Fortune and Minister for Immigration and Multicultural Affairs
[2006] AATA 823
•27 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 823
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/895
GENERAL ADMINISTRATIVE DIVISION ) Re Peter Xavier Fortune Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date27 September 2006
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex (on-shore visa cancellation) – cancellation of transitional permanent visa on character grounds – past and present criminal conduct and past and present general conduct – applicant convicted of 32 counts of sexual offences including five counts of rape – crimes involved children under 16 years of age – community protection and expectations outweigh other considerations – decision of the respondent affirmed.
Migration Act 1958 ss 501, 501(2), 501(6)
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Re Langat and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 9
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Say and Minister for Minister for Immigration and Multicultural Affairs [2006] AATA 454
Re Toia and Minister for Immigration and Multicultural Affairs [2004] AATA 1142
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
27 September 2006 Professor GD Walker, Deputy President Summary
1. The applicant, Peter Fortune, aged 63, a citizen of the United Kingdom, first arrived in Australia on 4 October 1954. He currently holds an absorbed person visa and a transitional (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural Affairs, decided on 7 July 2006 to cancel Mr Fortune’s visas on the ground that he does not pass the character test because of his substantial criminal record including five counts of rape (32 sexual-related offences in total). This is the decision to be reviewed by the tribunal.
Issue
3. In this case, the applicant concedes that he fails the character test in s 501 of the Migration Act 1958 (“the Act”) because of his substantial criminal record, having been sentenced to a term of imprisonment of five years. The issue for the tribunal to determine is therefore, whether the tribunal should exercise its discretion under s 501(1) of the Act, not to cancel his visa.
Background
4. Mr Fortune was born in Wales, United Kingdom, on 3 August 1943 and is aged 63. His family name at birth was Fortinatos, but he changed it by deed poll to Fortune before to his marriage to Shelagh Maureen Fortune in December 1968. The applicant has two adult children, Brendan and Evan. He first came to Australia on 4 October 1954, at the age of 11, as a ward of Barnardo’s Australia. He is the holder of an absorbed person visa under the doctrine that holds that a person who arrives in Australia as an immigrant does not remain an immigrant for all time but at some point is ‘absorbed’ into the community and ceases to be an immigrant.
5. In 1981, 1983 and 2004 the applicant had the following convictions recorded against him:
Court/date
Offence
Conviction
Brisbane Magistrates Court 30/6/1981
Drive motor vehicle while blood alcohol content was .09%
Convicted and fined $150, disqualified from driving 1 month.
Beenleigh Magistrates Court 12/1/1983
Drive motor vehicle while blood alcohol content was .12%
Convicted and fined $300, disqualified from driving 9 months.
Brisbane District Court
29/11/2004
CC Common assault (2 charges between 1.5.92 and 1.11.99)
CC Indecent assault (9 charges between 1.5.92 and 1.11.2000)
CC Sexual assaults (10 charges between 30.11.00 and 20.4.2001, on 4.5.2001, 31.10.2000)
CC Common assault (4 charges between 21.9.2000 and 1.11.2000, on 4.5.2001 and 20.9.2002)
CC Indecent treatment of child under 16 (procure to commit) (between 1.10.2000 and 1.12.2000)
CC Sexual assault including bodily harm (between 30.9.1999 and 1.11.1999)
CC Sexual assault including oral contact with genitals/anus (2 charges between 30.9.1999 and 31.8.2000)
CC Rape (5 charges on 4.5.2001, between 9.4.2001 and 20.4.2001) above refers to Indictment No 2802/04
On all charges: Conviction recorded imprisonment 6 months.
On all charges: Conviction recorded imprisonment 2 years.
On all charges: Conviction recorded imprisonment 4 years.
On all charges: Conviction recorded, imprisonment 5 years. All terms of imprisonment to be served concurrently and are suspended for 5 years after serving 21 months imprisonment. Declare that time spent in pre-sentence custody be deemed as the time already served under this sentence – 54 days (between 4.5.2001 and 10.5.2001 and between 13.10.2002 and 28.11.2002).
** Order made that defendant report his address to the Officer in Charge of the nearest police station within 48 hours after being released from custody and thereafter for a period of 10 years; report any change of address within 48 hours of the change taking place to the OIC of the nearest police station or at another place approved by the Commissioner of Police.
6. On 11 May 2006, an officer of the Department of Immigration and Multicultural Affairs (DIMA) informed Mr Fortune that the Minister or his delegate was considering cancelling his transitional (permanent) visa and absorbed person visa because of his substantial criminal record and taking into consideration his Queensland criminal history and the judge’s sentencing remarks of 29 November 2004, and inviting him to comment by 25 May 2006 (G p40). The applicant acknowledged receipt of that letter on the same day.
7. By letter dated 16 May 2006, Mr Fortune was advised that the notice of intention served on 11 May 2006 contained incorrect information and was to be disregarded and that the letter of 16 May was to be regarded as formal notification of the department’s intention to consider cancelling his visa. He was informed that the Minister or his delegate was considering cancelling his transitional (permanent) visa and absorbed person visa because of his substantial criminal record, taking into account his Queensland criminal record and Senior Judge Trafford-Walker’s sentencing comments of 29 November 2004, in addition to considering the nature of his convictions, the number and frequency of those crimes and the risk of recidivism as well as the special nature of the absorbed visa that he holds (G p47). Mr Fortune was invited to comment by 30 May 2006. The applicant acknowledged receipt of this letter on 16 May 2006 (G p51). By letter dated 12 May 2006, received by the department on 17 May 2006, Mr Fortune requested an extension of time to comment on the department’s intentions (G p52). He was subsequently granted an extension of time until 5 June 2006 to respond (G p54).
8. Mr Fortune responded by letter dated 31 May 2006 (G6 p32). He stated that his father was killed during World War II, after which he was brought up by his grandparents before being placed into foster care with Dr Barnardo’s Boys Home, firstly in England and then, from 1954, at the Barnardo’s Farm School in Picton, New South Wales, where he remained until 1959. He was a member of the Army Reserves Infantry Corps from approximately 1960 until the mid 1970s, eventually becoming an instructor with the Officer Training Unit. He worked in various sales positions from 1960 until 1980. In 1981 he moved to Queensland and from 1981 until 1997 was self-employed. He stated that it was his company business plan for his release, not only to ensure full-time employment for himself, but to assist unemployed persons into gainful employment. He stated: “It is impossible to adequately express and remorse and shame I feel as I look back on my offending behaviour and the thoughts of anger and disgust against me by those innocent young women”. The impact of the offences on his family, he said, was “horrendous”. He said that his risk of reoffending is low, that he had gained insight through completing a cognitive skills program and that it was his intention to undertake psychiatric counselling when released to cement his commitment to stay “offence free”. He invited the department to contact his referee, Mr Terry Wimberley, who he had known in a personal and professional capacity for over 16 years. He said that he did not consider his visa cancellation would prevent or discourage similar conduct, and that allowing him to stay would be a move “towards healing forgiveness and mercy”. He also asks that the department take into consideration that he has lived in Australia for 53 years, is married to an Australian, served in the army Reserve and regular army and had worked in commerce and industry, starting up and running his own business for over 25 years.
9. Mr Fortune was released on parole from Wolston Correctional Centre on 5 July 2006 and immediately detained at the Villawood Immigration Detention Centre, Sydney, in accordance with the provisions of the Migration Act.
