Federal Court of Australia

NDBR v Minister for Home Affairs [2021] FCAFC 170

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Court of Australia made on 4 October 2019 be set aside and in lieu thereof the following orders be made:

(a)    a writ of certiorari be issued quashing the decision of the second respondent made on 8 March 2019 in case number 2018/7607;

(b)    a writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 7 December 2018 according to law; and

(c)    the first respondent pay the appellant’s costs.

3.    The appellant’s interlocutory application filed on 7 May 2021 be dismissed.

4.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    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).

2    For the reasons that follow the appeal should be allowed.

Background

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

4    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).

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

6    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.

7    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 was sentenced to release on entering into a recognisance in the sum of $200 on condition that he keep the peace and be of good behaviour for two years.

8    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. In the Court’s reasons Gotterson JA (with whom McMurdo and Lyons JJ agreed) set out the circumstances of the appellant’s alleged offending including at [3]-[8] that:

[3]    The complainant’s evidence was that he was visiting the Ipswich City Library with his family. He, his father and his sister went to the computers to search the library catalogue. He could not find what he was looking for in the catalogue and started looking through books stacked in the aisles.

[4]    He noticed a man of Indian appearance, the appellant, sitting in a lounge area, starting at him and being “really creepy”. The complainant walked down the aisle he was in and out of the appellant’s eyesight. Suddenly, he noticed the appellant in the same aisle. The appellant asked him his name and offered his right hand to him for a handshake. As the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand. It seemed to the complainant that the appellant’s penis was erect underneath his pants.

[5]    The appellant asked the complainant for the time. The complainant checked on his mobile phone and told the appellant the time that he saw displayed. The appellant said that that was the wrong time and that the complainant should accompany him back to his car so that he could show him the right time. The complainant was uneasy because he could see that the appellant had his own iPhone with him. The complainant walked away from the appellant.

[6]    The complainant resumed looking for books in the aisles. He noticed that the appellant was doing likewise. The appellant approached him a second time and again offered his hand. The complainant said, “No”. The appellant mumbled. He asked the complainant his name and what he was doing that night. The complainant replied that he was going to hockey training. The appellant kept asking if he could drive the complainant home or if the complainant could go back to his (the appellant’s) place. The complainant began to ignore the appellant.

[7]    The appellant then asked, “Excuse me” and went to walk past the complainant. But, instead, he put his hands around the complainant’s waist. The appellant put his head on the complainant’s shoulder and tried to kiss his neck. He moved one of his hands down the complainant’s right arm towards his wrist. The complainant moved to step forward and away. The appellant stepped with him. The complainant could feel the appellant rubbing his penis against the complainant’s body.

[8]    The complainant began to crack his knuckles. The appellant took a small step back. The complainant turned around and said to the appellant that he was going and walked away. He found his father and made a complainant to him. His father went searching for the person, the subject of the complaint, but was unable to find him.

9    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….

10    On 6 July 2016 the Department of Immigration and Border Protection (as the Minister’s department was then known) notified the appellant of an intention to consider refusal of his visa application under s 501(1) of the Act because he did not satisfy the decision maker that he passed the character test as defined in s 501(6) of the Act. The Department invited the appellant to comment or provide information on whether he passes the character test and on whether the decision maker should exercise his or her discretion not to refuse his application for a visa.

11    On 19 and 24 July 2016 the appellant provided submissions to the Department.

12    On 8 December 2016 the Minister refused the appellant’s application for a protection visa under s 501(1) of the Act. The submission provided to the Minister for his consideration in making his decision included under the heading “Offending History” that:

The circumstances of [the appellant’s] offending are described in the Transcript of Proceedings of the [District Court] dated 25 May 2015 (Attachment L). ….

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].

Additional details regarding the circumstances of the offending were presented in the Court Transcript of the Supreme Court of Queensland dated 1 October 2015 (Attachment M). …

13    The statement of reasons for the Minister’s refusal of the visa included under the heading “Risk to the Australian Community” at [22] that:

The offence resulting in [the appellant’s] conviction occurred within a year of his arrival in Australia for the purpose of seeking protection from religious persecution in Pakistan. [The appellant’s] wife and child remain in Pakistan and he continues to hold concerns for their safety. I have taken into account the Courts’ findings that [the appellant’s] emotional state and mental health associated with his personal circumstances preceding his offence were relevant considerations in his sentencing, and I have considered that the Courts found no real evidence of any real predatory behaviour by [the appellant] against the victim despite his actions being persistent and opportunistic.

14    On 16 May 2017 orders were made by consent in this Court setting aside the Minister’s decision and remitting the appellant’s application for a protection visa to the Minister to be determined according to law.

