Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1869 (15 June 2021)
Division:GENERAL DIVISION
File Number: 2020/8167
Re:Rene Pretorius
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 June 2021
Place:Brisbane

The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant a Visitor (Class FA) Subclass 600 Visa.
.........................[sgd]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – review of decision under s 501(1) of the Migration Act 1958 (Cth) refusing to grant a Class FA subclass 600 visitor visa – where the visa Applicant does not pass the character test – where there is a substantial criminal record – consideration of Ministerial Direction Number 90 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
DECISION
REASONS FOR DECISION
BACKGROUND
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Application of Factors in Paragraph 8.1.1(1) of the Direction
Prioritisation of the evidence
Analytical framework
Background to the Applicant’s recruitment and his state of mind when joining the coup
The Applicant’s criminal conviction – breach of the South African Civil Aviation Offences Act
The events of the attempted coup – generally
The Applicant’s perspective on his involvement in the coup
Application of paragraph 8.1.1 of the Direction
Conclusion on the nature and seriousness of the Applicant’s offending
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct (8.1.2(2)(a))
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s contention
Respondent’s contention
Travel to other countries
The extent of the Applicant’s offending history (including the “other conduct”)
The level of the Applicant’s rehabilitation
The Applicant’s current physical condition
Remorse
Age and maturity

Conclusions on likelihood of re-offending
Is the risk of harm affected by any of the factors referred to in 8.1.2(2)(c)?
Conclusions on risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of relevant child/ren
Consideration of factors
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian Community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
3. Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community

Findings: Other Considerations
CONCLUSION
General observations
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
15 June 2021
BACKGROUND

Jochemus Louis Dekker is a 67 year old citizen of the Republic of South Africa. This application is being conducted in the name of his Australian-resident daughter, Mrs Rene Pretorius. I will refer to Mr Dekker as the “Applicant” in these reasons for simplicity. Where the narrative of this decision requires, I will make specific reference to either Mr Dekker or Mrs Pretorius.
Mrs Pretorius seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Respondent” or “Minister”) to refuse to grant Mr Dekker a Visitor (Class FA) Subclass 600 visa (the “visa”). In essence, the visa is sought for the purposes of Mr Dekker travelling to Australia for a defined period[1] to spend time with Mrs Pretorius, her husband (Mr Dekker’s son-in-law) and their newly arrived baby, a daughter (Mr Dekker’s granddaughter), born in mid-2020.[2]
[1] See See Transcript, 14, lines 1–2.

The application comes before the Tribunal because in 1981, the Applicant was recruited to join a paramilitary operation in the Seychelles. I will set out in more detail exactly what happened later in these reasons. Put shortly, the operation failed, and the Applicant and most of the other mercenaries involved fled on a commercial aeroplane which had been commandeered by the leader of the operation. When they got back to South Africa, the Applicant and the other mercenaries were tried before a South African criminal court for various offences under the Civil Aviation Safety Act of that country.

About 38 years later, the Applicant’s daughter moved to Australia with her husband. The Applicant then applied for the visitor visa to come and see them. In the relevant application form, he duly disclosed the criminal conviction associated with that conduct.[3] He attached a letter to that application which he marked “Annexure A”. That letter set out the background to his criminal charges and forthrightly set out the circumstances of the mercenary operation he had been involved in.

[3] T1, 47.

After inviting the Applicant to provide further information in a series of letters, the Respondent’s delegate ultimately decided to exercise the discretion contained in s 501(1) of the Migration Act 1958 (Cth) (“Act”) to refuse the Applicant’s visitor visa.

Since that all occurred, the Tribunal has had the benefit of a significant body of written evidence that was not before the original delegate; and the oral evidence of the Applicant. In particular, the Tribunal has the benefit of (1) the reported judgment of the South African court that heard and determined, to the criminal standard, the charge against the Applicant; (2) documents from the United Nations body which inquired into the operation the Applicant was involved in; and (3) numerous character references from professional colleagues and friends of the Applicant.

ISSUES

Section 501(1) of the Act provides that:

(1)…The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

There are, therefore, two issues presently before the Tribunal:

(a)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.

If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.

DOES THE APPLICANT PASS THE CHARACTER TEST?

On 29 July 1982, the Applicant was, in South Africa, sentenced to a custodial term of imprisonment of five years, four and a half of which was conditionally suspended for a further five years. He spent 5–6 months in actual custody. The conviction related to “an act which jeopardizes the operation of an air carrier in service or of persons/property thereon/in”.[4] There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[5] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[6]

[4] T1, 25.

[5] Act, s 501(6)(a).

[6] Act, s 501(7)(c).

I am therefore satisfied that the Applicant does not pass the character test.

SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?

The Tribunal is bound by s 499(2A) 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 (“the Direction” or “Direction 90”) has application.[7] 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.”[8]
[7] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[8] Direction, sub-paragraph 6. See also Direction sub-paragraph 4(1) which provides that “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

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, 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

Sections 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.

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.”[9]
[9] Direction, s 8.

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”[10]
[10] Direction, s 9(1).

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.

The guidance in paragraph 7 I have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:

“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[11]
[11] [2018] FCA 594.

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

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

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

In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Application of Factors in Paragraph 8.1.1(1) of the Direction

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).

It is necessary to explain the factual circumstances of the episode encompassing the Applicant’s offending and conduct prior to any assessment of its nature and seriousness. A fulsome understanding of those circumstances can be derived from the material by having regard to four specific reference points. They comprise:

(a)The headnote and judgment of the legal proceeding in the Applicant’s conviction and sentencing. This document appears to be dated from mid-1982. The author of this decision is His Honour James AJP. It is reported as State v Hoare and Ors [1982] 4 SALR 865 (“reported judgment”).[12]
(b)The written and oral evidence of the Applicant. This evidence comprises a number of written documents either directly by or attributable to the Applicant. It also includes the Applicant’s oral evidence at the hearing.
(c)A document extracted from the “Repertoire of the Practice of the Security Council” which records the UN Security Council’s deliberations on the matter (“Security Council Documents”).[13]
(d)Contemporaneous news reports.
[12] A11.
[13] A14.

Prioritisation of the evidence

Of the four abovementioned components in the evidence, I am most attracted to the content of the reported judgment. The incident encapsulating the Applicant’s offending took place on 25 November 1981. The reported judgment dates from mid-1982. This reported judgment should be read in conjunction with the written material of the Applicant. While arguably not the most objective summary, the Applicant’s recollection of the totality of the circumstances of this incident must surely be among the most contemporary.

