Tannenbaum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 2739

Tannenbaum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2739 (12 August 2022)
AppID:  Tannenbaum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType:   Citizenship
Division:GENERAL DIVISION
File Number(s):      2020/3979
Re:Mr Barry Deon Tannenbaum
APPLICANT

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

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 August 2022
Place:Brisbane

I affirm the decision under review
.............................[SGD]...........................................
Deputy President Dr P McDermott RFD
Catchwords
Application for Australian citizenship – character test – whether applicant of good character – where applicant not available for examination – fraud forgery and other serious offences – outstanding arrest warrant – where extradition process not commenced – where false or misleading statements – where decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Bank Act 1989 (South Africa)
Criminal Procedure Act 1977 (South Africa)
Insolvency Act 1936 (South Africa)
Cases
BOY19 v Minister for Immigration and Citizenship [2019] FCA 574
Chen and Minister for Immigration and Citizenship [2007] AATA 1815
De Bruyn v Republic of South Africa [1999] FCA 1344
De Bruyn v Minister for Justice and Customs (2004) 143 FCR 162; (2004) 213 ALR 479; [2004] FCAFC 334
Gainsford, in the matter of Tannenbaum v Tannenbaum [2012] FCA 904
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Zheng and Minister for Immigration and Citizenship (2011) 55 AAR 94
Secondary Materials
EP Aughterson, Extradition: Australian Law and Procedure (Law Book Co, 1995)
Macquarie Dictionary, 8^th ed
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 August 2022
INTRODUCTION

This is an application for the review of a decision made by a delegate of the Minister for Home Affairs to refuse the applicant, who is a citizen of South Africa, becoming an Australian citizenship on the basis that the delegate was not satisfied that Mr Barry Deon Tannenbaum (“the applicant”) was a person of good character as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[1]
[1] Exhibit A, T-Documents, T9.
BACKGROUND
The applicant first entered Australia on 15 December 1995 as the holder of a Tourist visa (subclass 676).[2]
[2] Exhibit A, T-Documents, T9.
On 31 March 2005 the applicant was granted a Partner visa (subclass 100).[3]
[3] Exhibit A, T-Documents, T9.
On 29 September 2009, the applicant lodged an application for Australian citizenship by conferral.[4] On 6 July 2015 that application was refused as the applicant had an active arrest warrant for his arrest in South Africa.[5]
[4] Exhibit A, T-Documents, T6.
[5] Exhibit A, T-Documents, T6.
On 27 September 2015 the applicant lodged a further application for Australian citizenship by conferral.[6]
[6] Exhibit A, T-Documents, T9.
By a letter dated 11 March 2020 the Department of Home Affairs provided the applicant with an opportunity to comment upon the following adverse information:
(a)The applicant was advised that there was information from South African authorities confirming that there were pending criminal matters against him and that he was aware of the existence of a warrant out for his arrest in South Africa.
(b)It was drawn to the attention of the applicant that in his application for Australian citizenship he had declared ‘no’ to the question of whether he was aware of any proceedings pending against him overseas or in Australia against him; the applicant was advised that it appeared that he had provided false or misleading information with his application.
(c)The applicant was advised that Departmental records indicate that his previous application for Australian citizenship was refused on 6 July 2015 as he had an active warrant for his arrest in South Africa at the time and that movement records indicated that he had not left Australia since his last arrival on 28 March 2009 thereby indicating that the warrant for his arrest in 2015 was the same active warrant being considered.[7]
[7] Exhibit A, T-Documents, T6.
On 15 April 2020 the applicant by his representative provided a response to the invitation to respond enclosing a letter from the applicant’s lawyers, a South African Police Service Check, his statutory declaration as well as character references.[8]
[8] Exhibit A, T-Documents, T7; T8.
On 2 June 2020, a delegate of the Minister for Home Affairs made a decision to refuse the applicant’s application for Australian citizenship on the ground that the delegate was not satisfied that the applicant was of good character as required by s 21(2)(h) of the Act.[9]
[9] Exhibit A, T-Documents, T9.
On 30 June 2020, the applicant made an application to this Tribunal for review of the decision of the delegate.[10]
[10] Exhibit A, T-Documents, T1.
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH)
Section 20 of the Australian Citizenship Act 2007 (Cth) (“the Act”) contains the requirements for becoming an Australian citizen:
20 Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming

