The Tribunal decision
16 It is only necessary to set out how the Tribunal approached the issue of the appellant's mental health when considering the extent of impediments that he may face if removed to Nigeria as required by cl 9.2 of Ministerial Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), as made pursuant to s 499 of the Act.
17 The material before the Tribunal relevant to this claim may be summarised as follows. On 14 October 2019, the appellant completed a Personal Circumstances Form to which he attached a number of hand written documents as his representation pursuant to s 501CA of the Act. In answer to a standard form question: "Do you have any diagnosed medical or psychological conditions", he answered "no". In attachment G, concerned with his risk of reoffending, he detailed an event which occurred in Nigeria in November 2010 where he witnessed an attack at a market by Islamic extremists on Christians. As he ran for his life, he saw people stabbed and murdered. Two of his classmates at university were victims. This event resulted in significant insomnia, fatigue and discomfort. The appellant did not state that this event continued to impact his mental health in 2019. In attachment K, concerned with other problems that he would face if returned to Nigeria, he listed unemployment, poverty, police brutality, corruption and "no social, medical and/or economic support unless one is wealthy".
18 On 4 May 2020, the appellant provided a typed written statement of further information. Amongst other things, he stated that he was then in a committed relationship and during his period of incarceration he had grown in faith and matured as a person. He did not mention any mental health impairment. On 5 July 2020, Dr Phil Watts, an adjunct associate professor in clinical psychology, provided a report to the appellant's migration agent in consequence of a telehealth consultation on 2 July 2020. He recorded that the appellant "described a number of feelings of stress and depression, but did not present with any major mental illness, such as schizophrenia or bipolar disorder". The report mentions the market attack in Nigeria and that the appellant "indicated this had been quite scary growing up and said he still had nightmares about the village attack". The report continues:
Mr Okoh explained that he was not diagnosed with mental health problem [sic] but since the incident in Nigeria where he witnessed a number of people killed he had been suffering from anxiety and some fearfulness and avoidance. The trauma was compound [sic] after he had been working as a carer in Australia, when a friend/client who he looked after passed away. He said that as a result of this, he tended to bottle up his problems and that he increased in [sic] drinking. The passing of his friend was in the lead up to the offence.
19 Dr Watts conducted a personality assessment which:
..showed moderately high levels of stress, depression, anxiety and paranoia. I note particularly that the Trauma [sic] scale was elevated. This was likely to have been as a product of witnessing the incident where the Christians were attacked by Muslims and/or his friend dying. The depression was showing as clinical depression. The paranoia particularly showing difficulties in trust relationships.
20 The discussion section of the report focuses upon the appellant's offending, concludes that it was not part of his normal character and that the likelihood of reoffending is low.
21 For the purpose of the first hearing before the Tribunal, the appellant provided a typewritten witness statement. In it no claim is made that he suffers from a mental health impairment. In his Statement of Facts, Issues and Contentions dated 10 July 2020, authored by the appellant's migration agent and presented to the first Tribunal hearing, when dealing with the extent of impediments if removed it was said:
The applicant contends that he will suffer through severe hardship should he be removed to Nigeria.
Although he is young and healthy, and will most likely not face any substantial language or cultural barriers, the applicant fears that the current socio-economic climate in Nigeria is extremely concerning, especially in the face of the global pandemic, Coronavirus.
Employment prospects, medical access, social welfare, and economic support will be extremely scarce in his home country and he fears this could be detrimental to his mental, and physical well-being.
22 On 3 August 2020, a solicitor lodged a supplementary Statement of Facts, Issues and Contentions for the purposes of the first Tribunal hearing. No claim is made in it that the appellant suffers from a mental health impairment.
