TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 22
•17 January 2023
TJHG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 22 (17 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9058
Re:TJHG
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President B W Rayment OAM KC
Date:17 January 2023
Place:Sydney
The decision under review is affirmed.
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Deputy President B W Rayment OAM KC
Catchwords
MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke mandatory cancellation – importation of commercial quantities of drugs – availability of diabetes medication in Nigeria – limited contact with family in Australia – decision under review affirmed
Legislation
Migration Act1958 (Cth)
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 90 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
17 January 2023
This review concerns an applicant convicted of serious offences, who was taken into detention immediately following his release on parole after six years in prison. He hails from Nigeria, is married to a lady in this country, who has a son and two grandchildren here. The two step-grandchildren have had minimal contact with the applicant.
Because of the continuing presence of the applicant’s wife in this country I have decided to give the applicant a pseudonym.
Direction 90 sets out a series of mandatory considerations for a decision-maker concerned with the merits of the question whether the mandatory cancellation of his visa should be revoked. The visa granted to him in 2011 was a Class BC Subclass 100 Spouse visa which entitled the applicant to permanent residence.
The offending of the applicant occurred over a five to six month period beginning in October 2013 and concluding in April 2014. He was charged with, and pleaded guilty to, a number of offences under the law of New South Wales and of the Commonwealth. The offences related to the importation of commercial quantities of border-controlled drugs having a street value of several million dollars. The drugs included methamphetamine, also known as crystal meth and ice, a highly addictive drug often associated with criminal conduct among the addicted.
The applicant used an alias with false identity documents and exhibited a willingness to be involved with the importations, both as consignee and person involved in money laundering activities, and as the seller of drugs including methamphetamine, heroin and cocaine, albeit that the sales proved at his trial were, unknown to him, made to undercover police officers.
The applicant was found to possess some $60,000 in cash, scales for drug measurement which included heroin residues, and provided free samples of heroin and methamphetamine to his purported purchasers. The drugs imported were secreted within other products such as handbags and machinery.
The applicant was charged with State offences and Commonwealth offences, and pleaded guilty. The State offences were dealt with by way of aggregate sentences, but the Commonwealth offences were dealt with by way of successive and accumulated sentences.
The applicant was not, prior to his imprisonment, convicted of any offences and kept his criminal conduct from his wife, whom he had married in Nigeria and with whom he came to Australia. He has not cohabited with his wife since 2014, because of his imprisonment and detention. The applicant expressed hope that she would have him back if he is released, but the wife did not give evidence before the Tribunal and told a corrections officer that she did not intend to have him back.
The terms of Direction 90 are published and it is not necessary to repeat its terms in these reasons. In short, the Direction binds the Tribunal by s 499 of the Migration Act 1958 (‘the Act’) to take into account a (non-exhaustive) list of considerations specified in the Direction, if relevant to the exercise of discretion under the Act. It sets out certain objectives to guide decision-makers, and principles to provide a framework within which they should approach their task. Among the mandatory considerations, the first mentioned is the protection of the Australian community, a matter requiring consideration of the nature and seriousness of the criminal offending and the risk to the community should the non-citizen commit further offences or engage in other serious conduct.
In this case the sentence imposes by the court becomes relevant. The sentence of the District Court Judge, Judge Hock, after a discount for a plea of guilty and allowance for other matters, including the fact that the applicant had no prior convictions, was a sentence of 11 years’ imprisonment, with a non-parole period of six years and six months. The Commonwealth Attorney-General did not consent to the applicant being released on parole at the expiration of the non-parole period fixed by the learned Judge and he was not released on parole for a further year, which expired in September 2022, when he was taken into detention.
The sentence fixed by the Judge and the convictions themselves bind decision-makers and confirm to me what is otherwise apparent, that the offending was extremely serious. The explanation proffered by the applicant to the court was that he required money for reasons connected to the funeral of his late father in Nigeria, an explanation which the court did not accept. Some of the sales by him took place after the father’s funeral.
The sentencing court took into account three similar matters included in a document tendered at the time of sentencing.
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.
The applicant expressed remorse for what he has done. I regard the nature of his misconduct as among the most serious I have seen in my time on the Tribunal, now extending beyond five years. It was attended by a callous disregard for Australian citizens when it occurred and a plea by the applicant for a “second chance” rings hollow in my opinion.
