Nolutshungu v Minister for Immigration, Citizenship and Multicultural Affairs

Background 5 Mr Nolutshungu is a citizen of South Africa. He first arrived in Australia on 11 April 2005 aged 12. 6 Mr Nolutshungu has been convicted of 18 offences, with the earliest conviction dating back to 2010. The offences for which Mr Nolutshungu has been convicted include fraud, robbery, assault occasioning actual bodily harm, drink driving, and various summary and traffic related offences. More particularly: (1) on 31 January 2013 Mr Nolutshungu was convicted and sentenced in the District Court of New South Wales to a term of imprisonment of two years, suspended upon entering a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (Cth) for the offence of aggravated robbery and inflicting actual bodily harm; and (2) on 8 April 2021 Mr Nolutshungu was convicted and sentenced by the Local Court of New South Wales to an aggregate term of three years imprisonment with a non-parole period of two years for one count of "participate criminal group contribute criminal activity", two counts of "knowingly direct activities of criminal group", one count of "recklessly deal with proceeds of crime >$5000", and one count of "deal with property proceeds of crime => $100000". 7 On 18 June 2021 the visa was cancelled under s 501(3A) of the Act (cancellation decision). That section provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of s 501(6)(a) of the Act (substantial criminal record) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of, relevantly, a State. 8 On 5 July 2021 Mr Nolutshungu sought revocation of the cancellation decision. 9 On 11 November 2022 a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation decision (delegate's decision). 10 Mr Nolutshungu sought review of the delegate's decision by the Tribunal. 11 On 6 February 2023, which was the 84th day of the matter, the Tribunal affirmed the delegate's decision and at the time provided a short form of its decision. On 27 February 2023 the Tribunal provided its detailed reasons for decision.

The Tribunal's decision 12 The first issue addressed by the Tribunal concerned the application of Pearson v Minister for Home Affairs (2022) 295 FCR 177. This was necessary because at the hearing before the Tribunal Mr Nolutshungu challenged the validity of the cancellation decision. He contended that his aggregate sentence of three years was not a term of imprisonment of 12 months or more as required by s 501(7)(c) of the Act. The Tribunal found that there were two bases on which the cancellation decision was not invalid. Critically, the Tribunal noted the (then) recent commencement of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) which provides that the provisions of the Act apply in relation to a single sentence imposed by a court regardless of whether the sentence is in respect of a single offence or for two or more offences. This was a complete answer to Mr Nolutshungu's challenge to the validity of the cancellation decision. 13 The Tribunal turned to consider the merits of the application. In doing so it referred to the legislative framework (see below) and identified that there were two issues before it: first, whether Mr Nolutshungu passed the character test; and secondly, whether there was another reason why the cancellation decision should be revoked. 14 As to the first issue, there was no dispute before the Tribunal that Mr Nolutshungu did not pass the character test and, in any event, the Tribunal was satisfied that was the case given that he had been sentenced to at least one term of imprisonment of more than 12 months. 15 As to the second issue, the Tribunal referred to and set out the requirements of Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). The Tribunal made findings having regard to those requirements commencing with the primary considerations and then turning to the other considerations. 16 The Tribunal first considered protection of the Australian community: (1) in relation to the nature and seriousness of Mr Nolutshungu's conduct, the Tribunal noted that he had been convicted, and received sentences for, three crimes of violence which it found were very serious and also found that his fraud offences should be viewed as being very serious having regard to the magnitude of the fraud in monetary terms. The Tribunal also took into account Mr Nolutshungu's other offending, noting that his offending had become more serious over time. The Tribunal found that the sentences imposed on Mr Nolutshungu demonstrated the seriousness of his offending, that his offending had been frequent with a trend of increasing seriousness, that the cumulative effects of his offending led to a finding that the totality of his offending has been of a very serious nature, and that Mr Nolutshungu had previously provided false information to the Minister's Department by not disclosing prior criminal offending. The Tribunal concluded that the totality of Mr Nolutshungu's conduct should be characterised as very serious; (2) in relation to risk to the Australian community, the Tribunal found that the potential harm, should Mr Nolutshungu reoffend, would be very serious and likely involve physical, psychological and economic harm to victims. As to the risk of future offending, the Tribunal found Mr Nolutshungu's evidence as to the circumstances of the fraud in which he participated to be unconvincing and, upon considering his evidence, found that he posed a significant risk of reoffending notwithstanding that he had, by undertaking a number of courses, commenced a process of rehabilitation; and (3) the Tribunal concluded that this primary consideration weighed very heavily in favour of non-revocation. 