QSVS and Minister for Immigration and Border Protection (Migration)
[2017] AATA 2708
•18 December 2017
QSVS and Minister for Immigration and Border Protection (Migration) [2017] AATA 2708 (18 December 2017)
Division:GENERAL DIVISION
File Number: 2017/5814
Re:QSVS
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:18 December 2017
Place:Sydney
For the above reasons, the Tribunal finds the correct and preferable decision is that made by the Respondent. Accordingly, the Application is refused and the decision under review is affirmed.
....................................[sgd].................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision under review affirmed
LEGISLATION
Children and Young Persons (Care and Protection) Act 1988 (NSW) s 79(1)(b)
Criminal Code Act 1995 (Cth) ss 11.1, 307.6(1)
Migration Act 1958 (Cth) ss 501CA(4)(b)(ii), 501(3A), 501(6), 501(7)
CASES
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
R v Oprea [2009] QCA 184
SECONDARY MATERIALS
Ministerial Direction 65 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
18 December 2017
The Applicant seeks review of a decision of the Respondent which determined that the Applicant’s Class XA Subclass 866 – Protection visa should be cancelled pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (“the Migration Act”).
FACTS
The Applicant was born in Lagos, Nigeria in 1974, and is Nigerian by birth. At the time of his application for his Protection (Class XA) visa, the Applicant held a Nigerian passport which had been issued on 14 February 2009 and was due to expire on 13 February 2014.
The Applicant was educated at a primary school and at a Baptist high school, according to the information he has provided. Having left school, he worked as an apprentice but then became a merchant/trader in January 1998.
On 26 May 2009, the Applicant arrived in Australia with one of his two wives and six of his seven children. The Applicant held a Subclass 676 Tourist visa. On 26 June 2009, the Applicant and members of his family applied for Protection (Class XA) visas. The application was initially refused by the Delegate, but following a review by the Refugee Review Tribunal, visas were granted on 1 February 2010. The Applicant’s second wife and one of his children remain in Nigeria.
In his application for a Protection visa, the Applicant failed to disclose that on 17 June 2005 he was convicted in the United Kingdom of the offence of trafficking 360g of a Class A drug (cocaine) to England. The penalty for such offence was five years’ imprisonment. The Applicant served two years imprisonment in the United Kingdom, and was deported to Nigeria on 2 June 2007.
On 25 November 2011, the Applicant departed Australia and returned on 25 February 2012. The Applicant travelled alone to Nigeria and stated to this Tribunal that he went there on “a holiday”. Upon return to Australia, the Applicant was required to complete an incoming passenger card. In the space provided for declarations for persons who are not citizens of Australia seeking information of any previous convictions, the Applicant failed to disclose his conviction in the United Kingdom in 2005.
Subsequent Events
On 11 June 2014, the Applicant was convicted in Queensland of the offence of attempting to possess marketable quantity of imported border control drugs, namely methamphetamine, and was sentenced to five years’ imprisonment by the Supreme Court of Queensland, with a non-parole period of two and a half years.
On 17 April 2015, the Applicant sought leave to appeal against the sentence in the Supreme Court of Queensland. Such application was dismissed.
On 27 April 2016, the Applicant’s visa was mandatorily cancelled by a Delegate of the Respondent pursuant to s 501(3A) of the Migration Act. On 29 April 2016, the Applicant sought revocation of the cancellation.
On 1 February 2017, the Applicant was notified that an International Treaties Obligation Assessment (“ITOA”) had been commenced. Such assessment was completed on 15 August 2017. The assessment considered that Australia did not owe non-refoulement obligations to the Applicant.
On 22 September 2017, the Delegate, pursuant to s 501CA(4) of the Migration Act, declined to revoke the mandatory cancellation. On 28 September 2017, the Applicant sought his application for review of the Delegate’s decision.
LEGISLATION
Pursuant to s 501(3A) of the Migration Act, the Respondent 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. In this instance, the Applicant’s visa was cancelled pursuant to s 501(6)(a). The “character test” is set out in s 501(6) of the Migration Act which provides, relevantly:
“(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)).”
