FEDERAL COURT OF AUSTRALIA

NDBR v Minister for Home Affairs [2019] FCA 1631

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

3.    Until further order, on the ground that it is necessary to prevent prejudice to the proper administration of justice, the reasons of the Court of the date of these orders are to remain confidential to the parties to the proceeding. [This order was subsequently vacated.]

4.    Within seven days, each party file and serve a short submission (or a joint submission) as to any redactions that should be made to the Court’s reasons for judgment. The Court will then publish its reasons either in whole or in a redacted form. [This order was subsequently vacated.]

THE COURT DIRECTS THAT:

5.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

6.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, a citizen of Pakistan, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a Protection (Class XA) visa pursuant to s 501(1) of the Migration Act 1958 (Cth). It was common ground before the Tribunal that the applicant did not pass the character test, as relevantly described in s 501(6)(e) of the Migration Act, because the applicant had been convicted of a sexually based offence involving a child. The Tribunal concluded that, in the circumstances, the discretion to refuse to grant the visa under s 501(1) should be exercised.

2    Before setting out the grounds of review in the applicant’s amended originating application, I note that the applicant was sentenced on two occasions by judges of the District Court of Queensland. The applicant was found guilty of the offence of unlawfully and indecently dealing with a child under the age of 16 and sentenced for that offence. The applicant appealed his conviction and sentence to the Court of Appeal of the Supreme Court of Queensland. The Court of Appeal allowed the appeal and ordered a retrial. The applicant was again convicted of the offence and re-sentenced.

3    The applicant relies on three grounds of review, which may be summarised as follows:

(a)    the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal went behind the sentencing decisions of the two judges who had sentenced the applicant, and formed its own opinion as to the seriousness of the offence (ground 1);

(b)    in the alternative, if there was power to go behind the conviction and sentence, the Tribunal failed to accord the applicant procedural fairness, in that 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 the decision that was under review by the Tribunal (ground 2); and

(c)    in contravention of s 499(2A) of the Migration Act, the Tribunal failed to comply with Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79); alternatively, the Tribunal failed to consider relevant information, evidence and/or a submission of substance (ground 3).

4    For the following reasons, I have concluded that these grounds are not made out. It follows that the application is to be dismissed.

Background facts

5    The following summary of background facts is based on the material in the Court Book and the Supplementary Court Book. I note that the material before the Court also includes an affidavit of Emily Singh, a solicitor acting for the applicant, dated 25 July 2019. The affidavit annexes a copy of the transcript of the hearing before the Tribunal on 28 February 2019.

6    The applicant, a citizen of Pakistan, arrived in Australia by boat in June 2012. He was held in immigration detention until 25 October 2012, when he was granted a bridging visa and released into the community.

7    On 12 November 2012, the applicant applied for a Protection (Class XA) visa.

8    On 9 September 2013, the applicant was arrested and 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). The incident in question occurred on 26 June 2013. The applicant submits that he was bailed immediately (see, eg, the chronology attached to his outline of submissions in this Court). However, the material does not make clear whether that was the case and the Tribunal did not make a finding to this effect. In any event, the Tribunal found that the applicant was granted bail by the Ipswich Magistrates’ Court on 14 October 2013: see the reasons of the Tribunal (the Tribunal’s reasons) at [22]-[23].

9    On 27 September 2013, a delegate of the Minister refused to grant the applicant a protection visa.

10    On 10 April 2014, the applicant’s bridging visa was cancelled (apparently on the basis of the criminal charge) and he was taken into immigration detention. He has been held in immigration detention since that date.

11    On 19 September 2014, the then Refugee Review Tribunal found that the applicant satisfied the criteria in s 36(2)(a) of the Migration Act, and remitted the matter for reconsideration with the direction that the applicant satisfied s 36(2)(a).

12    On 6 May 2015, the applicant was found guilty by a jury in the District Court of Queensland of the offence of unlawfully and indecently dealing with a child under the age of 16. On 25 May 2015, Judge Bradley sentenced the applicant. Judge Bradley described the particulars of the offending as follows:

The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were in 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. And when he moved forward, you moved forward with 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.

(Emphasis added.)

13    In relation to the sentence, Judge Bradley stated:

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.)

14    Judge Bradley ordered that the applicant be released on entering into a recognisance in the sum of $200 on the condition that he keep the peace and be of good behaviour for two years. He was to be imprisoned until that recognisance was entered into, and the term of imprisonment was one month.

