Federal Court (Full Court). Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks? If so, does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?
The relevant sequence of events is as follows:
The Appellant was sentenced in the District Court of Queensland for indecently dealing with a child under the age of 16 years. Judge Bradley said the following in sentencing him:
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 Queensland Court of Appeal set aside the Appellant’s conviction and ordered a re-trial.
The Appellant was again convicted of the same offence and re-sentenced by Judge Horneman-Wren SC who, in doing so, said as follows:
On the last occasion that her Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no (sic) real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate. And I am not invited by the prosecution to view it any other way…
The Minister refused to grant the Appellant a visa under s 501(1) of the Migration Act 1958 (Cth), finding as follows:
The offence resulting in [the appellant’s] conviction occurred within a year of his arrival in Australia for the purpose of seeking protection from religious persecution in Pakistan. [The appellant’s] wife and child remain in Pakistan and he continues to hold concerns for their safety. I have taken into account the Courts’ findings that [the appellant’s] emotional state and mental health associated with his personal circumstances preceding his offence were relevant considerations in his sentencing, and I have considered that the Courts found no real evidence of any real predatory behaviour by [the appellant] against the victim despite his actions being persistent and opportunistic.
The Federal Court quashed by consent the Minister's decision and remitted the matter for the Minister to make the decision according to law.
A delegate of the Minister refused to grant the Appellant a visa under s 501(1) again, finding as follows:
23. I have taken into account the Courts’ findings that [the appellant’s] emotional state and mental health associated with his personal circumstances preceding his offence were relevant considerations in his sentencing, and I have considered that the Courts found no evidence of any real predatory behaviour by [the appellant] against the victim despite his actions being persistent and opportunistic. I took into account that the Courts found him to be otherwise of good character.
24. I have noted the sentence received in conjunction with the Judges’ remarks that [the appellant’s] actions were considered as opportunistic and that it was consistently accepted and reiterated by the Court that the offence had a significant impact on the victim.
The Appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate's decision. The reasons of the Tribunal were described by the FCA as follows:
29 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 ofthe Court of Appeal. At  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.
30 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.
31 Having regard to Judge Bradley’s statement that “[t]he law in Queensland is that adults who sexually abuse children must go to jail, unless there are exceptional circumstances”, the Tribunal was of the view that a sentence of imprisonment for a sexual offence did not of itself necessarily indicate the sentencing judge’s view about the seriousness of the offence but that the length of the sentence thought to be appropriate by the sentencing judge would be a matter to which regard should be had under cl 11.1.1(1)(f) of Direction 79.
Taking into account all of the above, the offence for which the [appellant] was convicted must be viewed as serious. All crimes of a sexual nature against children are serious. The Tribunal notes Judge Bradley’s comment that the offence was “persistent” but did not involve predatory behaviour (R2, G12/99). The Tribunal also notes the more fulsome statement of the facts in the Court of Appeal’s judgment (see  above) which indicates that the Applicant made two approaches to the victim and attempted to have the victim accompany him back to his car. That behaviour is of concern to the Tribunal and, with respect, the Tribunal cannot agree with Judge Bradley’s characterisation of the Applicant’s behaviour as not predatory. In the Tribunal’s view the Applicant’s behaviour as described in the Court of Appeal’s judgment can be properly described as predatory.
The FCA dismissed a judicial review application by the Appellant of the Tribunal's decision. The Appellant appealed to the Full Court of the FCA (FCAFC) from the FCA's decision.
Some of the questions to the FCAFC were as follows:
Question 1: Was the Tribunal entitled to re-characterise the Appellant's conduct and, in doing so, depart from the characterisation adopted by the sentencing judges in a significant way, by labelling the conduct as 'predatory'? In other words, was the Tribunal entitled to go behind the sentencing remarks?
Question 2: If the answer to Question 1 is 'yes', does it follow that the Tribunal "was required, in the circumstances, to inform the appellant that it may form a different view and to invite comment from the appellant"?
Question 3: Can it be said that the fact that "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"?
Question 4: Can it be said that, "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 FCAFC answered those questions as follows:
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