15    On 28 November 2017 the Department invited the appellant to comment on further information concerning the possibility of refusing his application for a visa under s 501(1) of the Act. On 22 December 2017 the Asylum Seeker Resource Centre, by that time the appellant’s representative, provided submissions in response to that invitation including under the heading “The nature and seriousness of the conduct”:

ii    Sentencing remarks

Judge Bradley at first instance on 25 May 2015 comments ‘there is no evidence that there was any real predatory behaviour on your part.

…

On appeal His Honour Judge Horneman-Wren (sic) on 25 May 2016 accepted Her Honour Judge Bradleys’ (sic) comments on the previous occasion, however his Honour made the following additional comments: that the [appellant’s] wife has been hospitalised in recent times; and that there was a bomb attack in December 2015 in Pakistan in which members of the [appellant’s] family were killed.

We submit that as considered by their Honours in sentencing remarks the [appellant’s] behaviour was not predatory and that he is of otherwise good character.

(Footnotes omitted.)

16    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).

Additional details regarding the circumstances of the offending were presented in the Court Transcript of the Supreme Court of Queensland dated 1 October 2015 (Attachment D). …

17    In the statement of reasons accompanying the decision the delegate set out the facts relating to the appellant’s offending (at [10]-[11]) and under the heading “Risk to the Australian Community” (at [23]-[24]) said:

23.    I have taken into account the Courts’ findings that [the appellant’s] emotional state and mental health associated with his personal circumstances preceding his offence were relevant considerations in his sentencing, and I have considered that the Courts found no evidence of any real predatory behaviour by [the appellant] against the victim despite his actions being persistent and opportunistic. I took into account that the Courts found him to be otherwise of good character.

24.    I have noted the sentence received in conjunction with the Judges’ remarks that [the appellant’s] actions were considered as opportunistic and that it was consistently accepted and reiterated by the Court that the offence had a significant impact on the victim.

18    On 21 December 2018 the appellant applied to the Tribunal for review of the delegate’s decision. Relevantly:

(1)    the appellant’s statement of issues, facts and contentions dated 5 February 2019, which was before the Tribunal, included under the heading “Protection of the Australian community”:

45.    Paragraph 11.1 of the Direction 65 provides that this primary consideration involves an assessment of the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-‍citizen commit further offences or engage in other serious conduct.

46.    It is accepted that the [appellant] has been convicted of one offence against a minor and that this offence is viewed very seriously. The [appellant] was ultimately convicted and sentenced to a good behaviour undertaking for a period of one year with a recognisance of $200.

47.    We submit that the maximum penalty for the charge the [appellant] was convicted of was 14 years imprisonment. The [appellant] receiving a good behaviour undertaking, is a sentence at the very lowest end of the sentencing spectrum. We further submit that the court took the view that although the offence was serious, the [appellant’s] behaviour was not predatory and he is otherwise of good character.

…

49.    Her Honour concludes that ‘Life has been very difficult for you since you’ve been in Australia.’

50.    On appeal His Honour Judge Horneman-Wren (sic) on 25 May 2016 accepted Her Honour Judge Bradleys’ (sic) comments on the previous occasion, however his Honour made the following additional comments: that the [appellant’s] wife has been hospitalised in recent times; and that there was a bomb attack in December 2015 in Pakistan in which members of the [appellant’s] family were killed.

(2)    the Minister’s statement of facts, issues and contentions included under the heading “Protection of the Australian Community”:

26.    Paragraph 11.1.1 of Direction 79 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the [appellant’s] criminal offending or other serious conduct.

27.    The Minister contends that the [appellant’s] offending is particularly serious because his conviction for incident treatment of a child was a crime of a sexual nature and committed against a minor (paragraphs 11.1.1(1)(a)-(b) of Direction 79). The factual circumstances surrounding this offence are contained in the sentencing remarks of the District Court of Queensland (Judge ‍Bradley) delivered on 25 May 2015. Her Honour summarised the offending as follows (G9/80):

The facts are that [the offence] occurred in the Ipswich City Library one afternoon. In fact, on the 26th of June 2013. The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were the vicinity.

You shook hands with him and spoke to him and you touched your own crotch area at that time. You then left him, but returned a short time later.

At that time, you came up behind him and pressed yourself against him, and you placed your hands around his waist. You leaned your head into his neck. He thought you were trying to kiss him. He was, however, able to break away and leave the area quite quickly. 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.

28.    The complainant’s pre-recorded evidence extracted in the judgment of the Queensland Court of Appeal was that when the [appellant] touched his crotch area, it seemed to the complainant that the [appellant’s] penis was erect under his pants (G10/85). The complainant further gave evidence that he could feel the [appellant] rubbing his penis against his body (G10/86).

19    On 8 March 2019 the Tribunal affirmed the decision to refuse the appellant’s application for a protection visa under s 501(1) of the Act.

