Massey and Minister for Foreign Affairs
[2010] AATA 290
•22 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5065
GENERAL ADMINISTRATIVE DIVISION ) Re Dale Massey Applicant
And
Minister for Foreign Affairs
Respondent
DECISION
Tribunal The Hon Robert Nicholson, Deputy President Date22 April 2010
PlacePerth
Decision 1. The decision by the respondent on 9 October 2008 to cancel the applicant’s Australian passport be set aside.
2. In substitution therefor, the Tribunal decides that the applicant’s Australian passport should not be cancelled.
....(sgd) The Hon Robert Nicholson....
Deputy President
CATCHWORDS
PASSPORT – cancellation – application for review – whether reasonable grounds for suspecting that applicant was likely to engage in proscribed sexual conduct if passport was not cancelled
Legislation
Australian Passports Act 2005 (Cth) ss14(1), 22(2)(d), 48, 50(1)
Australian Passports (Transitionals and Consequentials) Act 2005
Australian Passports Determination 2005
Crimes Act 1914 (Cth) Part IIIA, ss50BA, 50BC.
Cases
Edelston v Health Insurance Complainants Commission (1990) 93ALR 1.
George v Rockett (1990) 170 CLR 104, 112
Kaye v Minister for Foreign Affairs [2007] AATA 1995, [19]
King and Minister for Foreign Affairs [2006] AATA 636
Oates v the Minister for Foreign Affairs [1999] 95FCR 526 [52]
Ruddock v Taylor (2005) 222 CLR 612, 6320633[71]
Saad and Minister for Foreign Affairs [2007] AAT 1675
REASONS FOR DECISION
23 April 2010 The Hon Robert Nicholson, Deputy President 1. On 9 October 2008 the respondent decided to cancel the applicant’s Australian passport. The applicant was granted Australian passport number E7565114 on 11 April 2000. It was due to expire on 11 April 2010. On 30 September 2008 a Deputy Commissioner of the Australia Federal Police (“AFP”) made a refusal/cancellation request in respect of the applicant, seeking the cancellation of the applicant’s Australian passport. The basis for the refusal/cancellation request was that the AFP suspected that if the applicant was permitted to hold an Australian passport he would be likely to engage in conduct which (a) might endanger the health or physical safety of other persons (whether in Australia or a foreign country) or (b) might constitute one or more indictable offences against a law of Commonwealth, being offences specified in a Minister’s determination; namely offences against sections 50BA and 50BC in part IIIA of the Crimes Act 1914 (Cth) relating to child sex tourism. The respondent’s case is that in cancelling the applicant’s Australian passport the respondent acted pursuant to ss14(1) and 22(2)(d) of the Australian Passports Act 2005 (Cth) (“the Passports Act”).
2. The decision by the respondent to cancel an Australian travel document is a “reviewable decision”. The applicant has, as a person dissatisfied with the decision, an entitlement to apply to this Tribunal for review of that decision: ss48 and 50(1) of the Passports Act. The applicant made such an application.
Evidence
3. The applicant’s case was supported by an affidavit of the applicant sworn on 13 July 2009. In large measure this affidavit sought to provide explanations in respect of matters raised in the respondent’s evidence from Agent Ann Taggart and to provide an explanation as to why various items have been in his possession.
4. The applicant’s case was also supported by a statement of his mother but she was not called to give evidence.
5. The respondent’s case was supported by evidence of Agent Taggart of the AFP, currently attached to Child Protection Operations and being the case officer responsible for investigating the applicant’s activities. In addition, the respondent relied upon the evidence of Johnathon Thomas Lassiter also of the AFP, which was cross examined.
Legislative Scheme
6. The respondent is the Minister responsible for the administration of the Passports Act and the regulations and other instruments made under the Act. The department of Foreign Affairs and Trade (“DFAT”) administers the Passports Act on behalf of the Minister.
7. The Act commenced on 1 July 2005 (“commencement day”).
8. The Australian Passports (Transitionals and Consequentials) Act 2005 brought Australian passports issued under the previous Passports Act 1938 (Cth) (“1938 Act”) under provisions of the Passports Act. Specifically, subsection 5(1) of the former Act provides that an Australian passport issued under the 1938 Act is taken, on and from the commencement day, to be an Australian passport issued under the Passports Act.
