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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 2172
Decision Date: 24 July 2019

CaseChat Overview and Summary

The applicant, Mr Thompson, sought review of the Minister for Foreign Affairs' decision to refuse to issue him an Australian passport under section 14 of the *Australian Passports Act 2005* (Cth). The refusal was based on evidence suggesting the applicant had committed child sex offences and possessed child pornography. The applicant denied these allegations. The matter was heard by Deputy President Dr P McDermott RFD of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister's decision to refuse the passport was justified, considering the evidence of the applicant's alleged offending, his risk of re-offending, remorse, and rehabilitation. The Tribunal was required to determine the weight to be given to the convictions in Fiji and Queensland, and whether the applicant had successfully challenged the facts underpinning those convictions.

The Tribunal applied principles established in Federal Court decisions, particularly *Minister for Home Affairs and Sharma* [2019] FCA 597, which affirmed that administrative decision-makers must be cautious when making findings inconsistent with the facts underpinning a criminal sentence. Where a conviction is the foundation for the exercise of power, the facts on which it is based are generally not challengeable, though the circumstances may be reviewed for other purposes. However, if the power is not founded on the conviction, the underlying facts are open to challenge, albeit with a heavy onus on the challenger. The Tribunal found that the applicant had not provided sufficient evidence to support his claims of innocence regarding the Fijian and Queensland convictions, noting the corroborating evidence presented in the Fijian appeal and the nature of the applicant's previous remarks concerning the Queensland charge. The Tribunal also considered evidence from an AFP officer regarding the applicant's expressed interest in travelling to countries with weaker child protection frameworks and his potential to exploit disadvantaged children.

The Tribunal affirmed the decision under review, finding no reason to grant the applicant a passport. The decision was made to ensure the names of children were not included in the published reasons.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.