10. On 7 July 2006, having considered all the matters relevant to an assessment of the character test, including the applicant’s submissions, a delegate of the respondent decided to cancel Mr Fortune’s transitional (permanent) visa and absorbed person visa because of his substantial criminal record, the fact that his crimes were of a very serious nature involving sexual assaults of 12 female victims on a repetitive and continuous basis, and taking into consideration, the possibility of him re-offending. Mr Fortune was notified of this decision on and on lodged an application for a review of that decision by the tribunal.
11. At the hearing, the applicant was represented by Ron Kessels, solicitor, Kessels Goddard & Ajuria, and the respondent was represented by Anthony Cox, solicitor, of Phillips Fox lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit R1, together with the evidence submitted by the parties at the hearing. Oral evidence in person on behalf of the applicant was given by Mr Fortune, Mrs Shelagh Fortune, Evan Fortune, Brigadier Phillip Carey AM and Katie Seidler. Brendan Fortune, Terry Wimberley and Thomas de Lucey gave oral evidence by telephone.
Relevant Law and Policy
12. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
13. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The Applicant’s evidence
16. The applicant filed an overview of the indictments against the applicant (Exhibit A13) including the name and age of the victim and the nature of the criminal acts. Counts one and two involved a 16 year old at the time of the offence (at the committal hearing she said she was 15 or 16 at the time); counts three to 13 involved a 18 year old; counts 14 to 17 involved a 21 year old; counts 18 and 19 involved a 27 year old; counts 21 and 22 involved a 21 year old; counts 23 and 24 involved a 22 year old; counts 25 and 26 were committed against a 15 year old at the time of the offence; the victim of count 27 was aged 27; counts 28 and 29 were committed against a 19 year old; counts 30 to 32 involved a 18 year old; the victim of counts 33 to 39 was aged 19; and the victim of count 40 was aged 18 years.
17. Witness statements were also filed on his behalf by his wife Shelagh Fortune dated 28 August 2006 and 11 September 2006 (collectively Exhibit A3), mother-in-law Sheila Partridge dated 28 August 2006 (Exhibit A11) and his sons Evan James Fortune dated 28 August 2006 (Exhibit A4) and Brendan Fortune dated 29 August 2006 (Exhibit A5). Character references were provided by Brigadier P.R. Carey dated 25 August 2006 (Exhibit A6), Terry Wimberley dated 24 August 2006 (Exhibit A8) and Thomas Richard de Lucey dated 23 August 2006 (Exhibit A10). A letter was also provided by Bill Hoyles, Senior Manager, Youth Services and Aftercare, Barnardos dated 25 August 2006, acknowledging that abuse while in care was known to have occurred at Picton Farm School and accepting responsibility for (pre-approved) counselling should the applicant require it (Exhibit A12).
18. A medico-legal report was also tendered from Katie Seidler, registered psychologist, who interviewed the applicant on 24 August 2006 (Exhibit A7). During the two and a half hour interview he was grandiose, engaging and glib. Ms Seidler outlined the applicant’s family and developmental history, spent mostly in institutional care due to being an illegitimate child, including his alleged sexual abuse while living in Barnardo’s Picton Farm School and a sexual assault by an older female cousin when he was aged approximately 11. He had not regarded the assaults (which were relatively minor) as particularly distressing and had not thought much about them since.
19. Ms Seidler reported that he had a varied work history including running his own successful company until the time of his imprisonment. The applicant saw himself as being “gregarious in all degrees”. He told her that he had been regularly unfaithful to his wife during their marriage, having some 40 sexual partners since his marriage, his wife knew of his infidelity, the longest of his affairs lasting for approximately 18 months. Mr Fortune told Ms Seidler that he was a “very sexualised person”, he had been dissatisfied with his sexual relationship with his wife, regularly masturbates, has sexual fantasies involving attractive young women and despite his age maintains a high level of sexual interest and arousal.
20. Ms Seidler assessed the applicant’s personality through psychometric testing and concluded that he was a person with an inflated and overly positive view of himself. He could feel superior to others and engage in manipulative behaviour, with little respect for rules, to meet his own needs. The applicant had described to her how, over a 10 year period, he identified, convinced and manipulated young women that he found attractive, into agreeing to allow him to take their photographs on the pretence that he was a professional photographer. He would manipulate them into taking their clothes off, pose in sexually provocative positions and in some cases, allow him to touch them sexually. She reported that he described his actions in “quite clearly manipulative terms” stating “he claimed that, whilst photographing the women, he would determine ‘how comfortable’ they were and, therefore, whether they were ‘prepared to do what I want them to do’, which meant pose in lingerie or in sexually provocative positions”. He knew that his behaviour was inappropriate and that he was manipulating the women, that his behaviour would be ‘frowned on’ by his family and friends, that his behaviour had an ‘indelible effect’ on his wife and sons, and that as he had duped the women into believing he was someone else, “this would have been uncomfortable for them”.
21. Mr Fortune told Ms Seidler that while he had not received any specific treatment for his sexual behaviour, he was committed to remaining offence-free and that he had changed his whole attitude, particularly since his imprisonment and becoming more spiritually connected, and was no longer interested in approaching women for photographs or any other sexual encounter.
22. Having assessed Mr Fortune’s risk of recidivism using both static and historic variables and dynamic risk factors, she found “Mr Fortune would be considered to be a low risk of sexual reoffence. The most salient risk factor relates to his hypersexuality, although this is a general risk factor for infidelity and superficial sexual relationships, rather than for sexual offending per se. … in addition to posing a low risk of sexual reoffence, it is my opinion that Mr. Fortune does not present with many of the risk factors also known to be related to general criminal behaviour. As such, he would likely make a positive transition to the community, where he can be expected to adjust to a satisfactory level, posing minimal risk to the safety of others or the community”. She recommended that Mr Fortune undertake specialised psychotherapy relating to his sexual offender behaviour, which he had agreed to participate in. In conclusion, she stated:
Mr Fortune is considered to pose a low risk to the community. The main concern for him relates to hypersexuality and sexualisation of women, however, these are considered a more general risk for infidelity and superficial relationships, rather than being specifically related to sexual recidivism. Nevertheless, Mr Fortune has never participated in offence specific counselling and it is important that he do so, such that he might maximise his potential for a stable lifestyle and marriage for the remainder of his days. He is an older man who has been very embarrassed by his offending and, in particular, feels badly about the effect of this on his wife. He appears to be motivated to address his behaviour and engage in appropriate treatment and, with the right support and intervention, there is no reason to expect that he would be a continued risk to the Australian community.
23. The applicant’s representative also tendered an Extract from the 2001 Senate Community Affairs Reference Committee report on its enquiry into Child Migration – “Lost Innocents: Righting the Record” (Exhibit A9).