The Security Council Documents comprise two “decisions” dated 15 December 1981 and 28 May 1982. These documents appear to terminate the UN Security Council’s involvement in the matter because they record that in a note dated 8 July 1983, the President of the Security Council declared that the investigating commission “had fulfilled its mandate.”[14]
[14] R2, 7.
While one should not doubt the veracity of the content of these Security Council Documents, they comprise, in essence, a series of submissions from individual nations as diverse as Guyana, Jordan, Panama, Togo, Uganda, Zaire, Botswana, the former “Soviet Union”, Egypt, and, as would be expected, the Seychelles. The primary purpose of the UN Security Council was to reach a resolution about the incident. It did so, and a resolution, which comprises 14 individual points, appears in the Security Council Documents.[15]
[15] R2, 6.
The reported judgment of His Honour James AJP was delivered approximately eight months after the date of the incident. His Honour heard from numerous of the accused and, to my mind, it is His Honour’s remarks in this reported judgment that contain the most contemporaneous, broad-ranging, and intimately detailed analysis of the factual circumstances of what occurred, the charges resulting from what occurred, and the sentencing of the accused before the court who participated in the incident.
I will therefore base my analysis about the factual circumstances of the incident on the content of the remarks of His Honour James AJP in the reported judgment. It suffices to say that each of the four components of the evidentiary material purport to provide a summary of what occurred.
Analytical framework
To my mind, it is useful to examine two aspects of this matter separately to best understand the nature and seriousness of the Applicant’s conduct. First, I will consider the Applicant’s state of mind and level of involvement in the time leading up to the attempted coup. Second, I will consider the Applicant’s actions while the coup was underway.
Background to the Applicant’s recruitment and his state of mind when joining the coup
The Applicant first enlisted for national service in South Africa in 1972. This involved a compulsory year of national service, then applicable to male South African citizens. After that year of national service, he went to university for four years. Upon completion of his university studies, he returned to the military in or about December 1976. He remained in the military for approximately two years and left it in 1978.[16] In that year, he met his wife and they married in July 1978.[17]
[16] See Transcript, 23.
[17] Ibid.
The Applicant therefore spent approximately two-three years in civilian life trying to establish a civilian career. He was then contacted in 1981 and presented with plans of the proposed coup operation. According to his evidence in cross-examination, the Applicant “was told there was a job for us to do where they needed our skills and that the military, in the form of the army, was behind us, and that the Bureau of State Security knew all about it, and that the CIA was actually behind it.”[18]
[18] Transcript, 23, lines 44–46; 24, lines 1–2.
In cross-examination, the Applicant confirmed that he was aware that the coup involved the overthrow of a foreign government. He said he was not clear about the size and scope of the operation (at least in terms of number of mercenary participants) until he arrived in the Seychelles. It suffices to say that he “[…] knew that there would be quite a substantial number of us.”[19]
[19] Transcript, 24, line 20.
He confirmed in cross-examination that at the time of his recruitment he thought that the operation was a very serious one that carried potentially very important political consequences. He also explained that the operation was intended to be non-violent (though, obviously, the possibility of violence entered the recruits’ minds):
“Mr Dekker: Well you see - can I just say this? That the whole plan was to have a bloodless coup. That was a given. And being disciplined soldiers, we - I know that there would not be unnecessary bloodshed.”[20]
[20] Transcript, 24, lines 26–30.
The Applicant was asked to confirm his awareness that the coup operation could have resulted in the loss of his own life and the lives of others. He said: “[y]es, I was. I was a soldier, remember.”[21] He said that he was aware that this coup operation could have “potentially” caused harm to other people.[22]
[21] Transcript, 29, lines 39–40.
[22] Transcript, 29, line 44.
The Applicant was then asked how he became motivated to join the coup. He said there was a prevailing mentality in South Africa at that time about actual or potential threats from hostile neighbouring countries. When asked to explain his understanding of the goal of the operation, he said this:
“Ms Liang:[23] Mr Dekker, did you believe in the goals of the operation?
Mr Dekker: In the goal of the operation.
Ms Liang: The outcome that they wanted to achieve. Do you believe in that?
Mr Dekker: Yes. And let me explain why. I said this in my various statements, that in South Africa in those days, we had a mentality foisted upon us of the total onslaught by communists and socialists. And that’s how we grew up. When I was in the army, that was reinforced in the Reconnaissance Commando and the Special Forces. And when we were told that the guys in charge of the Seychelles at that time - the government - were leaning towards the Russian way of doing things - the communism and the socialism - you know, that said, well, it was a legitimate job to do, and we must get rid of them. Plus, the fact that the CIA were there because they wanted that satellite tracking station on Mahé, the main island. And They wanted that safeguarded against possible Russian - you know - being taken by the Russians. So, all that together made it, for me at least, a legitimate (indistinct). And the aim of overthrowing that government and putting a more Western-orientated government in charge, seemed to me to be reasonable.
Ms Liang: Mr Dekker, you said before that the intention was for there to be a bloodless coup. But I want to ask you, what was the final goal of the operation? Was it to capture the president, to assassinate him? Is that something you could comment upon?
Mr Dekker: No, I can’t. I was not one of the officers, or the main planners, of that coup. And if you read the court case, then you will see that my name is noted nowhere.”[24]
[23] Ms Jiadi Liang, Senior Associate, Clayton Utz, legal representative for the Respondent.
[24] Transcript, 25, lines 4–28.
There appears to be some level of conflict between the Applicant’s version of how he was recruited into the scheme compared to what was found His Honour James AJP. There were two main recruitment groups. The first was from the Transvaal region of South Africa, and the second – from which the Applicant was apparently recruited – was from Durban.
In his written material (largely repeated in his oral evidence) on the specific issue of recruitment, the Applicant said:
“I was in the Special Forces (1 and 5 Reconnaissance Commandos, or the “Recces”, as we were commonly known) of the previous South African Government in my early twenties. I left 5 Reconnaissance Commando in April 1979 with the purpose of embarking on a Corporate career.
In mid 1981 I was contacted by senior people in the SA Defence Force to participate in an operation whereby the Seychelles Government would be overthrown. The group they had selected would have no direct current association with the SA Defence Force and consisted out of mainly ex Recces and ex Rhodesian Light Infantry and SAS members. We were told that it would be a joint operation between the CIA, the South African Bureau of State Security and the SA Defence Force. The SA Defence Force actually supplied the weapons for the operation by which the Americans wanted to replace the government of the Seychelles with a more pro-Western government to safeguard their interests there, as they were afraid that President Albert Rene could come under too much Russian influence. We were told that the key issue was an American satellite tracking station that could under no circumstances fall into the hands of the Russians.”[25]
[25] G1, 180.
In the reported judgment, the court dealt with the recruitment issue and sought to address the assertion raised by most of the accused who said they believed that the South African Government or Defence Force and certain foreign governments were involved in the operation:
“I think it will be convenient if the Court deals shortly with the history of the recruiting for the operation to ascertain in particular whether any of the accused had any reasonable basis for believing that the South African Government or Defence Force and certain foreign governments were involved in this operation and the extent to which this would lead them to the belief that this was a covert South African operation.
[…]
Now the question that at once arises is what Colonel Hoare told the potential recruits in the Transvaal and what he told them in Durban.”[26]
[26] A11, 872–873.
With specific reference to the Transvaal recruits, the court detected a level of embellishment with what had been held out to those recruits in terms of the extent to which the South African government was involved in the proposed operation. The court referred to the embellishment thus:
“[…] there was a noticeable tendency for the story of the involvement. of the State in the operation to be extended and embellished. For example, […] (accused No 43) claimed that at one stage Hoare had told them that he had been in touch with a general and two brigadiers in the South African Defence Force, while […] (accused No 26) went further and said that in addition Hoare had said that he was negotiating with a general and two brigadiers who would investigate Hoare's plans in order to approve of them. He added that the CIA was aware of it and that if an emergency occurred there was a plan to fly a plane in from Kenya to help, and that as soon as the coup was completed the Kenya Government would recognise it and would fly in Kenyan troops to enable the accused to fade away amongst the tourists.”[27]