an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an

Australian citizen—the person makes that pledge.
Note: Sections 21 to 25 deal with the Minister approving the person

becoming an Australian citizen.
Sections 26 and 27 of the Act deal with the making of a pledge of commitment.
Section 21 of the Act provides for the application and eligibility requirements for Australian citizenship and relevantly provides:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian

citizen.
Note 1:      Subsections (2) to (8) deal with eligibility.
Note 2:    Section 46 sets out application requirements (which may include the

payment of a fee).
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that

the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special

residence requirement (see section 22A or 22B), or satisfies the defence

service requirement (see section 23), at the time the person made the

application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and

privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close

and continuing association with Australia if the application were to be

approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act relevantly provides:
(1) If a person makes an application under section 21, the Minister must, by writing,

approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen

unless the person is eligible to become an Australian citizen under subsection

21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen

despite the person being eligible to become an Australian citizen under

subsection 21(2), (3), (4), (5), (6) or (7).
BUSINESS BACKGROUND OF APPLICANT
In Gainsford, in the matter ofTannenbaum v Tannenbaum,[11] Logan J., at [6]–[13], set out the background which is relevant to this application, there is no cogent evidence before me to contradict the findings made by His Honour. Logan J, remarked:
[11] [2012] FCA 904.
Between 2004 and 2009, Mr Tannenbaum raised funds in South Africa for the nominal purpose of their being invested in the local pharmaceutical industry. More particularly, investors made short term (8 to 12 weeks) advances to him for the purpose of enabling the purchase and importation into South Africa of pharmaceutical ingredients.
Mr Tannenbaum was the trustee of a trust named the Frankel Trust and in that capacity owned the issued capital of a South African incorporated company Eurochemicals Pty Ltd, which traded under the name Frankel Pty Ltd (Frankel). The Frankel Trust was settled in South Africa. Mr Tannenbaum was and remains its sole trustee. He was also the last active director of Frankel.
The funds were raised via a scheme which entailed the following, purported bases:
(a) Frankel conducted a business of the bulk importing of ingredients pre-ordered by South African pharmaceutical manufacturers;
(b) funds advanced to Mr Tannenbaum would, in turn, be advanced by him to Frankel; and
(c) each importation would yield a substantial profit to Frankel, thereby enabling it to repay Mr Tannenbaum and, in turn, him to be able to repay each advance and, as well, to pay a high return on it.
In total, Mr Tannenbaum received ZAR 3,298,924,803 (AUD 390,036,037) via this scheme between 2004 and 2009.
Contrary to these purported bases and, in fact:
(a) less than 0.05% of the funds advanced to Mr Tannenbaum were on loaned by him and used for the purpose of acquiring pharmaceutical ingredients;
(b) of the funds received by Mr Tannenbaum:
(i) some ZAR 44,822,098 was used by him for personal transactions with a substantial portion being spent on gambling;
(ii) he transferred some USD 31.7 million into an account held by Bartan Group Pty Ltd (Bartan), an Australian incorporated company, with the ANZ Bank (Bartan account);
(iii) he transferred some USD 14 million from the Bartan account to other entities controlled by him or to persons associated with him.
The sole shareholder of Bartan is another Australian incorporated company, Bardeb Nominees Pty Ltd (Bardeb). In turn, the shares in Bardeb are held solely by Mr Tannenbaum and his wife, Deborah.
Mr Tannenbaum was a director of Bartan from 3 January 2007 until 26 August 2009. He held the office of director in Bardeb from 22 December 2006 also until 26 August 2009.
Bartan was wound up by an order of the Supreme Court of New South Wales on 9 March 2010. The resultant report of 6 April 2010 as to Bartan’s affairs is noteworthy for its paucity of information concerning the affairs of that company. It does though disclose the following:
(a) assets of AUD 586,523 (made up of AUD 150 in cash with the balance being investments in two other entities);
(b) contingent assets of some AUD 21 million.
The respondent has provided the applicant with timely notice of those considered findings which are contained in the statement of facts, issues and contentions of the respondent.[12] The applicant has not provided any cogent evidence to contradict those findings.
[12] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions, [22-25].
BANKRUPTCY OF APPLICANT
The applicant was made bankrupt by an order of the South Gauteng High Court at Johannesburg in South Africa on 18 August 2009 under the Insolvency Act 1936 (South Africa).[13] Previously, on 8 June 2009, that court had made an order for what is known as the provisional sequestration of his estate, the final sequestration order was also made on 18 August 2009.[14] The applicant has provided a credit report which does not refer to the bankruptcy of the applicant.[15]
[13]    Gainsford, in the matter of Tannenbaum v Tannenbaum [2012] FCA 904 at [1].
[14]    Gainsford, in the matter of Tannenbaum v Tannenbaum [2012] FCA 904.
[15]    Exhibit C, Applicant’s submissions.
The joint trustees of the insolvent estate of the applicant were the applicants in Gainsford, in the matter of Tannenbaum v Tannenbaum[16] Logan J., at [19], set out the position concerning the applicant under the Insolvency Act 1936 (South Africa).
