Thompson and Minister for Foreign Affairs and Trade
[2007] AATA 1244
•20 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600300
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL THOMPSON Applicant
And
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date20 April 2007
PlaceBrisbane
Decision The Tribunal:
(a) sets aside the respondent’s decision of 21 July 2006 to cancel the applicant’s passport;
(b) substitutes a decision that the applicant’s passport not be cancelled;
(c) sets aside the respondent’s decision of 21 July 2006 to refuse to re-issue a subsequent passport to the applicant.
................Signed.................
Deputy President
CATCHWORDS
PASSPORTS – decision to cancel passport and to refuse to issue – no reasonable grounds to suspect a likelihood of re-offending – no evidence of offending conduct in recent past – decision to cancel and to refuse to re-issue passport set aside
WORDS AND PHRASES – “suspects on reasonable grounds” – “likely to engage in conduct that might endanger the health or physical safety of other persons”
Australian Passports Act 2005 ss 3, 7, 14(1), 14(2), 22
Community Protection (Offender Reporting) Act 2004 ss 63(1)
Criminal Code (W.A) s324
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
George v Rockett (1990) 170 CLR 104
Tillmans Butcheries Pty Ltd v Australasian Meat Employees’ Union (1979) 49 FLR 331
Jebb v Repatriation Commission (1988) 80 ALR 329
Hussein v Chong Fook Kam [1970] AC 942
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
REASONS FOR DECISION
20 April 2007 Deputy President P E Hack SC Introduction
1.The applicant, Mr Paul Thompson, is an Australian citizen. In December 2005 he was issued with an Australian passport. In July 2006, and at the request of the Commissioner of the Australian Federal Police, the respondent, the Minister for Foreign Affairs, determined to cancel the applicant’s passport and to refuse to issue him with a subsequent passport.
2.The applicant seeks a review by this Tribunal of those decisions.
3.It is possible to conceive of a case where the review in this Tribunal of a cancellation decision and a refusal decision might yield different results but the present case is not such a case. It is thus unnecessary for present purposes to distinguish between the two decisions.
The Legislation
4.The issuing and cancellation of passports is governed by the Australian Passports Act 2005 (Cth) (“the Act”). The principal object[1] of the Act:
“is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.”
[1] See s 3.
By virtue of s 7(1) of the Act an Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister. Necessarily, there are matters of which the Minister must be satisfied before a passport may be issued and there are prescribed reasons that the Minister may refuse to issue a passport or may cancel a passport.
5.Division 2 of the Act deals with those reasons. Section 14(1) of the Act is in issue here. It 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:
(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 or freedoms of other persons (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 a Minister’s determination; and
(b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct;
the competent authority may make a refusal/cancellation request in relation to the person.”
6.The Australian Federal Police is a “competent authority”.
7.If a competent authority makes a refusal/cancellation request under s 14(1) the Minister may cancel it under s 22(1) of the Act and may refuse to issue a passport under s 14(2) of the Act.
8.The parties are agreed[2] that my task in reviewing the respondent’s decisions is:
(a) to determine whether there were (in relation to the cancellation decision) and are (in relation to the refusal decision) reasonable grounds to have the suspicion referred to in s 14(1)(a);
(b) if so, to consider the exercise of the discretion conferred by ss 14(2) and 22(1).
[2] Respondent’s submissions, pars. [1] – [2].
9.That analysis seems to ignore the element in s 14(1)(b) of the Act, that is, that the Australian Federal Police suspect on reasonable grounds that the applicant should be refused an Australian passport in order to prevent him from engaging in the conduct that is likely to be engaged in. That is also a matter that I will be required to consider.
Background
10.To a very great extent there is no dispute about the facts. The applicant was born in November 1949 and is now 57 years old. He has an appalling criminal history.
11.From an early age the applicant engaged in aberrant behaviour. His behaviour took essentially two forms – exhibitionism and indecent touching of male persons, generally young males. As to the former, he has in excess of 40 convictions for offences variously described as “indecent exposure”, “wilful exposure” or “wilful and obscene exposure” ranging from January 1971 when he was 21 years of age to December 1996[3] when he was aged 47 years.
[3]The conviction was recorded then but, as I interpret the criminal history, he was originally arrested in August 1990 but failed to appear.
12.His other offending against young males is more serious. He describes his underlying conduct as involving touching males in and around their genitalia. He was first convicted of an offence described as “commit indecent act on male person” in April 1971 and given a 9 month suspended sentence. In March 1972 he was convicted of assaulting “a male person with an act of indecency” and put on a bond for five years. He was again put on a bond for two offences of indecently assaulting a male person in January 1975. In May 1976 he was put on a bond for another offence of indecent assault on a male person.
13.In August 1978 he was sentenced to two years gaol for two offences of indecent assault on a male person. Then, in February 1991 he was convicted, by his own plea, of seven counts of aggravated indecent assault[4]. The circumstance of aggravation was, I assume, that the victims were over the age of 13 years and under the age of 16 years. A sentence of two years and eight months imprisonment was imposed
[4] Section 324, Criminal Code (W.A.)