9. Section 18 of the Passports Act provides that a refusal/cancellation request may be made to the Minister by a competent authority, being a request that the Minister:
(a)refuse to issue an Australian passport to a person; and/or
(b)cancel an Australian passport or travel-related document that has been issued to a person.
10. Section 14 relevantly provides:
(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:
…
(ii)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
…
(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 under subsection (1), the Minister may refuse to issue the person an Australian passport.
11. The Minister may cancel an Australian travel document, including an Australian passport, under s22. Subsection (1) of that section provides that the Minister may cancel an Australian travel document. This is an unfettered discretion vested in the Minister: Oates v the Minister for Foreign Affairs [1999] 95FCR 526 [52]. Subsection (2) provides that without limiting that provision 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”.
12. The AFP is a competent authority: see sections 6(1) and 14(3)(b), and the Australian Passports Determination 2005 (“Determination”) at paragraph 3.4.
13. Offences against Part IIIA of the Crimes Act 1914 (Cth) (child sex tourism) are specified for the purposes of section 14(1)(a)(v): Determination paragraph 3.3 and Schedule 1. The Schedule is divided into part 1 and part 2. Item 2 of part 2 is “offences against Part IIIA of the Crimes Act 1914 (child sex tourism)”
14. The issues before this Tribunal therefore involve the questions of, firstly, whether the power to cancel was enlivened and, if so, what is the correct or preferable exercise of discretion under section 22 of the Passports Act. It is correctly common ground that it is not the function of this tribunal to review the reasoning of the respondent but only to review the decision in the light of remaking it in the face of the evidence before the Tribunal.
15. The consequence is that the Tribunal must consider whether the evidence as it appears before the Tribunal gives rise to a “suspicion” “based on reasonable grounds” that the applicant would be “likely to engage in conduct” that might either endanger the health or physical safety of other persons (whether in Australia or a foreign country) or constitute an indictable offence against the law of the Commonwealth, being an offence referred to in item 2 of part 2 of schedule 1 of the Determination, that is offences against child sex tourism in terms of part III A of the Crimes Act 1914. Child sex tourism offences include, while the alleged offender is outside Australia,
(a) acts of sexual intercourse with a child under the age of 16;
(b) inducing a child under the age of 16 to engage in sexual intercourse;
(c) sexual conduct (including acts of indecency) with a child under the age of 16; and
(d) inducing a child under the age of 16 to be involved in sexual conduct.
16. It should also be borne in mind that the jurisdiction of the Tribunal does not extend to reviewing a decision, in this case by the AFP, to request cancellation. Rather the jurisdiction is confined to the reviewable decision being a decision to cancel an Australian travel document: Passports Act ss48 and 50(1).
17. The suspicion that a person is likely to engage in conduct is satisfied if there is a real, and not merely remote, possibility that he will do so: e.g., Saad and Minister for Foreign Affairs [2007] AAT 1675; King and Minister for Foreign Affairs [2006] AATA 636. That approach is supported by the Explanatory Memorandun where it is said “likely to engage” is based on the test in s7E 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.”
18. Further, the section refers to the grounds on which it is reasonable to suspect. Suspicion is “a state of conjecture or surmise where proof is lacking” Ruddock v Taylor (2005) 222 CLR 612, 6320633[71]; George v Rockett (1990) 170 CLR 104, 112. See also Kaye v Minister for Foreign Affairs [2007] AATA 1995, [19]. To “suspect” is to have a lower standard of knowledge. “The facts which can be reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown”: George v Rockett (1990) 170 CLR 104, 115. See also Ruddock v Taylor (2005) 222 CLR 612, 633 [72] (McHugh J).
19. In short, the condition for the exercise of the respondent’s discretion (and this decision of the Tribunal) does not require proof that the applicant has or will engage in child sex tourism offences.
20. While the applicant offers an explanation for some of the facts on which the AFP made its request, it is all of the several factors, considering cumulatively, that require to be considered in relation to the formation of a suspicion of the relevant kind.
