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Eluchie and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4151 (18 December 2023)

Last Updated: 19 December 2023

Eluchie and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4151 (18 December 2023)

Division: GENERAL DIVISION

File Number: 2023/7191

Re: David Chukwuemeka Eluchie

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

REASONS FOR DECISION

Tribunal: Senior Member Dr M Evans-Bonner

Date: 18 December 2023

Place: Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 27 September 2023, is affirmed.

............[Sgd]............................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences related to receiving monies in his bank accounts from victims of romance scams – Applicant is a 29 year old citizen of Nigeria who arrived in Australia as a 22 year old student – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – strength, nature and duration of ties to Australia – no minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to Nigeria where Applicant voluntarily returned to Nigeria – impact on victims – Reviewable Decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F(2), 501G(1)

Migration Regulations 1994 (Cth) cl 866.411

CASES

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  [2021] AATA 1143 

TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 54

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, DFAT Country Information Report, Nigeria (3 December 2020)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 7(2), 7(3), 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(2), 9.1.2, 9.1.2(1), 9.1.2(2), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)

REASONS FOR DECISION


Senior Member Dr M Evans-Bonner


18 December 2023

BACKGROUND

  1. The Applicant is a 29-year-old man who was born in Nigeria. He arrived in Australia as the holder of a Student (Temporary) (class TU) Student (subclass 500) visa (Student Visa) on 21 February 2017 when he was 22 years old (G6/44; G39/344; R2/38-44).
  2. On 27 February 2018 the Applicant was fined $1500 each for two counts of “possession of stolen or unlawfully obtained property” (Stolen Property offences), committed on 20 November 2017 (R3/25).
  3. The Applicant married an Australian citizen, AK, on 19 December 2019 (G26/190).
  4. He lodged an application for a Subclass 820 Partner visa (Partner Visa) in January 2020 (G11/80).
  5. The Applicant’s Student Visa was cancelled on 21 February 2020.
  6. He was granted a Class WE Subclass 050 Bridging Visa E (Bridging Visa) on 2 June 2020 (G40/345) in connection with his Partner Visa application. It is this Bridging Visa that is the subject of this application.
  7. On 10 May 2022, the Applicant was sentenced in the Perth District Court for 25 counts of “In Western Australia, engaged directly or indirectly in a transaction that involved any money or other property that is the proceeds of an offence” (Receiving Proceeds of Crime offences). He was also sentenced for one count of “brought into, or whilst in Western Australia received, possessed, concealed, disposed of or dealt with any money or property” (Distributing Proceeds of Crime offence). He was sentenced to a total term of imprisonment of two years and eight months comprised of two-year concurrent sentences for 24 of the Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence, and a cumulative term of eight months’ imprisonment for one of the Receiving Proceeds of Crime offences.
  8. On 9 June 2022, the Applicant’s Bridging Visa was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G40/345-350).
  9. The cancellation of the Bridging Visa also resulted in the refusal of his Partner Visa application under s 501F(2) of the Migration Act.
  10. The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant, through his legal representative at that time, sought revocation of the Cancellation Decision in a request for revocation dated 15 June 2022 (G8/55; G9/56-57), together with a completed personal circumstances form (G10/58), submissions (G11/70-81) and supporting evidence (G12-G37).
  11. However, on 27 September 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/13). This is the Reviewable Decision in this application.
  12. The Reviewable Decision, and documents required to accompany it, were delivered to the Applicant in detention by hand in a letter dated 28 September 2023 (G3/10-11). The Applicant received the documents on the same day (G44/383). On 2 October 2023 the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2/4-9). His application was therefore lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
  13. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 28 September 2023, meaning that I must hand down a decision on or before 21 December 2023.
  14. On 20 September 2023, the Applicant requested voluntary removal from Australia (R2/46-47). He signed an Australian Border Force “Notice of intention to remove from Australia” form dated 8 November 2023 (R4) and was removed on 21 November 2023.

ISSUES

  1. The issues that I need to determine are:
    (a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

    (b) if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).

THE HEARING AND THE EVIDENCE

  1. This application was heard on 28 November 2023 by videoconference because the Applicant had voluntarily returned to Nigeria.
  2. My Associate contacted the Applicant prior to the hearing to check whether he was willing to proceed at the allocated hearing time due to the time difference in Nigeria being seven hours behind Western Australia. The Applicant confirmed that he was willing to do so.
  3. The Applicant was self-represented at the hearing. He confirmed at the beginning of the hearing that it was 3am in Nigeria but that he wanted to proceed with the hearing.
  4. The Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers.
  5. The Applicant gave evidence at the hearing. He did not call any witnesses.
  6. I admitted the following documents into evidence at the hearing:
  7. Prior to the hearing, the Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 30 October 2023 and then an Amended SFIC dated 24 November 2023.

LEGISLATIVE FRAMEWORK

Migration Act

  1. Subsection 501(3A) of the Migration Act provides that:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
  1. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

...

(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
  1. Subsection 501(6)(a) of the Migration Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or

(Original emphasis.)