Among the other relevant mandatory considerations are the best interests of the minor step-grandchildren of the applicant, the expectations of the Australian community, the extent of impediments if removed and links to the Australian community. I will discuss those in turn.
The interests of minors: the step-grandchildren have never lived with the applicant, and I have not heard evidence from their parents. Only the elder of those grandchildren has met the applicant during a visit to him in prison, and the other was born later. He has no contact with the father of the grandchildren. His last contact with his wife was in October last year before he was taken into Villawood. His future contact, if any, with his step-grandchildren would depend on whether he is released from detention and on how he relates in the future to his wife. There has been a degree of contact with the applicant’s wife since his imprisonment which suggests a degree of affection between them on her part. If he were released and if relations are restored with his wife, then further contact with the step-grandchildren is likely. At the present time, the minors in Australia are not shown to be likely to have meaningful relations with the applicant.
By contrast, if the applicant were returned to Nigeria one expects that he will contact his (Nigerian) daughter and her children, and there is evidence of his affection for his daughter and his two surviving younger siblings in Nigeria.
The (deemed) expectations of the Australian community do not favour the revocation of the cancellation of the applicant’s visa, because of his offending history.
The question of impediments if removed is the consideration which ought next to be mentioned. The applicant has type 2 diabetes (treated with metformin) and other medical conditions including high cholesterol and elevated blood pressure. His sister died as a result of diabetes in Nigeria while the applicant was imprisoned in New South Wales and the applicant clearly faces risks in that respect if he is returned to Nigeria.
Clearly the applicant would find necessary treatment for all of his conditions harder to obtain in Nigeria than would be the case in Australia. The DFAT country report for Nigeria states that health care is provided by the public and private sectors, with the private sector providing around 60 per cent of health service delivery while owning only 30 per cent of health facilities. That suggests that the applicant would have to pay funds to private doctors and pharmacies to obtain supplies of medicines.
The UK Home Office report mainly quotes published sources within Nigeria, including a magazine report stating that a diabetic bought insulin twice a month at a cost of the equivalent of some $12 AUD. That involves no doubt imported medication.
There is a recent publication dated April 2022 of the European Union Agency for Asylum which states that poverty has been identified as one of the major factors that impacts on an individual’s willingness to seek health care. It states that over 40% of the population lives below the poverty line. As to medication available privately, it lists prices for metformin at a cost of $11.7 USD for 100 tablets, and also insulin prices.
It may be that the applicant’s prospects of earning income will largely determine whether he will have a reliable source of medication which he needs. He stated that he has some $5,000 presently available to him.
The applicant is intelligent and his history indicates industrious employment in the past.
He previously had a business in Nigeria importing clothing from China and there is reason to expect him to be able to support himself and his immediate family if he is returned to Nigeria.
As to ties to the Australian community, the witnesses called in the case include a Catholic priest who saw him at Church and has visited him in prison and in detention. He has offered him support if he is returned to the community. He has had good interactions with the applicant and has located accommodation for him. The applicant also relied on the evidence of a friend who met him in connection with a community resource centre ten years ago and which she said is committed to provide a support network to him if he is released into the community. He was at that time a disability support worker as was the friend, who now lives in Canberra. As a volunteer, he assisted with the work of the community resource centre.
The applicant’s wife seems on the material before the Tribunal to maintain a degree of affection for him, no doubt with the qualification that he kept his criminal behaviour from her. Their future, if he is released, has some prospect of the relationship being rekindled, which he wishes to do. The wife stated to a corrections officer that she does not intend to resume cohabitation with the applicant.
There was no domestic violence and there is no case made that protection obligations are owed in respect of the applicant.
Balancing the various matters to which I have referred, and especially in the light of his criminal offending, in my opinion, the correct or preferable exercise of discretion is that the reviewable decision should be affirmed, with the consequence that the applicant will be returned to Nigeria.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC
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Associate
Dated: 17 January 2023
Date(s) of hearing: 9 & 10 January 2023 Applicant: In person Solicitors for the Respondent: Ms E Warner Knight, Australian Government Solicitor
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