Thompson and Minister for Foreign Affairs - [2019] AATA 2172

Thompson and Minister for Foreign Affairs [2019] AATA 2172 (24 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/0787
Re:Mark Thompson
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:24 July 2019
Place:Brisbane

I affirm the decision under review.
..........................[SGD]......................................
Deputy President Dr P McDermott RFD
Catchwords
PASSPORT – review of the Minister’s decision to refuse to issue the applicant with a passport pursuant to s 14 of the Australian Passports Act 2005 – where there is evidence the applicant committed child sex offences and was in the possession of child pornography – where the applicant denies committing child sex offences – consideration of the applicant’s risk of re-offending, remorse, rehabilitation and recidivism – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Australian Passports Act 2005 (Cth)
Criminal Code 1995 (Cth)
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
CD v The Queen [2013] VSCA 95
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
George v Rockett (1990) 170 CLR 104
Howell v Macquarie University [2008] NSWCA 26
HZCP and Minister for Immigration and Border Protection [2018] FCA 1803
Isaacs v Commissioner of Taxation (2005) 144 FCR 194
Jones v Dunkel (1959) 101 CLR 298
King and Minister for Foreign Affairs [2006] AATA 636
Lang and Minister for Foreign Affairs [2011] AATA 279
Massey and Minister for Foreign Affairs [2010] AATA 290
Minister for Home Affairs and Sharma [2019] FCA 597
Minister for Immigration and Ethnic Affairs and Guo (1997) 191 CLR 559
Muggerridge v Minister for Immigration and Border Protection [2017] FCAFC 200
R v M.A.K. [2006] NSWCCA 381
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Ruddock v Taylor (2005) 222 CLR 612
Saad and Minister for Foreign Affairs [2007] AAT 1675
Secretary to the Department of Justice and Regulation and LLF [2018] VSCA 155
Thompson and Minister for Foreign Affairs [2007] AATA 1244
Secondary Materials
Explanatory Memorandum to the Australian Passports Bill 2004
Victorian Law Reform Commission Final Report on Sex Offenders Registration dated 22 December 2011
Karen Heseltine, Rick Sarre and Andrew Day in the Australian Institute of Criminology’s Trends & Issues in crime and criminal justice, ‘Prison-based correctional rehabilitation: An overview of intensive interventions for moderate to high-risk offenders’, (No. 412 published in May 2011).
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
24 July 2019
BACKGROUND

