WHHK and Minister for Foreign Affairs
[2022] AATA 446
•14 March 2022
WHHK and Minister for Foreign Affairs [2022] AATA 446 (14 March 2022)
Division:GENERAL DIVISION
File Number: 2020/5859
Re:WHHK
APPLICANT
Minister for Foreign AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:14 March 2022
Place:Brisbane
The decision under review is affirmed.
.............[SGD]...........................................................
Deputy President J Sosso
CATCHWORDS
PASSPORT — Review of the Minister’s decision to cancel Applicant’s passport pursuant to s 14 of the Australian Passports Act 2005 — Where there is evidence the Applicant committed child sex offences — Passport needed for employment purposes — Risk of harm to overseas children — Decision under review affirmed
LEGISLATION
Australian Passports Act 2005 (Cth)
Australian Passports Determination 2005 (Cth)
Australian Passports Determination 2015 (Cth)
Crimes Act 2009 (Fiji)
Criminal Code (Qld)
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Sentencing and Penalties Act 2009 (Fiji)
CASES
Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 331; (1991) 30 FCR 49
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Du Pont and Minister for Immigration and Ethnic Affairs (1983) ALN N205; [1983] AATA 180
Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
King and Minister for Foreign Affairs and Trade [2006] AATA 636
Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Saad and Minister for Foreign Affairs [2007] AATA 1675
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Thompson and Minister for Foreign Affairs and Trade (2007) 45 AAR 149; [2007] AATA 1244
Thompson and Minister for Foreign Affairs
[2019] AATA 2172
REASONS FOR DECISION
Deputy President J Sosso
14/03/2022
INTRODUCTION
WHHK (the Applicant) seeks a review of the decision of the Minister for Foreign Affairs (the Minister) to cancel his passport under s 14 of the Australian Passports Act 2005 (Cth) (the Act).
Subsection 14 provides that if a “competent authority” suspects on reasonable grounds that if an Australian travel document were issued to a person, and that person would be likely to engage in specified conduct, the competent authority may make a cancellation request in relation to that person.
A “competent authority” is defined by s 14(3) to include various specified persons and entities. In particular, subparagraph (c) refers to 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…”
The Minister has made a determination, namely the Australian Passports Determination 2005 (Cth). At subregulation 14(1) of the latest version of the Determination (Australian Passports Determination 2015 (Cth)), three entities are prescribed as competent authorities in relation to the circumstances mentioned in s 14(1) of the Act. Of relevance to this matter is the second entity prescribed as a competent authority, namely the Australian Federal Police (AFP).
On 10 August 2020, the AFP made a passport cancellation request under s 14(1) as it was believed that if an Australian travel document was issued to the Applicant, he would be likely to engage in conduct that – Exhibit 1 T2 pp. 14 - 20:
(i)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); and/or
(ii) might constitute an indictable offence against a Commonwealth law, being an offence specified in the Australian Passports Determination 2015 (Cth).
The indictable offences on which the request was based included offences against the Criminal Code Act 1995 (Cth), Division 272 (child sex offences outside Australia) – Exhibit 1 T2 p. 14.
The Minister is empowered, pursuant to s 22(2)(d), to cancel an Australian travel document issued to a person if a competent authority makes a cancellation request in relation to the person.
On 28 August 2020, the Minister determined to cancel the Applicant’s passport pursuant to s 22(2)(d) – Exhibit 1 T2 pp. 12 – 13.
The Minister’s decision is a reviewable decision pursuant to s 48(d), and an application can be made under s 50 for such a decision to be reviewed by the Tribunal.
On 17 September 2020, the Applicant applied to the Tribunal for a review of the Minister’s decision – Exhibit 1 T1 pp. 5 – 10. The Applicant provided the following reasons for claiming that the Minister’s decision was wrong – Exhibit 1 T1 p. 9:
“I do not have the details on which this decision was based however I believe it to be related to a criminal charge received in Fiji earlier this year, being indecent assault. It would be perceived in Australia that this would be of a sexual nature. In Fiji however, the act of putting your arm around the waist of a person without permission constitutes indecent assault and, if a review of the actual charge and conviction is done, it will be shown that this is what occurred.
Therefore I believe this decision to be wrong as I believe it to be based on a perception rather than the facts.
I also appeal on the basis that I require my passport for a government issued identification and a business need to travel to New Zealand once or twice a year to meet with our R&D team and visit our factory. This decision could likely cost me my job.”
APPLICANT’S HISTORY
The Applicant was born in 1965 and currently resides in Brisbane – Exhibit 1 T1 p. 6.
On 12 January 2006, the Applicant was convicted in Queensland District Court before Skoien J of the following charges – Exhibit 3 SM4 p. 25:
(a)one count of maintaining an unlawful sexual relationship with a child with circumstances of aggravation, pursuant to s 229B of the Criminal Code (Qld);
(b)two counts of indecent treatment of a child under 12 who is under care, pursuant to s 210(1)(a) of the Criminal Code (Qld); and
(c)two counts of indecent treatment of a child under 16 who is under care, pursuant to s 210(1)(a) of the Criminal Code (Qld).
The Applicant pleaded guilty to all charges and he was sentenced to six months imprisonment, followed by a three year probationary period with a special condition – Exhibit 3 SM4 p. 25:
“1.Undergo such psychological and psychiatric treatment and counselling as directed by a community corrections officer.”
All of the offences were perpetrated against the Applicant’s then stepdaughter, between 1 January 1998 and 22 February 2005, when the stepdaughter was aged between 8 and 14 years. The criminal conduct involved the Applicant entering his stepdaughter’s bedroom while she was asleep when he was (usually) in an intoxicated state. He would, over time, touch her breasts, backside and vagina, and would leave once he thought she was awake. The Applicant admitted to Police that this conduct occurred approximately once a month over four years – Exhibit 3 SM4 p. 26.
When sentencing the Applicant, Skoien J made the following observations – Exhibit 4 pp. 2 – 3:
“…For a period of six years you were a regular unwelcome visitor to her bedroom and her defence was to pretend to be asleep.
In your favour, I suppose, what comes out that, is that you must have believed, it seems, that she was not aware of what you were doing, because when she pretended to wake, you immediately left. This is quite an unusual feature. Most of the people who do similar things seem to get pleasure from the sense of imposing themselves on a conscious victim not an unconscious one.
The sad thing is, of course, that she was conscious and the real effect on her can only be guessed at…
Another aspect of your leaving the bedroom on her pretence at wakening indicates that even though it took place over a long period, the behaviour did not get worse and worse, which again is an unusual case. Most of these cases start with very minor things and end up often dreadfully with full blown rape. That of course has not been the case here….
It is an important, a very important feature, that you indicated your immediate cooperation with the police and in fact supplied details which the complainant child was unable to supply. It is very important that you, even before the committal proceedings took place, indicated that this would be a plea of guilty.
The child has not been forced to be questioned and cross-questioned about this. She has not been forced to do anything public other than to speak to the police, and that would have been a trained police officer who I have no doubt would have treated her in an extremely gentle way.
What you did, unpleasant as it was – and I do not for a moment want to understate this – but as I think I have indicated, was at the low end of what we see, unfortunately, in these courtrooms. It is clear enough to me that you feel complete remorse about this. That appears very obviously from the opinions of the psychiatrist and psychologist.
I might record here that they both are of the view that you were in some respects a predisposed personality to this sort of behaviour. You had – I quote from the psychiatrist’s report – ‘a stunted psychosexual development’. You were yourself, very sadly, abused while at a school by a member of the school staff, and the psychiatrist accepts that your normal sexual development was ruined by that abuse.
Well, that stands very much in your favour, because it is not as if you had a perfectly normal sexual attitude and chose to indulge it in a paedophiliac way; that is not the case.
It is the opinion of the two experts that with proper therapy, which you have already embraced enthusiastically, you are unlikely to reoffend. In other words, there are very good prospects for complete rehabilitation.
You have had the one job all your working life and your employer, who knows that you will almost certainly be unavailable for work for some period, is quite likely to be able to take you back.
This case is somewhat unusual for the reasons I have tried to encompass in these remarks…”
The Applicant remained a reportable offender until 22 September 2014, when his reporting requirements were ended due to legislative changes – Exhibit 5 GF9 p. 55.
On 1 March 2014, Queensland Police responded to a report that the Applicant was behaving suspiciously with an 11 year old female child in the swimming pool of his apartment complex.
A resident of the apartment complex, who was a prison officer and was aware that the Applicant was, at the time, a reportable offender, noticed the Applicant in the complex pool with two female children, one of whom was being “piggy backed” on the Applicant’s shoulders. The child was wearing shorts and a bikini top. The prison officer thought this was inappropriate and contacted the Police.
Police attended at the Applicant’s premises that evening, and he admitted that he was in the pool and had “piggy backed” the child in question, who was the daughter of one of his neighbours. The Applicant also admitted that it must have looked suspicious to other tenants, most of whom knew he was a reportable offender.
