King and Minister for Foreign Affairs

[2006] AATA 636

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 636

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/326

GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALD KING

Applicant

And MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date19 July 2006

PlaceWallsend, New South Wales

Decision The decision under review is affirmed.

[SGD] Ms G Ettinger
  Senior Member

CATCHWORDS

Passport cancellation and decision to refuse to reissue – Minister suspected on reasonable grounds that the Applicant would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth, being child sex tourism offences – Applicant’s past conduct taken into account - decision affirmed.

Australian Passports Act 2005ss  14(1)(a)(v),  22(2)(d), 18(1)(a)

Australian Passports Determination 2005 Part 3.3, Schedule 1

R v Kok Cheng Tan [2001] WASC 275

Edelsten v Health Insurance Commission (1990) 93 ALR 711

REASONS FOR DECISION

19 July 2006 Ms G Ettinger, Senior Member     

1. Mr Ronald King has appealed to this Tribunal against the decision of the Minister for Foreign Affairs made on 12 August 2005 to cancel his passport and refuse to re-issue him a passport. The Minister, pursuant to section 14(1)(a)(v) of the Australian Passports Act 2005, “suspected on reasonable grounds” that Mr King, if he held a valid Australian passport, would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth contrary to the Crimes Act 1914,the offence being child sex tourism offences (T7).

2.      Mr King has had one conviction for an assault upon a child in 1990, served periodic detention for that offence, and has been before the Courts on several other matters. Most recently, on his return from the Philippines in 2004, he pleaded guilty to the importation of child pornography. He had been charged with child sex tourism offences which were subsequently withdrawn due to the fact the Crown was unable to satisfactorily prove the ages of the young girls involved.

ISSUE BEFORE THE TRIBUNAL

3.      I had to decide whether the correct or preferable decision would be to affirm, vary or set aside the decision of the Minister for Foreign Affairs to cancel Mr King’s Australian passport, and refuse to reissue a passport to him.

LEGISLATIVE ENVIRONMENT

4.      The relevant legislation is the Australian Passports Act 2005 (“the Act”), in particular sections 12,  14(1)(a)(v),  18(1)(a) and (b) and  22(2)(d), which follow:

12  Reasons relating to Australian law enforcement matters

(1)       If a competent authority believes on reasonable grounds that:

(a)       a person is the subject of an arrest warrant issued in Australia   in respect of an indictable offence against a law of the   Commonwealth, a State or Territory; or

(b)       a person (including a person who is in prison) is prevented   from travelling internationally by force of:

(i)        an order of a court of the Commonwealth, a State or   Territory; or

(ii)       a condition of parole, or of a recognisance, surety, bail   bond or licence for early release from prison, granted   under a law of the Commonwealth, a State or Territory;   or

(iii)      a law of the Commonwealth, or an order or other   direction (however described) under a law of the   Commonwealth;

the competent authority may make a refusal/cancellation request in                   relation to the person.

Note:   See also Subdivision D.

(2)       If a competent authority makes a request under subsection (1), the                    Minister must not issue an Australian passport to the person.

(3)       In this section:

competent authority, in relation to a circumstance mentioned in   paragraph (1)(a) or (b), means:

(a)       a person who has responsibility for, or powers, functions or   duties in relation to, that circumstance under a law of the   Commonwealth, a State or Territory (other than a person who   is specified in a Minister’s determination as not being a   competent authority in relation to the circumstance); or

(b)       a person specified in a Minister’s determination as a   competent authority in relation to the circumstance.

prevented from travelling internationally includes:

(a)       required to remain in Australia; and

(b)       required to surrender an Australian passport; and

(c)       not permitted to apply for an Australian passport; and

(d)       not permitted to obtain an Australian passport.

…

14  Reasons relating to potential for harmful conduct

(1)       If a competent authority suspects on reasonable grounds that:

(a)       if an Australian passport were issued to a person, the person   would be likely to engage in conduct that:

…

(v)       might constitute an indictable offence against a law of   the Commonwealth, being an offence specified in a   Minister’s determination; and

(b)       the person should be refused an Australian passport in order   to prevent the person from engaging in the conduct;

the competent authority may make a refusal/cancellation request in                   relation to the person.

