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

[2022] AATA 4444

ZPXP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4444 (21 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8184

Re:ZPXP  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:21 December 2022

Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 29 September 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation of his Bridging (Class WC) (Subclass 030) visa, and in substitution it is decided that the cancellation is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

MIGRATION  - visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 90 – protection of the Australian community – expectations of the Australian community –best interests of minor children - impediments to removal – links to the Australian community – decision set aside and substituted

Legislation

Migration Act 1958 (Cth) s 499, 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

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

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

21 December 2022

1. By application dated 6 October 2022, the applicant seeks review of a decision of a delegate of the Minister dated 29 September 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation of his Bridging (Class WC) (Subclass 030) visa (visa) under s 501(3A) of the Act.

   Background

2. The Respondent’s Statement of Facts, Issues and Contentions contained a helpful summary of the background of this matter, some of which is replicated below.

3. The applicant is a 39-year-old citizen of Nigeria who first arrived in Australia on 18 February 2016 (then aged 32) as the holder of a Higher Education Sector (Subclass 573) visa. With the exception of a brief return trip to Nigeria in October 2018, he has resided in Australia since this date.

4. On 5 August 2021, the Applicant applied for a Partner (subclass 820) visa sponsored by his current partner. He later became the holder of a Bridging (Class WC, subclass 030) visa on 8 September 2021 in association with this application

5. On 8 September 2021, the applicant was convicted in the Brisbane District Court of money laundering recklessly and sentenced to two years’ imprisonment, to be suspended for two years after serving six months.

6. On 22 September 2021, the applicant was notified that his visa had been cancelled under s 501(3A) of the Act on the basis that he had a substantial criminal record, as he had been sentenced to a term of imprisonment of more than 12 months, and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).

7. On 30 September 2021, the applicant requested revocation of the cancellation of his visa and provided submissions and evidence in support of his request.

8. On 29 September 2022, the delegate decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision. It is that decision that is now under review by the Tribunal.

   the Issues

9. It is not disputed by the parties that the applicant does not pass the character test as defined in s 501(6); and as such, the sole issue for determination by this Tribunal is whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act.

   Law & Direction 90

10. The relevant legislation and policy is outlined below.

11. Section 501CA(4) of the Act states:

    (4)  The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

12. On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.

13. Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-biding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)  Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

14. Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.

15. Section 8 of the Direction provides that the four primary considerations are:

    (a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

    (b)whether the conduct engaged in constituted family violence (Primary Consideration 2);

    (c)the best interests of minor children in Australia (Primary Consideration 3); and

    (d)expectations of the Australian community (Primary Consideration 4).

16. Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia;

    (ii)impact on Australian business interests.

    Evidence

    The evidence of the Applicant

17. The Applicant is a 39 year old citizen of Nigeria who arrived in Australia in 2016.

18. The Applicant is currently in a relationship with Ms F and the couple have a child together, currently aged around two. The Applicant commenced his relationship with Ms F in early 2020, and registered their relationship as a civil partnership in late 2020.

19. The Applicant was convicted in the Brisbane District Court on 8 September 2021 of ‘money laundering recklessly’.

20. He was sentenced to a term of imprisonment of two years, to be suspended after serving a term of six months imprisonment. When released from prison, the Applicant was taken into immigration detention and has been in immigration detention in Brisbane since.

21. When questioned about his offending, the Applicant accepted that he had transferred money at the request of ‘P’ (approximately $30,000) and had received or handled further amounts totalling$157,000 ‘from his ex-girlfriend’, Ms SM. He himself had received between $15,000 - $20,000 himself.

22. The Applicant said that he was not aware that the money had come from non-legitimate sources and that he had thought it was being dealt with primarily through his ex-partner’s account because P needed to receive the money in a manner that would not be visible to P’s then-partner.

23. The Applicant accepted that he had taken some of the money, and said that it had been used to assist his parents in Nigeria.

24. When asked about his family, the Applicant said his parents lived in in Owerri, Imo State, located in the south of Nigeria. He said his parents lived in a small flat and that if returned to Nigeria he could stay with them for a period and sleep on their couch.