Respondent’s case
21. It is convenient to set out the principal items of evidence upon which the respondent contends there are reasonable grounds for suspicion of the likelihood of relevant adverse conduct by the applicant. These are as follows:
1993 Customs Report
This was made when the applicant arrived on 25 January 1993 at Perth Airport after a 50 day stay in the Philippines. He gave his occupation as a student but when questioned he stated he had just completed a 4 year teacher training course at Curtin University and was expecting to be placed in a state school in Western Australia at the start of the new school year. It was stated by Customs that in the applicant’s bags were photographs of Filipino girls, many of whom appeared to be under the age of 16 if not younger still. It recorded that he explained these were people he had met whilst travelling the islands. On face value, the photographs were innocent in nature. Customs recorded that the applicant seemed nervous while being examined and was hesitant about answering questions. Condoms and vaseline were present in his luggage. It was said he had a desire to not elaborate any answers. This and the photographs suggested to the author of the report that the applicant fitted the “paedophile profile”. It was also stated it would be worth some investigation into the source of the applicant’s income that allowed him to travel while being a full time student.
2002 Reported Financial Transactions
The applicant came to the attention of the Australian Transaction Reporting Analysis Centre (“Austrac”) in August 2002 following two transactions on 5 and 6 August 2002. On each occasion he deposited $9900 into his Perth bank account. The notes were said to be “sticky and musty and all $100 notes”. He was placed on alert to have his bona fides assessed on his return to Australia.
22 April 2008 Arrival at Sydney Airport
On 22 April 2008 the applicant arrived in Australia at Sydney Airport on a flight from Santiago, Chile. During a routine baggage examination the following items were discovered: viagra, condoms, small handcuffs suitable to fit a child and a small lady finger vibrator, a small notebook with hand written notes (Dajaban Dominican Border Town with Haiti - $54.22 to buy a child; Child sex is not a crime Nicaragua/Guatemala; Suffocation Roulette, Airplaning, Blackout, Deadly games, Children’s play; Cabanas – rent by the hour hotel rooms; AA $286 Miami – Guatemala Thurs 27 – 3; Guatemala – Costa Rica 5-4-08 US Airways 307; and Corumba (underlined) – Brazil, Corumba, Sao Paulo, Rio, Salvador LAB 1320 12 May) and printed documents accessed on the internet including: “Child Prostitution – The commercial sexual exploitation of children – Federal Republic of Brazil”, “Factbook on Global Sexual Exploitation – Brazil”, “U.S. says Belize, Cuba, Venezuela Not Fighting Human Trafficking” and “Teen Flood – Real Teenage Girls”.
22. When the applicant arrived in Sydney from Chile he completed an incoming passenger (“PAX”) card on which he stated his occupation was a teacher and that he spent the majority of his time abroad in Thailand.
23. In addition a camera film was found in the applicant’s possession and was examined by AFP forensics. The respondent relied upon a copy of one of the photographs which was of a young girl said by the respondent to be “sitting on a bed and appears to be crying and holding money of an unknown denomination.”
Travel Movements
From November 1991 to 15 December 2008 the applicant travelled widely on his Australian passport. He had 36 travel movements in that period.
4 May 2008 Departure to Singapore
A search of the applicant’s baggage on his departure on 4 May 2008 indicated an application to redirect mail so that mail would be sent to him care of the Orchid Resort in Angeles City in the Philippines.
24. Also an examination of a photocopy of his passport showed numerous visa stamps, many of which were to countries known to police as child sex tourism destinations including Cambodia, Vietnam, China and Brazil.
25. Additionally a copy of a notebook entry of contact details for Perth legal firms was located.
26. On his departure date the applicant completed a PAX card bearing that date on which he stated he was going to China for a holiday.
2008 Visit to Orchid Inn
27. Enquiries by the Philippine National Police established that the applicant arrived in Manila on 20 May 2008 and checked into the Orchid Inn Resort in Angeles City on that date. The evidence of Agent Taggart was that Angeles City is well documented as a place where tourists go for cheap sex, often with children.
