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

[2024] AATA 812

TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 812 (22 April 2024)

Division:GENERAL DIVISION

File Number:          2022/9058

Re:TJHG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:22 April 2024

Place:Sydney

The decision dated 2 November 2022 not to revoke the mandatory cancellation of the applicant’s visa under subsection 501CA(4) of the Act is set aside, and in substitution, it is decided that the cancellation of the visa is revoked.

...........[SGD].............................................................

Emeritus Professor P A Fairall, Senior Member

Catchwords

MIGRATION – Migration Act 1958 (Cth) – non-revocation of mandatory visa cancellation – Direction No.99 – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – supply large commercial quantity of methylamphetamine – low risk of reoffending – where applicant at risk of double punishment upon return to Nigeria – decision under review set aside

Legislation

Migration Act 1958 (Cth)

Cases

1507135 (Refugee) [2017] AATA 276
2006126 (Refugee) [2020] AATA 3809
BHVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1467
Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139
Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1337
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
ENT19 v Minister for Home Affairs [2021] FCAFC 217
FYBR v Minister for Home Affairs [2019] FCAFC 185
GLD18 v Minister for Home Affairs [2020] FCAFC 2
HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
SZKMV v Minister for Immigration and Border Protection [2015] FCA 1432
SZSLM v Minister for Immigration and Border Protection [2014] FCA 945
TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 22

WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320

Secondary Materials

Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

22 April 2024

INTRODUCTION

1. TJHG (the applicant) was born in Nigeria in 1970. He was granted a visa under the Migration Act 1958 (Cth) (Act) upon arrival in Australia on 22 March 2010. He has made three short trips abroad, once in 2012 and twice in 2013.[1]

   [1] Remittal Bundle (RB), 189.

2. On 9 April 2014, he was arrested by the Australian Federal Police on various serious federal drug crimes, including importation of a commercial quantity of a border-controlled drug, an offence punishable by life imprisonment. He was refused bail. On 16 June 2014, he was taken into NSW police custody and charged with state drug offences committed between October 2013 and April 2014.[2]

   [2] RB, 315.

3. On 5 August 2016, he pleaded guilty to several state and Commonwealth offences. He was sentenced in the District Court of New South Wales to nine years imprisonment, with a non-parole period of six years and six months.[3] His earliest eligibility date for parole was 8 October 2021.

   [3] RB, 51.

4. On 2 April 2019, his visa was cancelled under subsection 501(3A) of the Act. At the time he held a class BC Subclass 100 Spouse visa (visa).

5. He lodged a request for revocation and made submissions in support of his revocation request.[4] He completed a Personal Circumstances Form and provided details about his family in Australia and Nigeria. He expressed remorse for his offending.[5]

   [4] RB, 61, 63.

   [5] RB, 67-85.

6. In September 2021, the Commonwealth Attorney-General issued a Refusal to Grant Parole letter.[6] He was released on parole on 6 October 2022, a year after his original eligibility date. As an unlawful non-citizen, he was transferred directly from prison to immigration detention pursuant to section 189 of the Act.[7]

   [6] Release on parole for Commonwealth offences is discretionary: see Crimes Act 1914 (Cth), section 19AL. The letter is not included in the materials before the Tribunal, but see TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 22, at [10]; RB, 649.

   [7] Transcript, 20 November 2023, 43-44.

7. On 2 November 2022, a delegate of the Minister decided not to revoke the mandatory cancellation of his visa under subsection 501CA(4) of the Act (the reviewable decision).[8]  

   [8] RB, 13.

8. He applied to the Tribunal for review of the delegate’s decision, but on 17 January 2023, the Tribunal decided not to revoke the delegate’s decision.[9] However, on 17 April 2023, the Federal Court quashed the Tribunal’s decision and issued an order in the nature of mandamus requiring the Tribunal, differently constituted, to determine his application according to law.

   [9] TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 22; RB, 649.

   FINDING ON THE CHARACTER TEST

9. A person sentenced to a term of imprisonment of 12 months or more does not pass the character test, by reason of the combined operation of subsections 501(6)(a) and 501(7)(c) of the Act.

10. The criminal convictions and sentences described above are not in dispute in these proceedings. The Tribunal therefore finds that the applicant does not pass the character test.

11. The sole question for the Tribunal is whether, pursuant to subsection 501CA(4) of the Act, there is ‘another reason’ why the decision to cancel his visa should be revoked.

    THE HEARING

12. The application was heard on 20 and 21 November 2023, 11 January 2024, and 22 March 2024.

13. The applicant was represented by Mr M. Northam of Northam Lawyers. On the final day, Mr S. Stagliorio of counsel appeared for the applicant, instructed by Mr Northam.

14. The respondent was initially represented by Ms E. Warner-Knight of the Australian Government Solicitor, and on the last day of hearing, by Mr J. Barrington of counsel.

15. The parties submitted materials to the Tribunal, annexed to this decision.

16. The applicant gave evidence and was cross-examined by the respondent. The Tribunal also heard from three witnesses:

    (a)Father Phillip Zadro, parish priest

    (b)Dr J. Yoxall, registered psychologist

    (c)Mr K. Osuji, barrister, of the Nigerian Bar

    EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)

17. Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).

18. Part 1 of the Direction provides a set of principles to which the Tribunal should have regard when applying these considerations. I note the principles referred to in paragraph 5.2 and especially the following:

    (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 noncitizens 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.

19. Part 2 provides that the Tribunal must have regard to five primary considerations in section 8 and four other considerations in section 9. The considerations identified in the Direction are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes ‘another reason’ within the purview of paragraph 501CA(4)(b)(ii).

20. The section 8 primary considerations are as follows:

    ·Protection of the Australian Community (PC1)

    ·Family violence committed by the non-citizen (PC2)

    ·The strength, nature, and duration of ties to Australia (PC3)

    ·Best interests of minor children in Australia affected by the decision (PC4)

    ·Expectations of the Australian community (PC5)

21. The section 9 other considerations are as follows:

    ·Legal consequences of decision under section 501 or 501CA (OC1)

    ·Extent of impediments if removed (OC2)

    ·Impact on victims (OC3)

    ·Impact on Australian business interests (OC4)

    PC1: PROTECTION OF THE AUSTRALIAN COMMUNITY

22. The Direction states:

    8.1 Protection of the Australian community

    (1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.

    (2)Decision-makers should also give consideration to:

    a)    the nature and seriousness of the non-citizen’s conduct to date; and

    b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Paragraph 8.1.1. The nature and seriousness of the non-citizen’s conduct to date

23. Paragraph 8.1.1(1) of the Direction identifies certain offending as being viewed by the Australian government and the Australian community as very serious (violent or sexual crimes, crimes against children, and family violence) or at least serious (forced marriages, immigration offences, etc). None of these categories apply in the present case.

24. The Direction relevantly provides that the Tribunal must have regard to the sentence imposed, the frequency of the non-citizen’s offending, and the cumulative effect of repeated offending.

25. On 5 August 2016, the applicant pleaded guilty in the District Court of NSW to the following charges:

    (a)Importing a commercial quantity of a border-controlled drug, namely methamphetamine, contrary to subsection 307.1(1) of the Commonwealth Criminal Code. The maximum relevant penalty for this offence is imprisonment for life and/or 7,500 penalty units. Three additional offences to which he pleaded guilty were listed on a section 16BA Form. These related to two importations of methamphetamine and one importation of cocaine over the same six-month period, October 2013 to April 2014.[10] He received an indicative sentence of nine years imprisonment.

    (b)Providing false information to a reporting entity or agent knowing the information to be false, contrary to subsection 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (two counts). The applicant provided a false New South Wales driver’s licence by way of identification. The stipulated maximum penalty for this offence ­­­is imprisonment for ten years and/or 10,000 penalty units. He received an indicative sentence of 15 months imprisonment.

    (c)Possession of a marketable quantity of border-controlled drugs reasonably suspected of having been unlawfully imported, namely, heroin and methamphetamine (two counts). The maximum relevant penalty under subsection 307.9(1) and section 311.1 of the Criminal Code is imprisonment for 25 years and/or 5,000 penalty units. He received an indicative sentence of two years and three months imprisonment.

    (d)Dealing with money, being $61,615.00, reasonably suspected of being proceeds of crime, contrary to subsection 400.9(1A) of the Criminal Code. The maximum penalty is imprisonment for two years and/or 120 penalty units. He received an indicative sentence of nine months’ imprisonment.

    (e)The offender also pleaded guilty to two State counts on indictment, namely, supplying a prohibited drug, 193.25 grams of methamphetamine, and 50.1 grams of heroin, contrary to subsection 25(1) of the Drug Misuse and Trafficking Act (NSW) for which the maximum penalty is imprisonment for 15 years. For these offences the judge set an indicative sentence of two years and eight months imprisonment.

    [10] Remittal Bundle (RB), 42.

26. As noted, the applicant’s cumulative sentence amounted to nine years imprisonment, with a non-parole period of six years and six months.[11] His earliest eligibility date for parole was 8 October 2021.

    [11] RB, 51.

27. The applicant’s offending was compressed into a six-month period from 23 October 2013 to 9 April 2014.[12]

    [12] RB, 316-318.

28. The imported narcotics were intercepted by the AFP and did not circulate within the community. The state supply offences involved supply to an undercover operative. His criminal design was impeded by the actions of federal and state police. Even though the offences were committed over a relatively short period, the cumulative effect was substantial by reason of the serious nature of the offences.

29. The details of the applicant’s offending are set out in the judgment of the District Court dated 5 August 2016.[13]

    [13] RB, 39.

30. The applicant’s Statement of Facts, Issues and Contentions (SFIC) states:

    4.    The applicant accepts the delegate’s view, at [31] of the primary decision, that “drug related crimes can be viewed very seriously.”

    5.    We submit that the identity related convictions are also serious, to the extent they supported his offending with regard to the drug related offences. We note that his identity related offending was for himself as a supportive measure to facilitate his drug related offences, and was not a stand-alone operation of providing false identity documents to others.