…

(2)       If a competent authority makes a request under subsection (1), the                    Minister may refuse to issue the person an Australian passport.

(3)       In this section:

competent authority:

(a)       in relation to a circumstance mentioned in subsection (1) that   relates to Australia, means:

(i)        a person who has responsibility for, or powers, duties   or functions in relation to, the circumstance under a law   of the Commonwealth, a State or Territory (other than a   person who is specified in a Minister’s determination as   not being a competent authority in relation to the   circumstance); or

(ii)       a person specified in a Minister’s determination as a   competent authority in relation to the circumstance; or

(b)       in relation to a circumstance mentioned in subsection (1) that   relates to a foreign country, means:

(i)        an officer within the meaning of paragraph (a), (b) or (c)   of the definition of officer in subsection 6(1); or

(ii)       an employee of the Commonwealth who is specified in   a Minister’s determination as a competent authority in   relation to the circumstance; or

(iii)      an agency (within the meaning of the Financial   Management and Accountability Act 1997) that is   specified in a Minister’s determination as a competent   authority in relation to the circumstance.

…

18  Refusal/cancellation requests

(1)       For the purposes of this Act, a refusal/cancellation request is a   request made to the Minister under subsection 12(1), 13(1), 14(1) or                    16(1) by a competent authority, being a request that the Minister do               either or both of the following:

(a)       refuse to issue an Australian passport to a person;

(b)       cancel an Australian passport or travel‑related document that   has been issued to a person.

(2)       A competent authority may make a refusal/cancellation request in   relation to a person:

(a)       whether or not the person has applied for an Australian   passport; and

(b)       whether or not an Australian travel document has been issued   to the person; and

(c)       whether or not the person is an Australian citizen.

(3)       To avoid doubt, a competent authority may suspect on reasonable   grounds that circumstances in subsection 14(1) apply in relation to a                    person, even if the competent authority knows that the person has   already been issued with an Australian passport.

…

22  When an Australian travel document may be cancelled

(1)       The Minister may cancel an Australian travel document.

(2)       Without limiting subsection (1), the Minister may cancel an Australian                  travel document that has been issued to a person if:

…

(d)       a competent authority makes a refusal/cancellation request in   relation to the person; or

(e)       if the document is an Australian passport—the Minister   becomes aware of a circumstance that would have required or   permitted the Minister to refuse to issue an Australian passport   to the person because of section 8, 11 or 17, had the Minister   been aware of the circumstance immediately before the   document was issued; or

(f)        if the document is a travel‑related document—the Minister   becomes aware of a circumstance that would have required   the Minister to refuse to issue a travel‑related document to the   person:

(i)        because of section 10; or

(ii)       because a Minister’s determination made for the   purposes of subsection 9(1) in relation to that kind of   travel‑related document no longer applies; or

(g)circumstances specified in a Minister’s determination exist.”

EVIDENCE

5.      I had before me:

· Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-Documents”), (Exhibit R1);

·     A statement of Mr King dated 1 February 2006, (Exhibit A1); and

·     An affidavit of Mr A McGilvray, Federal Agent with the Australian Federal Police and an investigator attached to the AFP Transnational Sexual Exploitation and Trafficking Team, dated 19 May 2006 with annexures (Exhibit R2). 

6.      Mr King and his fiancee Ms J McGuire, gave oral evidence in person, and Mr McGilvray gave evidence by telephone link. The Tribunal is indebted to the Chamber Registrar at Wallsend Court, and personnel, including Auscript, for facilitating the taking of telephone evidence in a venue not specifically set up for the process.

CONSIDERATION OF THE ISSUES

7. I have noted that a request, (T5), by the Commissioner of Australian Federal Police, (“the AFP”), a competent authority pursuant to sections 12, and 22(2)(d) of the Act, was made of the Minister for Foreign Affairs on 12 August 2005, that he cancel Mr King’s passport and refuse to reissue a subsequent passport to Mr King.