  1. A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if: ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or ...

(Original emphasis.)

  1. Section 501CA of the Migration Act further provides, in part:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:
  1. a written notice that sets out the original decision; and
  2. particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

...

(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:

  1. that the person passes the character test (as defined by section 501); or
  2. that there is another reason why the original decision should be revoked.

(Original emphasis.)

Direction No 99

  1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or

(b) the exercise of those powers.

  1. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
  2. On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
  3. Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­ time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

  1. Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA”. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) 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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

  1. Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
  2. Specifically, paragraph 8 of Direction No 99 provides:
    In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

    (4) the best interests of minor children in Australia;

    (5) expectations of the Australian community.

  3. Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

  1. Guidance as to how a decision-maker is to apply the considerations in
    Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) Primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

DOES THE APPLICANT PASS THE CHARACTER TEST?

  1. The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
  2. The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the terms of imprisonment imposed by the Perth District Court on 10 May 2022 for the 25 Receiving Proceeds of Crime offences and the one Distributing Proceeds of Crime offence. The total term of imprisonment was two years and eight months. This total term was comprised of two-year concurrent sentences for 24 of the Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence, and a cumulative term of eight months’ imprisonment for one of the Receiving Proceeds of Crime offences.
  3. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS

Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)

  1. Paragraph 8.1(1) of Direction No 99 provides that:
(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.
  1. Paragraph 8.1(2) of Direction No 99 then provides:
(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.

Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)

  1. Paragraph 8.1.1(1) of Direction No 99 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
  1. violent and/or sexual crimes;
  2. crimes of a violent nature against women or children, regardless of the sentence imposed;
  3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
  1. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
  2. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
  3. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
  4. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
  1. with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

e) the cumulative effect of repeated offending;

f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

  1. The Applicant has appeared in Court to be sentenced on two occasions.
  2. On 27 February 2018, the Applicant was fined $1500 by the Perth Magistrates Court for each of the two Stolen Property offences. These offences were both committed on 20 November 2017.
  3. For one of these offences, the Applicant had agreed to receive funds into his bank account and provided his accomplice with his bank account details. On 20 November 2017 the Applicant checked his bank account and located a credit of $14,000 which had been obtained by his accomplice undertaking an email scam to induce a victim to transfer the funds into the account. The Applicant attended the bank and withdrew $13,000 cash for his accomplice and retained $1000 of the fraudulent funds and a cash payment from his accomplice (R3/27).
  4. For the other of these offences, the Applicant similarly agreed to receive funds into his bank account and provided his bank account details to an accomplice. On 20 November 2017 the Applicant checked his bank account and located a credit of $11,500 which had been transferred into his bank account by the victim who was a company unknown to the Applicant. Again, the funds had been fraudulently obtained by the Applicant’s accomplice undertaking an email scam to induce the victim to transfer the funds into the account. The Applicant advised his accomplice that the funds had arrived and was told to withdraw the funds as cash. The Applicant attended the bank in person and withdrew $10,000 cash. He met his accomplice shortly after and handed over the cash. The Applicant retained $1,500 and was given a cash payment by his accomplice (R3/28).
  5. When the bank contacted the Applicant to say they were closing his account due to suspected fraudulent transactions the Applicant told the bank that he knew the persons who transferred the funds so that his account would stay open, even though he did not know them. Nevertheless, the account was closed by the bank (R3/27-28).
  6. On 10 May 2022, the Applicant was sentenced in the Perth District Court for the 26 offences that formed the basis for the Cancellation Decision. These were the 25 Receiving Proceeds of Crime offences. He was also sentenced for the one count of the Distributing Proceeds of Crime offence. The offences were committed between 19 May 2018 and 24 September 2019.
  7. The offences involved the Applicant and an accomplice fraudulently obtaining money from innocent victims through romance scams. Each victim was tricked by the Applicant’s accomplice into transferring sums of money to a person whom they thought they were in a relationship with. The victims had been persuaded to transfer sums of money after being convinced that the person urgently needed financial assistance. The victims transferred monies into the Applicant’s bank account and into his former girlfriend’s bank account in amounts from $700 through to $30,000 (R3/39). As is explained below, the Applicant withdrew cash for his accomplice and retained a sum of money in payment for the use of his bank account. His girlfriend had also received $35,000 in total from fraudulent transfers. She transferred $11,000 into the Applicant’s bank account and withdrew $10,000 cash which the Applicant gave to his accomplice (R3/33-39; transcript/32, 35-36).
  8. The sentencing Judge provided a brief statement of the facts of the offences as follows (G6/41):
    Briefly stated, at the time of this offending, you were a university student whose only means of income was traced from part-time work as an aged person’s carer.

    Over the period 19 May 2018 to 24 September 2019, you permitted your bank accounts to be used for the deposits of sums of money into your bank accounts by persons apparently not known to you. Those sums were the proceeds of crime. You also either withdrew the funds, or permitted others to do so. Some sums of money were disbursed to another account in the name of you, and some sums were disbursed to other unknown entities.