    6.    The applicant has said that the primary reason he engaged in the drug related offending was for financial purposes. We note the offending was limited to a 4-month period, and the applicant had no prior offending.

31. The respondent’s SFIC points to the serious nature of drug importation offences.

    24.  Significant among the numerous offences for which applicant was convicted or for which he pleaded guilty (and were taken into account), concerned his involvement in the importation of four separate consignments of large quantities of methamphetamine and one consignment of cocaine into Australia (see sentencing remarks of Judge Hock (GD 36 to 49) and statement of facts, R v TJHG (Annexure A)).

    25.  Illicit drug use costs Australia billions of dollars every year in lost productivity and healthcare and crime costs.

    The overall costs of serious and organised crime related illicit drug activity were estimated to be around $4.4b in 2013–14 (ACC 2015). This cost estimate takes into account health impacts of illicit drug use, money lost to the economy through international payments for illicit drug importation and lost output of drug users.2 [emphasis added]

    …

    29.  In the event of further offending, even to a much lesser degree than before, the risk of harm to the Australian community is very significant.

    30.  Methamphetamine in particular is a very harmful drug. Some of its harmful effects were stated by the Australian Medical Association:

    There is clear medical evidence that methamphetamine, and particularly crystal methamphetamine (‘ice’) is a very harmful drug at the individual, community and societal levels.

    Methamphetamine is not a ‘recreational’, ‘soft’ or ‘party’ drug and should never be referred to as such. Every effort must be made to avoid normalising methamphetamine use or minimising its harmful effects.

    Acute methamphetamine psychosis is one of the most damaging health consequences of methamphetamine use. Acutely, it presents a major safety issue for health care staff and the intoxicated patient and his or her family.

    There is significant evidence that in Australia there is increased use of methamphetamines and particularly crystal methamphetamine from 2008 onwards. The perception from medical practitioners is that this has driven a damaging increase in severe, acute and chronic severe mental and medical illness in users.

    Health impacts are often severe with physical illnesses, particularly major cardiovascular diseases, major infections and significant injuries commonly seen. Patients are often neglectful of their problems and difficult to engage or maintain in treatment.

    Drug induced or exacerbated chronic psychotic illnesses are one of the most disabling features of methamphetamine use. The increasing prevalence related to increased crystal methamphetamine use places a severe strain on already overburdened and inadequately resourced acute and community psychiatry services.

32. The respondent’s submissions must be accepted and are not disputed in any way by the applicant, who accepts that his offending is very serious.

    Paragraph 8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

33. Paragraph 8.1.2(1) of the Direction provides:

    (1)  In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

34. This provision refers to the Government’s view about the Australian community’s tolerance for any risk of future harm. Where a person receives a long prison sentence (as in the present case) for committing serious drug offences over a short period of time, a finding that any risk of repetition is unacceptable will often be made. However, the risk of repetition does not conclusively determine whether to revoke the mandatory cancellation decision. The overarching question is whether there are factors which, whether alone or in combination, constitute ‘another reason’ under subsection 501CA(4) for revoking the cancellation decision.

35. Paragraph 8.1.2(2) of the Direction provides:

    (2)In assessing the risk that may be posed by the non-citizen 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:

    (i)     information and evidence on the risk of the non-citizen reoffending; and

    (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

36. The nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct or other serious conduct will obviously depend on the nature of the criminal offending or serious misconduct. The applicant’s criminal record is confined to the drug offences described above. His offending was committed for financial gain and was not the result of an addiction. There is no evidence of aggressive or violent behaviour. Nevertheless, even if the focus of repetition is confined to drug offending, such activity has the potential for serious harm to individuals and the community. This is well documented and accepted by the parties in these proceedings.

1. I turn to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct.

2. I refer to the pre-release reports prepared by the Office of Corrections. I have extracted various passages from the reports. The first is dated 12 January 2021, and states:

   Overall assessment

   [TJHG] has displayed satisfactory behaviour during his custodial sentence and has not incurred any institutional misconduct charges. He has maintained generally consistent employment and received favourable feedback in regards to his work ethic. Despite [TJHG] not being eligible for therapeutic programs he has displayed motivation for personal development by engaging in educational courses. 

3. I also note the updated Pre-Release report dated 12 May 2022, which refers to the Attorney General’s Refusal of Parole letter.[14]

   [14] RB, 329, 331.

   Behaviour in custody

   [TJHG] has only had one offence in custody, for stealing which occurred in March 2021. For this he was sentenced to 14 days off buy ups. He was transferred from Cooma to Cessnock Correction Centre in the week after this offence. [TJHG] maintained that he did not commit this offence and that he was set up so that he might have to move employment.

   Since that time [TJHG] has not incurred any further misconduct charges. He continues to receive positive reports from custodial staff who have stated he is polite and helpful when needed and gets along well with others.

   [TJHG] has maintained his C2 classification, and since 3/2/2022 has lived in Honour House, a facility located outside of the main area of the gaol. His placement here is reflective of his progression in custody and afforded to those who display satisfactory behaviour and a level of trust.

   …

   Employment

   [TJHG] has maintained consistent employment in the past 12 months. He is currently employed as a leading hand in facilities maintenance. His supervisor reported ‘he has been working well in lawn maintenance and helps out in painting when needed. He is polite and quiet and follows direction without any issue’.

   [TJHG] is committed to his work in custody. For example, he requested that interviews for this report be scheduled such that his employment is not affected.

   …

   Post release plans

   Accommodation

   [TJHG] understands the concerns raised in the Attorney General’s Refusal of Parole letter from September 2021. He explained that when he came to Australia he was largely dependent on his wife, was focussed on employment and did not establish any significant relationships of his own.

   [TJHG]’s continues to wait on the appeal against his visa cancellation. As it stands, upon release he would be detained in immigration detention. If he is granted release in October and is able to remain in Australia, accommodation has been secured for him at a boarding house run by Community Outreach Mission at …[15]

   [15] RB, 330-332.

   Supervision plan

   Should TJHG not be deported or held in immigration detention in Australia following his release from custody the supervision plan will include:

   ·Referral to Wesley Mission financial counselling or Salvation Army money care program.

   ·Regular contact with Police intelligence to check on his adverse contact and any associations with the West African organised crime group.

   ·Officer direction to abstain from illicit drug use

   ·Random drug testing to monitor drug use.

   Recommended additional conditions

   The following additional condition are recommended

   ·Condition 29 – You must not contact or communicate with Outlaw Motorcycle Gang (OMCG) and Organised Criminal Network (OCN) members or associates; without the express prior approval of your Officer. You must also not visit or frequent any OMCG and OCN premises frequented by members and associates of OMCGs and OCNs.

   …

   Assessment and recommendation

   Key reasons for release to parole

   ·He is assessed as being a low risk of re-offending

   ·He has post release accommodation

   ·He has demonstrated positive behaviour in custody

   ·He will not undertake offence specific intervention if he remains in custody

   Key reasons against release

   ·Community Corrections has no reasons against release.

   Overall assessment

   [TJHG] was refused parole in September 2021 due to concerns for his immigration status, his post release plans if released into Australia, his post release plans if release into Nigeria, and finally because of concerns for his financial stability and planning given the offences were committed for financial gain.

   In his favour, [TJHG] now has accommodation in Australia secured, he has saved money to support himself and has plans to gain employment. His record of employment in custody and attitude towards work lends some confidence to his ability to do so. Furthermore, he has outlined a means of support including resuming involvement in his local Church.

   It is true that his immigration status and plans if released into Nigeria remain unchanged from last year. Having cut ties and sold belongings to start a new life in Australia he remains isolated from Nigeria. With the passing of time his connection to the people and his family there has only weakened. Further time, either in custody or immigration is unlikely to change this scenario should he be returned. For this reason, this is not considered to be a barrier to a parole order being granted.

   [TJHG] has bettered his plans for release compared to last year and remains a low risk of re-offending. Further time in custody will not change his risk of re-offending nor will it improve his plans for release as outlined in this report. Community Corrections can manage [TJHG] in the community on a Parole order and offer formal support as he reintegrates into the community.

   Recommendation

   Community Corrections recommends that a parole order is made for TJHG, with the addition of the following conditions:

   ·Condition 29, OMCG/OCN[16]

   [16] RB, 334.

4. In the first hearing of this matter, the learned Deputy President noted the absence of any expert evidence on the question of recidivism.

   The applicant testified that he will not ever again commit a similar crime. He has attended courses aimed at rehabilitation in prison and more recently in detention which may make reoffending less likely, but I have no current expert evidence from a psychiatrist or psychologist indicating any view about his likely chance of recidivism. Such estimates, if available, could be of real assistance to the Tribunal. The fact of his prior offending would typically and usually be factored in by such an expert in estimating the likelihood of recidivism. The harm which would be done to the community if the applicant should reoffend could be very significant indeed.[17]

   [17] TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 22, at [13]; RB, 653.

5. In the present proceedings, the absence of expert testimony was remedied by the provision of a report by a registered psychologist. Dr J. Yoxall interviewed the applicant on 12 September 2023 and provided a written report dated 8 November 2023.

6. Dr Yoxall holds a Bachelor of Applied Science (Applied Psychology); a Graduate Diploma of Applied Science (Applied Psychology); and a PhD (Forensic Psychology). She has worked as a psychologist for 27 years. She is a member of the Australian Psychological Society. The Tribunal accepted her as an expert witness in relation to the assessment of risk.

7. Dr Yoxall‘s report is summarised by the applicant’s SFIC as follows:

   11. For the most current assessment of the applicant’s future prospects regarding reoffending and other aspects, we submit that the current psychological report of Dr Jaqueline Yoxall (submitted to the Tribunal separately) is the most authoritative, as it takes into account the applicant’s full history as well as the full extent of his sentences and the punishment he received for his past offending. The report also reflects the applicant’s current mental health which we submit is a positive indicator for his future behaviour.

