Nweke and Minister for Immigration and Citizenship [2011] AATA 484 | Case summary

Nweke and Minister for Immigration and Citizenship [2011] AATA 484 | Case summary | Zoe

[17]

Section 501(2) of the Migration Act 1958 (Cth) (the Act) provides that the Minister may cancel a visa if "the Minister reasonably suspects that the person does not pass the character test" and "the person does not satisfy the Minister that the person passes the character test". Section 501(6)(a) 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.
Mr Nweke has been sentenced to a term of imprisonment of 10 years, with a non-parole period of six years and six months for offences connected with the importation of cocaine into Australia, detailed above. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Nweke'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' and 'other' considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The 'primary' considerations in Direction No 41 are set out in paragraph 10(1):
1. 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).

[21]

With regard to the seriousness of Mr Nweke's conduct, the Tribunal notes that the "importation or trafficking of trafficable or commercial quantities of illicit drugs" is among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41.
Paragraph 10.1.1(3) of Direction No 41 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.
In sentencing Mr Nweke in the District Court of NSW on 9 March 2007, Judge Ainslie-Wallace noted that Mr Nweke had been found guilty of aiding and abetting the importation of 1.873 kgs of cocaine from New Zealand concealed in the back and front covers of a number of hardcover children's books. Mr Nweke deposited $450 into the bank account of the woman who imported the books, flew to Auckland to meet with her, booking into the same hotel and paying for her accommodation and expenses. The Crown also contended that Mr Nweke received the children's books and handed them to the woman to take back to Australia knowing that they contained drugs. Judge Ainslie-Wallace found that Mr Nweke's role "was considerably more complex" than that of the importer (who suffered from a significant mental illness) and his position was one "of some control and authority". The Judge was sceptical about a psychologist's report stating that Mr Nweke suffered from Post-Traumatic Stress Disorder and a 'Major Depressive Illness' because of inconsistencies in his accounts as to his and his family's treatment in Nigeria.
Judge Ainslie-Wallace found while Mr Nweke was sorry that he had been a bad role model for his children, there was "no acceptance of culpability for this offence and no expression of remorse nor contrition". She said it was difficult to comment on his prospects of rehabilitation because of his maintaining his innocence: "It is impossible ... to make any reasoned assessment of his prospects of rehabilitation."
In cross-examination at the hearing, Mr Nweke was asked about his involvement in the offence. He said that he had arranged to deposit money into the importer's account and paid for her accommodation and expenses in Auckland. Further, he acknowledged having handled the drugs which he got from his "boss". He said he committed the offence in 2003 after separating from his wife in Perth and returning to Sydney. He was stressed after the separation and then heard that his younger sister in Nigeria had breast cancer and needed money to pay for surgery.
Mr Nweke agreed that he had denied responsibility at the time of his trial but said, on being imprisoned, he had accepted responsibility and especially on living with people who have drug problems, as a result of which he has felt guilty and ashamed of his previous conduct. Also, his acceptance of Christianity has helped him accept responsibility for his actions. Mr Nweke said he had appealed against his conviction on legal advice but decided to abandon his appeal well before the hearing date. He said his other convictions for driving related offences occurred while he was working as a security officer in Sydney.
The Department of Corrective Services records for Mr Nweke list four misconduct charges while he has been in prison, which are as follows: 30 May 2006, 'possess create prohibited goods'; 20 February 2007, 'possess create prohibited goods'; 11 February 2009, 'fail to comply with correctional centre routine'; 19 February 2009, 'intimidation'. Mr Nweke was punished with 'seven days off buy ups' for the incident on 20 February 2007 and a reprimand and caution for each of the other incidents.
Mr Nweke explained that the first incident in 2006 arose out of his using a training belt in his cell - he was not aware that he was not allowed to have such a belt in his cell. The second incident in 2007 arose when he was moved from one cell to another and was not aware that he had to check his new cell for unauthorised objects when moving into it. When his cell was searched at a later time, a sharp object was found in his mattress. He explained what had happened to the area manager who, on hearing from other officers that he is not a violent person, only reprimanded him. The third incident, on 11 February 2009, occurred when he was moved from Long Bay Correctional Centre (CC) to Silverwater CC. He asked for a non-smoker's cell. One was not available immediately and he was trying to explain to the officer that smoking affected his health. His English was not very good at the time and the officer misunderstood him and charged him with intimidation. When he spoke with the area manager about what had happened, the manager realised there was a communication problem and only reprimanded him. The fourth incident, on 19 February 2009, arose out of a new inmate trying to talk to him during muster. He told the inmate to talk to him afterwards. Mr Nweke was charged with talking. Again, he said he explained what had happened to the area manager who let him off with a reprimand.
With regard to mitigating factors, an Immigration Report prepared for the Department by the Probation and Parole Service, Silverwater Parole Unit, dated 2 November 2010 (the Immigration Report), notes that Mr Nweke "has an active alert due to his status of Low vision. He also is allergic to chloroquin." Judge Ainslie-Wallace referred Mr Nweke having deteriorating vision in one eye following an accident in 2000. A medical certificate from Dr Bruce McGarity, "Visiting Senior Consultant Specialist" for Justice Health, dated 2 June 2011, states that Mr Nweke is a carrier of the hepatitis B virus and there is a chance of his developing cirrhosis of the liver and liver cancer in the future.

