FEDERAL COURT OF AUSTRALIA

Kaufman v Chief Commissioner of Police [2019] FCA 1996

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant pay the respondent’s costs as agreed or, in default of agreement, taxed of and incidental to the amended application dated 2 June 2019 incurred on and from 9 June 2019 to the date of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore – Revised from transcript)

ANASTASSIOU J:

1    This is an application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). The subject decision was made by a delegate of the respondent, the Chief Commissioner of Police in Victoria, refusing permission for the applicant to travel to Vietnam on 6 July 2019 returning on 3 August 2019. The respondent’s permission was required for reasons referred to below. At the time of the application, the applicant had booked and paid for airline tickets for himself and for his travelling companions, being his de facto partner and her sister. The stated purpose for the travel was to visit his partner’s mother, who is aged 81 and said to be gravely ill. The applicant’s partner deposed that she believed it was likely to be her last chance to see her mother.

2    These reasons were given ex tempore on 13 June 2019 and have been revised from the transcript. I gave ex tempore reasons in view of the applicant’s impending travel date, and to preserve any opportunity that he may have had to provide further information to the Commissioner and gain permission to travel.

background

3    On 4 March 2008, in the County Court of Victoria, the applicant was convicted of knowingly possessing child pornography and using a carriage service to access child pornography. He was ordered to pay $5,000 to the charity ‘Childwise’, made subject to a bond of $10,000 to be of good behaviour for 2 years, required to be under the supervision of a treating psychologist for 12 months and registered as a “Class 2” serious sexual offender for 15 years pursuant to the Sex Offenders Registration Act 2004 (Vic) (SORA). Under the restrictions imposed by SORA, there is no restriction on travel of sex offenders. However, SORA imposes reporting obligations upon registered sex offenders in relation to travel outside the state of Victoria.

4    The applicant was and is required to notify the Commissioner of any travel outside of Victoria: s 18 and 21A of the SORA. In 2015 the applicant was convicted in the Sunshine Magistrates’ Court of travelling to Thailand without having given the required notice: s 46 of the SORA. In 2016 the applicant’s appeal against his conviction to the County Court of Victoria failed.

5    In 2017, the Commonwealth imposed greater restrictions upon the travel of registered sex offenders. The Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth), which effected amendments to, inter alia, the Criminal Code Act 1995 (Cth), made it an offence for a registered sex offender to travel overseas without the prior approval from a ‘competent authority’; here, the Commissioner. Section 271A.1 was introduced to the Criminal Code:

271A.1 Restrictions on overseas travel by certain registered offenders

(1)     A person commits an offence if:

   (a)    the person is an Australian citizen; and

(b)    the person’s name is entered on a child protection offender register (however described) of a State or Territory; and

(c)    the person has reporting obligations (however described) in connection with that entry on the register; and

   (d)    the person leaves Australia.

Penalty: Imprisonment for 5 years.

(2)    Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2.

(3)     Subsection (1) does not apply if:

(a)    a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or

(b)     the reporting obligations of the person are suspended at the time the person leaves Australia.

Note:    The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).

6    On 8 May 2019, the applicant applied to the Commissioner for permission under ss 271A.1(3) to travel to Vietnam as set out above.

7    On 15 May 2019 a delegate of the Commissioner refused to grant the applicant the permission sought (First Determination). The First Determination was communicated by letter:

As of 13 December 2017, it is now a criminal offence contrary to s 271A.1 of the Criminal Code Act 1995 (Criminal Code) for an Australian citizen with reporting obligations in connection with a child protection offender register of a State or Territory to leave Australia without the permission of a 'competent authority'.

As a ‘competent authority’, the Chief Commissioner of Police has the authority to approve or deny any travel requests made by relevant persons following this date.

The Chief Commissioner of Police has received an application from you for approval for travel to Vietnam between 06/07/2019 and 03/08/2019. I have been delegated the Chief Commissioner of Police's power, as competent authority, to determine an application for permission to leave Australia.

In reviewing your application I have considered your offending history, all documentation supporting your reason for travel balanced against the intent of the legislative changes. I advise that your application for permission to leave Australia has been denied on this occasion.

8    By originating application dated 21 May 2019, the applicant sought judicial review of the First Determination.

9    The matter came before me on 29 May 2019, at which time I made the following orders:

2.    The Respondent write to the Applicant by 4:00pm on 31 May 2019, seeking additional information in support of his request for permission to leave Australia.

3.    The Applicant provide any additional information in support of his request by 4:00pm on 5 June 2019.

4.    The Respondent provide reasons for his decision in relation to the Applicant's request by 4:00pm on 7 June 2019.

5.    The Applicant file and serve any amended application seeking review of the Respondent's decision by 12:00 noon on 10 June 2019.

