arrived in Australia at the age of 15 in 2012. He said that his father had brought his family to Australia from Nigeria because life in Nigeria was hard, with very few opportunities. The Applicant said that once he arrived in Australia, he attended intensive English classes, attended school, and completed the Higher School Certificate. He said after completing the Higher School Certificate, he had been offered a place at University, but had chosen to enter the workforce instead.
The Applicant’s criminal offending began in June 2015 when he committed the offence of ‘Robbery in company’ and ‘Dishonestly obtain property by deception’. The Applicant gave evidence that he was in fact arrested and charged with these offences during the course of his Higher School Certificate English examination. The Applicant’s offending was clearly serious, involving robbery, violence and the use of a knife. Although the Applicant was not the main perpetrator of the offence, he agreed that he was a willing participant.
The Applicant’s next offence occurred in April 2018. The Applicant said that he had gone to his then girlfriend’s house to confront her about their relationship status, and had verbally threatened her. The Applicant agreed that this offence was motivated by jealousy and said that it occurred during a break in the Applicant’s long-term relationship with his current partner, Ms Bongor Sannoh. The Applicant said that he went to the victim’s home after he had heard rumours that she was being unfaithful to him. The victim had gone to hide in the bathroom and the Applicant had threatened to break the door down, causing the victim to feel afraid for her safety. The Applicant was subsequently convicted of ‘Stalk/intimidate intend fear physical etc harm (personal)’ on 4 October 2019 and was re-sentenced to an Intensive Correction Order for 17 months due to the fact that he was subject to a good behaviour bond at the time of the offence.
The Applicant’s third offence occurred in 2019, and in October 2020 he was convicted of 3 counts of ‘Recklessly deal with proceeds of crime >$5000’. The Applicant said that he had been asked to purchase gold bars on behalf of a third party in Nigeria. He admitted that it involved a large sum of money, involving approximately $290,000 AUD, and that he had been paid $5000 AUD in order to carry out the transaction. He said that he had not considered the legality of his actions but simply wanted to be paid the $5000.
The Applicant expressed great remorse in relation to each of his offences, and in particular, expressed his regret and concern for the victims of the first two offences. He said that his time in jail and in detention had given him time to reflect on the nature of his wrongdoing, and that he was determined not to re-offend and to be a positive contributor to the Australian community. He was embarrassed and ashamed about what had happened, and “wished he could take it all back”.
When questioned about his family, the Applicant said that his father and all of his siblings lived in Australia. He said that his mother continued to reside in Lagos, Nigeria and the Applicant said that he tried to assist his mother financially and considered himself responsible for her. He said that although his mother had relatives in Nigeria, he himself did not have any close associates in that country. The Applicant said that he spoke to his mother whenever he could. He also said that his mother suffered from a variety of health problems.
The Applicant also said that he feared for his safety if he were to return to Nigeria. The Applicant provided a number of reasons for this. Firstly, he said that he would be seen as a wealthy returnee and was likely to be robbed or targeted by locals. He also indicated that his interfaith relationship with his partner, Ms Sannoh, who is a Muslim while he is a Christian, would likely make him subject to discrimination. Thirdly, the Applicant said that the general security situation in Nigeria had deteriorated and it was considered unsafe for him to return.
The Applicant said that he and Ms Sannoh hoped to marry and start a family in Australia, and that they had also discussed the possibility of further education. He said that although Ms Sannoh’s family was Muslim and he was Christian, he had been readily accepted by them and was close to Ms Sannoh’s family. He attested to a large and supportive family network in Australia, including members of his own family and that of Ms Sannoh. The Applicant’s family had visited him regularly whilst he was in prison and in detention, as had Ms Sannoh’s family. He spoke to his family members and Ms Sannoh almost every day.
In relation to his work history, the Applicant said that he had always worked, and that he had an offer of employment in his uncle’s cleaning business if he were to be released into the Australian community.