The Queensland Police notes of this matter state that no offences were committed, and no further action was required – Exhibit 5 GF9 p. 56.
On 1 March 2020, the Applicant was staying a Resort in Fiji. He had arrived in Fiji on 29 February 2020, travelling alone from Australia. He went direct from the Airport to the Resort and had booked a seven day stay – Exhibit 5 GF16 p. 114.
At around 3:30 pm, on Sunday 1 March 2020, the Applicant was at the pool bar by himself drinking white wine. He informed Fiji Police that he had drunk 4 – 5 glasses of white wine – Exhibit 5 GF16 p. 114.
It was reported to Fiji Police that the Applicant, during the course of the afternoon of 1 March 2020 whilst in the Resort pool, touched a 10 year old girl (Child 1) and a 14 year old boy (Child 2) without their consent. Both children had accompanied their respective families from Australia and were holidaying at the Resort.
Child 1 was interviewed by Fiji Police on 1 March 2020 and provided the following information – Exhibit 5 GF16 pp. 94 – 95:
“5) Can you tell me what happened to you today?
A.I was swimming in the pool near to the deeper end, when an old man grabbed me by my waist and my vagina inappropriately, as I was wearing a bikini.
6) What did you do when he did that to you?
A. I tried to get away but he didn’t let go of me until mum swam over and told him to let go of me. He then saw mum swim over, so he swam away and mum told him if he could return the floater.
7) What happened after mum got you out?
A. Mum then informed one of the staff waiting by the pool bar about what had happened, and I then ran until I knew I was far from that man, as I was afraid of what had just happened.
Afterwards, I went straight to the room and waited for mum and dad to open the room as they had the key.”
The mother of Child 1 was in the shallow end of the pool at the same time with her 7 year old daughter. The mother gave the following statement to Fiji Police – Exhibit 5 GF16 pp. 100 – 101:
“I looked over to check for [redacted] as she was swimming in the deeper end.
When looked back I saw a strange man grabbing her from behind, as she was in the inflator and I saw that she was trying to get away from the man.
I then called out asking if anyone knew that man was,but no one responded so I went over and got my daughter [redacted] out from the pool ring and at the same time I told that man to get away from my daughter.
After getting my daughter, I then asked everyone around the pool if anyone knew that man but no one knew him.
That man inappropriately touched my daughter…”
Fiji Police also interviewed Child 2, who provided the following statement – Exhibit 5 GF16 p. 96:
“At about 3:30pm I went to the pool with my mum. I had my swim T shirt and a shorts. I went inside the pool and was using the pool. After sometime a white man reached his arm to me. He wrapped his arm around my waist. He pulled me towards him. I tried to free myself from him but I couldn’t. He was laughing.
My mum then called me and this guy then let go off [sic] me. This guy continued to move around the pool. I came out of the pool with my mum.”
The mother of Child 2 gave the following statement to Fiji Police – Exhibit 5 GF16 p. 98:
“…I was in the pool with my son. I was about 10m away. I heard my son make a noise and that drew my attention towards him. I saw a guy holding him near waist and I called him. As soon as I called, the guy let off [sic] my son and my son came to me. The guy was laughing and swam around. We came out of the pool. I figured this guy was very drunk.”
Complaints were made to Resort management and contact was made with the Resort Security Duty Manager who, in turn, informed Fiji Police. At the request of Fiji Police, the Resort Security Duty Manager supplied CCTV footage of the pool area at the time of the reported incidents – Exhibit 5 GF16 pp. 106 – 107.
The Applicant was contacted by Fiji Police and he was formally interviewed on the afternoon of 3 March 2020 – Exhibit 5 GF16 pp. 112 – 115.
The Applicant informed the interviewing Police Officers that he could not recall taking a swim and said that he was sitting at the pool bar, sometimes with friends, sometimes alone. He stated that he did not recall the incident with Child 2 saying that he was “really shocked to hear all these, as I literally can’t recall this happening” – Exhibit 5 GF16 p. 115.
When asked about Child 1, the Applicant said that he recalled that she swam towards where he was sitting but he said he did not recall grabbing her by the waist and private area – Exhibit 5 GF16 p. 115.
At the conclusion of the interview, the Applicant made the following statement – Exhibit 5 GF16 p 115:
“I am saddened and shocked to see what happened in the video and I sincerely apologise to all concerned.”
The Applicant was charged with two counts of Indecent Assault contrary to s 212(1) of the Crimes Act 2009 (Fiji) – Exhibit 5 GF16 p. 88.
The particulars of the charge involving Child 1 was as follows – Exhibit 5 GF16 p. 88:
“…on the 01st day of March 2020 at Nadi in the Western Division, unlawfully and indecently assaulted [redacted] by grabbing her waist.”
The particulars of the charge involving Child 2 was as follows – Exhibit 5 GF16 p. 88:
“…on the 01st day of March 2020 at Nadi in the Western Division, unlawfully and indecently assaulted [redacted] by grabbing his waist.”
On 11 March 2020, the Applicant pleaded guilty at the Nadi Magistrates Court to both counts of Indecent Assault. Magistrate Ferdinandez sentenced the Applicant to seven months imprisonment, fully suspended.
Magistrate Ferdinandez, when sentencing the Applicant, stated that Counsel representing the Applicant submitted in mitigation that he was “a first offender and have no previous convictions” and that the Applicant had “a previous good character” – Exhibit 5 GF16 p. 127.
Magistrate Ferdinandez made the following sentencing remarks – Exhibit 5 GF16 pp. 130 – 131:
“16.This is the middle range offence and I impose 1 years as my starting point for the 1st count.
17.The victims are only aged 14 and 10. Similar to you, they have entered Fiji to enjoy their vacation with the family and while relaxing in their hotel they had to face this incident. No doubt, at such tender ages this experience might have immensely disturbed their young minds. You being a man of 54 years, the age gap between you and the victims are also vast. I consider these facts as aggravating factors and therefore, I add 1 year. The interim sentence is 2 years.
18.I grant full discount of 1/3 for the early guilty plea and reduce 8 months bringing the Interim sentence down to 16 months.
19.For your other facts in mitigation, including your previous good character, I reduce further 9 months.
20. Final sentence for Indecent Assault, I arrive at 7 months imprisonment.
21.For Count 2, applying the same formula as above, I arrive at 7 months imprisonment.
22.I order sentences to run concurrently in view of the totally [sic] principle of sentencing.
23.I am empowered to suspend sentences of 2 years or less pursuant to section 26(2)(b) of the Sentencing and Penalties Act 2009. After carefully considering your mitigating factors against the aggravating factors of this case, I decide that you are a good candidate for rehabilitation and decide to give you another chance.
24.As such, [WHHK], I suspend your sentence of 7 months for a period of 3 years. You must not commit another offence in the next 3 years. If you do, you may find yourself serving the 7 month term I suspended today.”
(bold in the original)
The Applicant was permitted to depart Fiji and return to Australia – Exhibit 5 p. 9 para 24(a)(iii).
Upon arriving back in Australia, three devices of the Applicant were held by officers of Australia Border Force (ABF) for further examination, namely his mobile phone, tablet and laptop computer – Exhibit 5 p. 84.
In an email dated 24 April 2020, an ABF officer provided the following information – Exhibit 5 p. 84:
“An assessment of the material located on those devices has now been made…and can all be classified as Category 7 of the Oliver scale of categorising CEM [Child Exploitation Material]. Category 7 is material that is not illegal.
The Category 7 material consisted of substantially young females (approx. 8 – 10) in underwear, swimsuits or bare chested in photos taken in a modelling/promotional type setting and also photos and a video of home videos which appear to have been sourced from overseas due to the use of an Russian/Ukrainian type language also depicting females approx. 8-10 in playing in underwear.
Also located was saved photos of primary/secondary age school girls that appear to have been sourced by [WHHK] from the pages of his ‘friends’ on social media sites such as Facebook. A few of these people have been identified and this information was previously communicated to yourselves as it may represent young children that [WHHK] is attempting to groom.
The ABF will now return the devices to [WHHK]and no further action will be taken by us under the Customs Act…”
THE HEARING
A Hearing was convened in Brisbane on 18 October 2021.
The Applicant was self-represented, and the Minister was represented by Mr Patrick Knowles. Mr Knowles was linked in from Sydney.
Due to social distancing requirements resulting from the COVID-19 pandemic and the fact that Sydney was, at that time, in lockdown, the Hearing was conducted via Microsoft Teams.
The Applicant gave evidence and was cross-examined. The only other person who gave evidence was Detective Superintendent Glen Fisher of the AFP.
At the conclusion of the Hearing, Directions were made giving the Minister the opportunity of providing to the Tribunal and the Applicant closing submissions by close of business 25 October 2021. The Respondent provided Respondent’s Supplementary Submissions (RSS) dated 25 October 2021.