[24]

Mr Nweke told me that he has tried to better himself while he has been in prison. He has done all the available courses in prison to enable him to work as a fitness instructor/personal trainer, about which he is passionate. This includes courses in physical education and nutrition. He has one further course to undertake - a Certificate III in Fitness - which he has not been allowed to undertake while in prison and for which he will need to attend TAFE. Once he has completed and passed this course, he will be qualified to work as a fitness instructor/personal trainer. He already has his Occupational Health and Safety 'white card'. Mr Nweke said the fitness industry appears to be booming in Western Australia. The Tribunal was provided with copies of Mr Nweke's TAFE certificates for 'Apply First Aid' and 'Nutrition'. In the past, he has worked as a security officer, as a construction worker and has undertaken factory work.
Mr Nweke said he will not reoffend. He has never used drugs but has now lived with people in prison who have drug problems and now understands the bigger picture, the effect drugs have on people, and the harm they suffer as a result. He feels guilty and ashamed at what he did. He said that he invites other prisoners to go to the gym with him for fitness training and also to join him in Bible Study with Father Peter Carroll.
Mr Nweke said he plans to live with his wife and children in Perth. He wants to be with them and feels guilty and ashamed for not being around to support them for the past six years, and for the pain and suffering he has caused. In his statement dated 7 May 2011, he said he wants to be a good father upon his release from prison. His wife and children have already suffered the financial and psychological consequences of his being in prison and, if he is deported, this will further complicate their lives and cause them further pain. In an undated letter to the Department, apparently in response to the notice of intention to consider cancellation of his visa dated 9 February 2011, Mr Nweke also said he had come to realise how many people he had hurt and how many people had paid a huge price as a result of his stupidity. He said he has come to embrace an enhanced Christianity in prison that "has helped me gain insight into a wider opinionated views [sic] and acceptance of all my wrongdoing. I do accept full responsibility for my action. I am deeply deeply sorry."
The Tribunal was provided with a letter dated 23 May 2011 from Captain Andrew Carter who said he has known Mr Nweke for over a year in his capacity as chaplain at Silverwater Correctional Centre. Captain Carter said:

[36]

Mr Turner, for Mr Nweke, also referred the Tribunal to the decision of the then President of the Tribunal, Justice Mathews, in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [3], where her Honour emphasised that the interests of children are always to be treated as a primary consideration. Mr Turner said the facts of that case, involving the possession of a substantial quantity of heroin, were not dissimilar to those of the present case.
The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person's prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
Mr Nweke has three children in Australia, all of whom were born here and are Australian citizens. I am satisfied from Mr Nweke's evidence that, notwithstanding that he has been in prison for more than six years, he is very attached to his children and determined to provide them with the love and support they need. Mr Nweke's stated intention, if he is released into the community, is to return to Perth to live with his wife and two older boys, who are aged nine and eight. He looks forward to taking them to school, playing sport with them and generally supporting them. His wife, Ms G, has provided a statement dated 10 May 2011 and flew from Perth to Sydney in order to give evidence in person at the hearing. Ms G confirmed Mr Nweke's evidence that they have reconciled and intend to resume their marital relationship if Mr Nweke is released into the community. Ms G noted that even after their separation in 2003, they maintained a close relationship for the sake of their children and that Mr Nweke would make regular visits to Perth from Sydney - every two or three months - to visit the children, as well as maintaining contact with them through frequent phone calls.
Ms G said that since Mr Nweke has been in prison, he has continued to maintain contact by phone, speaking to their children every day. Mr Nweke said they tell him about what they are doing at school and their assignments and, if they have been naughty, he speaks to them about this. They ask him when he is coming home and tell him they want him to take them fishing and to play soccer with them. Ms G has not told the boys their father is in prison and they think he is just away working in Sydney so the counsellor and psychologist, Mrs Jay Anderson, who undertook a brief assessment of the boys, was not able to ask them for their reaction should their father have to leave Australia.
Mrs Anderson provided a report dated 26 June 2011 and gave evidence by conference telephone at the hearing. Mrs Anderson met first with Ms G before meeting with each child separately for 50 minutes. She concluded that despite the lack of physical contact, the boys have a strong relationship with their father, enjoy talking with him on the phone and consider him a part of their family. They indicated that they would be sad and disappointed if their father does not come to live with them.
Ms G told the Tribunal she was born in South Africa and has been in Australia for 23 years. She said that if Mr Nweke has to return to Nigeria, she will not go with him. She said Nigeria is a dangerous country with a high level of serious crime. She would not risk taking their sons there. If Mr Nweke returns to Nigeria, that will be an end to their relationship and "our children would never be able to see their father again".
Mr Nweke also has another son, J, aged six, from his relationship in Sydney with Ms L after he separated from his wife. Ms L provided a statement dated 5 May 2011. She said J was only five months old when Mr Nweke was detained. However, J has regularly visited his father in prison since that time. This was confirmed in the Immigration Report which stated that Ms L and J have visited Mr Nweke weekly throughout his period of incarceration. Ms L also said Mr Nweke calls several times a day to speak with J. Ms L said she can see that J thinks about his father a lot and is angry because of the limited time they have together. He wants his father to be there to do things with him like other fathers.
Mr Nweke said he has a good relationship with J and he and Ms L are committed to J's future. If he is released into the community, Mr Nweke will pay child support for J and will be there for him when needed. He intends to maintain contact with J by phone and J can come and stay with them in Perth during the school holidays.
I am satisfied from the above evidence that Mr Nweke has a good relationship with his children and is committed to their future and to supporting them. I am also satisfied from the evidence with regard to the children that they would be adversely affected by his having to return to Nigeria. Thus, in my view, this primary consideration strongly favours Mr Nweke's visa not being cancelled.