Legislative framework

20    Before turning to the Tribunal’s decision it is convenient to set out the relevant legislative framework.

21    Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The “character test” is defined in s 501(6) and includes:

(6)    For the purposes of this section, a person does not pass the character test if:

…

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

22    Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers and, when given, a person or body must comply with such a direction. Direction No. 79 “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79) was given by the Minister under s 499 of the Act.

23    Direction 79 includes in Pt B the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application.

24    Clause 11 of Direction 79 sets out the primary considerations, namely protection of the Australian Community from criminal or other serious conduct, the best interests of minor children in Australia and expectations of the Australian community. In relation to the first primary consideration, protection of the Australian community from criminal or other serious conduct, cll 11.1.1 and 11.1.2 provide:

11.1.1 The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

e)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

f)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

g)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

h)    The cumulative effect of repeated offending;

i)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

(2)    In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(3)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

ii.    evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

iii.    the duration of the intended stay in Australia.

(4)    Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

25    Clause 12 of Direction 79 concerns “other considerations” which must be taken into account in deciding whether to cancel a visa and which include international non-refoulement obligations, impact on family members, impact on victims and impact on Australian business interests.

The Tribunal’s decision

26    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.

27    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).

28    The Tribunal commenced its consideration by observing that it only needed to consider one offence, the conviction for indecent treatment of a child under the age of 16, which comes within the terms of cl 11.1.1(1)(a) of Direction 79 and which, the Tribunal observed, is to be “viewed seriously”.

29    The Tribunal referred to the comments made by Judge Bradley in the District Court after the first trial, those made by Judge Horneman-Wren SC after the re-trial in sentencing the appellant and the statement of the facts of the offence set out in the judgment of the Court of Appeal. At [50] of its decision record the Tribunal said:

The Tribunal notes the comments by the original trial judge and the judge at retrial that the offence involved a short incident but was persistent and that there was no evidence of predatory behaviour by the [appellant]. While any sexual offence involving a child is serious, not only by community standards, but also by the standard prescribed by paragraph 11.1.1.(1)(a) of Direction 79, the [appellant’s] offending was at the lower end of the scale of seriousness for a sexual offence involving a child.

30    The Tribunal noted, having regard to para 11.1.1(1)(f) of Direction 79, that one of the factors which it must consider in determining the seriousness of the offending was the sentence imposed by the District Court which it said should be treated as being nine months’ imprisonment. This was because of the approach taken by Judge Bradley in sentencing the appellant, which Judge Horneman-Wren SC also adopted, and which was reflected in the following remarks of Judge Bradley:

The law in Queensland is that adults who sexually abuse children must go to jail, unless there are exceptional circumstances. I do have regard to the provisions of the law in that regard and particularly the factors that I must pay attention to. In my view, there are exceptional circumstances in your case because of the 13 and a-half months that you have been back in immigration detention. If you had not served that time in detention, then the sentence that I would impose on you would be a sentence of imprisonment of nine months. The appropriate sentence, though, and the one that I will impose on you is that you be released upon you entering into an undertaking that you be of good behaviour for two years.

(Emphasis added.)

31    Having regard to Judge Bradley’s statement that “[t]he law in Queensland is that adults who sexually abuse children must go to jail, unless there are exceptional circumstances”, the Tribunal was of the view that a sentence of imprisonment for a sexual offence did not of itself necessarily indicate the sentencing judge’s view about the seriousness of the offence but that the length of the sentence thought to be appropriate by the sentencing judge would be a matter to which regard should be had under cl 11.1.1(1)(f) of Direction 79.

32    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.)

33    The Tribunal then turned to consider cl 11.1.1(1)(g) of Direction 79 which concerns frequency of the offending and whether there is a trend of increasing frequency and noted that this was not the case for the appellant.

34    At [58] of its decision record the Tribunal concluded that the seriousness of the offence committed by the appellant, the fact that it was a crime of a sexual nature committed against a child and the fact that it was committed a relatively short time after the appellant entered the community, overall weighed heavily in favour of refusing the visa.

35    Next the Tribunal considered the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. It concluded that it did not consider that the conduct for which the appellant was convicted fell within the category of conduct that is so serious that any likelihood that it may be repeated may be unacceptable as set out in cl 11.1.2(1) of Direction 79.

36    In relation to the nature of the harm to individuals or the Australian community should the non-‍citizen engage in further criminal or other serious conduct, the Tribunal found that the effect of the appellant’s type of sexual offending could be significant if repeated. The Tribunal concluded that, insofar as it was to have regard to the nature of the harm that might be caused if the criminal conduct was repeated, the conduct must be viewed very seriously.

37    In relation to the likelihood of the appellant engaging in further criminal or other serious conduct (which is the subject of ground 2 of the appellant’s notice of appeal), the Tribunal referred to cl 11.1.2(3)(b) of Direction 79 which identifies matters to which decision makers are to have regard in assessing this risk.