The applicant seeks review of the decision of the Minister for Foreign Affairs (‘the Minister’) to refuse to issue the applicant a passport pursuant to s 14(2) of the Australian Passports Act 2005 (Cth) (‘the Act’).
In November 1988, the applicant was issued an Australian passport. In January 1989, the applicant relocated to Fiji where he lived until he was deported to Australia in July 2006.
There is evidence that, in 1997, child pornography images were located on the applicant’s computer. Subsequently, the Fijian police undertook a search warrant of the applicant’s residence, where they found the applicant’s twin brother in bed with a sixteen year old girl and pornographic images of nineteen different children between 6 and 12 years old. During the search the applicant admitted to the police that he had had a relationship with the sixteen year old girl that the applicant’s twin brother was found in bed with, but when the girl was thirteen years old. In the same year, the applicant was charged with two counts of rape and six counts of indecent assault. The Fijian police obtained statements from fifteen girls, who claimed to have been photographed by the applicant, naked and in sexually explicit poses.
On 15 November 1999, the applicant was convicted in Fiji of two counts of rape and four counts of indecent assault of children between the ages of 9 and 13 years old. On 14 July 2006, the applicant was released from prison and deported to Australia.
Upon the applicant’s return, he was subjected to registration and reporting obligations under the Australian National Child Offender Register (‘ANCOR’). The evidence before the Tribunal is that in July 2006, the applicant spoke with the Townsville Child Protection and Investigation Unit, the applicant asserted that his imprisonment in Fiji was a “set-up” by the Fijian police. The applicant also then asked an officer of the unit what the age of consent was in Queensland, as he anticipated a visit from a young female from overseas. The applicant also questioned the consequences of inadvertently receiving child pornography over the internet.
In January 2007, the Australian Federal Police (‘AFP’) gave a Competent Authority Request in respect of the Minister under s 14(1) of the Act. Following this, in February 2007, the Minister refused to issue a passport to the applicant pursuant to s 14(2) of the Act.
In early 2008, the applicant was charged with rape and two counts of indecent treatment of children under the age of 12 years old. The applicant’s great niece, 7 years old at the time, reported that the applicant digitally penetrated her. On 23 March 2009, the applicant was found not guilty of rape, but was convicted of two counts of indecent treatment of children under the age of 12 years old. The applicant was sentenced to imprisonment for two years.
In January 2010, Queensland Correctional Services assessed the applicant as a moderate to high risk of recidivism as the applicant had not completed the sexual offender’s rehabilitation program. This was because the applicant denied that he had committed any sexual offence. In March 2011, the applicant was released from prison.
The applicant applied for a passport in July 2011. On 9 August 2011, the AFP interviewed the applicant in relation to his passport application. The applicant again asserted that the imprisonment in Fiji was a “set up”, and claimed that his admission to having a relationship with the 13 year old girl was coerced. The applicant asserted that the children in his home in Fiji would take photographs of each other in the shower. The applicant denied taking pictures of children and denied being sexually attracted to children. In relation to the offences committed against the applicant’s great-niece, the applicant claimed that it was the victim who requested inappropriate sexual contact with him, and that he had not initiated any contact with her. The applicant asserted that he was unable to complete the rehabilitation program because of his lack of guilt. He also then stated that he has a sophisticated knowledge of computers and encryption software, and uses browsers such as True-Crypt and The Onion Router (‘TOR’). When officers asked to see the applicant’s computer, the applicant entered his password incorrectly which prevented the officers from accessing the applicant’s computer.
On 22 September 2014, the Queensland Police Service (‘QPS’) executed a search warrant of the applicant’s premises. The QPS, however, did not locate any child exploitation material.
On 22 March 2016, the applicant’s reporting obligations ceased under ANCOR because of a change in the law on 22 September 2014.
On 19 April 2016, the applicant applied for a passport. On 22 April 2016, the Australian Passport Office wrote to the applicant advising him that the passport application was on hold pending further advice. The Minister subsequently sought advice from the AFP.
On 4 May 2016, the AFP interviewed the applicant. The applicant stated that he wished to obtain a passport to visit countries in South-East Asia, South America and Madagascar. The applicant stated that his twin brother is married to a Filipino woman and he wishes to visit them in the Philippines. The applicant stated that his friend also lives in the Philippines. During the interview, the applicant maintained his innocence of the charges, both in Fiji and in Australia. The applicant also claimed that he had finished the sexual offender’s rehabilitation program during his imprisonment in Queensland. He claimed that the pornography found on his computer when he was living in Fiji was not accessed by him, but by others who used his computer.
On 7 November 2016, the applicant, through his lawyers, lodged a complaint with the Australian Passport Office about the delay in processing his passport application. On 11 November 2016, the Australian Passport Office advised his lawyers that the AFP were “investigating whether there are any reasons your client should not be issued a passport”.
On 16 December 2016, the AFP submitted a Competent Authority Request to the Minister under s 14(1) of the Act. On 12 January 2017, the Minister made a decision to refuse to issue the applicant a passport pursuant to s 14 (2) of the Act.
On 18 January 2017, the applicant was advised of the Minister’s decision.
On 14 February 2017, the applicant made an application to review the Minister’s decision to refuse to issue the applicant a passport pursuant to s 14(2) of the Act.
LEGISLATION
Section 14 of the Act provides:
Reasons relating to potential for harmful conduct
(1)If a competent authority suspects on reasonable grounds that:
(a)if an Australian travel document were issued to a person, the person would be likely to engage in conduct that:
(i) might prejudice the security of Australia or a foreign country; or
(ii)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii)might interfere with the rights and freedoms (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv)might constitute an indictable offence against this Act; or
(v)might constitute an indictable offence against a law of the Commonwealth, being an offence specified in the Minister’s determination; and
(b)the person should be refused an Australian travel document in order to present the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.
Note 1: The text of the International Covenant on Civil and Political Rights is set on in Australian Treaty Series 1980 No. 23. In 2005 this was available in the Australian Treaties Library of the Department Foreign Affairs and Trade, accessible through the Department’s website.
Note 2: See also Subdivision D.
(2)If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian travel document.
(3)In this section:
“competent authority”, in relation to a circumstance mentioned in subsection (1) means:
(a) an officer within the meaning of paragraph (a), (b) or (c) of the definition of officer in subsection 6(1); or
(b) an employee of the Commonwealth who is specified in a Minister’s determination as a competent authority in relation to the circumstance; or
(c) a non-corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that is specified in a Minister’s determination as a competent authority in relation to the circumstance; or
(d) 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
(e) any person specified in a Minister’s determination as a competent authority in relation to the circumstance.
Section 6 of the Act defines an ‘Australian travel document’ as an Australian passport.
EVIDENCE OF MR JOHN THOMAS O’CONNOR