[27] A11, 873–874.
Noting the inconsistencies in the evidence provided by Colonel Hoare about what he did or did not tell the Transvaal recruits about the extent of the involvement of the South African and other governments in the proposed coup, the Court reached the following conclusion about what the Transvaal recruits were told to induce them to join the scheme:
“The Court has little doubt that Colonel Hoare did his best to convince the Transvaal recruits that the projected coup had the tacit support of the South African Government and the Defence Force and that he also told them that the Central Intelligence Agency was sympathetic, and that America and Kenya would give recognition to the new government as soon as the coup was successful and that Mancham. He would then fly his new government in from Kenya. We also have no doubt that he painted a picture of an illegal Marxist government operating in the Seychelles and mentioned the need to restore a Western-orientated government in the interests of South Africa and the West generally and persuaded the recruits to believe that their participation in the coup would be in the best interests of South Africa.”[28]
[28] A11, 874.
The court reached a similar conclusion about what the Durban recruits were told by Colonel Hoare about the proposed operation:
“The position of the recruits from Durban does not differ greatly. They were also informed of the need in the interests of South Africa and the West generally to overthrow the Marxist government of the Seychelles, Colonel Hoare stated that he assured these recruits that the Government knew about the plan.
[…]
Colonel Hoare gave them an assurance that his authority went "right up to the top" and invited them to check with Security at a high level if they doubted him.”[29]
[My emphasis and underlining]
[29] A11, 876.
I am therefore comfortable with making a finding that the Applicant was induced to become involved in the operation on the basis that he genuinely believed it was an operation having the endorsement of the South African government, acting in concert with other governments. There can be little to cavil with the finding that the Applicant joined the operation on the basis that the authority represented by Colonel Hoare “went right to the top”.
The Applicant’s criminal conviction – breach of the South African Civil Aviation Offences Act
The Applicant’s conviction related to a breach of the then-extant South African legislation dealing with the seizing or exercising of control over an aircraft in flight by force, or threat of force, or by any other form of intimidation without lawful reason to do so. This offence in which the Applicant participated constituted a breach of s 2(1)(g) of the abovementioned legislation. His South African Police Service “Clearance Certificate” records his offence as “Civil Aviation Offences Act – Act which jeopardizes the operation of an air carrier in service or of persons/property thereon/in”. The Applicant’s participation in what happened “on the ground” in the Seychelles as part of the coup is, to my mind, more aptly discussed as “other conduct” in the chapeau to paragraph 8.1.1(1) of the Direction.
I note two points of importance about this conviction. First, the Applicant was not tried or convicted to the criminal standard of any crime which relied on his participation in the coup for its physical element. Second, the Applicant was not tried or convicted to the criminal standard for any crime which relied on his mindset in agreeing to join the operation for its mens rea.
Turning firstly to the offending involving the abovementioned legislation, the headnote to the reported judgment summarises the court’s factual findings as follows:
“The accused had arrived in the Seychelles by air with firearms in their baggage to join in an attempted coup d'etat. The attempt miscarried when the Customs officials discovered a weapon in one of the accused's baggage and fighting broke out and continued spasmodically all day. The accused had at the start gained control of the airport terminal and that might, when it was reported to their leader that an aircraft of Air India Airlines on a scheduled flight was requesting permission to land, the accused's leader saw this as an opportunity to effect their escape and gave permission for the aircraft to land but instructed the captain that the passengers were not to disembark. Gunfire continued whilst negotiations with the captain were taking place. A cease-fire was arranged on condition that the accused remained behind when the plane departed. On instructions from their leader, and with the assistance of certain of the accused, the accused then all boarded the aircraft with their weapons, certain of the accused having by then forced the captain to agree to fly them to Durban. Before arriving there, and whilst over the sea, the accused had wished to ditch their weapons but, as they had been told by the captain that to open the pressurised doors of the aircraft would jeopardise the safety of the plane, they had merely disarmed their weapons, piled them in a heap in the passage, and covered them with a blanket. The flight to Louis Botha airport was monitored all the way by certain of the accused. […] On count 2[30] they were charged with contravening s 2 (1) (g) of the Act in that they performed acts which jeopardised or might have jeopardised the safety of Mahe airport in the Seychelles, and/or good order and discipline at it; alternatively jeopardising the safety of the aircraft in service or of persons or property thereon or therein, or jeopardising good order and discipline aboard the aircraft in flight. On count 3 they were charged under the same section in relation to the aircraft's arrival at Louis Botha airport in South Africa. On count 4 they were charged with contravening s 2A (1) of the Act in that at Louis Botha airport they were unlawfully in the aircraft in possession of rifles and ammunition.”[31]
[30] It was solely on this count that the Applicant was convicted.
[31] A11, 866–⁠867.
The events of the attempted coup – generally
In terms of what happened “on the ground” as part of the attempted coup, detail of this appears in the statements provided by the Applicant to the Respondent, the reported judgment, and in the UN Security Council Documents. The coup participants arrived at the Seychelles international airport on 25 November 1981. Upon disembarking in the Seychelles, they were being processed through customs when an officer detected a false-bottomed bag containing a gun. The mercenaries immediately unpacked their weapons from their respective bags and took control of the airport, including its air traffic control tower. According to the UN Security Council Documents, this act involved detaining “[…] everyone at the airport – a total of 70 people – as hostages.”[32]
[32] R2, 1–2.
The UN Security Council Documents further record that a six-hour gun battle occurred between the mercenaries and the Seychelles defence forces who managed to contain the coup participants within the parameters of the airport. Upon realising that they had been so contained, the coup participants, via their forced assumption of the control of the control tower, realised that a Boeing 707 aircraft was scheduled to land at the airport. They caused the aircraft (an Air India commercial flight) to land at the airport. They then ordered the pilot to fly the plane, with all passengers on board, and with the coup participants onboard as well, to Durban in South Africa.
In total, 44 mercenaries departed the Seychelles on the Air India commercial flight. This number included one of their dead who had been placed in the hold prior to departure. Two of the mercenaries’ number had also been seriously wounded. The UN Security Council Documents noted further additional things:
·the mercenaries had left behind members of their rear guard, some of whom were already in the Seychelles prior to the arrival of the 44-strong mercenary force;
·six of those that had been left behind were captured and detained;
·the attack had resulted in loss of life, injuries, and hardship to the hostages; and
·damage was caused to the airport buildings.
In terms of material loss and damage, the attempted coup resulted in the death of one of the mercenaries, serious injury being occasioned to two of the mercenaries, and the death of one Seychellois soldier. The damage to the airport buildings was said by the Seychelles government to amount to $30m.[33]
[33] It is not clear from the United Nations documents which currency this $30m is expressed to be in. Presumably, it relates to US Dollars. The important point is that $30m is the estimated figure for the damage as at 1981.
The Applicant’s perspective on his involvement in the coup
During cross-examination, the Applicant was asked about the manner in which the weapons to be used by the coup plotters were to be brought into the Seychelles. It transpired that there had been some descension in their group about how this was to occur:
“Ms Liang: Were you carrying weapons on you on the day, do you recall?
Mr Dekker: Yes, we did.
Ms Liang: You recall that - - -?
Mr Dekker: Can I just say. So, Senior Member, can I just satisfy this point. We were led to believe, from the beginning, told us that operation, that we would receive our weapons in the Seychelles. The night before we flew to the Seychelles, in a city - in a town called Burmela(?) at the Holiday Inn, we were told that we - our luggage was going to be (indistinct) locked, and that we would get bags with false bottoms, containing (indistinct words). Now, that sent a shockwave through the group. And in the end, one guy didn’t go further, his surname was B(indistinct)a - I remember that. But the rest of us said, well, if that’s what has to happen, then that’s the risk we take together with doing the operation. And that is how we came to take the weapons through the Swaziland border. And onto the plane. Towards - in - you know, going to the Seychelles.”[34]
[34] Transcript, 26, lines 35–57; 27, lines 1–2.