38    In relation to rehabilitation, the Tribunal made the following observations: the evidence that emerged at the hearing was that the appellant had not undertaken a sex offenders’ treatment program and, although it was not clear how readily such programs were available in detention, had the appellant sought access to a relevant program it is likely that it would have been provided; one of the potential impediments to the appellant engaging in a successful rehabilitation program is that he denied that he committed the offence; an issue that arose with the appellant undertaking any rehabilitation program was that it would identify him to his fellow detainees as a sex offender which, in turn, would make him a target for other detainees; and even some members of the appellant’s own family were not aware that his visa was cancelled and his application for a protection visa refused because of his conviction for indecent treatment of a child under the age of 16. The Tribunal concluded that, despite those matters, the end result was that the appellant had not undertaken any relevant rehabilitation program.

39    The Tribunal referred to the appellant’s view that the reason why he was convicted was because he could not afford a competent lawyer and had a legal aid lawyer. The Tribunal noted that the appellant was found guilty by a jury following a trial and that, insofar as the appellant asserted that he did not commit the offence of which he was convicted, it could not go behind the conviction and it accepted that the appellant was convicted and that he committed the offence.

40    The Tribunal also referred to various incidents which had been reported during the appellant’s time in detention. The appellant claimed that the description of his behaviour in those reports was wrong and that he was the victim of fabrication by staff at the detention centre. While the Tribunal did not accept that evidence, it acknowledged that it could only place limited weight on the incident reports because their authors were not called to give evidence.

41    Lastly, the Tribunal referred to a statutory declaration made by a witness who described himself as a director of an Islamic Shia council, in which he said that he had known the appellant for some six or seven years, set out details of the appellant’s volunteer work and said that, if he were permitted to stay in Australia, the council would be able to find him employment and that he would be connected with other people in the Shia community and given support.

42    After referring to the positive and negative factors impacting on its assessment, the Tribunal concluded that the risk of the appellant reoffending was unacceptable because of the nature of the crime he had committed and the potentially devastating effect such a crime could have on a victim if he were to reoffend.

43    In relation to the second and third primary considerations, the best interests of minor children in Australia and the expectations of the Australian community, the Tribunal noted that the appellant made no submissions in relation to, and there was no evidence of, any minor children in Australia and concluded that the Australian community’s expectation is that the appellant should not be granted a visa.

44    The Tribunal then turned to the “other considerations” as relevant to the appellant and of which only the Tribunal’s consideration of international non-refoulement obligations as set out in para 12.1 of Direction 79 is relevant to the appeal (subject to the appellant being granted leave to rely on proposed appeal ground 3).

45    In relation to that consideration the Tribunal recorded at [108] of its decision record that the Minister did not dispute that the appellant is owed non-refoulement obligations and that, although the Minister did not specifically concede the point, he did not contest the appellant’s assertion that if he was returned to Pakistan there was a real chance that he would suffer harm as found by the Refugee Review Tribunal. The Tribunal noted that it was necessary for it to assess the type of harm that the appellant might face if he was returned to Pakistan. The Tribunal, having expressed its agreement with the approach taken by other members of the Tribunal, accepted the appellant’s contention that when looking at international non-‍refoulement obligations it was to assume that refusal to grant the visa would place the appellant at immediate risk of refoulement to Pakistan notwithstanding any non-refoulement obligations that Australia may have.

46    The Tribunal found that this consideration weighed in favour of the grant of the visa to the appellant although it needed to be weighed in accordance with the direction contained in para 12.1(6) of Direction 79 that “[a]ny non-refoulement obligations should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa”. That being so, the Tribunal concluded, on balance, that it weighed in favour of the appellant.

47    In undertaking its ultimate weighing exercise, the Tribunal concluded that the non-refoulement obligations owed to the appellant were outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. Accordingly, the Tribunal exercised its discretion to refuse to grant the visa under s 501(1) of the Act and affirmed the decision of the delegate.

The primary judge’s decision

48    The appellant raised three grounds of review before the primary judge. Only the second and third of those grounds are relevant to his appeal.

49    By ground 2 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.

50    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].

51    By ground 3 the appellant contended that the Tribunal had failed to comply with Direction 79 or, alternatively, had failed to consider relevant information, evidence and/or a submission of substance in that, in considering the risk to the Australian community, it had failed to have regard to the fact that the appellant had lived in the community for two months after the offence was committed and before he was charged and subsequently for nine months while on bail, during which period he did not reoffend. In relation to that ground the Court found that cl 11.1.2(3)(b) of Direction 79 is concerned with time spent in the community only insofar as it sheds light on whether or not an applicant has achieved rehabilitation and that, relevantly, the appellant had not undertaken any rehabilitation programs or otherwise taken any specific steps directed at rehabilitation. For those reasons the primary judge concluded that the appellant’s time in the community did not provide evidence of rehabilitation and did not need to be taken into account by the Tribunal: see NDBR at [79].