[40]

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 Nweke'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 health, his links with Nigeria, the hardship that may be experienced by both Mr Nweke 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.
As noted above, Mr Nweke is married to an Australian citizen and has three children in Australia. Mr Nweke and his wife, Ms G separated in 2003 but state they have been reconciled for the past two years and have planned for the resumption of their cohabitation with their two children if Mr Nweke is released into the community. Ms G states that she has found it very difficult raising their two children on her own and at one stage was hospitalised for a week as a result of suffering from severe depression. For the reasons stated above, Ms G states that she would not accompany Mr Nweke to Nigeria if he has to return there and this would end their relationship. Ms G's sister also provided a statement, dated 10 May 2011, in which she refers both to Mr Nweke being a good father and husband and to the effect that the "pressure and strain" of raising the two boys on her own has had on Ms G "emotionally, physically and medically".
Mr Nweke has also maintained contact with his former de facto, Ms L, in Sydney with whom he has a son, J. As noted above, in a statement dated 5 May 2011, Ms L speaks of the need for her son to maintain contact with his father in Australia.
Mr Nweke is now aged 36. The letter from Dr McGarity states that Mr Nweke is a carrier of the hepatitis B virus and that there is a small risk of cirrhosis of the liver and of liver cancer developing in the future. Dr McGarity said Mr Nweke requires blood tests and ultrasound examinations every six months and if cirrhosis or liver cancer developed, "treatment options would be much better in Australia than Nigeria". As noted by Judge Ainslie-Wallace, Mr Nweke also suffered damage to an eye in an injury in 2000 for which he may seek treatment.
With regard to Mr Nweke's ties with Nigeria, his mother (aged 70) and sister continue to live in Nigeria but, as noted above, he has been "ostracized and ex-communicated" by his local community. I assume, however, that this would not prevent him living and working elsewhere in Nigeria, but it would be without family support. I accept that if Mr Nweke has to return to Nigeria this would lead to him experiencing significant hardship by reason of his separation from his family and, in particular, his children in Australia.
Mr Nweke has taken steps to further his education while in prison and has completed all but one course required to enable him to qualify as a fitness instructor/personal trainer which is the career he wishes to pursue on his release from prison. I note that he has also embraced Christianity and, according to Father Carroll, is making a positive contribution to his fellow inmates in prison.
Finally, I note that Mr Nweke has not been formally advised in the past that he might be liable to deportation if he commits any further misconduct.

[41]

Weighing up the relevant 'primary considerations', I am satisfied Mr Nweke's release into the Australian community poses very little risk. As stated above, I am satisfied from the evidence that Mr Nweke has excellent prospects for a full rehabilitation and of not reoffending.
The second and third primary considerations are not, in my view, of significance in this case. While the fact that he was an adult at the time he began living in Australia favours cancellation of Mr Nweke's visa, this (second) primary consideration should not be accorded any significant weight. Moreover, as explained above, the third primary consideration, the length of time he was ordinarily resident in Australia before engaging in criminal activity, should be treated as a neutral consideration.
In addition to the protection of the Australian community, the other important primary consideration is the best interests of Mr Nweke's children which, in my view, for the reasons given above, strongly favour Mr Nweke's visa not being cancelled.
With regard to the 'other considerations', I accept that Mr Nweke's return to Nigeria would cause hardship to both him and his family in Australia. As part of his rehabilitation, he has undertaken further study to equip himself as a fitness instructor/personal trainer on release into the Australian community. His being "ostracized and ex-communicated" by his local community in Nigeria would make it difficult to re-establish himself there. He also has potential health problems which can be better addressed in Australia. Lastly, I have noted that Mr Nweke has not previously received a formal warning from the Department.
Having had regard to both the primary and other considerations, my overall conclusion, with particular regard to the very low risk posed by Mr Nweke to the Australian community and the best interests of his children, is that the discretion in s 501(2) of the Act should be exercised in Mr Nweke's favour and that his visa should not be cancelled.

Nweke and Minister for Immigration and Citizenship [2011] AATA 484 (12 July 2011)

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Judgment (45 paragraphs)

Nweke and Minister for Immigration and Citizenship [2011] AATA 484 (12 July 2011)

Cases Cited (2)