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

[2023] AATA 265

Nolutshungu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 265 (6 February 2023)

Division:GENERAL DIVISION

File Number:          2022/9423

Re:Soyiselwe Nolutshungu

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date of decision:                   6 February 2023

Date of written reasons:        27 February 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 November 2022 to not revoke the cancellation of the Applicant’s visa.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

The Migration Amendment (Aggregate Sentences) Act 2023

Cases

Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Pearson v Minister for Home Affairs [2022] FCAFC 203
PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

27 February 2023

Introduction and background

1. Soyiselwe Nolutshungu (‘the Applicant’) is a 30-year-old male, born in South Africa in January 1993. The Applicant first arrived in Australia on 11 April 2005. [1] By a decision dated 11 November 2022 a delegate of the Minister for Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) refused to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (‘the visa’). The abovementioned decision refusing to revoke the mandatory cancelation was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).

   [1] Exhibit 1, page 112.

2. The Applicant’s visa was mandatorily cancelled by the Respondent pursuant to

   
   

   s 501(3A) of the Act as a result of the imposition of three-year custodial term of imprisonment. The Applicant’s criminal history in Australia can be summarised as follows:

Court	Date	Charge	Sentence
Penrith Local Court	8/4/2021	Participate criminal group contribute criminal activity-T2 Knowingly direct activities of criminal grou-T1 (x2) Recklessly deal with proceeds of crimes >$5000-T1 Deal with property proceedings of crime =>$1000000 (x2) Recklessly deal with proceeds of crime >$5000-T1	Imprisonment (aggregate): 3 years
Manly Local Court	27/2/2020	Travel or attempt travel without valid ticket Stalk/intimidate intend fear physical etc harm (personal)-T2	Fine: $200 Community correction order: 18 months
		Refuse or fail to submit to breath analysis	Community correction order: 12 months
		Refuse or fail to submit to breath analysis – 2nd+off	Community correction order: 12 months
Penrith Local Court	19/11/2019	Drive motor vehicle during disqualification period – 1st off	Fine: $500 Disqualification: 3 months
Blacktown Local Court	11/6/2019	Refuse or fail to submit to breath analysis – 2nd+off	Community correction order: 9 months Disqualification driver: 9 months
Burwood Local Court	29/8/2017	Assault occasioning actual bodily harm-T2	Intensive correction Order: 15 months
Downing Centre District Court	23/2/2015	Aggravated robbery and inflict ABH-SI	Incentive correction order: 2 years
Paramatta Local Court	13/10/2014	Drive with middle range PCA	Bond: 12 months SUPV NSW PROB Service Disqualification: 12 months
Paramatta District Court	31/1/2013	Assault occasioning ABH in company of other(s)-T2
		Aggravated robbery and inflict ABH-SI	Imprisonment: 2 years suspended on enter Bond S12: 2 years advise registrar of any change of residential address
Ryde Local Court	18/8/2010	Not give particulars to owner of damaged property	Fine: $100 costs – Court: $79
		Negligent driving (not occasioning death/gbh)	Fine: $100 Costs – Court: $79 – Disqualification: 3 months
		Learner not accompanied by driver/police officer/tester	Fine: $100 Costs – Court: $79 disqualification: 3 months

1. On 18 June 2021 while the Applicant was serving the abovementioned sentence of 3 years, a delegate of the Minister mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence. This mandatory cancellation decision was made pursuant to s 501(3A) of the Act.

2. On 5 July 2021 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (‘revocation request’). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:

   The Minister may revoke the original decision if:

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

   (b)the Minister is satisfied:

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

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

3. On 11 November 2022 the Delegate of the Respondent made a decision, pursuant to

   
   

   s 501CA(4) of the Act, not to revoke the mandatory cancellation decision of 18 June 2021. This refusal to revoke decision is the decision now under review before this Tribunal.

4. By application filed in this Tribunal on 17 November 2022, the Applicant seeks review of the refusal to revoke decision made on 11 November 2022. That application was ventilated in this Tribunal on 23 and 24 January 2023. The Hearing received oral evidence from the Applicant, his current partner Ms Lina Marcus and the Applicant’s mother Mrs Nolutshungu.

5. The Tribunal also received written evidence which, with the agreement of the parties, was reduced to an agreed[2] Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.

   [2] See Transcript, p 2, lines 19-31.

   An important procedural aspect of the matter

6. The 84^th day of this matter occurred on 6 February 2023.[3] On the 84^th day, I caused a short-form decision to be published such as to ensure the Tribunal met its obligation pursuant to s 500(6L)(c) of the Act.[4] Also attached to these Reasons and marked “Annexure B” is a true and correct copy of my short-form decision published on 6 February 2023. I now publish my detailed written reasons for that short-form decision.

   [3] See s 500(6L)(c) of the Act.

   [4]   Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

   An Initial procedural aspect of this matter

7. Shortly after the commencement of this hearing, an issue was ventilated before the Tribunal in respect of which oral submissions were made and also in respect of which the Tribunal said it would decide via the publication of detailed written reasons. The specific issue arises from the basis upon which the Applicant’s visa was mandatorily cancelled. The cancellation occurred on the basis that the Applicant was, on 8 April 2021, sentenced to an aggregate term of imprisonment of three years with a two-year non-parole period.

8. The subject issue derives from the recent decision of the Full Court in Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’). In Pearson, the Full Court found that an aggregate sentence cannot be considered to be a term of imprisonment of 12 months or more pursuant to s 501(7)(c) of the Act. The Respondent contends that Pearson was wrongly decided. This is usually an indication that an application for special leave may be in the course of preparation or otherwise pending.

9. To the extent the Applicant may now seek to challenge the basis of the mandatory cancellation of the Applicant’s visa, I think two things can be said about that. First, the Applicant’s criminal history contains a sentence imposed on 31 January 2013 whereby the Applicant was sentenced to a custodial term of imprisonment for two years[5] consequent upon a conviction for ‘aggravated robbery and inflict ABH-SI’. While the mandatory cancellation decision was not made in reliance upon this 2013 conviction, this is a hearing de novo and, to the best of my knowledge, there is nothing preventing this Tribunal relying upon the 2013 conviction as a basis for finding that the Applicant does not pass the character test.

   [5] Which sentence was suspended upon the Applicant entering into a bond.

10. Second

    , given the grant of Royal Assent as recently as 16 February 2023 to The Migration Amendment (Aggregate Sentences) Act 2023 (‘MAAS Act’). The amendments enacted via the MAAS Act make clear that the provisions of the Act and its Regulations apply in relation to a single sentence imposed by a court regardless of whether the sentence is in respect of a single offence or for two or more offences. In the context of the character test in s 501 of the Act, the amendments enacted via the MAAS Act make clear that a person sentenced to a term of imprisonment of 12 months or more does not pass the character test on the basis of having a substantial criminal record pursuant to

    
    

    s 501(7) of the Act, whether in relation to a sentence imposed for a single offence or two or more offences comprising an ‘aggregate’ sentence. The explanatory memorandum to the MAAS Act makes it clear that this outcome is intended regardless of (1) whether the sentence imposed was for one or more offences and (2) the perceived seriousness of any individual offence.

11. The explanatory memorandum to the MAAS Act provides that it does “…not change, limit or expand the circumstances in which aggregate sentences are considered for all relevant purposes of the Migration Act. This Bill simply confirms the Government’s long-held understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act”. The explanatory memorandum goes on to provide that the MAAS Act “includes provisions to validate past decisions and actions under the Migration Act and certain other specified laws, where those decisions and actions may have otherwise been deemed invalid as a consequence of the Federal Court’s decision in Pearson”.

12. The effect of the MAAS Act on the instant matter is to fatally impact the Applicant’s reliance upon Pearson[6] as a means of purporting to establish that his visa had been incorrectly cancelled. I will proceed on the basis that the Applicant’s visa has been correctly cancelled and will apply the relevant Ministerial Direction to the facts before me.

    [6] See Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’), Exhibit 10, page 2, paras [13]-[15].

    Legislative Framework

13. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    The Minister may revoke the original decision if:

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

    (b)       the Minister is satisfied:

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

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

14. As outlined earlier, the Applicant has made the representations required by
    s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to set aside the decision refusing to revoke mandatory cancellation of the Applicant’s visa (made on 11 November 2022) may be exercised.

15. There are therefore two issues presently before the Tribunal:

    (a)whether the Applicant passes the character test; and

    (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

    Does the Applicant pass the Character Test?

16. The parties are ad idem that the Applicant does not pass the Character Test. This concession was rightfully made by the Applicant’s representative at the Hearing before me.[7]

    [7] Transcript, p 141, lines 14-32.

