Obele and Minister for Immigration and Citizenship [2010] AATA 58 (29 January 2010)

Last Updated: 29 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 58

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5727

GENERAL ADMINISTRATIVE DIVISION )

Re Anthony Obele

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Ms JL Redfern, Senior Member

Date 29 January 2010

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Obele’s visa should not be cancelled.

..................[sgd]..................
Mr RP Handley
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation - character test - substantial criminal record - whether tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister’s direction issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied – primary considerations – seriousness and nature of the relevant conduct - risk that the conduct may be repeated - other considerations – family ties, the nature and extent of any relationships with the Australian community – hardship likely to be experienced - level of education – evidence of rehabilitation and prospects of reintegration into the community – expectation of the Australian community - decision under review set aside

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RELEVANT ACTS:

Migration Act 1958 (Cth): ss 499, 501TheAct">501

Customs Act 1901 (Cth)

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CITATIONS

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197

Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

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OTHER AUTHORITIES

Direction [no. 41] – Visa Refusal and Cancellation under section 501

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REASONS FOR DECISION

29 January 2010	Mr RP Handley, Deputy President Ms JL Redfern, Senior Member
Basic facts

1. Mr Obele has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel Mr Obele’s visa on the ground that he did not pass the ‘character test’ because he has a substantial criminal record. Mr Obele is currently in prison but will be eligible for release on parole on 13 February 2010.

BACKGROUND

2. Mr Obele was born in Nigeria in 1973 and is aged 36. He arrived in Australia on 28 October 2002 on a Class BN Subclass 136 (Skilled-Independent) visa (entitling him to permanent residence), with his then wife, Nkemdirim Obele, who was the primary visa applicant. Mr Obele has no prior criminal history. He has not left Australia since arriving.
3. On 14 August 2003, Mr Obele was arrested and charged in relation to an importation of cocaine. He subsequently pleaded guilty to two counts of importing into Australia not less than the trafficable quantity of cocaine and one count of attempting to possess a prohibited import, namely cocaine, being not less than the trafficable quantity. The three packages involved in the offences contained, respectively, 684.6 grams, 335.9 grams and 233.1 grams of pure cocaine. The maximum penalty for each offence under the Customs Act 1901 (Cth) is a fine not exceeding $500,000 or imprisonment for 25 years or both.
4. On 25 June 2004, he was sentenced to eight years imprisonment in respect of each offence, commencing in respect of the first offence on 14 August 2003, in respect of the second offence on 14 August 2004, and in respect of the third offence on 14 August 2005, a total term of imprisonment of 10 years, with a single non-parole period of six and a half years expiring on 13 February 2010. Mr Obele provided the Tribunal with a copy of the order for his release on parole on 13 February 2010.
5. On 15 September 2008, the Department of Immigration and Citizenship (‘the Department’) notified Mr Obele that consideration was being given to the cancellation of his visa and inviting his submissions in response. Goz Chambers Lawyers made submissions on his behalf on 30 October 2008. Mr Obele made further submissions in October 2008 and August 2009. On 17 November 2009, a delegate of the Minister found Mr Obele failed the character test and exercised his discretion in cancelling Mr Obele’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). On 3 December 2009, Mr Obele applied to the Tribunal for a review of this decision.

RELEVANT LAW AND POLICY

6. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
7. On 25 June 2004, Mr Obele was sentenced to terms of imprisonment exceeding 12 months. Thus, he does not pass the character test.
8. It was therefore open to the Minister to cancel Mr Obele’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
9. The primary considerations in Direction No 41 are set out in paragraph 10(1):
   10. The primary considerations
       • (1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
         • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
         • (b) whether the person was a minor when they began living in Australia;
         • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
         • (d) relevant international obligations, including but not limited to:
           • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
           • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
             
10. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of other considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(1), they should be given less weight than the primary considerations. Those other considerations are discussed below.

PRIMARY CONSIDERATIONS

11. The relevant primary considerations in Mr Obele’s case are the protection of the Australian community and the length of time he has been ordinarily resident in Australia.