[16] [2012] FCA 904.
Under section 20 of the Insolvency Act 1936 (South Africa), and subject to exceptions for which that Act provides, the applicant’s property as at the date of sequestration and such as may be acquired by or accrue to him during the period of his insolvent administration, vested in the joint trustees of his insolvent estate upon their appointment.
Under section 23 of the Insolvency Act 1936 Mr Tannenbaum is required:
(i) to keep a detailed record of all assets acquired by him from whatever source and, if required by the applicants, to remit in the last week of every month a statement verified by affidavit of the assets which he has acquired and the disbursements which he has made during the preceding month.
(ii) to assist the applicants in collecting, taking charge of or realising the assets which comprise his insolvent estate; and
(iii) to keep the trustee informed of his residential and postal address.
Under section 23 of the Insolvency Act 1936 (South Africa), the applicant is required to complete a report as to his financial affairs.
The applicant has not attended to the responsibilities required of him under South African bankruptcy law.[17]
[17] Gainsford, in the matter of Tannenbaum v Tannenbaum [2012] FCA 904.
CO-OPERATION WITH THE JOINT TRUSTEES
One issue in the proceedings in Gainsford, in the matter of Tannenbaum v Tannenbaum[18] was whether the applicant co-operated with the joint trustees of his insolvent estate. It is important that I set out the conclusions of Logan J. (at [20]-[23]) which are also not contradicted by any cogent evidence before this Tribunal:
According to the applicants, Mr Tannenbaum has failed to co-operate with them in their administration by disclosing details of his assets and liabilities. More particularly, he has failed to complete the required report as to his financial affairs. Neither has he kept the applicants informed of his residential and postal addresses.
Mr Tannenbaum disputes the allegation of non-co-operation. On closer examination, this dispute is not so much a denial of the applicants’ allegation of non-co-operation as an assertion that he has not been permitted to co-operate on his own terms. Thus, he states that he has always co-operated with “the South African Authorities” and “with the lawyer allegedly acting for the trustees”, “providing I have legal representation and costs paid for”. He further states that he has received advice from his “Australian lawyer” (whose identity or source of paid retainer is not specified) that an estimate of these costs is AUD 200,000.00. Somewhat incongruously with his assertion of co-operation, Mr Tannenbaum further maintains that he has never been officially notified either of his being made bankrupt in South Africa or of the applicants’ appointment there as the trustees of his estate.
In South Africa, the applicants have to date made extensive investigations into Mr Tannenbaum’s financial affairs, including the scheme described above. These investigations have included the examination, pursuant to s 152 of the Insolvency Act, of some 200 witnesses over 37 days. The applicants’ investigations, including such examinations, are continuing. They assert, and the evidence before me gives ample basis for that assertion in terms of the interrogative notes which I have mentioned, that Mr Tannenbaum’s failure to co-operate with them is hampering their administration of his insolvent estate and is not in the interests of the creditors of that estate.
The applicants’ administration of Mr Tannenbaum’s insolvent estate has included the institution of some 90 High Court proceedings in South Africa under the voidable disposition provisions of the Insolvency Act. In these proceedings the applicants seek the recovery of dispositions alleged to have been made without value or in ways that constitute voidable preferences. Thirteen of these proceedings are listed for trial. The earliest such trial listing is not until 24 July 2017. While, without any disrespect to South Africa, such a listing serves as a reminder that challenges for government in the provision of sufficient judicial resources for timely civil justice are not confined to Australia, the lead time entailed also underscores that there is utility in the applicants’ desire to examine Mr Tannenbaum and to otherwise gather evidence beyond matters of public record in Australia.
[18] [2012] FCA 904.
The applicant contends that he has co-operated with the trustees of his bankrupt estate, he has submitted:
The previous civil proceedings that were undertaken against the applicant relate to the circumstances of Frankel Chemicals’ demise in 2009. The applicant assisted the Trustee of his bankrupt estate with their investigations since that time.[19]
[19] Exhibit E, Applicant’s Counsel Submissions, [56].
I do not accept the submission of the applicant that since 2009 he has assisted the trustees of his bankrupt estate. This statement cannot be correct because later those trustees have found it necessary to take proceedings in the Federal Court of Australia to require the applicant to complete a statement of his affairs and attend examinations. In Gainsford, in the matter of Tannenbaum v Tannenbaum,[20] Logan J. certainly did not accept that the applicant co-operated with the joint trustees of his insolvent estate who were the applicants in that proceeding. His Honour remarked (at [57]): “His disposition not to co-operate with the applicants is manifest”.
[20] [2012] FCA 904.
The intransigence of the applicant in attending to his responsibilities under South African bankruptcy law would have been to the detriment of the creditors of the bankrupt estate because the trustees of his estate would have had to expend funds of the estate on legal costs.
The action of the applicant in demanding the payment of $200,000 before he would