17. A cursory review of the Applicant’s criminal history clearly demonstrates that he does not pass the character test[8] on the basis that he has acquired a ‘substantial criminal record’ due to him being sentenced to at least one term of imprisonment of 12 months or more.[9] He therefore does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [8] s 501(3A)(a) of the Act.

    [9] s 501(7)(c) of the Act.

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

18. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[10]

    [10]    Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

19. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    ‘Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’[11]

    [11] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

20. Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, 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.

    (2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

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

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

    The Primary and Other Considerations

21. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.

22. The Primary Considerations I must take into account are:

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

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

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

    (4) expectations of the Australian community.’[12]

    [12] Direction No 90, para [8].

23. The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:

    ‘a) international non-refoulement obligations;

    b) extent of impediments if removed;

    c) impact on victims;

    d) links to the Australian community, including:

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

    ii) impact on Australian business interests’[13]

    [13] Ibid, para [9(1)].

24. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

    ‘(1) Information from independent and authoritative sources should be given appropriate weight;

    (2) Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3) One or more Primary Considerations may outweigh other Primary Considerations.’

25. I will now turn to addressing the abovementioned Primary and Other Considerations.

    Primary consideration 1: Protection of The Australian Community

26. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

27. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (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.

28. I will consider each in turn.

    The nature and seriousness of the non-citizen’s conduct to date

29. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)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:

    (i)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;

    (ii)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;

    (iii)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));

    (iv)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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)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).

    Paragraph 8.1.1(1)(a)

1. Prior to an application of the terms of this paragraph to the Applicant’s offending, it is important to note the terminology in the chapeau to this paragraph. It stipulates that the types of crimes or conduct contemplated by its sub-paragraphs (i), (ii) and (ii) are viewed very seriously by the Australian Government and the Australian community.

2. Here, the Applicant has convictions and sentences for the commission of three crimes of violence. Those crimes comprise (1) aggravated robbery with the infliction of actual bodily harm;[14] (2) assault occasioning actual bodily harm;[15] and (3) assault occasioning actual bodily harm in the company of another.[16] By definition, the Applicant’s commission of these three offences squarely falls within the ambit of paragraph 8.1.1(1)(a)(i) and must thereby be found to be very serious. The conduct constituting these offences was indeed violent. It involved the administration of violent physical force against victims.

   [14] Originally sentenced on 31 January 2013 at the Parramatta District Court, subsequently called-up by the Downing Centre District Court on 23 February 2015, at which a two-year Intensive Correction Order was imposed.

   [15] Sentenced on 28 August 2017 at the Burwood Local Court at which a 15-month Intensive Correction Order was imposed.

   [16] Sentenced on 31 January 2013 at the Parramatta District Court. The Applicant was sentenced conjointly with the abovementioned sentence described at footnote 13. 

3. While not necessarily violent per se, the Applicant’s offences of fraud should, to my mind, similarly be viewed as being very serious. This conduct was deliberately intended to fraudulently induce funds from unsuspecting members of the public by causing them to deposit those funds into a nominated bank account and for the Applicant to simply withdraw those funds and cause them to be passed onto others. The sentencing remarks reveal the scope and extent of the conduct.

   “His involvement was dealing with the criminal elements that were orchestrating those scams and then agreeing to be the conduit through him, whereby money would be deposited into a bank account, and he would then subsequently withdraw that money and pass the proceeds on, either as cash or as gold bullion, as it has been outlined in the case. The defendant has not been charged, as I have indicated, with being involved in the participation in the scams. He has been charged with participating in a criminal group and dealing with the proceeds of crime or knowingly directing activities of a criminal group, and all those elements of those offences are clearly made out in the facts and the defendant has pleaded guilty to those matters.

   It is beyond question that he would have known that the amount of money involved was coming from an illegal source and he agreed and consented to being involved in that process; and he must have realised that further down the track somewhere there would persons who were victims in relation to those large amounts of money. Amounts totalling more than 219,000 in relation to one charge and 155,000 in relation to another, so well in excess of over $350,000 that victims had been deprived of and have lost.”[17]

   [17] Exhibit 1, page 47-48.

4. While this offending is not necessarily violent, it is nevertheless wantonly and deliberately despicable. Later in these Reasons I will, as part of my assessment of the Applicant’s recidivist risk, make reference to his absurd and unsustainable explanation of the basis on which he says he became involved in this unlawful activity and the equally absurd and unsustainable explanation he provides for what he thought he would derive from it. For the present purposes of assessing its nature and seriousness, I am satisfied that the nature of the offending is wantonly and deliberately despicable. I am further satisfied that given the sheer magnitude of the fraud (in monetary terms) the offending must be found to be very serious.

5. On 27 February 2020, the Applicant was convicted of ‘Stalk/intimidate intend fear physical etc harm (personal)-T2’ and received a Community Correction Order of 18 months. The conduct is described in a NSW Police Facts Sheet appearing in the material. It suffices to say that the Applicant and two other individuals known to him, arbitrarily confronted a fellow-passenger on a public bus. The fellow-passenger did nothing to provoke the Applicant or his accomplices. The fellow-passenger did, after prolonged menacing conduct by the Applicant and his accomplices, raise his hands in a “give up motion”. Had the Applicant and his accomplices ended their conduct upon the fellow-passenger’s indication, the conduct would not be as serious.

6. But neither the Applicant nor his accomplices ended their conduct there. After cornering the fellow-passenger into a section of the bus and yelling abuse at him, the fellow-passenger became a victim of an appalling attack by the Applicant (not one of his accomplices). The NSW Police Facts Sheet records this:

   “The Victim has ended up cornered opposite the rear door to the bus with [first co-accused] and NOLUTSHUNGU yelling at him. NOLUTSHINGU has grabbed hold of the Victims [sic] collar at this point and forced him up against the wall of the bus for a short period of time before returning the rear of the bus. [first co-accused] has continued to yell abuse at the Victim and make threats towards the Victim and other passengers on the bus.

   Other passengers have continued to intervene and eventually [first co-accused] , NOLUTSHINGU and [second co-accused] have left the bus. The bus driver has contacted the Police regarding the incident.”[18]

   [18] Exhibit 9, page 178.

7. While he may not have been charged and convicted with a crime of violence, the Applicant’s abovementioned conduct was unquestionably violent towards the victim. Only on the basis that he was not actually charged with a crime of violence will I find that the offending per se is unquestionably serious. To my mind, this conduct can be readily graduated to very serious conduct because (1) it was perpetrated on an otherwise blameless victim; (2) it was perpetrated in a public area; and (3) it drew other members of the public into its orbit.

8. The Applicant also has convictions for a number of not-insignificant driving offences. These are not mere points-accumulation offences in the realm of speeding or failing to wear a seatbelt. They are more significant than that. He has convictions for (1) ‘negligent driving (not occasioning death/gbh)’; (2) ‘drive with middle range PCA – 1st off’; (3) ‘refuse or fail to submit to breath analysis’; and (4) ‘drive motor vehicle during disqualification period’. I have previously ventilated my views about the inherent danger presented to the community when an offender fails to observe the laws and regulations governing the operation of a motor vehicle on Australian carriageways:

   “[43] There is a further theme to his offending and it relates to his offences involving unlicensed driving and driving with a high range concentration of alcohol in his blood.…There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.

   [44] I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.

   [45] The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.”[19]

   [19] Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561.

9. In the quoted portion of the decision above, I have placed in bold the elements referable to this Applicant’s driving/traffic offences. These offences committed by the Applicant do go to the essential safety of the community. They must be found to be, at the very least, serious offences.

10. The Applicant has convictions for a number of other offences, none of which should be reasonably found to rise to any level of significant seriousness. This type of offending comprised:

    ·various infringement notices and warnings for smoking on train platforms;

    ·drinking alcohol at a railway station;

    ·not having a train ticket;

    ·possession of alcohol in a public place;

    ·being cautioned for stealing pornographic magazines;

    ·being warned for possession and consumption of prohibited drugs;

    ·being warned for smoking in a non-smoking area; and

    ·receiving an infringement notice for offensive behaviour.

11. While none of the immediately preceding dot-pointed conduct is serious, it is redolent of a person who has developed a propensity for having his own way and otherwise not accepting a lawful requirement that a particular thing must be done in the manner stipulated by the law and not in a manner that exclusively suits the Applicant. While this conduct may not necessarily speak to the nature and seriousness of the Applicant’s unlawful conduct, it is no surprise that he graduated from this type of offending into significantly more serious offending.

    Paragraph 8.1.1(1)(b)

12. Once again, it is necessary to have regard to the chapeau commentary in this paragraph which refers to conduct that the Australian Government and the Australian community regard as “serious”. There is nothing in the offending history indicative of this Applicant causing or being a party to a person being caused to enter a forced marriage.[20] This specific paragraph of the Direction is not relevant to the instant determination.