THE PROTECTION OF THE AUSTRALIAN COMMUNITY

12. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
13. With regard to the seriousness of Mr Obele’s conduct, the Tribunal notes that in paragraph 10.1.1(2)(f) “the production, possession, importation or trafficking of trafficable quantities of illicit drugs” are listed as examples of offences and conduct that are considered serious. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
14. In her sentencing remarks, Judge Hock, of the District Court of NSW, said that the “three counts in the indictment encompass a relatively short, but extremely grave episode of criminality”, for which no other sentence other than imprisonment was appropriate. Her Honour noted that Mr Obele’s parents in Nigeria were school teachers and he was the youngest of their five children. He left school at the age of 19 and ran a grocery store from 1996 to 2002 when he migrated to Australia with his wife. They settled in Melbourne where his wife undertook nursing training. He and his wife subsequently separated and Mr Obele moved to Sydney in February 2003. Mr Obele has worked as a cleaner and forklift driver, and ran his own cleaning business in Sydney from May to August 2003 in which he encountered financial difficulties that, he said, led to his being involved in the offences.
15. The Tribunal notes the eight-year sentences imposed. These appear to be mid-range in terms of the maximum sentence available. Mr Obele referred to discussions between his solicitor and the prosecution over the charges and plea, noting that he knew nothing of the second and third parcels with which he was charged. He said he believed the sentences given were intended as a general deterrent and were harsh, but that he did not have the money to lodge an appeal. Despite Mr Obele’s concern about the process that led to his convictions, the Tribunal may not go behind those convictions. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197, at [40], the Full Federal Court said:

... [I]t is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

16. In the Tribunal’s view, the criminal conduct involved in the three offences was very serious. However, Mr Obele has no prior criminal history and we note, as Judge Hock recognised, that this conduct was in relation to the one episode. This occurred at a time when he was vulnerable because his newly established cleaning business was in financial difficulty, he was working in Sydney away from the support of Ms Obele and had not confided in her about his problems. In their submission to the Department dated 30 October 2008, Goz Chambers lawyers noted that Mr Obele “had limited knowledge of English language business idea [sic] and ethics in Australia” and that “as a result he could not secure enough business to support himself financially”. Mr and Ms Obele both told the Tribunal about the difficulties they experienced when they first came to Australia and, in particular, the pressure on Mr Obele to support Ms Obele financially, which was a strong part of Nigerian culture. This is a relevant factor to consider under paragraph 10.1.1(4). Nevertheless, as Mr Obele acknowledged, the difficulty he was in does not in any way excuse his misconduct.
17. Apart from taking into account the seriousness of the relevant conduct, the Tribunal must also consider the risk that the conduct may be repeated. As noted, Mr Obele has no other criminal history. Evidence of any rehabilitation or prospect of rehabilitation and evidence that the person has breached judicial orders must be considered. Judge Hock said there appeared to be “some prospects of reconciliation” with his wife, who had provided a statement in support of him, and Her Honour assessed “his prospects for rehabilitation as reasonable”. She considered his guilty pleas reflected “a degree of remorse, an acceptance of responsibility and a willingness to facilitate the course of justice” that she took into account in determining the appropriate sentence.
18. Renee Covington, a Probation and Parole Officer at Bathurst Correctional Centre where Mr Obele has been in custody since September 2005, prepared an Immigration Report in respect of Mr Obele dated 3 October 2008. Ms Covington listed the courses that Mr Obele has successfully completed while he has been in custody noting that he is currently enrolled in a full-time degree program at the University of Southern Queensland. Her assessment was as follows:

During his incarceration, he has received excellent reports and is regarded as a ‘model’ inmate. Mr Obele is making concerted and consistent efforts to improve his language skills and is successfully completing a Bachelor of Arts, majoring in English Literature, History and Anthropology.
In summary Mr Obele has a positive attitude towards his rehabilitation and is proactively seeking to improve his employment prospects pending his release. If Mr Obele were in a position to be released into the community under the supervision of parole, it would appear that he has good prospects for successful reintegration into the community.