The phrase “substantial criminal record” is defined in s 501(7) which relevantly states:
“(6) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more…”
Accordingly, pursuant to s 501(3A), the Minister was required to cancel the visa by that section which provides:
“(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)…”
It follows from the conviction of the Applicant on 11 June 2014 in the Supreme Court of Queensland for the offence of attempting to possess a marketable quantity of an unlawfully imported border control drug contrary to ss 307.6(1) and 11.1 of the Criminal Code Act 1995 (Cth) that the Applicant does not pass the character test.
Direction No 65 – Visa refusal and cancellation under s.501 and revocation of a mandatory cancellation of a visa under s.501CA (“Direction 65”)
Direction 65 was made under s 499 of the Migration Act on 22 December 2014 (“the Direction”). Direction 65 contains principles to guide the Minister in the exercise of his statutory powers. The relevant paragraphs are as follows:
“(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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
…
(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.”
Additionally, pursuant to (7) of the Direction, consideration can be given to the length of time a non-citizen has been making a positive contribution to the Australian community, and (of significance for the present application):
“…the consequence of a visa refusal cancellation for minor children and other immediate family members in Australia…”
In addition, the Tribunal is to consider the primary obligations which are contained in Part C of Direction 65 which are:
“protection of the Australian community from criminal or other serious conduct;
the best interests of minor children in Australia;
expectations of the Australian community.”
DELEGATE’S REASONS
The Delegate concluded that the expectation of the Australian community is that the Applicant’s visa remain cancelled. The Delegate further considered the best interests of the Applicant’s children and concluded that “their best interests would be served by the revocation of the mandatory visa decision”. However, in reaching his conclusion, the Delegate considered that the Applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration.
The Tribunal will consider the application against the background of the facts presented by the Applicant and of the evidence which he provided at the hearing of this Application for Review.
The Primary Considerations
First primary consideration: protection of the Australian community
The Applicant has been convicted of two drug-related offences. Although the Applicant has disavowed being a drug user, he, in two countries at least, has engaged in drug-related crimes in two countries. In each case, the drugs – namely, cocaine and methamphetamine – were highly addictive and are known to cause harm to the mental and physical health of any user of such drugs. As was observed in the decision of the Queensland Court of Criminal Appeal relating to the Applicant, the mere fact that the Applicant’s role was limited to being a “drug mule” does not exculpate the Applicant. The Court said at [22]:
“The learned sentencing judge had appropriate regard to the Applicant’s limited role in the matter. However, the authorities recognise that persons who play a limited role by collecting and delivering packages nevertheless play a necessary part in the importation of border-controlled drugs: see R v Oprea [2009] QCA 184 at [29].”
Further, it has been recognised that a suspended sentence of more than 12 months is a “very serious penalty”: see Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7]. In the present circumstances, the Applicant has been twice convicted with actual penal servitude being imposed of five years (before parole).
In respect of the conviction in the United Kingdom, such circumstance should be taken into consideration by virtue of clause 13.1.1(1)(b) of Direction 65, namely, the frequency of offending. The Applicant was convicted in the United Kingdom arising out of his involvement in the trafficking of 360g of cocaine. From this offence, and from the offence committed in Australia for drug importation, it is apparent that the Applicant has engaged in such illegal activities solely for personal monetary gain.
There is a separate issue for consideration, namely the falsity of information provided to the Department of Immigration and Border Protection. During his dealings with the Department and with the Refugee Review Tribunal, the Applicant never referred to his prior conviction in the United Kingdom. Nor did he disclose his conviction in his visa application; nor on his incoming passenger card dated 25 February 2012.
In respect of these failures, the Applicant said he did not realise that his application for a visa required such information as the application was completed by a solicitor. Further, he did not realise, he claims, that the conviction was required to be inserted into the incoming passenger card. Even if such explanations were accepted as truthful, there is no reason why the information was concealed from the Department and the Refugee Review Tribunal.