On 24 November 2017, Mr John Thomas O’Connor swore an affidavit in relation to an investigation into the applicant’s passport application. Mr O’Connor is a police officer with the AFP. On 17 April 2018, Mr O’Connor gave evidence before the Tribunal.
In cross-examination, Mr O’Connor stated that the interviews between the applicant and the AFP were to collect information to assist officers in making an assessment. Mr O’Connor specifically stated that the officers “were not making any decisions themselves”.
In his affidavit Mr O’Connor states:
“Mr Thompson had expressed a particular interest in travelling to South East Asia and specifically, Thailand and the Philippines, should he be granted an Australian Passport. Child protection frameworks are not as strong as Australia’s in these countries, and these countries are known by the AFP to be targeted by Australian child sex offenders. Mr Thompson has already shown a propensity to exploit disadvantaged children for sexual purposes overseas.”[1]
[1] Affidavit of Joshua O’Connor sworn 24 November 2017 at [20(h)].
In cross-examination, Mr O’Connor agreed that the applicant had expressed an interest in going to a ‘wide range’ of countries. Mr O’Connor stated that he specifically mentioned Thailand and the Philippines in the affidavit because:
“I’m more familiar with Thailand and the Philippines as being locations where Australians may go to commit offences against children and also that [the applicant] has a strong connection with the Philippines”.
In cross-examination, Mr O’Connor stated that the applicant’s and Mr O’Keefe’s brother’s travels to the Philippines might be a relevant indication of the frequency in which the applicant may travel to the Philippines. Mr O’Connor further stated that his criminal history raises concerns about the people the applicant associates with, which “may lead to his behaviour overseas”, though his criminal history differs from the applicant’s. Mr O’Connor stated that Mr O’Keefe’s offence directly lead to the applicant committing child sex offences.
With regards to the relevance of remorse, Mr O’Connor stated:
“It would demonstrate an understanding of the impact that the offending has had on children.”
With regards to the relevance of the applicant’s knowledge of computers, Mr O’Connor stated that the applicant:
“could use that knowledge to remove any offending material on his machine to avoid law enforcement locating it.”
Mr O’Connor agreed that it is possible that there is no child pornography located on the applicant’s computer.
AUSTRALIAN PASSPORT REFUSAL REQUEST DATED 15 SEPTEMBER 2011
The AFP submitted an Australian Passport Refusal Request dated 15 September 2011 to the Department of Foreign Affairs and Trade[2] pursuant to s 14(1) of the Act.
[2] T-Documents, T6.
The Refusal Request dated 15 September 2011 considered:
·     The sentencing remarks by His Lordship Justice Pathik, where His Lordship Justice Pathik highlighted the ‘predatory modus operandi’ adopted by the applicant. His Lordship Justice Pathik remarked that the applicant lured children to his home, groomed the children, and encouraged the children to engage in sexual activity. It was also stated that the applicant targeted children from poorer families in paying for school fees and purchasing gifts;
·     The applicant claimed that he had informed the Fijian Police during the search warrant in 1997 that he had a relationship with the girl that his brother was found to be in bed with when she was 13 years old to avoid his brother ‘bring bashed’ (sic). The applicant did not elaborate on this claim;
·     The applicant denied culpability in respect of the 23 March 2009 convictions. The applicant asserted that the applicant’s 7 year old great niece initiated the sexual conduct: however, these claims were never substantiated;
·     The applicant stated that he had a sophisticated knowledge of computers and the internet and that he used encryption software and the TOR system. The applicant also admitted that he had researched law enforcement computer examination techniques. The applicant did not provide a legitimate explanation for using programs to conceal his computer’s IP address;
·     The applicant stated that he frequently used Skype, which he uses to communicate with overseas friends, including in Fiji; and
·     During the interview the officers asked the applicant to view his computer. The applicant stated that he did not want the officers to see his password. The applicant then entered his password incorrectly. The officers did not view any contents on the applicant’s computer as the officers were not able to see any hidden content.
AUSTRALIAN PASSPORT REFUSAL REQUEST DATED 8 MARCH 2017
The AFP submitted a Australian Passport Refusal Request dated 8 March 2017 to the Department of Foreign Affairs and Trade[3] pursuant to s 14(1) of the Act.
[3] T-Documents, T2.
The Refusal Request dated 8 March 2017 considered:
·     The reason that the warrant search in 1997 by Fijian Police was undertaken was that child pornography images of fifteen Fijian girls were found on the applicant’s computer when the computer was sent to Townsville for repairs;
·     Charges were not pursued for the pornographic images of the fifteen Fijian girls because Fijian law at the time did not cover child pornography;
·     The applicant stated that he wanted to travel to countries in South-East Asia, particularly Philippines, Madagascar, South America and Thailand, to undertake angling and diving opportunities and fishing;
·     The applicant stated that he wanted to visit his brother and his wife, and a friend, who lived in the Philippines. The applicant met his friend in jail in Fiji;
·     The applicant maintains a relationship with two of the girls from Fiji who were named as victims to the charges in 1997. The charges did not proceed when the two girls withdrew their evidence. The applicant sent money to support the girls in 2006 and 2007; and
·     The applicant had previously expressed an intention to travel to Papua New Guinea and other countries in the tropics. These countries are developing countries which have underprivileged families and children. Papua New Guinea and other countries in South East Asia and the Pacific region are also known as a destination for child sex offending by Australians.
APPLICANT’S SUBMISSSIONS
The applicant accepts that the AFP is a “competent authority” defined under s 14(3) of the Act. The applicant also accepts that the offences in Division 272 (child sex offences outside Australia) and Division 273 (offences involving child pornography material or child abuse material outside Australia) are offences notified in the Determination.
The applicant submits that pursuant to Lang and Minister for Foreign Affairs [2011] AATA 279 at [16] that the Tribunal must consider whether reasonable grounds exist in that the applicant will likely engage in conduct that might endanger the health or physical safety of other persons. The applicant submits that in determining whether ‘reasonable grounds’ exist to hold the requisite suspicion, the Tribunal is required to find “the existence of facts which are sufficient to induce in a reasonable person the requisite state of mind…”.[4]
[4] Thompson and Minister for Foreign Affairs [2007] AATA 1244 at [71]; Lang and Minister for Foreign Affairs [2011] AATA 279 at [41].
The applicant submits that in determining whether reasonable grounds exist, it must be established that the person is likely to engage in the conduct. Therefore, the Tribunal must be satisfied that “there is a real, and not remote, possibility of him engaging in the nominated conduct”.[5]
[5] Lang and Minister for Foreign Affairs [2011] AATA 279 at [43]. In Massey and Minister for Foreign Affairs [2010] AATA 290 at [68].
The applicant submits that:
·     The applicant last offended 10 years ago;
·     The Queensland Parliamentary Explanatory Note to the amendments to the National Child Offender System (‘NCOS’) reporting periods outlines that the reduction was: “to reflect contemporary research showing reportable offenders pose the greatest risk within the first three years of their release into the community”;
·     The Victorian Law Reform Commission Final Report on Sex Offenders Registration[6] at Chapter 4 discusses the recidivism of child sex offenders at [4.40] to [4.49]. In particular, at [4.40] the Victorian Law Reform Commission noted the assumption that all sex offenders are likely to re-offend is wrong; and
· The applicant has no history of conviction for any offences under Division 273 (offences involving child pornography material or child abuse material outside Australia) or similar, or allegations of such conduct since 1999.
[6] Dated 22 December 2011.