The appeal

52    The appellant seeks leave to rely on an amended notice of appeal in which he raises three grounds of appeal as follows:

1.    The Court below erred 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.

Particulars:

a.    When describing the relevant offence, two different sentencing judges found that there was no evidence that there was any real predatory behaviour on the Appellant's part.

b.    The Minster's personal decision, referred to the fact that "the Courts" had found that the Appellant's behaviour had been described as non-predatory, and appeared to accept this position.

c.    The subsequent decision of the delegate referred to and adopted this same finding by "the Courts".

d.    The Appellant relied on this description of his behaviour, as a positive factor, in submissions to both the delegate and the Tribunal, in writing, and at the hearing.

e.    The representative for the Minister who appeared before the Tribunal did not raise the matter in any submissions, nor did he press for any different categorisation.

f.    The Tribunal gave no indication to the Appellant that it was minded to form an entirely different and more adverse view of his conduct, in particular from that taken by the delegate.

g.    The Appellant was not given an opportunity to respond to what turned out to be a relevant and/or live issue for the Tribunal.

h.    This was a material denial of procedural fairness.

2.    The Court below erred by failing to conclude that, in contravention of section 499(2A) of the Act, the Tribunal failed to comply with Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). Alternatively, that the Tribunal had failed to consider relevant information, evidence and/or a submission of substance going to the question of whether there was evidence of the appellant's rehabilitation.

Particulars:

a.    The Appellant lived in the community for 2 months after the alleged offence and before being charged by the police, and then for 9 months whilst on bail, up to the point when his bridging visa was cancelled and he was placed in Immigration detention.

b.    The Appellant had no previous criminal history, and had not re-offended during this subsequent 11 months.

c.    His time in the community, after his one and only offence, was relevant to the question of his rehabilitation and his risk of re-offending.

d.    The Appellant made submissions to the Tribunal, both written and during the hearing, relying on this information or evidence.

e.    The Tribunal was bound by paragraph 11.1.2(3)(b)ii of Direction 79 to give weight to time that the Appellant had spent in the community “since his most recent offence”. It failed to do so.

f.    Alternatively, the Tribunal failed to deal with a clearly articulated claim.

Proposed ground

3.    The learned Primary Judge erred in failing to conclude that the decision of the Tribunal was affected by jurisdictional error by reason that the Tribunal in exercising its discretion under section 501(1) of the Act:

a.    failed to consider or find that in the event of an adverse decision, the Appellant would face “indefinite immigration detention:’ and/or

b.    misunderstood and/or failed to comply with clause 12.1 of Direction 65.

(Underlining omitted.)

53    The appellant requires leave to rely on the amended notice of appeal only insofar as he seeks to rely on proposed ground 3, which is a new ground that was not raised before the primary judge.

54    Leave will be granted to raise a new ground on appeal where the Court considers that it is expedient in the interests of justice to entertain the issue on appeal. The Court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or a point of law or where the facts are not in controversy. Among other things the Court considers the explanation for not raising the ground below, whether there is any prejudice to the respondent in permitting the ground to be raised for the first time on appeal and the merits of the proposed new ground.

55    The parties agreed that the question of whether leave should be granted to raise ground 3 for the first time on appeal would turn on a determination of its merits. However, given the conclusion we have reached in relation to ground 1, it is not necessary for us to consider the question of whether such leave should be granted and thus to consider its merit.

Ground 1

56    By this ground the appellant contends that the primary judge erred by failing to conclude that the Tribunal failed to accord him procedural fairness, in that it failed to warn him that it was minded to depart from the assessment of the sentencing judges, which assessment was adopted by the Minister in his personal decision (overturned on appeal to this Court) and by the delegate in the subsequent decision which was under review in the Tribunal.

57    This ground focuses on the Tribunal’s decision at [55] of its decision record (see [32] above) where it expressed the view that “the [appellant’s] behaviour as described in the Court of Appeal’s judgment can be properly described as predatory”.

The parties’ submissions

58    The appellant submitted that the failure of the Tribunal to warn him that it was considering departing from the position adopted by the delegate and that of both sentencing judges constituted a denial of procedural fairness which was material to the outcome and that the Court below erred in failing to find that this was the case.

59    The appellant observed that the Tribunal did not agree with the findings of the first sentencing ‍judge, Judge Bradley, and by inference the second sentencing judge, Judge Horneman-Wren SC, that his conduct was not predatory. Rather, the Tribunal referred to and relied upon the description of events as referred to in the Court of Appeal’s judgment and found that his conduct could be “properly described as predatory”. The appellant submitted that, against that conclusion, the material before the Tribunal pointed one way, in favour of the findings of the two sentencing judges.

