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.