The applicant also submits that the case of Thompson and Minister for Foreign Affairs[7] concludes that re-offending does not necessarily mean that the applicant is likely to re-offend in the future. The applicant submits that the Tribunal must consider the applicant’s present character as opposed to his past character.[8] The applicant submits that the Tribunal should not draw an adverse inference against him because he did not provide evidence at the hearing.[9]
[7] [2007] AATA 1244 at [48].
[8] [2007] AATA 1244 at [56].
[9] Jones v Dunkel (1959) 101 CLR 298.
Remorse
In response to the claims in the AFP Refusal Request dated 8 March 2017 that the applicant has shown no remorse to police, rehabilitative services, parole officers or the judiciary, the applicant submits that:
·The judiciary’s sentencing remarks were made in 1999, therefore should not be considered a reasonable basis not to issue a passport 18 years later;
·The applicant maintaining his innocence is not evidence that he is not remorseful;
·There is no evidence to support that the applicant has shown no remorse to rehabilitative services and parole officers; and
·The absence of remorse is not necessarily grounds for the applicant not to be issued a passport.[10]
[10] Lang and Minister for Foreign Affairs [2011] AATA 279.
The applicant contends that the fact the applicant maintains his innocence does not necessarily mean that he is not remorseful. The applicant in support of this submission relies upon Lang and Minister for Foreign Affairs[11] where Deputy President Hack stated:
“the presence of remorse is generally regarded by sentencing court as a matter that might mitigate sentence… however it is not clear to me why the absence of remorse could found a suspicion that Mr Lang, if granted a passport, would be likely to engage in conduct that might endanger the health or physical safety of other persons, all the more so when it is expressed in such bald terms”.
[11] [2011] AATA 279 at [48].
Rehabilitation
In response to the claims in the AFP Refusal Request dated 8 March 2017 that the applicant has not been rehabilitated, the applicant submits:
·     The applicant has served his time for previous convictions;
·     The applicant has complied with all lawful requirements pertaining to those convictions;
·     The applicant has not committed an offence since March 2011;
·     The applicant has demonstrated that he is a law-abiding and beneficial member of society;
·     The applicant maintained stable employment and now runs his own business; and
·     The applicant has since obtained a Master’s Degree in Business Administration and Project Management.
The applicant submits that the fact he did not complete the rehabilitation program does not necessarily mean that the applicant is likely to re-offend. The applicant relies upon the Australian Institute of Criminology’s paper on Prison-based correctional rehabilitation: An overview of intensive interventions of moderate to high-risk offenders.[12] The applicant submits that this paper indicates that:
·     of those who have completed the rehabilitation program, 4 per cent re-offend;
·     of those who do not complete the program after withdrawing, 20 per cent re-offend; and
·     of those who do not complete the program because they are removed, 10 per cent re-offend.
[12] Karen Heseltine, Rick Sarre and Andrew Day in the Australian Institute of Criminology’s Trends & Issues in crime and criminal justice, ‘Prison-based correctional rehabilitation: An overview of intensive interventions for moderate to high-risk offenders’, (No. 412 published in May 2011); Affidavit of Joshua O’Connor dated 24 November 2017.
The applicant did not complete the program, as he would not accept responsibility for his convictions. The applicant was removed from the program.
The applicant also refers to the Victorian Law Reform Commission’s Final Report.[13] The applicant submits that the report is in reference to a group of offenders which meet all of the characteristics, and not a group of offenders who only meet a few of the characteristics.
[13] Victorian Law Reform Commission Final Report on Sex Offenders Registration dated 22 December 2011 at [4.47].
Recidivism
The applicant submits that there is no way that the applicant would likely re-offend because he wants to travel to countries such as Papua New Guinea, Philippines and Thailand which are known to the AFP for child sex offending by Australians.
The applicant also submits that little weight should be given to summaries of the conversations between the applicant and the AFP from years ago. The applicant submits that little to no weight should be given to the intelligence referred to by the AFP as the applicant has not been able to view the intelligence.
The applicant submits that the refusal to issue a passport to the applicant is hypothetical based on the possibility that the applicant may be able to facilitate access to children overseas because of his advanced knowledge of computers and the internet. The applicant submits that software such as the TOR system are not used simply by criminals to remain anonymous, but also by companies and governments.
The applicant submits that the Minister has taken the word ‘word’, in reference to the use of the computer systems to ‘clean’ the computer completely out of context.
The applicant also submits that the AFP Refusal Request dated 8 March 2017 uses irrelevant and highly prejudicial emotive language. The applicant submits that there is no reason why the applicant should not have the right to travel with family and friends.
The applicant submits that he engaged with the AFP interviews as much as he was allowed so this does not demonstrate a lack of candour. The applicant submits that the reasons for why he is likely to re-offend fail to account for the periods when the applicant has complied with the law. The applicant submits that during these times the AFP cannot confirm that the applicant was in possession of child pornography, despite the numerous search warrants conducted.
MINISTER’S SUBMISSIONS
The Minister submits that the Tribunal has jurisdiction to consider the decision made pursuant to s 14(2) of the Act. The Minister submits that the Tribunal does not have jurisdiction to consider the request made by the AFP pursuant to s 14(1) of the Act.[14] The Minister points out that the request is not a decision by the Minister.