15    The applicant appealed against his conviction and sentence. On 1 October 2015, the Court of Appeal of the Supreme Court of Queensland set aside the conviction and ordered a re-trial. The Court of Appeal provided reasons for the decision on 13 October 2015. The judgment of Gotterson JA (with whom Philip McMurdo J and Lyons J agreed) contained further details of the circumstances of the alleged offending, based on the complainant’s evidence: see [3]-[8].

16    On 25 May 2016, after a re-trial, the applicant was again found guilty by a jury of the offence. In sentencing the applicant, Judge Horneman-Wren SC observed:

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 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.

(Emphasis added.)

17    Judge Horneman-Wren SC noted that, on the earlier occasion, Judge Bradley had indicated that, but for the period the applicant had spent in detention, she would have sentenced him to a period of imprisonment of nine months. Judge Horneman-Wren SC stated that the circumstances now were that the applicant had been in detention for a further year. Taking that additional period of detention into account, his Honour ordered that the applicant be released upon entering into a recognisance in the sum of $200, conditioned upon keeping the peace and being of good behaviour for a period of one year. A conviction was also recorded.

18    On 6 July 2016, the Department of Immigration and Border Protection (the Department) notified the applicant of an intention to refuse his visa under s 501(1) of the Migration Act. The notice stated that the Department held information about the applicant’s criminal history that indicated that he may not pass the character test by virtue of s 501(6)(e).

19    It is convenient to note at this point that s 501(1) 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). That subsection relevantly provides that a person does not pass the character test if a court in Australia has convicted the person of one or more sexually based offences involving a child, or found the person guilty of such an offence (even if the person was discharged without a conviction) (s 501(6)(e)).

20    On 19 and 24 July 2016, the applicant provided submissions to the Department. There were also subsequent submissions.

21    On 8 December 2016, the Minister considered the matter personally and, pursuant to s 501(1), refused the application for a protection visa (the First Refusal Decision).

22    On 16 May 2017, this Court made orders by consent, setting aside the First Refusal Decision and remitting the matter for determination according to law.

23    On 28 November 2017, the Department invited comment from the applicant and further information. The applicant’s representatives provided a submission to the Department on 22 December 2017.

24    On 7 December 2018, pursuant to s 501(1), a delegate of the Minister refused the application for a protection visa (the Second Refusal Decision).

25    The applicant applied to the Tribunal for review of the Second Refusal Decision.

26    On 28 February 2019, the Tribunal (constituted by a Deputy President) held a hearing in relation to the application for review. Both the applicant and the Minister were represented at the hearing.

27    On 8 March 2019, the Tribunal decided to affirm the Second Refusal Decision, and provided reasons for its decision. These reasons were the subject of a corrigendum issued on 1 April 2019.

The Tribunal’s reasons

28    The Tribunal identified the issues as being whether the applicant met the character test as defined in s 501(1) and, if he did not, whether the grant of the Protection (Class XA) visa should be refused (at [4]). The Tribunal noted that the applicant conceded that he did not meet the character test. The sole issue, therefore, was whether the discretion to refuse to grant the visa under s 501(1) should be exercised (at [6]).

29    The Tribunal set out the background facts (at [7]-[24]), then described the hearing (at [25]-[27]), and set out the legislative framework, including Direction 79 (at [28]-[39]).

30    The Tribunal then considered the three primary considerations identified in Direction 79, namely: protection of the Australian community from criminal and other serious conduct; the best interests of minor children in Australia; and expectations of the Australian community.

31    The Tribunal considered the first primary consideration (namely, protection of the Australian community from criminal or other serious conduct) at [41]-[83]. The Tribunal structured its reasons under the following sub-headings:

(a)    the nature and seriousness of the conduct;

(b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;

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

(d)    the likelihood of the non-citizen engaging in further criminal or other serious conduct.

32    In the course of dealing with the nature and seriousness of the conduct, the Tribunal set out paragraph 11.1.1(1) of Direction 79 and noted that paragraph 11.1.1(1)(a) categorises offences of a violent and/or sexual nature as being “viewed seriously” (at [43]).

33    The Tribunal set out passages from the sentencing remarks of Judge Bradley and Judge Horneman-Wren SC. The tribunal also set out [4]-[8] from the judgment of Gotterson JA, which contained additional detail regarding the alleged offending. The Tribunal then stated at [50]:

The Tribunal notes the comments of 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 Applicant. 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 applicant’s offending was at the lower end of the scale of seriousness for a sexual offence involving a child.

(Emphasis added.)