    [20] Paragraph 8.1.1(1)(b)(i) of the Direction.

13. The Applicant’s offending history does not contain any record of him committing crimes against vulnerable members of the community (such as the elderly and the disabled), or against government representatives or officials in the course of their duties.[21] During closing submissions, there was discussion about the scope and extent of the fraudulent scheme in which the Applicant participated and for which he was convicted and sentenced in April 2021. This is what transpired between me and the Respondent’s representative during closing submissions:[22]

    ‘SENIOR MEMBER: And I think the difficulty for the applicant in this matter is that his offending that was convicted in April ‘21 was community configured offending. That’s the issue.

    MR MCLAREN: Yes, yes.

    SENIOR MEMBER: It’s not a private transaction where he stole someone’s car, for example.

    MR MCLAREN: Yes.

    SENIOR MEMBER: It’s a broader scheme involving, as I said, putting tentacles into different parts of the community for financial gain.

    MR MCLAREN: Yes. And, indeed, Senior Member, just looking at the terminology that is used in that consideration, I mean there is express reference in there to commission of serious crimes against women, children, or other vulnerable members of the community, like the elderly or disabled, saying in this context serious crimes includes crimes of violent or sexual nature, as you would expect, 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.

    So, I mean, whether or not the precise terms of the offending fits on all fours within that concept of fraud, extortion, you know, financial abuse or material exploitation, I think in a sense it does. The only question would be the nature of the victim themselves, or the victims themselves, and the relevance of their characteristics in that consideration. But, at the very least, it does demonstrate, you know, the types of offending, as you have put, the community - the communal nature of the offending and then, of course, on top of that, you know, specifically involving financial matters, exploitation. Yes. So, the overall reason for highlighting, of course, being that that expectations of the community consideration will patch away against the applicant and, in my submission, weigh heavily against the applicant in the circumstances of this particular case.’

    [21] Paragraph 8.1.1(1)(b)(ii) of the Direction.

    [22] Transcript, p 124, lines 18-47; p.125, lines 1-5.

14. While the Applicant’s participation in the subject fraudulent scheme may have resulted in loss and damage to an elderly or disabled person, this factual element is not recorded in the sentencing commentary of the learned Magistrate who sentenced him in April 2021. The sentencing remarks refer to ‘victims’ but the nature and disposition of those victims is not particularised. It would therefore be incorrect to apply paragraph 8.1.1(1)(b)(ii) of the Direction to the offending history of this Applicant as a means of determining the nature and seriousness of his unlawful conduct.

15. Having regard to the material as fulsomely as I can, I am not able to ascertain the Applicant’s commission of ‘any conduct that forms the basis for a finding that [the Applicant] does not pass the character test that is dependent on the decision-maker’s opinion’.[23] Neither party is propounding any such conduct and I am satisfied that this particular paragraph of the Direction is not relevant to the instant determination.

    [23] Paragraph 8.1.1(1)(b)(iii) of the Direction.

16. As best as I understood it, the material has nothing to say about the Applicant’s commission of any offences while in immigration detention.[24] To whatever extent there may have been any incident involving the Applicant in immigration detention, this particular paragraph of the Direction, to my mind, requires graduation of that incident to the commission of an actual offence for which the Applicant was dealt with by a sentencing court of competent jurisdiction. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s offending.

    [24] Paragraph 8.1.1(1)(b)(iv) of the Direction.

    Paragraph 8.1.1(1)(c)

17. In applying this paragraph of the Direction, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women or children;[25] (2) acts of family violence;[26] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[27] The Applicant’s criminal history confirms that he does not have any convictions (and resulting sentences) for any of the offending precluded by this paragraph.

    [25] Paragraph 8.1.1(1)(c)(ii) of the Direction.

    [26] Paragraph 8.1.1(1)(c)(iii) of the Direction.

    [27] Paragraph 8.1.1(1)(b)(i) of the Direction.

18. The starting point in any application of this paragraph towards an analysis of the nature and seriousness of the Applicant’s conduct is the observation that the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. The imposition of a custodial term – especially a significant or lengthy custodial term – must be viewed as an indication of the objective seriousness of the offending sought to be punished.[28]

    [28] PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].

19. Even a cursory review of the Applicant’s offending history confirms he has received virtually the full ambit of sentencing options open to a judicial sentencing officer. Those sentences may be summarised thus:

    ·fines: he has had fines imposed upon him for his offending on at least five occasions. Those fines have ranged from $100 to $500;

    ·bonds: the imposition of at least one bond has been imposed on the Applicant having a duration of 12 months causing him to be placed under the supervision of the New South Wales Probation Service;

    ·Intensive/community correction order(s): sentencing courts have imposed these types of orders on the following occasions:

    o23/2/2015: intensive correction order imposed for two years;

    o28/8/2017: intensive correction order imposed for 15 months;

    o11/6/2019: community correction order imposed for nine months;

    o27/2/2020: (as part of a call up) community correction order imposed for 12 months;

    o27/2/2020: community correction order imposed for 18 months;

    ·Custodial sentences: these are the custodial terms imposed on the Applicant:

    o31/1/2013: two years (suspended upon entering a bond);

    o8/4/2021: three years (aggregate) consequent upon his conviction for five separate offences arising from his participation in the fraudulent scheme.

20. While the fines and bonds imposed on the Applicant are not, on their own, indicative of his commission of serious offences speaking adversely to the nature and seriousness of the Applicant’s offending, there is no escaping the reality that latter two types of sentencing modalities itemised above most certainly do. The imposition of an order compelling an offender to strictly adhere to the specific requirements of that order is a significant, but not custodial, means of attempting to administer some kind of deterrent effect on the wrongdoer. The imposition of a custodial sentence has the effect of depriving the offender of their personal liberty and of any right to participate in the community.

21. The sheer length of these types of sentences imposed on this Applicant are significant. An intensive/community correction order imposed for nine, 15 and 18 months is a significant sentence. As is such an order that is imposed for a period of two years. There is no cavilling with the reality (and finding) that the imposition of multiple (i.e five of them) head custodial terms for the commission of five very serious offences represents, both in a singular and cumulative sense, a very significant regime of sentencing. I therefore safely arrive at the finding that the sentences imposed upon this Applicant clearly indicate that the totality of his offending history has indeed been very serious.

    Paragraph 8.1.1(1)(d)

22. The Applicant’s offending history (in sentencing terms) runs from August 2010 until April 2021. We are talking about the commission of some 18 offences that were dealt with across nine separate sentencing hearings. In a sentencing history running for just over a decade this Applicant has committed, on average, approximately two offences per annum. On any objective view this must surely be found to be frequent offending.

1. The answer to the next question of whether the offending contains any trend of increasing seriousness can be readily discerned from abovementioned summary of the nature of the sentences imposed on the Applicant appearing at paragraph [51] of these Reasons. The first 13 offences committed by the Applicant were not punished by custodial sentences even though the fourth, fifth, seventh and eighth of those offences in the criminal history involve very serious offending against a person.

2. The position in terms of seriousness of the offending considerably worsens when one has regard to the nature of the offending that came before the Penrith Local Court in April 2021. The Applicant’s previous offending involved him – mostly on his own – committing offences against individual victims or as a result of refusing to comply with the requirements of lawful authority. The offending dealt with by the Penrith Local Court in April 2021, takes the seriousness of his offending to a completely different level. This was offending that had its tentacles in numerous parts of the community. It was offending obviously committed as part of a broader and more significant criminal enterprise. It resulted in not just the imposition multiple three year terms of imprisonment but also the making of a Compensation Order against the Applicant in the sum of $100,000.

3. For the purposes of this paragraph of the Direction, I am satisfied that the Applicant’s offending has been frequent and, across its approximate decade-long duration, it clearly demonstrates a trend of increasing seriousness. This paragraph of the Direction strongly militates in favour of a finding that the Applicant’s offending has been very serious.

   Paragraph 8.1.1(1)(e)

4. This paragraph requires me to ascertain any cumulative effect(s) of the Applicant’s repeated offending. To my mind, several such cumulative effects are readily discernible from the Applicant’s offending history. First, there seems to be a recurring refusal of this Applicant to respect the lawful authority governing the Australian community back into which he seeks re-admission. He appears to not understand or respect the laws and regulations governing the ownership and operation of a motor vehicle on Australian carriageways. This can be seen in his respective convictions for driving while disqualified, driving whilst under the influence of alcohol, negligently driving, refusing to submit to breath analysis testing and refusing to provide his particulars to another motorist with whom he had collided.