The Applicant also outlined a number of courses that he had completed whilst in prison and immigration detention, and also spoke of his consultation with Mr Sava Tsolis, a clinical psychologist. The Applicant said that the Gurnang Life Challenge Program for Young Offenders had been particularly helpful to him. He had also completed a Positive Lifestyle Program and attested to deepening his Christian faith whilst in detention. In this regard, it was noted that the Applicant had filed a letter of support from Reverend Tim Abbey dated 1 April 2021.
The Applicant also confirmed that he had never been addicted to drugs or alcohol, and that he did not use either.
Ms Bongor Sannoh
Ms Sannoh said that she had been in a long-term relationship with the Applicant since 2014, and that they had first met at a hair salon whilst they were both in high school. There had been a brief break in their relationship in 2019, but they had come back together again. Ms Sannoh said that the Applicant had never been violent towards her.
Ms Sannoh said that culturally she and the Applicant were considered to be engaged. She said that they had discussed plans for the future, including the possibility of buying a home, having children and obtaining further education and qualifications.
Ms Sannoh was aware of the Applicant’s criminal offending and said that in her opinion, the Applicant was truly remorseful for the crimes that he had committed. Ms Sannoh felt that the Applicant was a good person and that he was unlikely to re-offend.
Ms Sannoh said she spoke with the Applicant almost every day, and that she visited the Applicant in detention whenever possible. She said that her family accepted the Applicant, and that all of the members of her family had a close relationship with him.
Ms Sannoh said that she would not accompany the Applicant to Nigeria if he is returned to that country. All of her life had been spent in Australia and she had no familiarity with Nigeria, as her family were from Guinea and had come to Australia as refugees from that country. Ms Sannoh also said that she would be very worried about her safety in Nigeria because of her Muslim religion, and the fact that she is engaged in an interfaith relationship with a Christian man.

Ms Sannoh said that she had suffered from a number of mental health issues in recent years, including anxiety and depression, and that she had attempted suicide. She said that her mental health issues were the result of the Applicant being in detention, and the uncertainty as to his future.
Ms Sannoh said that she had been trying to assist the Applicant’s mother financially while the Applicant was in detention and unable to work.
Mr Sava Tsolis
Mr Tsolis, a clinical psychologist, provided a report to the Tribunal in relation Applicant’s psychological state, which was dated 16 October 2021. Mr Tsolis affirmed the contents of the report and said that he had spent approximately 10 hours with the Applicant over some 6 consultation sessions.
In Mr Tsolis’ opinion, the Applicant was suffering from ‘adjustment order with depressed mood’ but did not require any medication. In Mr Tsolis’ opinion, the Applicant was at low risk of re-offending. In particular, Mr Tsolis drew the Tribunal’s attention to a range of protective factors, including the Applicant’s employment history, his large and supportive family network in Australia, the fact that he is not addicted to drugs or alcohol, and his willingness to engage in the rehabilitation/counselling processes.
Mr Tsolis noted the difficulties that the Applicant would face if he were to be returned to Nigeria, including a lack of employment opportunities, discrimination, and fears for his safety. Mr Tsolis also said that in his opinion, ongoing detention was detrimental to the Applicant’s mental health.
Mr Wilson Okunzuwa
Mr Okunzuwa affirmed his written statement dated 27 October 2021. Mr Okunzuwa, the Applicant’s uncle, told the Tribunal that the Applicant was a “good boy” and a “lovely boy”, and that he had known him since he first arrived in Australia.
Mr Okunzuwa had offered the Applicant a job in his cleaning business if he were to be released into the community in Australia. In relation to Nigeria, Mr Okunzuwa said that it was a “bad place” and that it would be very dangerous for the Applicant to return to that country.
When cross-examined as to whether he knew of the Applicant’s crimes committed in Australia, Mr Okunzuwa said that he was aware that one of the offences involved a lot of money. He said that he believed that the Applicant had “learned a big lesson” during his time in prison and detention. He believed that his job offer to the Applicant would give him the opportunity to get his life back on track. Mr Okunzuwa said that he regularly speaks to the Applicant in detention.