24. The applicant’s own evidence in chief consisted of his letter to the department dated 31 May 2006 in response to the notice of intention to consider cancelling his visas (G pp32-36). After outlining his background, educational experience and career path, as outlined above, Mr Fortune wrote that while incarcerated he had made positive use of his time by working on his company business plan, to ensure continuation of full-time employment and also to provide for the placement of other less fortunate persons in gainful work. He expressed regret for his crimes: “It is impossible to adequately express and remorse [sic] and shame I feel as I look back on my offending behaviour and the thoughts of anger and disgust against me by those innocent young women, is [sic] uppermost in my mind”. The offences had badly affected his family. While in prison, however, he had begun a healing and rebuilding process and believed that with his commitment to his business, his very close family ties and the deep remorse and shame he felt for his past actions, there was no chance that he would ever reoffend. “I do not wish to mitigate my offending behaviour in any way, but I would humbly point out that my Sentence Management Review (SMR) shows my Community Risk category as low. Despite many inaccuracies in the prosecutor’s case, I pleaded guilty to all the charges in order to try to minimise any further hurt and trauma that would have resulted from having to drag all these young women through the court system”. Having completed the cognitive skills program in prison, he had gained a growing insight into various triggers and the gravity of his actions, not only against the young women, but on the community as a whole. He also intended to resume visiting a private psychiatrist on release to further cement his commitment to stay offence-free.
25. In cross-examination he said he did not deny the facts of the offences of which he had been convicted, but there were some elements in the charges that he did not “deem accurate”. He had not had sufficient time fully to negotiate about those matters with the Director of Public Prosecutions. In his letter he had said that “Despite many inaccuracies in the prosecutor’s case, I pleaded guilty to all the charges in order to try to minimise any further hurt and trauma that would have resulted from having to drag all these young women through the court system”. He conceded that they had in fact been “dragged” through the court system as a result of having to give evidence at the committal proceedings, as he had not at that time pleaded guilty. During his imprisonment, however, he had become more aware of the extent of his offences.
26. He conceded that he had not undergone any offence-specific counselling or courses, but explained that he had offered to undertake such courses at each of his six-monthly reviews while in prison. The courses had not, however, been available to him at that time. The applicant said that he would not now reoffend because while in prison he had realised the significance and implications of what he had done. He knew that if he reoffended he would be completely separated from his family, lose his business, and serve a long sentence. That knowledge had removed all desire to commit such offences. At the time he had not seen his rapes and assaults as being against the will of the victims because he had duped them. Although he was 47 or 48 in 1992 when the list of offences began, he did not think at the time that he would be reported or arrested because he had not used force. He was convinced that the conduct was consensual. He had pleaded guilty because once the girls discovered that he was not who they thought he was, “they saw [his] conduct as an offence”.
27. There were aspects of the offences that he did not like at the time. In one of the videos he made in the late 1990s he could see his own face on the screen and was appalled by the thought that he could do such things. When it was pointed out to him that he nevertheless continued to offend and that being appalled did not stop him, he made no reply.
28. The applicant acknowledged that he had faced charges of a similar nature, including rape, at Brisbane Local Court in January 1999 but had committed most of the offences for which he had been convicted after that date. He explained that he had not committed those earlier offences, implying that for that reason the experience had no deterrent effect. Asked whether the fact that he had to appear in court on those charges might have deterred him, he answered that it made him very careful about how he went about things, how he would approach the women and what he would say. He conceded that he did not consider stopping, but that was because he had not done anything before then – only one offence in 1992. Nevertheless, the court appearance had not led him to consider stopping.
Character Evidence
29. Several witnesses gave character evidence in the applicant’s support. As he had conceded that he failed the character test, this evidence did not go to the issue of character as such, but was relevant to discretionary factors such as the likelihood of recidivism, the extent of rehabilitation, community expectations and other considerations.
30. The first of these witnesses was the applicant’s wife, Mrs Shelagh Maureen Fortune. In her witness statement (Exhibit A3) she outlined the applicant’s earlier history and expressed the view, as a retired school counsellor with considerable experience in psychology, that the applicant’s abhorrent activities were so out of kilter with the Peter that people see every day, that they might have been caused by several determining factors. They were his abandonment by his mother and her lack of understanding, sexual assaults that he experienced in a childrens’ home leading to his early sexualisation, and her own involvement in her previous job that left her little time for her husband.
31. She stated that she is willing to do everything she can to ensure that the applicant seeks appropriate psychological help and maintains a treatment regime. He had begun to see a psychiatrist in Brisbane at her instigation in 2002, but at that time he did not feel it was helpful and could not continue the program at $189 per visit. This time she would make sure that he continued until any treatment was concluded.
32. Mrs Fortune believes he is genuinely remorseful for his crimes and will not reoffend. She has made it clear that if he ever does so, that would be the end of their relationship and of her support for him.
33. In cross-examination she conceded that she had no idea of the offences he was committing and was shocked when she learned of them. She had felt some concerns before 1992, but not about offences. She felt that only factors such as those mentioned in her statement could explain his bizarre behaviour. The person she saw was normal and nice, “and then there was this other person”.
34. She had arranged for him to visit the psychiatrist in Brisbane in August 2002, but after three visits he was placed in the remand centre. When he was released, their financial situation was very serious and for about seven weeks they faced the possibility of losing everything. He owed huge amounts on his credit cards, including for legal fees.
35. He had told her that in any event the Brisbane psychiatrist was not much help. His method seemed to consist of continually assuring the applicant that he had done nothing wrong.
36. While she could not say that he would not reoffend, she had made a contingent appointment for October 24 with a well-known clinical psychologist at Southport, Dr Bob Montgomery, who had told her that her husband had a reasonable chance of a successful outcome.
37. Mrs Fortune did not believe that he realised what he was putting the women through. He had thought it was consensual, but now knows the true position and will not forget.
38. Mrs Fortune’s mother, Mrs Sheila Partridge, who had been the applicant’s unofficial foster-mother after he left Barnardo’s, wrote a letter (Exhibit A11) attesting to his positive qualities within the family.
39. The applicant’s son Evan James Fortune, aged 35, is executive director for Australia’s largest e-marketing company. In a lengthy statement (Exhibit A4), he paid tribute to his father’s dedicated and exemplary conduct as a father who had done everything he could to support his sons and help them to make a start in life. He believes his father “is a great man” and not one to hurt people or in any way restrict a person’s freedom. He thinks the applicant will become a far better person as a result of what has occurred. He was shocked and disappointed when he learned of his father’s actions towards the complainants and found it hard to believe, as he had never known his father to disrespect any human being. He could only assume that certain events led his father down a dark and desperate path to fulfil some type of need, whether because of lack of affection or inability to deal with a number of business failures.
40. He is willing to financially assist with the necessary counselling services if his father is unable to do so, but has stressed that if he chooses to repeat such offensive behaviour he will be well and truly on his own. “I love Dad very much and would be devastated if our family unit was divided over vast continents of the globe.”
41. Asked at the hearing about his statement that, “My father is a truly wonderful man who has in my eyes always bought joy and hope to people’s lives”, he said he was describing his father as he had seen him.
42. The applicant’s elder son Brendan John Fortune, 36, stated (Exhibit A5) that his father had always been a part of his life and had always supported him in what he wanted to do. “Even when he didn’t agree with the direction my music was going in, he still came along to my gigs.” He had worked for his father for about eight years until he decided on a different career path. Even in the last few years his father had often suggested that he come back to work for him.
43. Brendan had not seen much of his father since he went to jail because he works six days per week at Tugun and also was heavily involved with his band when not working at his day job. He was very disappointed in his father for behaving so badly but could only say that he had never behaved badly towards any of his (Brendan’s) friends.
44. At the hearing, he said he had not spent much time with the applicant in recent years, but they catch up every few months. He has had “issues with the police” himself that he has had to deal with, and was not able to go to see him. Having an aversion to speaking to people on the telephone, he had not called him very much.