8.      The document T5, now before the Tribunal, detailed the AFP’s grounds for the request, and relied on a history of Mr King’s activities known to it. The document was tendered with deletions, and was disputed by the Applicant’s representative, Mr B Hansen. I noted the considerable discussion between the parties regarding the comparison between T5, the request by the AFP to the Minister for cancellation of Mr King’s passport, and document AM2 which forms part of Exhibit R2, AM2 being Mr King’s Criminal History as produced by the NSW Police.  Both documents deal with Mr King’s criminal history. I admitted T5 into evidence as tendered, and I have given certain weight to its contents in coming to a decision.

9. As a result of the request by the AFP, the Minister made a decision on 12 August 2005 that Mr King’s passport be cancelled, (section 14(1)(a)(v) of the Act), and made a decision to refuse to issue a subsequent passport to Mr King (section 18(1)(a) and 22(2)(d) of the Act). The decision was conveyed to Mr King in a letter dated 7 September 2005 from the Assistant Secretary, Passports Branch (T7). Mr King appealed to this Tribunal on 29 September 2005 (T1).

THE APPLICANT’S SUBMISSIONS

10.     Mr King’s case is essentially that:

·     Irrelevant matters were taken into account in cancelling his passport.

·     He has only had one conviction in relation to sexual assault of a child which was in 1990, and that, not only was it a long time ago, but that he has served the nine months periodic detention which was the sentence for that conviction.

·     He has explanations for the other events which have occurred, and told me that none have involved under-age persons. He submitted that accordingly those other events have no impact upon his status to hold a passport, and that there was no reason to suspect he would in future engage in activities involving under-age persons.

·     Mr Hansen submitted that Mr King’s evidence that he travelled to the Philippines to form relationships, provided no reason to suspect he had the intention of forming relationships with under-age females. He submitted that Mr King was entitled to the presumption of not having an intention to engage himself with under-age females.

·     The charges made against him in 2004 were not proceeded with due to lack of evidence. He says that he only pleaded guilty in 2004, on the advice of his counsel, to importation of one roll of film. He said in his statement at T1, in reference to the roll of film “which only contained about six pleasure photo”s (sic) of my holiday in the Philippines. It was unknown to me I was doing anything illegal. I didn’t know it was a crime to enjoy your holiday…”

·     He is engaged to be married to Ms J McGuire who is pregnant with his child (birth anticipated in September 2006), and both wish to be married in the Philippines, Ms McGuire’s country of birth. Further they wish to travel to Holland, Canada, the USA and the Philippines, where Ms McGuire has family. Mr Hansen also submitted that Mr King’s relationship with Ms McGuire was in its infancy at the time of the 2004 incidents, but that it had progressed since then, and that he was vulnerable at that time. He had been seeking sex, but not with minors.

·     Mr King does not hold an air ticket, but it is not a secret that he has expressed a desire to travel to Europe, Canada and elsewhere.

·     Mr Hansen submitted on behalf of Mr King that he is entitled to a presumption of innocence. He submitted that nothing had been put before the Tribunal regarding any reasonable likelihood that he would reoffend.

THE RESPONDENT’S SUBMISSIONS

12.       Mr Kennett drew my attention to the definition of “Nature of a Passport” at paragraph [77-200] of Halsbury’s Laws of Australia. He submitted a passport was issued to a citizen as proof of identity for foreign countries, and acted as a request to those countries for protection of the holder. The passport was a way of associating the bearer with Australia and its Government, he submitted.  The “suspicion” referred to in section 14 of the Act was in connection with undesirable conduct, and reflected on Australia, he submitted. Mr Kennett emphasized the matter before the Tribunal was not by way of retrial of Mr King, and not determined by criminal standards, and urged upon me to take into account what was relevant to my decision making, including Mr King’s past conduct. He submitted there was a real likelihood of Mr King offending in the future.