5. Second, the Applicant’s multiplicity of convictions for the infliction of physical violence on individual victims is clearly indicative of a failure to respect the personal rights of those victims. Members of the Australian community are entitled to go about their business (including, for example, using public transport) without the fear that someone like the Applicant will arbitrarily accost or assault them. The Australian public should not be reasonably expected to tolerate such physically threatening conduct from an offender who fails to respect the lawful sanctity of the other person’s own private space and their inherent right to avail themselves of resources that are generally available to the community.

6. Third, the Applicant’s offending history surely indicates the mindset of someone who has abjectly failed to respect the property rights of others. This dimension of the Applicant’s history can be seen in its earlier phases where he has convictions for aggravated robbery. This refusal to respect the property rights of others had its crescendo in the Applicant’s commission of the very serious offences arising from his knowing and willing participation in the significant fraudulent scheme that saw members of the community unlawfully relieved of hundreds of thousands of dollars.

7. These three cumulative effects of the Applicant’s repeated offending safely lead me to a finding that the totality of his offending in this country has been of a very serious nature.

   Paragraph 8.1.1(1)(f)

8. There is reference in the material to a couple of incoming passenger cards which the Applicant appears to have incorrectly completed. The first of those cards is dated 3 April 2019.[29] This date appears to be incorrect because when it is checked against the Applicant’s movement records, his return to Australia at that time occurred on 3 May 2019, not 3 April 2019. On the front page of that card, the Applicant is asked that if he is not an Australian citizen, whether he has any criminal convictions. He placed a tick next to the ‘No’ answer.

   [29] G1, p 114.

9. The second passenger card is dated 2 February 2011. The same question is put to the Applicant and, once again, he ticked the ‘No’ answer. Both of these responses are incorrect. By the date of the earlier-in-time passenger card, the Applicant had compiled three convictions in Australia. By the date of the other passenger card, he had compiled eight criminal convictions. Therefore, both in-coming passenger cards have been incorrectly completed and this conduct thus falls within the auspices of this particular paragraph of the Direction involving the Applicant’s provision of false or misleading information to the Respondent’s Department as a result of not disclosing prior criminal offending.

10. The next question is what, if any, explanation the Applicant provides for this provision of false and misleading information. The Applicant’s SFIC[30] is silent in terms of providing any explanation, as is the initial submission lodged on behalf of the Applicant,[31] as is the Applicant’s statutory declaration made on 12 December 2022.[32] At an earlier stage of this proceeding, the Applicant’s representative forwarded a letter to the Respondent’s Department purporting to explain the errors in the two incoming passenger cards along these lines:

    ‘Our client states that he was not aware that he was convicted of any criminal offences. He states that he ticked no to having any criminal convictions because he misunderstood the question. Mr Nolutshungu states that he thought the question asked if he has ever been in jail. As he has never been in jail at that time he ticked no to the question.

    Mr Nolutshungu states that he misunderstood the question, and it was not his intension to mislead the Department. Our client states that the only reason he did not declare his criminal conviction was because of his ignorance and it was not to mislead the Department or to disregard the Australian laws.’[33]

    [30] Exhibit 10.

    [31] Exhibit 2.

    [32] Exhibit 5.

    [33] Exhibit 1, p 93.

11. The Applicant was taken to this issue in cross-examination. His purported explanation for provision of the false information was both obfuscatory and unconvincing. He referred to the abovementioned letter from his representative where it is suggested that he ‘misunderstood’ the question.[34] In his oral evidence, he purported to suggest that he confused the concept of a criminal conviction with the requirement to serve actual time in custody. In other words, he told the Tribunal at the Hearing that, in his mind, a person did not have a criminal conviction (or have to tell a third party about a criminal conviction) if that person had not served actual jail time for that offending.

    [34] Transcript, p 64, lines 14-15.

12. Be all of this as it may, the Applicant eventually accepted that the information provided in both passenger cards was indeed false information:

    ‘MR MCLAREN: But you would accept, wouldn’t you, that it’s objectively false information?

    APPLICANT: It’s wrong, yes.  It’s false information.  I wrote a letter explaining all of that.  I was - maybe it’s a different department, but I commented on this previously and I explained that I’d misread the question or misunderstood what it meant at that time.’[35]

    [35] Ibid, lines 13-17.

13. Ultimately, this particular paragraph of the Direction must be applied towards an assessment of the nature and seriousness of the Applicant’s offending. By virtue of the Applicant’s acceptance that the information in the cards was false, this paragraph must militate in favour of a finding that the totality of the offending now before the Tribunal has been very serious.

    Paragraph 8.1.1(1)(g)

14. I have checked the Respondent’s SFIC and there is no propounding of any factual element involving the provision of any written warning to the Applicant of the type contemplated by this paragraph. I have also checked the G-documents material and cannot locate any such warning. This paragraph can be safely put to one side and rendered irrelevant for the purposes of the instant determination.

    Conclusion about the nature and seriousness of the Applicant’s conduct

15. I have sought to apply each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts have safely led me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

16. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.

17. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

18. Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. In my view, it can be safely concluded that:

    ·were this Applicant to again involve himself in very serious physical offending against a person, similar to the conduct that saw respective convictions for assault occasioning actual bodily harm and aggravated robbery and inflict actual bodily harm. There is surely no cavilling with the finding that any future victims of such offending would likely face very serious physical injury with even permanent or catastrophic outcomes. There is simply no other way to read and understand conduct involving punching a victim ‘in the face and head using both his right and left fists until the victim went limp’;[36]

    ·were the Applicant to again assume control of a motor vehicle on an Australian carriageway when not properly qualified or licenced to do so or while under the influence of intoxicating liquor, or if he were to otherwise negligently drive a vehicle, other road users would be exposed to significant risk of harm, including catastrophic harm. Further to that, it causes undue stress upon the law enforcement apparatus when motorists refuse to comply with lawful directions to submit to random breath testing;

    ·were this Applicant to knowingly involve himself in an unlawful scheme concerned with the fraudulent taking of hundreds of thousands of dollars from innocent and unsuspecting victims, then future victims of such offending would, without question, suffer quantifiable and very significant financial loss.

    [36] Exhibit 1, p 53.

19. I am therefore satisfied (and I find) that were this Applicant to re-commit offences of the type he has committed thus far, of the harm to the individuals and/or the Australian community would be very serious and would likely involve physical, psychological and quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level.

20. The conduct comprising the Applicant’s involvement in the fraudulent scheme resulted in such a significant level of financial harm to its victims such that it leads this Tribunal to conclude such conduct is something that the Australian community should not be reasonably expected to tolerate. This type of broad-based, wanton and deliberate fraudulent behaviour is, to my mind, so significant that any repetition of it in either identical or similar terms, and the harm that would result from it, is so serious that any risk of its re-commission is totally unacceptable to the Australian community.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))

    (i) Information and evidence on the risk of the Applicant re-offending

    Written submissions filed on behalf of the Applicant

21. In a written submission prepared by the Applicant’s representative dated 15 July 2021 and utilized at and earlier stage of this proceeding, the Applicant was said to be remorseful for his criminal conduct in Australia and that he otherwise represented no risk to the Australian community: [37]

    ‘The applicant states that he is remorseful for his past actions and states that it had a huge effect on his family. The applicant states that he has ‘learned his lesson' and that he would not repeat his conduct because of the significant strain it had on him, his family and most importantly, the effect of being separated from his child. The applicant states that, in hindsight, he is glad that he received a prison sentence because it gave him time to reflect on his life, what he wants from life, how he sees his future and his relationship with his partner and daughter.

    The applicant states that there is no risk to the Australian community because he will not commit any further offences. He now wants to get out of jail and concentrate on earning a living and to be a good role model for his family. The likelihood of the applicant engaging in further criminal or other serious conduct is nil.’

    [37] Exhibit 1, pp 88-89.

22. In his Personal Circumstances Form (‘PCF’) he Applicant said by way of explanation of his offending: [38]

    ‘I made some bad decisions in my life, that I’m ashamed of. I really didn’t think anything through and was gullable [sic] enough to ignore some very loud alarm bells, out of desperation and greed I found myself involved in something that I wasn’t fully aware off. Now I know and I feel terrible for the harm I’ve caused to the community, the victims and my family and am willing to do what ever it takes to right my wrongs or move forward with my life and watch my daughter grow up.’

    [38] Ibid, p 80.

23. In terms of his level of recidivist risk, he said the following in his PCF: [39]

    ‘Honestly I was stupid and could have seeked [sic] support from my family. Now I understand that, but more than anything I have to be there for my daughter everystep [sic] of her life and will never do anything to jeopardise that.’

    [39] Ibid.