14.I should add that in amongst these convictions is a wide range of other offences – dishonesty, traffic and drugs – of lesser significance. I should also note that a summary of criminal history prepared by the Australian Federal Police for the purpose of the application to the respondent makes reference to matters in 1994, 1995, 1998 and 1999 however these notations do not appear on the documents in evidence before me that were sworn to by Mr Craill of the Australian Federal Police as being the applicant’s full criminal history.
15.Following his sentence in February 1991 the applicant spent some months in Freemantle Gaol before being sent to a low security prison farm. He escaped from this custody in November 1991. He appears next to have come
to the attention of the authorities in December 1996 when he was convicted in Darwin of a string of offences against morality including one count of indecently dealing with a child under 15 years. He was sentenced, on my calculations, to an effective sentence of approximately one year.
16.It seems then to be the case that he left Australia in 1998 and spent the next five years or so in Indonesia, principally Bali. I have evidence from people who had dealings with him during this time. I will discuss that evidence in detail below.
17.On 28 February 2004 the applicant was deported to Australia having been arrested in Bali for immigration offences. He appeared in the Perth Court of Petty Sessions on 22 March 2004 and was sentenced to an additional 4 months gaol for escaping from lawful custody. He was, of course, obliged to serve the balance of the sentence imposed in February 1991. He was released in July 2005.
18.As a consequence of the February 1991 convictions the applicant, on his release, became a “reportable offender” as the expression is used in the Community Protection (Offender Reporting) Act 2004 (WA). Amongst other obligations imposed by that Act, the applicant was obliged to report any intended travel out of Australia to the Commissioner of Police at least 7 days before leaving the State. If circumstances made it impracticable for him to do then he was obliged to report the required information no later than 24 hours after leaving Western Australia.
19.The applicant is obliged to comply with these and other reporting obligations until July 2020.
20.In December 2005 the applicant was issued with an Australian passport. He used that on 28 February 2006 to fly to Singapore. He had earlier flown to Bali but had been refused entry, apparently because he had breached Balinese immigration laws.
21.The fact of his departure from Western Australia came to the knowledge of police in Western Australia in April 2006 and a warrant was issued for his arrest for an offence against s 63(1) of the Community Protection (Offender Reporting) Act, constituted by his failure to report his intention to travel overseas prior to his departure on 27 February 2004.
22.In late April 2006 the applicant went to Thailand.
23.I infer that the Australian Federal Police became aware that the applicant was in Thailand. On 21 July 2006 the refusal/cancellation request that is in issue here was made to the respondent by the Australian Federal Police. The respondent, whilst overseas, made the decision that is the subject of these proceedings on the same day.
24.Seemingly as a consequence of the cancellation of the applicant’s passport he was arrested in Thailand on 11 August 2006 and taken to immigration detention. He was returned to Australia on 21 August 2006 and appeared in court that day charged with the offence against s 63(1) of the Community Protection (Offender Reporting) Act. He was remanded in custody. On 21 September 2006 he pleaded guilty to the offence and was fined $3,000.00.
25.These proceedings were commenced on 7 December 2006.
The Respondent’s Case
26.Given that the respondent advances an affirmative case I propose to examine that case first before considering that put forward by the applicant.
27.In essence, the respondent’s case is that there are reasonable grounds to suspect that if an Australian passport were issued to the applicant he 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. Stripped to its bare essentials, the case is that there are reasonable grounds to suspect that if issued with a passport the applicant would return to Asia and be likely to commit sexual offences against young males.
28.That case is sought to be made out in three ways:
(a)by reference to the applicant’s extensive criminal history and the inherent likelihood, given that history, that he will commit further offences;
(b) by reference to the evidence of Mr Ceri Skamp, a detective senior constable in the Western Australian Police; and
(c) by a contention that the applicant is unreliable and deceitful, is not a person of truth and does not appreciate the gravity of the previous offences he has committed.
29.The nature and extent of the applicant’s criminal history has already been set out and need not be repeated. What is also of some significance is the apparent absence of criminal conduct of the type in issue here for some years. On the least favourable view of the facts, the summary of the criminal history contained within the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), his most recent sexual offence seems to have been in December 1998. On the basis of what is sworn to as his full criminal history it was at least two years earlier. On either view there have been no convictions for aberrant sexual behaviour for a number of years.
30.It is also significant that the substantial gaps in the applicant’s criminal history in the period from 1971 to 1996 arise only when the applicant was in gaol. That is, except when he was imprisoned the applicant tended to be committing offences. The period from 1998 (or 1996) to date is the longest period that the applicant has gone without being convicted of criminal offences.