45. His father had had a hard life, he said, and was trying to turn things around. Part of the explanation for his offences was, he thought, that his father was looking for attention.
46. Brigadier Phillip Carey AM, RFD, ED (ret) is a retired federal and state public servant and former brigadier in the Army Reserve. He first met the applicant in 1963 in the army. The applicant served under his command for about four years and in the same unit for several more years. He became a close family friend. He knew nothing of the applicant’s criminal activities, conviction or imprisonment until receiving a telephone call from him in Villawood (Exhibit A6). At the hearing he conceded that before he learned of the applicant’s offences, he would never have considered him capable of such crimes and was shocked and disappointed to learn about them. Nevertheless, he remained of the view that Mr Fortune is “one of the finest men I have met”. He had made a mistake and had paid for it, and though his crimes were repugnant, from the point of view of his association with him, he still regarded him as one of the finest men he had met and saw no reason to revise his opinion. He was convinced that the applicant would not reoffend. When asked whether he would have said the same kind of thing when the applicant was carrying out the offences, he admitted that he would have. He thought that visa cancellation “would be very harsh indeed”.
47. Mr Terry Wimberley is a shopping centre development consultant and is actively involved in charity programs. In his statement (Exhibit A8) he said he had known the applicant for some 12 years as a personal friend, golf partner and family friend. “I can attest to the fact that Peter has a high work ethic and has always owned up to his indiscretions and mistakes. I have admired Peter for this trait and have not known Peter to lie even in his own defence. Peter has owned his mistakes and realises he had a problem. Peter has fully paid his debt to society”. Mr Wimberley said that before learning of the offences he would not have suspected the applicant of doing such things. Nevertheless, he thought there was little chance that he would reoffend, with the support of friends and family around him in Australia.
48. Mr Thomas de Lucey, a Queensland businessman, has known the applicant through business since 1962 when they were both employed by Armco Steel at Kirrawee. After outlining how his association with the applicant developed over the years, Mr de Lucey wrote in his statement (Exhibit A10), “Peter has displayed fine attributes in business, family, social and sporting avenues and has been well regarded by fellow sportsman [sic], workplace associates, family, employees and customers. Peter has always had a friendly outgoing nature and is helpful to anyone who he has associated with. Peter is not an aggressive or violent man and I have never seen him show any such behaviour. I have read the detail in the convictions and disclosure document and can only wonder how Peter could have placed himself in this position in the first place. I believe that it started from a harmless business decision to hire the companies own modelling staff and the photographing of girls detailing and washing cars to promote his car detailing franchise. This has always been in a practice in the car industry as we know from Formula 1 to Indy car events”.
49. The applicant had expressed his remorse to Mr de Lucey and had asked him to fulfil a caretaker role in the management of his company, which he had agreed to do.
50. He had previously had no idea that the applicant was capable of such acts. At the hearing, Mr de Lucey conceded that his opinion of the applicant had changed as a result of the convictions, but added that his “base character” had always been “pretty good”, and that one does not walk away from people when one can help them.
51. The character evidence shows beyond doubt that the applicant has a good side as a dedicated father, able businessman, and competent reserve officer. He is gregarious, well liked and trusted. At the same time, it is obvious that he misled all those around him, including his wife, about his nefarious activities using other identities. All his friends and family were shocked by the revelations and would not previously have thought him capable of such deeds. It would appear that most of the character witnesses saw only the Queensland court outcomes document (G pp21-22). If they had read the prosecutor’s summary in Exhibit A5, they might have been even more deeply shocked.
52. Brigadier Carey said firmly that he had not revised his opinion of the applicant, but in my view that is simply an overstated form of a commendable unwillingness to abandon one’s friends in their hour of need. The same tendency was apparent in the evidence of Mr Wimberley and Mr de Lucey.
53. The character evidence thus carries within it the necessary implication that alongside his positive qualities, the applicant has an established and proven ability to lead what amount to parallel existences by means requiring sustained dissimulation and deceit. His wife referred to her realisation that on one level he was “normal and nice”, but then “there was this other person”. The “other person” was the serial sex offender.
54. In the past he has not been restrained in that pattern of behaviour by the support of a close family, his responsibilities as a businessman or the trusting acceptance of his many friends. That fact must have a bearing on the weight to be given to the witnesses’ views that the applicant is unlikely to reoffend.
The psychologist’s report
55. The applicant called a clinical and forensic psychologist, Ms Katie Seidler, to give evidence in relation to the psychological assessment of the applicant that she conducted at Villawood on 24 August 2006.
56. The report is summarised above. In cross-examination, she said that his conduct could not be attributed to any lack of understanding of the importance of consent, or of the fact that manipulative behaviour goes to the genuineness of apparent consent. The fact that he had not undergone a rehabilitation program specifically directed to sex offenders did not increase the risk of relapse but was relevant to the management of risk and of relapse prevention.
57. Ms Seidler was asked about this passage in paragraph 44 of the report: “Mr Fortune was initially adamant that his behaviour was not sexually motivated, but he responded well to challenging and acknowledged that he had sexual thoughts about the women he photographed”. She confirmed that he had indeed been adamant at first, saying that his activities were just a way of meeting someone and reflected the fact that he admires women. It was not a sexual experience. Then he conceded that if he thought the woman indicated interest, then he would regard it as an acceptance of sexual activity. Initially he maintained that he would make sexual contact only if the women displayed interest, but eventually conceded that their apparent consent was the result of his manipulation.
58. She thought his perceptions could have been distorted, that he could have looked for the slightest piece of social information to allow him to act. He had convinced himself that the women consented, on the basis of small bits of information.
59. In Ms Seidler’s opinion, his ideas about relapse avoidance were superficial. He simply said he was no longer interested in that kind of thing and had become more spiritually aware. While those states of mind might be useful as inner motivations for him, they had no correlation with increased rehabilitation.
60. As his long history of sexual deceit had created established patterns of behaviour, no-one could know whether or not the applicant would reoffend. It was a matter of properly assessing the risk and inculcating skills that would enable him to avoid reoffending.
61. On the basis of static factors, the applicant would be assessed as a medium to low recidivism risk, but when dynamic factors were taken into account, including the availability of proper intervention and support, he could be assessed as a low risk case. The necessary treatment and intervention could be given by private practitioners. The length of a program would depend on the individual person, but if he were released into the community she thought an appropriate duration would be six to nine months of weekly or fortnightly sessions. The main concern remained his hypersexuality and sexualisation of women, but Ms Seidler considered those to be a more general risk for infidelity and superficial relationships, rather than being specifically related to sexual recidivism. Nevertheless, Mr Fortune had never participated in offence specific counselling and it was important that he should do so.
62. The report noted that the applicant claimed that he could cope adequately with being repatriated to the United Kingdom, but it would necessarily cause considerable hardship to him and his family.
Application of the Law and Findings of Fact
63. As was stated above, the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. Mr Fortune was sentenced to five years imprisonment for rape and other sexually related offences. In his statement of facts and contentions (Exhibit A1) and in his representative’s oral submissions, the applicant conceded the character point.
64. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Fortune’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
65. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
66. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include:
(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence; …
(m) crimes against children:
due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children;
67. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
68. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the crimes committed by the applicant are extremely serious, involving 12 females ranging in age from 15 to 27 at the time of the offences. In sentencing the applicant on 29 November 2004, His Honour Senior Judge Trafford-Walker of the Queensland District Court said:
These offences go back for a number of years. There are in all 12 complainants. Twelve young women who, no doubt, had before them all sorts of dreams as to what they might do with their lives and you were a very clever con-man. You preyed upon their dreams and using that you persuaded them to become involved in photograph shoots, persuaded them to wear clothes so that you were able to physically touch them, assault them, sexually assault them, and assault them on the occasions by inserting your finger in their privates, licking them, oral sex and of recent times, after the amendments to the code, you committed rape on them by inserting your fingers in their privates or your tongue.
I have not been involved or know of a case similar to this but it is not unusual for con-men to use their abilities to take advantage of innocence. In all the circumstances, it is my view that for the offences of rape there is no alternative but periods of imprisonment which must be substantial and for all the offences of rape you are sentenced to each for a period of five years imprisonment.
69. In his statement of facts and contentions, the applicant, accepting that the offences were very serious, said they were not of the worst type because there was no suggestion of violence or the threat of violence and the sentences imposed were well short of the maximum penalty available for these offences with the applicant only serving 21 months, the balance on parole. In addition, some acts of digital and lingual penetration only became classified as rape because of a legislative change in Queensland. In addition, he submitted that in the case of the victim under 16 years, it only involved an offence of “procuring to commit an offence” and there was no evidence of sexual assault against the victim.
70. The offences with which he was charged in 1999 were withdrawn on 27 January 1999 because the complainant refused to proceed. The applicant declares his innocence of those charges and the tribunal must presume accordingly.
71. The bare recital of the offences of which the applicant has been convicted fails to give an accurate picture of his activities, however. For that it is necessary to review all the available evidence, including witness statements and the prosecutor’s overview at the sentencing hearing on 29 November 2004 (part Exhibit R3), the accuracy of which the applicant has admitted. Mr Kessels correctly pointed out that the statements had to be checked against the committal transcript, but he did not suggest that there were any material discrepancies between them, and I found none. Most of the cross-examination at the committal related to the manner in which the police interviews and investigations were carried out rather than to the details of the events themselves. Inevitably, though, the written statements are somewhat more coherent than the oral evidence.
72. In the case of the complainant Rebecca (I will omit all surnames of complainants), the applicant had placed an advertisement in the Gold Coast Bulletin in October or November 1999 for lingerie models and models for television and promotional catalogues. The advertisement purported to be from a company called Girlpower. When Rebecca called the telephone number supplied, the applicant explained that he was doing commercials for Berlei and Lovable lingerie and asked her to come and see him, bringing an evening dress and a bikini. Rebecca said she also wanted to make an appointment for a girlfriend and asked him if she could come with her. He said it would be better if they came separately in case one of them did not get the job and was disappointed.
73. The applicant asked her to meet him at the Mercure Hotel at Broadbeach. There he asked her to fill in an application form with the printed heading “Girlpower” that called for details of her name, address, telephone number, her height, weight, body size, dress size and other personal particulars. While she was completing the form, her poured her a glass of sparkling white wine and told her to drink it, as it would relax her. He topped up the glass several times, such that she became, as she put it, “tipsy”. Both the application form and the Girlpower company were, of course, completely bogus. It was seeing a highly similar advertisement a couple of years later that prompted Rebecca to report her experience to the police.
74. In most other cases, he would approach girls or young women in shopping centres, Brisbane city streets or Queen Street Mall. He would engage them in conversation, starting by complimenting them on their appearance (“You’ve got terrific legs”, for example) and would ask them if they were interested in a career in modelling. He claimed to be a photographer from Sydney who did work for magazines. He told Melita that he forwarded his photographs to a Sydney “broker”, who would decide which aspirants would be offered work. To Melita he claimed he had produced work for Tourism Queensland brochures. If the complainants asked him what kind of modelling work he meant, he might ask them what type they were interested in. If they said they only wanted to do fashion modelling, not the nude or semi-nude type, he might say that fashion work was the type of photography he did, but that if he were to do the other kind, they would be the type of photographs published in Black and White magazine, of which he would sometimes show them copies in a newsagency. Black and White was apparently a publication incorporating photographs of varying degrees of female déshabillé ranging up to the quasi-pornographic.
75. On some occasions he claimed to be from the Salazar Model Agency, another non-existent organisation.
76. He would give a false name, usually Andrew Walker, but also Ross Whitely or Peter Walker. He told Angela that his wife had died nine years previously.
77. Initially he spoke politely to them and maintained an appearance of respectability. The complainants did not, however, consider him attractive as such and would have been unlikely to have anything to do with him but for their belief that he could offer them a break into modelling. They described him variously as a florid, somewhat pot-bellied middle-aged man trying to look sporty, who smelt strongly of perfume, had profuse hair growth in his ears and nostrils and exhaled bad breath. None of them had the slightest interest in any form of intimate contact with him on the basis of his personal attributes.
78. He used the trappings of wealth and success as part of his approach, arriving to collect the victims in a silver BMW or a gold Mercedes-Benz, and entertaining them at elegant lunches. His preparatory work could include gulling hotel staff into assisting with the plan. When Robyn arrived for her rendezvous with him at the Quest Hotel, “the guy behind the counter asked if I was here for the photographic guy”.
79. He led all the complainants to believe that they were potential models. As the prosecutor said, “he played on the dream of many people of being discovered and having a world of opportunity being offered to them”. He implied that they could be another Elle McPherson. The leading fashion models today can become global celebrities at a young age, and the appeal of such a prospect to girls and young women must be strong.
80. The conversation would eventually lead to the applicant persuading the complainants to go with him, or meet him, or both, on later occasions. He would write down their names and contact details in a large black diary that closed with a zipper. When police later executed a search warrant at his house they seized some of his diaries. The 2000 diary had 200 female names and associated telephone numbers in it. The names had been written in pencil and erased, and then over-written with others. The police document examiners then analysed the diaries to attempt to identify as many numbers as they could, but not all could be deciphered as they had been written over a number of times. Police did manage to retrieve a number of names and apparently related numbers and proceeded to interview as many of the young women as they could identify and locate. That eventually led them to the complainants in the case before the court.
81. Quite early in his conversations with the complainants he would introduce a sexual element. A central part of his approach was the claim that the really successful models were sexually aroused during their photographic sessions, thus giving them a suitably photogenic facial expression. Brita recalled “the constant theme of the conversation [being] about me being aroused and being able to show emotions in the photographs to capture the artistic look”. Similarly, Christina related how “The conversation then went on for ages about [how] to look good for a photo. You have to look sexual and turned on”. He would also ask them questions of an intimately personal nature, such as when was the last time they had sexual relations, what positions they liked best, and what aroused them. Christina recalled this as being “quite offensive, graphic, vulgar and personal”, and indeed “really disgusting”. He would repeatedly revert to that theme at later meetings, declaring that the complainant did not look sufficiently aroused and giving her to understand that it was his professional duty to ensure that she became so. He would then proceed to touch, or have oral or lingual contact with, the victims’ breasts, genitalia, buttocks, or any combination of them. He performed digital or lingual penetration on five of the victims. This, he would claim, is what happens all the time in modelling.