17 The Tribunal next considered the best interests of two minor children with whom Mr Nolutshungu had a relationship: his own child (referred to as child C) and his nephew. The Tribunal found that: (1) the best interests of child C weighed strongly but not determinatively in favour of setting aside the delegate's decision; (2) the applicant's nephew's interests weighed moderately but not determinatively in favour of setting aside the delegate's decision; and (3) the consideration as a whole attracted a strong but not determinative level of weight in favour of setting aside the delegate's decision. 18 Finally, the Tribunal considered the third relevant primary consideration, expectations of the Australian community and found that this consideration weighed very heavily in favour of affirming the delegate's decision. 19 The Tribunal then turned to the other considerations included in Direction 90 insofar as they were relevant to Mr Nolutshungu and found: (1) in relation to extent of impediments if removed, Mr Nolutshungu would face "a certain level of impediments upon his return to South Africa" in terms of his ability to find employment, being able to access public healthcare and having the support of a family on a temporary basis while resettling. Overall, the Tribunal found that this consideration weighed strongly but not determinatively in favour of revocation; and (2) in relation to links to the Australian community that, having regard to Mr Nolutshungu's immediate family, the length of his residence in Australia, his contribution to the community and his other social and family links, this consideration weighed strongly but not determinatively in favour of revocation. 20 In concluding, the Tribunal found that the combined weight allocated to the best interests of the minor children, the extent of impediments if removed and links to the Australian community was not sufficient to outweigh the combined very heavy weight allocated to the two relevant primary considerations: protection of the Australian community; and the expectations of the Australian community. The Tribunal therefore affirmed the delegate's decision.

The amended application 21 Mr Nolutshungu relied on the amended application in which he raises four grounds of review. He also sought to rely on two reports: (1) a report dated 18 May 2024 prepared by Angela Parasher, a clinical mental health practitioner, in relation to Mr Nolutshungu's "psychological symptoms and state of disturbance as a result of the stressors of his current predicament impact of his decision to grant permanent resident status visa on the basis of the following compelling and compassionate grounds"; and (2) a report dated 24 May 2024 prepared by Josie Wakim, psychologist, concerning Ms Lina Marcus, Mr Nolutshungu's spouse. 22 The Minister objected to the tender of the reports. I upheld the Minister's objection. The reports were not before the Tribunal, post-dated the Tribunal hearing and its decision and, at least in the case of Ms Parasher's report, seemed to be prepared to support an application pursuant to s 417 of the Act for Ministerial intervention. The reports were not relevant to the determination of Mr Nolutshungu's application for judicial review of the Tribunal's decision and could not respond now to the Tribunal's finding that there was no psychological assessment of Mr Nolutshungu at the time of his sentencing in April 2021. 23 Mr Nolutshungu relied on written submissions filed on 24 May 2024 and counsel appearing on his behalf made oral submissions at the hearing. 24 Mr Nolutshungu's written submissions do not squarely address the grounds in the amended application. In summary, they refer to events in Mr Nolutshungu's life which it is contended likely led to his criminal conduct and take issue with the Tribunal's application of the facts to the considerations prescribed by Direction 90 and the Tribunal's assessment of the evidence in light of those considerations. In large part the written submissions seek merits review, which is not this Court's role. 25 Below I address the grounds of review raised in the amended application, the written submissions to the extent they address the grounds of review in the amended application or otherwise raise an issue beyond seeking merits review and the oral submissions made on Mr Nolutshungu's behalf at the hearing.