The Applicant then explained how the situation descended into a state of “chaos” after the customs officer’s discovery of one of the mercenaries’ weapons in the false bottom of a bag being processed through customs. He said:
“Ms Liang: Mr Dekker, do you recall what happened after the weapon - in the airport - was discovered?
Mr Dekker: Well, there was chaos. I’ve tried to pierce it together for myself. Many, many times over the past 40 years of my - there was chaos. And eventually some form of sanity returned. And I knew the civilians in the building were all taken to one side - I had nothing to do with it. I was then sent outside, onto the veranda, with civilians. Opposite the main entrance. And that’s where I stayed all night. Until we were told we were to get onto - to be (indistinct words).”[35]
[35] Transcript, 27, lines 4–11.
Inevitably, there was a reaction from the Seychelles security/defence forces who made their way to the airport. The Applicant said in his evidence that “[…] you couldn’t help but hear them attacking the airport […]”[36]
[36] Transcript, 27, line 14.
In terms of his active involvement in a combative sense, the Applicant spoke of an armoured car being operated by the Seychelles defence forces that was attacking the southern end of the building in which he was located. There was concern that this armoured car would eventually start firing in the vicinity in which the Applicant was located. What then transpired was this:
“Mr Dekker: And eventually - well, not eventually, fortunately he was - he saw the engine and the gun jammed and he couldn’t keep on firing, and the guys - from what I was told by the guys in the southern end - they jumped out and they ran away. So, that’s my knowledge.”[37]
[37] Transcript, 27, lines 18–21.
The Applicant was then asked about whether he fired any rounds from his weapon during the standoff at the airport. He said he fired “[…] fired two or three shots at the armoured car.”[38] He said that his line of sight to the armoured car was obscured by a prevailing bush. He added that he was reluctant to fire any more rounds because “[…] we only had 30 rounds, a magazine of 30 rounds, and we didn’t know what was still coming. So I thought, no, I can’t do this. And I stopped.”[39] There was no suggestion at any stage that the Applicant turned his gun on anyone else.
[38] Transcript, 27, lines 22–23.
[39] Transcript, 27, lines 25–26.
The cross-examination then proceeded to questioning the Applicant about whether he was involved in seizing control of the airport’s control tower. He responded with “[n]ot at all.”[40] He re-iterated that he was situated “on the front veranda” opposite to the “main entrance” of the airport building. He said:
“Mr Dekker: And the reason for that is that I was on front veranda. It happens in some operations, where you don’t do anything, really. You’re just there. In case.
Ms Liang: Was your position to help defend your group of mercenaries on the veranda?
Mr Dekker: Well, we sort of were told that we need to build a bit of a wall around the fence of the buildings, which is the natural thing to do if you feel you’re getting cornered. And I was sent to the front veranda, some other guys were stationed further down. Some other guys went to the move(?). Other guys went down the runway, towards the barracks, and so on. So, they were all over the place. Trying to just secure the building for us.”[41]
[40] Transcript, 27, lines 29.
[41] Transcript, 27, lines 32–⁠43.
The Applicant was not aware that the Indian Airlines Boeing 707 aircraft had been directed to land at the airport by the leader of the operation. He eventually became aware that it was a civilian aircraft and that there were civilian passengers onboard the aircraft. He described boarding the aircraft in this way:
“Mr Dekker: I - actually, in my last statement I mentioned that I - as far as the weapons are concerned, when we had to get onto the airplane I was ordered with one or two other guys to carry the - our guy who had been killed, [name redacted for privacy], we had to carry him to the plane. And we put him in the hold, and my recollection is that I put my weapon - (indistinct) - because I’m a paratrooper by training, and I put it in the hold with him. With the body. And then I go - went up the stairs, (indistinct words) dark, everything was darkened, because you don’t want to attract attention to the fact that we’re getting onto the plane. So, I went up the stairs, into the plane, and I sort of felt my way down the aisles, and eventually found the seats - I think they were two rows from the back. And then I sat down. There was a woman and a small child - little girl, sitting there. […]
Ms Liang: Mr Dekker, all of the passengers remained on the flight between South Africa – sorry, between Seychelles and South Africa. Correct?
Applicant: As far as I know, yes.
Ms Liang: Mr Dekker, were the passengers threatened by you during the course of the flight?
Mr Dekker: Not at all. In fact, I have a very – I don’t know – amicable discussion with the woman I was sitting next to.”[42]
[42] Transcript, 28, lines 12–⁠23.
The Applicant graphically described the loss of his mercenary colleague in these terms:
“Ms Liang: When were you informed about the death of the mercenary?
Mr Dekker: Well, I saw him fall because one of the security guards shot him at the time when the chaos came.
Ms Liang: When you - - -?
Mr Dekker: When I – when he (indistinct) by the action I knew he was dead by the time he went – by the time he hit the ground he was dead, so I saw (indistinct) images.”[43]
[43] Transcript, 29, lines 1–8.
It seems from the Applicant’s evidence that most of the combative engagement occurred at the southern end of the airport’s runway, near the army barracks structure. This is where a number of the mercenaries involved in the coup had been injured. According to his evidence, there was minimal or no action in the vicinity of the front veranda area where the Applicant was stationed, and certainly no one was killed or injured in that specific area:
“Ms Liang: Mr Dekker, there were a number of other mercenaries who had been injured. Were you present when they were injured?
Mr Dekker: Not at all. Those guys, I can say this, they were injured towards the southern end of the runway. I think they went to the Army barracks to see if they could get into the armoury because we only had AKs with us and it wasn’t, you know, the weapons wouldn’t do for an attacking army.
[…]
Ms Liang: You were not involved in any of the shooting, even though your mercenary group was involved with the shooting against the Seychelles’ soldiers?
Mr Dekker: Well, yes, I was on the front veranda. There was no action there except for one incident with the armoured car and then nobody was killed or injured.”[44]
[44] Transcript, 29, lines 10–15, 29–33.
Application of paragraph 8.1.1 of the Direction
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Macquarie Dictionary (5^th ed) includes the following definition of violence: “any unjust or unwarranted exertion of force or power, as against rights, laws, etc.” As outlined earlier, the Applicant was convicted for a breach of the “Civil Aviation Offences Act – Act which jeopardises the operation of an air carrier in service or of persons/property thereon/in.” The court found that the physical element of that crime was made out in the following terms:
“In the view of the Court there can be no doubt that the simple act of entering the plane for the purpose of flying off in it, even without arms, was an act that might well have jeopardised the plane. The accused had taken over the airport and had fought against the Seychelloise and Tanzanian troops, assurances had been given that they were to remain behind when the plane left and it would have only required someone to observe that they had entered the plane and for that matter to be reported to the Seychelles authorities for serious efforts to be made to prevent their departure by attacking the plane or firing at Furthermore, since the accused as a body had a large number of automatic weapons with them it follows that there was a grave risk that if the opposing forces endeavoured to stop them before and during take-off a fire fight might break out which would jeopardise the safety of the plane, the lives of passengers and crew and good order at the airport. In view of the fact that the external doors had not been opened for the purpose of disembarkation when the plane landed, it follows that the plane was technically in flight during the whole of its stay at Mahe airport and that when the accused got into the plane prior to flying off they were performing an act on a plane in flight. In any event, even if the plane was not in flight during its stay at Mahe airport, it was again in flight the moment the external doors were closed for embarkation. It follows that at that stage the accused were still acting as an armed group and the threat of an attack on the plane was still very real. They were ready to resist any attack and. their actions were simply an extension of their actions in boarding the plane.”[45]
[My emphasis and underlining]
[45] A12, 886.
It follows that the circumstances of the Applicant’s conviction in South Africa do warrant a finding that his crime was of a violent nature, and thus attract operation of sub-paragraphs (a)(i)–(ii) in favour of a finding that the nature of his crime is of a very serious nature. The reason than paragraph 8.1.1(1)(a)(ii) is engaged is because there were, on the Applicant’s own evidence, women and children on the subject aircraft, exposed to this offending.
For the sake of completeness, I note that the provisions of paragraph 8.1.1(1)(a)(iii) are not engaged because the Applicant’s offending did not involve acts of family violence.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
As an initial observation, I note that paragraphs 8.1.1(1)(b)(i) and (iv) are not engaged by the instant facts and are thus not relevant to determination of this application.
At first blush, the provisions of paragraph 8.1.1(1)(b)(ii) could be thought to be engaged. At least three classes or categories of “government representatives or officials” were the subject of what transpired at the airport. They comprised (1) the customs official who found the weapon concealed in the bag; (2) the air traffic controllers in the control tower; and (3) the Seychelles defence force members. However, it must be borne in mind, as noted above, the Applicant was convicted for an offence described as “Civil Aviation Offences Act – Act which jeopardises the operation of an air carrier in service or of persons/property thereon/in”. As I understood the abovementioned findings of His Honour James AJP,[46] the physical element of the crime was not satisfied by an action against any government official.
[46] See [‎62], above.
With specific reference to paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “does not pass an aspect of the character test that is dependent upon the decision maker’s opinion (for example, section 501(6)(c)”. Out of an abundance of caution, I have looked through the componentry of s 501(6) of the Act and have sought to glean any subsection thereof that may be referable to “any conduct” informative of a finding that he does not pass an aspect of the character test. For present purposes, I note that the specific components of s 501(6) which need to be considered are strictly subjective elements that are “dependent upon the decision-maker’s opinion” as opposed to those matters which do not depend upon my opinion (which are, for example, matters of record or which are beyond dispute):
·whether Applicant is the subject of a reasonable suspicion that he has been or is a member of a group or organisation and that such group or organisation has been involved in criminal conduct;[47]
·whether the Applicant the subject of a reasonable suspicion that he has been involved in conduct constituting, inter alia, people-smuggling, trafficking in persons, a crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern, whether or not he has been convicted for an offence constituted by the conduct;[48]
·whether, having regard to either or both of (i) the Applicant’s past and present criminal conduct; (ii) the person’s past and present general conduct, the Applicant is not of good character;[49] and
·whether there is a discernible risk that the Applicant would (1) harass, molest, intimidate or stalk another person in Australia; or (2) vilify a segment of the Australian community; or (3) incite discord in the Australian community or in a segment of that community; or (4) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to or in violence threatening harm to that community or segment of that community, or in any other way.[50]
[47] Act, s 501(6)(b).
[48] Act, s 501(6)(ba)(iii).
[49] Act, s 501(6)(c).
[50] Act, s 501(6)(d).
I will consider each above dot-point in turn.
First, there can be little said by the Applicant to cavil with the finding that he was recruited into a group or organisation that became involved in criminal conduct. Such a finding is consistent with the reported judgment of James AJP and the content of the UN Security Council Documents. Therefore, paragraph 8.1.1(1)(b)(iii) of the Direction is engaged via s 501(6)(b).
Second, of the categories appearing in s 501(6)(ba) the only one which is relevant is the possibility of a finding that he has committed a crime that is of serious international concern. The failed coup has clearly been found to be a matter of serious international concern. This much is made clear in the UN Security Council Documents. However, the question of whether there is enough in the material to satisfy me that the Applicant has committed “a crime” of serious international concern as a result of his participation in the coup within the Seychelles is a different one. His Honour James AJP was concerned with sentencing the Applicant for a breach of the domestic law of South Africa relating to civil aviation.
Even though there was some suggestion in relation to Primary Consideration 4 that the attempted coup amounts to a crime of serious international concern, this point was not propounded in any detail before me. In fact, the Respondent appeared to abandon pressing the point that the Applicant’s crimes were of serious international concern in oral submissions:
“Senior Member: What happened to Mr Dekker, as I understand it out of all of this is - and that’s not insignificant - but what happened was that he was charged with, as I understand it, potentially getting in control of an aircraft that could have been brought down, that could have been involved in a catastrophic outcome. There’s no international law charged against him, like Milosevic in Serbia or anything like that. The man’s not a war criminal. The man’s not an international terrorist. And certainly, his own country hasn’t proceeded against him on that basis. What he’s done - sorry, what he’s been charged with, as a result of what he’s participated in, involves taking command of an aeroplane with potentially dangerous outcomes. That’s as I understand the totally of what’s at the tribunal. Sorry, please carry on.
Ms Liang: No, thank you, Senior Member, I appreciate that. I am proposing to ask Mr Dekker some questions about the circumstances of the event. Because there is the thing that he has been convicted of, but in the respondent’s submission, it is part of a broader operation than Mr Dekker has given evidence about.
Senior Member: But that he wasn’t involved in. That he didn’t command. That he didn’t plan. And that he didn’t execute. All he did was play a small role, with at least 40 other participants, in a scheme designed to achieve an outcome in the Seychelles. And from that, no one has charged him with an international war crime. No one has charged him - he’s had no other legal trouble, either in South Africa or outside of South Africa. What he’s been charged with is getting involved with commandeering an aeroplane or an aircraft that could have had potentially catastrophic consequences. That’s not to say that that’s not a serious offence - not at all. Of course it is. But that’s the totality of what he’s been charged with.
Ms Liang: Yes. Thank you, Senior Member […]”[51]
[My emphasis and underlining]
[51] Transcript, 25, lines 46–⁠47; 26, lines 1–⁠29.
The UN Security Council Documents report upon and describe the circumstances of the coup attempt but are not confirmatory of the Applicant being culpable for the commission of “a crime” as result of such participation. In the circumstances, I cannot be satisfied that s 501(6)(ba) is engaged to militate, one way or the other, about the nature and seriousness of the Applicant’s conduct.
The third component of s 501(6) of the Act requiring discussion is s 501(6)(c). That section requires me to make a finding about whether the Applicant “is” of good character based on the factors in 501(6)(c)(i)–⁠(ii). There is little that can be said to cavil with the finding that the Applicant’s criminal and general conduct in 1982 tends towards a finding that he was not of good character in 1982.
But that is not end of the analysis called for by s 501(6). In the years since, there is no evidence the Applicant has committed any further offences. Instead, in terms of the Applicant’s present or more contemporaneous conduct in South Africa, the material discloses absolutely no other offending, not even traffic offending.[52] In terms of his present or more contemporaneous general conduct, the Applicant has led an otherwise exemplary and offence-free life in South Africa, both in terms of his home life and corporate career.
[52] T2, 25–⁠26; 180–⁠183.
I therefore find that the Applicant does not engage paragraph 501(6)(c) of the Act.
Fourth, Having regard to s 501(6)(d), the question becomes whether there is a discernible risk that the Applicant would (1) harass, molest, intimidate or stalk another person in Australia; or (2) vilify a segment of the Australian community; or (3) incite discord in the Australian community or in a segment of that community; or (4) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to or in violence threatening harm to that community or segment of that community, or in any other way.