23 On 17 March 2021, a psychologist, Mr Uwe Schaub, provided a "letter of support" for the purpose of the second Tribunal hearing. Mr Schaub assessed the appellant over a total of 12 sessions, five of which were in person. His report is very brief. The substantive paragraphs provide:
Mr OKOH met the criteria for PTSD and was referred to me for treatment. He also complained about sleep disturbances and frequent nightmares, as well as periods of anxiety and depression. As an EMDR practitioner I am aware that EMDR is the best treatment choice for individuals suffering from PTSD, but I am also aware that providing EMDR in an environment like YHDC is not recommended. Hence, Mr OKOH's intervention included only some aspects of EMDR (specifically the grounding component). He was also provided with psycho-education, CBT, Mindfulness, and various strategies to address his problems with sleep and nightmares. Furthermore, he was taught visualisation, breathing and relaxation exercises to manage distress.
Mr OKOH was very committed to his intervention as was indicated by his diligent engagement. As a result, he reported improvements in all areas and total absence of nightmares and the absence of sleep difficulties. Mr OKOH has demonstrated good attention and recall, good understanding and application of information, and impressed as calm and settled as well as emotionally resilient with a positive outlook. Despite his less than favourable environment, Mr OKOH nowadays presents as a calm and approachable individual who is goal directed. He also demonstrated insight, empathy, and remorse over the crime he committed. Mr OKOH stated to me that he has separated himself from negative peer influences and that he was now very selective of those individuals he voluntarily associates with.
I hope that my stated observations and experiences with Mr OKOH assist in formulating a clearer picture of his mental health and his character.
24 "EMDR" is the accepted acronym for eye movement desensitisation and reprocessing and the acronym "YHDC" is a reference to the Yongah Hill Detention Centre.
25 The appellant's counsel on 3 May 2021, prepared a Statement of Facts, Issues and Contentions for the purpose of the second Tribunal hearing. In dealing with the risk of reoffending, reliance is placed on the report of Dr Watts and it was stated that: "the Applicant is undergoing treatment from a psychologist for PTSD and his mental health has improved". When dealing with the extent of impediments if removed it was said:
There is no impediment to the Applicant establishing himself in Nigeria presented by his age, health, language or culture.
The real impediments to the Applicant establishing himself in Nigeria will be his separation from his partner, family, nieces and nephews, and the additional financial burden he will be for his parents. This will be a source of stress in his life that may impede his ability to establish himself and maintain a basic standard of living.
26 The appellant provided a further undated witness statement and when addressing his rehabilitation since 6 January 2020 said:
I have voluntarily assessed [sic] mental health and engaged with their practitioners on and off the centre after receiving a reply from the AAT last year August (2020).
I have had psychological intervention, and spoken with a psychologist on and off the centre for over 12 sessions…
Cognitive behaviour therapy (CBT) when used properly would enable me to predict situations, be mindful of and managing my negative thoughts, recognise and manage my emotional state, learn to recognise and manage my physical state with the corresponding behaviour while also providing contingencies plan - good alternative.
This psychological and emotional growth I have undertaken will keep me safe, the victim safe and the community safe if given a second chance.
27 The appellant did not say that he would likely suffer any deterioration in his mental health if returned to Nigeria. On 10 May 2021, the appellant provided a further written statement to the Tribunal. In it he relevantly repeats the statements that he made in his unsigned witness statement and does not add to that material. The primary focus of this witness statement is the risk of reoffending.
28 The Tribunal had the DFAT Country Information Report for Nigeria dated 3 December 2020 (the DFAT Report). Paragraph 2.24 of the DFAT Report records that mental health "has historically been neglected on Nigeria's health and development policy agenda" and notes that it is estimated that one in four Nigerians suffer from mental illness but fewer than 10 per cent have access to the care they need. The paragraph concludes: "[m]any Nigerians suffering from mental illness seek treatment from traditional or faith-based healers rather than mental health professionals".
