Is the Tribunal entitled to re-characterise an applicant’s conduct contrary to the sentencing judge?

NDBR V. Minister for Home Affairs (2021) FCAFC 170

By Daniel Lane – Staff Writer

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Migration Case Law Updates

Case Background

  1. The Appellant in the case is a person, not originally an Australian citizen because he had arrived in Australia by boat in 2012. In 2013, he had been charged with the offence of unlawfully and indecently dealing with child under the age of 16 years.
  2. This is an offence that is considered to be serious under the Criminal Code. It is on this ground that the delegate refused to grant the appellant the protection visa he had applied for, a decision that was upheld by the Tribunal.
  3. The Tribunal in making its decision heavily characterized the appellant’s conduct as had been explained by the complainant to be predatory. It referred to the judgment passed by the original trial judges who had arrived at the conclusion that the evidence produced failed to show that the appellant’s behavior was predatory, and it was not enough to say that it was only a short although persistent event as the two judges had said.
  4. The Tribunal informed itself that there was a risk of the appellant reoffending, and this generally was something that put the life of Australian nationals at risk. It also addressed itself to the issue of the best interests of a child and with regards to it, the Australian community would not be delighted with the appellant being granted the protection visa having indecently related with a minor. The Tribunal did not alert the appellant that it has departed from the assessment of the sentencing judges

Court’s findings

5. The Court in this appeal completely disagreed with the direction taken by the Tribunal in choosing to characterize the appellant’s conduct in a different way. It relied on the principle that was well laid down in the case of SZBEL VS. Minister for Immigration and Multicultural and Indigenous affairs where it was held that where in exercise of any statutory power there is a requirement for procedural fairness to be considered, a person that is likely to be affected by the decision is entitled to be heard and put across submissions. The Court had failed to call upon the appellant to lay down his submissions or listen to him in any way and it was necessary for the Court to arrive at overturning the decision of the Tribunal on this issue.

Court’s reasoning

6. The reasons the Court gave as to why they were not in agreement with the Tribunal were that first, up to the point of the hearing, it was not expected that the appellant could understand that the description of his conduct was an issue open to a different characterization. He could therefore not have been logically expected to put up a defence for himself.

7. Additionally, the Tribunal never put the appellant on any notice that the characterization it had adopted, that of being predatory was in issue. The Court also negated from the Tribunal’s decision by saying that the characterization had taken only one factor, which is that of being predatory as the only aggravating factor in this case which was not in line with past decisions that had set out the need for the decision maker to weigh various factors concerning a case before arriving at such a characterization.


8. An important take home from the Court’s decision is that the Tribunal should have been cautious enough to afford the appellant the procedural fairness due to him in the matter so as to make him table a relevant defence and bring any form of evidence on the issue.


Disclaimer: the above is only an extract of the case and is an opinion of the author regarding part of the court decision

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