    Between 19 May 2018 and 24 September 2019, you received $304,841.59 into your [bank name] and [bank name] bank accounts. ...

    On 28 November 2019, you were arrested. You participated in an interview with the police but made no admissions.

  9. Direction No 99 provides that certain categories of offences may be viewed as very serious, including “violent crimes” and “acts of family violence” (para 8.1.1(1)(a)(i) and (iii) of Direction No 99) and “serious” (para 8.1.1(1)(b) of Direction No 99). The Applicant has not committed any offences that fall within those categories. However, offending that does not fall within these categories can nevertheless be regarded as serious.
  10. In this regard, I note that on 10 May 2022 the sentencing Judge referred to “the gravity and seriousness” of the Applicant’s offending. The sentencing Judge further stated (G6/42):
    The seriousness of your offending is demonstrated by the following factors in my view. You were willingly involved in this criminal enterprise for financial gain. That is an aggravating factor.

    The seriousness of the offending is aggravated by the significant quantity of money, being over $300,000. The level of trust reposed in you is demonstrated by the fact that you were entrusted to take possession of significant sums of money and to forward them on as directed.

    ... you were charged with 26 separate offences. The repetition and duration of your offending occurred over a 16-month period, often more than twice a month.

    It demonstrates a high level of criminality and means that your offending cannot be characterised as an isolated lapse of judgment, nor as representative of naivety on your part. As I have said, you were an indispensable link in the operation in which you engaged.

  11. As well as the comments of the sentencing Judge suggesting that the offending was serious, the seriousness of the offending is reflected in the terms of imprisonment imposed. The Applicant was sentenced to a total term of two years and eight months’ imprisonment for the Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence. This comprised concurrent terms of two years, and a cumulative term of eight months. This is a lengthy term of imprisonment and reflects the seriousness of the offending. The Perth Magistrates Court imposed $1500 fines for each of the Stolen Property offences, which suggests they were of a less serious nature. I also note that these were the Applicant’s first offences which perhaps contributed to his receiving a fine rather than a sentence of imprisonment (para 8.1.1(1)(c) of Direction No 99).
  12. The Applicant’s Stolen Property offences were committed on 20 November 2017, approximately nine months after he arrived in Australia. He committed the 25 Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence between 19 May 2018 and 24 September 2019. Committing 28 offences in an approximate two-year time frame can be regarded as frequent offending. There is a slight increase in seriousness, as indicated by the prison sentence imposed by the Court on 10 May 2022, and the repeated nature of the offending (para 8.1.1(1)(d) of Direction No 99).
  13. The Applicant’s criminal history shows that he has appeared in Court for sentencing on two occasions and he has served a custodial sentence of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. I therefore find that there is likely to have been a slight cumulative effect of the Applicant’s offending (para 8.1.1(1)(e) of Direction No 99).
  14. I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of this before me.
  15. Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any such warnings.
  16. There is no evidence that the Applicant has committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
  17. The Applicant has committed numerous similar offences, there is a slight increase in seriousness and a cumulative effect. The offences themselves, which involve repeatedly and knowingly receiving money from victims of email scams, are serious, as reflected in the comments of the sentencing Judge and the sentences imposed. In summary, the nature and seriousness of the Applicant’s conduct, when viewed as a whole, falls within the serious category.
  18. I therefore find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)

  1. Paragraph 8.1.2(1) of Direction No 99 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.
  1. Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(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:

  1. information and evidence on the risk of the non­citizen re-offending; and
  2. 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).

...

Nature of the harm (para 8.1.2(2)(a) of Direction No 99)

  1. Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or to the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
  2. As I explained above, the Applicant received and distributed monies obtained from victims of romance scams. His conduct involved receiving and distributing the proceeds of those crimes.
  3. When sentencing the Applicant on 10 May 2022, the sentencing Judge cited Court of Appeal authorities which outlined how money laundering assists criminal organisations to legitimise the proceeds of crime (G6/47):
    Money laundering is vital to the functioning of organised criminal syndicates and the money-laundering is an important cog in the wheel of organised crime. ...

    ...

    ... The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities.

    The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. ...

  4. In TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 54 (TJQM) at [56] I described the harms of money laundering to include the following:
    ... money laundering assists organised crime syndicates to function because it effectively “cleans” money from the proceeds of crime and also enables its movement outside of Australia so that it cannot be detected by law enforcement. The ability to “clean” money so that it is untraceable perpetuates the cycle of crime by ensuring that crime does pay. Money laundering facilitates and encourages future criminal activity, including potentially “serious conduct that does cause direct and significant harm” to the community (McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [48] cited by Member Burford in Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2228 at [97]). Should the Applicant reoffend in a similar manner, the associated harms to members of the community are broad ranging and potentially very serious and could include physical, psychological, and financial harms.
  5. The Applicant was part of the final step in numerous romance scams. His assistance helped the ultimate objective of these scams to be achieved, namely receiving monies that were obtained by fraud from innocent victims. The broad ranging harms that I identified in bold in the passage from TJQM are applicable to this application if the Applicant was to reoffend in a similar manner. They include a range of psychological and financial harms to victims from less serious harms, through to very serious harms. Indeed, this type of offending often has a serious detrimental effect on the lives of victims.

Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)

  1. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to reside in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
  2. The pattern of the Applicant’s offending, and his repeated similar offending raises some concerns about a likelihood of reoffending.
  3. The Applicant’s first offences were committed on 20 November 2017, and he was sentenced on 27 February 2018. However, he started offending again, with similar but more serious offences, on 19 May 2018, less than three months after sentencing. This suggested to me that the Applicant lacked insight into his offending because he committed further offences within months of sentencing.
  4. The Applicant’s explanations about his offending also suggested to me that he lacked insight into his offending. He also attempted to minimise his offending.
  5. For example, with respect to the 2017 Stolen Property offences, the Applicant stated that he was manipulated by his accomplice (transcript/25):
    I was manipulated by a friend to get my bank account so I can receive some amount of money and I would get a percentage from it. I don’t know anything about where he got the money from. I just accepted the percentage and I used my bank account to receive the monies.
  6. The Applicant said that, at the time of this offending, he was suffering from financial issues and could not afford to pay for his tuition fees and housing (transcript/31). To be accepted to study in Australia, the Applicant had to demonstrate that he could fund his tuition and living costs for the duration of his studies (transcript/19). His first course started in February 2017 (R2/21) and in a statement certified in December 2016 he stated that “the tuition fees, accommodation and all other expenses ... are all well within my easy reach” (R2/23). However, the Applicant said that his father and sister were kidnapped in early 2018 and that his tuition fees were used to pay the kidnappers (transcript/31).
  7. He further stated that he did not know he was involved in any illegal activity (transcript/25-26):
    I met this friend in church and I was – had some financial issues, I need to pay for rent and have some to feed myself. I talk to him and he said he will help me, but if I could provide my bank account I will get a percentage from it. So I didn’t know much about that – that money is being gotten illegally. Because in Nigeria then you can just give your bank account to someone and it is just a normal common thing, and the person is like, ‘I just have moved your bank account, I will give you the money you requested for.’
  8. When asked why he told the bank that he knew the person transferring the funds the Applicant stated (transcript/27):
    ... the person I was receiving money for is just telling me what to say. That he needed people, that he was sending money to my bank account and I have to – I had to just play along, to be honest.
  9. With respect to the 2018 and 2019 Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence, the Applicant stated that he met someone online who promised to trade cryptocurrency for him. The Applicant sold some land in Nigeria he inherited from his grandparents and transferred the money from that sale to the person. When the Applicant requested his money back, the person asked the Applicant to “receive some money for him from his clients in Australia”. The Applicant said that “I reminded him of how I got in trouble the first time, and he assured me that, no, it’s his client and it’s legit because his client doesn’t know how to send money to Nigeria” (transcript/27-28). He further stated (transcript/28):
    ... he assured me the money was all legit from his client. I – I wasn’t even focused on the consequences, whether it would be illegal money or not. I just want to get my money back from him. I accepted later on it was getting out of hand, and getting too much. I said to him, ‘I can’t continue doing this’. He start threatening me and threatening to kidnap my family or do harm to my family. I was scared and I continued to send money to him. I even – it was too much, but that is exactly what happened, all because I was so stupid and selfish to just get my money back from him, and I got myself involved into the same thing again.
  10. The Applicant stated that he committed the offences (transcript/31):
    ... for my own selfish interest, just to make sure I recover my monies back. That was exactly what happened, and I was in a trap that if I don’t receive this money or remit it back to him, my family would be in danger and he will go and do harm to them. That was the reasons why I did all this.
  11. He further stated (transcript/31):
    I was just trying to get my money back from him. I didn’t gain anything.
  12. The sentencing Judge found that in late 2017, the Applicant fell victim to the scammers and lost $12,000. The sentencing Judge observed that the scammers were in touch with the Applicant which is how he got involved in the offending. The sentencing remarks also state that the Applicant’s lawyer had submitted that the Applicant felt pressured to participate due to threats by the scammers made against his family in Nigeria (G6/45). However, the Applicant disagreed with the sentencing Judge’s remark that he committed the Receiving Proceeds of Crime offences and the Distributing Proceeds of Crime offence for “financial gain” (G6/42).
  13. The Applicant’s evidence was at times contradictory. For example, in the excerpt above he showed an appreciation that his 2018 and 2019 offending was like his 2017 offending. However, at another point in the hearing he did not seem to appreciate that his 2017 offences were like those he committed in 2018 and 2019, describing them as “entirely different” (transcript/27). He had initially stated that his mother stopped working in 2018, but later changed his evidence to 2020 (transcript/15 and 28).