This Tribunal is satisfied that the Applicant could not have overlooked such requirement; he deliberately ticked the answer “No” on the incoming passenger card and, having regard to the detail already provided in the Protection visa application concerning his schooling and occupation and addresses. It is implausible that such important information was not included by the Applicant. Part C of Schedule A, attached to the visa application, is entitled “Details of any convictions, charges, investigation or crimes committed”. The information is simply not provided.
Pursuant to clause 13.1.2(2) of Direction 65, the Tribunal is to consider the nature of harm to individuals or the Australian community should the Applicant engage in further criminal conduct, and also pursuant to (ii) thereof, the likelihood of the Applicant engaging in further criminal conduct.
The Applicant was not deterred from his first sentence of imprisonment from engaging in further similar conduct in this country. The Tribunal is satisfied that he represents a high risk of committing further offences. Such offences would most likely be of similar seriousness, although other offences could be involved. These considerations weigh heavily against the Applicant.
Second primary consideration: best interests of minor children in Australia affected by the decision
Pursuant to clause 13.2(i) of Direction 65, the Tribunal must determine whether the revocation is in the best interests of the child.
The Applicant has two wives, one of which resides in Nigeria with their daughter. The Applicant also has a stepdaughter, but it is not clear whether she resides in Australia.
The oldest children in Australia are as follows:
(a)The first child, born in 2000, who is now undertaking a course in Dramatic Arts at a college near Campbelltown;
(b)The second child, born in 2002 and his twin brother, the third child, each of whom are currently at high school near Sydney.
It appears that none of these three children seek to live with their stepmother. By order of the Children’s Court of New South Wales made on 29 June 2016, the second and third child were placed under the Parental Responsibility of the New South Wales Minister, Family and Community Services, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988 (NSW) until they attained the age of 18 years. The Tribunal notes that the first, second and third child appeared before the Tribunal. The Tribunal was favourably impressed by the demeanour and bearing of each of these young men.
The Applicant’s second wife, who resides in Australia, is the holder of a Protection visa with her three children: the fourth child born in 2010; the fifth child born in 2014, and the sixth child who is also born on the same day. Neither the first, second or third child reside with their stepmother.
The Applicant’s wife, who was present in Australia, pleaded with the Tribunal for her husband to be allowed to remain in Australia. There is apparently a close relationship between the Applicant and all his children. There is evidence that the third child prefers to live in foster care than living with the Applicant and his wife, and apparently both the first and second child also prefer to live separate from their stepmother.
The Applicant’s wife has been in receipt of medical treatment as she suffers from depression. Dr Emmanuel Jessa, medical practitioner, has provided four reports which confirm that the Applicant’s wife has been diagnosed as suffering from chronic depression, anxiety adjustment disorder symptoms, which were attributed to “complex underlying issues, husband being in jail, and now released and in Villawood Detention Centre”. According to the medical evidence, the Applicant has difficulty coping with the care of her three young children and feels “overwhelmed; withdrawn; depressed; anxious and concerned with what the future holds”. In his report dated 19 April 2017, Dr Jessa refers to the necessity for the Applicant’s wife to undergo regular psychotherapy and antidepressant medication.
Dr Jessa referred the Applicant’s wife to a Consultant Mental Health Practitioner, namely Ms Angela Parasher. She has provided a report dated 2 June 2017 which refers to her patient’s feelings of being overwhelmed, withdrawn, depressed and anxious.
The Delegate accepted that due to their age, it would be in the best interests of the three youngest children to have the Applicant participate in their lives. At present, the Applicant’s wife is fully supported by Centrelink payments and she is currently receiving in excess of $1,000 per week from such benefits. The Respondent notes that there is no evidence to suggest that the Applicant’s wife and her three younger children would remain in Australia if the Applicant’s Protection visa was cancelled.