13. Mr Kennett agreed with the Applicant that there was a general presumption that an Australian citizen was able to travel, and that ordinarily this would not be denied, submitting however that the Act provided a discretion to the Minister to cancel, and to refuse to reissue passports. He submitted that the Minister had agreed with the request of a competent authority which in this case was the AFP, in suspecting on reasonable grounds that Mr King would be likely to engage in child sex tourism offences in the Philippines. He submitted that no particular proof was necessary.

14.       Mr Kennett agreed with the Applicant that his conviction in 1990 had been a considerable time ago, but that I was entitled to give weight to it, nevertheless.  He submitted that the reason the charges regarding sex with the two young girls, photographs of whom were seized when Mr King arrived back in Sydney in 2004, were not proceeded with because the Crown had been unable to establish the ages of the girls, and unable to locate them due to the local conditions in the Philippines. He said that nevertheless, the background to the contact with the girls, gave rise to a reasonable suspicion which could not be dismissed. Mr Kennett referred to the material which supported it, and to Mr King’s arrest in connection with those girls in the Philippines in June 2004. 

15.       Mr Kennett submitted that Mr King’s frequent travel to the Philippines, being eight times between 2002 and 2004 added to the base for the reasonable suspicion regarding Mr King’s activities.

16.       As to Ms McGuire’s evidence, Mr Kennett submitted that because she told the Tribunal that Mr King was a good man did not bear weight because this is not a matter of the character test. He noted further that Ms McGuire gave no evidence regarding Mr King’s activities in the Philippines. He also submitted that the evidence was that Ms McGuire had only been in the Philippines on one occasion out of the eight Mr King had travelled there between 2002 and 2004.

DISCUSSION AND CONCLUSIONS

17.       My task in assessing whether I, standing in the shoes of the Minister, suspect that there are reasonable grounds that if an Australian passport were issued to Mr King he would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth, being child sex tourism offences contrary to the Crimes Act 1914 (section 14(1)(a)(v) of the Australian Passports Act 2005), is to take into account the legislation and the evidence before me. The decision I make must be the correct or preferable decision in the circumstances.

18.       I am mindful in making the decision that Mr King is not on trial for past actions, but rather that I must make a decision on the likelihood of his conduct in the future.

19.       I am mindful that the Applicant’s case is based on the fact he has only has one conviction for assault of a minor, and that the event took place a considerable time ago in 1990, and that he served nine months periodic detention, a sentence, Mr King’s representative submitted, which indicated the severity of the matter may not have been held to be grave. 

20.       I have noted by way of background that Mr King is 56 years old, having been born on 19 February 1950, and that he has never married; he now has a stated intention of marrying Ms McGuire. I have noted from the evidence at T5, and Exhibit R2-AM2, that there have been several matters which have brought Mr King to court over the years.

21.       In 1980, Mr King was charged with an offence recorded as “assault female” which appears not to have proceeded. Mr King told me that he had no recollection of the reasons why.

22.       In 1982, Mr King was convicted at the Wallsend Court of Petty Sessions for  the charge of assault and malicious injury. He was fined, ordered to pay compensation, and put on a two year good behaviour bond. He said that this had been a matter of “road rage”, and there had been no under-age females, and no sexual assault involved.

23.       In 1990 Mr King pleaded guilty at the Newcastle District Court to a charge of indecent assault upon an 11 year old girl. He served nine months periodic detention.

24.       In July 2000, an Apprehended Violence Order was applied for, and granted against Mr King. He explained that this had been as a result of a break-up of a de facto relationship. He emphasised that there had been no under-age females and no sexual assault involved.

25.       I have noted from the evidence that Mr King has travelled to the Philippines frequently, four times in 2002, twice in 2003, and twice in 2004 (Exhibit R2-AM3). On his most recent trip, Mr King departed Sydney on 5 June 2004, bound for the Philippines. It appears from T5 that on 11 June 2005, a complaint was made to the Philippine National Police (the “PNP”) with regard to two young missing Filipina girls. Mr King was arrested on that day, and film in his camera, developed, yielding what was said to have been images of those young girls in sexually explicit poses, and with Mr King. Mr King was charged by the PNP for violations against the Violation of the Republic Act Number 7610, titled the Special Protection of Children against Child Abuse, Exploitation and Discrimination Act, and held in custody.  He was released on 17 June 2004. He returned to Australia on 27 June 2004.