6.    The Respondent file and serve short written submissions by 12:00 noon on 12 June 2019.

10    In accordance with the orders, on 31 May 2019 the Commissioner wrote to the applicant, seeking further information about several matters and putting the applicant on notice of certain matters which may be taken into account by the Commissioner in determining his application. The Commissioner requested information regarding the details of the applicant’s travel companions, and in particular, whether they knew of his offending history. The Commissioner also sought evidence supporting the applicant’s reasons for travel, said to be the illness of his partner’s mother. The applicant was informed that his proposed travel destination, Vietnam, was a ‘tier 2’ country within the meaning of the United States of America Department of State June 2018 “Trafficking in Persons Report”. The applicant was informed that as that fact may be taken into account, he may wish to make submissions concerning the matter.

11    On 2 June 2019, the applicant provided a statutory declaration made by the applicant’s partner on 31 May 2019 and a six page document entitled “Applicant Michael Kaufman’s response to questions posed by the Chief Commissioner of Police”.

12    The statutory declaration declared:

1.    That between 6 July 2019 and 3 August 2019 I will be travelling to Vietnam with my sister Tu Vuong

2.     My partner Michael (Mick) Kaufman has purchased these tickets and wishes to accompany my sister and I to Vietnam as a support and to help with financial costs in Vietnam

  3.    The purpose of travel is to visit my gravely ill mother aged 81 years,

    and

 4.    It is likely this will be the last opportunity my sister and I will have to see our mother in Vietnam.

13    The applicant declined to provide further details of his travelling companions. He did not confirm whether or not they knew of his offending history. In the course of the final hearing of this matter the applicant stated that his travelling companions did not know of his history.

14    The applicant’s response challenged what he perceived to be a presumption inherent in the Commissioner’s request, namely that he was a risk in relation to re-offending, or further offending, while in Vietnam. The applicant said that the risk of him accessing child pornography while in Vietnam was “seemingly non-existent” as he would be staying with the family of his partner.

15    The applicant’s response to the Report was that it “almost exclusively refers to human trafficking”. He contended that the Report was not relevant to any decision to approve his travel request.

16    On 7 June 2019, a delegate of the Commissioner again denied the applicant’s request for travel approval (Second Determination). The Second Determination gave five principal reasons for the decision:

(1)    Significant weight was placed on the applicant’s sexual offending history and the conclusion from that history that there was “at least an appreciable risk of [the applicant] offending against children in future, including in ways beyond the possession of child pornography”;

(2)    Significant weight was also placed on the applicant’s record of failing to comply with reporting obligations as evinced by his 2016 conviction;

(3)    Little weight was placed on the applicant’s reasons for travel, as “[t]here is little interpendent evidence” which “corroborates these medical assertions”, nor why the applicant’s partner could not travel to visit her mother with her sister without the applicant;

(4)    Some weight was placed on the lack of evidence of the applicant’s travel companions knowing of his convictions; and

(5)    Significant weight was placed on Vietnam being a tier 2 country as defined in the Report.

17    On 9 June 2019 the applicant submitted to the Court a document to be treated as an amended originating application and an additional document to be treated as his points of claim.

18    The amended originating application sought the following orders:

Pursuant to FEDERAL COURT RULES 2011 - RULE 1.40 (b), 1.41(c) and 1.42

1)    The Court set aside the Respondent’s decision to deny international travel using powers of Competent Authorities pursuant to s 271A.1 of the Criminal Code Act 1995 (Criminal Code)

2)    The Court directs the Respondent to review its decision, based upon the points of claim document compiled by the Applicant and filed with the Court and the Respondent

3)    The Court reminds the Respondent to comply with his obligations pursuant to Section 62 (2) of the Sex Offenders Registration Act 2004 to not record personal information of persons not on the Register, and

4)     The Court directs the Respondent to pay all Court Costs, together with out of pocket and loss of wages expenses of the Applicant.

Consideration

19    The power of the responsible authority to give permission to travel is not express, but arises by necessary implication from the exception in ss 271A.1(3)(a). The power is plainly discretionary. There are no express conditions bearing upon the exercise of the discretion, mandatory or permissive. The discretion is accordingly informed, and constrained, by the bona fide exercise of the discretion consistent with achieving the objective purpose of the statute.