34    The Tribunal discussed the sentences imposed on the applicant, noting that each judge would have sentenced the applicant to a period of imprisonment if not for the fact that he had already spent a period of time in immigration detention (at [51]-[54]). The Tribunal stated at [55]:

Taking into account all of the above, the offence for which the Applicant 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.

(Bold emphasis added.)

35    The Tribunal stated, at [58], that the seriousness and nature of the offence committed by the applicant, and the fact that it was a crime of a sexual nature committed against a child, and the fact that it was committed in a relatively short time after the applicant entered the community, “overall weigh heavily in favour of refusing the visa”.

36    In relation to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, the Tribunal concluded, at [60], that it did not consider the conduct for which the applicant was convicted fell within the category of conduct that is “so serious that any likelihood that it may be repeated may be unacceptable” as identified in paragraph 11.1.2(1) of Direction 79.

37    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 concluded, at [62], that for these purposes the conduct must be viewed “very seriously”.

38    The Tribunal then considered the issue of the likelihood of the non-citizen engaging in further criminal or other serious conduct in some detail at [63]-[83]. The Tribunal referred to a submission by the Minister that the applicant had demonstrated very little insight into his offending, relying on the fact that the applicant had pleaded not guilty and continued to maintain his innocence. The Minister also referred to a statement provided by the applicant to the Department in which he contended that he was set up by the police and did not commit any crime. The Tribunal noted at [67] that the applicant was found guilty by a jury following due process and, in any event, the Tribunal could not go behind the conviction. The Tribunal also referred to a submission by the Minister that the applicant’s behaviour while in detention had been unsatisfactory, and that the records referred to numerous instances of aggressive behaviour and threats made towards officers and altercations involving physical violence. The Tribunal noted that the applicant was extensively cross-examined about these matters. The Tribunal observed at [74] that it did not find the applicant to be a particularly credible witness. The Tribunal did not accept the applicant’s claim that the descriptions of his behaviour in the incident reports were all wrong, but the Tribunal attached only limited weight to the incident reports because the authors of those reports were not called to give evidence. The Tribunal considered the applicant’s claim that the incident reports were effectively fabricated by the detention officers to fall in the same category as his denial of the offence for which he was convicted, namely indicative of an unwillingness to accept responsibility for his actions and to blame others (at [75]).

39    The Tribunal found, at [83], that there was a risk of the applicant re-offending and that, because of the nature of the crime committed by the applicant and the potentially devastating effect such a crime could have on a victim if he were to re-offend, “the risk of the Applicant reoffending is unacceptable”.

40    The second primary consideration (namely, the best interests of minor children in Australia) was not relevant in the present case. The Tribunal considered the third primary consideration (namely, the expectations of the Australian community) at [85]-[98]. The Tribunal found, at [98], that the Australian community’s expectation was that “the Applicant should not be granted a visa”.

41    The Tribunal then turned to other considerations, including international non-refoulement obligations, at [99]-[115]. The Tribunal noted, at [106], the applicant’s contention that the Refugee Review Tribunal findings remained accurate. At [108], the Tribunal noted that the Minister did not dispute that the applicant was owed non-refoulement obligations, and did not contest the applicant’s assertion that if he were returned to Pakistan there was a real chance that he would suffer harm as found by the Refugee Review Tribunal. The Tribunal discussed the inconsistency between paragraphs 12.1(2) and 12.1(6) of Direction 79 and ss 197C and 198 of the Migration Act, and the approach taken in other matters decided by the Tribunal. Following that approach, the Tribunal proceeded on the basis that a refusal to grant the visa “would place the applicant at immediate risk of refoulement to Pakistan, notwithstanding any non-refoulement obligations that Australia may have” (at [113]). The Tribunal stated, at [114], that this “consideration weighs in favour of the grant of the visa” (see also [115]).

42    The Tribunal discussed the weighing exercise at [119]-[125], referring to Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545; [2018] FCA 594, HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 and Minister for Home Affairs v HSKJ [2018] FCAFC 217.

43    The Tribunal concluded at [127]-[129]:

127.    The two applicable primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against the visa being granted. The Tribunal finds that, while the risk of the Applicant reoffending is not high, the consequences of sexual offences against children are so significant that the risk is unacceptable. Significant weight is, in the Tribunal’s view, to be given to this consideration.

128.    The Tribunal also places significant weight on the expectation of the Australian community which the Tribunal finds to be that the Applicant is not to be granted a visa.

129.    The non-refoulement obligations owed to the Applicant weigh in favour of the grant of the visa. This consideration is, however, outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. In these circumstances the Tribunal is of the view that the discretion to refuse to grant the visa under s 501(1) of the Act should be exercised.