31.The case for the respondent did hint at the applicant’s behaviour overseas that might answer this description. It was never advanced as part of the respondent’s Statement of Facts and Contentions filed on 15 March 2007[5] and it was not put directly to the applicant in cross-examination. It is hinted at in this passage of evidence from the affidavit of Mr Craill, a member of the Australian Federal Police who interviewed the applicant:
“9. On 29 August 2006 during a taped record of interview between AFP and Mr Thompson he made admission to seeking and gain [sic] employment at a school in Pradjenburi, Thailand. The AFP has been unable to confirm or corroborate information that Mr Thompson engaged in harmful conduct however he made admissions to having his employment terminated by Mr Chris Redman, the principle [sic] of the school for ‘touching and grabbing kids’”.
[5] Exhibit 3.
32.Two things may be said about that passage of evidence.
33.First, the information referred to that could not be confirmed or corroborated was not put before me and there was no evidence before me of the applicant, in this part of his life, engaging in any harmful conduct. The evidence that I have, which is part of the applicant’s case, is examined below but it is to the contrary.
34.Second, what purports to be a quotation from the interview is not, in fact, what was said. The passage in the second sentence is not a fair summary of the words used in the record of interview.
35.Mr Skamp has been a detective for five years, the last year of which he has been attached to the Australian National Child (Sex) Offender Register (ANCOR) Unit. In that capacity he follows up failures to report on the part of reportable offenders such as the applicant. Counsel for the respondent, Ms Ford, quite properly, did not press the admission of paragraph 28 and 29 of his affidavit.
36.Mr Skamp expressed this opinion in his affidavit (which I admitted over objection):
“11. On 21 August 2006 my superior officer and I had a conversation with Mr Thompson on his return to Perth, when we picked him up from the Perth airport, in which he discussed his life in Thailand and his previous convictions. Mr Thompson made light of his criminal sexual dealings with children, saying words to the effect of ‘I only gave them a tickle’.
12. From my experience of dealing with convicted sex offenders I found Mr Thompson’s descriptions of his convictions for child sex offences cause for concern. The minimising of this serious criminal conduct by Mr Thompson showed a lack of insight in relation to his offending and was indicative of a paedophile who did not fully appreciate the rights of children under 16 to live in a sexually safe environment.”
37.As is apparent from the extract from paragraph [12] the language used by Mr Skamp is the language of psychologists or, perhaps, psychiatrists. It was not suggested that he had any qualifications, beyond his experience as a police officer, that would enable to express these opinions and it transpired that that experience was in fact quite limited. I do not doubt that Mr Skamp holds these opinions and may do so in good faith but I do not find them to be of any assistance in deciding the issues before me. Mr Skamp’s limited experience and absence of qualifications do not permit me to accord any weight to his opinions, although I accept it as the fact that the applicant described his offending behaviour as Mr Skamp said.
38.Mr Skamp also gave evidence of the risk assessments undertaken on the applicant upon his release from prison[6] using a procedure known as Static-99. The procedure was developed, it is said, in order to provide an empirically -based risk prediction for sexual offenders. On the basis of this assessment the applicant was rated as a high risk i.e. he had 4 in 10 chances of re-offending within the next 5 years.
[6]It is not clear when this was done but it can only have been in July 2005 or September 2006.
39.In the course of eliciting further evidence in chief from Mr Skamp it emerged that as recently as the Friday prior to the hearing Mr Skamp had
undertaken another risk assessment, using a procedure known as Risk Matrix 2000. The matter was stood down to enable Mr Maughan, the solicitor for the applicant, to study this document. Counsel for the respondent was apparently aware that Mr Skamp had undertaken this further assessment but had not made either the applicant’s solicitor or the Tribunal aware of the intention to lead this further evidence.
40.Risk Matrix 2000 undertakes what appears to be a more sophisticated process than does Static 99. It first rates “Crime Environment” by reference to the subject’s criminal history to produce a point score. Then the operator answers a series of questions regarding the subject by selecting a response to various criteria. For example, where it is “almost certain” that a subject has a diagnosed psychological or physical impairment that makes the subject unable to control sexual impulses, a score of 12 points in given. Where the subject does not have this attribute the rating is zero points.
41.Using this method Mr Skamp produced a “Crime Environment” score of 200, in the “Extreme” range, and a “Person Disposition” score of 87, in the “Likely” range. Collectively, these produced an overall assessment that the applicant poses an “Extreme” risk of repeat offending.
42.In addition Mr Skamp produced two further assessments which were not explained in the evidence in any detail. They appear far less sophisticated than the other procedures put before me and appear to be used as a basis for determining how frequently released offenders are required to report.
43.I accept that it is appropriate for policing authorities to use material of this nature for internal purposes but I have grave doubts that any of it is of assistance to me in determining the issue I have to decide; whether there are reasonable grounds to suspect that the applicant, if given a passport, is likely to engage in conduct that might endanger the health or physical safety of other persons.
44.I should say immediately that I accept that if the applicant were, in the future, to engage in conduct of the type that he has engaged in in the past then that is conduct that might endanger the health or physical safety of those persons. The same is true, at least in some contexts, for his exhibitionism; for example, were such behaviour to occur at a school or other places where children congregate.