19. The Tribunal was impressed by the genuineness of Mr Obele’s presentation at the hearing, and his lack of embellishment. He said he is “very ashamed of his crime” and expressed his remorse. He did not know what was in the parcel he agreed to receive but he knew what he was doing was wrong. While in prison, he has lived with people with drug problems. He knows how drugs affect people: “it is a sickness” and he does not want to associate with people who promote drugs. He expressed his sorrow that he was involved in drug related crime.
20. Mr Obele said that while in prison, he has tried to make himself a better person. He has undertaken courses since he was first imprisoned, completing the first course in July 2005. Mr Obele told the Tribunal that he has undertaken these courses because he wants to do something he is proud of. It is has been very hard to undertake the degree program while in prison but he has now finished 20 units and has only four more to complete his degree. He has also completed some vocational courses, for example, a WorkCover NSW ‘OHS General Induction for Construction Work in NSW’ and a TAFE course in ‘Bonded Asbestos Removal (Construction)’. With his business experience, he hopes to get a job in the construction industry if he is released into the community.
21. Both Mr Obele and his former wife, Ms Obele, said they hope to be reunited if he is released into the community. As we discuss more fully below, it was clear from the evidence they gave at the hearing that they have maintained a strong emotional attachment. Ms Obele impressed the Tribunal as a strong person who has worked very hard to qualify as a registered nurse in Australia and who is currently undertaking further postgraduate training in mental health while working in Canberra, having been awarded a postgraduate scholarship. They plan to live together in Queanbeyan, NSW, to enable her to continue working in Canberra. The Tribunal notes that her situation is very different from what it was in the period after their first arrival in Australia, and it would appear that she is now in a position to provide the emotional and financial support for Mr Obele that he is likely to need initially on his release from prison.
22. Mr Johnson submitted that there is a risk of Mr Obele reoffending because his motivation for being involved in criminal activity was financial. Such a motivation could arise in future if he again finds himself in financial difficulties. The Tribunal considers that the likelihood of this re-occurring is significantly less than in 2002/2003 because of Mr Obele’s rehabilitation which will be assisted by Ms Obele’s changed situation, their plan to live together and her strong influence on him in such circumstances. Thus, having regard to Mr Obele’s lack of a prior criminal record, the circumstances in which the crimes were committed, the proactive steps Mr Obele has taken towards his rehabilitation, his conduct as a ‘model’ prisoner, and the attitudes he expressed towards drug-related crime and in relation to his remorse, all of which the Tribunal found credible, the Tribunal has formed the view that in the light of the support he will receive on release on parole, there is very little risk of his reoffending.

LENGTH OF TIME ORDINARILY RESIDENT

23. Mr Obele has been an Australian resident since his arrival on 28 October 2002. Paragraph 10.3(1) of Direction No 41 states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. In this instance, there was a period of less than a year between the time Mr Obele arrived in Australia and the time of his arrest on 14 August 2003.
24. Because of this relatively short period of non-offending, and bearing in mind the fact that he has spent a total of six and a half years in prison, this consideration should not be treated as a consideration favourable to Mr Obele. Rather it should be regarded as a neutral factor: Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].