44    Accordingly, the Tribunal affirmed the Second Refusal Decision.

The application for judicial review

45    The applicant applies to the Court for judicial review of the decision of the Tribunal. The applicant relies on three grounds, as summarised in [3] above. I will consider each ground in turn.

Ground 1

46    The applicant contends that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal went behind the sentencing decisions of the two judges who had sentenced the applicant, and formed its own opinion as to the seriousness of the offence. The applicant’s submissions may be summarised as follows:

(a)    The Tribunal did not agree with the findings in the sentencing decision of Judge Bradley (and, by inference, the sentencing decision of Judge Horneman-Wren SC) that the applicant’s conduct was not predatory. Instead, the Tribunal referred to and relied upon the Court of Appeal’s description of events, as found in its judgment. The Tribunal found that this conduct could be “properly described as predatory” (Tribunal’s reasons, [55]).

(b)    The Court of Appeal dealt with a discrete, unrelated appeal point. It did not have cause to comment upon, or pass judgment on Judge Bradley’s description of the offending. It was not relevant to it. In the absence of comment from a higher court, it goes without saying that the persons who were in the best position to assess the conduct of the applicant were the judges who saw and heard the evidence in each trial. Their opinions should have carried the day.

(c)    In adopting its own conclusion, based upon a summary only, the Tribunal impermissibly went behind the sentencing decisions of the judge at the first trial and of the judge after the retrial, and effectively rejected their findings. In so doing, it fundamentally impugned the foundation of its exercise of power. In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP), Bromberg J helpfully examined a number of authorities touching on this point. Reliance is also placed on Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (SRT) at [40]-[41] (albeit in relation to s 200 of the Act); Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) (again in relation to s 200); and Secretary to the Department of Justice and Regulation v LFF [2018] VSCA 155 (LFF) at [42].

(d)    In the present matter, the conviction and sentence was the sole basis for the exercise of power. There was no other relevant offending, which might have permitted a broader analysis. As such, it was not open to the Tribunal to engage in the process that it did.

47    I accept the proposition that, where a conviction or sentence, or both, are the foundation of the exercise of a power vested in the Minister, it is not open to the Tribunal, when reviewing the decision of the Minister, to impugn or go behind the conviction or sentence or both (as the case may be): see Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; 5 ALD 135 at 138-139 per Fisher and Lockhart JJ; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209; 63 FLR 441 at 445-446, 449-450 per Fox J, at 468-469 per Sheppard J; SRT at [40]-[48] per Branson, Lindgren and Emmett JJ; Ali at [42] per Branson J; LFF at [42] per Beach, McLeish and Niall JJA. As noted by the applicant, these cases were helpfully reviewed by Bromberg J in HZCP at [41]-[77].

48    In the present case, the foundation of the Minister’s power was the applicant’s conviction rather than the particular sentence imposed upon the applicant. The relevant power is that contained in s 501(1) to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Relevantly, a person does not pass the character test if a court in Australia has convicted the person of one or more sexually based offences involving a child (s 501(6)(e)). Accordingly, it was not open to the Tribunal, when reviewing the decision of the Minister, to impugn or go behind the applicant’s conviction. This is not a case where the foundation of the Minister’s power was the particular sentence imposed on the applicant. Accordingly, in the present case, the principle does not have application to the sentence imposed on the applicant.

49    The focus of this ground is the statement by the Tribunal at [55] of its reasons (set out above) that the applicant’s behaviour, as described in the Court of Appeal’s judgment, could be properly described as predatory. That statement involved the Tribunal giving a different characterisation to the applicant’s conduct from that given by the two judges who sentenced the applicant. As set out above, Judge Bradley stated that there was “no evidence that there was any real predatory behaviour” on the applicant’s part. Following the re-trial, Judge Horneman-Wren SC effectively agreed with Judge Bradley’s description of the conduct. Notwithstanding those statements, of which the Tribunal was well aware, having set them out at [46] and [48] of its reasons, the Tribunal considered that the applicant’s behaviour could properly be described as predatory. This did not involve the Tribunal impugning or going behind the conviction, being the foundation of the relevant power. Nor did it involve the Tribunal impugning or going behind any of the essential facts upon which the conviction was based. It merely involved the Tribunal giving a different characterisation to the applicant’s conduct from that adopted by the two judges in the course of their sentencing remarks. Indeed, the Tribunal specifically acknowledged, at [67], that it could not go behind the conviction.