45.The difficulty I have with the predictions of the likelihood of re-offending produced by Mr Skamp can be conveniently described as objective and subjective.
46.As I understand the operation of the Static-99 test, it operates on the basis of an analysis of the subject’s circumstances and criminal history in order to assess the probability of re-offending within 5 years. The analysis undertaken of the applicant produces a score of 9, in the high risk category, with 4 in 10 chances of re-offending within 5 years.
47.However the operation of the test is such that had it been performed in 1996 the same score and the same probability prediction would have resulted. Yet it is possible to say that the applicant did not re-offend within the 5 year period or indeed in the 10 year period after the test. I cannot see how logically it could be said that in 2005 or 2006 the probability of re-offending remains at 4 in 10 when no offences were committed in the previous 10 years.
48.The flaw, as it seems to me, in the logic of this method is that it does not take into account periods of compliance with the law. That is to say, once a subject’s criminal history is of a range and volume to warrant a score of 6 or more points Static-99 seems to suggest that the offender continues indefinitely to have a 4 in 10 chance of re-offending even as that prediction is falsified by the passage of time.
49.The same comment is true, but subject to one qualification, of the Matrix 2000 test. Whatever the “Crime Environment” rating is, it remains static over time. The recent history of the subject is brought into account in the “Person Disposition” assessment.
50.What I have described as the subjective concerns arises from the approach of Mr Skamp. I do not doubt his integrity nor do I doubt his passion for his work. But in my view Mr Skamp has not approached the task of performing the tests on the applicant with any degree of detachment or objectivity. He has a view of the applicant which is not favourable and that view has affected the way in which he undertook the Matrix 2000 test.
51.Some examples will suffice. Under the heading “Current Deviant Behaviour” Mr Skamp chose this description:
“There is information or intelligence to suggest the nominee is currently collecting or distributing materials which may serve a sexual purpose for that person; OR There is information or intelligence to suggest that the nominee is currently engaging in sexual behaviour.”
The reason that Mr Skamp chose that response was because an unnamed member of the Australian Federal Police had informed him that
“it was possible that [the applicant] may have been committing offences against children in Thailand.”
Leaving aside the consideration that there is not a shred of evidence before me that the applicant had been committing such offences, the information available to Mr Skamp does not answer the description given. On the material available to Mr Skamp he ought to have chosen the 3 point description:
“There is information or intelligence to suggest the nominee is currently suspected of engaging in deviant behaviour.”
52.Similarly, under the heading “Anonymity” Mr Skamp chose the description:
“There is information or intelligence to suggest the nominee’s identity and criminal background are unknown to any person outside the Police Service; AND there is also information and intelligence to suggest the nominee is using this advantage to gain access to a child.”
53.There is simply no evidence, and none available to Mr Skamp, that would permit that to be regarded as an accurate answer.
54.A similar vice permeates the “Crime Environment” rating. Mr Skamp has undertaken that rating on the basis that the applicant had been charged with 3 or more sexual assaults. In the context of this assessment it seems to me to be plain that the types of sexual assaults referred to in this category are of a serious nature, such as rape, and that the conduct of which the applicant was guilty was more appropriately described as “indecency offences”, a separate category on the document. Moreover Mr Skamp was unable to explain why he had considered that the applicant had been charged with 3 or more offences involving sexual assaults on victims over 18 years of age yet was unable to locate any such offences in the applicant’s criminal record.
55.It is neither necessary nor desirable for me to seek to undertake the Matrix 2000 assessment myself. Certainly cross-examination demonstrated that if more appropriate descriptions are adopted the overall risk went from “Extreme” to “Medium”. But ultimately my concerns about this evidence lead me to conclude that I ought to give no weight to it; rather I should consider what can be demonstrated of the applicant’s history and consider from that the likelihood of his re-offending.
56.The respondent’s contentions regarding the applicant’s character may be true in relation to his criminal history. Certainly it is the case that he has been guilty of offences of dishonesty. It is unnecessary for present purposes to consider his character in the past; it is necessary only to consider his present character in the context of the issues that I have to determine.
The Applicant’s Case
57.To some extent the applicant’s case is reliant upon my impression of him and the view I formed of him and, from that and the other information before me, undertake an assessment of the likelihood of him re-offending. My impressions of him are, of course, limited to my observations of him in the witness box, supplemented by the transcripts of two lengthy interviews of the applicant conducted in August 2006. On that basis I must say that I did not gain the impression that the applicant was unreliable, deceitful or untruthful. There were aspects of his evidence where it could be said he was unreliable but that is a consequence of the passage of time rather than dishonesty. And it is certainly true that in answering some questions he displayed a good deal of emotion.
58.But it is wrong to say that the applicant does not appreciate the gravity of his past offending. I think he appreciates it fully and, indeed, is tormented by it. The interview of 29 August 2006 seems to me to demonstrate a much greater maturity in the applicant than was demonstrated by his past history. My impression of him was that he was genuinely remorseful about his past. Any tendency to minimise his past conduct seemed to me to be caused by an embarrassment about the extent of his aberrant behaviour rather than a conscious attempt to downplay its significance.