Ms Erica Okunzuwa
Ms Okunzuwa, who is the wife of Mr Wilson Okunzuwa, affirmed her statement dated 27 October 2021. Ms Okunzuwa said the Applicant is a “good kid”. Ms Okunzuwa said that the Applicant has “no future in Nigeria”.
When questioned by the Respondent, Ms Okunzuwa said that she did not know the details of the Applicant’s offending.
Ms Mawah Sannoh
Ms Sannoh confirmed that she was the older sister of the Applicant’s partner, Ms Bongor Sannoh, and affirmed her statement of 2 June 2021. She said that she resides in Melbourne and works as a student rights and policy activist at Monash University. Ms Sannoh said that she had met the Applicant at her sister’s year 12 graduation, and that he was “like a brother” to her.
Ms Sannoh said that she had a lot of interaction with both her sister and the Applicant, and she was sure that he would not re-offend again, as he had “grown a lot in detention”, particularly through the courses he had completed. Ms Sannoh said that the Applicant would have a strong support network if he were to be released into the Australian community.
Ms Sannoh said that she would have grave concerns if the Applicant were to be returned to Nigeria, which she described as being a very dangerous place. Ms Sannoh said that her younger sister would not go to Nigeria and that Australia was the only place her sister had ever known.
When cross-examined, Ms Sannoh, was able to provide details of the Applicant’s offences.
Statements of support
There were a number of other statements of support for the Applicant from the following people, the contents of which I have had regard to and accepted:
(a)Statements of Joy Osas Omoregie dated 10 June 2021 and 26 October 2021;
(b)Statements of Nosa Isoken Owabor dated 8 June 2021 and 24 October 2021;
(c)Statement of Musa Sannoh dated 13 September 2021;
(d)Statement of Bruna Pereira dated 7 June 2021;
(e)Statement of Monday Ogbe Omoregie dated 23 October 2021; and
(f)Statement of Frederick Owabor dated 8 June 2021.
These witnesses were not required for cross-examination by the Minister, and the Tribunal has accepted the contents of their statements.
DISCUSSION
In coming to a decision, the Tribunal is required to have regard to the provisions of Direction 90. Each of the primary considerations of the Direction will now be considered.
Primary Consideration A: Protection of the Australian Community from criminal or other serious conduct
There are two aspects of this consideration, namely, the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s crimes must be considered very serious. His first offence was a robbery with violence where the Applicant pinned the victim to the ground whilst he was robbed at knifepoint by two of the Applicant’s associates. Although the Applicant was not described as the main perpetrator of the crime, he was a willing participant in a plan to steal the victim’s bank card and phone.
I note the sentencing remarks of His Honour, Judge Pickering, sitting in the Paramatta Registry of the District Court of NSW, who said in relation to the Applicant:
“…he has not only complied with his bail perfectly, but he has continued to have no convictions in relation to this matter. More significantly, he has demonstrated that he can be a valuable member of our community by working, obtaining employment consistently during that period of time, and showing that he is going to be someone of real potential. He has also got a particularly solid relationship and family assistance at this particular time. These are important factors when you look at the appropriate sentence to be given to a young offender being sentenced for the first time albeit for a very serious offence…
Mr Omoregre [sic] is someone who has very strong prospects of rehabilitation, is unlikely to reoffend”[10]
[10] G-Documents, 59-61.
Despite this, the Applicant went on to commit further offences. His second offence of ‘Stalk/intimidate intend fear physical etc harm (personal)’ was motivated by jealousy, it was in a domestic violence setting, occurring at the victim’s home, and caused her to feel significant fear. Of particular concern is the fact that this offence was committed while the Applicant was on a good behaviour bond.