50    It may be said that the Tribunal, in making the statement that it did in [55], was impugning or going behind the sentences imposed upon the applicant (by adopting a different characterisation of the applicant’s conduct from the characterisation of the sentencing judges). Even if this is correct, it would not assist the applicant’s case. That is because, as discussed above, in the present case, the principle does not have application to the particular sentence imposed on the applicant, as this was not the foundation of the Minister’s power.

51    The applicant relies heavily on SRT. However, the circumstances of that case are materially different to the present case. In that case, the relevant power was the power to deport a non-citizen under s 200 of the Migration Act. The circumstances in which the power arose were described in s 201. Those circumstances depended upon (among other things) the person having been convicted in Australia of an offence (s 201(a)) and the offence being an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year (s 201(c)): see SRT at [9]. Accordingly, in that case (unlike the present case) the Minister’s power depended on both the conviction and the sentence. This is made clear by the following passage from the judgment of the Full Court at [40]:

The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.

(Emphasis added.)

52    The subsequent statements by the Full Court at [41]-[48] need to be read in this context. They are concerned with impugning or going behind the sentence in circumstances where it is the sentence itself that provides the foundation of the relevant power. For example, at [46], the Full Court stated: “[w]hile it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point”. See also Ali at [42]; LFF at [42]; and HZCP at [78].

53    In the present case, the Minister’s power was founded on the conviction and not on the particular sentence imposed on the applicant. As discussed above, the Tribunal did not impugn or go behind the conviction.

54    Further and in any event, in circumstances where the Tribunal was required to consider the nature and seriousness of the offence (under paragraphs 11.1(a) and 11.1.1 of Direction 79), it was open to the Tribunal to form its own view as to the character of the offending conduct. It was not bound by the description of the conduct given to it by the two sentencing judges. Although the Tribunal departed from the description of the conduct given by the sentencing judges, I do not regard this as questioning the essential facts upon which the sentence was based; rather, it concerned the way in which the conduct was to be characterised. This is supported by, or at least consistent with, Vaitaiki v Minister for Immigration and Multicultural Affairs [1999] FCA 1149 at [17]-[24] per Katz J (Hill and Whitlam JJ agreeing) and Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691 at [56] per Foster J.

55    For these reasons, I reject the applicant’s first ground.

Ground 2

56    In the alternative to ground 1, the applicant contends that, if there was power to go behind the conviction and sentence, the Tribunal failed to accord the applicant procedural fairness, in that 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 the decision that was under review by the Tribunal.

57    The applicant’s submissions can be summarised as follows:

(a)    If it is not accepted that there was an error in going behind the conviction and sentence as argued above, it is submitted that the failure to warn or indicate to the applicant that the Tribunal was considering departing from the position adopted by the delegate, and that of both sentencing judges, constituted a denial of procedural fairness.

(b)    The material before the Tribunal, aside from the determination of the various courts, included: the Minister’s personal decision; the delegate’s decision; the applicant’s own submissions to the Tribunal; and the submissions made by the representative of the Minister at the hearing. None of these referred to or sought a different categorisation of the applicant’s actions.

(c)    There was no warning or mention from the Tribunal that it was intending to question or reclassify the action of the applicant as predatory, prior to, or in the course of the hearing.

(d)    The first time this came to light was in the Tribunal’s reasons at [55] and [58]. The finding was clearly adverse to the applicant, as it elevated the seriousness of the offending in the mind of the Tribunal. (This elevation is consistent with the assessment of the gravity of a sexual offence in the criminal law, where a finding that an offender acted in a predatory way is treated by sentencing judges as an aggravating feature.)

(e)    The applicant relies on Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 590-592. Although in a different statutory context, the error alleged here falls within the same category as that found by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).

(f)    The finding was clearly material as it went to a central issue in the assessment of character under s 501. As such, it was similar to the type of omission identified in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (SZMTA) at [45]-[46].

58    There does not appear to be any issue between the parties as to the applicable principles: see Alphaone at 590-592 per Northrop, Miles and French JJ. In particular, the Full Court stated at 590-591:

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 …

59    In SZBEL, the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) held that, on the facts of that case, in the absence of steps taken by the Tribunal to notify the applicant to the contrary, the applicant was entitled to assume that the issues considered dispositive by the delegate were the issues that arose in relation to the decision under review. The High Court at [32] approved the passage from Alphaone at 590-591 that is set out above.

60    Applying these principles in the present case, I am not satisfied that there was any denial of procedural fairness in relation to the Tribunal’s adoption of a different characterisation of the applicant’s conduct from that adopted by the two sentencing judges.