60    The appellant contended that reliance on the description of the offending in the Court of Appeal’s decision was misplaced, that the Court of Appeal dealt with a discrete, unrelated appeal point and that it did not need to consider Judge Bradley’s description of the offending. Having determined that the conviction should be set aside, the nature and seriousness of the offending, and hence the appropriate sentence was irrelevant to the Court of Appeal. The appellant said that, in the absence of any comment from the Court of Appeal, the persons who were in the best position to assess his conduct were the judges who saw and heard the evidence in each trial and, in the normal course of events, their opinions should have “carried the day”, in preference to a written summary.

61    The appellant submitted that regardless, there was no warning or suggestion by the Tribunal that it was intending to question or reclassify the action of the appellant as predatory, prior to, or in the course of the hearing. The first time this came to light was in the Tribunal’s decision.

62    The appellant made submissions about the relevance of a finding in a sexual offence that conduct was predatory which he said goes to the heart of this ground. He submitted that the absence of predatory behaviour is not a mitigating factor but, if found to be present, it is an aggravating feature which will justify a higher sentence than would otherwise be the case. He contended that, importantly, because it is regarded as an aggravating feature, the sentencing judge must be satisfied of it to the criminal standard, beyond reasonable doubt, before it can be applied adversely to an accused. He also contended, that had a sentencing judge been considering that a finding as to an aggravating feature was open on the material, the judge would have been obliged to disclose it to the parties to give them an opportunity to address it.

63    The appellant submitted that the Tribunal’s finding was clearly adverse to him in that it must be taken to have formed a more serious view of the conduct than the two sentencing judges. In effect, the Tribunal stood in the shoes of the sentencing judges but did so without indicating any appreciation of the complexity of the sentencing task.

64    After referring to Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the appellant submitted that, contrary to the finding of the primary judge, he could not reasonably be expected to anticipate this issue. It was not obviously apparent from Direction 79, as there is no reference in cl 11.1.1 or cl 11.1.2 to the characterisation of the offending, and the Court of Appeal simply provided a summary of the complainant’s evidence and did not seek to characterise the appellant’s conduct in any particular way. The appellant submitted that the fact that he may have been thought to have been challenging the facts behind his conviction by the submission of his counsel that there were “two available versions of the events” did not take the matter further. He contended that if, through his counsel, he was putting forward an exculpatory account, which may be doubted given a concession made by his counsel at the hearing, such an attempt could not affect the characterisation of the offending, to convert it from non-predatory to predatory. At its highest, the attempt would go to credit and/or reluctance to accept the verdict, which may have other consequences.

65    The appellant submitted that the Tribunal’s finding was clearly material as it went to a central issue in that it informed the Tribunal’s assessment of the nature and seriousness of the conduct and risk to the Australian community. The appellant contended that the finding was made without giving him the opportunity to address the Tribunal upon it, for example as to the standard of proof required in a criminal court for such a finding and the importance of relying on the skill and experience of criminal trial judges in the assessment of the gravity of offending.

66    The Minister submitted that this ground should be rejected because the seriousness of the appellant’s offending was very much a live issue in the Tribunal and the Tribunal’s conclusion was an obvious conclusion open on the known material.

67    The Minister submitted that, on analysis, there is no material difference on this point between the reasoning of the delegate (and the Minister in the first refusal decision) and that of the Tribunal, notwithstanding the statements by the Tribunal about predatory behaviour. The Minister observed that both the delegate (and the Minister) referred to the tension in the sentencing courts’ findings, observing that the courts had found that the appellant’s conduct was not predatory “despite his actions being persistent and opportunistic”, and that the delegate relied on some of the additional description of the offending in the judgment of the Court of Appeal. The Minister submitted that the difference between this reasoning and the Tribunal’s reasoning is one of emphasis only.

68    The Minister submitted that the Tribunal is entitled to make its own assessment of the character of the offending conduct and that, as held by the primary judge, the appellant himself put in issue in the Tribunal the seriousness and character of that conduct. The Minister said that the Tribunal did not use the word “predatory” in its technical criminal law sense but in its ordinary meaning and, once that is understood, the conclusion drawn by the Tribunal was an obvious conclusion open on the known material. The Minister submitted that procedural fairness did not require the Tribunal to expose its reasoning on every factual conclusion it was minded to draw.

