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.