61    First, the applicant was on notice that the issues to be considered by the Tribunal included those set out in Direction 79. Although the applicant’s Statement of Facts, Issues and Contentions for the purposes of the Tribunal hearing (CB 236) was framed by reference to an earlier direction (namely, Direction 65), Direction 79 replaced Direction 65 for the purposes of the hearing before the Tribunal, as explained in the Minister’s Statement of Facts, Issues and Contentions (CB 476) at [16]. In any event, the two Directions relevantly referred to the same or similar considerations.

62    Direction 79 required the Tribunal to consider, as a primary consideration, protection of the Australian community from criminal or other serious conduct (paragraph 11.1). This required consideration of the nature and seriousness of the conduct (paragraph 11.1.1), including the principle that, without limiting the range of offences that may be considered serious, “violent and/or sexual crimes are viewed seriously” (paragraph 11.1.1(1)(a)). This matter was specifically addressed in the applicant’s Statement of Facts, Issues and Contentions, where it was accepted that the applicant’s offence was to be “viewed very seriously” (AB 244).

63    Secondly, while it is true that the Minister in his Statement of Facts, Issues and Contentions quoted from Judge Bradley’s sentencing remarks (including the sentence regarding there being no evidence that there was any real predatory behaviour) (CB 483) and did not put this in issue, the Minister did refer to the summary of the alleged offending set out in the judgment of Gotterson JA in the Court of Appeal, which arguably supported a more serious characterisation of the conduct than that given by the sentencing judges. The Minister submitted (CB 483):

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

64    Similarly, in the statement of reasons for the Second Refusal Decision (CB 45), reference had been made to the summary of the alleged offending set out in the judgment of Gotterson JA in the Court of Appeal. In the section dealing with the nature and seriousness of the person’s conduct, the description of the applicant’s conduct was evidently based on, not only Judge Bradley’s sentencing remarks, but also the additional details included in the judgment of Gotterson JA in the Court of Appeal (CB 46).

65    Thus, the applicant was clearly on notice that, in considering the nature and seriousness of the applicant’s conduct, the Minister was relying on the additional details contained in the judgment of Gotterson JA in the Court of Appeal.

66    Thirdly, in the course of the applicant’s evidence before the Tribunal, the applicant sought to minimise the seriousness of his conduct, by suggesting that there were two available versions of the events. This is apparent from an exchange between the Deputy President and counsel for the applicant during the applicant’s examination-in-chief. The applicant’s counsel referred to submissions by the Minister “about a lack of contrition and submissions that [the applicant] has made to the [Minister] in relation to the incident”. The applicant’s counsel then said that “for now, the submission is that there are two accounts of what precisely happened” (Tribunal transcript, p 25). Similarly, in his closing submissions, counsel for the applicant submitted: “I will be coming to the particular circumstances of the offending. It’s clear that there are two accounts” (Tribunal transcript, p 66). Further, the applicant’s counsel submitted that, while it was accepted that the complainant was badly affected by the conduct, “the submission is that [there were] two people in the room and two people had a different impression on what had really occurred” (Tribunal transcript, p 69). Thus, the applicant himself put in issue the seriousness and character of the offending conduct.

67    It is true that the applicant’s counsel at the Tribunal hearing relied on Judge Bradley’s statement to the effect that the behaviour was not predatory and that the Tribunal did not question or challenge the applicant’s counsel on this characterisation (see Tribunal transcript, p 9, lines 3-4; and p 71, lines 43-46). However, in the circumstances of the case, including the matters to which I have referred above, it was not incumbent on the Tribunal to question or challenge the applicant’s counsel about this. For the reasons indicated above, the seriousness and characterisation of the applicant’s conduct were in issue. In Alphaone, the Full Court at 592 said that 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”. Having regard to the matters discussed above, in my view it would have been obvious to a reasonable person in the position of the applicant, in all of the circumstances, that it was open to the Tribunal to depart from the characterisation of the conduct given by the two sentencing judges, and to describe it as predatory, particularly having regard to the Minister’s reliance on the additional details set out in the judgment of Gotterson JA in the Court of Appeal, and the fact that the applicant himself sought to minimise the seriousness of the conduct.

68    In the course of the hearing, attention was given to an exchange between the Deputy President and the applicant’s counsel at Tribunal transcript, p 25. In the course of this exchange, the Deputy President stated that “you will appreciate we’re also bound by (a) the verdict and (b) the sentencing comments of the Judge”. The Deputy President continued: “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”. In my view, these statements were concerned with the conviction and the facts set out in the sentencing remarks; they did not extend to the characterisation of the applicant’s conduct given by Judge Bradley.