Ground one 26 By ground one, Mr Nolutshungu contends that the Tribunal was unreasonable in confirming the Minister's decision "to cancel" the visa. The particulars to ground one provide (as written): The [delegate's decision] was void of plausible justification and excessive weight was placed on the fact that the applicant did not pass the character test and inadequate weight was placed on the fact that the applicant rehabilitated while in prison. Inadequate weight was also placed on the applicant's ties to Australia, extend of impediments if removed to South Africa, the best interest of his minor child and expectations of the Australian community. 27 I note that the Tribunal did not confirm the Minister's cancellation decision but, rather, affirmed the delegate's decision not to revoke the cancellation decision. Putting that to one side, the particulars to ground one take issue with the delegate's decision. However, this Court has no jurisdiction to review the delegate's decision: see s 476A of the Act. I will therefore proceed on the basis that the particulars relate to the Tribunal's decision. 28 Read in that way Mr Nolutshungu's contention is that the Tribunal gave excessive weight to some considerations and inadequate weight to others. Insofar as Mr Nolutshungu contends that excessive weight was applied to the failure to meet the character test, he says that while he conceded before the Tribunal that he does not pass the character test, the degree to which he failed the test lent itself to be "measured against other reasons that should attract the exercise of the Courts discretion to not cancel his Visa" (as written). He submits that he was on the cusp of being considered to be "Doli incapax over the following two years, until he reached 14 years of age" and was in the same position as any other Australian child growing up where the criminal justice system affords them more latitude while taking into account their youth and immaturity. He submits that this Court could afford him more latitude when considering his criminality. 29 In Vo v Minister for Home Affairs (2019) 269 FCR 566 at [43] a Full Court of this Court (Derrington, Banks-Smith and Colvin JJ) drew together the principles concerning the question of whether there has been jurisdictional error by the Tribunal because of a breach of the implied standard of reasonableness in decision-making where the complaint is concerned with factual findings. Relevantly the Full Court noted that "unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal", referring to Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [4]-[5]. That the Tribunal in this proceeding afforded certain weight to particular considerations was entirely a matter for it. 30 Nor can the issues raised about the weight said to be afforded to the failure to pass the character test assist Mr Nolutshungu. The Tribunal did not afford any weight to the character test and was not required to do so. It recorded Mr Nolutshungu's legal representative's concession that he did not pass the character test as defined in s 501(7) of the Act and found that, in any event, that was so having regard to Mr Nolutshungu's criminal history. The Tribunal thus correctly concluded that Mr Nolutshungu could not rely on s 501CA(4)(b)(i) of the Act to have the cancellation decision revoked. 31 Ground one is not made out.

Ground two 32 By ground two Mr Nolutshungu contends that the Tribunal did not consider "the relevant matters of the case". The particulars to this ground provide: The delegate of the Minister did not consider the relevant matters of the case and therefore failed to give proper, genuine, and realistic consideration to the merits of the case. All the relevant matters have not been taken into account and the decision appears to be harsh and unwarranted. Therefore, the merits of the case have not been given appropriate consideration. 33 The particulars to this ground again refer to the delegate's decision. As I have already explained this Court does not have jurisdiction to review the delegate's decision. However, taking the particulars to refer to the Tribunal's decision, as framed this ground does not identify what it is that Mr Nolutshungu contends the Tribunal failed to take into account and of which it is alleged the Tribunal failed to give proper, genuine and realistic consideration. Neither Mr Nolutshungu's written submissions, nor the oral submissions made on his behalf assist to provide any further particularisation of those matters which he contended the Tribunal failed to take into account. As the Minister submits the ground is a bare assertion of error which cannot succeed for that reason. As a Full Court of this Court (Perram, Derrington and Stewart JJ) said in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]: …The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21]. 34 It follows that ground two is not made out.