Directions were also made giving the Applicant the opportunity of providing to the Tribunal and the Minister written closing submissions by close of business on 1 November 2021. The Applicant availed himself of this opportunity and provided to the Tribunal and the Minister undated Applicant’s Supplementary Submissions (ASS).
Finally, at the conclusion of the Applicant’s evidence, I raised with him the option of making a Confidentiality Direction so that his name would not be published, and, as a result, any children who were the subject of his criminal conduct, would not be at risk of identification – Tr. 18.10.2021 p. 42.
Subsequently, the Applicant sought a Confidentiality Direction. Mr Knowles did not oppose the making of such a Direction on the basis that there was a risk that, if the Applicant’s surname was published, it could lead to the identification of his stepdaughter – Tr. 18.10.2021 pp. 54 – 56.
I determined to make a Confidentiality Direction so that the Applicant’s surname would not be published. This was done because the Applicant has an unusual surname, and its publication would not only draw attention to him, but also to his ex-wife and his stepdaughter.
CONSIDERATION
Introduction
The legal representatives of the Minister drew the Tribunal’s attention to observations made in Thompson and Minister for Foreign Affairs [2019] AATA 2172 – Exhibit 2 p. 6 para 8. In that matter, the Tribunal noted that the request made by the ABF was legally valid; however, the issue was whether the evidence presented enabled the competent authority to suspect on reasonable grounds that, if an Australian travel document was issued, the holder would be likely to engage in conduct that might either endanger the health or physical safety of other persons or might constitute an indictable offence against a Commonwealth law specified in the Australian Passports Determination 2015 (Cth).
Clearly that is the case, as the Tribunal stands in the shoes of the Minister, and the task required of the Tribunal is the same as that required of the Minister at the outset. The difference between the Minister’s decision and that of the Tribunal is a practical and evidentiary one. The material provided to the Minister is necessarily of a summary nature, moreover, the Minister does not hear testimony and have the opportunity of watching and listening to person’s give evidence. In short, the review task undertaken by the Tribunal is of a qualitatively different nature. While the issue to be determined is the same, the Tribunal has the benefit of focused, detailed and legally tested evidence.
Next, it is submitted, on behalf of the Minister, that the threshold which must be satisfied before a request can be validly made under s 14(1) is low – Exhibit 2 p. 6 para 9.
It was further submitted that the suspicion that a person is likely to engage in conduct is satisfied if there is a real, and not merely remote, possibility that the person will do so – Exhibit 2 p. 6 para 9(a). A number of authorities were quoted in support of this proposition, but the Tribunal will only need, initially, to refer to Saad and Minister for Foreign Affairs [2007] AATA 1675. The Tribunal in that matter made the following observations:
“31.The Act and the Explanatory Memorandum (EM) make it plain that the competent authority need not be satisfied that the subject of a refusal request is actually engaging in conduct that constitutes an indictable offence under the Act. The competent authority must suspect merely that the person is likely to engage in such conduct. The meaning of ‘likely’ in this context is explained in the EM to the Australian Passports Act 2005. Paragraph 50 of the EM explains that the phrase 'likely to engage' is based on s 7E of the 1938 Act, and 'ensures 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'.
32.The courts have considered the meaning of ‘likely’ and the standards that should be applied to make a finding that something is likely. See, for example, Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; Shi v Migration Agents Registration Authority [2007] FCAFC 59; and the approach taken by the tribunal in Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244. I note also that in King and Minister for Foreign Affairs and Trade [2006] AATA 636, Senior Member Ettinger applied a similar test to that described by Jenkinson J in the case of Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711 when considering a similar phrase. Justice Jenkinson thought reasonable grounds to suspect a person may have done something ‘should be construed as to exclude a possibility which has a very low probability, of a kind sometimes described as remote or fanciful or merely theoretical’.”
The Tribunal accepts that the test of “likely to engage in conduct” in s 14(1) is satisfied if the risk is not remote, fanciful or merely theoretical, or, put another way, the test is satisfied if the Minister or, on review, the Tribunal, is reasonably satisfied that there is a real risk, and not merely a possibility, of a person engaging the prescribed conduct.
Attention can also be given to the observations of the Full Bench of the Tribunal (Forgie DP, Fice SM and Nikolić SM) in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 where the following helpful observations were made:
"106.Whether a person would be likely to engage in the specified conduct needs to be contrasted with the way in which s 14(1) of the Passports Act specifies the conduct. The focus of the conduct itself is not upon its likely outcome but upon what that conduct ‘might’ do. The word ‘might’ or ‘may’ is used to express permission but may also be used to express a possibility. Given that ‘likely’ and ‘might’ are both used in s 14(1)(a)(i) of the Passports Act, it can be expected that the interpretation of one may affect the other.
107.Notice also needs to be taken of the place of the word ‘likely’ in the context of the expression ‘would be likely’ and of legislation regulating the issue and cancellation of passports in circumstances in which every Australian citizen has an entitlement to such a passport, subject only to specified exceptions. Cancellation of a passport or refusal to issue a passport to a person removes what would otherwise be the person’s entitlement to hold it. As a consequence, it restricts that person’s freedom of movement from Australia but not for the sake of restricting it per se as for limiting the opportunity for the person to engage in the conduct specified in the section.
108.Having regard to all these matters, the balance seems to be that the likelihood that a person ‘would’ engage in conduct that ‘might’, and so that would possibly, prejudice the security of Australia or of a foreign country must be a more than possible occurrence. The need to consider conduct that is likely to have a particular outcome immediately would require consideration of the extent of that future period. Is it the immediate future measured in days or weeks or is it the future extending perhaps into years? It might be that the nature of the prescribed administrative action under consideration might be a relevant factor. That might give the period for which an Australian passport continues in existence some relevance but it would not be the only relevant factor. The nature of the conduct would also be a relevant factor as would any timeline inherent in that conduct.
109.Given that the diminution of the person’s entitlement to a passport occurs in the context of limiting the person’s potential to engage in conduct that might be harmful to a country’s security, the meaning of ‘beyond reasonable doubt’ sets too high a standard. It places the balance too much in favour of personal liberty and pays insufficient regard to security. So too do the possible interpretations of an ‘odds on chance’ or a ‘more than 50% chance’.
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 Convention110 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.”
(footnotes omitted)
The Tribunal’s attention was also drawn to the opening words of s 14(1), namely if a competent authority “suspects on reasonable grounds”.
The legal representatives of the Minister made the following submission – Exhibit 2 p. 7 para 9(b):
“suspicion is ‘a state of conjecture or surmise where proof is lacking’ and ‘the facts which can be reasonably ground a suspicion may be quite insufficient reasonably to ground a belief’.”
The Tribunal agrees with the first half of the above submission but is not satisfied that the second half properly characterises the test that must be applied.
In Thompson and Minister for Foreign Affairs and Trade (2007) 45 AAR 149; [2007] AATA 1244, the Tribunal observed:
“[71] What is required is the existence of facts which are sufficient to induce in a reasonable person the requisite state of mind…”
The same approach was adopted by the same Tribunal Member in Lang and Minister for Foreign Affairs (2010) 121 ALD 205 at [41].
The Tribunal prefers the formulation in the above two Tribunal determinations, and proceeds on the basis that when a competent authority suspects on reasonable grounds, it means that the material presented to the competent authority is sufficient for a reasonable person to reach the required state of satisfaction.
It is necessary now to deal with the evidence presented to determine whether the discretion in s 22(1) should be exercised because, if the Applicant were to be issued with an Australian passport, he would be likely to engage in conduct of the type enumerated in s 14(1)(a)(ii) or s 14(1)(a)(v).
Offending in Australia
As set out previously, the Applicant engaged in the frequent sexual abuse of his stepdaughter over a six year period when she was aged between 8 and 14 years. The Applicant informed Police during an interview on 21 February 2005 that he mostly offended when he was disinhibited after consuming alcohol – Exhibit 3 SM1 p. 7
The Tribunal has been presented with a detailed report prepared for the Applicant’s sentencing by Dr Ian Lynagh, Consultant Psychologist. The report is dated 19 December 2005 and was prepared after some 21 hours of consultations – Exhibit 3 SM3 pp. 17 – 24.
After setting out the Applicant’s history and the progress of his treatment, Dr Lynagh concluded as follows – Exhibit 3 SM3 pp. 23 – 24:
“[WHHK], now pleads guilty to charges involving sexual abuse of his pubescent stepdaughter over a period of some 3/4 years. Essentially, he admits to serially fondling her whilst believing she was asleep in bed, thereby sexually arousing himself and masturbating. In admitting so, he acknowledges fully his wrongdoing, expresses remorse for it, and shows empathy for his Victim.
