NDBR v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

NDBR v Minister for Home Affairs [2021] FCAFC 170  

Appeal from: NDBR v Minister for Home Affairs [2019] FCA 1631
File number: VID 1187 of 2019
Judgment of: BROMBERG, MARKOVIC AND BANKS-SMITH JJ
Date of judgment: 20 September 2021
Catchwords: MIGRATION – appeal from decision of primary judge to dismiss application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of first respondent (Minister) refusing grant of Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) – where appellant convicted of unlawfully and indecently dealing with a child under the age of 16 years – where reasons of Tribunal noted disagreement with characterisation of offending by two sentencing judges as not predatory – where appellant not invited to comment on characterisation of his offending – whether Tribunal failed to accord the appellant procedural fairness – whether such failure material – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 499, 501
Cases cited:

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Elsayed v R [2019] VSCA 113

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Navoto v Minister for Home Affairs [2019] FCAFC 135

NDBR v Minister for Home Affairs [2019] FCA 1631

R v Scott (2009) 22 VR 41

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 98
Date of hearing: 18 May 2021
Counsel for the Appellant: Mr G Gilbert SC and Mr W Drent
Solicitor for the Appellant: Asylum Seeker Resource Centre
Counsel for the First Respondent: Mr G Hill
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs.

ORDERS

VID 1187 of 2019
BETWEEN:

NDBR

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

BROMBERG, MARKOVIC AND BANKS-SMITH JJ

DATE OF ORDER:

20 SEPTEMBER 2021

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…

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Details
Case
[2021] FCAFC 170
Decision Date

CaseChat Overview and Summary

In this case, the appellant, who arrived in Australia by boat and applied for a Protection (Class XA) visa, was convicted of unlawfully and indecently dealing with a child under the age of 16 years. The delegate of the Minister refused his visa application, a decision which was affirmed by the Administrative Appeals Tribunal (Tribunal). The appellant sought judicial review of the Tribunal’s decision, arguing that the Tribunal failed to accord him procedural fairness by not inviting him to comment on the characterisation of his offending as not predatory, and that such failure was material. The primary judge dismissed the application for judicial review, and the appellant appealed to the Full Court.

The legal issues before the Full Court were whether the Tribunal failed to accord the appellant procedural fairness by not inviting him to comment on the characterisation of his offending as not predatory, and whether such failure was material. The Full Court noted that it is a fundamental principle that where procedural fairness applies to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard, which 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.

The Full Court found that the Tribunal did not invite the appellant to comment on the characterisation of his offending as not predatory, and that such failure was a breach of the requirements of procedural fairness. The Full Court held that the Tribunal’s disagreement with the characterisation of the appellant’s offending by the sentencing judges was a critical step in the Tribunal’s reasoning, and that the appellant was entitled to be given the opportunity to comment on it. The Full Court also found that the failure to invite the appellant to comment on the characterisation of his offending was material because it affected the Tribunal’s assessment of the seriousness of the offending and the risk to the community.

Accordingly, the appeal was allowed, the orders of the primary judge were set aside, and a writ of certiorari was issued quashing the decision of the Tribunal. A writ of mandamus was also issued directing the Tribunal to review the decision of the delegate according to law. The Minister was ordered to pay the appellant’s costs of the appeal. The appellant’s interlocutory application was dismissed, and the Minister was also ordered to pay the appellant’s costs of that application.

Orders

Orders of the court

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.

Background

Background to the litigation

For the reasons that follow the appeal should be allowed.BACKGROUND The appellant arrived in Australia by boat on 19 June 2012. On 12 November 2012 he applied for a Protection (Class XA) visa. On 9 September 2013 the appellant was charged with one charge of unlawfully and indecently dealing with a child under the age of 16 contrary to s 210(1)(a) of the Criminal Code Act 1899 (Qld). On 27 September 2013 a delegate of the Minister refused to grant the appellant a protection visa. On 19 September 2014 the then Refugee Review Tribunal remitted the matter for reconsideration with the direction that the appellant satisfied s 36(2)(a) of the Act. On 6 May 2015 the appellant was convicted in the District Court of Queensland for indecently dealing with a child under the age of 16 years. On 25 May 2015 Judge Bradley sentenced the appellant for that offence. In doing so her Honour described the offending conduct and then remarked that:It was therefore a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.The appellant 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal identified the issues for consideration to be whether the appellant passed the character test as defined in s 501(6) of the Act and, if he did not, whether the grant of the protection visa should be refused. However, it noted that, given the appellant’s concession that he did not pass the character test by reasons of s 501(6)(e) of the Act, the sole issue for its determination was whether it should exercise the discretion to refuse to grant the visa under s 501(1) of the Act. The Tribunal addressed the primary considerations as required by Direction 79, first considering the protection of the Australian community from criminal or other serious conduct by reference to cl 11.1 of Direction 79. Two aspects of the Tribunal’s treatment of that primary consideration are in issue on the appeal: first, the Tribunal’s characterisation of the appellant’s behaviour as “predatory” (see appeal ground 1); and secondly, the Tribunal’s consideration of the appellant’s rehabilitation (see appeal ground 2). 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”. 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. 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.)

Ratio Decidendi

Legal Principle Established

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 There was no dispute between the parties about the applicable principles. In Alphaone at 590-591 a Full Court of this Court (Northrop, Miles and French JJ) said:It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.This statement of principle was approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]. In Alphaone at 591-592 the Full Court said:Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. … A failure to put an applicant on notice of an adverse issue not obviously open or apparent from the material and which is relevant to the ultimate conclusion may be a breach of the requirements of procedural fairness: see generally SZBEL at [35]-[43]. In particular, in SZBEL the High Court said at [34]-[35], albeit in relation to the obligations of the then Refugee Review Tribunal under s 425 of the Act, that:… The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.