There is nothing in the material suggestive of the Applicant becoming involved in any of the four abovementioned elements to s 501(6)(d). I do not consider that his past involvement in the failed coup in 1981 now causes him, some 40 and completely offence-free years later, to represent a danger to the Australian community or that he will again become involved in disruptive or violent activities of the type that were committed in the Seychelles in November 1981.
While I note the reference to “a crime that is otherwise of international concern” contained in s 501(6)(f), is not relevant because it does not depend upon my opinion.
Thus, having regard to the abovementioned applicable elements of s 501(6) of the Act which depend on my opinion, I am of the view that only 501(6)(b) is of possible relevance in favour of a finding that the nature and the seriousness of the Applicant’s conduct has been (to use the word in paragraph 8.1.1(1)(b) of the Direction) “serious”. Irrespective of the Applicant’s perception of his recruitment, the fact remains that he was co-opted and convinced by a group or organisation that became involved in criminal conduct.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Its terms are expressed thus:
“With the exception of the crimes or conduct mentioned in sub-paragraph (a)(ii) and (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes”
[My emphasis and underlining]
This sub-paragraph (c) is thus expressed to have no application to sentences imposed for offending which attracts the operation of sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction. To my mind, this means that whatever sentence is imposed on an offender for the commission of crimes falling (for present purposes) within the ambit of (a)(ii) or (a)(iii), that offending must be viewed as “very serious” for the purposes of paragraph 8.1.1(1) of the Direction, even if the sentence imposed was at the low end of the range for that type of offending.
As part of my consideration of paragraph 8.1.1(1)(a)(ii), I have found that the Applicant’s offending for which he was convicted and sentenced did constitute a crime of violence against women and children. Even though he was sentenced to a head custodial term that was suspended after he served six months for an operational period of five years, I must disregard the fact that this sentencing regime – involving a relatively early release on a suspended sentence – might otherwise point to a lower level of seriousness. Indeed, the drafting of this sub-section (c) compels me not to have regard to this sentence at all.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. I am hard-pressed to allocate any level of relevance of this factor to determination of the instant application. The Applicant has committed a singular offence. He cannot be said to be a “frequent offender” for the type of offence for which he was convicted in 1982 or any other offence. He has not re-offended since that conviction. As mentioned earlier, I am not able to find any offending even in the realm of traffic offences in the material.
The same comment may be made about any detectable trend of increasing seriousness in his offending. He has committed one offence. There is no second or subsequent offence against which to benchmark or assess the trajectory of the offending. There is no such trajectory. Accordingly, I am not able to define any trend of increasing seriousness in the Applicant’s offending. This sub-paragraph (d) is therefore neutral in terms of ascertaining the nature and seriousness of the Applicant’s conduct.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. At the risk of repeating myself, the Applicant has not committed multiple offences. For something to be assessed in cumulative terms, there must be successive elements towards some kind of cumulative outcome. Here, there is and only has ever been, one offence committed by this Applicant. This sub-paragraph (e) is therefore neutral in terms of ascertaining the nature and seriousness of the Applicant’s conduct.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. I have carefully perused the material and have not been able to locate any circumstance where the Applicant has falsely or misleadingly responded to any request for information about his offending either from the Respondent or, for that matter, any other lawfully constituted entity competent to make such request of him. Accordingly, this sub-paragraph (f) is not relevant to determination of the instant application.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Applicant was convicted of his offending in South Africa. There is no such warning from any relevant South African entity warning him about the consequences of further offending. Similarly, there is no such warning from the Respondent or any other lawfully constituted entity in Australia giving him any such warning. This sub-paragraph (g) is not relevant to determination of the instant application.
Conclusion on the nature and seriousness of the Applicant’s offending
In all the circumstances, I am bound by the terms of paragraph 8.1.1(1) of the Direction to find that the Applicant’s criminal offending is very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
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 that it may be repeated may be unacceptable.
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 (8.1.2(2)(a))
Sub-paragraph 8.1.1(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Applicant has been convicted of a very serious offence involving the safety of an aircraft. The offending resulted from his participation in a failed coup to remove a sovereign government. Material loss and damage resulted from his conduct. Two people died in the conflict that ensued. And it involved the unlawful detention of something like 70 people in an airport and apparently caused $30m of property damage.
There can be no cavilling with the proposition that were the Applicant to again involve himself in the commission of such unlawful conduct, it would very likely result, at a personal level, in very significant physical and emotional harm. At a material level, the damage would similarly be very significant. While material damage can be repaired and restored, any re-offending by this Applicant could, quite conceivably, result in catastrophic outcomes at a personal level for victims of such offending or other innocent people brought within its orbit. It is not a stretch of the evidence to make such a finding because catastrophic outcomes – at a personal level – have already resulted in connection with his offending.
I do specifically note that the Applicant was not involved in the planning of the coup. Realistically, any repeat of the damage on the scale of what occurred in the Seychelles could only flow from a similarly sized and operation. The Applicant has not, on the evidence before the Tribunal, been shown to be the type of person who organises military operations. He participated in one organised by others.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s contention
In one of his written statements made in response to the Respondent’s SFIC, the Applicant said the following about his risk of recidivism:
“My view is that the only question that really needs to be answered, is whether there is a likelihood, no matter how small, that I will repeat any serious conduct if I am allowed into Australia. Here, the law is written in a way that allows officials and lawyers for the Respondent to find against any applicant, no matter how he tries and no matter how exemplary his behaviour and conduct over an entire lifetime of 66 years was, except for one incident that occurred 40 years ago and where his mindset and the circumstances of the criminal deed were so unique that it will be impossible to replicate nor repeat them or the conduct of a serious nature that accompanied them. Obviously, the Australian officials and lawyers will invoke their right to find that there is always a possibility of repeated serious conduct, because that is their job. All they have to do is say that in their view, the Primary Considerations outweigh anything else.
[…]
I have offered to have the duration of my Visitors Visa shortened, I have offered to be interviewed by a psychologist to determine whatever needs to be determined about my personality, and I have offered to report to the police once a week if that is allowed. I have bared my soul to the Australian authorities and I really do not know what more to do to convince them that there is NO chance of my getting involved in any kind of misconduct, let alone conduct of a serious nature. Why would I wait 40 years to come and repeat what I was involved in in 1981, and that in the country that as welcomed my daughter and her husband with open arms and where precious little [Grandchild E] was born as citizen of Australia? Why would I wait 40 years, after travelling all over the world without any form of misconduct, to come and get involved in conduct of a serious nature in Australia at the age of 66, and with quite seriously impaired physical functioning on top of that? My only need is to come and see my little granddaughter, my daughter and my son-in-law.”[53]
[My emphasis]
[53] A13, 4–5.
In cross-examination, the following transpired between the Applicant and the Respondent’s representative:
“Ms Liang: Mr Dekker, why do you say that you would not engage in further criminal behaviour in the future?
Mr Dekker: Why I wouldn’t? Look, you seem to just completely forget the fact that this happened almost 40 years ago and if you’d read my statements you’ll see that I had a massive experience in prison. I changed my life. I walked out of there with nothing. I had my wife, my little daughter who’s Mrs Pretorius today, and my little son had also been born during the court case, he’s now 38 years old. That’s all I had. And when I walked out there I had resolved to spend my life for my family and my career and that I would have nothing to do with the military ever again, and that’s exactly what I’ve done. I’m sorry.
Ms Liang: Mr Dekker, did you ever speak to any professionals after your involvement in the coup – in the attempted coup?
Mr Dekker: I – yes, indeed, I went to see a psychiatrist and I wrote that in one of my documents I think. And I saw him two or three times and the – I must say that that helped quite a lot actually and then in the process of trying to get information together in segments, I tried to chase him but apparently he had left South Africa, he emigrated, so I can’t give you a statement from him but, yes, I did.
Ms Liang: Did you try to contact any other professionals for the purposes of providing some medical evidence or a statement?
Mr Dekker: No. Once again, you know, it was 14 [sic – clearly a reference to 40] years ago and my real catharsis was within this first sort of six months to a year after that incident. And after that I fortunately, I could start my career and I had things to do and I kept my mind off, you know, my emotions for a lot of the time. So I was actually fine and today it’s just on occasions like this that I, you know, tend to choke up and – yes.”[54]
[54] Transcript, 31, lines 5–30.
Respondent’s contention
In concluding that the weight allocable to this Primary Consideration 1 should be viewed as heavy, the Respondent made the following observations:
“The Respondent acknowledges that the circumstances of Mr Dekker's offending were unique, and that it occurred some time ago. However, the Respondent contends that the Tribunal cannot be satisfied that there is no risk of reoffending in circumstances where Mr Dekker's past conduct has demonstrated his capacity to engage in serious violence, and there is no medical evidence before the Tribunal indicating that Mr Dekker has addressed any risks associated with his past serious and violent conduct.
In this regard the Respondent refers to paragraph 8.1.2(1) of Direction 90 which states that "some conduct, and the harm that would arise if it were to be repeated, is so serious that any likelihood that it may be repeated is unacceptable". Mr Dekker's past offending conduct involves an attempted coup of a foreign government in circumstances involving Mr Dekker engaging in armed violence at an airport, the taking of hostages, contributing to $30 million in property damage, the death of two people (including a Seychelles solider), and forcibly hijacking a civilian aircraft. In this respect, the Respondent contends that this matter is of the kind envisaged by paragraph 8.1.2(1) of Direction 90 whereby, notwithstanding the low probability of re-offending, the consequences should the risk eventuate would be so grave that any likelihood of re-offending is unacceptable.”[55]
[55] R1, 8[40]–⁠8[41].
I have had regard to the material and have identified the following factors informative of the Applicant’s risk of re-offending. I will address each of those factors in turn.
Travel to other countries
The Applicant enjoyed a long and distinguished corporate career working for a large multinational pulp and paper company called Mondi. As part of his work for Mondi, he frequently flew to many destinations all over the world, primarily in Western and Eastern Europe in countries as diverse as: Russia, Slovakia, Hungary, Poland, Germany, Austria and the United Kingdom. According to his statement, it was in Western and Eastern Europe were the bulk of Mondi’s manufacturing operations were situated.
The Applicant has also spent holidays in Spain and Mauritius and “several countries in Africa”. In addition, he has done consulting work for an American gold mining company with operations in the Dominican Republic. As he says in his written material “[m]y visa applications have never been denied by any country once I had explained the situation surrounding my criminal record.”[56] This evidence from the Applicant is corroborated by copies of previous passports and visas granted to the Applicant facilitating the above-described travel.[57] It is, to my mind, significant, that the Applicant has been granted entry to the above countries for the purposes of his work. There has been no hint or indication of him re-committing any offences whatsoever at any stage during his abovementioned travels.
[56] G1, 70.
[57] G1, 183–219.
The extent of the Applicant’s offending history (including the “other conduct”)
The Applicant has been involved in one very serious course of conduct which resulted in a criminal conviction in his lifetime. It happened when he was approximately 27 years of age. He is now 67. He has never re-offended at all. I have earlier sought to compartmentalise his offending into two broad areas. One part is his actual and technical offence involving the contravention of the Civil Aviation Offences Act of South Africa. The other part is his “other conduct” involving his voluntary participation and involvement in the conduct surrounding the failed coup in the Seychelles. With reference to both of these components of the Applicant’s conduct, there has been no repeat of any remotely similar conduct.
His conduct subsequent to the offending contains no hint of him even remotely trending towards a risk of committing a similar or like offence. There is no evidence that, for example, he immersed himself in the political life and fabric of South Africa such that it could be said that he continued to express or harbor views of the type that were sought to be achieved in the failed coup. On the contrary, that after his conviction in 1982, he completely removed himself from that sort of life and devoted himself to his work and family. The history of his life post-conviction in 1982 cannot be read in any other way. Accordingly, I am of the view that this factor militates in favour of a finding that he represents a miniscule risk of recidivism.
The level of the Applicant’s rehabilitation
I have earlier recounted the Applicant’s evidence in cross-examination on the issue of rehabilitation. He made it clear that he went to see a psychiatrist after his involvement in the failed coup. He said that he saw the psychiatrist “two or three times” he was forthright in his evidence given in cross-examination when asked about whether he had consulted with “other professionals for the purposes of providing some medical evidence or a statement.”[58] He responded with a clear “No” but added that over the last 40 years, he has experienced a “real catharsis” and otherwise focussed on his career and family.
[58] See Transcript, 31, lines 24–⁠31.
To my mind, the absence of any written and contemporary medical / clinical evidence about his risk of recidivism is more than adequately offset by the reality that he has not re-offended for 40 years and that he has otherwise led an unblemished work and social life in South Africa during that period. His period of “testing” in the community both as a responsible family man and as a man with an unblemished and impressive corporate career speaks for itself.
All too often, Applicants in these sorts of matters do their cases no good because, upon a previous return to the community, they have re-offended. In the circumstances of this Applicant, he returned to his community and enjoyed a notable, impressive and offence-free life of 40 years. His rehabilitation has been tested in the community. He has never re-offended and there is no indication that he will ever again do so.
The Applicant’s current physical condition