26.       On his return Mr King was subject of a search by Customs officers at the airport who seized film which was found to depict images of young girls engaged in sex acts with Mr King. After a search warrant was executed at Mr King’s residence on 9 July 2004, he was charged with various offences, including sexual intercourse with a child outside Australia under 16, child pornography and other matters. Several of the charges, including the sex tourism offences were withdrawn due to evidentiary difficulties. When the matter proceeded on 2 May 2005, Mr King pleaded guilty to the importation of child pornography. On 15 July 2005, Mr King was sentenced to 12 months and six days in custody, the sentence being equivalent to time already spent in custody. He was released and surrendered his passport subject to bail conditions in connection with the ongoing charge of child pornography.

27.       On 2 August 2005, Mr King was before Downing Centre Local Court where the charges of possession of child pornography were withdrawn. Mr King’s passport which had been surrendered was returned to him, and subsequently cancelled on 12 August 2005.

28.       Mr King said, in relation to the allegations of sex with minors, that he did not ask the girls their ages, and assumed they were over the age of 18. At another stage during the hearing when Mr King told me that he likes to travel, and that he has travelled to the Philippines in order to find a suitable partner, and to engage in sex, Mr King contradicted his earlier evidence in that he told me that he always asks the ages of young women with whom he engages in sex. 

29.       I was concerned that Mr King was not truthful, because I noted a contradiction when comparing the two statements Mr King made at the Tribunal regarding his practices in regard to ascertaining the ages of young women with whom he has sex, and a further contradiction in the statement he made to the Customs Officer at Sydney Airport on 27 June 2004. The Customs officer who interviewed Mr King on that day recorded the following exchange which Mr King did not dispute:

Officer: “Did you take these photos recently in the Philippines?” 
Mr King: “Yes”
Officer: “Are there any photos of girls under age on these films?”

Mr King; “I don’t know, it is so hard they don’t tell us how old they are.”

(Exhibit R2/AM5)

30.       Mr King denied being in possession of an airline ticket, either currently, at 12 August 2005 or since, but gave evidence that he would like to travel to the Philippines and elsewhere internationally.  I have not made any decision regarding whether Mr King held, or is the holder of an airline ticket to the Philippines, although I am mindful that there is a Case Note entry of the AFP at Exhibit R2-AM8 which is in evidence, and is a business record, in regard to a telephone conversation on 21 July 2005 with a travel agent (Philippine Holidays), who from that record appears to have provided an airline ticket to Mr King.

31.       In reply to questioning regarding whether he had a predilection for young girls, Mr King said that he did not, but that Asian people looked young, and that they were seeking partners so that they could go abroad.  However, in that connection I was mindful that Mr King stated at T1 in reference to the film seized by the Customs officers, as follows: “… only contained about six pleasure photo”s (sic) of my holiday in the Philippines. It was unknown to me I was doing anything illegal. I didn’t know it was a crime to enjoy your holiday…”.   I gained the impression that Mr King did not accept that there was any problem with having sex with young girls or taking photographs of them in sexually explicit poses.

32.       Ms McGuire, Mr King’s fiancee gave oral evidence, telling me that she had been in Australia for 11 years, and that she had been married and divorced. She said that she has two young sons, and had been in a relationship with Mr King for three years. She said that she knew he had been in gaol, and had visited him fortnightly at that time. Ms McGuire said that she trusted the Applicant and would leave her sons with him. She said that he was a good man, of good character, and kind to her and her children.  She said that she wanted to marry him, and wanted to do so in the Philippines. Ms McGuire told me that she was in the Philippines in 2004 during the incidents when Mr King was arrested after being found with the two young girls. In considering Ms McGuire’s evidence, I was mindful that as submitted by the Respondent, the test here is not whether Mr King is of good character.