20    The evident purpose of the statute is demonstrably clear. It is to protect vulnerable children in places outside the Commonwealth of Australia from the risk of sexual abuse by persons who by reason of having committed a sexual offence in Australia, are subject to registration as child sex offenders and subject to relevant state or territory child protection legislation. I respectfully agree with, and adopt, what was said by Doyle J in Zaharis v The Commissioner of Police [2018] SASC 143; 131 SASR 576; 337 FLR 70 at [94]-[95] and, more recently, by Wheelahan J in Ammouche v Chief Commissioner of Police [2018] FCA 1703; 162 ALD 249 at [61] .

21    I now turn to the reasons given in the Second Determination.

22    In my view, the first reason exposes a rational apprehension of the risk which may be inferred from the anterior offence committed by the applicant. Although formally the applicant did not have a burden to establish he would not re-offend if permission to travel were given, in the absence of a full and candid explanation of the circumstances relevant to the proposed travel, the rational concern based upon his earlier offending could not be said to have been dispelled.

23    If an applicant provides a cogent explanation for his or her reasons for wishing to travel and, to the extent reasonably practical, verification of the said purpose, the continued refusal of permission by the responsible authority may become unreasonable and therefore not consistent, or necessary, for the attainment of the legislative purpose. That is not the case in the present application. In my view, the applicant has not provided sufficient information to allay a rational apprehension of risk that is identified in the first of the reasons.

24    The applicant relied on a report produced by Corrections Victoria. The report indicates that in the case of offenders convicted of child pornography offences, without any other sexual offences against children, only eight percent re-offend at all, and only two per cent were found to have re-offended with conduct involving sexual contact as opposed to child pornography offences.

25    I have considered this information. It is relevant in a scientific sense but is not decisive for the purpose of exercising the discretion to give permission to travel in a particular case. The responsible authority is required to consider whether the particular application to travel, on the particular occasion and to the particular destination should be allowed. Non-specific information concerning the incidence of recidivism among child sex offenders, or a sub class of them, while generally informative to an understanding of the scope of the risk of re offending, is not a sufficient basis to dispel a rational concern about the risk of re offending in a particular case.

26    The second of the reasons given for refusing the request relate to the history in connection with the applicant’s compliance with reporting requirements imposed upon him under the SORA, in particular, his conviction in 2016 for travelling to Thailand in November 2014 without giving prior notification as required.

27    In the applicant’s points of claim and in oral submissions he disputed his fault regarding the 2016 conviction, submitting that he had mentioned his travel plans to a delegate of the Commissioner over the course of a phone call. It was both rational and reasonable for the responsible authority to take the conviction into account in assessing the risk that the applicant may pose to the intended beneficiaries of this legislation, namely children residing outside Australia.

28    The third reason was the absence of independent evidence corroborating the medical condition of the applicant’s partner’s mother. I accept what the applicant has said to me, namely, that it should not be assumed that the medical records in Vietnam would be as readily available as one may assume they are in Australia. However, that does not mean that there are no other ways to establish by third party verification the stated purpose for the travel. It is not necessary, or useful, to speculate about the other sources of corroborating evidence that may have been provided by the applicant. It is plain that the responsible authority required, reasonably in my view, that the applicant provide third party verification supportive of his stated purpose for travelling. The applicant failed to provide that evidence in any form, save for a general statement by his partner in her statutory declaration referred to above.

29    The fourth reason was that the undisputed evidence of the applicant was that he had not informed his travelling companions, namely, his partner or her sister, of the fact of his convictions for the offences or that his name is placed on the register of sex offenders. There is reason, in my view, to believe that disclosing these matters, embarrassing as that may be, to persons with the potential for some oversight and supervision of the applicant while travelling abroad is a factor which may ameliorate that risk. In my view, the responsible authority was entitled to take into account the applicant’s failure to inform his travelling companions of his convictions.

30    The fifth and final reason was Vietnam’s status as a tier 2 country. That information is plainly relevant. It is what is described as country information in other contexts where a question arises in relation to the various social or risk factors in the country concerned, for example in the context of claims for protection under s 36 of the Migration Act 1958 (Cth). In my opinion, it was quite proper and reasonable for the responsible authority to have regard to country information of that kind in the course of considering the applicant’s request.

Conclusion and disposition

31    For these reasons, I find no legal error within the meaning of section 5 of the AD(JR) Act which could invoke the jurisdiction of this court to set aside the decision of the responsible authority. For the reasons above, I reject the application for judicial review.

32    In the usual course, costs follow the event. However, the applicant substantially succeeded in his original application, in that the orders made on 29 May 2019 in effect gave the applicant relief of the kind that might be provided by a writ of certiorari. Accordingly, costs are awarded to the Commissioner to be assessed from the date of the Second Determination.

Associate:

Dated:    28 November 2019