It is plain from the evidence that the nature and duration of the Applicant’s relationship with Grandchild E (a granddaughter) has been limited for two reasons. First, and most obviously, Grandchild E is barely one year old. Therefore, the Applicant has not had an opportunity to establish any durability of any relationship with her. The nature of his relationship has also been tempered by the geographical distance between him and her. This is due in some part to the international travel restrictions imposed by the COVID-19 pandemic. Grandchild E was born during the current pandemic.
The relationship between the Applicant and Grandchild E is obviously non-parental. I am mindful of the requirement to consider whether there have been long periods of absence and whether there has been limited meaningful contact between the Applicant and Grandchild E. The consideration of these two specific factors is rendered somewhat nugatory as a result of the current pandemic. This is because even if the Applicant currently held the visa he is seeking, the international travel restrictions would necessarily result in long periods of absence between him and his grandchild which, in turn, would result in no face-to-face contact between him and her. Such contact has been restricted to telephone and/or video-based communications.
In the circumstances, I am of the view that the nature and duration of the relationship established so far between the Applicant and his granddaughter – even in the restrictive travel environment of the current pandemic – militates in favour of a finding that it is in Grandchild E’s best interests for the Tribunal not to exercise its discretion to refuse to grant the visa sought by the Applicant.
Sub-paragraph (b) of paragraph 8.4(4) requires a decision maker to consider the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
It is also clear from the evidence that any “positive parental role” in the life of Grandchild E will be played by her biological parents. Grandchild E’s biological parents openly welcome the Applicant playing a grandparental role in the future life of Grandchild E. There can be no cavilling with that finding. I am of the view that this sub-paragraph (b) does not weigh for or against a finding that it is in Grandchild E’s best interests for the Tribunal not to exercise its discretion to refuse to grant the visa sought by the Applicant.
Sub-paragraph (c) of the Direction requires me to examine the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child. An initial point is this: I am mindful of the potential for overlap between this sub-paragraph (c) and the later sub-paragraph (g) within the greater ambit of paragraph 8.3(4) of the Direction.
Grandchild E is barely one year old. She cannot possibly have any knowledge or inkling of offending that the Applicant committed 40 years ago in South Africa. There is no clinical or other determinative way of knowing whether his conduct has adversely impacted on Grandchild E. The finding must surely be that it cannot possibly have done so. Similarly, there is no way of knowing whether any future unlawful conduct by this Applicant will adversely impact Grandchild E. This sub-paragraph (c) is thus neutral for the purposes of allocating weight in this matter.
Sub-paragraph (d) requires me to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
In his evidence, the Applicant (to my mind rightly) suggested that a likely effect of permanent separation between him and Grandchild E might have negative effects. He said:
“Ms Liang: If you were unable to come visit Australia in the future would you agree that your daughter can come – can try to come visit you in South Africa?
Mr Dekker: Yes, I’ll do what I can to help them but it’s not the same as meeting them and, you know, the little ones in their own environment. If you ever had children and grandchildren, that’s what their home is about and that’s where they actually build their memories, or to a large extent anyway. That’s what it’s about for me. It’s not about the money or, you know, if it’s important for me to be there or not and it’s about this little one and helping her to grow up as a normal child with a grandfather and a grandmother who come and visit. That’s all. It’s nothing more sophisticated than that.
Ms Liang: Mr Dekker, even if you can’t visit Australia you would continue to maintain a relationship with little [Grandchild E], wouldn’t you?
Mr Dekker: Yes, but it would never be the same as if I can, you know, if I can visit her where we can do things together in Australia. Surely you understand that.”
[My emphasis and underlining]
At the risk of repeating myself, Grandchild E is too young to ascertain any effect upon her resulting from her continued separation from the Applicant. The evidence contains references to the maintenance of alternate means of contact, between the Applicant and Grandchild E, both telephonic and video-based. It would not be unsafe to find that if the Applicant does not receive this short-stay visa to come here, he will be able to communicate with Grandchild E by either or both of those means. This sub-paragraph (d) is of moderate weight in favour of the Applicant.
Sub-paragraph (e) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the child. The evidence makes it plain that Grandchild E is primarily cared for by her biological parents who have relocated to Australia from South Africa. They have established a residence here. The father has full-time employment and the mother, although currently involved in home duties, has qualifications in the retail sector and can readily return to employment in that realm.
Even if the requested visa were to be granted to the Applicant, it would be unsafe to find that this would detract from the predominant parental role currently played by the child’s biological parents. This sub-paragraph (e) is neutral for the purpose of allocating weight in this matter.
Sub-paragraph (f) requires me to consider any known views of the child (having regard to their age and maturity). Grandchild E is obviously too young to express any such views. In the absence of such views being known, this sub-paragraph (f) is neutral for the purpose of allocating weight in this matter.
Sub-paragraph (g) compels a decision-maker to look for and analyse evidence that the child/ren have been or are at risk of being subject to or exposed to family violence perpetrated by the non-citizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally. I interpret this sub-paragraph (g) to require me to answer (1) whether the evidence points to past exposure of the child/ren to the Applicant’s commission of family violence; (2) whether the relevant child is at risk of being, in future, exposed to family violence perpetrated by the Applicant and (3) whether the Applicant has otherwise abused or neglected the relevant child in terms of physical, sexual or mental abuse.
None of these elements are met or activated in any adverse way to the Applicant’s interests. In fact, they are not activated at all. This sub-paragraph (g) is neutral for the purpose of allocating weight in this matter.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. As alluded to earlier, there is no clinically verifiable or independent evidence about any extent to which any of the relevant children have suffered physical or emotional trauma resulting from the Applicant’s conduct. This sub-paragraph (h) is neutral for the purpose of allocating weight in this matter.
Conclusion: Primary Consideration 3
I have had regard to the evidence and have sought, where I have thought appropriate and relevant, to apply my findings about the evidence towards the allocation of weight – one way or the other – to each of the relevant sub-paragraphs to paragraph 8.3 of the Direction.
I am mindful of the Respondent’s concession that the Tribunal “should give limited weight to this consideration”. The most compelling basis upon which the Respondent makes this contention is that it would be open to the Applicant to fund (travel restrictions permitting) a trip by his daughter/son-in-law/Grandchild E to South Africa for the purposes of his meeting his granddaughter in person, given that he appears able to fund a trip for himself and his wife to Australia.
As against that is the evidence about the Applicant spending time with Grandchild E in her home environment in Australia, both domestically and in terms of her formative years in kindergarten, her pre-school preparatory year and her early childhood. Subject to the Applicant’s health holding up, this could realistically extend to, one day, higher school and tertiary-level graduations. It is not, to my mind, in the best interests of Grandchild E for her to pay a price of relative unfamiliarity or restricted familiarity, with the Applicant for something he did 40 years ago in a foreign country.
I am therefore of the view (and I find) that the cumulative best interests of Grandchild E in Australia weigh strongly in favour of the Tribunal not exercising the discretion to refuse the requested short-stay visa sought by this Applicant. I qualify this finding by saying that the weight attributable to this Primary Consideration 3 does not on its own, determine this Application in favour of the Applicant.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[82] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[83]
[82] Direction, paragraph 8.4(3).
[83] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second, proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
·the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[84]
·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;[85]
·the nature of a 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 a visa outcome adverse to the non-citizen.[86]
Analysis – Allocation of Weight to this Primary Consideration 4
[84]          Direction, paragraph 5.2(4).
[85]          Direction, paragraph 5.2(4).
[86]          Direction, paragraph 5.2(5).
There can be no cavilling with the first proposition in paragraph 8.4(1) of the Direction: the Australian community expects non-citizens to obey “Australian laws” while in Australia. But this non-citizen now before the Tribunal has never been to Australia. No adverse historical finding can be made against him in this regard because he has never offended against an “Australian law”. There can be little or no doubt that were he to come here, he represents a miniscule risk of offending because, as I have found, he has not offended – in any way whatsoever – in the intervening 40 years since 1981. In addition, his age and state of physical health either entirely remove any risk or otherwise render such risk as miniscule.
With reference to the second proposition in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Applied to the instant facts, and based on the totality of my foregoing analysis, it is clear that the Applicant has not breached Australian law because he has never been to this country. I have earlier outlined my analysis of the risk that he will do so if permitted to come here for the three month short-stay visa period he seeks. To my mind, it would be incorrect to automatically apply this norm against this Applicant such as to automatically facilitate the allocation of a determinative level of weight to this Primary Consideration 4. Having regard to the totality of the evidence relating to the circumstances of this specific Applicant, I am of the view that the application of the normative expectation must be ameliorated such that weight allocable to this Primary Consideration 4 is of a moderate, and not determinative, level. I so find.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not be granted a visa to come here. In particular, paragraph 8.4(2) stipulates an Australian community expectation that the Australian government “can and should refuse entry to non-citizens” in such circumstances. This paragraph 8.4(2) then enumerates the abovementioned factors (see italicised part of paragraph [‎152]) that are informative of this expectation and the weight allocable to it.
Relevantly for present purposes, those factors comprise (adopting the relevant paragraph itemisation at paragraph 8.4(2):
(c)the Applicant’s commission of a crime that was technically a crime of violence against women and children;[87]
(d)at first blush, it may be thought that the Applicant’s conduct satisfies this sub-paragraph. However, as I have found, this is not the case because the physical element of the crime did not actually involve government representatives or officials.[88]
(e)can it be found that the Applicant has had involvement in a crime of serious international concern? The UN Security Council Documents certainly regarded the coup as a matter of international concern. However, the Applicant was not charged or convicted with any offending relating to a crime from that enquiry. He was convicted of a breach of the domestic law of South Africa related to civil aviation and for no other offence.[89]
[87]          See [‎61], above.
[88]          See [‎65], above.
[89]          See [‎69]–⁠[‎71], above.
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant should not be granted the visa he seeks. To my mind, none of the abovementioned components in paragraph 5.2 of the Direction aid the Applicant. He has not participated in or contributed to the Australian community for any period of time.[90] He has not lived in Australia for most of his life.[91] None of these factors are relevant to the Applicant.
Conclusion: Primary Consideration 4
[90] Direction, paragraph 5.2(4).
[91] Direction, paragraph 5.2(4).
Considering all relevant factors, and with particular regard to my findings that the propositions in paragraph 8.4(1) and 8.4(2) cumulatively apply only to the extent of facilitating a moderate and non-determinative level of weight to this Primary Consideration 4, I find that this Primary Consideration 4 weighs only moderately in favour of exercising the discretion to refuse to grant the Applicant a visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant is not currently in Australia. He cannot raise claims in relation to international non-refoulement. This consideration is not relevant to the instant application.
(b) Extent of Impediments if Removed
The Applicant is not currently in Australia. Accordingly, he cannot raise the issue of any impediments if removed from this jurisdiction. This consideration is not relevant to the instant application.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