co-operate with the joint trustees is evidence of his lack of co-operation with the trustees. I do not accept the submission of the applicant that he has ‘has shown extensive remorse over the years and has made a consistent effort to be responsive to matters which have arisen as a result’.[21] If the applicant had indeed been remorseful about the collapse of the business that he controlled and had the interests of his creditors in mind, he would have voluntarily aided the joint trustees of his insolvent estate. This would be particularly important having regard to the circumstances of the transfer of considerable funds to Australia.
CONSIDERATION
[21] Exhibit E, Applicant’s Counsel Submissions., [56].
Australian values
Deputy President Forgie in Zheng and Minister for Immigration and Citizenship[22] has observed that in an application for citizenship, there must be consideration of whether the applicant has conducted herself or himself in a manner that accords with the values of society. Deputy President Forgie has explained how assistance can be derived from the preamble to the Act which recites that the Commonwealth Parliament recognises that persons conferred with Australian citizenship undertake to accept the obligation to uphold and obey the laws of Australia. The Australian values statement, which is incorporated in the application for citizenship, was signed by the applicant. That statement recognises that the responsibilities for citizenship include obeying Australian laws. I consider that one reason why the applicant is not of good character is because whilst he has been in Australia, he has not conducted himself in a manner that accords with the values of our society, evidenced by the fact that he intentionally provided false or misleading information to the Department. The applicant has also not co-operated with the joint trustees of his bankrupt estate.
[22] (2011) 55 AAR 94.
Providing false or misleading information to the Department