[14] Isaacs v Commissioner of Taxation (2005) 144 FCR 194; [2005] FCA 832 at [68].
The Minister submits that the Tribunal must consider under s 14(2) of the Act whether a competent authority has made a request under s 14(1) of the Act and whether the request is valid as a matter of law.
The Minister submits that the discretion under s 14(2) of the Act must be considered in context of the request made pursuant to s 14(1) of the Act.[15] The circumstances in the formation of the AFP’s suspicion pursuant to s 14(1) of the Act must be considered. As such, the Minister submits that the Tribunal must consider the threshold for a request under s 14(1) of the Act.[16] The Minister submits that the threshold for establishing suspicion is not particularly high and that the threshold is whether there is a real and not merely a remote possibility that the person is likely to engage in the conduct. The risk is not ‘remote, fanciful or merely theoretical’.[17] The Minister submits that suspicion is established where proof is lacking, and does not hold the same threshold for establishing a belief.[18] The Minister submits that the test was developed out of the Refugee Convention, as such, a risk as low as a 10 per cent change may constitute a risk for the purposes of the Refugee Convention.[19]
[15] CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [90].
[16] Saad and Minister for Foreign Affairs [2007] AAT 1675 at [32]; Massey and Minister for Foreign Affairs [2010] AATA 290 at [17]; CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [110].
[17] King and Minister for Foreign Affairs [2006] AATA 636 [45] and [48].
[18] Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [71]-[72]; George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 112 and 116; Massey and Minister for Foreign Affairs [2010] AATA 290 at [18]; CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [95]-[99].
[19] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429.
The Minister submits that there are grounds to establish suspicion that the applicant, if given a passport would endanger the health and physical safety of other persons, such as:
·     The applicant’s previous convictions which show pedophilic tendencies;
·     The applicant’s demonstrated behaviour is calculated and predatory;
·     The applicant’s behaviour is opportunistic and compulsive;
·     The child pornography with which the applicant was found confirms that he poses a threat to children overseas;
·     The applicant continues to deny that he committed the offences meaning that without remorse he is likely to re-offend. The absence of remorse on the part of the applicant is relevant because it bears upon the question of whether the applicant is likely to re-offend and his prospects of rehabilitation;[20]
·     The applicant’s admission to being a part of the dark web indicates an ongoing interest in child pornography;
·     The applicant failed to complete the sex offender rehabilitation program whilst in prison;
·     The applicant has expressed a specific desire to go to the Philippines and Thailand which are countries known to be targeted by Australian child sex offenders; and
·     The applicant is no longer subject to reporting obligations under NCOS.
[20] R v M.A.K. [2006] NSWCCA 381 at [41]-[42]; CD v The Queen [2013] VSCA 95 at [36]
The Minister submits that there are no compelling reasons for the applicant to travel overseas. Though the applicant may not be able to visit friends and family overseas, this will not cause the applicant substantial hardship.
The Minister submits that the Tribunal can draw an inference from the fact that the applicant failed to give evidence at the hearing[21] and referred to the case of Jones and Dunkel (1959) 101 CLR 298 where the inference can be drawn that the applicant’s evidence would not have assisted his case. The Minister submits that in support of this inference, if the applicant was called to give evidence, he could have explained his rehabilitation and attempted to contradict the interviews with police.
[21] Howell v Macquarie University [2008] NSWCA 26 at [97]-[98]; Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178; 50 AAR 96 at [113]-[114].
Remorse
The Minister submits that the applicant has consistently denied responsibility for the offences in which he was convicted. The Minister submits that this demonstrates a lack of remorse. The Minister submits that:
“The applicant’s persistent refusal to show remorse demonstrates either an inability or an unwillingness on the part of the applicant to confront the nature and seriousness of his offending and the effect of the offending upon victims. The apparent failure of the applicant to either acknowledge or appreciate those matters can give the Tribunal no confidence that the applicant will not reoffend.”
The Minister submits that the absence of remorse is relevant as it bears upon the question of whether the applicant is likely to re-offend and his prospects of rehabilitation.[22]
[22] R v M.A.K. [2006] NSWCCA 381 at [41]-[42]; CD v The Queen [2013] VSCA 95 at [36].
Rehabilitation
The Minister submits that the applicant’s failure to complete rehabilitation programs undermines any suggestion that the applicant is rehabilitated. The Minister submits that the applicant has shown a lack of rehabilitation by:
·     The applicant’s sustained sexual interest in minors as demonstrated by his convictions and other behavior;
·     The matters since he was released from prison which buttress the AFP’s reasonable suspicion including intelligence received in 2013 and the applicant’s unexplained use of the TOR internet; and
·     Whilst the applicant has not re-offended whilst living at home with his mother and step-father, he now seeks a passport and has indicated an intention to travel to countries with less developed child protection systems than Australia.
Recidivism
The Minister submits that determining the risk of recidivism, by considering events that have occurred, is a reliable basis to determine what will occur in the future.[23]
[23] Muggerridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 351 ALR 153 at [36]; Minister for Immigration and Ethnic Affairs and Guo (1997) 191 CLR 559 at 574.
