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Where Tribunal gave no indication to the Appellant that it was minded to form a more adverse view of his conduct, in particular from that taken by the delegate, did failure to afford opportunity to respond amount to material breach of procedural fairness?

NDBR v Minister for Home Affairs [2021] FCAFC 170 (20 September 2021)

Intro:-

This is an appeal from a judgment of this Court refusing an application for review of a decision of the second respondent (Tribunal): see NDBR v Minister for Home Affairs [2019] FCA 1631. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

Facts:-

The appellant arrived in Australia by boat on 19 June 2012. On 12 November 2012 he applied for a Protection (Class XA) visa.

On 9 September 2013 the appellant was charged with one charge of unlawfully and indecently dealing with a child under the age of 16 contrary to s 210(1)(a) of the Criminal Code Act 1899 (Qld).

On 27 September 2013 a delegate of the Minister refused to grant the appellant a protection visa.

On 19 September 2014 the then Refugee Review Tribunal remitted the matter for reconsideration with the direction that the appellant satisfied s 36(2)(a) of the Act.

On 6 May 2015 the appellant was convicted in the District Court of Queensland for indecently dealing with a child under the age of 16 years. On 25 May 2015 Judge Bradley sentenced the appellant for that offence. In doing so her Honour described the offending conduct and then remarked that:

It was therefore a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.

The appellant appealed against his conviction. On 1 October 2015 the Queensland Court of Appeal set aside the appellant’s conviction and ordered a re-trial.

On 25 May 2016 the appellant was again convicted of one count of indecently dealing with a child under the age of 16 in the District Court. He was re-sentenced by Judge Horneman-Wren SC who, in doing so, remarked that:

"On the last occasion that her Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no (sic) real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate. And I am not invited by the prosecution to view it any other way...."

On 7 December 2018 a delegate of the Minister refused the appellant’s application for a protection visa under s 501(1) of the Act. A submission prepared within the Department for the delegate’s consideration included under the heading “Offending History/Character Concerns” that:

"The Judge noted that despite it being a short incident, [the appellant’s] behaviour was ‘persistent’ and ‘opportunistic’ as it occurred within a secluded space within the library. The Judge also noted however that there was no evidence of any real predatory behaviour by [the appellant] (Attachment C)."

Tribunal's decision

The Tribunal identified the issues for consideration to be whether the appellant passed the character test as defined in s 501(6) of the Act and, if he did not, whether the grant of the protection visa should be refused. However, it noted that, given the appellant’s concession that he did not pass the character test by reasons of s 501(6)(e) of the Act, the sole issue for its determination was whether it should exercise the discretion to refuse to grant the visa under s 501(1) of the Act.

The Tribunal addressed the primary considerations as required by Direction 79, first considering the protection of the Australian community from criminal or other serious conduct by reference to cl 11.1 of Direction 79. Two aspects of the Tribunal’s treatment of that primary consideration are in issue on the appeal: first, the Tribunal’s characterisation of the appellant’s behaviour as “predatory” (see appeal ground 1); and secondly, the Tribunal’s consideration of the appellant’s rehabilitation (see appeal ground 2).

At [55] of its decision record the Tribunal said:

Taking into account all of the above, the offence for which the [appellant] was convicted must be viewed as serious. All crimes of a sexual nature against children are serious. The Tribunal notes Judge Bradley’s comment that the offence was “persistent” but did not involve predatory behaviour (R2, G12/99). The Tribunal also notes the more fulsome statement of the facts in the Court of Appeal’s judgment (see [49] above) which indicates that the Applicant made two approaches to the victim and attempted to have the victim accompany him back to his car. That behaviour is of concern to the Tribunal and, with respect, the Tribunal cannot agree with Judge Bradley’s characterisation of the Applicant’s behaviour as not predatory. In the Tribunal’s view the Applicant’s behaviour as described in the Court of Appeal’s judgment can be properly described as predatory.

(Emphasis added.)

The Primary Judge's Decision

The appellant contended that, if there was power to go behind the conviction and sentence imposed by the District Court, the Tribunal failed to accord him procedural fairness because it failed to alert him to the fact that it was minded to depart from the assessment of the sentencing judges, which assessment had been adopted by the Minister in his personal decision (overturned on appeal to this Court) and by the delegate in his decision that was under review by the Tribunal.