59.When considering the applicant’s evidence, it is important to consider the evidence given by three people who had significant dealings with the applicant whilst he was in Indonesia.
60.Mr Michael Freeman is an Australian citizen who lived and worked in Bali between about 1998 and 2003. He met the applicant in 1999 through the work that the applicant did as a trainer at the Bali International Cricket Club. Mr Freeman was a member, and at times a committee member, of that Club. Importantly Mr Freeman has two sons who were in their early and mid-teenage years at time when the applicant was in Bali and had substantial dealings with Mr Freeman and his family. The sons were substantially involved in the Cricket Club and with the applicant as a coach and trainer at that Club.
61.Mr Freeman was aware, in a general sense, of the applicant’s criminal history. He did not ever have any concerns about the welfare of his sons while they were in the applicant’s care and would have no such concerns now. He heard nothing in Bali to suggest that the applicant had been involved in the type of conduct that had earlier brought him to the attention of the authorities. He gave this evidence:
“Both of my sons were heavily involved in the cricket leagues that Paul helped to establish. We were happy for our sons to train in and play cricket with Paul. His skills, and single minded energy and enthusiasm for bringing sporting opportunities to young people were appreciated by us. It was largely through his efforts that our sons engaged in cricket in Bali, in a league primarily designed for local players. Paul assisted my sons to progress in their skills and sportsmanship. He encouraged them to establish their own team and assisted them to gain leadership experience. One of my sons was also involved in assisting to train local boys in the game. Paul was very supportive of the young local players and their families. I recollect he successfully worked to find medical assistance for the father of one of the players who was at one time critically ill.
These were the actions of a man trying to do the right thing by people around him and most particularly the young people he was training. His dedication to the task at hand, which was undertaken for very little financial reward, was appreciated. Paul showed us that he was a hard working contributor to the community of which he was a part.”
62.Mr Alan Wilson is a veterinarian based in Indonesia. He also knew the applicant through his work in cricket. He first met him in 1999 or 2000. He became aware in 2004 of some detail of the applicant’s criminal history. When that came to light the Cricket Club undertook a survey of some 40 parents whose children had been taught by the applicant with the result that:
“Not a single complaint was heard; quite the contrary most thanked him for giving the kids a sense of purpose and many considered it an honour to have him in their homes.”
63.Mr Wilson, on behalf of Cricket Indonesia, is able to offer the applicant employment. This passage from the evidence seems to me to be of some significance:
“Now, given what you now know about Mr Thompson’s criminal history, what I have asked you to assume, does that change your conclusion as to his employment prospects with you? – I don’t think it does, no, because I firmly believe that whatever he did in the past he has changed, and I don’t think it does, no.”.
64.Mr Ian Jasper was the President of the Bali International Cricket Foundation. In that capacity he knew the applicant over a period of about five years. Having spoken of the involvement of the applicant with children in the Cricket Club, Mr Jasper continued:
“Whereas in this training Mr Thompson did have to be close physically at times to teach these young lads the basics of cricket, never at any time did he offend any lad or was there any cause whatsoever to doubt the real intentions and dedication of his efforts. When, unfortunately Mr Thompson was removed from Bali some members of the Bali International Cricket Club did ask if there had been any suspicion to Mr Thompson’s actions in Bali. I, personally, spoke in Indonesian to the parents of young cricket players as to their feelings towards Mr Thompson and all parents were of the same reaction ‘He was great to the lads and we can only say thanks that our kids have learnt so well and enjoy the game, all due to Mr Paul.’ When I asked of the suspicion of some people the response was ‘Never ever’ by all parents to whom I spoke directly.”
65.I must say that I was most impressed by each of these witnesses. They seemed to me to have a genuine appreciation of the importance of the issues involved in these proceedings and gave careful thought to their evidence. It must be accepted, of course, that they cannot, even collectively, have been aware what the applicant was doing at all times during his period in Bali however I find it impossible to believe that the applicant could have been engaging in aberrant behaviour in Bali without one or more of them becoming aware, at least of rumours, of such conduct.
66.I should, finally, mention the incident involving the applicant’s employment in Thailand. The way in which this incident was regarded by the respondent in the evidence, cross-examination and submissions demonstrates the almost inevitable response to a criminal history like that of the applicant. According to the applicant, whilst employed as a teacher at a school in Thailand, he had occasion to escort two misbehaving boys to the office of the headmaster. He did this by taking each of them by the arm. There were, he said, no sexual overtones to the dealing and no impropriety at all involved in it. The case for the respondent hinted at there being some impropriety in the applicant’s conduct in relation to this matter however the respondent chose not to call the headmaster, Mr Chris Redmond who, or so it was suggested in cross-examination, had a different version to that of the applicant. I make it plain that I accept the applicant’s evidence about this incident.