OTHER CONSIDERATIONS

25. As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations. Relevant other considerations in Mr Obele’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his links with Nigeria, the hardship that may be experienced by both Mr Obele and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct. The other considerations listed are not exclusive, however, and the Minister has also referred to the expectations of the Australian community as a relevant other consideration in this case.
26. Mr Obele has no family in Australia other than his former wife, Ms Obele. Ms Obele told the Tribunal that after her first husband died, she found her environment full of memories and wanted to move away. She made some enquiries about migrating to Australia and got in touch with a migration agent. Around this time, she met Mr Obele at a friend’s wedding and they found they had a lot in common. She proposed that they should migrate together and they decided to get married as is expected in Nigerian culture. Her parents were happy with the proposed marriage, particularly as they did not want her to move to another country by herself, and Mr and Ms Obele got married in 2000.
27. Because Ms Obele has a degree and had worked as a high school teacher for 10 years teaching English, she was the primary applicant in the visa application. Mr Obele said he left school, after completing a tertiary preparation course at the age of 19, to help look after his father who was very sick. Mr Obele was the youngest of five children, his parents having worked as schoolteachers. He has two brothers and two sisters, all married with families. His two brothers are public servants. Mr Obele said that in 1995 he undertook some further training, and in 1996 he started his own grocery distribution business. It took about two years to get established. Initially, he lived with his family and then moved out on his own. He sold the business before he and Ms Obele departed for Australia.
28. On arrival in Australia, they settled in Melbourne. Ms Obele said she had difficulty finding work and realised she would have to do a refresher course. After speaking with a friend, she decided instead to train as a nursing assistant and found that she really loved this. After completing this training, she decided to continue with her studies and completed a nursing degree in three years at the University of South Australia by distance education while working in a nursing home. After graduating in 2007, she was awarded a postgraduate scholarship for further training in mental health.
29. Mr Obele also had difficulty finding work and when an acquaintance told him of a job in Sydney, he decided to move there. Ms Obele said she did not want to leave what she had started in Melbourne – she was studying full-time at that stage and had established a relationship with her church - and decided not to accompany him. Mr Obele said their marriage was then “in some difficulty” but he hoped to be able to return to Melbourne to sort this out. Ms Obele told the Tribunal that she believed the difficulties were from the fact that they were living apart, and she had agreed that she might relocate to Sydney if he got work.
30. In the initial period after their arrival in Melbourne, Mr and Ms Obele were living off their savings, but when Mr Obele got a job in Sydney he paid Ms Obele’s rent for the first two months while she was doing her nursing assistant training and working part-time. The job Mr Obele had been told about, which was a cleaning job, did not last and he got a job as a forklift driver in Alexandria, having obtained his forklift driver’s licence. Then, in 2003 he started a cleaning business. He obtained contract work but lost a major contract and got into financial difficulties. He was, however, aware from past experience that it would take time to establish a business. Ms Obele said he visited her in Melbourne on three occasions, including when she was ill with the stress of working, and he was also trying to arrange for her to visit him in Sydney. He had not told her about his financial difficulties and it was a huge shock for her when she had a call from his solicitor after Mr Obele was arrested.
31. Mr Obele and Ms Obele stayed in touch by phone after Mr Obele’s arrest, although Ms Obele told the Tribunal that initially Mr Obele had not contacted her because he was ashamed. On one occasion, she visited him while he was in prison in Sydney, but when she arrived she did not have any identification with her and they refused to allow her to see him. Her friends took her back to the prison to see him the next day and then she was searched after the guards used a sniffer dog, which she found to be very upsetting. She described the whole process as a “Herculean effort” and had felt embarrassed that she had to rely on friends to take her to Bathurst after flying up from Melbourne. She never wanted to go through that again. However, in 2007, Mr Obele did apply to be moved to a prison in Melbourne so that she would be near him and able to visit more easily. Ms Obele supported the request but it was refused. After the application was refused, Ms Obele thought he might remain in prison for many years and decided she needed to get on with her life, and also to have some financial independence after working so hard for many years. So she completed an application for their divorce, which was granted in 2008. Mr Obele was against this but she persisted. Since then, they have always remained in contact, talking on the phone every week, and Mr Obele said he has been able to demonstrate to Ms Obele that he would get parole.
32. Since their divorce, Ms Obele said that, despite trying and some interest from another person, she has not found anybody else to whom she can open her heart in the way she can with Mr Obele. Her life has been study and work and she wants him as her companion. She loves him and wants him back in her life. They both described how they have discussed this and how they plan to live together in Queanbeyan if he is released on parole.