The Applicant’s third crime involved laundering a large sum of money, the proceeds of crime. The Applicant appeared motivated purely by a desire to obtain money for himself as a result of his role in purchasing gold with the money, which was never recovered. He was convicted of 3 counts of ‘Recklessly deal with proceeds of crime >$5000’ and sentenced to an aggregate term of imprisonment of 12 months.
The sentencing judge, His Honour Judge Weber SC, relevantly said as follows:
“the offender agreed that he was seduced by the prospect of easy money, and that he was regretful for agreeing to participate in the transactions, for which his remuneration of $5,000 was, to use his own words, “too good to be true”. This, to my mind, bespeaks a ready preparedness to engage in criminality for gain. I am of the view that the criminal antecedents of the offender demonstrate that he has learned nothing from his previous offending, and that the offender has gained no benefit from the leniency which has thus far been provided to him by sentencing judicial officers.”[11]
[11] G-Documents, 44.
The Applicant’s criminal offending only ended when he was taken into custody, having ignored previous opportunities to change his offending behaviour.
On the whole, the Applicant’s offending must be considered very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
There was substantial evidence at the hearing to support the contention that the Applicant was at low risk of re-offending. There was the evidence of his family and in particular, the evidence of Mr Tsolis, who on the basis of his professional interaction with the Applicant saw him as being at low risk of re-offending. This must be balanced against the fact that the Applicant continued to offend, despite the opportunities offered to him through the criminal justice system, and that his offending only ceased when he was taken into custody.
I accept that the Applicant’s expression of remorse and concern for the victims of his crimes was genuine, and that he has made a genuine effort to complete a number of courses to assist him in changing his behaviour. I also accept that the Applicant has had time to reflect on his criminal behaviour whilst in detention, and note his stated determination not to re-offend.
It is important that there are a number of protective factors that are likely to assist the Applicant in not re-offending, including his supportive family network, his prospect of employment, his relationship with Ms Sannoh, and the fact that he is not addicted to drugs or alcohol.
It is also relevant that the Applicant said that he did not propose to re-engage with the people who had been his friends and associates at the time of his criminal offending.
I note that whilst in prison and detention, there is no evidence that the Applicant has engaged in any serious misbehaviour. In fact, at times, the contrary would appear to be the case. In this regard, I note the report of the correctional officers at Parklea Correctional Centre dated 19 November 2020 which states that the Applicant has a “great work ethic” and is “polite and respectful”.[12] However, I have also had regard to the Serco Report dated 21 May 2021, which detailed an isolated incident where the Applicant displayed “abusive aggressive behaviour towards Serco Staff” at Villawood Immigration Detention Centre.[13] This involved the Applicant raising his voice and swearing at staff members of the Detention Centre.
[12] Respondent’s Tender Bundle, 37.
[13] G-Documents, 301.
Although on the basis of the evidence there is moderate risk of the Applicant re-offending, if he were to re-offend, such re-offending would likely be very detrimental to the Australian community, given the nature of his previous offences.
Overall, I give this consideration substantial weight in favour of non-revocation of the delegate’s decision.
Primary Consideration B: Whether the conduct engaged in constituted family violence
The Applicant was convicted of the offence of ‘Stalk/intimidate intend fear physical etc harm (personal)’ which took place within a domestic setting. The Applicant admitted that the crime was motivated by jealousy and that his behaviour caused significant fear to the victim.
The crime took place at the victim’s home when she was hiding in the bathroom to try to get away from the Applicant.
I note that this primary consideration was not relied upon by the Respondent’s representative in its submissions and I have included it as part of the first primary consideration.
Primary Consideration C: The Best interests of Minor Children in Australia
There was no evidence put before the Tribunal of the Applicant having any minor children in Australia.
Primary Consideration D: Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
In considering the weight to be given to this consideration, I have had regard to the fact that the Applicant’s criminal behaviour started shortly after he arrived in Australia and continued until he was incarcerated in October 2020.