24. In the SFIC filed on his behalf, the following contentions are put:

    ‘The applicant strongly denies that there is any risk to the Australian community. He states that he is motivated to never offend again and there is no risk to the Australian community. The applicant states that while he was in prison, he completed various courses to address his offending behaviour. He will continue with counselling courses when he is allowed back in the community to ensure that he does not re-offend again. The applicant states that he is rehabilitated, and his focus is to gain employment and to care of his young family.

    The applicant states that this consideration should not weigh against revocation.’[40]

    Evidence of the Applicant

    The Applicant’s written statement made on 12 December 2022

    [40] Exhibit 10, pp 4-5, paras [27]-[28].

25. In this statement the Applicant recounts, more or less, his social history in Australia. He refers to the death of his father in 2019 as ‘…the hardest thing I’ve ever had to face’.[41] He also purports to explain the circumstances of his offending in the fraudulent scheme together with his violent offending. He speaks of becoming a regular churchgoer and of having ‘…developed a closer relationship with God.’[42] He says that he has ‘abstained from drugs and alcohol my entire time in custody and I feel confident that I will stay sober for the rest of my life. I have been a model inmate and have grown to appreciate a quiet and peacefull [sic] life.’[43]

    [41] Exhibit 4, p 2.

    [42] Ibid, p 3.

    [43] Ibid.

26. He refers to his relationship with Ms Lina Marcus and to the birth of their infant daughter. According to this statement, the arrival of the new child has comprised a pivotal moment in his life:

    ‘The moment I found out my partener [sic] was pregnant. I immediately made a concious [sic]decision to turn my life around. But unfortunately my misktakes [sic] caught up with me, when my partner was just six weeks pregnant with our baby girl. As a result I have been behind bars my daughter's entire life.’[44]

    [44] Ibid.

27. A further protective factor that he cites against his recidivist risk is the responsibility to look after his aging and ailing mother. In relation to her, the statement records the following:

    ‘My mother is almost 70 years old she suffers from a high blood pressure. Diabetes [sic] and asthma, she needs me close to her so I can help with things around the house that my Dad used to do.’[45]

    [45] Ibid.

28. At the end of the statement, the Applicant purports to express remorse and regret for his unlawful conduct and provides an assurance of his intention to never again offend. He seeks a further chance to be returned to the Australian community to (1) resume his Christian outreach work; (2) to be a devoted and loving father and partner; and (3) to assist with the care of his elderly mother:

    ‘I deeply regret all my past mistakes and I wish i could go back and do things differently, but I can not turn back time. What I can do is learn from my experiences, implement the lessons I have learnt and work for my family's future. I will! contunue on the path of self improvement and will take counselling session to ensure that I NEVER re-offend again. I have too much to loose this time.

    Which is why I am begging for another chance out in the community. So I can eventually go back to my outreach work which I loved so much, and give back to the community that has given me so much.

    I am also begging for another chance because of my family, my first piority is to be an active and present father in my daughters life, a devoted husband to my fiance, and a supportive son to my elderly mother. If given another chance I will not do anything that will put me infornt of the courts again, or put me at risk of not being there for my family again.’

    [Errors in original]

    The Applicant’s oral evidence

29. In his evidence-in-chief the Applicant was taken to the circumstances of his participation in the significant fraudulent scheme. He was asked whether he received any funds from his participation in that fraudulent activity and he responded thus:

    ‘MR NAZER: From those criminal activities you were charged with deal with the proceeds of crime to an amount of more than $100,000.  Did you receive any funds from those activities that were renumerated?

    APPLICANT: No, definitely not.  Basically I’ve got a $100,000 fine to show for what I did.  I didn’t make a single cent.  Or, you know, if you look at the record, me and my co-accused were trying to apply for Centrelink when we got arrested.  So if I had a couple of hundred thousand dollars sitting around I wouldn’t be standing in a line waiting for Centrelink.’[46]

    [46] Transcript, p 22, lines 36-43.

1. The Applicant was then asked whether he intends to become involved in such similar unlawful activities in the future and he responded with ‘No, no way.’[47] He spoke of an intention to assume a role of the devoted father to his daughter and partner to Ms Marcus:

   ‘I’ve already missed out on two years of my daughter’s life, you know.  I don’t want to miss another second.  Not just that, I have to be an example for her.  Or if we have more kids and we have a son, like, I don’t want him going through the same, you know, mess that I had to go through.’[48]

   [47] Ibid, p 23, line 5.

   [48] Transcript, p 23, lines 7-11.

2. The Applicant was taken to his time in prison/immigration detention and, in particular, the nature and extent of any rehabilitative courses. He was specifically asked whether he thought those courses can now be said to address his recidivist risk:

   ‘MR NAZER: While you were in gaol did you work or do anything?

   APPLICANT: Yes, I stayed as busy as I could.  While I was on remand I started doing as many courses that I could qualify for like cleaning courses, computer literacy courses, basic literacy, domestic violence.  After I got sentenced I did HIPU, which is high intensity program units which covers things from anger to addiction to - there was TRIP which is like a driving thing, to domestic violence to controlling impulses.  Yes, there was about 12 units.

   MR NAZER: Why did you think it was necessary for you to do all those courses?

   APPLICANT: I learnt a lot of useful life skills from them.  I’ll be honest, at the start of the - the courses I did on remand were from my choice, but HIPU I got given to by Corrective Services.  And I didn’t have - I didn’t think I needed it at the start, but I left with a lot of useful life skills.

   MR NAZER: Do you think that those courses helped you to address your criminality or your criminal behaviour?

   APPLICANT: 100 per cent.  100 per cent.  And one of the things that have stuck with me through that course was something a teacher told me on how to avoid disaster.  She used an analogy of a meteorite coming to hit Earth and she said, “If you knock that meteorite off its trajectory by one degree, chances are you avoid a disaster.”  And she explained that, you know, if you just make smaller, smarter one-degree choices, you can avoid disaster as well.’[49]

   [49] Ibid, lines 18-39.

3. The Applicant was then taken to the concept of rehabilitation and, in particular, he was asked whether he felt he had been rehabilitated during the period of his removal from the Australian community.

   ‘MR NAZER: The whole intention of Corrective Services is to rehabilitate inmates and to make sure that they do not reoffend or come back into the prison system again after they are released.  Do you think you are rehabilitated?  Do you think those courses were (indistinct) for you?

   APPLICANT: Yes.  Honestly, the courses were worth it to teach me, like, things that I didn’t know I learnt.  But the whole experience as a whole as well, like, it’s - you know, I’ve seen things that I shouldn’t have to see in custody, you know, that I wouldn’t like to – I wouldn’t have liked to see.  And, you know, yes, I’m rehabilitated because I don’t want to go through all that again.  And I have a future with my family that I need to focus on.  And I’ve got too many things to live for, I can’t afford to keep - you know, to be getting caught up in flushing three years of my life down the drain because I was desperate.’[50]

   [50] Transcript, p 23, lines 41-47; p 24, lines 1-5.

4. The Applicant was asked whether he represented a risk to the Australian community if returned to it and he responded thus:

   ‘MR NAZER: Do you think the Australian community is at risk if you are allowed to remain in Australia?

   APPLICANT: No.  My family is part of the Australian community so - and the - you know, this country has taken me from a dark place and actually given me opportunities.  So besides my family being part of this country, I owe a great debt to Australia for giving me opportunities that were otherwise impossible.’[51]

   [51] Ibid, p 24, lines 7-12.

5. The Applicant was then asked about his understanding of the nature and seriousness of the crimes he had committed with particular reference to his participation in the fraudulent scheme. He responded thus:

   ‘MR NAZER: Do you know the seriousness of the crimes that you committed?

   APPLICANT: Of course.  You know, one of the victim’s names is written on my factsheet.  And if I knew what was happening - no way.  You know, I didn’t know that this money was getting stolen from innocent victims, I thought I was just helping someone out.  You know, now I feel like - you know, like, I don’t know.  I feel terrible, you know.  This is someone’s mother, someone’s daughter, someone’s father, you know.  If that happened to some - to a member of my family I know how I’d feel.’[52]

   [52] Ibid, lines 14-21.

6. Finally, the Applicant was asked about his priorities for the future were he allowed to remain here. He spoke of an intention to participate in family life with his daughter and his fiancé and of an intention to resume his community-type work with the Salvation Army:

   ‘MR NAZER: What will be your focus in the future if you are allowed to remain in Australia?

   APPLICANT: My family.  My daughter and my fiancé.  Me and her have been planning to get married for the longest time now and it just hasn’t happened because obviously I’ve been in custody.  And because we had a child out of wedlock her family is giving her a very, very hard time about it.  But outside of me focusing on my family, I also have career goals once, like, my family’s immediate needs are met; like, house and food and all those basic things.  I did work placement when I was doing health and community services with the Salvation Army, and out of all the jobs I’ve ever done, when I was doing outreach work with the Salvation Army I felt at home.  I felt like I found my calling.  So I’ll probably work towards that after I have - you know, if, like, given the chance after I put together a life for my family, that would be the next goal.’[53]

   [53] Transcript, p 24, lines 23-35.