Reasonable Grounds for Suspicion
67.The parties are agreed that I stand in the shoes of the respondent, not the Australian Federal Police, and that it is the latter, and not the former, who must entertain the suspicions spoken of by s 14(1) of the Act. It is, however, also accepted that I am to be satisfied that the Australian Federal Police had reasonable grounds to hold those suspicions. The matter was put in this way in the submissions of the respondent:
“… the real issue is whether the AFP had, and has, reasonable grounds for suspecting that Mr Thompson is likely to re-offend if issued with an Australian passport.”
68.The applicant’s submissions put in issue whether, in fact, the Australian Federal Police entertained the requisite suspicion. My attention was drawn to the statement made to the respondent in support of the refusal/cancellation request that:
“Seizing Paul THOMPSON’S passport and ensuring his return to Australia is the most effective means of ensuring the execution of the outstanding warrant and his continued compliance to ANCOR requirements.”
69.There is much to be said for the view that the refusal/cancellation request was motivated by a wish to force the applicant to return to Australia but even if that were so it does not mean that the requisite suspicion was not in fact held. A desire to force the applicant to return to this country is not inconsistent with the holding of the requisite suspicion. But in any event it seems to me not to matter whether, in fact, the suspicion was held. It remains the law that the Tribunal undertakes merits review. So long as there is a purported decision any want of form in the making of that decision does not matter[7].
[7] Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, 319-220.
70.In considering the “real issue” is it important to bear in mind that I am not concerned to determine, as a matter of fact, whether it is likely that the applicant would re-offend, rather I am concerned to determine whether there exist reasonable grounds to suspect that, if issued with a passport, the applicant would be likely to re-offend.
71.What is required is the existence of facts which are sufficient to induce in a reasonable person the requisite state of mind[8], in this case a suspicion that the applicant would be likely to re-offend. Suspicion and belief are, of course, different states of mind. As to the former it is useful to set out what was said in George v Rockett[9]:
“Suspicion, as Lord Devlin said in Hussein v Chong Fook Kam[[10]], ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [[11]], a question was raised as to whether a payee had reason to suspect that the payer, a debtor, ‘was unable to pay [its] debts as they became due’ as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth.). Kitto J. said [[12]]:
‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of the reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.’”
[8] George v Rockett (1990) 170 CLR 104 at 112.
[9] Ibid. at 115-116.
[10] [1970] AC 942 at 948.
[11] (1966) 115 CLR 266.
[12] (1966) 115 CLR at 303.
72.The other concept that is in issue is whether it is “likely” that the applicant will re-offend. In the well-known passage from Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union[13]Bowen C.J. (with whom Evatt J agreed) identified the wide variety of meanings of the word in these terms:
“The word ‘likely’ is one which has various shades of meaning. It may mean ‘probable’ in the sense of ‘more probable than not’ – ‘more than a fifty per cent chance’. It may mean ‘material risk’ as seen by a reasonable man ‘such as might happen’. It may mean ‘some possibility’ – more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.”
[13] (1979) 49 FLR 331 at 339. See also per Deane J at 346-347.
73.In its present context I think “likely” is to be equated with “material risk” rather than “more probable than not” or “some possibility” which seem to me to be the opposite ends of the spectrum of likelihood. Given that the decision to cancel a passport is a serious constraint upon the ordinary freedoms of citizens it would not be proper to judge the issue by reference to mere possibility. Some greater degree of likelihood, but not necessarily the balance of probabilities, is required. Thus I propose to consider “likely” on the basis of “material risk”.
74.On that basis, the question I must address is whether as at July 2006, when the cancellation decision was made, there were reasonable grounds to suspect that if an Australian passport were issued to the applicant there was a material risk that he would re-offend. A similar question is posed at the present time in relation to the refusal decision[14], because that decision concerns a continuing “entitlement” to be issued with a passport.
[14] See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333.
75.The parties are agreed that in considering these questions I am to take into account all relevant facts of which I am aware even though the original decision maker may not have been aware of such facts[15].
[15]Respondent’s submissions, citing Re Repatriation Commission and McCartney (1986) 9 ALD 441 at p449.
76.The respondent submitted that there was, and is, a sound basis for a suspicion that if issued with a passport there was a real and not remote possibility that the applicant would re-offend. Reliance was placed upon:
(a)the applicant’s extensive criminal history of sexual/indecent assaults dating back to 1971 in four States of Australia;
(b)the sentence of two years eight months in February 1991 for seven counts of aggravated indecent assault;
(c)the escape from custody;
(d)re-offending after escaping;
(e)use of false names and dates of birth;
(f)being a reportable offender and remaining so until 2020;
(g)the breach by the applicant of his reporting obligations by travelling overseas without reporting;
(h)alleged false report that he was in Malaysia when in fact he was in Thailand.
77.These matters, it was said, when considered together constituted reasonable grounds for suspecting that the applicant is likely to engage in conduct that might endanger the health or physical safety of others.