Ground three 35 By ground three Mr Nolutshungu contends that the Tribunal made a jurisdictional error "to confirm the [delegate's decision]". The particulars provide: The [Tribunal] fell into error of law by identifying the wrong issue and by ignoring the relevant material. The [Tribunal] relied on irrelevant material and made an erroneous decision. With this the [T]ribunal exceeded its authority. 36 Once again the particulars fail to identify how it is that the Tribunal is alleged to have made an error of law, the relevant material it is alleged to have ignored and the irrelevant material on which it is alleged it relied. The ground does no more than make a bare assertion of error and for that reason fails: see NWWJ at [37]. 37 Ground three is not made out.

Ground four 38 By ground four Mr Nolutshungu contends that the Tribunal did not afford him procedural fairness "in confirming the delegate's decision". The particulars to ground four provide: With the [T]ribunal's decision the decision-maker was not impartial and disinterested in the matter to be decided. The decision-maker did not listen fairly to the relevant evidence that conflicted with the finding and any rational argument against the finding represented at the [T]ribunal. 39 Mr Nolutshungu has not tendered any evidence in support of his contention that the Tribunal did not afford him procedural fairness and that it was biased. For example, a transcript of the hearing has not been provided and Mr Nolutshungu has not pointed to any other aspect of the hearing before the Tribunal or any part of the Tribunal's reasons which would suggest that there had been a failure to afford him procedural fairness or which support his contention. 40 Insofar as Mr Nolutshungu alleges bias on the part of the Tribunal, such an allegation must "be distinctly made and clearly proved": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J); [127] (Kirby J). That is not the case here. As the Minister submits there is no evidence to sustain an allegation of bias and nothing in the Tribunal's reasons to suggest that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper evaluation of the materials before him relevant to the decision to be made: see Jia Legeng at [35], [72]. 41 Ground four is not made out.

Other matters - Mr Nolutshungu's written and oral submissions 42 As set out above, Mr Nolutshungu's written submissions, for the most part, appear directed at merits review. Notwithstanding that, the Minister has identified and responded to aspects of those submissions which I consider and address below together with the oral submissions made on Mr Nolutshungu's behalf at the hearing. 43 First, at [1] of Mr Nolutshungu's submissions he contends that the Tribunal failed to consider his submission to it that his custodial sentence "created such a change in his understanding and provided the first real opportunity for him to address the underlying factors that brought him to his unhappy state" and "failed to apply a reasonable appraisal of [Mr Nolutshungu's] current position and circumstances save to say he has burned all his bridges, has run out of chances, his debt was too high for him to pay, and his infant child is better off without him". 44 A review of the material before the Tribunal reveals that no submission as contended for in relation to the effect of his custodial sentence was advanced on Mr Nolutshungu's behalf. Thus, it cannot be said that the Tribunal failed to consider the submission. Further, on a fair reading of the Tribunal's reasons, the findings attributed to the Tribunal by Mr Nolutshungu in relation to his conduct and circumstances were not made by it. A review of the Tribunal's reasons demonstrate that it considered the submissions made, and the evidence relied on, by Mr Nolutshungu. This included submissions and evidence concerning Mr Nolutshungu's rehabilitation, including that he had engaged in a number of rehabilitative and educational courses while in custody, and the arrival of his daughter as a pivotal moment in his life. The Tribunal made findings of fact that were reasonably open to it on the evidence. 45 At [10]-[11] of Mr Nolutshungu's submissions, he contends that the Tribunal took "the worst possible interpretation of the agreed facts" in relation to his offending. However, as the Minister submits, it is apparent from a review of the Tribunal's reasons that the facts concerning Mr Nolutshungu's offending were put to him during the course of cross-examination and, insofar as Mr Nolutshungu takes issue with the Tribunal's classification of his assault charge as very serious, in doing so it was applying Direction 90 which provides (at cl 8.1.1(1)(a)) that decision-makers must have regard to violent crimes and that those crimes are viewed "very seriously by the Australian Government and the Australian community". 