7. The Applicant’s cross-examination proceeded along the more or less conventional basis of him being taken to the various components of his criminal history, having the factual circumstances of a particular offence read to him and then being invited to comment on the veracity of each given document purporting to describe his offending activity. To the Applicant’s credit, he did not purport to cavil with or otherwise refute the circumstances of his offending history comprising the offences that were dealt with up to and including the sentencing episode at the Manly Local Court on 27 February 2020.

8. This accommodating posture, however, markedly changed when the circumstances of his participation in the very serious fraud scheme were put to him. It is, to my mind, a matter of concern and, further, a matter speaking directly to his recidivist risk, that at the Hearing before me, the Applicant sought to re-cast and otherwise sanitise (1) the circumstances leading to his involvement in the scheme; (2) his participation in the scheme; and (3) the extent of his knowledge of loss and damage suffered by victims of the scheme at the time he was involved in it.

9. In cross-examination he was taken to the circumstances of how he says he came to be involved in this fraudulent scheme. According to him, a shortfall of money was the primary motivator because a previous domestic partner of his (not Ms Marcus) had been shunned by her family and he felt responsible for raising the necessary funds to take her in and to otherwise support and sustain her. This is how he explained the circumstances in which he came to be involved in the scheme:

   ‘MR MCLAREN: And so that then does take us to the last set of offences then.  So, as you sort of indicated, the ones for which you ended up landing in prison.  And this was in relation to dealing with property the proceeds of crime, participating in criminal group activity, and knowingly direct activities of criminal group.  Your solicitor asked you a few questions about this.  So I understand you to be saying that you were spurred to engage in this activity because you were struggling for money?

   APPLICANT: Yes, I was struggling for money and, like I said before, my missus got kicked out of home.  Not the one I’m with now, previous got kicked out of home.  We were living with my friend and there was four dudes in the house drinking every day.  Basically lost everything.  Her car was going to get repossessed, our phones got cut off, food was - you know, rent wasn’t getting paid.  Like, we were on the verge of homelessness.  And then, yes, I met this dude at a pub somewhere drinking and I just - you know, I was sharing my sorrows with him, telling him how my life is upside down.  And then he decides to tell us that, yes, he’s about to start a business in Australia.  If I can help him get his money here, you know, once he starts the company he’ll give us a good job.’[54]

   [54] Transcript, p 50, lines 10-26.

10. The Applicant said in his evidence that he first met the relevant person who introduced him to the scheme two or three months after his former girlfriend’s family had asked her to leave home. He recalls this time as being approximately May 2019.[55] He said that he started receiving funds into his account as a result of his participation in the unlawful scheme only three weeks or so he met this individual who introduced him to it.[56]

    [55] Ibid, line 33.

    [56] Ibid, lines 44-47.

11. He was asked to describe the nature of his involvement in the scheme. Essentially, it involved him receiving transfer of funds into his own bank account and then simply withdrawing those funds for provision to another person or for utilization in terms of buying things such as gold bullion or foreign currency:

    ‘MR MCLAREN: Okay, okay.  So, do you - so just in terms of the actual offending, you received sort of transfers of money into your bank account; correct?

    APPLICANT: Yes, he would send - he would show us receipts and everything, like it was legit.

    MR MCLAREN: And then what were you told to do?

    APPLICANT: Sometimes I just go to the ATM or whatever and pull the cash out.  There was times where I went to buy gold bullion from - excuse me - I don’t remember the dealer anymore, but yes, somewhere in the city.  And there was times when we purchased foreign currency, American dollars, I think.

    MR MCLAREN: And so what - so this person - he had said to you, ‘I need money to’ - well, essentially, ‘I need money exchanged because I don’t have an Australian bank account’, or something?

    APPLICANT: No.  He’d - yes.  ‘I don’t have an Australian bank account.  Help me get my money here so I can start this company and I’ll give you a job.’

    MR MCLAREN: Okay.  I can’t put my finger on it at the moment.  Did you travel to Queensland on one occasion?

    APPLICANT: Yes.’[57]

    [57] Ibid, p 51, lines 24-41.

12. Further circumstances of the offending were put to the Applicant and this is the point at which his evidence in and around his commission of this offending became both obfuscatory and untenable. It commenced with a question around the scheme’s deliberate targeting of business emails. His response to that question was unconvincing and, to my mind, the quality of his evidence did not improve from that point onwards:

    ‘MR MCLAREN: Yes, okay.  And then - so this fact sheet also suggests that there was some other sort of scam going on around business email compromises.  Does that ring a bell to you?

    APPLICANT: Yes.  After I came to gaol I knew what that was.  Before then, I just thought I was helping this dude out.

    MR MCLAREN: What do you understand of that now?

    APPLICANT: Like, someone gets into your email somehow, and then - what do they do?  Like, I don’t know.  They get into the emails and somehow steal their money and honest - I don’t know.  That wasn’t something, like, that - I don’t know.  You know, I’m not that tech savvy or money savvy or - those are hard questions for me to answer.’[58]

    [58] Transcript, p 52, lines 1-11.

13. The Applicant was reminded that he was convicted of this offending on the basis of him being knowingly involved in the scheme and its ultimate purpose. The Applicant sought to challenge the Respondent’s representative on the basis of seeking to delineate the learned sentencing Magistrate’s observation that he was knowingly involved in the scheme compared to it now being said that he was ‘aware’ of the scheme’s nefarious purposes. I dismiss this evidence in its entirety. This dismissal is justified by the plain words of the transcript:

    ‘MR MCLAREN: Yes.  The reason I ask is because, I mean, you’ve been convicted of being knowingly involved.  It’s not, sort of - and the sentencing remarks of the court say that you were aware that what was involved ‑ ‑ ‑?

    APPLICANT: No, it doesn’t say I was aware.  The judge says he must have known.  That’s not saying I’m aware.

    MR MCLAREN: Yes. 

    “It is beyond question that he would have known that the amount of money involved has come in”?

    APPLICANT: Would have known.

    MR MCLAREN: Yes?

    APPLICANT: I didn’t, though.  How can the judge make such a, like, 100 per cent, like, I know, when I know I don’t know?’

14. The Applicant then sought to re-cast his motivation for involvement in the scheme on the basis of him purporting to be a victim of his own misfortune at the time. This misfortune, he says, caused him to operate in a state of ‘wilful ignorance and greed’ and that those were the primary factors behind his criminality:

    ‘MR MCLAREN: So you’re saying in all of this, you’re an innocent bystander who just so happens to have pleaded guilty?

    APPLICANT: No, no.  No.  Wilful ignorance and greed is what motivated me.

    MR MCLAREN: So when you say wilful ignorance, what do you mean by that?

    APPLICANT: I mean I should’ve been more suspicious about it, but at the time my stomach was empty and my phone needed credit and my missus was going to lose her car, so my suspicions just were overcrowded by everything else that was happening at the time.  But for anyone to say that I actually knew, that’s just completely untrue, and I can’t accept that, you know, because that’s me saying I did something I didn’t do.’[59]

    [59] Transcript, p 52, lines 29-39.

15. The Applicant accepted (1) that his involvement in the scheme was over quite a lengthy period of time;[60] (2) that he was withdrawing fraudulently obtained money and purchasing gold bullion or US dollars with it;[61] and (3) that one of his co-accused was acting under his direction involving her fraudulently obtaining funds and giving those funds to him.[62]

    [60] Ibid, lines 41-42.

    [61] Ibid, p 52, lines 1-12.

    [62] Ibid, lines 10-12.

16. He was specifically asked about why he was not asking questions about the legitimacy (or otherwise) of the scheme and why it was that he did not make more stringent inquiries into whether his involvement constituted a breach of the law. Once again, the Applicant sought to obfuscate his evidence by purporting to delineate between ‘knowing’ something he was doing might have been wrong compared to simply not knowing about its wrongfulness or not asking about its wrongfulness. This obfuscatory position eventually evolved into the Applicant suggesting he was simply following orders and nothing more. He had no explanation of how the position he was now taking fails to square with the basis on which he was convicted:

    ‘MR MCLAREN: But you appreciated that you weren’t asking questions because you knew something was dodgy, right?

    APPLICANT: Saying I knew is a strong word because I didn’t know.  I just didn’t ask.  Saying I knew is - is implying that I was aware of whatever the business email, whatever - of whatever they were doing behind closed doors.  I didn’t know anything about that.  I was told you go from the money in your account, go pull it out, give it to this person, when everything is up and running, we’ll give you a job. 