78.There is no doubt that the applicant has an extensive criminal history and, equally, that a pattern of repeated offending can provide a guide to the likelihood of re-offending. But here, as it seems to me, the pattern has been interrupted. From 1971 to 1996 (or 1998) the applicant, when not in gaol, was committing offences on a regular basis. From either 1996 or 1998 that pattern stopped. From that time onwards the only offence which the evidence shows the applicant to have committed is that of breaching his ANCOR reporting requirements.
79.The respondent’s submission seemed to put in issue the question of whether the applicant had re-offended after he left Australian in 1998. It was said that the applicant’s witnesses – Mr Freeman, Mr Wilson and Mr Jasper – had only limited knowledge of his past criminal history and were mainly involved with the applicant’s cricketing activities. And it was said that the applicant’s evidence as to his behaviour whilst overseas was “unreliable”.
80.The submission regarding the applicant’s witnesses may be accepted but seems to me not to be to the point. The point seems to me to be that the three witnesses – one the father of teenage boys – had considerable exposure to the applicant over a period of years, albeit in a confined setting, and did not see or hear anything untoward about the applicant’s conduct. Moreover, it is the fact that the respondent, with very considerable resources at his disposal, could produce no evidence of any untoward behaviour on the part of the applicant in this period of his life beyond the unconfirmed and uncorroborated information mentioned in Mr Craill’s affidavit.
81.The submission that the applicant’s evidence ought be regarded as unreliable is supported by reference to his preparedness to use false names, his failure to abide by his ANCOR reporting obligations in various ways, by reference to Exhibit 13 which incorporates details of his overseas travel and on the basis that he has a tendering to minimise past conduct.
82.Much of the respondent’s attack upon the applicant’s reliability is quite frankly unfair; partly because it was never made part of the respondent’s case and partly because the applicant was not given an opportunity to comment upon it. But despite that I shall assume that it is open to the respondent to advance a case in submissions that has these defects. I observe however that the content of procedural fairness does not vary according to a decision-maker’s view of the nature and extent of previous convictions.
83.I am not aware of any evidence of recent use of false names, that is within the past 10 years, on the part of the applicant. His evidence was that he changed his name by deed poll in late 2005. There is also evidence of use of other names but it seems to me that unless it can be shown that that use was recent it rises no higher than the fact that until 1998 the applicant led a somewhat anti-social existence.
84.Much is made of the applicant’s failure to abide by his ANCOR reporting requirements. But his evidence was that the explanation of his reporting obligations was “vague” and that he had understood his obligations differently and thus complied with the obligations as he understood them to be. Whilst that does not amount to a defence to a prosecution, it does diminish the value of a submission that it tends to render his evidence unreliable.
85.Exhibit 13 comprises a printout of the applicant’s travel movements and copies of some of his incoming/outgoing passenger cards. It is said that this exhibit shows that when the applicant left Australia in December 2005 he gave his usual occupation as “Sales Manager” and that he would be overseas for 7 days. He was not cross-examined about these matters at all and thus I do not know whether that was his occupation at the time or his expected length of stay overseas. The same is true of the submission regarding the 27 February 2006 departure.
86.I have already considered the proposition that the applicant has a tendency to minimise past conduct in paragraph 58 above. I will not repeat what I have said there.
87.For these reasons I do not find the applicant’s evidence regarding his behaviour overseas to be unreliable. On the contrary my generally favourable impression of him, together with my views regarding the applicant’s witnesses, led me to conclude that his evidence regarding his behaviour overseas is reliable.
88.Having reached that conclusion I am satisfied that there is no evidence whatsoever that since at least 1998 the applicant has engaged in the type of sexual misconduct that previously characterised his life and that, on the basis of the absence of such evidence, I should conclude that the applicant has not engaged in that conduct since that time. That conclusion can be more readily drawn where the resources available to the respondent cannot produce any evidence whatsoever of continued offending of a sexual nature.
89.I return then to the matters that the respondent relies upon as providing a sound basis for the requisite suspicion.
90.The first matter, the applicant’s extensive criminal history, is significantly diminished by my conclusions regarding his conduct since 1998. The second matter, the serious 1991 offences, adds nothing to the applicant’s extensive history. The same seems to me to be true of the escape from custody and the commission of offences after escape.
91.It was not made clear why the use of false names and dates of birth, either alone or in combination with the other matters, should more readily found reasonable grounds for suspicion of a likelihood of re-offending. But if there were assumed to be such a link, where, as here, there is no evidence of the recent use of false names and dates of birth I do not regard the use of false names some years ago as providing any such basis a fortiori where the respondent’s case was not presented that way[16] and the matter was not taken up with the applicant in an extensive cross-examination.
[16]By reference to the respondent’s Statement of Facts and Contentions lodged on 15 March 2007 – see Exhibit 3.
92.The fact of the applicant being a reportable offender and remaining so until 2020 must be accepted. But I would have thought that, if anything, this would tend in the opposite direction, particularly now the applicant is aware, by virtue of one month’s remand in custody and a $3000 fine, of the need to comply.