July 2008 Search Warrant
28. As a result of search warrants executed by the AFP the following items were among those seized from the applicant’s storage unit in July 2008. An ANZ bank statement showing regular ATM access and withdrawals being made between 4 March 2008 and 22 April 2008. During this period, this account was accessed once in Thailand on 6 March 2008 and from 13 March 2008, the account was regularly accessed at the following locations: Egypt, St Andrews – Jamaica, Kingston – Jamaica, Santo Domingo, Miami, Panama, Tumbes, Lima, Sao Paulo, Salvador, and Natal. A plastic bag directly inside the door of the storage unit containing items located on Mr Massey at Sydney Airport on 22 April 2008, including the lady finger vibrator, condoms, notebook with notations, map of South America, 1 small blue children’s notebook, 1 Shrek notebook, zebra fabric handcuffs. A front page newspaper article from the West Australian newspaper dated Saturday July 13 2002 headlined “Australia’s Shame” which has a large photograph of two young Cambodian girls with the caption “Mei, left, is 10. Her sister, Toy, is 12. Both are victims of Cambodia’s ruthless trade in child prostitutes”. Printouts of articles relating to Child Sex Tourism and Kenya, access on the internet: Sex-for-food by aid workers alleged in Liberia, Sexual abuse part of life for Kenya’s street children, Shame of child sex tourism on Kenyan cost, Sex tourism unabated, Child sex booms with tourism in Kenya – UN. A number of photograph albums were located, containing many photographs of Asian children taken since 1991.
Foundation of Decision By AFP
29. Based on the above information, including items found in the applicant’s possession, particularly sex aids said to be suitably sized for use on children, hand written notes and extensive travel movements to what were described as known child sex tourism destinations, multiple documents relating to child sex tourism and documents completed by the applicant which were set to seek to hide direct destinations of his travel, the view was formed by the AFP there were reasonable grounds to suspect that the applicant engaged in child sex tourism.
Applicant’s case
30. In considering the evidence before the Tribunal it is necessary also to consider the evidence brought by the applicant. It is of most assistance to do this in relation to each of the particular items raised in the respondent’s case as giving rise to the reasonableness of grounds of suspicion concerning likelihood of adverse conduct. It is always of course to be borne clearly in mind that there is no illegality in any Australian Citizen going overseas for the purpose of sexual experience which is in no way related to child sex tourism. What the Tribunal must examine is whether there are reasonable grounds for suspicion of the likelihood of conduct in relation to safety or child sex tourism.
1993 Customs Report
31. The applicant’s evidence was that in 1993 he had not spoken to any Customs Officer. That is, that the report in which opinions were expressed in relation to him was not the result of any interview with him. He claims the opinions expressed in the 1993 report are the non expert opinions of an officer made at the time. The photographs were not in evidence and were not available for the Tribunal to form an opinion in relation to. However, a suspicion that the children photographed were under the age of sixteen years does not necessarily lead to an inference that the applicant’s tourism was related to child sex tourism if they were otherwise known to the applicant.
2002 Reported Financial Transactions
32. It was accepted in the course of evidence that nothing could be made of what was thought to be “sticky and musty $100 notes” paid into the applicant’s bank account.
22 April 2008 Sydney Airport
33. The applicant’s evidence was that the viagra had been in his luggage for some time. Certainly the presence of viagra alone cannot lead to reasonable grounds upon which to conclude the applicant was likely to engage in conduct prohibited under child sex tourism legislation.
34. Likewise the presence of condoms does not provide a reasonable ground for suspicion when considered alone. The only question is whether the presence of viagra and condoms when considered with the other evidence gives rise to a reasonable ground upon which to suspect relevant likely conduct.
35. The applicant’s evidence was that he had purchased the handcuffs in a novelty market, partly as a challenge to an accompanying British person, placed them in his back pocket and went through customs in Sydney. His evidence was that they were never used and were not bought for the purpose of having sex with children or indeed anybody else. The handcuffs were demonstrated to the Tribunal by the applicant. He put the hand cuffs on his own wrists and undid them. If they are suitable to fit a child they are also suitable to fit an adult male. It cannot therefore be safely inferred that the handcuffs support any inference of likelihood of engagement in prohibited child sex tourism offences.