69    While judgment in this matter was reserved, the applicant’s representatives drew the Court’s attention to the judgment of the Full Court of this Court in Minister for Home Affairs v Smith [2019] FCAFC 137 (Smith). The parties were given leave to file, and did file, supplementary submissions on the implications, if any, of that judgment for the present case. Smith concerned a decision by a Minister personally under s 501CA(4) of the Migration Act not to revoke a cancellation of a visa under s 501(3A). The Full Court dismissed an appeal against a decision by the primary judge that Ms Smith had been denied procedural fairness. In my view, the facts of that case are quite different from those of the present case. In Smith, the denial of procedural fairness arose in the following way. Ms Smith was convicted of murder and burglary. Neither the sentencing remarks relating to the murder and burglary convictions, nor the reasons of the Queensland Court of Appeal, suggested that drugs played any role in the commission of those offences: Smith at [10]. In the course of her submissions to the Minister, Ms Smith asserted that the murder and burglary convictions were not drug related: Smith at [18]. The Minister viewed Ms Smith’s assertion of fact as amounting to a denial on her part that her murder and burglary convictions were drug related. This denial was relied on by the Minister (together with other matters) as being indicative of her propensity to re-offend. The essential reasoning of the primary judge was set out by the Full Court at [19] of its reasons. In essence, the primary judge stated that Ms Smith “could not reasonably have anticipated that the Minister would characterise her assertion of fact as a denial on her part that drugs were involved, that he would come to his own view on that matter notwithstanding that there was no finding in the criminal proceeding that drugs were involved, nor that the Minister would proceed to use the denial which he attributed to Ms Smith as part of his reasoning as to why he considered that there was a risk that Ms Smith might re-offend”. In dismissing the appeal, the Full Court reasoned at [25]-[27] that the problem with the Minister’s approach was that the critical representation that Ms Smith made did not amount to a denial of drugs being involved in her commission of the offences. The facts of the present case are quite different. Apart from the fact that the present case involves an exercise of a different power, and a review of the exercise of that power by the Tribunal, the applicant in the present case did not make a comparable submission, and the decision-maker did not use any such submission in a comparable way. Accordingly, the facts of Smith are readily distinguishable. Insofar as Smith discusses general principles (see [17], where the primary judge’s summary of the relevant principles is described as orthodox, and [26], where the Full Court agreed with the parties that the relevant standard of obviousness or otherwise is to be applied objectively), the approach I have taken above is consistent with those principles.

70    For these reasons, I am not satisfied that there was any denial of procedural fairness. In light of this conclusion, it is unnecessary to consider whether any denial of procedural fairness was material, such as to constitute a jurisdictional error: see SZMTA at [2], [45]-[46].

71    Accordingly, ground 2 is not made out.

Ground 3

72    The applicant contends that, in contravention of s 499(2A) of the Migration Act, the Tribunal failed to comply with Direction 79; alternatively, the Tribunal failed to consider relevant information, evidence and/or a submission of substance.

73    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act. Section 499(2A) states that a person or body must comply with these directions. Direction 79, which was made by the Minister on 20 December 2018, contains guidance as to how the primary considerations outlined in the Direction are to be applied.

74    The applicant’s submissions can be summarised as follows:

(a)    By virtue of s 499(2A), the Tribunal must comply with written directions given by the Minister. In undertaking its assessment of primary considerations, the Tribunal was required under Direction 79, among other things, to have regard to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Direction 79, paragraph 11.1.2).

(b)    In considering the risk to the Australian community, under paragraph 11.1.2(3), the Tribunal was bound to have regard, cumulatively, to a number of factors; in particular, under paragraph 11.1.2(3)(b)(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 …

(c)    The applicant had lived in the community for two months after the offence was committed, before he was charged, and then after that for nine months while on bail before he was placed in immigration detention. During this period, he did not reoffend, a fact that is powerful evidence as to the isolated nature of the offending, and relevant to the question of rehabilitation.

(d)    The Court(s) notably did not require the applicant to undergo any rehabilitation process as part of their sentences handed down.

(e)    Evidence and submissions were put before the Tribunal as to the importance of this time in the community: see the applicant’s written submissions to the Tribunal; his submissions in reply; and his submissions to the delegate. No consideration was given to this aspect. Rather (at [64] and following of the Tribunal’s reasons), the Tribunal dealt only with his time in detention. No weight was given to his all-important time in the community, a factor that required attention.

(f)    In the alternative, the Tribunal failed to deal with an important aspect of the case that the applicant was putting, namely that he had been in the community for some time after the alleged offence without offending. This clearly went to the question of the risk of re-offending.