This assessment finds [WHHK] to be an emotionally stable man who seemingly was well brought up and well educated, and who has remained in stable employment with the one employer all his working life. However, his psychosexual history, starting with him being sexually abused by an adult staff member at his school when in his mid-teens, through to his development of a fetish for women’s underwear and subsequent voyeuristic practices, shows significant maladjustment. In my view, such behaviours are sufficient to attract a diagnosis of the Paraphilia Disorders (Fetishism, Voyeurism) which initially seemed to focus on adult women but in time, and opportunistically, shifted its attention to his pubescent step-daughter (Paedophilia). The charges now before the Court are, in my understanding, the culmination of this disturbing history…
From a treatment viewpoint, in my assessment [WHHK] could be successfully managed in the Community without presenting an unreasonable risk to children. I recommend that if or when this is the case, he submit himself to ongoing counselling, supervision and monitoring for a period of not less than the ensuing 12 months and longer if deemed necessary by the treating psychologist.”
The Tribunal was also provided with a report dated 15 June 2005 by Dr Ian Curtis, Consultant Psychiatrist – Exhibit 3 SM1 pp. 1 – 13.
The Applicant informed Dr Curtis that, when he was 30 years of age, he travelled overseas, visiting Korea, New Zealand, Vanuatu and China and denied he had ever engaged in sexual tourism – Exhibit 3 SM1 p. 4 para 4.4.
Of concern is the following information provided by the Applicant to Dr Curtis concerning the type of visual materials he used for stimulus – Exhibit 3 SM1 p. 5 para 4.5:
“…He said that the wife had developed increasing hostility and anger towards him sexually. She had found naturist magazines in a suitcase whilst they were together. These included pictures of children. Ultimately they spoke about the magazines and he threw them out. These were old magazines that he had used in his past as visual stimulants for masturbation. In that sense they derived more from a period when he was a leading a single life and the materials had travelled with him as articles largely ignored for most of the time…”
Having regard to further information outlined below, the Tribunal formed the opinion that the Applicant downplayed this issue, and, as outlined above, when his mobile phone was interrogated by Customs upon his arrival at Sydney Airport from Fiji, images of young children, clothed and partly-clothed, were discovered.
Dr Curtis made the following observations regarding the Applicant’s behaviour and prospects for rehabilitation – Exhibit 3 SM1 pp. 12 – 13 para 10.8:
“…Viewed clinically, the offending behaviour was primitive, low-level, tentative, silly, and predominantly autoerotic masturbatory rather than interactional.
This is not to detract from the awfulness of the anxieties put into the child in having to attempt to cope with an adult carer behaving in this way.
In contrast to most offenders, this man has a credible clinical explanation for his stunted development. This resides in the molestation which he suffered when he was the same age as the stepchildren when he and the mother of the children married. In effect, he moved into a readymade family which perhaps unconsciously reflected the developmental problems that he had not solved because of his own experiences. This theory was raised by the mother and I find clinically some merit in it. It is the sort of thing which would be explored during therapy, not to excuse the bad behaviour but to attempt to enable this man to have more control in the future.
This is the other distinguishing aspect: that he is a good rehabilitative prospect. He is intellectually bright even though he lacks emotional intelligence. He is, in my view, capable of developing sufficient insight to protect him and the people around him from future bad choices and allied behaviour….”
Despite the optimistic conclusion reached by Dr Curtis, he noted that after the Applicant’s abuse whilst at school – Exhibit 3 SM1 p. 5 para 4.8:
“…this had left him with a continuing interest in the physical appearance of pubertal females.”
Further, the Applicant told Dr Curtis that “touching the child was a rarity which he had resisted because he knew it was wrong” – Exhibit 3 SM1 p. 5 para 4.8. There are two aspects to this admission of the Applicant. The first is that he knew that his behaviour towards his stepdaughter was wrong, yet he persisted with it; and, second, rather than this conduct being a rarity, it was persistent, frequent and extended over a number of years.
At the Hearing, the Applicant was cross-examined by Mr Knowles about his sexual abuse of his stepdaughter. The Applicant gave straightforward and apparently honest answers to the Questions posed by Mr Knowles, and the Tribunal acknowledges that the Applicant was not evasive and was fully co-operative throughout the Hearing.
First, the Applicant acknowledged that he did commit the offences in the manner described above – Transcript (Tr.) 18.10.2021 pp. 18 – 19.
Second, the Applicant agreed that he knew, at the time, that his behaviour was wrong but still persisted with it – Tr. 18.10.2021 p. 19:
“Does that mean it’s fair to say that at the time of this offending, you knew it was wrong?---Certainly.
Is it fair to say that even though you knew that it was wrong, you found it difficult to resist your sexual urges?---At that time in my life, and given the conditions in my life, yes. I did find it difficult, and I acted inappropriately against my stepdaughter to resolve further and other issues in my life, such as my marriage.”
Third, as the legal representatives of the Minister pointed out (RSS p. 2 para 9), the Applicant’s sexual abuse of his stepdaughter only ceased after he was confronted by an adult about the offending.
This point was put to the Applicant at the Hearing by Mr Knowles – Tr. 18.10.2021 p. 23:
“And that is the same as the offending against your stepdaughter isn’t it? That only ceased once a complaint was raised with you by another adult wasn’t it?---I think it could be perceived as that. Yes.
Well, when you say perceived. It’s the truth isn’t it that you continued to offend against your stepdaughter until you were caught?---That’s the truth yes.”
It is tolerably clear from the sentencing remarks of Skoien J that his Honour took into account the opinions of Dr Lynagh and Dr Curtis that there were “very good prospects for complete rehabilitation” – Exhibit 4 p. 4. The events that transpired in Fiji call into question that optimistic assessment.
Next, the legal representatives of the Minister refer to the pool incident in March 2014 and made the following submissions – Exhibit 2 p. 9 paras 21 – 22:
“21. Officers from the Queensland Police attended the premises and spoke to the Applicant. Records from the Queensland Police QPRIME database state that the Applicant admitted having the child on his shoulders must have looked ‘suspicious’ to other tenants, as most of them knew he was a reportable offender. The Applicant denies this, and says instead that he conceded it was ‘not a good look’.
22.Supt Fisher deposes that this incident is of concern because the Applicant has engaged with children ‘in a water location which obscures the line of sight to the lower half of the body by an observer.’ While no criminal charges arose from this incident, the similarities between this incident and the subsequent events in Fiji are readily apparent, and the Respondent contends that this reinforces that the Applicant has demonstrated a concerning ongoing pattern of behaviour involving his paedophilic tendencies.”
In the Applicant’s Statement of Facts, Issue and Contentions (Exhibit 6), the Applicant made the following submission:
“Information not presented to the decision maker was that the children, both of them, were in the pool at their own request and with parental permission & knowledge. The behaviour was not unlike any behaviour that would occur in any other suburban pool and was only reported due to the reporter’s knowledge of my prior offences. It was also not clearly stated to the decision maker that no offence was suspected by police.”
The Applicant was cross-examined by Mr Knowles on this incident, and the following exchange occurred – Tr. 18.10.2021 pp. 29 – 31:
“The two children with whom you were playing with in the pool, I think the oldest one was 11, is that right?---I believe so. I’m not 100 per cent sure, but I believe so.
Was the other child the same age?---I imagine so, yes. They were friends.
One was your neighbour’s daughter and one was a friend of your neighbour’s daughter, is that correct?---Correct.
When you were playing with them in the pool, one of the things that you did was give one of the children a piggyback on your shoulders, didn’t you---That’s correct, yes.
Is there anything else, any other physical contact, that you were having with the children?---No, that was just general swimming and yes, the piggybacking.
One of the children was wearing a bikini, weren’t they?---I cannot recall what they were wearing. I would have to go on the police statement.
Had you been drinking prior to hopping in the swimming pool?---I don’t believe so. To qualify, this event occurred because I had gone to borrow my neighbour’s gurney that day, and I had been gurneying my concrete at the back of my unit. And that was when the request was made, when I returned the gurney…
It’s correct, isn’t it, that only the parents of the neighbour knew the children were in the pool? The parents of the neighbour’s friend, you’d never met, and didn’t give you permission to take them to the pool, did they?---I don’t believe so.
Are your neighbours aware that you were a convicted sex offender?---I don’t believe so.
And they are still not aware of that?---I don’t believe so…
Do you recall when you were spoken to by police after this event, that you told them that you thought that the neighbour, that’s the father, was coming to the pool to join you, but he never ended up coming?---Yes, I do remember that…
And he didn’t arrive?---No.
You proceeded to swim in the pool with the children anyway?---I did…
It didn’t occur to you when the father didn’t arrive not to go swimming alone with children?---It did occur to me, and I was quite concerned about it at the time. However, I---
But you did it anyway?---It occurred anyway. I felt that I was painted into a corner, and my understanding was that he wouldn’t arrive immediately, but he would arrive within five to ten minutes of going to the pool.
When you say you were painted into a corner, all you had to tell these children was, ‘I can’t swim yet, but I will come down to the pool when your dad arrives’?---Possibly could have. I certainly accept that I could have handled it better, and I didn’t do a very good job at that time.