46 At [11] of Mr Nolutshungu's submissions, he also takes issue with the credibility findings made by the Tribunal in relation to his role in the fraud of which he was convicted. However, a finding of credibility is a function of the Tribunal to determine as a question of fact: see CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496 at [37]. There is nothing to suggest that the Tribunal's findings were made without a logical or probative basis nor do they meet the high threshold for illogicality or irrationality. 47 At [14] of his submissions Mr Nolutshungu refers to various impediments to his removal to South Africa and contends that the Tribunal failed to inform itself about the known circumstances in that country. In oral submissions Mr Nolutshungu further submitted that the Tribunal should have obtained a country report from the Department of Foreign Affairs and Trade (DFAT) in order to understand the situation in South Africa and the impediments to his removal to South Africa. He submits that this failure also affected the Tribunal's consideration of the interests of his minor child, child C, as that information was also relevant to whether child C and the child's mother would move to South Africa. Mr Nolutshungu submits that the Tribunal erred by failing to obtain that material. 48 These submissions must be considered having regard to how the representations, submissions and evidence were addressed by him before the Tribunal rather than as now recast: see Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [33]. As the Minister submits, Mr Nolutshungu contended that he would be seen as a foreigner upon his return to South Africa but did not otherwise advance submissions before the Tribunal consistent with those set out in his written submissions at [14] nor did he provide any evidence to substantiate the impediments as framed in his submissions. 49 There is no duty on the Tribunal to obtain country information from DFAT when considering an application to revoke the cancellation of a visa under s 501CA(3) of the Act, as was the case here. It is not required by Direction 90 and Mr Nolutshungu did not point to any other direction implemented pursuant to s 499 of the Act which required that the Tribunal take a country information assessment prepared by DFAT into account where that is available when considering the exercise of power under s 501CA of the Act. It was open to Mr Nolutshungu to present evidence and make submissions relevant to his application as he saw fit including by reference to information about the political, socio-economic and other factors relevant to the situation in South Africa. The Tribunal was not required to source that information itself. 50 Finally the Tribunal was required by Direction 90 to consider, among other things, as a primary consideration, the best interests of minor children in Australia and, as one of the other considerations, the extent of impediments if removed. 51 As to the former, the Tribunal was required to make a determination about whether non-revocation under s 501CA of the Act is, or is not, in the best interests of a child under the age of 18 affected by the decision (cl 8.3(1)-(3)). Clause 8.4 of Direction 90 sets out the factors which must be considered where relevant when considering the best interests of the child. They are focused on the non-citizen's relationship with and role vis-à-vis the child in question. The assessment is undertaken from the perspective of the impact on the child. It is not an assessment of whether there are any impediments preventing the child (and any parent) from moving to the country to which the non-citizen may be removed, although evidence as to whether the child will or will not move may be a relevant factor in the overall assessment of this consideration. 52 As to the latter, the impediments if removed are to be assessed from the perspective of the non-citizen and not his or her minor children and/or his or her partner or spouse: see cl 9.2 of Direction 90. 53 At [15] of the written submissions, Mr Nolutshungu submits that the Tribunal did not consider the fact that he had 20 encounters with police in his early teenage years, before he turned 17, and that it is well known that when young adults encounter the criminal justice system there is significant consideration given to their youth and immaturity. However, no such submission was put to the Tribunal. Putting that to one side, as the Minister submits, the Tribunal considered Mr Nolutshungu's less serious offending at [41] of its reasons, observing that none of that offending "should be reasonably found to rise to any level of significant seriousness". Mr Nolutshungu's contention that the Tribunal gave too much weight to incidents that occurred prior to his reaching the age of 18 is not borne out in the Tribunal's reasons and goes no higher than to seek impermissible merits review. 54 At [18] of his written submissions, Mr Nolutshungu refers to the bullying he experienced while attending Ryde High School that was so severe that he was forced to move to another school. Mr Nolutshungu submits that "the government through its agency of Ryde High School failed in its duty of care" to him when he was a young, vulnerable adult causing him to suffer trauma and that the Tribunal failed to investigate or take into account the abuse visited on him and its consequences on him. In oral submissions counsel for Mr Nolutshungu made a similar submission and said that the Tribunal erred in not requesting from the Minister information about the bullying Mr Nolutshungu endured while at high school. 