In relation to that ground the Court was not satisfied that there was any denial of procedural fairness by reason of the Tribunal adopting a different characterisation of the offending than that adopted by the sentencing judges. The primary judge found that the appellant was on notice of the predatory characterisation issue for three reasons: first, because of the terms of Direction 79; secondly, because of the references to the additional details of the appellant’s offending included in the decision of the Court of Appeal which arguably supported a more serious characterisation of the appellant’s offending; and thirdly, because the appellant had attempted to minimise the seriousness of his conduct when giving evidence before the Tribunal: see NDBR at [60]-[67].

Issue:-

a) Did the Court below err by failing to conclude that the Tribunal failed to accord the Appellant procedural fairness, in that it failed to alert him to that fact that it was minded to depart from the assessment of the sentencing judge(s), which assessment was adopted by the Minister in his personal decision (overturned on appeal to the Federal Court), and by the delegate in the subsequent decision which was under review in the Tribunal.

b) Was the failure to accord procedural fairness material?

Analysis:-

There was no dispute between the parties about the applicable principles.

In Alphaone at 590-591 a Full Court of this Court (Northrop, Miles and French JJ) said:

"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."

This statement of principle was approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32].

In Alphaone at 591-592 the Full Court said:

"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ..."

A failure to put an applicant on notice of an adverse issue not obviously open or apparent from the material and which is relevant to the ultimate conclusion may be a breach of the requirements of procedural fairness: see generally SZBEL at [35]-[43]. In particular, in SZBEL the High Court said at [34]-[35], albeit in relation to the obligations of the then Refugee Review Tribunal under s 425 of the Act, that:

"... The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant."

In our view and, contrary to the conclusion reached by the learned primary judge, the appellant was denied procedural fairness by the Tribunal in that it omitted to inform him that it proposed to depart from the characterisation of the offending as not predatory and as found by Judge ‍Bradley and Judge Horneman-Wren SC at the time of sentencing the appellant. Our reasons for reaching this conclusion follow.

First, all of the material before the Tribunal until the time of the hearing characterised the appellant’s offending conduct in a particular way. That is as first characterised by Judge Bradley in her Honour’s sentencing remarks as a “short incident” but “persistent”, with “no evidence that there was any real predatory behaviour” and that it was “opportunistic”. That description or characterisation was adopted by Judge Horneman-Wren SC when his Honour came to re-sentence the appellant, the Minister when he made the first refusal decision and the delegate who made the decision refusing the appellant a protection visa. Further, the written submissions relied on by both the appellant and the Minister adopted the same characterisation. Up to the point of the hearing, the appellant could not be expected to understand that the description of his offending was in issue and open to a different characterisation.

Secondly, at no time during the hearing did the Tribunal put the appellant on notice that the characterisation of his offending as persistent and opportunistic but not predatory was in issue.

Thirdly, it is necessary to have regard to the significance of a finding of predatory behaviour in the context of a case such as this by reference to the relevant authorities.

In R v Scott [2009] VSCA 20; (2009) 22 VR 41, the applicant had been convicted of one count of wilfully committing an indecent act with or in the presence of a child under the age of 16 and was sentenced to 15 months’ imprisonment with a non-parole period of six months, In sentencing the applicant the judge described his conduct as predatory. On appeal the applicant submitted, among other things, that the Judge’s description of the applicant’s behaviour as “predatory” amounted to a specific sentencing error, because it was an offence which occurred on the spur of the moment and had not been preceded by a prolonged period of grooming or planning: see Scott at [92].

To similar effect in relation to predatory conduct at [113]-[115] Robson AJA relevantly said:

"In R v Fuller-Cust, this court acknowledged that the presence of a predatory feature in a sexual assault case would be an aggravating factor. Batt JA, with whom Eames JA and O’Bryan AJA agreed, said:

The applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who was likely, if free, to prey on members of the public at large. The absence of such an element in the offending is not a mitigating factor, as such. Rather, the presence of a predatory feature would be an aggravating factor. But the absence of this factor is relevant to the question of rehabilitation.

In that case, this court appears to have treated predatory as an appropriate description where the offender has planned or is predisposed to sexually assault or is a threat to others to do so. In R v KU; Ex parte Attorney-General (Qld), the Queensland Court of Appeal considered whether a defendant’s rape had been predatory:

No evidence emerged during this assessment of any specific planning by [the defendant] for this offence to occur, suggesting the behaviour was situational and opportunistic rather than predatory in nature.