75    It may be accepted that the applicant made submissions about his time in the community before his bridging visa was cancelled on 10 April 2014 and he was taken into immigration detention: see the applicant’s Statement of Facts, Issues and Contention for the purposes of the Tribunal hearing (CB 236) at [51], [61]; the applicant’s reply submissions before the Tribunal (CB 562) at [12]-[13]. In particular, the applicant relied on his time in the community between being granted bail and his bridging visa being cancelled. The applicant submitted, in substance, that he had been of good behaviour during that period, which demonstrated that he did not present a risk to the Australian community. I note for completeness that, in [61] of the applicant’s Statement of Facts, Issues and Contentions it was stated that the applicant lived for six months in the community in the period following “his conviction” and prior to cancellation of his visa. The reference to the applicant’s conviction is evidently in error; it should be to his being granted bail.

76    Although the Tribunal did not expressly refer to these submissions, the Tribunal was evidently aware of the fact that the applicant had lived in the community between being granted bail and his bridging visa being cancelled: see the Tribunal’s reasons at [22]-[24]. The Tribunal was evidently also aware that the applicant lived in the community between the commission of the offence and being charged: see the Tribunal’s reasons at [20].

77    In my view, for the reasons that follow, the Tribunal complied with the requirements of paragraph 11.1.2(3)(b) of Direction 79. Paragraph 11.1.2(3)(b) states that, in considering the risk to the Australian community, decision-makers must have regard to (among other things):

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.

78    The Tribunal dealt with the issues raised by paragraph 11.1.2(3)(b) of Direction 79 in some detail at [63]-[83] of its reasons. In this section, the Tribunal referred to rehabilitation at [64] and noted that the applicant had not undertaken any sex offenders’ treatment programs. The Tribunal stated at [65] that one of the potential impediments of the applicant engaging in a successful rehabilitation program was that he denied that he committed the offence. The Tribunal referred, at [66], to the Minister’s submission that the applicant had demonstrated very little insight into his offending. The Tribunal referred, at [67], to the cross-examination of the applicant on this point. The Tribunal noted, at [69], that there was considerable evidence at the hearing and contained in the applicant’s statement about his time in detention and the effect that it had had on him. The Tribunal set out, at [71], the Minister’s submission that the applicant’s immigration detention records demonstrated that his behaviour while in detention had been very unsatisfactory. The Tribunal noted, at [72], that the applicant was extensively cross-examined on certain claimed incidents while in detention. The Tribunal referred, at [77]-[79], to a statutory declaration from the head of a religious and social organisation, relied on by the applicant. The witness stated that he had known the applicant for six or seven years and that “before he was detained” he was a regular attendee at the organisation. The witness stated that the applicant was an active volunteer, preparing and serving meals, cleaning, vacuuming and helping wherever needed; and that he found the applicant to be a person of good character, very helpful, co-operative and friendly. At [80], the Tribunal stated that, in assessing the likelihood of the applicant engaging in criminal or other serious behaviour in the future and the risk to the Australian community, the Tribunal took into account certain factors there identified. The first of these was “the Applicant’s criminal record. He has one offence only”.

79    In my view, paragraph 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 the applicant had achieved rehabilitation. In the present circumstances, the applicant had not undertaken any rehabilitation programs or otherwise taken any specific steps directed at rehabilitation. In these circumstances, the applicant’s time in the community did not provide evidence of rehabilitation and did not need to be taken into account in that context.

80    Further, although it is not expressly referred to in the Tribunal’s reasons, I would not infer that the Tribunal failed to consider the applicant’s submission that he had been in the community for some time after the offence without offending. As discussed above, the Tribunal was plainly aware that the applicant had spent this time in the community. The Tribunal was also aware that the applicant had not offended again during that period, given that he had only committed one offence: Tribunal’s reasons at [80]. The Tribunal’s reasons are, with respect, clearly expressed and logically structured. They deal, in appropriate detail, with the submissions and evidence presented to the Tribunal. The applicant’s Statement of Facts, Issues and Contentions is a detailed document. It is apparent from the many issues considered by the Tribunal in its reasons that the Tribunal had read and carefully considered the applicant’s Statement of Facts, Issues and Contentions. In light of these matters, I would not infer that it failed to consider the submission that the applicant had been in the community for some time after the offence without offending.

Conclusion

81    For these reasons, the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Minister’s costs of the proceeding, to be fixed by way of a lump sum.

Associate:

Dated:    4 October 2019