The Applicant’s singular offence has not drawn any Australian-based victims into its orbit. This consideration is not relevant to determination of the instant application.
(d) Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors. They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. An initial observation is that the second paragraph of this paragraph 9.4.1 is not relevant to the instant application. It is predicated on an applicant seeking relief from a “cancellation” of their visa or “revocation” of the mandatory cancellation their visa. Here, the Applicant seeks relief from a decision to “refuse” a visa. Paragraph 9.4.1(2) is not relevant to determination of the instant application.
I will therefore limit my consideration to the componentry of paragraph 9.4.1(1) of the Direction.
Strength, nature and duration of ties
It is usually necessary to have regard to three elements set out in paragraphs 9.4.1(1), 9.4.1(2) and 9.4.2(3) of the Direction. However, because this is a case involving refusal of a visa, paragraph 9.4.1(2) does not arise. Therefore, it is first necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely.
1. Impact of non-revocation on the Applicant’s immediate family
The Respondent submits that to the extent the Tribunal finds that this Other Consideration may weigh in favour of granting the visa, it should only be afforded limited weight and is otherwise significantly outweighed by Primary Considerations 1 and 4.[92]
[92] R1, 12[67].
In cross-examination, the Applicant identified the extent of his immediate family, both here and in South Africa:
“Ms Liang: And Mr Dekker, you have three adult children. Is that right?
Mr Dekker: That’s correct.
Ms Liang: And other than Ms Pretorius, your other two children, your sons, live in South Africa with you. Would that be correct?
Mr Dekker: That’s correct.
Ms Liang: Mr Dekker, how many grandchildren do you have?
Mr Dekker: Two.
Ms Liang: And where do they all live?
Mr Dekker: Two of them in South Africa, and [Grandchild E] in Australia. In Melbourne.
Ms Liang: Mr Dekker, other than Ms Pretorius, her daughter and her husband, you have no other family members in Australia. Would that be correct?
Mr Dekker: That’s correct.”[93]
[My emphasis and underlining]
[93] Transcript, 22, lines 17–29.
Therefore, the Applicant has three members of his immediate family residing in Australia.[94] The next question is whether those three people are (1) Australian citizens, (2) Australian permanent residents, or (3) people who have a right to remain in Australia indefinitely.
[94] Out of an abundance of caution, I note my specific finding that the Applicant’s son-in-law is a member of his “immediate” family.
The Applicant’s son-in-law is in Australia pursuant to a Skilled Nominated (Class SN) subclass 190 visa.[95] The stay period nominated in that visa is “indefinite from the date of each arrival”. The Applicant’s daughter is a dependent on that visa.[96] She has the same stay period on her visa as her husband. I will not consider the visa/citizenship status of Grandchild E because I took her interests into account as part of my Consideration of weight allocable to Primary Consideration 3. It suffices to say Grandchild E was born in Australia in mid-2020.
[95] G1, 176.
[96] G1, 177.
The Applicant’s daughter summarised the impacts upon her and her husband thus:
“I am very close to my family, and did not take the decision to move to Australia lightly, as it is so far away and expensive to visit. Dad in particular, motivated strongly for us to make the move as he was certain we would have a better life in Australia, but now, he is refused the opportunity to come and visit us.
I speak with them weekly, and the past 2 years since he first applied for his visa has been the hardest. It has taken a severe emotional toll on us all, not knowing when we will ever be able to all be together again as a family. It has been particularly tough since we found out that we were expecting too.
My Dad deserves the opportunity to visit us here in Australia, he is not a criminal, does not deserve to be treated as such and all we want is for my daughter [Grandchild E] to get to know her ‘Pop-Pop’ and ‘Ouma’. I was devastated that Mom and Dad could not be here for her birth, with us, but have always trusted that as they are now retired, would be able to come and visit and spend as much time with us as possible, so [Grandchild E] can get to know them before the inevitable, and we can make us much memories as possible as a family.”[97]
[97] A8.
In written closing submissions, the following impact of an adverse decision to the Applicant was recorded:
“[…] Mr Dekker has always had a very close relationship with his family in Australia, (even long before they arrived in Australia) and has been unable to visit them through no fault of his own. He intended to visit them soon after they arrived in Australia, but has not been permitted as yet.
The impact on these family members would be severe, and incredibly emotionally damaging, and tear his family apart, should Mr Dekker be denied a visa. Mr Dekker is a loving father and grandfather to them, and patriarch of his extended family unit. His family has been living in hope of having him visit, and losing that hope would simply be devastating, and near impossible to live with.”[98]
[My emphasis and underlining]
[98] A14, [25]–[26]
Therefore, I am of the view that this element to paragraph 9.4.1 of the Direction militates in favour of a finding that the strength, nature and duration of the Applicant’s ties to immediate family members in Australia warrants the allocation of a strong level of weight in favour of the Tribunal not exercising its discretion to refuse to grant the visa he seeks.
3. Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) 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”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
The Applicant is retired, and the visa he applies for precludes him from working while here. There is no evidence that any Australian business would be adversely affected by a decision to refuse this Applicant a visa. It is thus of neutral weight to determination of the instant application.
Weight allocable to Other Consideration 4: links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the relevant components of this first part of Other Consideration 4, the totality of the evidence points to a strong level of weight in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests – paragraph 9.4.2(3)) is not relevant to determination of the instant application.
Findings: Other Considerations
The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: not relevant;
(c)impact on victims: not relevant; and
(d)links to the Australian community: strong weight in favour of the Applicant.
CONCLUSION
General observations
This application involves a refusal to grant a short stay visa for this South African-based Applicant to come to Australia. Forty years ago, the visa Applicant was involved in a failed operation that he thought was being conducted on behalf of the South African government. He was in no way an organiser of that operation. In the intervening 40 years, the Applicant has never travelled to or spent any time in Australia.
The visa Applicant is now retired, and wants to visit his biological daughter and his son-in-law who both settled in Australia in 2016. The daughter and son-in-law now have a one year old child who is the biological granddaughter of the Applicant. The Applicant has been separated from his daughter and son-in-law for around four years. He has never seen his one year old granddaughter in person because of the COVID-19 pandemic.
He has led an exemplary and blameless family life with a marriage of over 40 years that bore three children. He has led a similarly exemplary corporate career that saw him rise to high-ranking managerial and board positions in an international paper and pulp manufacturing company, at which he spent his entire working career. Across that corporate career, he had occasion to travel to numerous other countries with no issue ever being raised about his singular offending episode in 1981.
He represents a miniscule risk of re-offending and otherwise breaching Australian laws in the event he is granted the short-stay visa to come here.
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant.
In reaching that conclusion, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 weighs moderately in favour of refusal;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 weighs strongly against refusal;
·Primary Consideration 4 weighs moderately in favour of refusal; and
·I have outlined the weight attributable to the Other Considerations. I consider that the totality of the strong weight I have attributed to Other Consideration 4, when combined with the strong weight I have attributed to Primary Consideration 3, outweighs the weight I have allocated to the remaining Primary Considerations;
·A holistic view of the considerations in the Direction therefore favours the grant of the visa sought by the Applicant.
Consequently, I do not exercise the discretion to refuse to grant the Applicant’s visa.
DECISION
The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant a Visitor (Class FA) Subclass 600 Visa.