29 In his evidence given to the Tribunal member at the second hearing, the appellant answered a number of questions from the member. In response to a question as to what services had been accessed during detention, the appellant mentioned his consultations with psychologists and the evidence proceeded as follows:
So do you think that the mental health services helped you?… Yes, it really helped me. I think that was the place where I could really open up and I could see the choices I made. I could understand the pain, the shame and the loss of trust the victims felt. Because when I opened up with the psychologist, it was a real eye opener for me. To see my actions, to see the decisions, the choices I made, and the people that got hurt. And it was also for me to see that the crime I committed, it's not even about - it's not merely about me. Before I used to focus on me, just trying to say I'm sorry. But with the psychologist, I got to know like the people I hurt, how they felt because of my actions. And it's more of them than my own offending. And if it was me, how would I feel? So with the psychologist, that was where I had to open up and I could really see the impact of my behaviour and the crime I committed.
30 Later in his evidence there was this exchange with the Member, when giving evidence remotely:
Yes, can you just hold the line please, Mr Okoh. I'm just looking at a document, okay? Just wait for my question. Mr Okoh, if you were returned to Nigeria, you talk about the things that you're worried about, you're concerned about if that happened. I just want to give you another opportunity to explain to me, what are the things that you're concerned about?… My mental health, job, the poverty.
Sorry, what was that?… Poverty. No adequate health care.
I understand your evidence in your personal circumstances form, it says you're fit and have never felt better. Are you referring to any - having any health conditions at the moment?… Please come again, senior member.
In your documents that [sic] you have no health conditions or medications. When you say no adequate health care, are you referring to that because you have some conditions you need to tell me about or medication that you're receiving?… No, senior member. I don't have - the medication I'm on at the moment is just the sleeping pills.
So you're concerned about your mental health, no job, poverty, no adequate health care. You did say that you would - if you went back, you would live with your parents. Why do you believe that you'd be in poverty if you were living with your parents?… My parents are retired. They have no pensions from the government. They depend on the money we sent to them from Australia, just to buy a loaf of bread that's like, two dollars. They don't have no income…..
31 In closing oral submissions, counsel for the appellant submitted to the Tribunal that:
The impediments consideration, now, obviously the applicant is very concerned about being removed to Nigeria but, given that that consideration is all about whether he can establish himself to a basic standard of living, I put it no higher than what has been put in the applicant's statement of Facts, Issues and Contentions, which is that, while it will be obviously, be very upsetting to him to be removed, he'll, obviously, be a burden on his parents, which the evidence tended to suggest are reliant already on his siblings in Australia to support themselves and that may have some impact, or cause him some difficulty, in establishing himself. I accept that if there is any weight to be given to this consideration, it will be slight and that these issues will be transient in nature in the sense that, given his qualifications, his age, his health and the fact that he can speak the language, that he will eventually be able to establish himself.
32 Counsel made no submission to the effect that the appellant would suffer impediments if removed due to his mental health or his inability to access appropriate medical services in Nigeria.
33 The Tribunal made some very adverse findings of certain evidence that the appellant produced. In particular the Tribunal concluded that a document purporting to be from a prospective employer was a forgery and the appellant knew it to be false when providing it to the Tribunal in an attempt to mislead it. He gave very unsatisfactory evidence, which the Tribunal did not accept, as to how it was possible to transmit $131,000 overseas in less than a 12 month period when his declared salary was between $80,000 and $120,000 per annum on average. The Tribunal recorded that the appellant "accepted he had previously lied to the Court and Tribunal despite taking oaths to tell the truth".
34 When addressing the consequences of repatriation, the Tribunal at TD [63] found:
The Applicant said if repatriated to Nigeria he would live with his parents. His sister and her husband live nearby. When asked to elaborate on any fears he might have about repatriation, the Applicant responded that he was concerned about 'my mental health, job, poverty, no adequate health care...no pensions from the Government.' When put to the Applicant that his evidence did not disclose any current health conditions or medication, he agreed, stating that he was only currently taking sleeping pills. He said there was nothing for him in Nigeria, 'no job, no opportunity to help people'. He would also lose his partner and family in Australia. He claimed that if allowed to remain in Australia he intended to repay the restitution ordered by the Court.