82. Nowhere in his evidence in these proceedings did the applicant, or anyone else, claim that there is any such practice or belief in the modelling industry. In the contemporary world, however, it is not altogether surprising that the victims believed him when he said there was. At the committal hearing Melita, who by that time was a photography student, conceded that in nude photography (which she did not do), the photographer might suggest to the model that she think of her partner. Similarly, in other photography, a photographer needing, for example, a picture of someone looking enraged, would suggest that the model think of something that angered her or him. But she did not suggest that touching entered into it.
83. Sometimes the applicant would tell the young women not to tell their parents or friends, but on occasions, he would also use his persuasive powers on the victims’ parents, the more to lead the victim to believe that everything was perfectly professional and above board. He was an accomplished confidence trickster and his tactics worked on parents as well. For example, after he visited Angela’s mother and sister at their home, her mother was entirely convinced that he was legitimate, saying “He has very caring eyes. They are so blue”. Her sister was not taken in, however. While the applicant was talking with their mother, she went through his diary and found a card in it bearing the name Peter X Fortune. She wrote it on a poster in her room, together with his telephone number and car registration number.
84. Sometimes the sexual assaults would precede the actual “photo shoots”. While at Angela’s house, he felt her buttocks, and slid his hand inside her dress and touched her breast, saying, “he was checking to see if my breast was saggy”. He did something similar with Christina, saying he was “trying to work out [her] shape”.
85. As the prosecutor pointed out, in the great bulk of cases, he would touch the complainants without warning and without consent. “And he seems to have a standard first-touch approach where he would have them positioned facing away from him, away from the camera and the first touching occurred without warning – without them even seeing that it’s coming. He would represent to the women that the touching was either to assess their suitability for modelling, assess the need for exercises to improve their figure for modelling, or to excite them so that they had an appropriate expression for the camera” (transcript 29 November 2004, p5).
86. Asked at the hearing how he was able to convince the young women that he was a photographer, he replied that he had always had an interest in photography, so it was not difficult to convince them. His self-assessment on that point seems to have been rather grandiose also. He showed Tania a portfolio of some of the photographs that he had taken, all of which featured girls aged apparently from 15 to 20 years, some of whom were completely nude. Tanya recalled that “The shots didn’t look professional as some of the background showed a fence and grass as if they were taken in the backyard. The poses of the girls looked as if they were unnatural and not comfortable”. The complainants also thought it odd that he used a video camera for the “photo shoots” rather than a still camera. If asked about it he would say that his practice was to extract stills from the video later on. Another insight into his lack of professionalism was that he promised to pay the subjects $250 per hour, but it does not appear that he ever did so. Angela noted that he provided only excuses, although she reminded him about his promise several times.
87. In overcoming the complainants’ defences, he would use a combination of flattery, cajolery, peremptory commands, humiliation, belittling, and displays of anger. He made Belinda do a dance for him wearing a red feather boa, but told her that she looked fat and needed to lose five kilograms. He made the women embarrassed or ashamed about their natural modesty by telling them they were over-reacting, or “touchy”, or unprofessional, or “frigid”, or “being silly”.
88. Mr Kessels submitted that the applicant’s offences were not of the worst kind, as they involved no violence or threat of force. The evidence does not show that he ever explicitly threatened violence. He desisted when unequivocally told to stop, even if only to renew the assault later on. It is also clear, however, that he created an atmosphere in which the victims feared that he might become violent if they did not comply with his wishes. Janine recalled that she was frightened when she was alone with him in a stairwell and was not really listening to what he was saying. “He started to get really angry and started to yell at me.” He told her to raise her top and pull her pants down. She did not want to disobey his demands as she was frightened. At the committal, Robyn said that while he was touching her legs she thought of leaving the room, “but I didn’t know if it was locked, and if I could get out, or what would happen”. When he was digitally penetrating Michele, she felt intimidated and pressured but thought if she told him to stop he might get angry or do something else to her. Subsequently he removed her underpants and began to perform cunnilingus. “I didn’t know what to do”, she said. “I just wanted to get out of there. I just wanted it all to stop. I didn’t tell him to stop at all because I was afraid of what he might do. I didn’t know what to say. I was feeling really disgusted and dirty.” She was in tears and complained that he was hurting her through his digital anal penetration.
89. Similarly, Angela related how he was standing naked in front of her. “I thought that if I said ‘no’ he might come and attack me. I was in the middle of nowhere. Like I was in Hamilton. I didn’t know the area very well. I didn’t know where I would go.” He then digitally penetrated her, causing her pain. She watched with bewilderment when he ejaculated on her leg. At that time, she was aged about 17 and had never even kissed a man. “Throughout this time”, she stated “I thought that if I objected to what he told me to do it would get worse, I mean it could have been worse, he could have violently raped me with his penis”.
90. Tania also felt in fear of her safety as he was moving her legs apart to photograph her pubic region. “I was extremely frightened of him by this time. I was not comfortable. I looked around to see if there was anywhere that I could get away from him. … He then asked me to get changed into something else that he had selected. He said ‘put the nightie on but leave your underwear off’. I went into the bathroom and while I was there I looked for a window to climb out of. I think the window was too small and I decided to go back out into the room. I thought about running out the door but I was half naked and had nowhere to go”. Subsequently, “When he placed his hand on my genitals I froze and was absolutely petrified at what was happening. I started to shake as if I was cold. I wanted to get out of there but had a lot of things going on in my head. I thought that if I did something about it he might hurt me”. At that time, Tania was aged 15 or 16 and had no sexual experience. Tania seems to have been thoroughly traumatised by the assault. When she saw the applicant again in court 10 years later, she broke down and started crying.
91. Again, it was when Rebecca a couple of years after the event saw a newspaper advertisement strikingly similar to the one she had answered that she decided to report the matter. She recalled saying to her boyfriend, “I should’ve went to the police because this is what I was worried about. I got away, but what about other girls” (transcript 19 February 2003, p177).
92. Michele did not tell her parents about her frightening experience, but her mother must have suspected something because she telephoned the June Dally Watkins Modelling Agency to enquire about the applicant and the alleged Salazar Model Agency. The manager told her mother that she “should stay away from this guy because he is bad news and that he had approached a lot of their models and that they had been warned about his guy”. Having partly recovered from the experience, Michele telephoned the applicant and told him what she had learned. He became angry. He said in a hostile voice, “why can’t your mum just stay out of your business. That June Dally Watkins wouldn’t have a clue”.
93. Describing the applicant’s course of criminal sexual conduct as “manipulation” or “duping”, while strictly true, does less than justice to the herpetoid malignancy of the applicant’s behaviour. The humiliation, degradation or terror that he inflicted on those women is now part of their lives forever. It could affect the way they view themselves and others (especially men) and perhaps their future relationships. Some victim impact statements are held on file at the District Court in Brisbane, but the court registry refused to make them available to the tribunal. If there is a legal ground on which the registry could properly disobey a summons issued under the Administrative Appeals Tribunal Act 1975, I do not know what it is and the registry did not suggest one. An inkling of the statements’ contents appears, however, in the prosecutor’s comment that “Some of the victims were put in great fear by what he did and as Your Honour can see from the victim impact statements still carry the scars” (transcript 29 November 2004, p26). In Re Langat and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 93 it appeared that it was common for victims of such crimes to feel humiliation and betrayal. They tended to have problems in forming relationships, in going out alone and in conducting relationships with men. They tended to suffer from nightmares and depression and were more susceptible to the abuse of drugs and alcohol. They could experience fear and apprehension at the prospect that the perpetrator might be released. Langat dealt with a violent rape, but the prosecutor’s comments suggest that some of those consequences might be present in some or all of the applicant’s victims.