  14. Even if I accept that these inconsistencies can be explained or were unintentional mistakes, the Applicant’s insight into his offending is less than fulsome and he has not taken full responsibility for it. This raises the possibility that he may commit similar offences in the future.
  15. The Applicant was not recommended for treatment programs in prison because he was assessed as a “low risk/ need for General Offending” (G21/125).
  16. The Applicant has had good conduct in prison (G21/124). For example, his Individual Management Plan states that he resided under an earned privileges regime, was respectful to staff and “mixes appropriately with his fellow peers, posing no significant management issues or concerns”. In November 2022 he was employed in the trusted position of being a peer support worker (R3/65). There is no evidence of the Applicant being involved in any behavioural incidents when he was in immigration detention either.
  17. Despite not being assessed as requiring treatment programs, the Applicant participated in chaplaincy programs, “The Prodigal God” in March 2023, and “The Chosen” in July to October 2022 (R3/66). Despite not having any children he did a program called “Inside Out Dad” in March 2023 (R3/66). He stated that this was because he planned to start a family when he was released (transcript/23).
  18. In March and April 2022, the Applicant attended four sessions with a counsellor and three sessions with a psychologist whilst he was on bail. He stated that he does not want to hurt anyone and wants to make better decisions in the future and so he intends to continue with counselling and psychology sessions if he is able to live in the Australian community (G10/65-66; G20/114-115). If the Applicant can continue his counselling in the community, it may give him further insight into consequential thinking and his offending behaviour which may reduce the likelihood of his future reoffending.
  19. The Applicant was released on parole on 9 September 2023 but as his Visa was cancelled, he was taken into immigration detention. The Prisoners’ Review Board (PRB) decided that the Applicant’s release would present an acceptable risk to the safety of the community. The PRB’s reasons included that he had been assessed as a low risk of reoffending, he had a limited criminal history, the salutary impact of his first term of imprisonment, no previous history of violence, positive prison conduct, and confirmed suitable accommodation and support from his partner and peers.
  20. The PRB also imposed conditions on the Applicant which included not to use or be in possession of any illicit drug, not to leave the state without permission, attending programs and counselling as directed; engaging in employment, training or job seeking; and not to change address without prior approval. They also imposed requirements to advise the PRB if he intends to return to Australia (including his date of return and address) and to advise the PRB if he is successful in revoking the Cancellation Decision (A1). The PRB’s decision to release the Applicant suggests that the Applicant does impose some risk of reoffending, but that risk could be managed with supervision and conditions (including treatment) in the community.
  21. The Applicant’s sentence, and therefore his parole period, will expire on 9 January 2025, and so if I were to revoke the Cancellation Decision and he returns to Australia, he will have the benefit of a period of parole to assist in his rehabilitation and reintegration into the Australian community.
  22. The Applicant has now returned to Nigeria where he is fearful for his safety and worried about how he will support himself financially. He wants to come back to Australia to try to fix his relationship with his wife, AK, because they started to experience relationship issues when he was in prison and are currently on a break from each other. He also wants to complete his education in Australia. These factors are likely to provide the Applicant with the motivation not to reoffend. If the Applicant resumes activities such as studying, resumes working part-time in the aged care industry, and continues to attend church and Bible study (G10/65), those activities will make positive use of his time and may also provide him with the motivation not to reoffend.
  23. The Applicant has submitted numerous statements of support from his wife, parents-in-law, two brothers-in-law, a cousin, pastor of his church, former co-worker, and friends (G12-G19). They are generally aware of his offending, and yet they are willing to support him if he can return to the Australian community. Support from pro-social persons in the community may assist the Applicant not to reoffend. For clarity, as I have stated, the Applicant disclosed at the hearing that he is having issues in the relationship with his wife and that they are having a “break”. There is no recent evidence as to whether the support from his wife’s family has changed as a result, and so I have proceeded on the basis of the documentary evidence before me in which they state their support.
  24. In summary, the following factors are not protective and suggest some likelihood of reoffending:
  25. The following factors are protective and may reduce the likelihood of the Applicant reoffending, or suggest that there is a lesser likelihood of his reoffending:
  26. Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low likelihood of reoffending.
  27. After also considering the nature of the harm that could result if the Applicant reoffended which could potentially be very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.