36. In relation to the small lady finger vibrator, the applicant’s evidence was that he had bought it for a woman with whom he was in Bangkok and, when she departed leaving it behind, he retained it because he regarded it as too expensive to throw away. He placed it in his shaving bag. He testified that it was not used for sex with anybody.
37. In relation to the small notebooks with handwritten notes, the applicant’s evidence was that he had been interested in aboriginal and inter-cultural studies long before he actually embarked on a course in relation to them at Edith Cowan University. He claimed to constantly make notes respecting them and to have done just that in his notebooks.
38. With respect to the reference to “buying a child,” he said this was a record of human rights abuses and recent problems and that he had no interest at all in buying a child.
39. In relation to the note concerning “Nicaragua/Guatemala,” he said the comments he recorded appeared on a United Nations webpage. He said that nothing he had seen, read or written advocated or condoned child exploitation, that being something to which he was entirely opposed and of which he claimed to be entirely innocent.
40. With reference to the handbook notation of slang words relating to “suffocation roulette” and synonyms for it, he said that these were words of interest to him because they may relate to drugs and were in school yard use, so it was important that he knew them as a teacher.
41. In relation to the note concerning “cabanas,” he said this was something to which he was prompted to enquire about when walking along the beach resort strip in the Dominican Republic and seeing a sign concerning them. As he understood it, cabanas tended to cater to the locals rather than the foreigners.
42. The reference to travel to Guatemala and Costa Rica were simply quotes he had received for an airfare. The reference to Corumba and related places were to the names of every major tourist town in Brazil, which he then looked up in his Lonely Planet Book.
43. On behalf of the applicant it was also submitted that the entries in the notebooks relied on by the respondent should be taken into account with many non-contentious entries. It is said that the non-contentious entries show the applicant had a habit of making notes on all sorts of matters. It was submitted it is wrong to allow selective passages to have added weight when they should be seen in the context of the handbook as a whole.
44. With reference to his entry on the PAX card that the majority of his time abroad was spent in Thailand the applicant said he had chosen Thailand over Brazil as satisfying that criteria.
45. Concerning the photograph of the young girl sitting on the bed, the applicant initially denied that this was part of the 16 photographs processed from the file inside the camera and he denied having seen the girl before. However, on being provided with more evidence (that is improvements on the photocopies) he was prepared to accept that it was a girl whom he had known in Indonesia in 2007. Neither his evidence or that of the respondent substantiated in any respect the age of the girl or that she appeared to be crying or that she was holding money of an unknown denomination. As the evidence of the applicant exemplified, it is difficult to tell her age or to say that she is in fact a child. In my opinion that most relevant circumstance appearing from the photograph is that she is photographed fully clothed sitting on a bed.
4 May 2008 Departure for Singapore
46. In relation to the Orchid resort, the applicant’s evidence was that its security was very thorough and people entering the hotel were always checked, I am unable to accept that evidence in the light of the evidence concerning the hotel as it is presently operated. Its reputation seems to be presently disreputable and I’m not dissuaded that is a sudden development which was inapplicable in May 2008. Nevertheless, the fact that the applicant resided there does not necessarily provide a reasonable ground for a suspicion that he was likely to engage in conduct related to child sex tourism, only that there are reasonable grounds for a suspicion he intended to engage in sexual conduct.
47. In relation to the countries to which the applicant has travelled being characterised as child sex tourism destinations, he claims that Agent Taggart has falsely defamed them in an effort to a discredit him. He said that as a teacher of geography, history, politics and social studies he has read many books and visual reports and other material relating to the countries.
48. With regard to the entry of contact details for legal firms, he had assembled these in order possibly to seek advice following the intervention at Sydney Airport on the 22 April 2008.
49. In relation to his statement that he was going to China for a holiday, the evidence was that this had been true when he stated it but that the difficulty of travelling on to Mongolia and illness from Chinese food may have forced him to change his plans so that he returned to the Philippines.