25. The Applicant also had siblings in Germany and Canada. His brother, who lived in Germany, also financially assisted his parents in Nigeria.

26. The Applicant also had two siblings leaving in Nigeria, but said he would not be able to live with either of them. One sister had married and had her own family, and the other sister was living with “a friend”.

27. The Applicant gave evidence of his qualifications in ‘Bachelor of Education Economics’ from Abia State University Uturu, in Nigeria, but said he would find it very difficult to find employment in Nigeria due to the economic situation there, and also due to the fact that there was a lot of unemployment in Nigeria. The Applicant also completed two courses of a Masters’ degree in Public Administration at Griffith University, and has various other diplomas and qualifications in a range of areas, including in disability support services and automotive technology.

28. The Applicant accepted that he had applied for a protection visa in 2019 which had been refused on the basis that the application was invalid. He said he had not made any further application for a protection visa.

29. The Applicant gave evidence that he had, whilst at university, supported the Indigenous People of Biafra (‘IPOB’) political movement and that he had also attended rallies and events in support of the Biafran independence, both in Nigeria and in Australia.

30. When questioned, the Applicant said that his current de facto partner and child would not accompany him if he were to be returned to Nigeria and that they did not want to live in the country because of security concerns.

31. The Applicant was questioned about two incidences that occurred while he was in detention. The first involved a fight in a television room, which the Applicant said occurred by another detainee changed channels while he was watching a program. He said he asked the other detainee politely to turn his program back on, but said that he was attacked by the other party and forced to defend himself. He said that he had been the ones who had reported the incident to the authorities.

32. The second incident contained an accusation of having a bottle of homemade brew in his room. The Applicant denied this allegation, and also denied that he had used a chair as an offensive weapon, describing this allegation as ‘a joke’.

    The evidence of Ms F

33. Ms F affirmed her statement of 6 December 2022.

34. She said that she and the Applicant had commenced a relationship in early 2020, and started living together in late 2020. Their daughter was born in mid 2021, and the couple had lived together for approximately five months with the child.

35. Ms F said that the Applicant had made her aware of his offending, which she described as ‘money-laundering’, but thought it had involved paying utility bills on behalf of a third party. She was aware that it had involved his ex-partner. Ms F said that the Applicant was very remorseful of his crimes and the impact on the victims.

    Evidence of Mr BH

36. MR BH is a forensic psychologist. He affirmed his report of 21 November 2022. His report was based on two interviews with the Applicant, one which was face-to-face with the Applicant at the detention centre and one conducted by telephone.

37. Mr BH confirmed his report was based on Historical Clinical Risk – 20 (HCR-20) testing of risk, and that the applicant was a low-risk in relation to anger management and violence risk, and that there was no need for intervention:

    That is, he is assessed as a low risk of engagement in offending behaviour, with no identifiable needs for treatment or intervention that would further ameliorate the low risk.

38. Mr BH’s opinion was unlikely to be changed even if the Applicant was involved in a single violent altercation after his report. Mr BH referred in particular to the Applicant’s very limited criminal history, and said that the Applicant had been manipulated into his offending, which had also been based upon his naivete and trusting behaviour.

39. The Applicant had been diagnosed with anxiety and depression, for which Mr BH said he had been receiving treatment for while in prison, which continued while he was in detention.

40. Separation from his daughter was a major stress factor, along with fears of any possible return to Nigeria.

41. Mr BH stated that the Applicant would be adversely affected by any further stress factors, and this would affect his social capacity in particular.

42. In his report, Mr BH addresses that the delegate, in their decision, noted that the Applicant had not engaged in treatment for his offending. Mr BH states the following:

    In accordance with Risk, Need and Responsivity (RNR) framework principles, an evidence-based framework utilised across many countries and jurisdictions for offender rehabilitation practice, it can be counterproductive to offer criminogenic (factors directly related to offending) intervention for persons who are assessed as low risk and low need. Rather, it is more prudent to offer resources and intervention to high-risk offenders with criminogenic treatment needs, and of better benefit to direct lower risk offenders toward treatment pertaining to community integration and adjustment, such as vocational education and employment. It is noted that [the applicant] has however engaged in some sessions with psychologist [redacted] to address his offence pathway understanding and insight.