The Departmental letter of 11 March 2020 informed the applicant that in his application for Australian citizenship he had declared ‘no’ to the question of whether he was aware of any proceedings pending against him overseas or in Australia against him; the applicant was advised that it appeared that he had provided false or misleading information with his application.[23] In his statutory declaration dated 15 April 2020 the applicant has asserted that he had responded to the stated question correctly and that there was an ‘absence of criminal charges’.[24] Mr Darryl Ackerman, the applicant’s South African attorney, has stated in his letter of 7 April 2020 that ‘to the best of our knowledge’[25] the applicant has not been ‘formally charged with any criminal offence’.[26]
[23]    Exhibit A, T-Documents, T6.
[24]    Exhibit C, Applicant’s submissions.
[25]    Exhibit C, Applicant’s submissions.
[26]    Exhibit C, Applicant’s submissions.
In his statutory declaration the applicant has not taken issue with the fact that the Departmental letter of 11 March 2020 refers to the fact that in 2015 his application for Australian citizenship was refused because then there was an active arrest warrant in South Africa. In his statutory declaration the applicant declares that he had not ‘received confirmation of any warrant nor criminal charges laid against me in South Africa, despite my attempts to clarify’.[27] The applicant was unable to be asked, either by this Tribunal or under cross-examination by the respondent, what attempts he had in fact made to clarify his position.
[27] Exhibit A, T-Documents, T7.
I do not accept that the applicant has made attempts to clarify whether there is an active arrest warrant. The applicant has put forward letters from Mr Darryl Ackerman, his South African attorney, to support both of his applications for Australian citizenship. In none of his letters did Mr Ackerman expressly state that he had made enquiries from the South African Police Service to confirm whether the arrest warrant was still active. In his letter dated 30 September 2014 to support the first application of the applicant for Australian citizenship, Mr Ackerman stated: ‘We have no knowledge, nor have we been informed by any branch of our local criminal justice system, that a warrant of arrest has been issued for the apprehension of Mr Tannenbaum’.[28] Regardless of whether Mr Ackerman was notified, this does not go to the objective existence of such an arrest warrant.
[28] Exhibit C, Applicant’s submissions.
I have inferred that the fact that Mr Ackerman found it necessary to write his letter in 2014 would have indicated that the applicant was, at the least, then aware of the possible existence of the arrest warrant. One issue is when the applicant was first aware of the arrest warrant. The applicant has relied upon an email from the Australian Federal Police dated 19 August 2020 which mentions that the South African Police Force believes that the applicant would be aware of the warrant but cannot prove that he is aware.[29] The applicant could not be questioned about this issue because he elected not to give evidence before the Tribunal. I have considered that the applicant would have certainly been aware of the arrest warrant as recently as in 2015 as his 2009 application for Australian citizenship was declined because of the existence of an arrest warrant. That is why his statement that there were ‘no’ proceedings against him ought to be considered as false or misleading. The evidence before me indicates that a criminal case for forgery fraud had been opened in 2009.[30]
[29] Exhibit C, Applicant’s submissions.
[30] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions, at [28].
The South African warrant for the arrest of the applicant was issued on 18 June 2010 under the Criminal Procedure Act 1977 (South Africa).[31] That warrant requires the applicant to be brought before a South African court. The Australian Federal Police in their email of 26 October 2021 confirmed that this arrest warrant is still active as the applicant will be arrested if he returns to South Africa. I have therefore concluded that the applicant is a fugitive from justice.
[31] Exhibit C, Applicant’s submissions.
While the applicant now acknowledges the existence of the arrest warrant, I do not accept that in 2019 when the applicant made his second application for Australian citizenship that he was unaware of the existence of the arrest warrant. While he may not have been formally charged, he would have been aware of the arrest warrant at least in 2015. I consider that in 2019, when the applicant made his second application for Australian citizenship, he would have been aware that the arrest warrant was extant. I have come to this conclusion because there is no evidence that the South African Police had advised the applicant either personally or through his attorney, that the arrest warrant had been withdrawn.
The applicant has put forward a clearance certificate from the South African Police Service which certifies that the applicant has no criminal record. Mr Ackerman in his letter dated