Summary on para 8.1 of Direction No 99

  1. I have found that paragraph 8.1.1 weighed strongly, and paragraph 8.1.2 weighed moderately against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.

Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)

  1. Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not been found guilty of any family violence offences, nor is there other evidence that he has been involved in the perpetration of family violence. Consequently, this consideration is not relevant.

The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)

  1. Paragraph 8.3(1) of Direction No 99 provides that:
(1) Decision-makers must 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.
  1. Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.

(3) 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.

  1. Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
  1. The Applicant has an Australian citizen wife, AK. In a statutory declaration dated 16 August 2022 she stated that she met the Applicant in April 2018 when studying at university, and they commenced dating in June 2018. They were engaged in July 2019 and married in December 2019. AK stated that it would “devastate my emotional well-being” and that “I would be robbed of my future with him and having my own family” if the Applicant was returned to Nigeria. She said that she would not be able to live in Nigeria and that her immediate family members live in Australia. She stated that it is “too painful” to think about the Applicant being deported and that she did not know what she would do if he was deported (G12/84-85).
  2. However, at the hearing, the Applicant stated that he and his wife had been “having issues” which started when he was in prison because of financial issues caused by his not being able to provide for her whilst he was in prison. He stated that he and his wife were currently on “a break from each other”. He stated that he wanted to return to the Australian community so that he could “fix my relationship” (transcript/11). There is no more recent statement, and the Applicant did not arrange for his wife to give evidence.
  3. In a statutory declaration dated 18 August 2022 (G13/88-90), the Applicant’s father-in-law (AK’s father), PK, stated that the Applicant was like a son to him and was like an older brother to his two other sons, and that the Applicant is also close to his wife and daughters. He also referred to the negative impact an adverse decision would have on his daughter, AK, and stated that:
    The effects of [the Applicant’s] permanent absence in our family would be devastating to all of us. Most impacted would be my daughter, AK [the Applicant’s wife]. She would be absolutely heartbroken and lose out on her future plans if [the Applicant] is sent back home. No father wants to see their daughter in that position.
  4. The Applicant’s mother-in-law (AK’s mother) stated in a statutory declaration dated 18 August 2022 that she was “heartbroken” when she found out his visa had been cancelled and that if it remains cancelled, it “would hurt my family, especially my daughter, in ways I cannot even imagine” (G14/93). His sister-in-law also stated in a statutory declaration dated 9 August 2022 that the Applicant had been accepted into her family and into her friendship group and that she would be “crushed” and that it would “break” her family if the Applicant cannot get his visa back (G15/97-98). Similar sentiments were expressed by the Applicant’s brother-in-law in a statutory declaration dated 18 August 2022 (G16/100-101). He stated that it would have a “major effect” on his family if the Applicant was removed from Australia permanently because they consider him to be a member of the family and that it would be like losing a brother. He also stated that the family would be very worried about the Applicant’s safety in Nigeria (G16/101). The Applicant’s wife’s cousin also wrote a letter dated 3 August 2022 stating that “it will destroy AK and our family” if the Applicant was removed from Australia (G17/104). Another friend of AK’s referred to the emotional impact that being deported would have on AK and her family (G19/109).
  5. If the Applicant was permanently removed from Australia AK would be deprived of the opportunity to resume and work on her relationship with the Applicant. Although, I do not know what AK’s current views are and the views of her family members, I will proceed based on the views in the statutory declarations before me. I therefore find that AK may suffer emotional, practical, and possibly financial detriment if the Applicant cannot resume living in the Australian community because of my decision. Her family members, including his parents-in-law, brothers and sisters-in-law and cousin may also suffer some emotional detriment as they appear to have a close relationship with the Applicant and are concerned for the well-being of AK if the Applicant’s Bridging Visa remains cancelled.
  6. The Applicant also has support letters dated 2 August 2022 (G19/107) and 13 July 2022 (G19/111-113) from friends which are indicative of ties to the Australian community.
  7. The Applicant has lived in Australia for the last six years, since he was 22 years old.
  8. The Applicant has made some positive contributions to the Australian community through undertaking a placement in aged care in September 2017, working as a casual home care support worker between December 2018 and August 2021 (G25/154), including during the COVID-19 pandemic, being a member of the Nigeria Football Club and donating to charities (G10/67).
  9. However, less weight should be given to the time the Applicant has spent in the Australian community because he did not reside here during his formative years and started offending soon after arriving in Australia. He arrived on 21 February 2017 and his first offences, being the Stolen Property offences, were committed on 20 November 2017 (R3/25).
  10. In summary, the Applicant has a wife in Australia, AK, and is close to her family members in Australia. AK may suffer emotional, practical, and financial detriment if the Applicant’s Bridging Visa remained cancelled, and her other family members may suffer some emotional detriment. The Applicant has only resided in Australia for six years and did not spend his formative years in Australia. He has made some positive contributions but started offending within months of arriving in Australia.
  11. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.

Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)

  1. Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration. The Applicant has not identified any minor children whose interests would be affected by my decision, nor are the interests of any minor children identified in the materials before me. Consequently, this consideration is not relevant.

Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)

  1. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
  2. These expectations are set out in paragraph 8.5 of Direction No 99, which 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) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a) acts of family violence; or

b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] 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.

113. I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. Consequently, the expectation of the Australian community would be that the Applicant’s Bridging Visa should remain cancelled (para 8.5(1) of Direction No 99).

  1. As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]- [44]).
  2. I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  [2021] AATA 1143 , which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
    I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
  3. In Wightman, Deputy President Boyle stated, at [85]–[86]:

... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).

Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:

  1. It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
  2. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...

(Original emphasis and footnotes omitted.)

  1. Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant’s conduct does not fall within any of these categories of offences.
  2. Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
  3. Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
  4. The principle in paragraph 5.2(4) of Direction No 99 is, however, relevant. It provides that “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 non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.” The Applicant arrived in Australia as a 22-year-old adult approximately six years ago as the holder of a student visa. He was most recently the holder of the Bridging Visa, which is a limited stay visa. His first offences, being two counts of the Stolen Property offences, were committed on 20 November 2017, nine months after arriving in Australia. He can therefore be regarded as having participated in and contributed to the community for a relatively short period of time. Australia would have a low tolerance of his conduct in those circumstances.
  5. I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.

OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)

  1. As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.

Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)

  1. Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
  2. Paragraph 9.1(2) of Direction No 99 explains 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 ...”.
  3. There is no protection finding with respect to the Applicant. Paragraph 9.1.2, and its sub-paragraphs, apply where a non-citizen is not covered by a protection finding.
  4. However, sub-paragraph 9.1.2(1) of Direction No 99 confirms that:
    Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
  5. Further, the relevant part of sub-paragraph 9.1.2(2) of Direction No 99 explains:
    However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/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. ...
  6. On 20 September 2023, the Applicant requested voluntary removal from Australia (R2/46-47). He signed a NOI Form on 8 November 2023 (R4) and was removed on 21 November 2023. Consequently, the Applicant is not owed non-refoulement obligations because non-refoulement obligations are obligations not to forcibly return a person to a country where they may face harm. The Applicant is not facing forceable removal because he has voluntarily returned to Nigeria.
  7. The Applicant did not apply for a protection visa when he was in Australia. As he is now in Nigeria, he does not meet the requirements for the grant of a protection visa which requires the applicant to be onshore (cl 866.411 of the Migration Regulations 1994 (Cth)).
  8. Thus, the legal consequence of a non-revocation decision in this application is that the Applicant would remain offshore with no right of return to Australia. The Applicant could make an application offshore for another type of visa. However, as was explained in the NOI Form (R4), depending on the visa he applied for, there are criterion that set out restrictions and exclusion periods that may apply to any future visa applications made by the Applicant. The Applicant would need to apply for any applicable criterion to be waived, which is not impossible, but may be difficult given that his visa was cancelled under s 501. Indeed, the NOI Form states that if a person’s visa is cancelled under s 501, their “eligibility for visa grant [is] affected permanently” and if “special return criterion 5001” is attached to the visa for which he was to apply, he would not be eligible for the grant of another visa unless the Minister intervened personally to grant him one.
  9. Thus, although it may be difficult for the Applicant to obtain another visa, he can make an offshore visa application. Any difficulties he may have in doing so are due to the operation of Australia’s migration laws.
  10. I therefore find that the legal consequences of this decision should be given neutral weight.

Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)

  1. Paragraph 9.2(1) of Direction No 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non­ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;