93.The final matter relied upon warrants closer examination. It is said that the applicant,
“…advised by email that he was in Malaysia, whereas shortly after his last communication he was known to be living in Thailand and only returning to Malaysia from time to time to renew his visa for Thailand. Mr Thompson did not inform ANCOR of this change in his circumstances.”
94.That contention (which is not mentioned in Exhibit 3) is founded upon Exhibit 4, a series of emails between the applicant and members of the Western Australian Police ANCOR Unit. It will be recalled that the applicant left Australia (from Darwin) on 28 February 2006. His evidence was that he had raised with his then supervisor, Ms Kay, an intention, albeit “vague”, of travelling to Asia. Within 7 days of his departure he notified ANCOR of the fact of his departure.
95.On 2 March 2006 Mr Wilson, Ms Kay’s replacement, sent the applicant an email asking him to advise of his travel movements and flight details for his return to Perth. The applicant responded promptly, stating he was “still in Singapore” and anticipated spending March there.
96.Mr Wilson then sought these details:
“How did you travel to Darwin before leaving Australia? Would you please let me know who you advised (here in Western Australia) regarding your travel to, and stay in, Singapore? Please advise forthwith of any plans to return to Australia. I would appreciate you staying in contact with me.”
The applicant responded on 12 March 2006 advising that he had flown to Darwin from Perth and subsequently to Singapore and that he had spoken to Ms Kay of his intention. His message continued:
“Currently in Malacca – Malaysia and am accepted well in this neck of the woods…”
Then on 15 March 2006 he sent a further message to the effect that his intention was to stay in Malacca until March,
“…and will let you know any developments in regard to employment or more stable abode”.
97.The applicant sent a later email of 28 March 2006 advising of a change in location to an island off the coast of North Malaysia and an inability to obtain steady work. On 25 April 2006 the applicant went to Thailand. It appears to be the case that he did not tell ANCOR of that move however the particular request that had been made of him was to advise of any plans to return to Australia.
98.Beyond the fact that the applicant did not notify ANCOR of his move from Malaysia to Thailand (and assuming that he was obliged to do so) I am unable to find any sinister connotation in that move or in the emails that preceded it. Perhaps if the respondent had indicated that there was an issue regarding these mattes by referring to them in his Statement of Facts, Issues and Contentions or had raised them directly with the applicant in cross-examination then the point sought to be made might have been clear but it presently escapes me.
99.As a result, and in light of the evidence, I am persuaded, especially by the evidence of offending behaviour in the recent past that it is unlikely that the applicant will re-offend. I conclude, as well, that I am not satisfied that there were or are reasonable grounds to suspect that the applicant is likely to re-offend if issued with a passport. It follows that I am equally not satisfied of the matters in s14(1)(b) of the Act.
100.I should also make mention of one of the respondent’s submissions which urged me to take into account that if issued with a passport the applicant might again breach his ANCOR reporting requirements and could not be properly monitored if he was not in Australia. It is not clear to me whether the submission is put forward in support of the respondent’s argument that there was, and is, a sound basis for the suspicion that the applicant would re-offend or whether it goes to the residual discretion. If it is the former I reject it; these matters cannot possibly impact upon the question of there being reasonable grounds to suspect. If it is the latter it seems to me to be an irrelevant and improper consideration. In circumstances where I am not satisfied that the pre-condition to the exercise of the discretion is established, it would be a misuse of the power to cancel a passport to do so in order to compel the applicant to comply with his ANCOR reporting obligations.
101.I add for completeness that had I been satisfied that there were reasonable grounds for the requisite suspicions then I would not have regarded the matter, in that circumstance, as being a case where the residual discretion ought be exercised favourably to the applicant.
102.Given that I have concluded that there were not, and are not, reasonable grounds to hold the suspicions referred to in s 14(1) of the Act it follows that I would set aside the respondent’s decision of 21 July 2006 to cancel the applicant’s passport and substitute a decision that his passport not be cancelled. I would, as well, set aside the decision of the same date to refuse to re-issue a subsequent passport to the applicant. It seems not to be necessary to make a decision in substitution of that latter decision.
103.It should however be plain to the applicant that the Australian Federal Police has the authority in a proper case to make a refusal/cancellation request of the respondent in the future. Thus if it were to transpire that my conclusion that there was no evidence of re-offending since 1998 was falsified by the emergence of such evidence or if evidence were to emerge that the applicant was engaging in such behaviour in the future, then I imagine that the Australian Federal Police would be likely to make a further refusal/cancellation request Were that to be the case the respondent’s power to cancel and to refuse to re-issue would be likely to be exercised again. It is not a power that is spent; it is capable of being re-exercised in a proper case.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....................Signed................................................
Eleanor O’Gorman, AssociateDate of Hearing 20 March 2007
Date of Decision 20 April 2007
Date of final submissions 3 April 2007
Solicitor for the Applicant Mr A Maughan
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Minter Ellison
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