7 April 2020 has stated that the certificate by the South African Police Service ‘also implies that no warrant for the arrest of Mr Tannenbaum was issued at any time’.[32] However, having regard to Exhibit F (which, by order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) I have restricted the publication or disclosure of), I do not accept the submission of the applicant.
[32] Exhibit C, Applicant’s submissions.
I have therefore concluded that the applicant gave a false or misleading answer when in his second application for Australian citizenship he had declared ‘no’ to the question of whether he was aware of any proceedings pending against him overseas. An arrest warrant would certainly come with the ordinary meaning of a ‘proceeding’. A ‘proceeding’ is ‘a legal step or measure’.[33] The arrest warrant which authorises the arrest of the applicant, who upon arrest is to be brought before a court is certainly a ‘proceeding’.
[33] Macquarie Dictionary, 8^th ed., 1216.
I consider that the provision of false or misleading information by the applicant indicates that the applicant is not of good character. In Lachmaiya and Department of Immigration and Ethnic Affairs,[34] Deputy President McMahon emphasised that there are ‘overall requirements important in the administration of immigration’.[35] The learned Deputy President referred to the ‘observance of truth in dealing with officials in migration matters’[36] as being an important consideration in evaluating whether a person is of good character. The fact that the applicant made a false declaration in his application for Australian citizenship and his failure to give a proper explanation for making a false declaration counts strongly against him being regarded as being a person of good character. The applicant has relied upon the decision of this Tribunal in Chen and Minister for Immigration and Citizenship:[37] however, in that case the successful applicant had informed the Department of the relevant circumstances of her case.[38] There has been no such disclosure by the applicant in this case.
[34] (1994) 19 AAR 148.
[35]    Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at [35].
[36]    Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at [35].
[37] [2007] AATA 1815.
[38]    Chen v Minister for Immigration and Citizenship [2007] AATA 1815 at [14].
The respondent in their Statement of Facts, Issues and Contentions referred to the fact that there is an arrest warrant for the serious offences of fraud, theft, forgery as well as conventions of the Bank Act 1989 (South Africa).[39] Quite irrespective of whether or not the applicant has made a false or misleading declaration in his second application for Australian citizenship, the existence of the extant warrant means that I cannot have the requisite state of satisfaction under s 21(2)(h) of the Act that the applicant is of good character.[40] Unless and until these allegations of serious criminal offences are resolved in favour of the applicant I am unable to find that the applicant is of good character.
[39] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions at [28].
[40] BOY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 574 at [54]-[55].
The applicant has provided his solicitors with what he asserts is a ‘full list of wanted people in the South African Police Services database’.[41] The applicant has not provided the disclaimer on the website from which he sourced the list. In any event, the evidence before me indicates that the list that was provided by the applicant is not complete. I accept the submission of the respondent that the purpose of the list is to obtain information from members of the public and the South African police are aware of the location of the applicant. I also note the remarks of South African police which were conveyed to the Department via an email from the Australian Federal Police, dated 26 October 2021, that ‘we know where Mr Tannenbaum is, no need to crowd our wanted list, tell him to board a plane. The warrant of arrest is available for inspection, he is welcome to visit my office in Pretoria, South Africa and yes, he will be arrested’.[42]
[41] Exhibit C, Applicant’s submissions.
[42] Exhibit D, Respondent’s Statement of Facts, Issues and Contentions, Annexure 2.
The applicant has put forward that the ‘South African authorities have not undertaken efforts to serve the Applicant with the warrant or extradite the Applicant to pursue the charges’.[43] However, the arrest warrant could not be served upon the applicant while he remains in Australia. The extradition of the applicant from Australia to South Africa would not be an automatic process.[44] The fact that a jurisdiction has not presently and actively sought the extradition of a fugitive is not capable as being interpreted as evidence of there being no outstanding warrants or proceedings against the said fugitive.
[43] Exhibit C, Applicant’s Submissions.
[44] EP Aughterson, Extradition: Australian Law and Procedure (Law Book Co., 1995), p 171. See also, De Bruyn v Republic of South Africa [1999] FCA 1344; De Bruyn v Minister for Justice and Customs (2004) 143 FCR 162; (2004) 213 ALR 479; [2004] FCAFC 334.
Lack of co-operation with bankruptcy trustees
