NDBR v Minister for Home Affairs

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.