   12. As noted in Dr Yoxall’s report, the applicant at the time of his offending was working as a disability support officer and was on a modest income. His wife had become unwell and was unable to work, and he also had financial pressure due to his need to support his father in Nigeria up until and after his father’s death on 1 July 2013. The applicant also reports he was approximately $70,000 in debt during this time which added even more pressure to his financial situation:

   “[TJHG] said that he also supported his father. His father had complex medical problems arising from diabetes. He said that when his father died on 1 July 2013, no one in the family in Nigeria could afford a funeral and there was no community or social support available to assist. He said that therefore, his father’s body was held in a mortuary in Nigeria, until the family could pay for the funeral.

   [TJHG] said that he was struggling to repay his loans and look after his wife in Australia and his family in Nigeria and find the money for his father’s funeral. The situation weighed heavily upon him. He was struggling to cope.

   [TJHG] said that it was in this context that he took up an opportunity that was presented to him by someone he met in his local community who knew that he was struggling financially. He said that initially it seemed like a quick way to make some money and pay for his father’s funeral and pay off his debt. He said that he received instruction on what to do, and he followed those instructions. This included the setting up of the fake post office box and drivers license and phone number. He followed instructions given to him by others in the syndicate.”

   -- Report of Dr Jacqui Yoxall, pg 9-10

   13. Dr Yoxall notes that the applicant took significant steps towards rehabilitation while in prison:

   “[TJHG] completed professional and personal development courses whilst in prison which included a Certificate II in Skills for Work and Vocational pathways, a WHS Card, and a Certificate in Business Studies. He noted that given his criminal history, he will not be able to return to work in as a disability support worker. He is hoping that the courses that he completed in prison will assist him to increase his employment opportunities. He completed a drug and alcohol programs out of interest, to better understand the impact of drugs and alcohol on individuals and communities. He completed courses on stress management, depression, decision making skills. He also completed a course on financial management and budgeting.

   Whilst in prison, he engaged with the visiting chaplain and became involved in reading the bible and having conversations about religion and spirituality. He said that he attended Church in prison nearly every Sunday. He said that this assisted him substantially.”

   -- Report of Dr Jacqui Yoxall, pg 13

   14. Dr Yoxall makes important observations regarding the applicant’s remorse, acceptance of offending, and development of insight:

   “[TJHG] demonstrated what appeared to be genuine remorse. On assessment he accepted responsibility for his offending overall. He regrets the offending.

   [TJHG] demonstrated a high degree of insight. He said that he realizes now the seriousness of his offending. He realizes that his actions have caused impact to others who use drugs and broader society because of the overall scourge of drugs and the cost to the Australian community to manage the drug scourge and the cost of incarcerating people like him. He said that he has now developed skills and knowledge to manage money and budget. He knows how to ask for help, in a legitimate and healthy manner, if he were ever to experience financial strain again.

   [TJHG] said that he knows now that no benefit comes from offending in the longer term as he has spent years in prison, experienced protracted separation from loved ones, and is now facing deportation.”

   -- Report of Dr Jaqui Yoxall, pg 14

   15. Of special significance to the present case is the expert psychological evidence based on psychological testing via the LIS-R (Level of Service Inventory – Revised) where the applicant scored only 7:

   “On review of information available and reviewed, and based upon what [TJHG] noted in interview, it appears that he is highly motivated to ensure that his risk of reoffending is low. His score on the LIS-R is 7 (4.2nd %ile). This means that 95.8% of the normative sample (North American norms are commonly used in Australia for this measure) scored higher than him. A score of 13 or lower indicates a low risk of general reoffending and a low level of rehabilitation needs. In the normative sample, approximately 11.7% who scored in this range reoffended (and were reincarcerated) within 12 months. It is not possible to determine if [TJHG] is most like the 11.7% that reoffended in 12 months or the 88.3% who did not.”

   -- Report of Dr Jacqui Yoxall, pg 22 [emphasis added]

   16. Dr Yoxall confirms this in her own professional opinion regarding the applicant’s risk of reoffending, and notes the applicant’s motivation to engage in recommended psychological counselling to manage transition back into the community:

   “TJHG is currently experiencing anxiety, but not to a clinically significant level. Upon assessment, with consideration of all available information, it is my opinion that his risk of reoffending is low.

   It is however, my recommendation that TJHG engage in psychological counselling, to manage his transition back to community, either in Nigeria or Australia, given the length of time he has now been in prison or detention (9.5 years). He is motivated to do this.”

   -- Report of Dr Jacqui Yoxall, pg 24 [emphasis added]

   17. We note Dr Yoxall’s remarks regarding the impossibility of a finding in anyone of zero or no risk in offending:

   “No risk assessment will result in a zero or no risk of reoffending. This is because human behaviour is complex and given a certain set of circumstances and variables, any and all individuals will present with some level of risk of offending in some manner. However, for most, this is a very low risk and they will likely never offend in their life. For those that have already offended, the risk can also be very low, and they may never reoffend in their life, but their risk of reoffending will also not be zero.”

   -- Report of Dr Jacqui Yoxall, pg 19

   18. We further note Dr Yoxall’s comments regarding the lack of psychological illness at the time he was offending, but noting the extraordinary combination of grief, stress, financial pressure and family obligations that all occurred at the time the applicant became involved in offending:

   “It doesn’t appear that [TJHG] was psychologically unwell at the time of the offending, but he was stressed and was experiencing grief in regard to his father’s death. He felt heavily the responsibility of caring for and providing financially for his wife when she became unwell, as well as continuing to provide for his brothers in Nigeria. He could not cope with the thought of his father being in a mortuary, unable to be buried because there was no money for a funeral. He became panicked about the situation and his association with people involved in antisocial behaviour led to the opportunity to become involved in the offending, for financial gain. It is likely that his judgment was somewhat compromised by these factors when he first became involved in the offending, which then escalated in severity over a short period of time, at the instruction of others more senior in the syndicate.”

   -- Report of Dr Jacqui Yoxall, pg 23

   19. We submit that the evidence shows that the applicant has taken responsibility for his offending and has not tried to minimise, deflect, obscure or otherwise reduce the seriousness of what he has admittedly done. However as discussed earlier, the focus of the assessment of risk is a forward-looking, not backward-looking process, and we submit that while the applicant has acknowledged the seriousness of what he has done years ago, the evidence-based determination by Dr Yoxall of a low risk of reoffending should be given equal if not more weight to the seriousness aspects of this criteria of Direction 99 as the risk criteria is inherently forward-looking in nature.[18]

   [18] See applicant’s SFIC, [11]-[19].

8. Dr Yoxall was cross-examined by the respondent’s representative, but apart from clarifying some minor errors, she was unshaken in her assessment that his risk of recidivism was low.[19] This was based on several protective factors and assessed through the prism of the LSI-R, a well-known psychometric test for the assessment of risk.

   [19] Transcript, 20 November 2023, 69, 71.

9. Dr Yoxall considered the risk of recidivism to be ‘low’ rather than ‘very low’. She explained her reason for this as follows:

   [I] don't use the words very low very often… What TJHG did in terms of the vulnerability – in terms of his behaviour in terms of becoming involved in the offending, he became involved in very serious offending and although it was a short period of time it was serious offending. He’s been in prison and in detention for nearly 10 years. I think his risk of reoffending is low. I think there are really – the difficulty with TJHG is the primary reason for his offending at that particular point in time was because of a financial debt and difficulties in resolving that, and then a series of, if you want to say, poor judgment or maladaptive decision-making and – led to the offending. How much has that changed over the last 10 years, how much has he engaged in self-reflection, how much has he been able to amend and adjust his prospects for a law-abiding life, those are the key pieces of the assessment. It’s – the quandary or the dilemma is saying that somebody who has been in a controlled environment for nearly a decade because of the offending is a very low risk of reoffending. I mean, I think he’s a low risk of reoffending. I think the factors that would increase his risk of reoffending, you know, are around instability. They’re less around, you know, the same reasons why he engaged in the first – in the first lot of offending. But if you look at a measure like the LSI, which has very generic factors that tend to increase at different degrees of weight someone’s risk of reoffending he comes out as basically low. But we sort of don’t really a high degree of definitive ability to differentiate or discriminate between low and very low. So, you know – so I think we’re really in that space. There’s a lot of noise in these things and, you know, from where it lands in consideration of all the pieces of information and all those factors I think his risk of reoffending is low.[20]

   [20] Transcript, 20 November 2023, 72.

10. Dr Yoxall’s evidence underscores the importance of protective factors such as the stability of accommodation, relationships, and employability.

11. It is therefore not surprising that the degree of support that the applicant might receive from his wife (WAE) became an important issue in the proceedings.

12. The objective evidence indicates that when he was incarcerated in Long Bay in Sydney from April 2014 to December 2017 his wife visited him every few days. The Correction Records indicate some 240 visits over that 44-month period for which records are available, an average of more than five visits per month, an impressive testament to spousal loyalty.[21]

    [21] RB, 141-155, spanning the period April 2014 to December 2017. As the later period see RB, 528.

13. He was hospitalised in Long Bay prison in December 2016. She visited on 4, 10, 17 and 27 December 2016. During this period, he was unsuccessful in accessing his superannuation on compassionate grounds.[22] At this time he was trying to get Legal Aid to return his calls so that he could appeal.[23] He was transferred to Cooma in early 2017.[24]

    [22] RB, 338.

    [23] RB, 339.

    [24] RB, 528.

14. The last spousal visit was on 30 December 2017 in Cooma, according to the Correction Records.[25] He agreed that he had not had any spousal visits since December 2017.[26] He said she had been visiting him as often as possible, but Cooma Gaol was ‘far, far away’.[27] He said that she visited him once in Cooma with her son and grandkids and that he told her not to come, because it was too far, and that they could talk on the telephone. He said that she continued supporting him by putting money in his account ‘every fortnight’.

    [25] RB, 528.

    [26] RB, 578.

    [27] Transcript, 9 January 2023, 40; RB, 578.