I do not accept the submission of the applicant that since 2009 the applicant has assisted the trustees of his bankrupt estate. This statement cannot be correct because much later in 2012 those trustees have found it necessary to take proceedings in the Federal Court of Australia In Gainsford, in the matter of Tannenbaum v Tannenbaum,[45] to require the applicant to complete a statement of affairs and attend for examination on oath. The applicant could not be questioned about this issue because he elected not to give evidence before the Tribunal.
[45] [2012] FCA 904.
It is apparent that there were considerable amounts of money invested in entitles controlled by the applicant. The applicant in his statutory declaration has acknowledged that there were investments made by investors from South Africa and the United Arabs Emirates. In his statutory declaration the applicant remarked: ‘I was alleged to have constructed a scheme’.[46] However, the applicant does not expressly deny that he was involved in a scheme. The applicant could not be questioned about this scheme because he elected not to give evidence before the Tribunal. The statutory declaration of the applicant was made some time after the decision of Logan J in Gainsford, in the matter of Tannenbaum v Tannenbaum[47] in which his Honour made findings of fact about the existence of the scheme, those findings have not been contradicted by any cogent evidence before this Tribunal.
[46] Exhibit A, T-Documents, T7.
[47] [2012] FCA 904.
I consider that the applicant was certainly involved in a scheme that has deprived investors of considerable funds. His failure to voluntarily assist the joint trustees of his estate after he arrived in Australia indicates that the applicant is not of good character. His failure to voluntarily assist the joint trustees detracts from the submission of the applicant that his conduct in Australia has been honest.
In his statutory declaration the applicant has referred to ‘several investigations being run’.[48] He declared that the ‘situation that arose came as a complete surprise to me. As such, subsequently in my pursuit of self-integrity and authenticity, I was self-represented in the civil proceedings filed against me and was successful’.[49] The applicant has not provided any documentary evidence concerning the ‘civil proceedings’ that he has referred to. The applicant has also not provided any documentary evidence concerning the bankruptcy proceedings as well as the sequestration orders.
[48] Exhibit A, T-Documents, T7.
[49] Exhibit A, T-Documents, T7.
Character references
The applicant has put forward several character references to show that he is of good character. The Departmental letter of 11 March 2020 informed the applicant that references that are made as statutory declarations are more likely to be considered favourably. Despite him receiving this advice, none of the character references provided by the applicant is in the form of a statutory declaration. The Departmental letter also advised the applicant that the persons who provided the character references should address the issues raised by the delegate.
The leadership and members of the congregation of the religious community confirm that the applicant is an important member of the congregation and community and supports his family. One senior member of his religious community has stated that he has been advised by the applicant that ‘all the allegations against him’[50] are as a result of the failure of his business. However, none those providing these references have acknowledged that the delegate alleged that the applicant has made a false declaration in his application for citizenship or has used corporate funds for personal transactions with a substantial portion being spent on gambling. The applicant has not disputed the findings concerning his involvement in the transfer of corporate funds to Australia.
[50] Exhibit A, T-Documents, T7.
The Departmental letter of 11 March 2020 informed the applicant that any references should address the issues raised in the letter. While I accept that the referees are not able to comment upon the seriousness of the charges, the referees certainly do not appreciate the nature of the allegations about the applicant. Mr Lipworth, a migration agent at Genesis Migration Services, has stated that ‘there have apparently been no warrants issued, no court dates set’.[51] Even though Mr Lipworth has known the applicant since their University days, he has obviously not been informed about the arrest warrant that the applicant would in my opinion have known about. Mr Lipworth is also seemingly unaware of the fact that ZAR 44,822,098 of the funds received by the applicant was used by him for personal transactions with a substantial portion being spent on gambling. It is difficult to understand why for Mr Lipworth, who states he is a law graduate, would state that ‘no court dates set’.[52] A law graduate would certainly appreciate that no court date would be set until the applicant has returned to South Africa to face justice.
[51] Exhibit A, T-Documents, T7.
[52] Exhibit A, T-Documents, T7.
The applicant has submitted that the references do not refer to the arrest warrant because of delay by the Minister in providing the relevant documentation to the applicant. I do not accept his explanation because the Departmental letter of 11 March 2020 informed the applicant that one issue was the arrest warrant. I have concluded that the applicant would have known about the arrest warrant in 2015 when his application for Australian citizenship was refused because of the existence of the active warrant; however, the applicant could not be questioned about this because he has elected not to give evidence before the Tribunal.
