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.