Is one of the reasons – you said you were actually aware of this at the time, but you chose to go swimming anyway. Is this an occasion where a sexual urge got the better of you?---I would say no.
When you say, ‘I would say no’---?---The intent was not sexual.
----did you feel sexually aroused by reasons of being swimming with young children?----No. No.”
The Tribunal does not draw any adverse inferences against the Applicant from this incident. There is no material before the Tribunal that he committed any crimes or did anything inappropriate. The investigating Police Officers did not lay any charges, and there is no evidence that any complaint was made. In short, all that the Tribunal has been presented with is information that the Applicant was in a swimming pool with two young girls, and, it would appear, with the knowledge and approval of the parents of one of the girls. In these circumstances, it would be unfair to draw adverse inferences where there is no factual basis for doing so, other than unsubstantiated suspicion.
Offending in Fiji
In a statement of 10 January 2021, the Applicant made the following submission about his Fiji convictions – Exhibit 7:
“2. 2 02 March 2020
The information provided in this item does not show that the charge and conviction did not include any sexual assault. The final conviction was for two counts of indecent assault for having put my arm around the waist of each of the children. This was following the Judge having reviewed all evidence and rejecting the claim of sexual assault which was agreed to by both the police prosecutor and my solicitor.
The reported act of my touching the child’s vagina by forcing my hands into her swimsuit is not true and no such event occurred. The evidence confirmed this to the Judges satisfaction.
Again a perception of offending behaviour has been created.”
The legal representatives of the Respondent correctly point to the fact that the Tribunal is not empowered to make findings which would impugn the essential facts behind the conviction forming the basis of the Tribunal’s jurisdiction – Exhibit 2 para 27. In support of this proposition, the Tribunal’s attention was drawn to, inter alia, HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at [63], [67] – [68].
Nonetheless, the legal representatives of the Minister additionally submit that the Tribunal is not prevented from considering material that addresses the circumstances of the crimes, and is not prevented from making findings as to the circumstances of offending where the finding would not contradict or impugn the fundamental facts of the conviction – Exhibit 2 p. 10 para 27. In support of that proposition, the Tribunal was referred to Du Pont and Minister for Immigration and Ethnic Affairs (1983) ALN N205; [1983] AATA 180.
The Tribunal agrees with both submissions of the Minister. In that regard, reference can be made to the following statement of law given by Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803:
“I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF [Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155]. On that basis the applicable principles are these:
(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.”
Similar observations were made by Murphy J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556 at [56]:
“Where a conviction or sentence is the basis for an administrative decision-maker or reviewing tribunal’s jurisdiction, the decision-maker or tribunal may not review the essential factual basis of a conviction or sentence ‘but the circumstances of the conviction [or sentence] can be reviewed for a purpose other than impugning the conviction [or sentence]’: LLF at [42]. The function of deciding whether to cancel a visa, which leads to removal from Australia, involves many different considerations to those involved in criminal sentencing and an applicant may present to the Tribunal matters pertaining to a conviction or sentence provided they do not contradict the facts a court found in arriving at a conviction or sentence: Re Du Pont v Minister for Immigration & Ethnic Affairs [1983] AATA 180 (Davies J); Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 331; (1991) 30 FCR 49 (Davies J).”
These principles of law are of relevance to this matter, as the legal representatives for the Minister have drawn the Tribunal’s attention to material that formed the basis of the Prosecutor’s submissions to the Court. To put matters beyond doubt, the Tribunal in no way challenges either the conviction or the essential facts on which both the conviction and the sentence was imposed. However, the circumstances of the conviction need to be properly understood, and evidentiary matrix that was presented to the Magistrate.
In his Affidavit of 5 March 2021, Detective Superintendent Glen Fisher deposed as follows – Exhibit 5 pp. 12 – 13 para 41(c):
“On 24 February 2021, I had a telephone conversation with Mr Pryde, Director ODPP, who advised me of the following:
(i) the Summary of Facts did not accurately reflect the evidence in the Brief of Evidence;
(ii) the Prosecuting Officer (PO) only relied on the Summary of Facts and did not review all of the evidence submitted by the FPF investigator;
(iii) the PO advised Mr Pryde that they assumed the Summary of Facts accurately reflected the evidence in the Brief of Evidence as it was cleared by the FPF Crime Officer (CO) overseeing the investigation.
(iv) the PO was unaware of the allegation that the applicant had sexually assaulted the female victim during the incident;
(v) the PO and Mr Pryde agree that the evidence relating to the alleged sexual assault should have been included in the Summary of Facts, and that it was an error to present this matter to the sentencing Magistrate without that evidence;
(vi) the PO and Mr Pryde are of the opinion that had this evidence been included in the Summary of Facts, the charges would have changed from Indecent Assault to Sexual Assault, pursuant to section 210 of the Crimes Act 2009 (Fiji)…; and
(vii) Mr Pryde is of the view that had the applicant been convicted of Sexual Assault, he would have likely received a more serious penalty given the aggravating circumstances regarding the age of the victims.”
The legal representatives for the Minister invite the Tribunal to make a finding that the Applicant touched the female victim’s vagina without consent, which is suggested to be markedly similar to the offending against his stepdaughter - Exhibit 2 p. 12 para 38:
“Taken together, this behaviour indicates a concerning pattern of opportunistic offending against prepubescent girls.”
The Tribunal has viewed the “Summary of Facts” referred to by Detective Superintendent Fisher. That document makes no mention of the Applicant touching the 10 year old female victim’s vagina – Exhibit 5 GF16 p. 91. Further, the sentencing remarks of Magistrate Ferdinandez are devoid of any reference to this allegation, no doubt because her Honour’s attention was not drawn to this allegation – Exhibit 5 GF16 pp. 125 – 131.
It will be recalled that when interviewed by Fiji Police, the Applicant denied inappropriately touching the female victim’s private area – Exhibit 5 GF16 p. 115:
“Q.47I put to you, that according to her, you grabbed her waist and private area inappropriately. What do you say about that?
A. No, I don’t recall it occurring.”
The Tribunal does not accept the Minister’s invitation to go behind the court proceedings in Fiji and make findings that the Applicant sexually assaulted the female victim as alleged. For whatever reason, the prosecuting authorities in Fiji, having considered all of the material, determined to proceed with charges that were limited to the Applicant grabbing both children by the waist. To do otherwise would, in the Tribunal’s opinion, review the essential facts that were presented to the Magistrate and formed the basis of both the Applicant’s conviction and sentence. As Detective Superintendent Fisher pointed out, if the additional allegation had been presented, then the Applicant would have been charged with a more serious offence carrying a more severe sentence. Impliedly, if the Applicant had been charged with Sexual Assault, and not Indecent Assault, he, most likely, would have received and served a custodial sentence.
At the Hearing, the Applicant was extensively cross-examined by Mr Knowles about this incident. The following exchange occurred – Tr. 18.10.2021 pp. 23 – 26:
“All right. Now, when you were asked some questions about this by the tribunal, you denied didn’t you that in relation to the female victim in Fiji, that you’d put your hand under her swimmers and touched her vagina?---That’s correct.
You’re aware aren’t you that she made a complaint. That’s the victim made a complaint to that effect to the Fijian police?---Yes, I am.
So do you suggest that the victim’s just making that up?---Based on the video, based on the Judges response to the video and based on other witness, sorry, witness statements, police statements, it seemed to have – being cautious, seemed to have embellished the affair. I don’t believe that it happened, and I don’t recall it happening.
Well, you didn’t, when you were first asked about this incident by police, you didn’t recall anything happening to you?---No, that’s correct, I didn’t have any recollection, until I saw the video and then it came back to me….
Now, you then say at question 45, you were asked whether you encountered a young girl?---Yes.
And you actually did have a memory of that, is that right?---That is correct. Yes.
And what was your memory of encountering her?---I recall that there was a young girl that swam towards me while I was sitting at the pool bar…
Well, can I suggest that if you blacked out and you couldn’t recall the events until you saw your video, that it’s also possible that you put your hand inside the female victim’s costume and touched her vagina area?---I don’t believe that occurred and – all I can rely on is that that event would be somewhat difficult to have occurred and also in the manner that is described by one of the mother’s police statements…
Now, if you grabbed her in a pool, around the waist, and she was struggling to get free, you would accept that it’s possible, isn’t it, that you did touch her vagina area?---I would suggest that it would be very difficult. The girl, as I see in the video, was in a large flotation ring, and to have done that I would have had to have reached completely over the floatation ring, around her waist, and then further down. I don’t believe that’s physically possible.
All right. So you say she’s making that up, do you?---I’m inferring that, yes.
You know other members of her family also made similar reports to police?—Yes, I do.
And they’re making that up as well, are they?---To have made the statement that one of the mothers made, that she saw, she would have had to have physically been in front of the child and like be fairly close. In her statement she says that she is 10 metres away behind the child, yet she clearly saw what happened, and that led me to believe that possibly events were not as they occurred, and I read the police statements properly.”