    Primary consideration A – Protection of the Australian Community

    Nature and seriousness of the conduct

43. Although the Applicant’s crime did not involve violence of any kind, it must be regarded as serious, firstly because the Applicant acted recklessly and without conducting any proper inquiries in circumstances where it would be expected that he would make inquiries as to where such a large sum of money had come from.

44. It was not a victimless crime ,and P had a history of internet scamming, although the Applicant said this was unknown to him at the time. The remarks of the sentencing judge are relevant:

    I do not deal with you on the basis that you are responsible for all of that because you were not the person who perpetrated the frauds upon her, but your dealing with the property has contributed at least to her ultimate position in being out of pocket.

    ..

    Notwithstanding that you were reckless, it is a serious offence to deal with such a significant amount of money in a way that results in none of that money being able to be recovered.

45. The Applicant received a financial benefit from the money-laundering activities.

46. It appears from the evidence that the Applicant may have some anger management issues, which he is working to address. I accept his evidence regarding the incidents within the detention centre, and in particular his evidence that he had not previously been involved in any form of physical altercation since he had become an adult.

47. Financial crime is rightly of serious concern to the Australian community. It is not victimless crime and often results in very significant psychological and financial harm to victims of internet scams and money laundering, which also go to undermining the integrity of the financial system.

48. I take into account that the Applicant does not have a history of offending and appears to have lived in the Australian community for nearly five years prior to his first criminal conviction.

49. The Applicant was reckless in that he failed to make any proper inquiries as to the where the money coming into his accounts had come from, but there is no evidence that he was knowingly involved in stealing in the money from P’s victims.

    Risk to the Australian community should the Applicant reoffend

50. I note that the Applicant, based on the evidence of Mr BH, is at a low risk of engaging in the offending conduct.

51. I also accept the evidence that the Applicant has, although in a somewhat limited way, engaged in with a forensic psychologist, Mr NS, to gain better insight into his offending, and that the Applicant has expressed remorse for his offending and the impact that it had on the victim.

52. I do not place much weight on the incidents that occurred while the Applicant was in detention.

53. Overall, I place lower to moderate weight on this consideration against revocation of the cancellation decision.

    Primary Consideration B – Family violence

54. There is nothing before the Tribunal to indicate that this consideration is relevant to this matter, and I find it has neutral weight.

    PRImary COnsideration C – Best interests of minor children

55. It is clearly in the best interests of the Applicant’s child, who is around 20 months old, to have an ongoing relationship with him. The evidence given by Ms F was that the Applicant did have a relationship with the child in the five months that they were living together, although the child was very young. She also gave evidence that she had visited the Applicant in prison and in immigration detention with the child on a weekly basis, and that she and the Applicant video-called daily. Ms F stated that the child recognised her father’s voice on the telephone, and that when they visited he interacts with her “like a normal dad” and that they played together.

56. Ms F was quite clear in her evidence that she wanted the child to have an ongoing relationship with the Applicant. The Applicant’s financial support for the child was also seen as important. Ms F noted that while she had some support from her parents in caring for the child, and could rely on them to watch the child for short periods, but the support is limited by her father’s health issues and her mother’s responsibilities in caring for him.

57. Although the Applicant may be able to remain in contact with the child if he were to return to Nigeria, I accept that such communication would be difficult, and that the contact is likely to be only on mobile phone due to internet connectivity issues in the south of Nigeria.

58. Overall, I place heavy weight on this consideration in favour of  revocation of the cancellation decision.

    Primary Consideration D – Expectations of the Australian Community

59. Direction 90 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.

1. There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.

2. In assessing the weight to be accorded to this consideration, I take into account that the Applicant has only been convicted of one offence, and that he was not himself directly involved in stealing money from the victims.