33.       I was also mindful of certain inconsistencies in the evidence concerning Mr King’s relationship with Ms McGuire in that notwithstanding his evidence that he had been in a relationship with her for some two to three years, (commencing in approximately 2003), his counsel submitted that Mr King’s relationship with Ms McGuire was in its infancy in 2004. Mr Hansen submitted that at the time of the arrest in the Philippines in 2004,  Mr King was vulnerable, and he had proceeded with the young girls believing they were of age.  I have already made comment in the paragraphs above regarding my concerns with Mr King’s truthfulness in regard to the ages of the young girls with whom he engaged in sexual activity.

34.       Mr A McGilvray, a Federal Agent with the Australian Federal Police, gave oral evidence by telephone link. His statement which had a number of annexures which have been referred to above, was Exhibit R2 before the Tribunal. He referred to the photographs in which the young girls in the Philippines in 2004 had been depicted with Mr King in sexual poses, and asserted that in his opinion they looked under 16 years of age. However, I noted that Mr McGilvray has no training which would enable him to make more than a guess, and I gave little weight to that evidence. I accepted however from the Filipino records in the annexures to Mr McGilvray’s statement, that the two girls involved were young.

35. In coming to a decision, and considering the evidence before me, and the legislation, I was satisfied that the words of section 14 are quite clear in English useage. Nevertheless, I have considered the dictionary definition of the words used in section 14(1)(a)(v), being “suspects on reasonable grounds”, and the Explanatory Memorandum to the Australian Passports Bill 2004, and case law in which the phrase has been used. 

36.       To “suspect” is defined in The Shorter Oxford English Dictionary as “to imagine something evil, wrong, undesirable in (a person or thing) on slight or no evidence; to imagine or fancy to be guilty or faulty, with insufficient proof or knowledge….”.  

37.       “Reasonable”  is defined as “endowed with reason … having sound judgement … not asking for too much …agreeable to reason; not irrational absurd or ridiculous ..”.

38. I am mindful that if I suspect on reasonable grounds that certain things may occur such as the likelihood of Mr King engaging in harmful conduct pursuant to section 14(1)(a)(v) of the Act, then I must be agreeable to reason, and not absurd or irrational.

39.       In considering the Explanatory Memorandum in relation to cancellation of a passport, which indicates the intentions of the legislature and can only act as a guide to interpreting the legislation, I have noted the discussion in relation to clause 14 of the Bill. There is there reference to the predecessor to the present Act which was the Passports Act 1938 (“the 1938 Act”), in particular to the extension of the previous section 7E of the 1938 Act by section 14 of the (2005) Act.

40.       Clause 14 of the Explanatory Memorandum was inserted to allow the Minister to refuse to issue an Australian passport to a person if the Minister receives a request from a competent authority which suspects on reasonable grounds that “(a) the person is likely to engage in conduct specified in the provision; and (b) the person should be refused an Australian passport in order to prevent them from engaging in that conduct.”  Paragraph 32 of the Explanatory Memorandum explains that this provision was inserted to clarify the policy underpinning section 7E of the 1938 Act. Sections 14(1)(a)(i) – (iii) mirror the conduct in the 1938 Act, and there is an addition of sections 14(1)(a) (iv) and (v), the latter subsection being the relevant one for this matter, and one which, amongst other offences, includes child sex tourism offences pursuant to the Crimes Act 1914.

41. In relation to section 14(1)(a)(v), the reference to the Minister suspecting on reasonable grounds that if a passport were issued, the person would be likely to engage in harmful conduct is dealt with in paragraph 50 of the Explanatory Memorandum where it is said “likely to engage” is based on the test in section 7E of the 1938 Act and “is retained to ensure existing law and practice is maintained… The expression is used to ensure that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct.”  Once again in clause 22(1) which provides for a general discretion to cancel Australian travel documents, a reference is made to the 1938 Act, that is to section 8(1) of that Act.

42.       “Engage in conduct”  has been defined in the Explanatory Memorandum as having the same meaning as in section 4.1(2) of the Criminal Code, namely do an act or omit to perform an act.