69    The Minister said that the appellant’s argument assumes that the Tribunal used “predatory” in its criminal law sense. The Minister accepted that Judge Bradley used “predatory” in that way, contrasting it with “opportunistic” offending but submitted that when the Tribunal’s reasons are read as a whole it is clear, for the following reasons, that it meant “predatory” in its ordinary meaning of seeking to exploit another: first, the Tribunal referred at [55] of its decision record to the description of the appellant’s offending as “persistent” and the Court of Appeal’s statement that the appellant made two approaches to the victim and attempted to have the victim accompany him back to his car which is conduct that can properly be described as predatory, on the ordinary meaning of that word; and secondly, consistently with that interpretation, the Tribunal accepted at [50] of its decision record that the appellant’s offending “was at the lower end of the scale of seriousness for a sexual offence involving a child”. The Tribunal also found at [55] of its decision record that the appellant’s offending must be viewed as serious, simply because “all crimes of a sexual nature against children are serious”. The Minister submitted that the Tribunal could not have reached these conclusions if it had thought that the appellant’s conduct was “predatory” in the criminal law sense of premeditated and planned. The Minister said that accordingly the Tribunal’s statement that the appellant’s offending could be described as “predatory” did not alter its assessment of the seriousness of that offending and that, on this understanding of the Tribunal’s use of the term “predatory”, the finding made by the Tribunal was one that was obvious on the known material.

70    The Minister submitted, in the alternative, that the appellant was provided with a reasonable opportunity to understand that his offending might be regarded by the Tribunal as more serious than as described by Judge Bradley and Judge Horneman-Wren SC. The Minister noted that at the hearing before the Tribunal, during cross-examination, the appellant provided a second account of the circumstances of his offending and that the Tribunal had stated that it was required to accept the verdict and could not accept the appellant’s second account. He contended that the appellant, through his counsel, had put into issue the seriousness of his offending by submitting that the appellant was not a recidivist offender and that his offending, which involved a single incident, was far less significant than what the phrase “child sex offence” conjures. The Minister said that this amounted to a submission by the appellant that the fact that there were two differing accounts of his offending shed light on and reduced the seriousness of the offending.

71    As to materiality, the Minister submitted that the relevant issue raised by Direction 79 is the protection of the Australian community, having regard to the nature of the offending and the risk to the community. He contended that whether offending can be described as predatory, according to its ordinary meaning, could not materially affect that assessment because the conclusion that the appellant’s offending was “serious” was required by cl 11.1.1(1)(a) and (f) of Direction 79. The Minister also said that the mere inclusion by the Tribunal of its disagreement with Judge Bradley’s characterisation of the appellant’s offending at [55] of its decision record does not mean that it formed a critical step in the Tribunal’s reasoning, referring to Navoto v Minister for Home Affairs [2019] FCAFC 135 at [68].

Consideration

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

73    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) 228 CLR 152 at [32].

74    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. …

75    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.

76    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.

77    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.

78    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. Relevantly:

(1)    in his opening oral submissions counsel appearing for the appellant, in referring to matters “found by the Court” which were “relevant to the overall decision”, referred to “comments that the behaviour was not predatory and there are findings as to what happened”;

(2)    later in the course of the hearing and in the context of discussion concerning the appellant’s contention that there were two accounts of precisely what happened at the time of the offending the following exchange took place between counsel for the appellant and the Tribunal:

Mr Van Hattem:    I do understand that there is some reference in the papers to his hothead comment, maybe not expressly hothead, but there’s a reference in the respondent’s submissions about a lack of contrition and submissions that NDBR has made to the respondent in relation to the incident and, for now, the submissions is that there are two accounts of what precisely happened.

Deputy President:    It happened in the library?

Mr Van Hattem:    Yes, and that there were findings of fact of a court which are accepted but the submission I make is that even when there are findings of fact in a court, there are reasons why a person has a different perspective and it’s not to say necessarily that they are not contrite. It’s to say ---

Deputy President:    No, that’s true but you will appreciate we’re also bound by (a) the verdict and (b) the sentencing comments of the Judge.

Mr Van Hattem:    Yes.

Deputy President:    So, insofar as the facts are set out, and they appear at page 80 of the G documents onwards, the tribunal has to accept those as being correct.

          The reference to page 80 of the G documents is a reference to the sentencing remarks of Judge Bradley; and

(3)    in his closing oral submissions counsel for the appellant submitted that the appellant’s offending was a single offence, not a pattern of offending, and that the description of the offending by the sentencing judge “revealed it wasn’t predatory, it was on the case of a conviction which was found to be the position, a thing that happened in a moment, not a predatory offence”.

To the extent that they relied on Judge Bradley’s characterisation of the appellant’s offending as not predatory, neither the Tribunal (nor the Minister) raised any issue about those submissions.

79    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.

80    In Elsayed v R [2019] VSCA 113, the applicant pleaded guilty to one charge of robbery, one charge of recklessly causing injury and a summary charge of committing an indictable offence while on bail, following which he was sentenced. The applicant sought leave to appeal the sentence on three grounds including, as ground 1, that the sentencing judge erred by finding that the person who had accompanied him to the victim’s home could only have been there for the sole purpose of assaulting the victim in that the primary judge had made the impugned finding in circumstances where the prosecution had not invited him to do so and deprived the applicant procedural fairness.