Again, the element of planning is identified by the court as an indicator of predatory behaviour. Nevertheless, opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations. The Oxford Dictionary definition of predatory includes “of an animal: that preys upon other animals”. In my opinion, the hallmark of a sexual predator would be one who preys on his sexual victims."

The Minister submitted that it could not be assumed that the Tribunal used the word “predatory” in its technical criminal law sense but rather having regard to its ordinary meaning. However, there is nothing in the Tribunal’s reasons that permits such an inference to be drawn. The Tribunal at [55] expressly disagreed with Judge Bradley’s characterisation of the appellant’s conduct which clearly, and which the Minister accepts, reflected the approach set out in the authorities. That the Tribunal viewed the conduct as “serious” does not assist in drawing the inference urged by the Minister, particularly having regard to the prescription in Direction 79.

Fourthly and relatedly, the Tribunal acknowledged during the hearing that it was bound by the “sentencing comments of the Judge” (see [78(2)] above) from which the appellant was entitled to infer that the Tribunal would consider itself bound by the remarks of Judge Bradley, which were adopted by Judge Horneman-Wren SC, and who had characterised his conduct as “opportunistic” and not predatory. As the primary judge observed the Tribunal acknowledged in its reasons (at [67]) and in the course of the hearing that it could not go behind the conviction. The primary judge found that the Tribunal did not go behind any of the essential facts on which the conviction was based. That may be so. But where we differ is that while the Tribunal accepted the conviction, it then went on to re-characterise the conduct and, in doing so, departed from the characterisation adopted by the sentencing judges in a significant way. While the Tribunal was entitled to do so it was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant.

Fifthly, in forming the view that the appellant’s conduct was predatory the Tribunal relied on the recitation of the facts in the judgment of Gotterson JA. Those facts were provided by the parties for the purpose of the appeal which was an appeal on conviction only raising a narrow issue concerning the failure to give a direction to the jury upon the replaying of the complainant’s evidence to the jury. The Court of Appeal recited the facts for the purpose of the appeal without making any findings or comment on them. That the Court of Appeal’s description of the conduct was more fulsome than that included in the sentencing remarks of Judge Bradley does not, without more, put in issue the characterisation of the conduct.

The next question to resolve is whether the failure by the Tribunal to afford the appellant procedural fairness by failing to alert him to the fact that it was minded to depart from the characterisation of his conduct by the sentencing judges (which was adopted by the Minister and the delegate) was material to the outcome.

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 a majority of the High Court (Bell, Gageler and Keane JJ) held at [3] and [45] that a breach of the obligation of procedural fairness can give rise to jurisdictional error if, and only if, the breach is material in the sense that compliance could realistically have resulted in a different decision. The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof and “[l]ike any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application”: see SZMTA at [45].

In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) confirmed that the approach in SZMTA was sound in principle and should not be revisited, reiterating that materiality involves a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred which is a question of fact in respect of which the applicant bears the onus of proof: see MZAPC at [2]-[3].

We accept the appellant’s submission that the breach of procedural fairness in this case was material. Had the Tribunal alerted the appellant to the fact that it was minded to form a different view about the characterisation of his conduct, he could have made submissions to the Tribunal about the issue including as to the effect of such a finding, the importance of relying on the skill and experience of the sentencing judges in making their remarks and the relevant standard of proof. The issue was material because it went to a central issue on the review, being the nature and seriousness of the appellant’s conduct. While cl 11.1.1 of Direction 79 sets out a principle that sexual crimes are viewed seriously, the characterisation by the Tribunal of the conduct as “predatory” could affect that assessment as it could colour the range or continuum of the perceived seriousness of the offending.

We do not accept that the Tribunal’s characterisation of the appellant’s conduct as predatory did not form a critical step in its reasoning. By including an express disagreement with two judges in its reasons, the Tribunal must be taken to have regarded that characterisation as a matter of significance.

Conclusion:-

The appeal should be allowed, the orders of the primary judge set aside, and the matter remitted to the Tribunal for reconsideration according to law. As the appellant has been successful the Minister should pay his costs as agreed or taxed.

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