The Minister submits that the offences that occurred in Fiji were repeated separate offences on multiple victims. The applicant’s offending was never simply a one-off offence. The offending demonstrates pedophilic tendencies and a willingness to engage in child sex activities.
The Minister submits that the question before the Tribunal is whether the applicant will re-offend, and whether by issuing a passport the applicant is at risk of re-offending.
The Minister submits that the reasonable suspicion cannot be assessed by taking a general analysis of academic articles. Reasonable suspicion must be assessed in context of the applicant’s specific conduct. The Minister further submits:
“As indicated in the Victorian Law Reform Commission Final Report, there is considerable difficulty in discerning the precise risks of recidivism for perpetrators of child sex offences.”
The Minister submits that the Tribunal is not considering the risk of whether sex-offenders will re-offend, rather, the Tribunal must consider the risk of the applicant re-offending if issued a passport. The Minister submits:
“Properly understood the decision in Lang and Minister for Foreign Affairs [2011] AATA 279 does not support the proposition that the presence or absence of remorse is irrelevant to questions of recidivism.”
APPLICANT’S SUBMISSIONS IN REPLY
The applicant submits that the interpretation of the term suspicion in the context of the Refugee Contention is completely irrelevant, as the interpretation is concerned with a completely different type of assessment.
The applicant further submits that the Minister has taken the cases of Howell and Macquarie University [2008] NSWCA 26 and Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178 out of context and that these cases are not relevant to the matter at hand.
CONSIDERATION
The Federal Court of Australia has in some recent decisions restated the principles which should guide this Tribunal in a case such as this. In Minister for Home Affairs and Sharma [2019] FCA 597, Anastassiou J at [20], emphasised that it is well established that there are limitations on the circumstances in which an administrative decision-maker may make findings inconsistent with facts underpinning a criminal sentence. His Honour cited HZCP and Minister for Immigration and Border Protection [2018] FCA 1803 in which Bromberg J, at [78], distilled the relevant principles:
“(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.”
This considered statement of Bromberg J adopted the approach taken by the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation and LLF [2018] VSCA 155.
Certainly in the present case the applicant has effectively impugned the convictions in Fiji and in Queensland. Prior to the hearing the applicant asserted that he claimed that he is innocent of the charges for which he was convicted in Fiji and in Queensland. However, he has not given any oral evidence before the Tribunal in support of his contentions. At the time the applicant was convicted in Fiji there was an established common law requirement that in sexual cases it was dangerous to convict on the evidence of a complainant unless it was corroborated or supported in some particular material. The Fijian Court of Appeal concluded that in respect of the Fijian charges there was effective and compelling corroboration of the indecent assault charges by photographs and similar fact evidence by various complainants that was too strong to ignore. The Fijian Court of Appeal concluded that this evidence supported the likelihood that each complainant was telling the truth and thus a conviction was inevitable. An experienced senior Australian appellate judge (Handley JA) was one of the members of the Fijian Court of Appeal. In respect of the Queensland charge of the indecent treatment of a girl aged 7 years the tenor of previous remarks of the applicant was that the girl had initiated sexual contact. There is no probative evidence before me that the applicant is innocent of the charges for which he was convicted.
Subsection (2) of s 14 of the Act provides that if a competent authority makes a request under subsection (1) the Minister may refuse to issue the person an Australian travel document. There is no issue that the AFP is a competent authority: see sections 6(1) and 14(3)(b) of the Act and sections 13 and 14 of the Australian Passports Determination 2015.
Offences against Division 272 of the Criminal Code 1995 (Cth) (‘Criminal Code’) (Child sex offences outside Australia) and offences against Division 273 of the Criminal Code (offences involving child pornography material or child abuse material outside Australia) are specified for the purposes of s 14(1)(a)(v) of the Act: see Australian Passports Determination 2015, s 13(1)(m),(n).[24]
[24] T-Documents, T3 at p. 45.
There is certainly no issue that the request that was made by the AFP was legally valid but I consider that I have to be satisfied whether the evidence before the Tribunal enables the competent authority to suspect on reasonable grounds that if an Australian travel document were issued to the applicant 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 might constitute an indictable offence against a law of the Commonwealth, being an offence specified in the Minister’s determination: see s 14(1)(a)(ii) and (v) of the Act.
Child sex offences outside Australia against Division 272 of the Criminal Code include the offence under s 272.8 of the Criminal Code of engaging in sexual intercourse with a child who is under 16 and the sexual intercourse engaged in is outside Australia. It is necessary to mention that s 272.4 of the Criminal Code has an extended meaning of ‘sexual intercourse’ that includes various acts of penetration including the penetration of the vagina or anus of a child by any part of the body of another person.
Offences involving child pornography material or child abuse material outside Australia against Division 273 of the Criminal Code include the offence under s 273.5 of the Criminal Code of possessing, controlling, producing, distributing or obtaining child pornography material outside Australia. A person commits an offence if the person has possession or control of material; or produces, distributes or obtains material; or facilitates the production or distribution of material; and the material is child pornography material; and the conduct of possession or control of material occurs outside Australia.