b) whether there are substantial language or cultural barriers; and

  1. any social, medical and/or economic support available to them in that country.
  1. As I mentioned above, the Applicant is currently in Nigeria, having requested voluntary removal.
  2. The Applicant is 29 years of age. He has lived in Australia for the last six years after arriving as a 22-year-old adult on a student visa. He left Nigeria in 2015 when he was approximately 21 years old and went to Malaysia to study. He left Malaysia in December 2016, returning to Nigeria. In February 2017, he flew from Nigeria to Malaysia, and from Malaysia to Australia (transcript/16).
  3. As he departed Nigeria as an adult, it is not an unfamiliar country and there are unlikely to be any substantial language or cultural barriers.
  4. The Applicant also has immediate and extended family in Nigeria. His mother, father, four sisters and a brother are in Nigeria. So are his extended family including four aunts/ uncles, two nieces and nephews and three cousins, but he stated that “we don’t talk that much” (G10/63; transcript/13-14). The Applicant’s mother has provided him with substantial financial support in the past. For example, to enrol in an Australian University, the Applicant had to show that he could cover the cost of two courses that he enrolled in, plus his living expenses for the period of his study, at a cost of over $100,000 for his tuition fees alone (transcript/19-20; R2/21-22). The Applicant first stated at the hearing that his mother was a school principal but stopped working in 2020, but later changed his evidence to 2018 (transcript/15 and 28-29). He also stated that his father was unwell and not working and that his three sisters in Nigeria were not working. He has another sister living in Japan and stated that his family in Nigeria were being supported by his sister’s husband in Japan. I was not persuaded as to the veracity of the Applicant’s evidence about all his family members in Nigeria not working, especially given his changed evidence about the year his mother stopped working, which appeared to me to be an attempt to claim he offended due to being under financial pressure. It is more likely that he will receive some financial and social support from his parents, given that they have provided him with substantial funding to cover his tuition and living expenses in the past.
  5. The Applicant does not appear to have any physical health issues that would be significant impediments. His prison medical records show that he has a lipoma on the wall of his abdomen which bothered him when he worked out and when he lay on his front. The records state the Applicant wanted to have it removed and under the heading “plan” the records state, “refer to surgeons to discuss removal” (R3/73). A record dated 29 June 2023 stated that he had some back pain 10 days after a gym session, but this was diagnosed as a mechanical injury, and he was given information on back care and management (R3/70).
  6. The Applicant stated that he has “depression and anxiety” in his personal circumstances form (G10/68). There are references in the sentencing remarks to the Applicant having a mental health treatment plan in March and April of 2022 (G6/43). A letter from a clinical psychologist dated 19 April 2022 states that the Applicant has been attending their clinic further to a mental health treatment plan prepared by his general practitioner and that he has attended three sessions. The letter states that “[c]linical interview and assessment suggest that [the Applicant] has been experiencing depression, anxiety and stress since the allegation of his offending conduct ...” (G20/115). In his personal circumstances form he stated that when he was on bail, he attended four sessions with a counsellor and three sessions with a psychologist which helped him “gain further insight into his actions and himself” (G10/65). The Applicant’s prison medical records dated 23 April 2023 (R3/73-74) recorded the Applicant stating that “he feels depressed”. They state that he started taking Lexapro in April 2023, but a record dated 29 June 2023 stated that he “recently ceased” taking it and that “he is well and does not need meds any further” (R3/70).
  7. The Applicant claimed that his mental health will be affected in Nigeria because he will have “no completed education, no work, no stable home, no financial support, and poor healthcare – all which would impact my mental state” (G10/68). He stated that he “will move into a spiral of depression” if he returns to Nigeria (G10/64). I accept that is a possibility because his prison medical records state that he feels depressed in association with possible deportation, his wife rarely answering the phone in the last couple of months and that the Applicant was having trouble coping (R3/74).
  8. The DFAT Country Information Report, Nigeria (3 December 2020) (DFAT Report) at [2.29] states that “Nigeria has a limited capacity to provide formal mental health services to its citizens”. I accept that the Applicant may have difficulty accessing mental health services in Nigeria if he needs them.
  9. The Applicant has made numerous other concerns about returning to Nigeria. He has claimed that there is “ongoing political war and people are being killed every day”, that “there are high rates of crime, terrorist attacks and kidnappings occur frequently”, that his family had been displaced from their home due to threat of kidnappers and political instability and that this had impacted their livelihood (G10/68-69).
  10. The DFAT Report confirms that:
  11. I accept the findings of the DFAT Report, including the high rates of violence, social unrest and high rates of unemployment which may make it difficult for the Applicant to find employment, however, those are issues that other citizens of Nigeria also face.
  12. The Applicant also stated that he may face discrimination in Nigeria because he is a Christian. The DFAT Report states that “Nigerians predominantly practice Islam and Christianity, with 51.6 per cent of the population identified as Muslim (majority Sunni) and 46.9 per cent identified as Christian” [2.9]. The DFAT Report further states that “both Christian and Muslim Groups have reported cases in which some state and local government laws have discriminated against them, including by limiting their rights to freedom of expression and assembly and in obtaining government employment” [3.19]. He also referred to Christians being killed in his region (transcript/50). The DFAT Report refers to prior “attacks against both Christian and Muslim religious communities and institutions” [3.20]. However, he previously attended church weekly in Nigeria and there is no evidence of any harm or discrimination as a result (transcript/50). The sentencing remarks of 10 May 2022 state that the Applicant “grew up in a home that practised and held strong Christian beliefs” (R2/57). However, there is no evidence that the Applicant’s family faced any harm or discrimination due to their religion, with both parents previously being employed, including his mother previously being a high school principal.
  13. The Applicant is also likely to face some emotional hardship because he wants to stay in Australia to complete his studies and to try to repair his relationship with his Australian wife.
  14. Overall, I find that there are some impediments to the Applicant being able to establish himself and to maintain basic living standards in Nigeria. However, these impediments are like the issues faced by other citizens of Nigeria. Therefore, I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.

Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)

  1. Paragraph 9.3(1) of Direction No 99 provides that:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
  1. There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on any victims of any of the Applicant’s offences.
  2. Consequently, I give this other consideration neutral weight.

Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)

  1. Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
  1. This consideration does not arise on the material before me and is therefore not relevant.

THE WEIGHING EXERCISE

  1. The Applicant does not pass the character test under s 501 of the Migration Act.
  2. I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
  3. For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
  4. I made the following findings with respect to the other considerations that were relevant. These were:
  5. I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above is appropriate.
  6. Although primary considerations are generally to be given greater weight, they are not hierarchical and other considerations can outweigh primary considerations (para 7(2) and (3) of Direction No 99).
  7. However, on this occasion I find that the primary and other considerations that weighed against revocation of the Cancellation Decision, outweighed those in favour of revocation and were determinative in the balancing exercise. That is, the protection of the Australian community primary consideration which weighed moderately to strongly and the expectations of the Australian community primary consideration, which weighed strongly, outweighed the primary and other considerations that weighed in favour of revocation of the Cancellation Decision. These were the primary consideration of the strength, nature, and duration of the Applicant’s ties to Australia which weighed moderately, and the other consideration of the extent of impediments if removed which weighed slightly in favour of revocation of the Cancellation Decision.
  8. In summary, I am not satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.

DECISION

  1. The Reviewable Decision, being the decision of a delegate of the Respondent dated 27 September 2023, is affirmed.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..............[Sgd]..........................................
Associate

Dated: 18 December 2023

Date of hearing:
28 November 2023
Representative for the Applicant:
Self-represented

Representative for the Respondent:

Ms E Tattersall, Sparke Helmore Lawyers

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