I certify that the preceding 187 (one hundred and eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

..............................[sgd]...............................
Associate
Dated: 15 June 2021

Date(s) of hearing:

13 April 2021

Solicitors for the Applicant:

Self-represented

Advocate for the Respondent:

Ms Jaidi Liang

Solicitors for the Respondent:

Clayton Utz

Annexure A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

Section 501 G-Documents
(G1-G8, paged 1‑229)

-

3 February 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-13)

19 March 2021

19 March 2021

R2

Annexure A – Extract of the Repertoire of the Practice of the Security Council (paged 1-7 by the Respondent)

15 December 1981

19 March 2021

R3

Annexure B – Ministerial Direction No. 90 (paged 1-23)

–

19 March 2021

R4

Respondent’s written closing submissions
(paged 1-3)

A1

Applicant’s Revised Statement of Facts, Issues and Contentions – Amended post-Ministerial Direction 90 (19 pages)

-

29 March 2021

A2

Seychelles Press Interview with Mr JL Dekker
(digital video file, 3 minutes 40 seconds)

Undated

19 February 2021

A3

Character Reference from John Barton (2 pages)

29 January 2021

19 February 2021

A4

Character Reference from Hermanus Grove (1 page)

25 January 2021

19 February 2021

A5

Character Reference from Robert Hunt (1 page)

26 January 2021

19 February 2021

A6

Character Reference from Benito Niemann (2 pages)

Undated

19 February 2021

A7

Character Reference from Johan Pretorius (2 pages)

10 February 2021

19 February 2021

A8

Character Reference from Rene Pretorius (2 pages)

10 February 2021

19 February 2021

A9

Medical Evidence from JL Dekker (9 pages)

15 February 2021

19 February 2021

A10

Cardiologist’s Report by Dr Dirk Pretorius (paged 1-2)

23 February 2021

24 February 2021

A11

Certifying letter (1 page) covering:

· State v Hoare and Others [1982] 4 SALR 865 (numbered pages 865–890)

24 March 2021

29 March 2021

A12

Applicant’s Rebuttal of Respondent Statement of Facts, Issues and Contentions (9 pages)

-

29 March 2021

A13

Statement from Mr Dekker in Response to Solicitor’s Statement for the Respondent dated 19 March 2021 (5 pages)

24 March 2021

29 March 2021

A14

Applicant’s written closing submissions
(6 pages)

4 May 2021

4 May 2021

[2021] AATA 1869

15 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Proportionality

Date(s) of hearing:	13 April 2021
Solicitors for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Jaidi Liang
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 501 G-Documents (G1-G8, paged 1‑229)	-	3 February 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-13)	19 March 2021	19 March 2021
R2	Annexure A – Extract of the Repertoire of the Practice of the Security Council (paged 1-7 by the Respondent)	15 December 1981	19 March 2021
R3	Annexure B – Ministerial Direction No. 90 (paged 1-23)	–	19 March 2021
R4	Respondent’s written closing submissions (paged 1-3)
A1	Applicant’s Revised Statement of Facts, Issues and Contentions – Amended post-Ministerial Direction 90 (19 pages)	-	29 March 2021
A2	Seychelles Press Interview with Mr JL Dekker (digital video file, 3 minutes 40 seconds)	Undated	19 February 2021
A3	Character Reference from John Barton (2 pages)	29 January 2021	19 February 2021
A4	Character Reference from Hermanus Grove (1 page)	25 January 2021	19 February 2021
A5	Character Reference from Robert Hunt (1 page)	26 January 2021	19 February 2021
A6	Character Reference from Benito Niemann (2 pages)	Undated	19 February 2021
A7	Character Reference from Johan Pretorius (2 pages)	10 February 2021	19 February 2021
A8	Character Reference from Rene Pretorius (2 pages)	10 February 2021	19 February 2021
A9	Medical Evidence from JL Dekker (9 pages)	15 February 2021	19 February 2021
A10	Cardiologist’s Report by Dr Dirk Pretorius (paged 1-2)	23 February 2021	24 February 2021
A11	Certifying letter (1 page) covering: · State v Hoare and Others [1982] 4 SALR 865 (numbered pages 865–890)	24 March 2021	29 March 2021
A12	Applicant’s Rebuttal of Respondent Statement of Facts, Issues and Contentions (9 pages)	-	29 March 2021
A13	Statement from Mr Dekker in Response to Solicitor’s Statement for the Respondent dated 19 March 2021 (5 pages)	24 March 2021	29 March 2021
A14	Applicant’s written closing submissions (6 pages)	4 May 2021	4 May 2021