3. Overall, I find that this consideration has moderate weight against revocation of the cancellation decision

   Other considerations

   International non-refoulement obligations

4. The Applicant raised the issue of non-refoulement obligations, however there was very little evidence before the Tribunal on this matter. The Applicant said he was a supporter of IPOB and had attended rallies and protests as a student and later both in Nigeria and in Australia.

5. The relevant DFAT Country Information Report on Nigeria states:

   In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.

6. However, it does appear that the Applicant lived without incident in Nigeria until 2016, his parents and siblings still remain in Nigeria, and he visited Nigeria in 2018 also seemingly without incident.

7. There is simply insufficient evidence before the Tribunal for me to make a finding on whether Australia owes non-refoulement obligations to the Applicant. I note that, should the Applicant wish to, he is able to apply for a protection visa and have these non-refoulement obligations assessed.

8. I give this consideration neutral weight.

   Impediments to removal

9. The need for the Applicant to provide financially and emotionally for his wife and daughter is a significant impediment to his leaving Australia. The Applicant’s partner gave evidence as to her suffering mental health conditions which have been exacerbated by the absence of her partner. She and their child also need the Applicant’s financial support.

10. It is unlikely that the Applicant would be able to provide emotional or financial support at anything like the same level as he could in Australia if he were to be returned to Nigeria. I note that the Applicant has a solid employment history in Australia and in Nigeria, and that he intends to return to work in the disability support service area.

11. I accept the Applicant’s evidence that it may be difficult to find employment in Nigeria due to the economic situation in that country.

12. I also accept that the Applicant is unlikely to experience any cultural shock in being removed to Nigeria, as the Applicant has spent most of his life there, completed his schooling there, and has some employment history there.

13. I also accept Mr BH’s evidence that the prospect of removal from Australia is likely to exacerbate his anxiety and depression, and make it harder for him to function in a variety of ways, including socially and possibly in relation to his employment capacity.

14. There may also be some risk to the Applicant should he return to Nigeria, although there is not enough before the Tribunal to make any real finding on this matter.

15. I place moderate weight on this consideration in favour of revocation of the cancellation decision.

    Impact on victims

16. There is nothing before the Tribunal to indicate that this consideration is relevant to this matter, and I find it has neutral weight.

    Links to the Australian community

    Strength, nature and duration of ties

17. The Applicant came to Australia at 32 years old, and has lived here for the past six years.

18. The Applicant has a partner and a child, and I accept the evidence of Mr BH that the Applicant’s separation from his de facto partner and child is an important factor in his diagnosis of anxiety and depression. The Applicant would also appear to have a network of friends and extended family on his de facto partner’s side, in Australia.

19. He has stable accommodation, and has qualifications in disability support services and automotive technology, along with his university degree, which would enable him to work in Australia.

20. On the evidence, the Applicant’s siblings are scattered, with some in Nigeria, one in Canada and one in Germany. His most important connections are in Australia, apart from his parents, whom he and his siblings assist financially.

    Impact on Australian business

21. There is nothing before the Tribunal to indicate that this part of the consideration is relevant to this matter, and I find it has neutral weight.

22. Overall, I place moderate to heavy weight on this consideration in favour of revocation of the cancellation decision.

    Consideration

23. In this case, there was limited oral evidence and the Tribunal had to rely heavily on the written material before it. Although the Applicant’s offending was serious, I accept the evidence that he was manipulated by others and that he was not aware of how the money transferred to him had been obtained.

24. His criminal history is limited to the offences for which he was sentenced in the Brisbane District Court on 8 September 2021.

25. Mr BH assessed the Applicant’s risk of reoffending as low, and his current ties are strongly weighted to Australia. He has a supportive partner and has a child whose best interests are clearly served by the Applicant being a regular day-to-day presence in her life.

    Decision

26. The correct or preferable decision is to set aside the delegate’s decision dated 29 September 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation of his Bridging (Class WC) (Subclass 030) visa, and in substitution it is decided that the cancellation is revoked.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 21 December 2022

Date(s) of hearing:	12 & 13 December 2022
Solicitors for the Applicant:	Ms C. White, Fisher Dore Lawyers
Solicitors for the Respondent:	Ms E. Tattersall, Sparke Helmore Lawyers