I note also that all of his crimes were committed while he was very young, when he appears to have fallen into bad company. I also note his work history and his genuine attempts to reform.
There is no doubt that the Australian community would properly be disappointed by the Applicant’s criminal offending and would have reasonable grounds to expect that the Applicant’s visa would be revoked.
Overall, I give this consideration moderate weight in favour of non-revocation of the delegate’s decision.
Other Considerations
Impediments to removal
There are a number of impediments to the Applicant being removed from Australia.
There is no doubt that the Applicant would find it difficult to re-assimilate into life in Nigeria, as a very significant part of his early adult life has been spent in Australia. He would appear to have very limited resources to help him re-assimilate back into Nigerian society and no support network in Nigeria. His mental health is also likely to suffer.
The Applicant does not appear to suffer from any health conditions which would prevent him returning to Nigeria. He said he would return to Lagos, where his mother is living, and where he may be able to obtain employment, although this was said to be very difficult.
There were no cultural or language impediments to the Applicant returning to Nigeria, where he lived until the age of 15.
The Applicant also appeared to be in good health and does not require any particular medical assistance.
Overall, I give this consideration moderate to heavy weight in favour of revocation of the delegate’s decision.
Links to the Australian Community
Strength, Nature and Duration of ties to the Australian Community
The Applicant completed his education in Australia and was offered an opportunity to attend university. He applied himself to learning English, which he now speaks very well. He also has an offer of employment in Australia from his uncle, Wilson Okunzuwa.
The Applicant has a very strong family network in Australia which he would lose if he were to be removed. The Applicant’s relationship with Ms Sannoh, his partner of some 7 years, would also be seriously affected even though both parties said the relationship would not end if he were to be returned to Nigeria. The relationship would need to be conducted through electronic means, as I accept Ms Sannoh’s evidence that she would not move to Nigeria. The Applicant and Ms Sannoh both spoke of their plans for the future if the Applicant were allowed to remain in Australia, which were said to include marriage, buying a home and further education.
The Applicant’s removal from Australia would cause significant distress to his family, and to his partner and her family.
Overall, I give this consideration moderate to heavy weight in favour of revocation of the delegate’s decision.
Impact on Australian Business Interests
There is no evidence of any real adverse impact on Australian business interests if the Applicant were to be removed from Australia.
International non-refoulement obligations
The Applicant raised a number of concerns as to his safety if he were to be returned to Nigeria. Primarily, the effect of him being in an interfaith relationship and also the dangers he might face as a “western returnee”. In this regard, the Applicant said that he would be seen as wealthy and face the threat of kidnapping, or other threats including robbery and extortion.
Turning firstly to the question of the Applicant’s interfaith relationship, it is relevant to consider the DFAT Country Information Reports provided to the Tribunal. The 3 December 2020 Report titled ‘DFAT Country Information Report Nigeria’ relevantly states that:
“While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians”[14]
[14] G-Documents, 211.
Additionally, the Report outlines that the Nigerian Constitution makes specific provision for interfaith marriages as follows:
“Article 15(3)(c) and (d) stipulate it is the duty of the State to encourage interfaith marriages and promote associations that cut across religious (or other sectional) barriers in order to promote national integration, while Article 222 prohibits political parties who limit their membership based on religion or who have names with religious connotations”[15]
[15] G-Documents, 211.
Even if there were some prospect of discrimination against the Applicant on an interfaith basis, it is difficult to see how this would occur given that his partner, Ms Sannoh, has said that she would not go to live in Nigeria, and therefore, no one in that country would know of the Applicant’s relationship with Ms Sannoh unless the Applicant were to tell them about it.