The Minister’s legal representatives invite the Tribunal to go down a very precarious path. The Tribunal has before it, the records of the Court proceedings in Fiji. Formal charges were laid, and the Applicant pleaded guilty. The Tribunal has also been presented with the statements from the children who were the subject of the Applicant’s unwanted attentions and other persons involved, including members of the two childrens’ family. For whatever reason, good or bad, certain charges were laid and dealt with. Now the Minister’s legal representatives invite the Tribunal to go further than the Fiji Court and make findings that the Applicant committed more serious offences, despite not being presented with oral evidence from the children, members of their families and others, and in face of the Applicant’s denials given under oath and when he was subject to cross-examination. To accept the invitation of the Minister’s legal representatives would lead the Tribunal down a path of error and arrogate to a Tribunal Member a task or power for which there is no proper legal foundation.
It is sufficient for the Tribunal to proceed on the undisputed facts which, of themselves, paint a very concerning picture.
First, it is not contested, that the Applicant only ceased his unwanted physical interaction with both children when there was adult intervention. During the Hearing, Mr Knowles asked the Applicant the following Questions – Tr. 18.10.2021 p. 23:
“And again, you didn’t let go of this girl until her mother swam over towards you, in your direction, is that right?---Yes that’s right.
So, in that sense, it’s also the same as offending against the first male, is that you didn’t release the child because they were trying to get away. You released them because another adult noticed your behaviour?---I accept that.
And that is the same as the offending against your stepdaughter isn’t it? That only ceased once a complaint was raised with you by another adult wasn’t it?---I think it could be perceived as that. Yes.”
Next, the Applicant’s interaction with both children involved him grabbing them and trying to immobilise them.
Mr Knowles asked the following Questions with respect to the male victim – Tr. 18.10.2021 p. 22:
“In fact, when you say you put your arm around his waist, it’s correct, isn’t it, that you actually grabbed him by the waist and pulled him towards you?—That is correct, yes.
He tried to get away, didn’t he?---Yes, he did.
And he couldn’t get away because you were holding him?---Yes.
Mr Knowles then asked these Questions regarding the female victim – Tr. 18.10.2021 pp. 22 – 23:
“…But you accept though, don’t you, that you also put your arm around her waist?---Yes, I did.
And when you did that, you actually grabbed her from behind, didn’t you?---Yes.
So you were standing behind her?---Yes, that’s correct.
And she also tried to get away, but you wouldn’t let go of her?---I think that’s correct, yes.”
The Applicant agreed under cross-examination that he had not had any previous relationship with either child, and that they were complete strangers – Tr. 18.10.2021 pp. 21 – 22.
Turning now to the Court proceedings, it is of concern to the Tribunal that the Solicitor for the Accused, in written submissions to the Magistrate, submitted as follows – Exhibit 5 GF16 p. 132:
“He is a first offender and has no previous convictions.”
Magistrate Ferdinandez proceeded on the basis that the Applicant was a first offender – Exhibit 5 GF16 p. 127:
“You have a previous good character. You are a first offender and has no previous convictions...”
The Solicitor for the Applicant would not have consciously misled the Magistrate, and it is tolerably clear to the Tribunal that he would have relied on the instructions provided by the Applicant. In short, the Applicant either failed to inform his Solicitor of his Queensland convictions, or misinformed him. In either case, the Magistrate based the sentence imposed on misinformation provided to the Court, and the Applicant, although present in the Courtroom, failed to take any steps to prevent the Magistrate proceeding on an incorrect factual basis. Far from having an unblemished history, and being a person of good character, the Applicant had been convicted of child sex offences and had received a custodial sentence. The fact that the Applicant allowed his Solicitor and the presiding Magistrate to proceed on a false assumption counts against him.
The Applicant was questioned about the misleading information his Solicitor provided to the Court and gave the following testimony – Tr. 18.10.2021 p. 28:
“Now, that’s not correct is it?---In Fiji it is correct, in Australia it is incorrect, and I will accept that it is probably an incorrect statement overall.
Yes. And you knew it was going to the judge to rely on for the purposes of sentencing, didn’t you?---I would have to, yes.”
Further, the Applicant admitted that he was in Court when being sentenced and did nothing to disabuse the Magistrate of the incorrect assumption she was proceeding on – Tr. 18.10.2021 pp. 28 – 29:
“Right. Now, you were sitting in court whilst you were being sentenced, weren’t you? Yes, I was standing in court, yes.
And you were standing there when the judge said to you that you have a previous good character and you’re a first offender with no previous convictions?---Yes.
Do you recall the judge saying that?---I don’t recall the judge saying that specifically, but I do remember standing in court as she read her sentencing remarks, yes.
All right. And you didn’t think it would be appropriate to point out that although you have no conviction in Fiji, you were convicted and sent to prison for serious child sex offences in Australia?---No, I didn’t think that through properly.”
This testimony highlights that the Applicant was economical with the truth to both his Solicitor and to the Magistrate. As stated above, the misleading way the Applicant behaved during the sentencing process in Fiji, counts against him.
It is also uncontested that the Applicant had been consuming copious amounts of alcohol prior to committing the offences against the children. The Applicant informed Fiji Police that he had consumed four to five glasses of white wine – Exhibit 5 GF16 p. 114.
There is a history in this matter of the Applicant consuming alcohol and then committing offences against children.
The incidents in the Fiji hotel swimming pool against two children are serious and troubling. The Applicant approached two children who were strangers and, in both cases, tried to immobilise them. If such assaults had occurred in a private place and without adult intervention, it is open to infer that the assaults perpetrated on the children could have been more serious. What is not open to dispute is that the Applicant only ceased his predatory behaviour when he was confronted by adults. Further, the fact that the Applicant assaulted two children in such a short space of time contradicts any suggestion that this was an alcohol fuelled mistake only involving one child.
In short, the Tribunal views the two incidents involving the children as serious incidents.
Images on the Applicant’s mobile phone
As previously noted, when the Applicant landed in Sydney, on return from Fiji, his mobile phone, tablet and laptop were seized and examined.
Category 1 and 7 images were located on the Applicant’s mobile phone and tablet – Exhibit 5 GF13 p. 67 and GF15 p. 84.
The Categories referred to are classified under the Australian National Victim Image Library (ANVIL) system. This Library was established as a national reference library of Child Exploitation Material (CEM). ANVIL acts a contrary repository for any CEM. The ANVIL system is described in a detailed document titled “Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material” at Annexure GF-14 of Detective Superintendent Fisher’s Affidavit – Exhibit 5 GF14 pp. 70 – 82.
Category 7 material is described as follows – Exhibit 5 GF14 p. 79:
“These images feature children in non-illegal poses or scenarios. It also includes images which may be directly related to child exploitation material for example, images of offenders and crime scenes (not depicting victims).”
The Category 7 images located on the Applicant’s mobile phone included – Exhibit 5 GF15 p. 84:
(a)Images of female children (8 – 10 years) in underwear, swimsuits or bare-chested in photographs taken in a modelling/promotional setting;
(b)Photos and a video of home videos sourced from overseas (it would appear Russia or the Ukraine) depicting female children (8 – 10 years) playing in underwear; and
(c)Photos of primary/secondary age schoolgirls sourced from social media, including Facebook, some of whom are from the families on friendly terms with the Applicant.
In his Affidavit, Detective Superintendent Fisher made these observations about Category 7 images – Exhibit 5 p. 11 para 34:
“Based on my experience I know that ANVIL Category Seven (non-illegal or indicative) material is classified as being directly connected to the exploitation of a child, yet the possession of the material is not in itself illegal. The material is considered aggravating in nature and can be used for investigators and the Courts to assess an accused’s sexual interest in children…”
At the Hearing, I asked the Applicant some Questions about the images found on his mobile phone – Tr. 18.10.2021 p. 11:
“DEPUTY PRESIDENT: Would you like to tell me about those photos, and your perspective on them?
WITNESS: As I said to the two representatives from Border Force on the day, I like to look at them. They make me happy. That’s it.
DEPUTY PRESIDENT: What were the photos of?
WITNESS: They were photos of girls in swimwear, underwear, some taken from social media, most taken from Google.
DEPUTY PRESIDENT: So they are not photos of nude females, they are photos of females in swimwear?
WITNESS: No, no. Correct. There is a couple where the children are topless, however, the vast majority are just swimwear or underwear, fully clothed. Not fully clothed, sorry, but---
DEPUTY PRESIDENT: What’s the age o[r] indicative age of the people in the swimwear?
WITNESS: I would suggest probably from eight to 12, maybe 14.
DEPUTY PRESIDENT: Why does that make you happy?
WITNESS: I find it nice to look at a pretty girl, be it adult or younger.”
The Applicant was also extensively cross-examined by Mr Knowles about these images. The Applicant testified that some of the images were taken from Facebook and were children of his friends – Tr. 18.10.2021 p.31.