1. In May 2018 there was a dispute between the applicant and his wife regarding money.[28] The applicant gave evidence that in 2018 the AFP returned a sum of $12,500.00 to him that had been wrongly confiscated. His wife asked him to sign a power of attorney so that she could receive this money. He refused. He told the Tribunal that he refused because he needed to manage the money. He said that his brothers in Nigeria had health care needs.[29] He did however give her some of the money for medical expenses and car registration. He provided proof of one transfer for $500.00.[30] He said he gave her about $2,500.00 in all and sent the balance to his two brothers in Nigeria.[31]

   [28] RB, 343, entry relating to 9 May 2018.

   [29] Transcript, 20 November 2023, 48.

   [30] RB, 91.

   [31] Transcript, 20 November 2023, 49.

2. He said that his wife did not visit him during 2018 or 2019, but they spoke ‘often’ on the phone.[32] He also gave evidence at both hearings that she had given him small amounts of money every fortnight over the years while he was in prison.[33]

   [32] Transcript, 20 November 2023, 45.

   [33] Transcript, 20 November 2023, 34.

3. In August or September 2020, he was moved to Cessnock.[34] Visits were suspended during the pandemic.

   [34] RB, 528.

4. There are two recorded visits by his wife, on 26 August 2020, and 7 March 2021 (by tablet). At the first hearing, he said that his wife did not visit him in August 2020 due to COVID-19 restrictions,[35] and it was his daughter to whom he spoke in March 2020.[36] These were administrative errors in the notes.

   [35] RB, 592.

   [36] RB, 594.

5. The Tribunal was also taken to various file notes between corrections officers and his wife. In February 2022, a Corrections officer interviewed the applicant and his wife.[37]

   -[WAE] returned my call.

   -She was easy to speak with and happy for me to contact her again in the future if I needed

   -I explained the report I am preparing, the reasons he was refused parole last year and we discussed immigration status etc.

   -[WAE] has been affected by [TJHG]’s offence. She said she had a nervous breakdown after it He came to Australia to marry her, and then after 3-4 years he offended and has been imprisoned since.

   -She quite obviously cares about him, is saddened how their marriage worked out and by how she feels now.

   -She does not want to live with him or be back together as husband and wife. She wants to help on release in so far as picking him up from gaol, taking him to accommodation, helping him get a phone etc but would then step back and let him live his life.

   -She thinks his employment prospects are ok on release, given his hard work ethic and experience. She thinks Nigeria would not be good for him as he has only two brothers there and neither of them could support him. She worries about healthcare there and for his safety having a criminal record.

   -She doesn't know of anyone else that he could live with or who could support him on release. It was her who gave him the priests details who can offer him some support on release.

   [37] RB, 363-364.

6. The Corrections Officer also spoke with the applicant.

   R. Phone interview with [TJHG].

   He was again pleasant and polite, and easy to speak with.

   -Discussed phone call with [WAE]. Which led on to an open discussion about their relationship and realistically how much support is available upon release. Essentially it seems as though they will live independently and [WAE] may help with immediate needs on release. [TJHG] is realistic about this and understands the passage of time has led to a decrease in closeness in their relationship.

   I. Short and Long term goals. Repeated with specific focus on aspects of the report and PRRMP that is due very soon. The PGI aim was to identify short and long term goals and recognise the steps required to be able to achieve the bigger goal.

   Relationship with [WAE]

   -Because of his offending and subsequent lengthy incarceration, the closeness of the relationship with his wife has decreased. It is apparent that they both feel a sense of duty and concern for one another, however accept that upon release they would live independently. It seems more accurate to think of her as his former partner…. Despite this over the past year they continue to speak regularly and he receives financial support from her.

7. In October 2022, he was transferred to immigration detention.[38]

   [38] Transcript, 20 November 2023, 43-44.

8. An IHMS Record dated 7 November 2022 states:

   He has not had any contact from wife once he was released from prison. He arranged a police welfare check to determine if she was OK. Police advised her she was OK, however he has not heard from her. He is uncertain about their relationship status as they are still married. He states their contact reduced in frequency in the past year, and she stopped visiting him in jail. He would just like to know whether their relationship can be repaired or to separate.

9. The respondent’s SFIC states:

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

   27. The applicant lacks a significant protective factor against the risk of further offending as he will not be returning to live with his wife (see Community Corrections Pre-release reports, 12 January 2021 (RB 322-328) and 12 May 2022 (RB 329-325)). This is explained in the 2nd Pre-release report at RB 330:

   [TJHG]’s wife continues to be his primary support. He regularly speaks with her, and she has committed to supporting him however they have chosen to live independent of one another upon his release. They have decided this so that they will have the space from which to assess their relationship after such a long time living apart.

   Apart from his wife, [TJHG] has no personal supports in the Australian community although he has made efforts to engage the support of a Catholic ministry. This service was broadly supportive, although they made no firm offers and encouraged him to make contact again after he is released.

   [TJHG] speaks with his daughter in Nigeria somewhat regularly and has two siblings there also, with whom he has sporadic phone contact.

   28. Notwithstanding that the applicant was assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) (Parole reports RB 326, 332) and notwithstanding his claim that he now knows that he ‘must seek for help instead of breaking the law, to speak out and reach out for help’ from community sources or his church organisation (applicant’s statutory declaration 12 December 2022 RB 214), his lack of personal support remains a considerable risk factor. The temptation to engage in a quick means to gain money, against a background of having no stable accommodation and no firm arrangements for employment, will inevitably be strong.

   [Emphasis in original]

10. The respondent submits that the applicant’s wife did not support him in either hearing before the Tribunal, from which it may be inferred that their relationship is not a protective factor.[39]

    [39] Transcript, 20 November 2023, 21.

11. The Tribunal cannot be satisfied that reconciliation with his wife is likely to follow from his release into the community. Communications between wife and husband since 2018 have been minimal. However, I note that she provided a strong letter of support dated 15 May 2019. She states:

    I plead with you to reconsider on reinstating [TJHG]’s visa. If [TJHG] is sent back to Nigeria I believe it will have a negative impact on his health, life and on his two younger brothers who have disabilities. He has been supporting them financially due to their disabilities.

    At no point do I or my family condone any of the offences that [TJHG] has committed. I am relieved that no one in the community was physically affected by the drug offences [TJHG] committed.

    My family and I have been badly effected [sic] and saddened by [TJHG]’s actions. I do believe [TJHG] has learnt his lesson and would not reoffend.

    [TJHG] is a hard committed worker, he has taken all opportunities to educate himself more while in prison. I do feel [TJHG] will have a positive impaction [sic] on the Australian community, if given another chance to stay in Australia.[40]

    [40] RB, 183.

12. Moreover, there is evidence that she has continued to support him in meaningful ways. The applicant gave oral evidence that although they were ‘separated’, as recently as September 2023, she provided clothes and shoes to him.[41] I also note her statement to a corrections officer that:

    She wants to help on release in so far as picking him up from gaol, taking him to accommodation, helping him get a phone etc but would then step back and let him live his life.[42]

    [41] Transcript, 20 November 2023, 23, 37.

    [42] RB, 363-364.

13. There is no suggestion that either party has initiated divorce proceedings. The applicant denied that any such proceedings were on foot.[43] The applicant asserts convincingly that he wants his marriage to continue. A genuine desire of this kind provides a powerful incentive to avoid further offending. He would know that any further offending would be the death of his marriage and greatly complicate his immigration status.

    [43] Transcript, 20 November 2023, 46.

14. The applicant’s relationship with his wife is a potent protective factor. The relationship, and indeed the applicant’s motivation to rekindle the marriage, has ongoing relevance as a risk mitigation factor. His removal to Nigeria would undoubtedly change that assessment.

15. The respondent also refers to the applicant’s lack of broader social support within the community. The respondent’s SFIC refers to his then unsuccessful attempts to engage the practical support of a Catholic ministry. At the hearing, his parish priest, Father Phillip gave evidence that the parish had donated $7,500.00 towards his legal and psychological services. He told the Tribunal that this was the first occasion on which such a donation had been made by the parish.[44] 

    [44] Transcript, 21 November 2023, 91.

16. I also note that prior to his arrest the applicant was gainfully employed in the disability sector. The Tribunal has not received evidence as to the implications of his criminal record on further employment in that field.

17. The case is therefore one in which the offending is very serious, but various factors point to the risk of recidivism as being low to very low. This includes the strong support he has from his local parish, and the future relationship he hopes for with his wife.

18. Overall, and despite the low prospect of recidivism, I consider that the protection of the Australian community weighs against revocation of the mandatory cancellation decision.

    PC2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

19. There is no evidence of family violence, and this consideration is not relevant in these proceedings.

    PC3: STRENGTH, NATURE AND DURATION OF TIES

20. Under paragraph 8.3, decision-makers are required to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal must also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely, as well as the strength, nature and duration of any other ties that the non-citizen has to the Australian community.

21. The Direction provides guidance as to the weight to be given to certain factors, for example, more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

22. The applicant worked as a driver in the disability sector when he first came to Australia. His active participation in the disability sector amounts to a positive contribution to the Australian community.

23. The applicant was not ordinarily resident in Australia during his formative years. He arrived in March 2010 at the age of 40 and was arrested in April 2014. I do not think it can be said that he began offending ‘soon’ after arriving in Australia. However, of the 14 years he has lived in Australia, 10 have been spent in prison or immigration detention.

24. In terms of his family ties, the applicant has no family in Australia apart from his wife, her son, and his children. The applicant states that he could have an ‘important and profound’ impact on their lives going forward as they grow older and that they would benefit from him playing an important role as ‘a strong father figure in their lives’. He is said to have ‘deep and extensive ties’ to Australia. Importantly, the applicant contends that it would create extreme hardship for his Australian-based family were he to be removed from Australia, as he would have no possibility of returning to Australia barring Ministerial intervention, which was ‘not a realistic possibility given the Minister’s established position on the applicant’s offending’.[45]

    [45] ASFIC, [23].