The request can be made where a competent authority has reasonable grounds that a person is likely to engage in the conduct that is prescribed in s 14(1)(a)(ii) or (v) of the Act. It is settled that the competent authority is satisfied if there is a real, and not merely a remote, possibility that the applicant is likely to engage in the conduct.
I respectfully agree with the reasons of the Full Bench of this Tribunal[25] in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 (at [110-112]), where the relevant test applicable to s 14(1) of the Act was explained:
110. “A test of “a substantial or ‘real and not remote’ — chance regardless of whether it is less or more than 50%” deserves some consideration. It mirrors the test used to identify whether a person is someone to whom Australia has protection obligations under the Refugees Convention by virtue of being a refugee. A person is a refugee if, among other matters, that person has a well-founded fear of persecution. A well-founded fear has been interpreted to depend, in part, on whether there is a “real chance” of persecution if the person is returned to the country of nationality. A “real chance” is one that is substantial, as distinct from remote and it may exist notwithstanding that there is less than a 50% chance of persecution’s occurring. It is a test that has been adopted in a context of collective community obligation to care for the individual on the one hand and the safety of an individual person on the other. Should the community be required to fulfil its obligation, it carries a small burden compared with that carried by an individual faced with persecution.
111. Section 14(1) of the Passports Act is also based on an inherent balance. It is a balance between what is required to maintain collective or community security and an individual’s liberty to move to and from Australia. Unlike a refugee matter, the impact of an incorrect assessment of the likelihood of the conduct or outcome will fall on the community, or members of it, rather than upon the individual. That impact could be just as grave on that community or on individual members of it as it could be for an individual claiming to be a refugee.
112. In view of these considerations, the meaning of “probable” or of “more likely than not”, requiring proof on the balance of probabilities, would seem to be setting the bar too high when trying to apply the words “would be likely”. It would seem to place too much weight on the person’s loss of entitlement and not enough on security.”
[25] Deputy President SA Forgie, Senior Member Egon Fice and Senior Member A Nikolic AM CSC.
This formulation is certainly consistent with the Explanatory Memorandum which states 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.”[26]
[26] The Explanatory Memorandum to the Australian Passports Bill 2004 at [75].
I have concluded that the competent authority had reasonable grounds for making the request and for concluding that the applicant is likely to engage in the conduct that is prescribed in s 14(1)(a)(ii) or (v) of the Act. The fact that the applicant has convictions in both Queensland and Fiji for child sex offences furnishes a reasonable ground for the suspicion. The fact that he had himself informed the Fijian Police that he had a relationship with a 13 year old girl is reasonable grounds for me to believe that he is likely to engage in child sex offences outside Australia. The material before me discloses circumstances in which it is alleged that the applicant has touched the vagina of children in Queensland and in Fiji. It is especially concerning that the applicant has asserted that the child in Queensland had initiated sexual contact. The fact that in 1997 in Townsville the applicant had images of 15 girls on his computer and later in Fiji had such images on his computer furnishes reasonable grounds that it is likely that he will possess child pornography material outside Australia. An additional fact that makes me come to that conclusion is that when the applicant was interviewed by the police officers, he denied those officers access to his computer because he wrongly entered his password. This is concerning because the applicant has a computer business and should be able to correctly enter the password to his computer.
I have previously outlined that the applicant has relied on the decision in Lang and Minister for Foreign Affairs [2011] AATA 279. However, the reasons of the Tribunal disclose that in that case there was a finding of fact (at [58]) that the applicant was “genuinely remorseful”. The circumstances in Lang and Minister for Foreign Affairs [2011] AATA 279 can be distinguished from this case where there is no basis for me to make such a finding and the observations which were made in that case which are relied upon by the applicant were not central to the finding made by the Tribunal.
There have been some submissions concerning whether I should draw an adverse inference against the applicant because of his failure to give evidence before the Tribunal. I have not drawn an adverse inference against the applicant because of his failure to give evidence. It is apparent from the police interviews that he is uncomfortable about discussing certain aspects of his past and this is quite understandable having regard to the periods of imprisonment that he served. All I can say is that I have to determine this application on the basis of the evidence that is before the Tribunal.
I have considered the publications relied upon by the applicant. The study of the Australian Institute of Criminology indicates a 10 per cent re-offend rate of those who do not complete the rehabilitation program because they are removed and a 20 per cent re-offend rate of those who do not complete the rehabilitation program because they withdrew. It is unclear on the evidence whether the applicant failed to complete the sexual offenders’ program because he withdrew or was removed, but in any event this study does not assist the applicant as he was exited from the sexual offenders’ program. It is also relevant to mention that the report of the Victorian Law Reform Commission contains an acknowledgement that it is difficult to discern the precise risks of recidivism for perpetrators of child sex offences.