(Original emphasis.)
35 At TD [106] the Tribunal set out the relevant portion from the report of Mr Schaub and noted that he did not give oral evidence and could not be cross-examined on its content. At TD [114] the Tribunal set out extensive references from the report of Dr Watts. Dr Watts did give oral evidence and was cross-examined. He accepted that his opinion was based on the history given to him by the appellant and that, in several respects, this history was incomplete. Tellingly, Dr Watts accepted that it is "difficult to rely on the information provided" once he was informed that the appellant had not been truthful in adducing certain evidence at each hearing before the Tribunal (at TD [119]). When pressed further, Dr Watts accepted that this behaviour "has an element of deception that is quite concerning" and that this increased the risk of reoffending for some type of fraudulent offence (at TD [120]).
36 At TD [127], the Tribunal placed limited weight on the letter from Mr Schaub and treated it as lay rather than expert opinion evidence. The Tribunal expressed concern that the letter "lacks specific detail", does not explain who made the diagnosis of PTSD (that is not contained in the report of Dr Watts) and failed to explain the EMDR assessment in any detail. Overall, the Tribunal concluded that the appellant's offending "was not isolated, opportunistic, or impulsive, but a planned and deliberate course of conduct, encompassing an intention to continue offending through romance frauds" and in consequence expressed "no confidence in his claimed new-found commitment to the truth. The Tribunal finds he has a continuing impulse towards dishonesty, which reflects adversely on his moral qualities": TD [128].
37 From TD [169] the Tribunal considered the extent of impediments if removed by reference to clause 9.2(1) of Direction 90 and relevantly found at TD [170] and [173] that:
The Applicant is 27 years of age, reports no diagnosed medical or psychological conditions, claims to be in the best physical shape of his life, and aspires to an immediate resumption of work if released. He conceded there is no impediment to re-establishing himself in Nigeria presented by his age, health, language, or culture. The Applicant's parents and a sister still live in Nigeria and he most recently travelled there for a holiday in 2018.
…
The Applicant has spent most of his life in Nigeria. He completed an undergraduate degree there as an adult and then completed another undergraduate degree in Australia. He is a relatively young man in his 20s, in good health, and reports a consistent history of work. There are no age, health, linguistic, or cultural barriers to his repatriation. There is also no evidence he would be treated differently to any other Nigerian citizen. Given the available evidence, the Tribunal is satisfied he has the capacity to establish himself and maintain basic living standards, in the context of what is generally available to other Nigerian citizens
(Footnotes omitted.)
38 The Tribunal summarised its conclusions from TD [191]. It placed considerable weight upon the appellant's dishonesty in the commission of the offence for which he was imprisoned, emphasised continuing dishonesty in the attempt to submit a false document to the Tribunal and ultimately found that the appellant (at TD [192]):
…demonstrates a concerning impulse towards dishonesty, which reflects adversely on his moral qualities. His risk of reoffending is real and unacceptable.
39 The Tribunal summarised the appellant's ties to Australia and the impact on his partner and his nephews and nieces. At TD [196] the Tribunal noted that the appellant had spent most of his life in Nigeria, had completed undergraduate university degrees in Nigeria and in Australia and:
He is a healthy young man in his 20s who reports a consistent history of work with no age, health, linguistic or cultural barriers. There is no evidence he would be treated differently to other Nigerian citizens if returned or that he does not have the resources or capacity to re-establish himself and provide for his basic living standards, in the context of what is generally available to other Nigerian citizens.
40 Ultimately the Tribunal concluded at TD [198] that protection of the Australian community and the expectations of the Australian community "considerably outweigh the combined weight to be given to the primary consideration 'Best interests of minor children in Australia' and the relevant other considerations in this matter" (emphasis in original).