50. With regard to the articles from the internet, the applicant testified in cross-examination they were downloaded by him when he was travelling as they caught his eye as relevant to what he had studied and written on before. He did not satisfactorily explain why his earlier affidavit evidence denied that he had downloaded them, referring to confusion in the articles involved.
July 2008 Search Warrant
51. In relation to the article from the West Australian newspaper, the applicant said that the AFP had lost the second page which revealed that the mother of the girl was also a pimp and was exploiting her daughter in order to live a lavish lifestyle at her expense.
52. With regard to the printout of articles relating to child sex tourism and Kenya, the applicant’s evidence was that none of these condoned the exploitation of children for sex in any way. He said they were in his possession because he had been studying the research of social issues and problems in Africa for many years. But he had never travelled there.
53. With regard to the photographic albums containing what was said to be photographs of Asian children taken since 1991, he asked that these be returned to him. They were returned prior to the hearing before the Tribunal. Counsel for the applicant took the Tribunal through them in some detail. It was apparent they contained quite a large number of photographs of school students in Australia and overseas together with photographs of persons said to be friends of the applicant. None of the photographs had any sexual connotation to it. The photographs of students were in the main taken as group photographs. It is said that in the case of the applicant he had a wholesome interest in students because of his role as a school teacher.
Denial of Engagement in Child Sexual Tourism
54. In his evidence the applicant categorically denied any involvement with sex with children in any shape or form in Australia or anywhere else. He maintained that he was not a danger to any child or any person whatsoever and none of his behaviour might constitute an indictable offence against the laws of the Commonwealth. He repeated his abhorrence of child sexual exploitation in the course of his submissions and evidence.
55. It was not contested that the applicant has not been convicted of any child sexual offence or that there is no evidence of the applicant having a criminal record in any jurisdiction in Australia or overseas.
Whether Reasonable Grounds for Suspicion
56. There is no evidence on reasonable grounds to give rise to a suspicion that the applicant would be likely to engage in conduct that “might endanger the health or physical safety of other persons (whether in Australia or a foreign country)”, save as to whether there are any reasonable grounds for giving rise to a suspicion that the applicant may be likely to engage in conduct constituting an indictable offence under child sex tourism legislation. That is, there is no reason in the evidence to consider the possibility of endangerment of health or physical safety separately from the existence of evidence that the applicant is likely to engage in conduct constituting the relevant indictable offence.
57. There is no evidence of a conviction of the applicant in respect to any indictable offence against the law of the Commonwealth relating to child sex tourism. Likewise there is no evidence that the applicant has ever had any criminal record in Australia or overseas. In particular there is no evidence of acts of the applicant engaging in acts of sexual intercourse with a child under the age of 16 or inducing a child under that age to engage in such conduct or sexual conduct (including acts of indecency) by the applicant with a child under the age of 16 or inducing a child under that age to be involved in sexual conduct.
Evidence Relevant to Reasonable Grounds
58. I consider that the central evidence on whether a relevant suspicion can be raised on reasonable grounds is the evidence relating to the following matters:
· The applicant’s collection of internet off-prints relating to child sexual matters;
· The countries visited by the applicant;
· The applicant’s handbook entries in selected portions;
· The applicant’s interest in children generally.
Collection of Internet Off-prints
59. The applicant had a range of internet off-prints and newspaper extracts relating to child sexual matters. These involved an article from the West Australian Newspaper, various articles concerning teens and others printed from the internet and an article having reference to Kenya, a place which the applicant has never visited.
60. The applicant’s explanation for his retention of these items was that he had a well developed interest in inter-cultural and social issues as exemplified by his studies at Edith Cowan University and his travels around the world. It is true that he has written to public authorities and received responses in relation to his submissions concerning the attitudes they should take to some child sex tourism matters. However there is no evidence of him having authored any considered exposition on child tourism offences or exploitation. In any event I am not satisfied by his testimony that the applicant had purely an academic intellectual interest in the issues to which the articles related and I am unconvinced by his explanation.
61. There still remains the question whether this evidence would establish a likelihood of engagement in the conduct prohibited as indictable offences. In my view it offers a reasonable ground for such a suspicion. However, the suspicion could only be viewed as remote in the absence of some further evidence creating a real possibility of engagement in that conduct by the applicant.