55 There was evidence before the Tribunal about Mr Nolutshungu being bullied while at high school: (1) Mr Nolutshungu's statutory declaration made on 12 December 2022 included: …I was the only black kid in my year and I was overweight, so I got bullied alot for that. I tried telling the teachers but the other kids would collaborate their stories and nothing would get done. This kept happening so I started standing up for myself and fighting back, as A result I got into a lot of fights in school. The bullying got so bad that I started skipping school and staying home when my mum was at work. Eventually my mum moved me to Epping boys high school. But this time I had a mind set that no one was ever going to make me a victim again. … (2) Mr Nolutshungu's mother, Tantaswa Nolutshungu, said to like effect in her statutory declaration made on 13 December 2022: Unfortunately [Mr Nolutshungu] was bullied very badly at Ryde Secondary School. I even went to talk to the teachers, who unfortunately just trivialised the issue. He was the only Black boy in his class and students make fun of him until he hated school. Back in South Africa he used to love school and get top marks in class. 56 Despite the inclusion of that evidence, Mr Nolutshungu did not make any submissions about it nor the relevance of these events to issues before the Tribunal, namely the considerations included in Direction 90 which guided the Tribunal's decision-making. The Tribunal was not required to refer to every piece of evidence before it, particularly in circumstances where Mr Nolutshungu did not contend that the evidence was relevant to a particular consideration. Nor was the Tribunal required, because of this evidence, to undertake its own inquiry into the events or its impact on Mr Nolutshungu's later offending. It was not unreasonable for it not to do so. 57 In oral submissions Mr Nolutshungu also contended that the Tribunal should have obtained a clinical assessment of him for the purpose of considering whether he would reoffend. This submission was made having regard to [127] and [130] of the Tribunal's reasons where it said: 127 While there is a Pre-Sentencing Assessment Report dating from July 2017 allocating a low-medium recidivist score to the Applicant, it is notable that as the criminality of the Applicant evolved into more serious offending, his recidivist risk profile similarly evolved towards a risk of recidivist score of medium-low. This is a level of risk going forwards not backwards. I agree with the contention eruditely put on behalf of the Respondent: it is '…a simple logical exercise that as one's criminal history develops, an assessment as to the likelihood of further offending develops as well.' In the absence of any independent clinical finding displacing this presumption, I am of the view that the Applicant squarely falls within the paradigm of the contention put on behalf of the Respondent. And: 130 The Applicant speaks of having overcome a propensity to abuse both alcohol and illicit substances during his time either in criminal custody or immigration detention. This has never been tested in the general community where both of those substances will be infinitely more freely available to him. He says that he has learnt things as a result of the various courses he has done. I have found that this is mainly evidence of his propensity to do courses and, without independent clinical verification, it is not evidence that he has learnt anything to any extent that now definitively speaks to any lower level of recidivist risk. The real test of what he says he may have learnt from these courses also remains to be tested in the Australian community. (Footnotes omitted) 58 In both of those paragraphs in considering first the Pre-Sentencing Assessment Report and secondly the courses undertaken by Mr Nolutshungu while in custody, the Tribunal referred to an absence of a clinical assessment. This affected the way in which the Tribunal viewed the Pre-Sentencing Report and the effect of the courses undertaken by Mr Nolutshungu while in custody and immigration detention. However, the Tribunal was not required to obtain its own clinical assessment or psychological report for Mr Nolutshungu. While I accept that Mr Nolutshungu was detained leading up to and at the time of his hearing before the Tribunal and may have had limited financial resources, he was legally represented before the Tribunal and the evidence he wished to rely on and the submissions to be made were a matter for him.

Conclusion 59 For those reasons the amended application should be dismissed. As he has been unsuccessful Mr Nolutshungu should pay the Minister's costs as agreed or taxed. 60 I will make orders accordingly. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.