94. Mr Kessels pointed out that the sentence was far from the maximum that could have been imposed and that all but 21 months of it was suspended. That is true, but the judge’s main reason for partial suspension was the applicant’s age. His guilty plea was also a factor, but its weight was reduced because the complainants had to give evidence in the committal proceedings.
95. In her statement of facts and contentions (Exhibit R2), the respondent submitted that the protection of the Australian community weighs against the discretion being exercised in the applicant’s favour, considering the nature of his offences and the effect of his conduct on his victims and the community. The offences occurred repetitively over a considerable period of time, were premeditated, and involved manipulating young women to satisfy his desires. Further, it was clear that he gave little thought to the effects of his actions on his victims’ lives. The respondent also noted that the tribunal had, in the past, considered such matters to be very serious (citing Re Langat and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 93).
96. In the list of examples of offences to be treated as very serious, Direction No 21 contains this sentence: “sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence” (paragraph 2.6(d)). All the offences relied on by the respondent are sexual offences. One complainant was aged 15 at the time of the acts in question and another was 15 or 16, and one of those girls was subjected to penetrative acts that would today be classified as rape. The applicant’s statement of facts and contentions correctly pointed out that some penetrative acts only became included within the category of rape as a result of a Criminal Code amendment. A countervailing argument is that if the code had been amended earlier, the applicant would have been charged with rape against five women, not two. At all events the applicant’s criminal history can only be treated as very serious.
97. Next, the tribunal is to consider the risk of recidivism. The applicant submits in his statement of facts and contentions that the risk to the Australian community should be considered low because the applicant has agreed to counselling, arrangements have been put in place and the applicant’s wife has confirmed that she will assist Mr Fortune to receive the appropriate treatment. Barnardo’s would meet the cost of at least five, and up to 10, sessions (Exhibit A12). The applicant said he is truly remorseful for his actions and has stated that he will not re-offend. In her statement of facts and contentions, the respondent submitted that there is a considerable risk of recidivism because the applicant demonstrated a repetitive pattern of criminal conduct over a ten year period, with one offence occurring whilst he was on bail, nor had he demonstrated any genuine remorse or an understanding of the suffering that he caused to his victims.
98. Although he was not previously warned of the possibility of visa cancellation, being arrested and charged with multiple sex offences in 1999 should have had a cautionary effect. It is also possible that a man of his intelligence and experience already knew about removal or deportation following criminal conviction.
99. The applicant’s bail history was highlighted at the sentencing hearing. On 29 August 2001, the applicant was granted conditional bail in relation to a number of the complainants. But less than one month later he committed two assaults in relation to Crystal, while on bail.
100. On 28 November 2002, he was again granted bail, in relation to the offences against Crystal. One of the conditions was that he not travel in any motor vehicle or visit any shopping centre or place frequented by females except in the company of his wife. After his committal for trial he was granted conditional bail, but on 20 November 2003, that condition was removed as a result of an application by him to the Supreme Court. In his affidavit he swore that “It would be unduly onerous to require the continuation of my bail in its current terms”. But on 6 October 2004, while awaiting trial, he approached a 21 year old woman in a shopping centre and initiated a conversation enquiring whether she would be interested in doing modelling work. He gave the woman his card. The conversation ended soon after and the woman reported it to the police. No touching occurred on that occasion and no charges arose out of the event (transcript 29 November 2004, pp6-7). But the continuation of his pattern of behaviour on two occasions while awaiting trial on charges of that very nature is relevant to the risk of recidivism, as is the continuance of the offending conduct over a 10 year period and the fact that he was not deterred by being arrested and charged with sex offences, including rape, in 1999. Even his prescribed concentration of alcohol driving offences are revealing. In June 1981 he was convicted of driving with a blood alcohol content of .09 per cent. He was fined and his licence was suspended. But 18 months later, he was again convicted of that offence, this time with a considerably higher blood alcohol content, .12 per cent. Youthful foolishness was not involved, as he was already aged 40 at the time of the second violation. This unusual record says something about his ability to learn from experience and his willingness to obey the law.
101. While I accept that he is genuinely remorseful about his behaviour on one level, the evidence shows that he still tends to rationalise it and tries to place it in a favourable light. That in his interview with the clinical psychologist he was initially adamant that his behaviour was not sexually motivated was extraordinary and absurd. In that interview he also claimed to be “enamoured” of the female form, seeing himself as a “romantic” who is most attracted to young women. He had offended because he wanted to meet people and because he “admires” women. But there was nothing “romantic” about his behaviour towards the complainants. Nor does a man dupe, degrade, assault or terrorise people he admires. The applicant’s attitudes may reflect what his psychologist termed his inflated and overly positive view of himself, and his feelings of superiority to others. While there is thus some evidence of rehabilitation, it is only partial.
102. The psychologist’s report focused on the sexual aspects of his offending behaviour and mentioned only in passing another aspect of it which seems to me almost as important. That is the applicant’s capacity for long-term, organised, sustained and multi-faceted deceit for criminal purposes, to the extent that he was able to lead what amounted to a double life. The suggested counselling programs, which are seen as having reasonable prospects of success, seem directed mainly to controlling his sexual behaviour. But his continuing ability to deceive himself, and his recent attempts to deceive others, as shown in some of his responses during his psychological assessment, are not positive signs. In my view the risk of recidivism in this case, whether in relation to sexual or other offences, while not high, is nevertheless real.
103. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448).
104. When making the decision to cancel the applicant’s visa, the delegate found it was not a significant factor and that overall he placed little weight on deterrence. The applicant agreed with that in his statement of facts and contentions. The respondent submitted that cancelling his visa would have a significant deterrent effect on other non-citizens who might otherwise engage in similar conduct.
105. At the hearing Mr Kessels submitted that it was possible that there would be some deterrent effects, but again there might not. This was not like immigration fraud, where the deterrent effect was more obvious. The deterrent effect of any decision is indeed difficult to prove in advance, but it cannot be disregarded. Its inclusion in Direction No 21 presumably reflects the proposition that the long-term as well as the short-term effects of a decision need to be taken into account, even if they cannot be measured. Some weight should be given to them in this case.
106. I find that community protection considerations favour affirming the decision under review.
Expectations of the Australian Community
107. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.
108. In his statement of facts and contentions, the applicant submitted that were the Australian public aware of all the facts in this matter, including that the applicant was only convicted of one offence involving a child under 16 and this did not involve an actual assault, arrived here at age 11 and has no connection with the United Kingdom, that they would not expect that he be removed from the country. He stated: “Despite the legal power to cancel the visa even after this extended period, there must be a point at which the Australian community should accept that a person such as the Applicant is so much a part and product of that community that it would be unconscionable not to recognise this and to insist upon his removal from it” (Exhibit A2). The respondent submitted that because of the seriousness of the crimes, the community would expect that Mr Fortune’s visa be cancelled notwithstanding that there may be some compassion that he arrived in Australia at age 11 and has resided here since that time.