In relation to his fear of being targeted as a Western Returnee, the DFAT Report does not support such a contention. In this regard, I note that the Report states that Boko Haraam, a terrorist group, does not operate in the Lagos area, and while there is some risk of kidnapping, that risk does not appear to be high if the Applicant were to live in Lagos. The Report also explicitly outlines the conditions for returnees in Nigeria as follows:
“Thousands of Nigerians enter and leave the country every day. According to the National Commission for Refugees, Migrants and Internally Displaced Persons, Nigeria received a total of 11,494 returnees in 2018, of which 10,180 were from Libya. There is no evidence of any stigma attaching to such returnees. Nigerian nationals may return voluntarily to any region of Nigeria at any time by way of the Voluntary Assisted Return and Reintegration Programme, run by the International Organization for Migration (IOM) and co-funded by the European Refugee Fund. The Programme provides assistance with obtaining travel documents, booking flights, and organising re-integration assistance in Nigeria, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Upon arrival, returnees can receive immediate assistance such as food, medical screening, overnight accommodation and money (up to 100 Euros) for basic needs and transportation. Returnees can also receive in-kind re-integration assistance and skills training.”[16]
[16] G-Documents, 245.
While the Report also notes that Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990), which provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas, the Nigerian Government has “rarely given effect to Decree 33”.[17]
[17] G-Documents, 245-246.
It is open to the Applicant to apply for a protection visa in order for his claims in this regard to be more fully examined. I note that if the Applicant were to pursue such a course, it would mean that he would remain in detention while his application was being processed. There is, however, no evidence of any particular harm to the Applicant if he were to remain in detention whilst pursuing an application for a protection visa. Although, I note the comments of Mr Tsolis that ongoing detention was likely to be detrimental to the Applicant’s mental health. He has received strong and ongoing support from his family and his partner whilst in detention.

I note that if the Applicant were to be successful in obtaining a protection visa, and it were not possible for him to be removed to Nigeria, it could mean a period of indefinite detention. This would however, depend on the outcome of any application, and any action taken by the Minister in exercising his non-compellable powers under s 195A of the Act to grant the Applicant a visa or to make a residence determination with respect to the Applicant under s 197AB of the Act. These are not issues for the Tribunal to speculate upon given that the Applicant has not applied for a protection visa. In this regard, I note the decision of the Full Court of the Federal Court in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 and the decision of the Federal Court in RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284.
Overall, I give this consideration low to moderate weight in favour of revocation of the delegate’s decision.
DECISION
In this case, all of the primary considerations, to the extent they are relevant, weigh against the Applicant. Ultimately however, the Tribunal must balance all of the relevant considerations in reaching a final decision. In this case, the evidence would indicate that the Applicant has good prospects of leading a productive life in Australia. He has a large and very supportive family, a supportive partner whom I found to be a frank and honest witness, and good prospects for ongoing employment. In fact, all of the evidence indicates that he is a hard worker, has actively sought employment and has been gainfully employed after leaving school, other than when in prison or detention. He has skills which would assist him in gaining future employment in the community.
The Applicant appears to be the primary provider for his mother in Nigeria, who has serious health issues. It is to his credit that he has accepted responsibility to assist her and that he and Ms Sannoh are united in this endeavour. Although I do not accept the Applicant’s claims to fear harm if he were to be returned to Nigeria, at least in their entirety, I do accept that he would find it difficult to return to that country, and that it would at the very least take time for him to re-establish himself. I also accept that Nigeria is likely to be a much more dangerous place for him to live than Australia.
Overall, I am of the opinion that, although it is a very fine balance, the weight of the evidence is that the correct or preferable decision is to set aside the delegate’s decision dated 21 September 2021 and substitute it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.

I certify that the preceding 101 (one hundred) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................
Associate
Dated: 10 December 2021

Date(s) of hearing: 7 December 2021

Solicitors for the Applicant: L Ehimudiamen, Lucky Iyare & Associates

Solicitors for the Respondent: M Gao, Australian Government Solicitor

Date(s) of hearing:	7 December 2021
Solicitors for the Applicant:	L Ehimudiamen, Lucky Iyare & Associates
Solicitors for the Respondent:	M Gao, Australian Government Solicitor