25. The applicant’s relationship with his wife has been discussed above. There is no doubt that a decade of separation compounded by health and financial stress has taken a toll on the marriage. Given the letter of support that she provided in 2019, it may be expected that she will experience some considerable sorrow and emotional anguish at his removal. She has been very supportive of him in the past, as clearly shown by the visitor logs for the period up until the end of 2017. Moreover, I cannot infer from the fact that she did not appear before the Tribunal to give evidence that there is no possibility of reconciliation, especially in light of her supportive 2019 letter, and her willingness to provide some practical assistance to him upon his release, as conveyed in the pre-release discussions with the community corrections officer referred to above.

26. The Tribunal’s assessment is that his removal will have a non-trivial impact on his wife. However, it is doubtful whether she will experience ‘extreme hardship’. Although he has demonstrated some degree of financial support, to pay for specific expenses, like car registration, the financial support she receives from him could not be described as substantial. She has chosen not to have contact with him in recent times, and not to support him before the Tribunal.

27. The applicant’s wife’s son (his stepson) is referred to in these reasons as JAC. He visited the applicant in prison but not frequently. The applicant states that they lived in the same household and had a good relationship, though his stepson was ‘not happy’ with his criminal offending. Like his mother, he neither appeared at the present hearing nor provided a letter of support. It is doubtful whether the applicant’s removal will have much impact on him.

28. JAC has two children. Apart from being introduced to JAC’s newborn in December 2017, he does not appear to have any contact with them, and it is unlikely that they would be in any way affected by his removal from Australia.[46]

    [46] Transcript, 20 November 2023, 42.

29. In terms of the strength, nature and duration of other non-family or social ties that the non-citizen has to the Australian community, the applicant is a member of a religious congregation and has received support from his local parish priest. The Reverend Phillip Zadro is a Catholic priest, and Dean of the Concord Deanery, Archdiocese of Sydney. He provided a statutory declaration in these proceedings. He stated that the applicant started to attend mass in 2010 and returning quite often over several years. He had several casual conversations with him over that time. He found him to be respectful, polite, and well-presented. He described him as a ‘good man’.[47] He stated:

    Around May 2014 [TJHG] contacted me and asked me to visit him at the Remand Centre at Silverwater NSW so that I could offer him some spiritual support in the circumstances he was then in, namely, awaiting sentencing for offences relating to drugs. I recall that he was ashamed of the choices he had made which had brought him where he was. He was doing the best he could to be compliant with requirements for behaviour and participation in activities available to him while in Remand.

    In his present situation, [TJHG] contacted me again and informed me of what's ahead for him. He demonstrates profound remorse for the choices he made which led to his conviction and imprisonment; he vows to avoid such choices in the future and to seek appropriate help both for personal guidance and if he finds himself again in financial need. I do not believe that he is a danger to the community. He appreciates that finding employment can be very difficult when one has a criminal record but is willing to take on whatever suitable employment might become available. I have begun to see what resources I might be able to refer him to and know that the St Vincent de Paul Society is able to assist in several ways. They would be able to do this firstly with emergency, then with permanent, accommodation, should that be needed, then with directions for employment.

    If [TJHG] cannot stay in Australia I believe his future would be quite bleak. I understand that he suffers from Type 2 Diabetes for which he would have minimal support or care in Nigeria; besides that, his remaining family there is unable to support him. That family is mainly two younger brothers, both of whom suffer from some mental problems.

    I was able to visit [TJHG] at the Villawood Detention Centre on 5 December 2022, and found him as approachable as before, comforted at being visited, pleased to see me, ready to inform me of what his prison experience has been like. I learned that he has taken the opportunity to study very many of the courses available through the Corrections System and has himself learned of the many support services available in Australia for anyone who is in need. He very emphatically averred that had he known about these services he would have made use of them rather than make the choices that led to his conviction.

    [TJHG] informed me that his wife has been supportive of him during his time in prison though there may have been an interruption to her communication with him in recent days. They do not have children.

    [47] RB, 230.

30. I have referred above to the substantial funding raised by the parish for his legal and medical expenses in this hearing. This is a very generous contribution by the parish, to which the Tribunal attaches some significance.

31. I also note the references provided by other members of the community. A former colleague provided a statutory declaration dated 7 December 2022. She worked with the applicant as an age care and childcare support person. She describes herself as a close friend of the applicant. She states that the applicant was:

    … instrumental in the smooth running of our group activities voluntarily. He is a kind and respectful person. He's gentle and understanding. His resourcefulness and abilities are amazing. He was involved in the men's group where he helps in organising their meetings day out and supporting our people with disabilities, through peer counselling and sport, of which he was trained and work as disability support worker. He was integral in the cultural adjustment program in our community.[48]

    [48] RB, 223.

32. She also states that the support group was committed to assisting him and would provide accommodation if needed to support him.[49]

    [49] RB, 223.

33. A long-term friend also provided a statutory declaration in support.[50]

    I have known [TJHG] when he arrived in Australia many years ago. I used to be involved in helping new arrivals settle in Australia. It was during that period that I met him, and he became one of our family friends. [TJHG] used to visit our home regularly and suddenly he ceased to communicate with us. I tried to find him without success and I waited and hoped that he will contact me one day. It has taken him about 10 years to contact me to inform me that he had been incarcerated all these years that I was looking for him. He also stated that his telephone was taken from him and so could not contact me…

    I regard [TJHG] as a decent man who made a terrible decision through the manipulation of a wicked friend. The offence he committed was out of character for the person that I have known over many years. He is not likely to reoffend. During the time of incarceration he has had the opportunity to truly reflect about his relationship with God and made a determination to live a new life void of the evil manipulators.

    [TJHG], has good support system around him. There are two Reverend ministers who are already supporting him… His future is tremendously bright. He will reintegrate successfully into the mainstream of Australian society and will do very well. As Christians we will continue to support him with our friendship as well as emotionally and spiritually…

    [TJHG] has been a strong member and contributor to the welfare and wellbeing of the Nigerian and lgbo communities since his arrival in Australia. He has worked diligently and cooperatively with other members of the community associations to help new arrivals in Australia to settle well and become effective and successful citizens. The idea of "mateship" is a very Australian ethos. Helping members of the community to settle well into the Australian society is very much Australian.[51]

    [50] RB, 232.

    [51] RB, 232.

1. The respondent contends that the strength of the applicant’s ties to Australia are superficial, and that this consideration should not be given weight in favour of revocation of the original decision.[52] I do not accept that his ties are superficial. This is not borne out by the strength of support for him from his local parish. Nor, upon a careful analysis, is it borne out by an analysis of the relationship between him and his wife, as shown by the prison and detention records.

   [52] RSFIC, [39]-[40].

2. This primary consideration weighs in favour of cancellation of the revocation decision.

   PC4: BEST INTERESTS OF MINOR CHILDREN

3. Paragraph 8.4 provides that decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

4. The applicant has no biological children in Australia. He has however listed two step grandchildren, BM and HM. They are the children of JAC. BM is seven and HM is six years of age.

5. The applicant states that he lived in the same household with JAC and had a good relationship with him. He states that JAC brought his son BM to see him in prison. The delegate stated:

   54. I acknowledge that [TJHG] is effectively the grandfather of Bentley and Hunter by reason of his marriage to their grandmother. However since [TJHG] has been in custody since 2014 Attachments D, E he clearly has never lived with the boys and appears not to have even met the younger child. I do not consider that they have formed any strong bond with him yet or that they could do so while he remains in custody. I acknowledge that if he is allowed to remain in Australia it is likely he would form some emotional bond with his two step-grandsons, but I doubt they would miss him greatly if he is removed from Australia now.

   Also, I do not consider that his possible future role of step-grandfather would constitute be of critical importance to their development and there is no reason to doubt that they have adequate care available to them from their parents.

   55. Accordingly, while I accept that it is in the best interests of [BM] and [HM] to revoke the cancellation of [TJHG]’s visa, the weight I give this consideration is very limited by the aspects discussed above.

6. I consider that declining to exercise the discretion under section 501CA to revoke the mandatory cancellation decision is not in the best interests of these children. There is a prospect that he may yet play a meaningful role in their lives in the future.

7. This consideration points in favour of revocation of the mandatory cancelation. Its weight is however limited, for the reasons given by the delegate.

   PC5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

8. Paragraph 8.5 provides:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   (2)…

   (3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

9. The applicant’s SFIC states:

   28.The applicant’s low risk of future reoffending, combined with the applicant’s close family ties in Australia, suggest that the Australian community would not necessarily expect that he should lose his visa and be removed from Australia.

   29. We reject the notion that the Australian community truly embraces and supports draconian laws including the lifetime permanent ban from Australia for all those persons who visas have been cancelled on s501 grounds, regardless of the severity of the offending, especially when such drastic and unforgiving laws do not exist outside of the migration sphere other than in very extreme cases. We would note the recent High Court case outlawing indefinite detention as an indication that these sorts of “lifetime” punitive measures are simply too unfair, unjust and punitive in nature, especially when a person has already been judged, sentenced and has repaid their debt to society as properly determine by a court.

   30. We note the “no tolerance” aspects of some of the language associated with Direction 99, especially with regard to the expectations attributed to Australian community. Given the job of the Tribunal in the current proceeding is to predict, not punish, we submit that the Tribunal must therefore focus on making active, information-based decisions that are properly and fully informed by the factors present in the case, especially when predicting the future.

10. The respondent relies on the Federal Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) for the proposition that it is not for the Tribunal to determine for itself the expectations of the Australian community, rather the Tribunal must give effect to the ‘norm’ that the expectations of the Australian community lie with the applicant’s visa refusal. FYBR was a decision on a previous Determination made under section 499 of the Act (Direction No. 65). FYBR has been heavily cited by the Tribunal and the Federal Court, in decisions on the Direction and the two previous Directions (No. 65 and No. 90).[53]

    [53] See, for example, Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68, a decision on Direction No. 90.

11. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (Ismail), the plaintiff argued that the delegate misapplied para 8.4 of Direction No. 90 (the previous direction to the current Direction) in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the plaintiff’s personal circumstances and did not do so (at [47]).

12. In a unanimous judgment, the High Court dismissed the application. The Court noted:

    [38] … Paragraph 8.4 (“Expectations of the Australian community”) involves an assessment in which the decision‑maker is required to consider that the Australian community, as a norm, expects the Australian Government not to allow a non‑citizen who has engaged in serious conduct in breach of Australian law to enter or remain in Australia. This assessment under para 8.4 thus focuses on the expectations that Direction 90 itself (by para 8.4(1)-(3), applied as required by para 8.4(4)) instructs the decision‑maker that the Australian community holds about the response of the Australian Government to a non‑citizen seeking to enter or remain in Australia if they have committed serious breaches of Australian law.

    …

    [49] …The point the plaintiff makes is that, as the expectations of the Australian community would have been affected by knowledge of the plaintiff’s personal circumstances, the delegate was required to, but did not, weigh those personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community.

    …

    [51] Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision‑maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision‑maker is to proceed on the basis of the Australian Government’s views as set out in para 8.4 “without independently assessing the community’s expectations in the particular case”.

    [52] Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.

13. The most recent decision on the current Direction is a decision of Snaden J in WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320. The question arose in the context of submission that the Direction as a whole was invalid, as being inconsistent with subsection 501CA(4). In dismissing the application, his Honour stated:

    GROUND ONE: VALIDITY OF DIRECTION 99

    18. The applicant submits that Direction 99 is invalid because it purports to fetter the exercise of power under s 501CA(4) and is, therefore, inconsistent with the Act in the way to which s 499(2) refers. There are two respects in which that was said to be so.

    19. First, the applicant maintains that, by mandating the consideration of what are deemed to be the expectations of the Australian community, Direction 99 effectively prescribes an adverse outcome for those who have engaged in very serious offending. That is said to be inconsistent with s 501CA(4)(b)(ii), which does not contemplate any particular outcome in respect of any particular offending.

    20. Second, he contends that Direction 99 serves to constrain the manner in which decisions under s 501CA(4) are to be made, despite the section itself containing no such constraints. He contends that “Direction 99 is inconsistent with the Act because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]”.

    21. In that regard, counsel for the applicant referred to what Flick J observed (in dissent) in FYBR v Minister for Home Affairs [2019] FCAFC 185, [13] …:

    Notwithstanding that constant expectation, the Australian community would unquestionably have different expectations with respect to different contraventions. An abused wife, for example, who assaults or murders her husband in retaliation for her past treatment may well have been expected to not commit assault or murder; but Australian community expectations and the expectations of that community that protection should have been provided to an abused wife, may well lead to an expectation different to that held with respect to premeditated murder or assault. A child victim of a paedophile who murders their molester may similarly attract a different response as to the expectations of the Australian community as to how the offender is to be treated. One aspect of the expectations of the Australian community with respect to such offences may be that that the community has “let the wife or molested child down”. An expectation may legitimately be held by the Australian community that to refuse a visa may be only further letting the wife or child down.

    22. It was argued in this case that, where the applicant had undergone positive steps towards rehabilitating his criminal tendencies, the Tribunal ought to have been able to break away from a fixed conception about the Australian community’s expectations, or to weigh those expectations in a way that took account of tempering factors.

    23. I am not persuaded that Direction 99 serves, in the case of those who have committed serious criminal offences, to prescribe any particular outcome or process of reasoning in a way that might offend against s 501CA(4) of the Act (or the Act more broadly). On the contrary, by its terms, it does no more than to express propositions at a broad or general level. It reserves for individual decision makers the responsibility for determining, first, what weight should be attributed to relevant considerations; and, second, whether they might, once properly weighed, be thought to accumulate in any given case to a point that bespeaks “another reason” for the purposes of s 501CA(4)(b)(ii) of the Act.

    …

    28. Direction 99 directs a decision maker to take account of what is stated to be, as the norm, an expectation on the part of the Australian community that non citizens who have engaged in serious conduct in breach of Australian laws will not be permitted to enter or remain in Australia. That consideration—that is to say, the standard or “norm” expected by the Australian community as a whole—is just that: a norm. In understanding that norm, the direction contemplates that decision makers should proceed without any independent assessment of community expectation. Nonetheless, if there are, in any given case, circumstances that warrant that limited weight or significance should attach to the “norm” so expressed, then that is a course that a decision maker can prefer without any risk of non-compliance with Direction 99. (emphasis added)

    29. Thus, to address the hypothetical posed by Flick J in FYBR, if a victim of domestic abuse or paedophilia were to have committed assault or worse in retaliation for past treatment, Direction 99 leaves open the possibility that a decision maker might favour the view that, while “as a whole” and “as a norm” the expectation of the Australian community is that non citizens who have engaged in serious conduct in breach of Australian laws should not be permitted to enter or remain in Australia, that norm should, in the particular circumstances, be afforded little or even no weight.

    30. Direction 99 does not mandate any particular outcome in any given situation, nor does it require anything more than that account be taken of nominated considerations. It is not inconsistent with the Act in the ways that are alleged. The Tribunal’s compliance with its requirements in the present case was orthodox and, in any event, was not reflective of jurisdictional error. Ground one is not made out. (Emphasis added)

14. The present circumstances are far from the hypothetical case of retaliatory action by a victim of serious abuse referred to by Snaden J above.

15. I proceed on the footing that his Honour’s analysis is not inconsistent with the decision of the High Court in Ismail. The decisions are reconcilable as follows. Although the expectations of the Australian community, as declared by the Australian government to be a ‘norm’, are static and will usually point against revoking the cancellation decision, the weight to be accorded this expectation, within the complex matrix of all relevant considerations, is variable. It is contingent upon the specific features of the case. The fact that the Tribunal finds the risk of recidivism to be low is therefore relevant to the ultimate decision to be made under subsection 501CA(4), despite the ‘norm’ contained in paragraph 8.5(1).

16. I find that the expectations of the Australian government and community weigh against the revocation of his visa. The Tribunal’s finding that the likelihood of the applicant reoffending is low is relevant to the weight to be accorded to this consideration.

    OC1: LEGAL CONSEQUENCES OF DECISION

    Possible prosecution under Nigerian Law

17. Paragraph 9.1(1) of the Direction provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations[54] in respect of an unlawful noncitizen. Paragraph 9.1(3) provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

    [54] Paragraph 9.1(2) provides that 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).

18. The applicant, through his counsel, initially eschewed any non-refoulement claim.[55] He subsequently indicated that he would need to take further instructions given the possibility that had emerged during the hearing that the applicant might be prosecuted under Nigerian law as a returning drug offender, specifically under section 22 of the National Drug Law Enforcement Act (1990 No.33) (NDLE Act), sometimes referred to as Decree 33. He considered that this might generate a non-refoulement issue under the Direction independently of any protection visa claim.[56]

    [55] Transcript, 20 November 2023, 9.

    [56] Transcript, 21 November 2023, 14.

19. In final submissions, Mr Northam confirmed that his client had not made a protection visa claim.

    He has made it clear he has no protection claims, so I don’t think any discussion of non-refoulement is really relevant at this point. It’s not the topic. He has made no protection claims. So he will be automatically removed per section 198 if his cancellation is not revoked. Now, maybe if he appeals or whatever there might be, sure, okay, but our job is not to speculate on what further legal action TJHG might take. Again, he’s made no claims for protection so there’s no point in going down that road.[57]

    [57] Transcript, 22 March 2024, 87- 88.

20. Despite this statement of disavowal by Mr Northam, non-refoulement issues may arise independently of an existing protection claim. The Direction assumes as much. In providing for cases where the non-citizen is not covered by a protection finding, paragraph 9.1.2(1) provides that where such claims are raised, they must be considered. The Direction does however provide that ‘where it is open to the non-citizen to apply for a protection visa, it is not necessary at the … section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.’ The decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them: para 9.1.1(2). Sub-paragraph (3) provides that non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage subsection 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

21. The upshot of the Direction appears to be that even though the applicant has not made, or not yet made, a protection claim, so as to be subject to a protection finding, a non-refoulement claim arising squarely on the evidence must be considered by the Tribunal: para 9.1.2(1).

22. The question that arose in these proceedings relating to Nigerian domestic law is not novel.[58] In essence, the question is whether there is a basis for finding that the applicant will suffer double punishment if returned to Nigeria.

    [58] See, for example, Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139; SZKMV v Minister for Immigration and Border Protection [2015] FCA 1432; SZSLM v Minister for Immigration and Border Protection [2014] FCA 945; GLD18 v Minister for Home Affairs [2020] FCAFC 2 (GLD18).

1. Section 22 of the Nigerian National Drug Law Enforcement Agency Act (NDLEA Act) states:

   2. Any Nigerian Citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this subsection.

   3. Any person convicted of an offence under subsection (1) or (2) of this section shall be liable to imprisonment for a term of five years without an option of a fine and his assets and properties shall be liable to forfeiture as provided under this Act.

2. 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). Article 14(7) of the ICCPR provides.

   No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

3. The dispute that arose in this case was not whether double jeopardy provisions such as  section 22 might give rise to a non-refoulement claim, or indeed, whether the section was still in force, for both parties agreed that it was, but whether there was any basis for finding that section 22 was enforced by the National Drug Law Enforcement Agency (NDLEA) against returning Nigerians who had committed drug offences in other jurisdictions.[59]

   [59] The reference to Decree 33 relates to the original source of the law encapsulating section 22.