    MR MCLAREN: You do appreciate, though, that you pleaded guilty to ‑ ‑ ‑?

    APPLICANT: Yes, absolutely.

    MR MCLAREN: Including ‑ ‑ ‑?

    APPLICANT: Yes, I did.

    MR MCLAREN: - - - knowingly directing the activities of criminal work?

    APPLICANT: Yes, of course, because I knew I was telling her go do this, go do that, go do that, but I did not know that that money had been stolen from this person, or that person, or that person.  Obviously me telling her to go withdraw the cash is a crime, because she got charged for that.  That’s why I am admitting to it, because I did tell her to do that.

    MR MCLAREN: Yes?

    APPLICANT: Yes.  But what happened previous to that money arriving to her account, I know nothing about.

    MR MCLAREN: Did you ever have any suspicions, did you ask anyone?

    APPLICANT: Like I said, I didn’t ask any questions.  I was too hungry and too desperate.  You know, have you ever heard the saying don’t look a gift horse in the mouth?

    MR MCLAREN: Of course?

    APPLICANT: Well, look at it in the mouth is my word of advice.’[63]

    [63] Transcript, p 53, lines 17-43.

17. The questioning then turned to what type of monetary or other reward the Applicant received for his participation in the scheme. The nature of the Applicant’s responses to these questions absolutely lacked any credibility and verged on the absurd. He purported to suggest that the entirety of his compensation for his involvement in this scheme comprised the offer of future employment with a construction company that the principal of the fraudulent enterprise would, at some point in the future be setting up:

    ‘MR MCLAREN: So, what did you receive for doing this then?

    APPLICANT: Three years and a $100,000 fine.

    MR MCLAREN: No, no, but why were you doing it?

    APPLICANT: To get a job when the company was up and running, sir.

    …

    MR MCLAREN: It just strikes me that you’re going to a lot of effort for, on your evidence, absolutely no payoff over, you know, an extended period of many months.  It just strikes me as being peculiar?

    APPLICANT: I can understand that, but the promise of a stable career, a pension, you know, all the things someone in your position already has is enough to blind a desperate person for a few months.

    MR MCLAREN: What sort of business did he say he was going to be recruiting you to?

    APPLICANT: A construction business.

    MR MCLAREN: A construction business.  You had already worked in construction, hadn’t you?

    APPLICANT: I was already working in construction, yes sir.

    MR MCLAREN: And what was his promise, what did he say the role would involve?

    APPLICANT: Um, being a foreman.

    MR MCLAREN: Okay?

    APPLICANT: You know, training me to become a foreman. 

    MR MCLAREN: And you met this person randomly at a pub?

    APPLICANT: Yes sir.

    MR MCLAREN: You’d never met him before?

    APPLICANT: No sir.

    MR MCLAREN: You just got to chatting at the pub and he said, “Hey, here’s this thing that’s happening.”?

    APPLICANT: Yes, yes sir.  I am a very social person, so, even here I talk to everyone and anyone, I am not shy in that sense.’[64]

    [64] Ibid, lines 45-46; p 54, lines 1-2; p 55, lines 28-47; p 56, lines 1-3.

18. He was asked about whether the principal of the enterprise – which is one and the same person that the Applicant says offered him a future job in a future construction business – ever provided him with a specific timeframe of when he could expect to realise this construction job. Once again, the Applicant’s evidence became obfuscatory and he purported to suggest that the principal strung him along with either vague promises of employment or weak excuses about why the construction job had not materialised. This evidence must be rejected in its entirety.

    ‘MR MCLAREN: Did the recruiter or the Principal, did he ever give you a timeframe about when you could expect to start working in this role that he was supposedly offering?

    APPLICANT: He said it could take up to two years to get everything up and running.  You know, he always had some, ah, you know, “I got to get my, like, visa,” like, “They’re not allowing me to” - you know, he kept coming up with all these bureaucratic excuses of, you know, “We’ve got this hurdle to overcome now; we’ve got that hurdle to overcome”.  And in my mind, I’m thinking, “All right, if he just gets this done, then we’re good.  Ah, no, here’s another thing.  If he just gets this done, then we’re fine”.

    MR MCLAREN: So, well, was it naivety then or was it - I mean, you’ve said and accepted that you were, sort of, wilfully turning a blind eye to this?

    APPLICANT: Yes, sir.’[65]

    [65] Transcript, p 58, lines 43-47; p 59, lines 1-7.

1. To the extent that the Applicant may now contend he either has or will experience trauma as a result of this incident, that evidence needs to be received cautiously on the basis that (1) his evidence to this Tribunal was that he has no mental health issues; and (2) there is no current and independent clinical opinion referring to the claimed trauma. Were he to be removed to South Africa, he will have access to physical and mental health treatment that is generally available to other citizens of South Africa. It can be found that the standard of publicly available healthcare in South Africa may not be to the same level as that to which the Applicant has become accustomed  in Australia.

2. In terms of social support, it can also be accepted that the Applicant will experience difficulty in sourcing and receiving support from relatives and friends in South Africa. In her evidence given in cross-examination, the Applicant’s mother spoke about relatives she visits in South Africa on the occasions she returns to that country. It seems safe to find that the Applicant will not be entirely devoid of social/family contacts in that country as a means of short-term assistance in resettling there but, on the other hand, it would not appear that any such arrangement would be anything more than temporary:

   ‘MR MCLAREN: Okay, sure.  Would I be right to assume that there is no such hostility towards your son from your own two children?

   MS NOLUTSHUNGU: As I was saying, my two children did not have a good relationship with my husband because he is not their father.  Consequently, they thought I left them for this man and my relationship with them was never compared to what it was before, and now they are family men with their own families.  I don’t see them accommodating me and [the Applicant] in their lives.

   MR MCLAREN: But you have already said that you visit them when you go back to South Africa?

   MS NOLUTSHUNGU: Yes, that is why I don’t stay with them for a long time.  I visit them maybe for two or three days, then I go to the other one for a few days, and I leave and go and stay with my sister.

   MR MCLAREN: Do you keep in contact with them while you are in Australia?

   MS NOLUTSHUNGU: Occasionally, I do.

   MR MCLAREN: What does occasionally mean?

   MS NOLUTSHUNGU: Maybe once in two weeks I will call them.

   MR MCLAREN: A couple of times a month you will speak to each of them?

   MS NOLUTSHUNGU: Yes, I do.

   MR MCLAREN: Do you do that by telephone or by email, or by video calls?

   MS NOLUTSHUNGU: By phone.

   MR MCLAREN: Is that fairly standard?  A couple of times a month or every other week, I think you said?

   MS NOLUTSHUNGU: It is just when I think of calling them, but they never think of calling me.’[164]

   [164] Transcript, p 109, lines 18-42.

3. It is therefore safe to find that the Applicant will be confronted with a certain level of impediments upon a return to South Africa in the realms of (1) being able to find employment; (2) being able to avail himself of publicly available healthcare; and (3) having the support of his family as a means of sustaining himself on a temporary basis in the course of re-settlement.

4. Overall, having regard to my respective findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it confers a strong, but not determinative, level of weight in favour of revocation of the delegate’s decision under review.

   Other Consideration (c): Impact on victims

5. The parties are ad idem that this Other Consideration (c) is of no relevance to the instant determination.[165] I agree.

   [165] See Transcript, p 131, lines 32-37; p 139, lines 16-19. See also both SFICs which are silent about this Other Consideration (c).

   Other Consideration (d): Links to the Australian Community

6. Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community. There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.

   (1)  Strength, nature, and duration of ties

7. With reference to the first part of this Other Consideration, three elements require discussion. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any ‘other ties’ the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other ‘family or social links’ the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.

   i. Impact of non-revocation on the Applicant’s immediate family

8. As best as I understood the evidence, the Applicant has two immediate family members in Australia. They comprise: (1) his abovementioned domestic partner, Ms Marcus; and (2) his abovementioned mother.

9. It is plain from the evidence of Ms Marcus that she will be significantly adversely affected in the event of the Applicant’s removal. She and the Applicant intend to marry and, indeed, this marriage could be considered ‘necessary’ in order to remove the stigma Ms Marcus has been unfortunately compelled to endure because Child C was born at a time when she and the Applicant were not married. The Applicant and Ms Marcus plan on having further children. Ms Marcus also needs the Applicant to be with her as a means of co-parenting Child C and for the purposes of financial and other material support in making ends meet. Ms Marcus is not interested in relocating herself and Child C to South Africa and nor should she be reasonably expected to do so. The return of the Applicant to her life (in a personal sense) will assuage the uncomfortable relationship she currently has with her family arising from the circumstances of Child C’s birth.  