Countries Visited
62. I do not accept the applicant’s submission that Agent Taggart, the principal witness for the respondent, sought to “defame” the countries which he had visited by characterising them as noted with respect to child sexual tourism offences. On the contrary, there is evidence before the Tribunal in the form of a report on child sexual tourism showing the characterisation to be professionally well-founded.
63. There is nothing in the evidence which directly establishes that the applicant engaged in child sex tourism offences in any of the countries visited. However, it is clear from the evidence as a whole that the applicant was interested in sexual conduct in the course of his travels and it is relevant that the countries he visited had availability of children with respect to child sex tourism offences. Section 14(1)(a) requires that the suspicion on reasonable grounds must be that the person (the applicant) would be “likely to engage in conduct” that constitutes a relevant indictable offence if issued with an Australian passport. In my opinion the evidence of the countries visited by the applicant gives rise to the inference of a likelihood that he would be likely to engage in sexual conduct within the countries visited, being sexual conduct falling outside the proscribed acts of child sexual tourism. What is relevant to the raising of a suspicion on reasonable grounds that the applicant was likely to engage in sexual conduct that might constitute an indictable offence against the relevant child sexual tourism legislation is his commitment to travel in countries noted for child sexual tourism and his apparent lack of interest in travel elsewhere. The inference to that effect cannot be alone drawn without also having regard to the first mentioned more general inference. Both inferences are open from this evidence. It is not possible to draw the second inference against the applicant without putting to one side the first mentioned general inference. The result is that the possibility of the applicant engaging in the proscribed conduct remains remote.
Handbook Entries
64. I accept that the applicant has the habit of making notes on a wide range of issues as he travels and as he lives. He is interested in various issues and makes notes concerning them. It is apparent that he has made a range of notes relating to child sex tourism and/or exploitation. I am unsatisfied that his interest in these issues is solely to be accounted for by an intellectual interest of a cultural nature.
65. Again the various entries qualify for consideration as reasonable grounds for a suspicion that the applicant would be “likely to engage” in the conduct constituting relevant indictable offences. The applicant sought to explain each one as the product of unconnected innocent circumstances. The notes on “buying a child” and “suffocation roulette etc” are sufficient to show his interest in these areas. Neither, however, come within the proscription of the child sex tourism legislation. The most they do is to show the applicant’s interest in children.
The applicant’s interest in children generally
The applicant’s photographs of children are, with a rare exception (the girl on the bed), taken of groups of schoolchildren and are entirely innocent in their content. They do not add any evidence of relevance to the issue of whether there is any real possibility of the applicant engaging in the proscribed conduct.
Other Evidence
67. I consider that the evidence relating to viagra, condoms, handcuffs, the vibrator and the Orchid Inn is not related to the question of the engagement of conduct by the applicant in the relevant prohibited indictable offences but is relevant to establishing his sexual interest in his travels.
68. It is submitted by the applicant that the word “likely” in s14(1)(a) of the Passports Act should be construed so as to exclude a possibility which has a very low probability, of a kind sometimes described as remote or fanciful or merely theoretical: CF: Edelston v Health Insurance Complainants Commission (1990) 93ALR 1. In my opinion the evidence viewed as a whole establishes only that any suspicion to which it gives rise on the issue of whether the applicant is likely to engage in conduct of the proscribed type, does not establish a real possibility that such will be the case. Rather it establishes only a remote possibility.
Conclusion
69. I therefore find that the evidence does not support a finding of a suspicion on reasonable grounds that if an Australian passport were issued to the applicant, he would be likely to engage in conduct falling within s14(i)(a) (ii) and (v) of the Passports Act.
70. Accordingly, the Tribunal will set aside the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Robert Nicholson
Signed:………... (sgd) Ms L Huynh...........................................
AssociateDate/s of Hearing 2 & 3 February 2010
Date of Decision 22 April 2010
Solicitor for the Applicant Alexander Lindsay
Counsel for the Applicant Mr J A Davies
Solicitor for the Respondent Alice McCormick
Counsel for the Respondent Mr J D Allenson SC and Ms A Melormich
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