81    At [25] Kaye and Weinberg JJA said:

Fundamental principles of procedural fairness require that, in imposing sentence, a judge should not take into account a particular factor, attending the offending in question, as an aggravating circumstance, unless counsel for the offender has had an opportunity to address that matter in the course of sentencing submissions. The relevant principles were stated by this Court in Best v The Queen:

Features of aggravation may, of course, lead to a more severe sentence. Axiomatically, therefore, features of aggravation must be established by the prosecution beyond reasonable doubt. Further, procedural fairness dictates that a judge generally should not act upon a putative aggravating circumstance of any significance unless it has first been raised with counsel.

Similarly, where the parties have, for the purposes of sentencing, agreed upon an agreed factual basis of an offence, although a judge is not necessarily bound by the agreed facts, such agreed facts should not be departed from without the matter being raised with counsel, and counsel given the opportunity to address argument. And, of the utmost importance, a person cannot (generally speaking) be sentenced for conduct which might constitute a separate offence of which he has neither been charged nor convicted.

    (Footnotes omitted.)

82    Their Honours found, having regard to an exchange between the sentencing judge and counsel for the applicant, that the judge had articulated the inference that he intended to draw from the facts before him that had been open to him and that the applicant was sufficiently on notice that the judge had the particular view of the facts that were the subject of ground 1: see Elsayed at [28].

83    R v Scott (2009) 22 VR 41 concerned an application for leave to appeal against conviction and against sentence. 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].

84    At [96]-[98] Neave JA, who found that the sentencing judge had not made any error in describing the offence as predatory, set out the meaning of the word “predatory” in the context of criminal offending including relevantly:

96.    The question arises whether his Honour’s use of the word “predatory” to describe the offending behaviour amounted to a specific sentencing error. The term is defined in the Oxford Dictionary to mean:

of, pertaining to, or involving plunder, pillage or depredation; ruthlessly acquisitive, rapacious, exploitative; sexually rapacious or exploitative; of business practice: unfairly competitive or exploitative, esp so as to facilitate takeovers.

97.    In appellate decisions, the word has generally been used to describe offences against multiple complainants involving some element of premeditation, although reference has also been made to the vulnerability of the victim, the existence of a relationship of trust and/or the fact that the offence occurred in a context where the victim expected to be safe. In R v Fuller-Cust, the appellant was an Aboriginal man with a very difficult childhood who had committed multiple sexual offences against two victims. Eames JA said that:

[t]he applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who is likely, if free, to prey on members of the public at large… The applicant’s attacks were upon persons with whom he had what he considered to be a relationship (using the term very broadly) and [were] triggered by factors deeply embedded in his past, coupled with a fear of rejection.

98.    Although the word “predatory” is generally used to describe more serious offending than the offence committed by the applicant in this case, it is an adjectival description of conduct, rather than a legal term of art. …

    (Footnotes omitted.)

85    At [102] Redlich JA, who in relation to the appeal against sentence agreed, substantially for the reasons given by Robson AJA, that the sentencing judge had erred in characterising the applicant’s conduct as predatory, said:

… An offender will engage in predatory conduct in relation to a sexual offence where he or she engages in conduct prior to the commission of the offence which is intended to facilitate its commission. Such conduct will reflect an element of premeditation prior to the commission of the offence.

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

113    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.

114    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.

115    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.

    (Footnotes omitted.)

87    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.

88    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.

89    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.

90    Sixthly, we do not accept that the appellant put the seriousness of his offending in issue before the Tribunal. The Minister relied on the following submission made by the appellant to the Tribunal:

I will be coming to the particular circumstances of the offending. It’s clear that there are two accounts. It’s also clear that the findings have been made. But the submission that I’d make is this is not a person who is, on anyone’s view, a recidivist offender and the submission I make is that if you have a reputation of someone who’s engaging in those courses, particularly in the detention content, there can be reprisals or any number of things that happen and its understandable why a person doesn’t say too widely that they seek that sort of course.

The submission is that while there was a single incident. It’s, in my submission, very different to what the ordinary person would assume when one says the phrase, “child sex offence”. It’s far less significant of what that language conjures, in my submission.

However this submission, when read in context, concerned the issue of rehabilitation.

91    Nor can any support be drawn from the exchange between the Tribunal and the appellant’s counsel reproduced at [78(2)] above. That exchange took place in the context of the appellant’s submissions as to contrition. Further, it is clear from the exchange that the appellant accepted that the Tribunal was bound by both the verdict and the sentencing comments of the two District Court judges.

92    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.

93    In Minister for Immigration and Border Protection v SZMTA (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].

94    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].

95    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.

96    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

97    Given our findings in relation to ground 1 it is not necessary for us to consider ground 2 or, as we have already observed, whether leave should be granted to raise ground 3. Accordingly, the appellant’s interlocutory application filed on 7 May 2021 should be dismissed, 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.

98    We will make orders accordingly.

Associate:

Dated:    20 September 2021