The Applicant denied that he obtained any sexual gratification or arousal from viewing these images, just that they made him happy or pleasing – Tr. 18.10.2021 pp. 31 – 32.
Mr Knowles also asked the Applicant whether photos of bare-chested females aged 14 years of age and younger made him happy and pleasing and the Applicant answered in the affirmative – Tr. 18.10.2021 p. 32.
Having listened to the Applicant give the testimony quoted above, the Tribunal was troubled by the answers he gave. It was very clear that the Applicant is attracted to viewing images and videos of young females, especially when they are in a state of undress. The Applicant denied under cross-examination that he was sexually aroused by viewing images of prepubescent females or that he masturbated when viewing those images. It is tolerably clear that the Applicant has an aberrant attraction to young females. What makes the Applicant “happy” when viewing images of females under 14 years of age is not what a normal adult male would, or should, feel. The Tribunal is not a Court of morals, but it is a tribunal of fact, and it is tolerably clear from the evidence presented that the Applicant has tendencies towards young females that are not normal or acceptable.
The following submissions were made by the legal representatives of the Minister – RSS p. 5 para 27:
“…the Applicant also admitted that he downloaded photographs and videos from the internet of girls, including girls wearing swimwear, wearing underwear and wearing no clothes on their upper body. His evidence during cross-examination was that these photographs ‘made him happy’ and were ‘pleasing to look at it’. The Respondent submits that this conduct is strongly suggestive of the Applicant’s continued sexual interest in children and, are also indicative in an interest in child pornography… Although the Applicant denied using these images as visual stimulation for masturbation, it is impossible to explain his interest in these images in any way that is not sexual in nature. The Applicant also conceded – but only when confronted with evidence – that it may be inferred that he has previously used nude images of females (both adults and children) for stimulation during masturbation…”
The Tribunal does not agree with the legal representatives of the Minister that the evidence presented suggests that the Applicant has an interest in child pornography, as that term is commonly understood. If that were the case, then the images stored on his mobile phone or other devices would have been of a different magnitude to that which was found. It will be recalled that Category 7 images are legal, and most of the examples given in the AFP Standard Operating Procedure would not cause offence if they were held by a person without a criminal history involving children. Further, after viewing the images, the competent authorities determined not to lay any charges against the Applicant and returned his devices.
However, there is tolerably clear evidence that the Applicant has a disturbing interest in viewing images of young girls, and it is open for the Tribunal to infer that the happiness gleaned by the Applicant from viewing those images is not one of a pure and contented kind. In short, the Tribunal is reasonably satisfied that the Applicant continues to have an aberrant interest in young females which, at its core, is sexual in nature.
Risk of reoffending
The legal representatives for the Minister properly submit that the task for the Tribunal is to assess the risk that the Applicant would pose to children overseas if his passport were not cancelled – RSS p. 3 para 19.
Again, the Tribunal agrees with the Minister’s submission that it is not necessary for the Tribunal to be satisfied that it is more likely or not that the Applicant will commit child sex offences whilst overseas, but rather that there is a risk of this occurring, which is not remote, fanciful or merely theoretical – RSS pp. 19 – 20 para 19. In short, the relevant Tribunal authorities quoted by the Minister’s legal representatives have applied what could be termed a precautionary approach. Whilst none of the Tribunal determinations have attempted to deal with the policy underpinnings of this approach, it is tolerably clear from the material presented to this Tribunal, that there is a sovereign duty when granting a passport to an Australian citizen, that the recipient of the passport does not use it to travel to another country or countries and engage in illegal and aberrant behaviour which not only is a crime in a foreign nation but which also brings the Australian nation into disrepute.
As previously noted, the Applicant was assessed by Dr Curtis and Dr Lynagh. Both Doctors opined, in their respective reports, that the Applicant had good rehabilitative prospects and could be reasonably managed in the community without posing an unacceptable risk to children.
At the Hearing, the Applicant gave the following testimony about the professional assistance he received whilst in custody and after his release into the community – Tr. 18.10.2021 p. 7:
“DEPUTY PRESIDENT: Would you like to tell me about the psychological help you received whilst you were incarcerated and subsequent to that incarceration?
WITNESS: Whilst I was incarcerated, there was not very much help at all, unfortunately. There were no courses or sex offender material made available to me. I was only there for six months, and apparently they considered that that was not long enough to attend a course. Following my release, I was subject to I think three years’ parole, and during my parole I was asked to complete two sex offender courses, as well as continuing my own personal choice of meeting with my psychologist once – at least once a month, probably twice a week. Sorry, twice a month.”
Unfortunately, the optimistic prognoses of both Dr Curtis and Dr Lynagh have not been proven to be correct, as the two incidents in Fiji have demonstrated. Apart from the reports of these Doctors, which were prepared in 2005 and are now somewhat dated, the Tribunal has not been presented with any more recent psychological assessments.
It is the case that Dr Lynagh opined that the Applicant’s behaviour up to 2005 met the diagnostic criteria for Voyeurism and Fetishism – Exhibit 3 SM3 p. 20.
Dr Curtis opined that the Applicant met the diagnostic criteria for Paedophilia in that he“has experienced a paedophilic arousal pattern and has historically acted on the fantasies with the one female stepchild on a few occasions” – Exhibit 3 SM1 p. 11. The Tribunal notes that Dr Curtis refers to the Applicant inappropriately dealing with his stepdaughter on “a few occasions”, whereas the evidence before the District Court was a persistent and fairly regular pattern of behaviour over a few years.
Psychiatry is an inexact science, and new psychiatric techniques and diagnoses are developing over time. When a psychiatrist or psychologist makes a risk prediction of future human behaviour, it is not a diagnosis that is provable by medical science. It is a scientific prediction of what might occur, because the mechanics of the human brain lie beyond the ambit of human science as has been developed to this point of time.
The Tribunal has taken into account the learned assessments of both Dr Curtis and Dr Lynagh and has found both of their reports helpful.
The Tribunal has also had regard to the testimony given by the Applicant when he was cross-examined by Mr Knowles. It would be fair to say that the Tribunal was troubled by aspects of the Applicant’s testimony. Relevant extracts from the Transcript are set out below – Tr. 18.10.2021 pp. 33 – 35:
“Do you use these photographs as visual stimulation prior to or during masturbation?---No. I don’t.
You have used photographs of children during or prior to, sorry, you have used photographs of children prior to or during masturbation as visual stimulation in the past, haven’t you?---No. I used the events with my stepdaughter…
Well, isn’t it the truth…that you told Dr Curtis about an incident when your ex-wife found naturist magazines in a suitcase when you were living together?---Yes, that’s correct.
And those naturist magazines included photographs of children. Is that right?---That is correct.
And by reference to the description naturist magazine, are we to assume that the children in those magazines were either partially or wholly nude?---Yes.
And do you see Dr Curtis goes on to say that you….had used in the past as visual stimulants for masturbation?---That’s true.
So, what you told Dr Curtis about those magazines was true wasn’t it?---Yes. They were naturalist magazines with male, female, adult, and children pictured.
And you used the pictures of children pictured as a visual stimulant for masturbation, didn’t you?---No, I used the pictures of everyone, excluding the males, for visual stimulation….
Right, so when you say that you used pictures of everyone but the males by that you mean pictures of the adult females and pictures of the minor females as visual stimulation?---I would say more the adult females, but you could make that inference. They were in the pictures sometimes, there would be a family standing together. It’s an inference that can be made, whether it’s correct or not.
Well, I’m suggesting to you that it is correct; that you did use pictures, including pictures of children, as visual stimulant for masturbation?---I accept that you can make that comment.
Well, you previously told the tribunal in evidence that you’d never used pictures, including pictures of children, as a visual stimulant for masturbation. That’s not correct, is it? Because you have now been taken to a statement where you told your psychiatrist that you did?---I did not say that I masturbated to images of children. They were (indistinct) magazines, and there were adult and children. So I accept the inference you are making, but I don’t believe it to be true…
When both Dr [Lyngagh] and Dr Curtis consulted with you, they both, it’s fair to say…diagnosed you…with a paedophilic psychological condition, is that right?---They did, yes, and they mentioned fetishism as well, as I recall.
You accept that’s correct, isn’t it? That you have a sexual interest in children, particularly female children?---They please me, yes. Sexually.
They please you sexually, don’t they?---Sexually, my stepdaughter aided me in pleasing myself sexually.
It’s not just your stepdaughter, is it? It’s an interest broader than that, that you have sexual attraction towards female children---I agree that – what the psychologist and psychiatrist say. That’s what they’ve diagnosed, yes.”
The Applicant then testified that he had “put in a lot of work” with Dr Lynagh to ensure that he would not reoffend and “strategies were put in place so that if those thoughts and feelings would occur, I knew what to do with it” – Tr. 18.10.2021 p. 35. Those “thoughts and feelings” relate to the Applicant’s sexual attraction towards female children.