33. It was clear to the Tribunal from the evidence of Mr and Ms Obele that they have a strong emotional attachment. Both want to renew their relationship. Mr Johnson submitted that Ms Obele should not be considered Mr Obele’s wife or de facto partner because they are divorced. He referred to the definition of ‘de facto relationship’ in s 5CB(2) of the Act which refers to mutual commitment to a shared life, a genuine and continuing relationship and living together and not separately and apart on a permanent basis. In the Tribunal’s view, given that the other considerations referred to in Direction No 41 are non-exclusive, whether or not a specific definition is met is not necessarily conclusive in this instance. However, in our view, Mr and Ms Obele provided clear evidence of mutual commitment to a shared life and to a genuine and continuing relationship, and of an intention to resume living together when circumstances permit. Even if their relationship did not satisfy the description of ‘de facto relationship’, the Tribunal could take Ms Obele’s relationship with Mr Obele into account under paragraph 11(3)(a)(i) as a member of his family or other tie to the Australian community, or as another other consideration since paragraph 11(3) sets out a non-exclusive list.
34. The Tribunal notes that Ms Obele has been an Australian citizen since 7 April 2005 and is contributing to the community through her work as a nurse. Mr Obele is now aged 36; Ms Obele is aged 43. Their evidence, which the Tribunal found credible, is that Mr Obele is her family in Australia and that she is his. Mr Obele said that he maintains contact with his mother in Nigeria by phone and that she retired seven years ago and now lives on a pension. He said he would like to visit her as he promised to do on leaving Nigeria. However, she would not be able to support him if he is returned to Nigeria. Mr Obele also said that his brothers and sisters have their own families and are in no position to support him. He has had no contact with them since leaving for Australia in 2002. The only other relative he had in Nigeria was his uncle who died while Mr Obele has been in prison. He has nowhere to live in Nigeria and no means of support there. Mr Obele said he regards Australia as his home. He has worked hard to make himself a better person, undertaking both vocational and academic courses while in prison. Apart from the two courses related to the construction industry and his degree program referred to above, he has completed courses in Food and Hospitality, Responsible Service of Alcohol, Senior First Aid, and Word Processing Operations.
35. The Tribunal accepts that for Mr Obele to be returned to Nigeria would cause both him and Ms Obele hardship. While Mr Obele has maintained contact with his mother and expressed the wish to visit her, he has not maintained other ties and is likely to experience difficulty in re-establishing himself if he returns. The Tribunal was impressed with the proactive steps Mr Obele has taken in his further education while in prison, both of a general and vocational nature. As stated above, he has four units remaining in order to complete his degree. The Tribunal notes Mr Obele has not previously been warned about conduct that might lead to the cancellation of his visa.
36. With regard to community expectations, Mr Johnson submitted that the community would expect that a person involved in drug-related crime having spent minimal time in Australia and with minimal connections here would not be permitted to stay. In the Tribunal’s view, the community would, nevertheless, be impressed by the steps taken by Mr Obele to “better himself”, by what the Tribunal considers to be his genuine remorse, and by his strong commitment to Ms Obele, who has also worked hard to establish herself in Australia and to make a positive contribution to the community. The community also expects that a discretion such as that in issue should be exercised compassionately where circumstances warrant this.
37. Summarising the above discussion, the Tribunal finds that Mr Obele has committed very serious offences in relation to one episode involving drug importation, but that there is little risk of his reoffending. While there were mitigating circumstances that led to the commission of the offences, Mr Obele told the Tribunal that this does not excuse his conduct and he feels remorse. Of the other considerations to which generally less weight should be given, the Tribunal considers that account should be taken of his relationship with Ms Obele and the hardship that would flow from Mr Obele’s being returned to Nigeria, and of his efforts to undertake further academic and vocational education. The Tribunal considers that this is a case where, because of the circumstances, the community could be expected to look favourably on the discretion being exercised in Mr Obele’s favour, his having served his sentence, been a “model” prisoner, and there being an excellent prospect of his reintegration into the community.
38. Having taken into account both the primary and other considerations, the Tribunal’s view is that the discretion should be exercised in Mr Obele’s favour. The Tribunal therefore determines that the discretion in s 501(2) of the Act should be exercised not to cancel Mr Obele’s visa.

DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision that Mr Obele’s visa should not be cancelled.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President, and Ms JL Redfern, Senior Member.

Signed..........[sgd]..................

Associate

Date of Hearing: 20 January 2010

Date of Decision: 29 January 2010

Applicant representative: Self-represented

Respondent representative: Mr Greg Johnson