I consider that the correct and preferable decision under s 14(2) of the Act is to refuse to issue the applicant with an Australian travel document. I consider after reviewing the evidence before me that if the applicant was issued with a passport that there is a real risk that the applicant would commit child sex offences outside Australia. In particular I consider that there is a real risk that he would engage in sexual intercourse with a child who is under 16 years of age outside Australia. In Fiji he was convicted of two counts of rape and four counts of indecent assault on children between the ages of 9 and 13. In Fiji he made an admission that he had a sexual relationship with a child aged 13 years of age. In Queensland he was convicted of the offence of indecent treatment of a child aged 7 years of age in circumstances where it was alleged that he digitally penetrated the girl. I have earlier mentioned that s 272.4 of the Criminal Code has an extended meaning of “sexual intercourse” that includes various acts of penetration including the penetration of the vagina or anus of a child by any part of the body of another person. There is no cogent evidence which contradicts the assessment made by the Queensland Corrective Services that the applicant had a moderate to high risk of recidivism.
Another reason why I consider that the correct and preferable decision under s 14(2) of the Act is to refuse to issue the applicant with an Australian travel document is because of the interest of the applicant in child pornography. I consider after reviewing the evidence before me that if the applicant was issued with a passport that there is a real risk that the applicant would commit offences involving child pornography material or child abuse material outside Australia as when the applicant was interviewed by police he confirmed that there were images of child pornography on his computer in Fiji. There is evidence before me that on the applicant’s computer in Fiji there were 15 female children who were photographed in semi-clothed or naked states. In Townsville there were images of 15 girls on his computer. I am concerned that the applicant did not facilitate the police having a look at his computer when they wished to inspect it.
I consider that if the applicant was given a passport there is a real risk that he would commit child sex offences and child pornography offences overseas as his previous conduct may be a guide to his future conduct. The history of the applicant does not reveal that his conduct was an isolated event. He has been convicted of these offences in two jurisdictions. In determining this application I have to speculate on what will happen if the applicant is given a passport. I consider that there is a real and a substantial risk that the applicant will commit child sex offences and child pornography offences overseas if he is granted a passport. I consider that his past conduct is a guide to what may happen in the future.[27] One reason why I have come to this conclusion is because the applicant has not been a truthful person. I have been asked to examine the conduct of the applicant over the last ten years. Relevantly, in 2016 the applicant provided the police who interviewed him with patently false information. He informed the police that he had completed a sex offenders’ program. The applicant remarked: “So I did the program”. He added: “I had no hesitation, no problem with doing the program”. This information was in my opinion deliberately untruthful. What is concerning is that the applicant has asserted that he has completed a sexual offenders’ rehabilitation program. However, an assessment by Queensland Corrective Services indicates that the applicant commenced the program but left the program because he continued to deny that he had committed any sexual offences. It is concerning that the applicant still continues to deny committing offences which the Fijian Court of Appeal considered were substantiated by corroborating similar fact evidence and photographs.
[27] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) cited in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36] (Flick, Perry and Charlesworth JJ).
I do not accept that it is plausible that if the applicant was issued with a passport that he intended to use the passport to go fishing overseas. His assertion that he wants to go scuba diving in the Amazon and catch a piranha lacks plausibility. His continued denial of offending and his failure to have completed a sex offenders’ program when he asserted he had completed such a course is part of my assessment for why I consider that there is a substantial risk that the applicant would commit child sex offences if he was given a passport.
I should record that I do not make a decision on the basis of the references to the intelligence that were received in 2013 as the applicant has not been provided with any such intelligence. Quite often such intelligence can be malicious gossip and it would not be fair to base a decision on such intelligence. It is also no part of my assessment to base a decision on the reference to the applicant being able to “clean” a computer as the need to clean a computer can be quite innocuous such as the need to periodically remove computer viruses.
Before any final decision in the application was made, the Tribunal made an interim confidentiality order pending a final confidentiality order. The applicant now seeks a final confidentiality order. After due consideration, I have decided not to grant a final confidentiality order. I give my reasons below for that conclusion.
The Administrative Appeals Tribunal Act1975 (‘the AAT Act’) provides that subject to s 35 of the AAT Act the hearing of a proceeding before the Tribunal must be in public: see s 35(1). In Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185, Downes and Jagot JJ remarked, at [74]:
“Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised ‘sparingly’.”
These considered statements by two former Presidents of this Tribunal have adverted to the need for there to be some proper basis for a final confidentiality order. The applicant seeks a final confidentiality order for what is said to be hardship for himself and his family. However, the applicant has not provided any oral evidence before the Tribunal to substantiate his assertion of hardship. The fact that the applicant may lose customers is not, of itself, a compelling reason for a final confidentiality order: see Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75], per Downes and Jagot JJ.
In deciding not to make a final confidentiality I have been guided by s 35(5) of the AAT Act which requires the Tribunal to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
There is no reason for me to make a final confidentiality order which would displace the operation of this principle in s 35(5) of the AAT Act other than to ensure that the names of children are not in these reasons.
DECISION
I affirm the decision under review.

90. I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD]................................
Associate
Dated: 24 July 2019

Date of hearing:

Date final submissions received:

17 April 2018

22 May 2018

Solicitors for the Applicant:

Counsel for the Applicant:

Solicitors for the Respondent:

Counsel for the Respondent:

Adams Wilson Lawyers

Mr Simon Grant

Clayton Utz

Mr Patrick Knowles