4. The following material was placed before the Tribunal relating to this issue:

   ·The 2020 DFAT Country Information Report

   ·DFAT, Country Information Request Report No. 14/9, Nigerian Law - Status of Decree 33 of 1990, 11 March 2014

   ·DFAT, Country Information Request Report, Nigeria: Country Information – Decree 33, Country of Origin Information Services Section (COISS), 22 January 2024

   ·DFAT, memo dated 18 March 2024 clarifying role of the COISS

   ·Respondent’s further evidence on National Drug Law Enforcement Agency Act (NDLEA Act) of Nigeria, 20 December 2023 (261 pages) with five attachments.

   oAttachment 1 COISS

   oNigerian Government, National Drug Control Master Plan; Response to Drugs and Related Organized Crime in Nigeria (2021-2025)

   oUnited Nations General Assembly, Arbitrary detention relating to drug policies, Study of the Working Group on Arbitrary Detention (2021)

   oResponse of the Nigeria National Human Rights Commission to the Questionnaire from UN Working Group on Arbitrary Detention Relating To Drugs

   oUnited Nations Office on Drugs and Crime, Organized Crime in Nigeria: A Threat Assessment (2022)

   ·Report by Mr K. Osuji (KOS), a managing partner at Jaden Attorneys, a law firm based in Nigeria (the Jaden Report).

5. The Tribunal also received oral evidence from Mr Osuji.

6. I note that the views expressed in the 2018 and 2020 DFAT Country Information reports are relatively consistent. The 2018 Report notes:

   5.31 Nigerian citizens returning from overseas with a criminal record may be charged under Decree 33 (the Decree) of the National Drug Law Enforcement Agency Act 1990. The Decree provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas – including those with drug convictions and other serious crimes including money laundering, fraud, armed robbery and rape. The minimum sentence under Decree 33 is five years imprisonment. In practice, DFAT understands the Nigerian government has rarely given effect to the Decree. The most recent application DFAT is aware of was in 2005.

7. Paragraph 5.44 of the 2020 DFAT Country Information report repeats this paragraph, omitting the last sentence. 

8. The Respondent submits that DFAT Country Information reports are ‘intended to be a comprehensive source for decision-makers’. Be that as it may, the Reports were not determinative on the key issue, and both parties sought to obtain current information about the enforcement of section 22.

9. The Respondent conceded that the NDLEA Annual reports did clearly refer to a screening process whereby incoming returnees with drug convictions are ‘appropriately debriefed, documented and released on bail’. Obviously, the reference to bail suggested that there was some compulsive screening process in play, during which a certain cohort of incoming passengers would be identified, charged, and then released on bail. The Respondent contended that this reference to bail should not be given weight.

   23. … It is not clear what the reference to bail is intended to mean. There is no reference to charges being laid (and if there are charges, what charges) and so it is not obvious why a person would be granted bail, at least in the sense that term is understood in Australia. And no detail is provided about processes unfold (sic) after a person is bailed. If all that occurs is a person is debriefed and bailed, with no subsequent trial or punishment, that is not an impediment deserving of much weight.

10. I also note that it is not clear whether such a screening process applies to all incoming passengers, or applies only to Nigerian citizens, and if so, whether it applies only to drug offenders or to all who have been convicted of offences outside Nigeria.

11. The Respondent tabled evidence obtained from the COISS within the Department of Home affairs in relation to two issues:

    1.    Is paragraph [5.44] of the 2020 DFAT report on Nigeria still accurate, that the Nigerian Government rarely gives effect to Decree 33?

    2.    Are there any open source reports of cases in the last 3 years (since the DFAT report of December 2020) in which Decree 33 was applied? If so, what were the circumstances?

12. The Respondent tabled the following response:

    On Monday 11 December 2023 COISS provided the following response to the above questions…

    ‘Decree 33’ refers to Section 22 of the National Drug Law Enforcement Agency Act (NDLEA). COISS found no information that the Nigerian government has given effect to Decree 33/Section 22 of the NDLEA Act since the 2020 DFAT report was published. The NDLEA Act does appear to still be in force. COISS found no information that Section 22 has been amended in any way or repealed.

    Sources consulted:

    There are no NDLEA annual reports after 2019. The NDLEA’s National Drug Control Master Plan 2021-2025, released in 20214, has no mention of the application of Section 22 of the NDLEA Act. The plan has four pillars: supply reduction, drug demand reduction, access to controlled medicines for medical and scientific purposes, and governance and coordination. (p.7) Regarding supply reduction, the plan prioritises disruption of drug trafficking through intelligence, public communication about arrests and prosecutions, a review of current laws and an integrated border management strategy. (pp.12-14) There is also a focus on making the drug trade unprofitable, through targeting and managing seized assets and wealth of traffickers. (p.14)

    The United Nations’ 2021 report Arbitrary detention relating to drug policies - Study of the Working Group on Arbitrary Detention5 does not mention the use of Decree 33/Section 22 of the NDLEA Act, nor does the Nigerian Human Rights Commission’s submission to the UN working group.

    COISS found no media reports of people returned or deported to Nigeria after conviction for drug offences abroad facing prosecution under Decree 33/Section 22 of the NDLEA Act. Along with targeted searches using Google and AllAfrica, COISS also searched specifically with a range of keywords through several Nigerian news sources, including Vanguard, Punch, Daily Post, Premium Times, This Day and Independent. The date range was 01/01/2020-07/12/2023.

    Many Nigerians have been arrested for drug offences abroad. According to a 2022 UNODC report, Organized Crime in Nigeria: A Threat Assessment, at least 38,220 Nigerians were arrested for drug trafficking overseas between 2010 and 2019. 7(p.61) There are also reports of people being deported to Nigeria after committing offences abroad, but COISS found no reports of anyone being prosecuted under Decree 33 or Section 22 of the NDLEA Act. [Emphasis added].

    Sources consulted for these questions include CISNET, ECOI, AllAfrica, Library Discovery, UNODC, OHCHR, National Human Rights Commission of Nigeria, the website of Nigeria’s National Drug Law Enforcement Agency (NDLEA), targeted Google searches, and local and international news sources.’ (Emphasis in original)

13. In response to further inquiries by the Respondent, the Diplomatic Post advised:

    The last instance for which Post is aware of someone being charged under Section 22/Decree 33 of the National Drug Law Enforcement Agency Act (1990) dates back to 2003. The National Drug Law Enforcement Agency has not sought to apply the law since this time and, in line with commitments made under international counter-narcotic agreements, is in favour of its repeal. Noting the law does not appear to have been applied in over 20 years, Post is unable to comment on if any persons specifically charged under it in the future would be routinely released on bail. However, Post notes that the percentage of persons in Nigerian correctional facilities currently awaiting trial is high. This indicates that, in general, bail is either not routinely offered, or able to be made, by a large number of persons charged with a crime in Nigeria.[60]

    [60] DFAT, Country Information Request Report, Nigeria: Country Information – Decree 33, Country of Origin Information Services Section (COISS), 22 January 2024 (item 13)

14. The applicant called Mr Osuji as a witness. Mr Osuji provided a report in which he opined that section 22 was still in force. He also gave evidence that he had personally witnessed mention of section 22 matters while in court.

15. Mr Osuji was admitted as a barrister in Nigeria in 2018. He is the founder and managing partner of a full-service law firm. Given that he has no more than 6 years post-admission experience, his career advancement is a credit to him, although his experience in criminal matters was limited to handling several cases pro bono over these years.

16. Mr Osuji said that it was while waiting in court that he became aware of matters ‘bordering on’ section 22 matters. He was adamant that he had heard of matters being ‘investigated’ under section 22. He had been unable to obtain any supporting documentation relating to specific prosecutions. He made inquiries of the prosecuting authorities but received no response.[61]

    [61] Transcript, 22 March 2023, 27-45.

17. Under cross-examination, he said that he was aware that section 22 matters were investigated.

    MR BARRINGTON: To be clear, Mr Osuji, are you saying that these are cases which are investigated or are you saying that these are cases which are investigated and prosecuted and brought to trial?---Yes, these are cases that the NDLEA investigate and then took some measure – not all. I’m not aware that all of them have been prosecuted, but I’m aware that cases have been investigated. And depending on the facts of the case, prosecution, the charge them without – against the defendants.

    You say that you’re aware that there are cases which have been prosecuted 15 and brought to trial?---Yes, yes.

    How are you aware of that?---I’m aware because when we are in courts, when we go to courts in Nigeria, we hear matters called. So before (indistinct words) court system in Nigeria, we’re made up of several, and then the matter, number 1, number 2, maybe a charge involving murder, maybe a charge involving drug trafficking, maybe a charge involving kidnapping. So by virtue of my position in courts as a lawyer, I hear and am aware of these cases.

    To be clear, you’ve never been involved in one of these cases on your own?---I’ve never actively participated as a defence counsel. The clients who we represent in court have not been charged with a drug trafficking offence, but we represent criminal matters for clients in Nigeria.

    You’ve said in your report that you attempted to contact lawyers who have represented people who may have been dealt with under section 22 but you were unsuccessful?---No. I – can you make reference to the specific part of the report you are reading?

    Sure. On your report at page – in answer to question 4?---Yes, please.

    Second paragraph there you say, ‘While specific details on the enforcement of section 22 against individuals to overseas drug convictions returning to Nigeria are not readily available, and several efforts to reach their legal team and appropriate contact persons have proved abortive’?---Yes.

    You’ve made attempts to contact people?---The – well, yes. What that’s in reference to was the legal team of the Nigerian Drug Law Enforcement Agency. Because from – yes, because from what you (indistinct) - - -

18. The respondent argues that the Tribunal should infer from this material that:

    … there is no realistic prospect of s 22 of the NDLEA Act being used against the applicant. The evidence from on the ground sources in Nigeria is that: (a) the law has not been enforced for over 20 years; (b) there is no intention to enforce the law.

19. The respondent submitted that the Tribunal has repeatedly relied upon DFAT’s information when concluding that there is no real risk of a person being prosecuted under section 22 of the NDLEA Act.[62] However, in none of the cases referred to was there evidence, from a credible source, that pointed to the fact that such ‘section 22 matters’ were routinely investigated, or subject to criminal prosecution.

    [62] See, for example, 2006126 (Refugee) [2020] AATA 3809, at [75] (Member Baker); HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634, at [105] (Senior Member Puplick); BHVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1467, at [116] (Member Bellamy); 1507135 (Refugee) [2017] AATA 276, at [71]-[76] (Member McCulloch).