The Tribunal notes that the Applicant did not reside with his older children for a period of two years during his imprisonment in the United Kingdom. Further, when the Applicant came to Australia, he left his family and visited Ghana for his “holiday” without being accompanied by any members of his family and was away from them for three months. Such visit occurred from late December 2011 to 25 February 2012. During this period, the Applicant’s wife and all children were able to cope without the assistance of the Applicant. Further, the Applicant has been in custody from approximately 3 April 2013 for a period of two and a half years, during which time the Applicant’s wife gave birth to her twins in November 2014. There is evidence that the Applicant’s second wife suffers from depression, and would benefit if the Applicant could be reunited with her. Further, there is clearly a good bond between the Applicant and his three boys of his first marriage. There is no other evidence of any adverse impact upon the family during the Applicant’s absences, either whilst overseas or in jail.
The Tribunal concurs with the reasoning of the Delegate that clearly the best interests of the children would be served by the Applicant’s presence in Australia.
Third primary consideration: expectations of the Australian community
Clause 13.3(1) of Direction 65 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.”
The circumstances establish that the Applicant has not been honest in his application with respect to his non-disclosure of his United Kingdom criminal history. Had such disclosure been made, it is distinctly likely that the visa would not have been granted and that his family and himself would therefore remain in Nigeria. The Australian community is entitled to consider that such conduct is reprehensible and leads to the conclusion that the Australian community should not tolerate the Applicant residing in this country. The Applicant failed to honour his declaration which he made on applying for the protection visa to observe the laws of Australia.
Other Considerations
Direction 65 requires the Tribunal to take into account other matters where relevant.
Clause 14.1 of Direction 65 requires the Tribunal to consider non-refoulement obligations. Since the Refugee Review Tribunal found that the Applicant was entitled to a Protection visa, an ITOA assessment has been made which has had the benefit of further information. Such assessment has concluded that Australia does not have non-refoulement obligations in respect of the Applicant. The findings include the following:
“The claimant deliberately provided false or misleading information to the Department about his criminal conviction and imprisonment in the UK.”
The report also concluded that contrary to the claims made by the Applicant, his first wife and daughter are alive; they were not kidnapped as claimed and did not go missing. The report continued:
“The claimant has deliberately provided false and misleading information about the location of his first wife and daughter.”
The report further states that the Applicant was not an influential person in the city of Jos; further, he was not approached by Muslim PDP members to mobilise youth against Christians.
The findings in this report tend to support the conclusion of the Tribunal that the evidence of the Applicant cannot be relied upon.
Secondly, clause 14.2 requires the Tribunal to consider the “strength, nature and duration of the ties to Australia”. In this respect, the Applicant arrived in 2009; left for an overseas holiday for three months; then engaged in unlawful activities in April 2013. During the period of his presence in Australia, the Applicant has not produced evidence of occupations in which he has been engaged, nor that he has engaged in any lawful work enterprise. When questioned concerning his ability to financially afford a trip to Ghana, he stated that he saved moneys from Centrelink for his holiday. The Tribunal is not convinced of the real purpose of his visit to Ghana, namely a holiday, nor the source of finance for such visit. Accordingly, due to clause 14.3, there is no impact upon any Australian business interests if the Applicant’s visa is revoked.
Clause 14.4 requires the Tribunal to consider the impact on victims in the event of cancellation of the visa. This is scarcely relevant in the present circumstances.
Clause 14.5 requires the Tribunal to consider the extent of any impediments which the Applicant may face if moved to Nigeria. The ITOA report suggests that there are no impediments for the Applicant’s return.
CONCLUSION
The Tribunal is satisfied that the Applicant came to this country only as a result of false information supplied by him both in respect of his claims to be a refugee and also in respect of his prior criminal history. The Applicant has not shown, since his arrival in Australia, to have been a desirable citizen by engaging in any worthwhile work enterprise. Instead, he has engaged in further criminal activity of a serious kind. In these circumstances, the Tribunal is satisfied that whilst it would be preferable for all the children and his wife to have the presence of their father in Australia, his conduct disentitles him to remain in Australia.
For the above reasons, the Tribunal finds the correct and preferable decision is that made by the Respondent. Accordingly, the Application is refused and the decision under review is affirmed.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
.................................[sgd]...................................
Associate
Dated: 18 December 2017
Date of hearing: 28 November 2017 Applicant: In person Solicitors for the Respondent: Mr A Markus, Australian Government Solicitor
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