Employment
In any evaluation of the good character of the applicant it is necessary to consider the employment history of the applicant. In Al Hashimi and Minister for Immigration and Citizenship,[53] Deputy President Hotop and Member Hogan, remarked that “’stable, gainful employment’ would reflect favourably on an applicant’s character”.[54] The applicant asserts that he has been employed since 2007. Mr Padowitz in his character reference states that the applicant was his chief operations manager for two years. The applicant has referred to the departmental policy document which provides guidance in stating that it is relevant to consider whether an applicant for Australian citizenship has been paying taxes.[55] There is no evidence before the Tribunal to indicate what taxes the applicant has made since being in Australia. The issue of employment assumes particular importance having regard to the findings of a judge of the Federal Court of Australia that the applicant was involved in the transfer of some USD 31.7 million into an account in Australia. These findings have not been contradicted by any cogent evidence provided by the applicant.
[53] [2012] AATA 534.
[54] Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 at [40].
[55] Exhibit E, Applicant’s Counsel Submissions at [41] citing Citizenship Procedural Instruction 15, 6/23.
CONCLUSION
I do not accept the submissions of the applicant that I can be satisfied of the good character of the applicant by examining his conduct in Australia. In these reasons I have explained that I am not satisfied that the applicant is of good character because of his having in 2019 made a false or misleading statement in his second application for Australian citizenship. I am also not satisfied that he is of good character because he had not co-operated with the trustees of his bankrupt estate. I do not accept his submissions that he has co-operated with the trustees. He has not tendered into evidence the transcript of the examinations of himself or any member of his family. He has also not tendered into evidence documentation concerning the legal proceedings that he has adverted to in his statutory declaration. Further, as is his right, he has not made himself available for questioning during these proceedings. This has resulted in the applicant being unable to explain his claims either on oath or affirmation.
I am not satisfied that the applicant is of good character at the time of this decision having regard to the information provided by the South African Police Service in their letter of 14 September 2020 which indicates that a criminal case against the applicant had been opened and a warrant for his arrest had been issued. I am also concerned that the applicant has not disputed, either or oath or affirmation, the findings of a judge of the Federal Court of Australia the fact that ZAR 44,822,098 of the funds of Eurochemicals Pty Ltd, which traded under the name Frankel Pty Ltd, was used by him for personal transactions with a substantial portion being spent on gambling. The applicant has asked the Tribunal to infer from his statement in his statutory declaration ‘that there were others involved in the circumstances that led to the warrant being issued against the applicant’.[56] There is no cogent evidence before the Tribunal to enable me to make such an inference.[57] In any event, the applicant elected not to give evidence before the Tribunal so he could not be questioned on his assertion.
[56] Exhibit E, Applicant’s Counsel Submissions at [22].
[57] Exhibit E, Applicant’s Counsel Submissions at [22].

I am also not satisfied that the applicant was of good character at the time of the decision of the delegate who was evidently aware of the arrest warrant. In these reasons I have explained why I consider that the applicant was aware of the existence of the arrest warrant when he made a false or misleading statement in his second application for Australian citizenship.
At the hearing the applicant sought a decision from the Tribunal to direct the issue of a citizenship certificate. I informed the parties that if I was satisfied that the applicant is of good character, my usual course of action would be to set aside the decision under review and remit it to the respondent for reconsideration with a direction with my view about my finding of good character. The reason for this course of action is that to attain citizenship it is necessary for a delegate to be satisfied as to a number of other requirements which are contained in s 21(2) of the Act which have not been at issue in my consideration of this application. The respondent has not had the opportunity to be heard as to whether the applicant has satisfied those other requirements.
DECISION
I affirm the decision under review.

I certify that the preceding 53 (fifty-three paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD]..............................
Associate
Dated: 12 August 2022

Date of Hearing:

Date of last submission:

1 February 2022

8 April 2022

Counsel for the Applicant:

Solicitors for the Applicant:

Solicitor for the Respondent:

Ms Borcsa Vass

Ms Lauren Blud

Ramsdem Lawyers

Mr Alex Chan

Sparke Helmore Lawyers