109. Mr Kessels argued that the hurdle that has to be overcome in this context is to be found in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 which dealt with the child of Swedish parents resident in Australia. His mother returned to Sweden for a holiday with her first daughter, but remained for some months because she was expecting a baby and did not wish to travel while pregnant. The appellant was born in Sweden but returned to Australia with his mother. He had never learned the Swedish language or visited Sweden. In the reasons of the majority of the members of the Full Court of the Federal Court this passage appears:
The appellant has indeed behaved badly but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions (at para 29).
110. Mr Kessels pointed out that in Re Say and Minister for Minister for Immigration and Multicultural Affairs [2006] AATA 454 the tribunal had endorsed those comments and referred with approval to an Ombudsman’s report criticising the use of s 501 in the case of absorbed persons. The applicant in that case was a Cambodian aged 28 who had lived in Australia for approximately 20 years. He had only basic knowledge of the Khmer language.
111. Also relied on were certain extracts from a Senate Committee Report on post World War II child migration (Exhibit A9) that recommended the conferral of automatic citizenship on all former child migrants and called for a Commonwealth apology “acknowledging that its predecessors’ promotion of the Child Migration Schemes resulted in the removal of so many British and Maltese children to Australia, was wrong” (pp xxvi, xxviii). In reaching its conclusions the Committee pointed out that some former child migrants were under the impression that they were already Australian citizens (p172). It was conceded that the applicant had never been under that impression, and also that the recommendations had not been accepted by the government. It may also be noted that the recommended apology, referring to the “removal” of children, implies that they were coercively taken. That was not true in the present case. Mr Fortune told the psychologist that when he was about 10, he was asked to consider migrating to either Australia or Canada to begin a new life. On his next holiday visit to his family, he discussed the idea with them and told his mother that he was very keen to move to Australia. His mother agreed to allow him to do so but told him that she would send for him on his 16th birthday, which she did. Mr Fortune declined the offer, however.
112. On a point of general background, there was nothing in the evidence to explain why the applicant did not apply for Australian citizenship in the decades when it would have been easy for him to obtain it. In the years before dual citizenship became available, it was not uncommon for migrants from the United Kingdom intentionally to retain their British citizenship, whether because they thought it was more prestigious, or more convenient when travelling in Europe or for other reasons. One can be fairly confident that if the applicant had had a good reason for not seeking citizenship, he would have mentioned it early in the present proceedings. The point has no direct bearing on the application of Direction No 21 however.
113. Nystrom (supra) was the subject of an appeal and is currently awaiting decision in the High Court. The facts were also materially different. The appellant in Nystrom had spent only a few months of his life in Sweden and could not speak the language at all. In Re Say the applicant had only a basic knowledge of Khmer, and removal to Cambodia was a very different prospect from removal to the United Kingdom. In the present case language is of course not an issue, and indeed the applicant still speaks with a slight English accent.
114. Mr Kessels submitted that while the Australian community might not feel compassion for Mr Fortune, at some point the community must take responsibility for those who have spent so long here. “We bought him here as an orphan, where he was abused at Barnardo’s”, he said. “It would be unfair to remove him now. Australia had to take some responsibility for what he has become.”
115. The applicant was not, however, an orphan when he came to Australia. Nor was he “brought” here, if that is meant to imply that he had no say in the matter or was transported against his will. He was keen to come here and as an intelligent boy he knew what he wanted. His mother had promised to send for him on his 16th birthday and did so, but he refused to return to England. Though he was abused at Barnardo’s, one could not overlook the possibility that he might have been abused if he had remained at Barnardo’s in England. The argument that Australia must take some responsibility for what he has become appears to reflect the determinist theory that the community is to blame for the wrong-doings of criminals. That view no longer commands general support in social policy circles, especially since the emergence of criminal choice theory (see Re Toia and Minister for Immigration and Multicultural Affairs [2004] AATA 1142, para [42]).
116. Nevertheless, the fact that the applicant has lived in Australia continuously for 52 years is a very important fact. I regard it as the strongest single point in the applicant’s case.
117. As against that, and in addition to his earlier submissions, Mr Cox pointed out that Direction No 21, paragraph 2.12 expressly states that visa cancellation “may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia”. The nature of the offences was thus an explicit and important part of the Direction in relation to community expectations. The nature and circumstances of the offences in this case were such that they would override feeling of compassion for Mr Fortune’s position.
118. That submission is correct in my view. Community expectations would on balance favour visa cancellation in this case.
Best Interests of the Child
119. There is no child or children whose interests must be considered under this heading. The applicant has two adult sons and their interests will be discussed below as another consideration.
Other Considerations
120. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and any compassionate circumstances.
121. The tribunal was also asked by Mr Kessels to take into account that the applicant has been completely absorbed into the Australia community, having arrived here at the age of 11. He is now 63 and has lived in Australia for 52 years, during which time he married, raised two children, owned and operated his own business, has established a network of family and friends and served in the Australian armed forces. He has no connection with England and returning there would cause him suffering and hardship. He is willing to undergo appropriate psychological counselling. But to date, as was noted above, rehabilitation has been only partial.
122. The applicant’s wife, mother-in-law and two adult sons all reside in Australia. If the applicant were returned to the United Kingdom, they would suffer emotional hardship. The respondent submits, however, that there is no evidence that his wife could not live in the United Kingdom or that his sons could not visit him.
123. If his visas were cancelled the applicant would undoubtedly suffer some hardship. He would have to sell his business, which is currently being operated on a caretaker basis. He would be separated, at least much of the time, from his family.
124. On the other hand, being required to live in modern Britain cannot be described as a hardship evoking compassion. Many thousands of Australians prefer to live there. In addition, the applicant is intelligent, resourceful and energetic, a natural survivor. By all accounts he makes friends easily. The psychologist described him as “charismatic and engaging”. He told his psychologist that he would cope adequately with moving to the United Kingdom and said nothing to the contrary in his written or oral evidence.
125. The applicant’s adult sons would undoubtedly prefer to see their father remain in Australia, but they are grown men, established in life and in no way dependent on him. The main burden of hardship would fall on the applicant’s long-suffering wife. She stated that her husband has been an essential part of her being able to live on her present property. He has always contributed to every day household expenses and has been able to perform a range of necessary repair and maintenance tasks. This is important to her, as a woman on her own in her position is taken advantage of by tradesmen, and as she is living on superannuation that is a significant issue for her. She has no interest in moving to England and believes it would aggravate her problems with arthritis and depression. Being afraid of flying, she would find it difficult even to visit that country.
126. On the other hand, she has had to live without her husband for several years, and although she says that her house is now in disrepair as a result, her elder son has moved back to the property to live with her and could presumably help to rectify matters. Many people who suffer from a fear of flying are able to obtain medication that helps them to cope with long flights. In that event Mrs Fortune might be able to spend extended periods of time with the applicant during the northern summer months. In today’s globalised economy, many family members are separated from one another by long distances for career or marriage reasons and the hardships of separation can be to some extent alleviated by modern communications, including the internet and webcam. None of those considerations add up to an ideal situation for her, however, and most people would feel compassion for her predicament.
127. In the light of all the evidence, the case law and Direction No 21, however, I conclude that on balance the factors of community protection and expectations in this case outweigh the other considerations. The decision under review should be affirmed.
I certify that the 127 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 18 and 19 September 2006
Date of Decision 27 September 2006
Solicitor for the Applicant Mr R Kessels, Kessels Goddard & Ajuria
Solicitor for the Respondent Mr A Cox, Phillips Fox Solicitors
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