The Applicant’s evidence in this regard was evasive. He denied that he felt, from time to time, sexual attraction towards young females – Tr. 18.10.2021 p. 35. However, he then went to testify that he “had a problem in the past” but he had “learnt how to deal with it” and he had “been dealing with it significantly for the past 15 years” – Tr. 18.10.2021 pp. 35 – 36.
The following exchange then occurred between Mr Knowles and the Applicant – Tr. 18.10.2021 p. 36:
“Is one of the ways you’ve learned how to deal with it is to look at photographs on the internet that give you pleasure?---That’s probably a fair answer, yes. They give me pleasure. I look at them, and they’re nice looking girls.
One of the ways you deal with preventing you acting out any sexual urge upon children is to look at pleasing photographs of young girls on the internet, is that a fair assessment?---That’s probably a fair assessment, yes.
The circumstances of your offending against your stepdaughter, is it also fair to say that there was a close connection between the offences and the consumption of alcohol?---In some cases, I would say yes. In most cases, I would say no….
When you do drink, is it fair to say that you feel more disinhibited?---That’s a natural thing with alcohol, yes.”
Subsequently, Mr Knowles asked numerous Questions about the Applicant’s alcohol consumption and the fact that when he travelled overseas, and was not working, he was more likely to consume alcohol. It is not necessary to set out at length that line of testimony.
It is tolerably clear from the evidence presented that the Applicant has a mental condition that predisposes him to being sexually attracted to young females.
It is also tolerably clear that the Applicant is a highly intelligent person who has been gainfully employed since leaving school.
Apart from the two incidents in the Fiji Resort swimming pool, there is no evidence of the Applicant engaging in any physical force against any other person.
Despite his protestations when giving evidence, it would appear that when the Applicant drinks alcohol, any strong social inhibitors fade, and there is a risk that he will engage in predatory conduct against young females. This risk is magnified the more he is removed from the social and legal restrictions that pertain in Australia and when he visits a developing country with few legal constraints and his ability to access young persons for sexual gratification is increased.
The Tribunal finds that the risk of the Applicant reoffending, having regard to his conduct in Fiji, and the subsequent testimony he gave to the Tribunal, is not remote, fanciful or theoretical but, rather, is real, possible and likely. This risk of reoffending is magnified if the Applicant travels overseas to a country without the societal and legal restrictions of Australia, when he is drunk and, when he is not subject to adult or official supervision.
Should the Applicant’s passport be cancelled to prevent him engaging in the identified conduct
The Tribunal, for the reasons outlined above, finds that there are reasonable grounds to suspect that, if the Applicant were to have an Australian passport, he would engage in conduct overseas falling within the terms of s 14.
The risk that the Applicant would engage in such criminal activities is not remote, fanciful or purely theoretical, but real, and if unsupervised and inebriated, in some circumstances, likely.
The risk of such offending is compounded if the Applicant travels to overseas locations where local law enforcement is less than optimal and where, because of poverty and minimal child protection, certain female children would be placed in a vulnerable situation.
It is also the case that sexual crimes against young children in any nation and in any circumstance can have devastating lifetime consequences for the victims of such crimes. A child subject to predatory sexual conduct can be emotionally and physically maimed for life. The Applicant himself is a victim of such crimes, and the impact that such criminal conduct has had on him has been devastating. If not for the fact that he was subject to predatory sexual conduct as an impressionable boy, he may not have become the man he now is.
When the Commonwealth Government issues a passport allowing an Australian citizen to travel overseas, it owes a duty of care to those non-Australian citizens who come into contact with a passport holder, that they will not unnecessarily be placed at risk of being the victim of criminal activity. This is a particularly serious matter, insofar as sex tourism is concerned. The reputation of the Australian nation is sullied when Australian passport holders travel overseas and engage in predatory sexual crimes against the most vulnerable, particularly children.
To the extent that the cancellation of the Applicant’s passport will prevent him engaging in child sex offences overseas, it weighs heavily in favour of the exercise of the discretion for cancellation.
Is there any other reason which would negate the exercise of the discretion to cancel the Applicant’s passport?
At the Hearing, the Applicant testified that he is required to travel to New Zealand on a fairly regular basis for his employer, and if he were unable to travel to New Zealand, it could result in the loss of his job. The following testimony was given at the Hearing – Tr. 18.10.2021 pp. 11 – 12:
“DEPUTY PRESIDENT: How many times do you travel overseas?
WITNESS: In my career, I’ve travelled overseas extensively. In my role as a fire detection project manager, installer commission technician and subject matter expert, I have travelled to China, Thailand, Korea, Singapore…New Zealand, Indonesia and Vanuatu. Most of my travel that is documented in some of the documents that have been presented to you today, sir, has been to both Papua New Guinea and to Fiji.
Fiji purely for holidays. Papua New Guinea, I’ve been employed through my job….
DEPUTY PRESIDENT:…In the period since you have been released from gaol until now, approximately how many times would you have travelled overseas?
WITNESS: I couldn’t say for sure, but I’d probably say there’d be maybe 50.
DEPUTY PRESIDENT: And of those 50 trips overseas in that period, how many would be for work, and how many would be for private purposes?
WITNESS: So four trips to Fiji, private. There was a cruise to Pacific Islands.
DEPUTY PRESIDENT:…Would you say nine times out of ten it’s been for work, and one time out of ten it’s been for pleasure…
WITNESS: Absolutely, yes, yes. Nine times out of ten work, yes. Yes, sir.”
When cross-examined by Mr Knowles, the Applicant testified that he had to travel to New Zealand once or twice a year, but due to COVID, there had been no New Zealand meetings in 2020 and 2021 – Tr. 18.10.2021 p. 40.
The Applicant testified that, although he had not informed his employer about the passport cancellation proceedings, he had informed his employer about his Fiji convictions – Tr. 18.10.2021 pp. 40 – 41.
The following exchange occurred between the Applicant and Mr Knowles – Tr. 18.10.2021 p. 41:
“So, no-one at your work is aware that your passport has currently been cancelled[?]…That’s correct. They are however aware of my offences in Fiji.
All right. Now, it’s logical then following from that, that when you say that you need to travel to Christchurch for your work, you’ve not actually raised with anyone at your employer whether it would be possible for you to continuing to work even if you couldn’t travel to Christchurch?---No, I have not raised it with them. The reason being that I thought these proceedings would take somewhat less time than they have. And as such I would like to have a resolution from this before I go to them and advise them.
Yes. Now I understand that. All I’m asking you really is that you’re not in a position to say one way or the other are you that you won’t be able to continue to do your current job just because you won’t be able to attend a meeting that’s held annually or bi-annually in Christchurch?---I think I will find it very difficult if I am unable to travel there and meet my colleagues and see and handle materials. I recognise that it’s a once-a-year event but you’ll see that in my travel history, in the last probably three or four years has been an annual holiday to Fiji, and an annual trip to New Zealand for said R and D conferencing…
All I am suggesting to you is, that it’s nothing more than speculation on your part to say that you are not able to do the job or that you won’t be employed just because you won’t be able to go to a meeting in Christchurch?---I believe it will have a serious detriment on my position because I’ll be unable to gain the information that all my colleagues will have, any other way. But yes, I can see what you allude to. It may not certainly be loss of job, but it will certainly limit my enhancement and advancement within the company, if I am unable to proceed and do those tasks.”
As will been seen from the testimony of the Applicant, he ultimately conceded that the cancellation of his passport may not necessarily result in the loss of his job, but would limit his advancement within the company he is employed by. The legal representatives for the Minister made these submissions – RSS p. 6 para 32:
“Ultimately, the Applicant fairly conceded that cancellation of his passport may not cause him to lose his job, but it might affect his career advancement. Even if that somewhat speculative assessment proves to be correct, the prejudice to the Applicant is not of such significance that it outweighs factors which militate in favour of cancellation of his passport given the risk he poses to children overseas.”
The Tribunal agrees with this submission. The cancellation of the Applicant’s passport may have employment ramifications that are impossible to determine at this juncture. However, insofar as the Applicant’s employer is aware of the offences he perpetrated in Queensland (and provided a reference) and is aware of the offences he committed in Fiji, it is unlikely that his employment would be terminated simply because he could not travel to New Zealand once a year. With the employment of Microsoft Teams and other technology, the ability of persons to participate remotely has been significantly enhanced. It may be, however, that the loss of the Applicant’s passport could negatively impact on his career prospects. This would be an unfortunate by-product of a cancellation decision and would have a long-term negative impact on the Applicant. However, when assessing the possible negative career enhancement impact against the possible perpetration of child sex crimes overseas, it is clear that the prevention of such crimes must be given greater weight.
DECISION
The decision under review is affirmed.
I certify that the preceding 158 (one-hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
......................[SGD]..................................................
Associate
Dated: 14 March 2022
Date of hearing: 18 October 2021 Applicant: By MS Teams
Counsel for the Respondent: Mr Patrick Knowles
Solicitor for the Respondent: Ms Eleanor Cannon
Clayton Utz
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