20. The applicant also argued that whether or not section 22 was officially enforced, its mere existence on the books provided an opportunity for corrupt officials to extort returning offenders. The Respondent concedes that on the evidence there was some weight in this aspect, noting that the cable from the Post in 2014 states:

    Civil Society Organisation “Prisoners Rehabilitation and Welfare Action” has also confirmed that no prosecutions have taken place in recent years, though they caution that there are cases of the Law being used as a threat to extort money from suspects.

21. The Respondent suggest that at best, there is a small possibility of the applicant being extorted by corrupt officials in Nigeria.

    That prospect (not a guarantee) is an impediment upon return, but the payment of a bribe to a corrupt official is not an ongoing impediment to the applicant establishing himself and maintaining a basic living standard in Nigeria.

22. I conclude that in the event that the reviewable decision is affirmed, there is a small possibility that the applicant will be subject to criminal investigation upon return to Nigeria, and that this could provide the basis for a protection claim under the principle of non-refoulement. In my view the evidence falls well short of supporting a finding that such investigations or prosecutions are probable or likely.

23. Paragraph 9.1.1(3) provides that under such circumstances, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

24. Overall, the possibility that Australia’s non-refoulement obligations may be invoked by the possibility of removal to Nigeria provides some support for revoking the mandatory cancellation decision.

    OC2: EXTENT OF IMPEDIMENTS IF REMOVED

25. The Direction requires the Tribunal to consider the extent of any impediments that the applicant may face if removed from Australia to Nigeria, in establishing himself and maintaining basic living standards, considering his age and health, whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in Nigeria.

26. The applicant is 54 years old and suffers from type 2 diabetes, hypertension, hypercholesterolaemia, and gout.[63] He does not suffer from depression or mental health issues. His health requires management but cannot be described as fragile.[64]

    [63] RB, 370.

    [64] See Clinical Records, RB 374.

27. There are no relevant language or cultural factors. He lived in Nigeria until the age of 40 and managed a successful business importing clothing from China.

28. The applicant has family in Nigeria, consisting of two brothers, and a daughter from his first marriage, and her two children (his grandchildren).

29. The applicant and his daughter had 13 video contact sessions in the period 20 September 2020 to 28 February 2021.[65]

    [65] RB, 528.

30. He presently keeps in contact with her through telephone calls.[66] He did not think he could stay with her. She lived in a one-bedroom flat with her husband and two children. They had no space. The family was also struggling with unemployment.[67]

    [66] Transcript, 20 November 2023, 63.

    [67] Transcript, 20 November 2023, 65.

31. I accept that the applicant cannot expect to receive much support from his daughter upon his return given her circumstances. She lives in a small home and cannot accommodate him.

32. He has brothers in Nigeria. One suffers from epilepsy and the other has mental health problems.

33. The applicant gave evidence that his wife in Australia is Scottish, and that their mixed-race marriage may be an impediment to her relocation to Nigeria, even if she wished to go there with him. She did live with him and his parents briefly in Nigeria. She experienced some difficulty within the broader community. In oral evidence, he was asked whether his wife would return with him if he had to go back to Nigeria. He said that she would not.

    SENIOR MEMBER: And she is a different race?---Yes. … it’s not easy there, and for me to get – have an employment there to look after her there it would be very hard for me too. So I don't think it’s – that’s the reason why we came here. That’s the reason why I came out. That place is not good….she can't visit everywhere there … it will be hard for her just because of security purpose.

    Those are the reasons why she might be reluctant to go back, but do you think that she would want to go back with you at this point given where things are in your relationship?---She will like us to – to do it, to stay here. It’s more convenient for us here.

    Yes. I know that. But if you did have to go back do you think that she would go with you?---I don't think – I don't think so. Because of situation of things I don't think so. But I need to work it out with [her]. I need to – we will get back. We been a lot. We been through things. I need to work it out with … her, and I need to work.[68]

    [68] Transcript, 20 November 2023, 61-62.

34. If the applicant is removed to Nigeria, he and his wife are unlikely to have much contact in the future. It would no doubt be very difficult to move to Nigeria, considering her age, state of health, and given that her son and two grandchildren live in Australia. Even the possibility of meeting in countries other than Nigeria or Australia might be limited, by reason of his drug convictions.

35. The applicant may face a difficulty arising from Nigerian criminal law, should he be returned to Nigeria. As a person convicted in a foreign country of drug offences in circumstances that bring Nigeria into disrepute, he is liable to mandatory punishment of five years in prison in Nigeria and forfeiture of his assets. This matter has been discussed at length above.

1. At most, the respondent accepts that the fact that he may be liable to extortion is an impediment, although it is argued, somewhat surprisingly, that ‘the payment of a bribe to a corrupt official is not an ongoing impediment to the applicant establishing himself and maintaining a basic living standard in Nigeria.’

2. The Tribunal does not accept such a sanguine view about this possibility. Moreover, the psychological stress involved with such a possibility is not a trivial matter.

3. In any event, the respondent accepts that the extent of the impediments the applicant may face if removed to Nigeria weighs slightly in favour of revocation of the cancellation decision.[69]

   [69] RSFIC, [57].

4. I am satisfied that the impediments he may face if returned to Nigeria are likely to be substantial and that this weighs strongly in favour of revoking the mandatory consideration decision.

   OC3 AND 4: IMPACT ON VICTIM AND BUSINESS INTERESTS

5. No evidence was elicited on these matters which are not relevant to these proceedings.

   SYNTHESIS

6. The following considerations favour setting aside the reviewable decision:

   ·The strength, nature, and duration of ties to Australia (PC3)

   ·Best interests of minor children in Australia affected by the decision (PC4)  

   ·Legal consequences of decision under section 501 or 501CA (OC1)

   ·Extent of impediments if removed (OC2)

7. The following considerations favour affirming the decision:

   ·Protection of the Australian Community (PC1)

   ·Expectations of the Australian community (PC5)

8. The following considerations are either not relevant or neutral:

   ·Family violence committed by the non-citizen (PC2)

   ·Impact on victims (OC3)

   ·Impact on Australian business interests (OC4)

9. The Tribunal’s approach to its task of evaluation was the subject of a recent decision of the Federal Court of Australia: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL). The Full Court (Colvin, Stewart and Jackson JJ) allowed an appeal from a single judge upholding the Tribunal’s decision not to revoke the cancellation of a visa under subsection 501CA(4). One implication of CRNL is that the Tribunal performs its task erroneously by focussing on each consideration in isolation without properly weighing them against one another.[70]

   [70] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26]-[28].

10. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, at [13] the Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) stated:

    What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case.

11. In the Tribunal’s assessment, the following factors stand out as special features of this case.

12. First, the applicant has shown remorse and appears to have managed a degree of rehabilitation in prison. A realistic estimate of the risk of recidivism is that it is low to very low. His prison record is almost unblemished.

13. There is social value in allowing a rehabilitated individual to be re-integrated into the community. There is also penological value. The very structure of a sentence to involve a non-parole period reflects a desire to incentivise prisoners to obtain early release by good behaviour. The possibility of visa reinstatement serves a similar end.

14. Second, there is the issue of prosecution and imprisonment under Nigerian law for ‘bringing Nigeria into disrepute’ by committing drug offences in Australia. He faces considerable uncertainty by reason of this provision. As a returning expatriate convicted of drug offences, he may well be subject to extortion. This possibility is likely to create a significant element of psychological pressure that will almost certainly impede his reintegration into Nigerian society.

15. Third, he has very strong support from the local parish and especially Father Phillip who raised money for his defence. It may be reasonably inferred that this would not have happened unless he was well regarded within the parish and especially by his parish priest, who gave evidence in support, and when asked, responded that this measure of tangible financial support was unprecedented.

16. Are these reasons considered in isolation, or together, sufficient to justify the revocation of the mandatory decision? Should the Tribunal affirm the decision in order to deter other would-be drug importers or dealers?

17. General deterrence is not in itself a relevant consideration under the Direction.[71] These are administrative not criminal proceedings. It is nevertheless true that in applying the Direction, the Tribunal is required to consider, as a primary consideration, the protection of the Australian community. The deportation of those who import drugs, especially those who are members of cartels or criminal associations, sends a powerful message to those who might be tempted to engage in such serious offending. The removal from Australia of those non-citizens who import drugs, especially in commercial quantities, has the potential to reduce the inflow of drugs into the country and is therefore directly relevant to the protection of the Australian community.

    [71] ENT19 v Minister for Home Affairs [2021] FCAFC 217, per Katzmann and Wheelahan JJ., at [126]-[136];

    Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1337, per Rangiah J. at [65].

18. The Tribunal places little weight on the possibility of double jeopardy upon return to Nigeria, although the prospect of extortion is real. Nor could one predict with any confidence that his marriage will be put back together. In probability, it will remain broken as a casualty of his participation in the drug trade. In that case, his future contact with his step grandson and his children is by no means assured. However, his remorse, exemplary behaviour in prison and immigration detention, and rehabilitation, make a very strong claim. These qualities have attracted the meaningful and practical support of his local parish. This cannot be ignored.

    CONCLUSION

19. I am satisfied that despite the seriousness of his criminal offending, there is another reason for cancelling the mandatory revocation decision.

    DECISION

20. The decision dated 2 November 2022 not to revoke the mandatory cancellation of the applicant’s visa under subsection 501CA(4) of the Act is set aside, and in substitution, it is decided that the cancellation of the visa is revoked.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........[SGD]...............................................................

Associate

Dated: 22 April 2024

Date(s) of hearing:	20 and 21 November 2023, 11 January and 22 March 2024
Counsel for the Applicant:	Mr S. Stagliorio
Solicitors for the Applicant:	Mr M. Northam, Northam Lawyers
Counsel for the Respondent:	Mr J. Barrington
Solicitors for the Respondent:	Ms E. Warner Knight, Australian Government Solicitor