10. The Applicant’s mother is in a materially more comfortable position than Ms Marcus. She commendably supports herself from income she derives from her work as a full-time registered nurse in the aged care sector. She speaks of a gradually worsening state of health but is nevertheless able to hold down full-time employment and has otherwise managed to get on with her life while the Applicant has been removed from the Australian community. It can be accepted that the Applicant will have a supportive role to play in his mother’s life as she ages and her state health gradually deteriorates commensurate with her age. While the Applicant’s mother may not be all that adversely affected by his removal in an immediate sense, there is a likelihood that she will require his support as she ages and possibly becomes more infirm.

11. Therefore, the Applicant’s links with the immediate family members in Australia comprising Ms Marcus and his mother strongly militate in favour of setting aside the decision under review. I base this finding on both of these immediate family members being Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    ii. Strength, nature, and duration of “other ties” – length of residence

12. There are two necessary enquiries referable to the extent of the Applicant’s ‘other ties’ to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant first came to Australia in April 2005 as a 12 year old. It can be found that he has spent over half his life in Australia. I am satisfied that he has spent a long period of his life in Australia.

13. I now refer to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those requires me to allocate less weight if the Applicant began offending soon after arriving here. I have found that he came to Australia on a permanent basis in April 2005. His first conviction in an Australian court occurred in August 2010, which is over five years after he arrived here. A period of in excess of over five years post-arrival should not be construed as being ‘soon after arriving in Australia’. The first of these two tempering sub-elements can be put to one side and rendered neutral for present purposes.

14. The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. As I have mentioned earlier, there is reference in the Applicant’s PCF that he has engaged in remunerative employment in Australia.[166] The material contains references to his community contributions via the Applicant’s work with the Salvation Army. The Applicant has, via his engagement in remunerative employment, made some measure of contribution to Australia. This second tempering sub-element strongly militates in the Applicant’s favour pursuant to this Other Consideration (d) for the setting aside of the decision under review.

    [166] Exhibit 1, p 81.

    iii. Strength, nature, and duration of “other ties” – family and other social links

15. In his SFIC, there is reference to the Applicant extended family comprising three cousins, an aunt and an uncle.[167] Each of these people are said to be of South African nationality and that they reside in Australia. As best as I understood the material, there is little or nothing from any of those extended family members before the Tribunal pointing to the measure of the Applicant’s ties with them and the extent to which they would be adversely impacted by his removal. I again refer to the evidence of the Applicant’s mother where she says ‘they are not very close relatives of ours but they were more friends to us. Yes, we have a distant relationship with them, but they were very, very close to us and still are today.’[168]

    [167] Exhibit 1, p 79.

    [168] Transcript, p 105, lines 12-15.

16. At best, only a moderate level of weight can be allocated in favour of the Applicant on the basis of (1) the strength of whatever ties he has with these extended family members; and (2) the extent to which they would be adversely impacted by his removal. I base this finding on both of these immediate family members being Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

17. There is some evidence in the material of the Applicant having ‘other ties’ in Australia beyond immediate and extended family. There are the following statements or references in the material:

    ·Mr Kayakazi Mafuta is a friend of the Applicant and has known him since 2005. His letter of support appears in the material.[169] Mr Mafuta is a Chartered Professional Engineer. He is aware of the Applicant’s offending involving the very significant fraudulent scheme in which he was involved. He is also aware that the Applicant’s unlawful conduct in Australia has now jeopardized his right to remain here. He considers that the Applicant’s visa difficulties are adversely affecting his mother’s health. He thinks the Applicant will face impediments upon removal to South Africa. Mr Mafuta did not give oral evidence at the Hearing and, apart from the above, has little else to say about how he would be impacted by the Applicant’s removal;

    ·the next letter of support[170] comprises a character reference from three people, each carrying the surname ‘Mbedla’. They have known the Applicant for 13 years. They regard him as ‘a great support, close friend, and an honorary member of our family’.[171] They do not want the Applicant to be deported: ‘as he has important ties to Australia.’[172] They are aware of the Applicant’s imprisonment for serious offending in Australia, however they ‘…fear that deporting him [it] would impose additional punishment.’[173] They regard the Applicant as ‘…an important part of our family support system… we do not have any extended family in Australia and rely on [the Applicant] for support during significant events in our lives.’[174] None of the three makers of this statement were called to give oral evidence at the Hearing;

    ·Pastor Alex Muthusi is a pastor Chrisco Church, Sydney. His statement letter of support appears in the material.[175] He has known the Applicant since his arrival in Australia in April 2005. He knows the Applicant through the Applicant’s attendance at church. He says the Applicant has ‘…bonded particularly well with my sons who were almost his age…’[176] He is aware of the Applicant’s offending in Australia and is concerned that if deported ‘…he would not even know where to start in Africa and South Africa in particular.’[177] Pastor Mathusi was not called to give oral evidence at the Hearing;

    ·Ms Lauren Fisher is the Acting Education Services Coordinator with Corrective Services which is part of the New South Wales Department of Justice. Ms Fisher has provided a letter (dated 6 April 2021) which summarises the Applicant’s studies while in corrective custody.[178] Her report details the study in which the Applicant has engaged and her report concludes with an observation that the Applicant ‘...has been dedicated and focussed on achieving the relevant qualification. He is consistently engaged and attended an required sessions. He has been punctual, respectful, polite and eager to learn.’[179] Ms Fisher was not called to give oral evidence at the Hearing.

    [169] Exhibit 1, p 100.

    [170] Ibid, pp 102-103.

    [171] Ibid, p 102.

    [172] Ibid.

    [173] Ibid.

    [174] Ibid. Note: one of the three makers of this character reference is the father of Child I.

    [175] Ibid, p 104.

    [176] Ibid.

    [177] Ibid.

    [178] Exhibit 1, p 105.

    [179] Ibid.

    (2)  Impact on Australian business interests

18. Paragraph 9.4.2(3) of the Direction compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.

    Weight allocable to Other Consideration (d): links to the Australian community

19. With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a strong, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community confers a strong, not determinative, level of weight in favour of setting aside the decision under review.

    Findings: Other Considerations

20. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: is not relevant;

    (b)extent of impediments if removed: is of a strong, but not determinative level of weight in favour of setting aside the decision under review;

    (c)impact on victims: is not relevant; and  

    (d)links to the Australian community: is of a strong, but not determinative level of weight in favour of setting aside the decision under review.

    CONCLUSION

21. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

22. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the decision under review;

    ·Primary Consideration 2: not relevant;

    ·Primary Consideration 3: is of a strong but not determinative level of weight in favour of setting aside the decision under review;

    ·Primary Consideration 4: is of a very heavy level of weight in favour of affirming the decision under review;

    ·I have outlined the weight attributable to the Other Considerations. I am  of the view (and I find) that the combined weight I have allocated to each of Primary Consideration 3 and Other Considerations (b) and (d), respectively, are not sufficient to outweigh the combined very heavy weight I have allocated to each of Primary Considerations 1 and 4;

    ·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirmation of the Respondent’s decision under review made on 11 November 2022.

    Decision

23. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 November 2022 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 222 (two hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 27 February 2023

Date(s) of hearing:	23 and 24 January 2023
Solicitor for the Applicant:	Mr B Nazer (Principal)
Byron & Associates
Solicitor for the Respondent:	Mr D McLaren (Senior Associate)
Minter Ellison Lawyers

Annexure A- Exhibit LIST

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (bookmarked G1-G31, paged 1-137)	R	Various	24 Nov 2022
2	Submission from Mr Byron Nazer	A	13 Dec 2022	19 Dec 2022
3	Courses completed by Applicant	A	Various	19 Dec 2022
4	Statutory declaration by Applicant	A	12 Dec 2022	19 Dec 2022
5	Statutory declaration by Ms Tantasawa Nolutshungu (Applicant’s mother)	A	12 Dec 2022	19 Dec 2022
6	Citizenship certificate for Ms Tantasawa Nolutshungu (Applicant’s mother)	A	17 Sep 2020	19 Dec 2022
7	Photographs	A	Undated	19 Dec 2022
8	Respondent’s Statement of Facts, Issues and Contentions (paged 1-11)	R	9 Jan 2023	9 Jan 2023
9	Respondent’s supplementary bundle (bookmarked S1-S72, paged 1- 607)	R	Various	9 Jan 2023
10	Applicant’s Statement of Facts, Issues and Contentions (paged 1-8)	A	Undated	17 Jan 2023

Annexure B- SHOrt FORM DECISION

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)      No: 2022/9423

General Division  )

Re: Soyiselwe Nolutshungu

Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs

Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis

DATE:   6 February 2023

PLACE:                    Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 November 2022 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

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

Senior Member Theodore Tavoularis