43.       I have also referred to case law in which the concept of reasonable suspicion is considered.  I  have considered the case of R v Kok Cheng Tan [2001] WASC 275 a matter in which the AFP executed searches without having obtained certain warrants. The facts can be distinguished; however McClure J has considered the concept of reasonable suspicion in paragraphs 29 and 30 of the judgment. I have found them of assistance in regard to the decision which I have to make, and accordingly have reproduced those paragraphs below.

“[29]  The High Court considered this matter in George v Rockett (1990) 170 CLR 104 at 115-116. The Court said:

‘Suspicion, as Lord Devlin said in Hussein v Chong Fook Kam, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for  the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees … Kitto J said (at 303):

‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence as Chambers dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. A notion which ‘reason to suspect’ expresses in subs(4) is, I think of something which in all the circumstances would create in the mind of a reasonable person … an actual apprehension or fear that the situation … is in actual fact that which the subsection describes …’

[30] Agent T… in his evidence and by his conduct demonstrated that he had more than a mere idle wondering as to whether or not narcotic goods were in Room … .. the individual factors relied on by agent T considered in isolation, do not of themselves constitute reasonable grounds to suspect that Messrs T and W were carrying drugs. However, when considered together they comprise reasonable grounds for agent T’s suspicion.”

45.       In Edelsten v Health Insurance Commission (1990) 93 ALR 711 Dr Edelsten was referred for investigation in regard to the rendering of medical services, including claims for Medicare benefits for services said by patients not to have been rendered. The judgement is concerned with procedural fairness but also with the interpretation of the concept of “reasonable grounds to suspect that a practitioner …may have rendered excessive services”.  Jenkinson J who dealt with the phrase “reasonable grounds to suspect”, stated that this did not involve the occurrence of any event or other circumstances, but only the possibility that an event of a particular description had occurred. He added: “No doubt the clause should be construed as to exclude a possibility which as a very low probability, of a kind sometimes described as remote or fanciful or merely theoretical.”

46.       In coming to a decision, I have taken into account all the evidence before me.  I noted in particular:

·     Mr King’s conviction for indecent assault upon an 11 year old girl in 1990;

·     His attitude of disregard for the age of young girls with whom he has sex, as expressed at the Tribunal; and

·     The inconsistencies in his evidence in relation to the ages of young girls in the Philippines with whom he has engaged in sexual activities. The latter has, as noted above, impacted on his credit.

·     Mr King’s activities for which he was arrested in the Philippines in 2004.

47.       I have considered the discussions of reasonable suspicion in the various cases I have studied. I have only referred here to  R v Kok Cheng Tan  and Edelsten v Health Insurance Commission, noting in particular that McClure J commented that agent T in R v Kok Cheng Tan, by his evidence, and by his conduct demonstrated that he had more than a mere idle wondering as to whether or not narcotic goods were in Room... . His Honour found that the individual factors relied on by agent T considered in isolation, did not of themselves constitute reasonable grounds to suspect that Messrs T and W were carrying drugs. However, when considered together they comprised reasonable grounds for agent T’s suspicion.  

48.       The facts and history speak clearly in Mr King’s case. There is a factual basis for the reasonable suspicion that he is likely to commit further offences against under-age girls in the future. I find that there is nothing remote, fanciful or merely theoretical about such suspicion.

49.       Accordingly I have come to the conclusion as the Minister has done, that I suspect on reasonable grounds that Mr King would be likely to engage in conduct that might constitute an indictable offence against a law of the Commonwealth contrary to the Crimes Act 1914, the offence being child tourism offences if he has his passport and is free to travel. Therefore I find that the correct or preferable decision is to affirm the decision of the Minister to cancel Mr King’s passport and refuse any renewal.

DECISION

50.       The decision under review is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G. Ettinger, Senior Member:

Signed:   

Associate – Mr A Garcia

Date of Hearing  25 May 2006

Date of Decision  19 July 2006
Solicitor for the Applicant               Mr B. Hansen

Counsel for the Respondent         Mr G. Kennett