FEDERAL COURT OF AUSTRALIA

Jilalo v Commissioner of Police (NSW) [2020] FCA 63

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the respondent’s decision made on 5 February 2020 be dismissed.

2.    There be no order for costs in respect of the application for judicial review of the respondent’s decision dated 23 December 2019, which decision was set aside by order of the Court made on 4 February 2020, costs being then reserved.

3.    The applicant pay the respondent’s costs of the application for judicial review of the respondent’s decision made on 5 February 2020, as agreed or assessed, except any costs relating to whether the decision-maker was authorised as agent of the respondent to make the decision dated 23 December 2019.

4.    Within 7 days of 5 February 2020, the respondent put to the applicant the respondent’s proposal for a lump sum costs order, including the amount of that order.

5.    Within 7 days of receiving the respondent’s proposal for a lump sum costs order, the applicant respond to that proposal.

6.    If the parties are unable to agree, they are to notify the associate to Robertson J and procedural orders for resolving the question of costs will then be made.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant, an Australian citizen, brought an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of a decision of the respondent made on 23 December 2019 to refuse the applicant’s request for permission for him to leave Australia to travel to Nigeria on 7 February 2020. This decision was made under s 271A.1 of the Criminal Code (Cth).

2    The matter came before me as duty judge yesterday, 4 February 2020, and therefore needs to be decided urgently.

3    At the commencement of the hearing, counsel for the respondent accepted that the decision made on 23 December 2019 should be set aside because the respondent had very recently realised that the person who made the decision was not authorised as agent of the respondent to make it. I therefore made an order setting aside the decision and reserved the question of costs.

4    However both parties wished the Court to proceed on the basis that the same decision was about to be made and for the same reasons. Counsel for the applicant accepted that there was no additional material that the applicant wished to put before the decision-maker and said he would not be raising any additional points of invalidity if the decision was remade. In those circumstances I accepted the joint position of the parties.

5    Although s 6 of the Administrative Decisions (Judicial Review) Act was invoked it seems to me that a more straightforward way of reaching the same result in point of the Court’s jurisdiction is by reference to the definition of “decision to which this Act applies” in s 3(1). This includes a decision of an administrative character proposed to be made under an “enactment” as defined. Although there was no evidence before the Court that the decision proposed to be made would be made in precisely the same terms, I accepted the assurance of counsel for the respondent that that would be so and, as I have indicated, counsel for the applicant joined in seeking the course I have described.

6    As events transpired, while I had reserved my decision overnight, earlier today, 5 February 2020, the decision was remade as foreshadowed by counsel for the respondent. I take the application for judicial review as therefore amended to challenge the decision made on 5 February 2020.

The statutory structure

7    The applicant required permission to leave Australia because of the following circumstances.

8    On 18 September 2014, the applicant was convicted and fined $1,000 by the Local Court of New South Wales. The conviction was recorded following a plea of guilty to one count of importation of tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth), the date of the offence being 22 February 2013.

9    Section 233BAB(5) stated that a person is guilty of an offence against the subsection if: (a) the person intentionally imported goods; and (b) the goods were tier 2 goods and the person was reckless as to that fact; and (c) their importation: (i) was prohibited under the Act absolutely; or (ii) was prohibited under the Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.

10    Section 233BAB(1) stated that the regulations may provide that, relevantly, items of child pornography or of child abuse material constituted tier 2 goods. Tier 2 goods were at that time dealt with by the Customs Regulations 1926 (Cth) reg 179AA(3), being the goods specified in column 2 of an item in Part 2 of Schedule 1AA, including as follows:

Goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies, being:

(a)    items of child pornography within the meaning given by subsection 233BAB (3) of the Act; or

(b)    items of child abuse material within the meaning given by subsection 233BAB (4) of the Act

The specified penalty was a fine not exceeding 2,500 penalty units, or imprisonment for 10 years, or both. This was not in dispute between the parties.

11    As a result of his conviction, the applicant became a “registrable person” for the purposes of the Child Protection (Offenders Registration) Act 2000 (NSW). Section 3A of that Act sets out who is a registrable person and relevantly states that it is a person whom a court has at any time (whether before, on or after the commencement of the section) sentenced in respect of a registrable offence. Registrable offence means an offence that is a Class 1 offence or a Class 2 offence or an offence that results in the making of a child protection registration order. This was common ground.

12    Schedule 1 to the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) commenced operation on 13 December 2017. That schedule amended the Australian Passports Act 2005 (Cth). It also amended the Criminal Code Act 1995 (Cth) to insert in the Criminal Code s 271A.1.

13    The relevant provision in the Criminal Code is as follows:

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).

14    A competent authority is defined to mean such an authority within the meaning of s 12 of the Australian Passports Act. The relevant definition is as follows:

competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b) or (1A)(b), means:

(a)    a person who has responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or

(b)    a person specified in a Minister’s determination as a competent authority in relation to the circumstance.

In relation to the decision made on 5 February 2020, it was common ground that the decision-maker was a competent authority.

15    The explanatory memorandum to the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill stated:

The purpose of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Bill) is to prevent Australians listed on a State or Territory child sex offender register with reporting obligations (a reportable offender) from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where the law enforcement framework is weaker and their activities are not monitored.

…

Commonwealth legislation currently provides that a child sex offender’s passport may be refused, cancelled or surrendered on the basis of a competent authority’s assessment of the offender’s likelihood to cause harm. This process is resource intensive, being done on a case-by-case basis, and is subject to review by the Administrative Appeals Tribunal. As a result, States and Territories do not use these provisions at all. The measures in the Bill address these constraints to protect vulnerable overseas children.

There was a statement of compatibility with human rights appended to the explanatory memorandum. The conclusion of that statement was as follows:

33.    This Bill is compatible with human rights as it promotes and advances human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to protect the most vulnerable in the world—children at risk of sexual exploitation or sexual abuse.

The applicant’s application to the respondent

16    As I have said, the applicant sought permission to travel to Nigeria on 7 February 2020, although his request originally referred to a proposed date of departure of 18 October 2019. In his application to the respondent the applicant stated that travelling to Nigeria would assist him as follows:

1.    I own some property in Nigeria. I have a block of land in Lagos which I wish to sell.

  2.    The value of this property is approximately $80,000 to $100,000 AUD.

3.    I am not able to allow anyone to act in the sale on my behalf. It is not the type of place subject to the same strict regulations (as Australia) regarding the sale of property, the handling of the sale proceeds are not safely deposited in a solicitors trust account, it is difficult to have the money transferred out of the country.

4.    If I am not able to travel to Nigeria in person to organise the sale of my property there is a risk that I will lose the money from the sale.

17    The applicant also stated that he has a wife, whom he married in 2012 but with whom he has had an 18 year relationship, and he has five children under the age of 18 years living with him in Australia.

18    He stated that if he was unable to travel to Nigeria he was fearful that there would be significant consequences to his children, such as: having to move to a rented house and losing the security of the family home; having to change schools and the negative educational impact this would have on them; and moving to a new area and losing their friends and social networks.

19    He stated in his application to the respondent, in answer to the question whether his proposed travel involved any contact (planned or anticipated) with children:

No direct contact with any children is planned or anticipated.

The house where I will be living is owned by my friend, [Mr C], whom I have know (sic) since approximately 2011.

He lives with his wife and they do not have any children under the age of 18, although they have 5 children over the age of 18, some of whom still reside at home (as I understand it).

No other children reside there.

I do not anticipate that I will have any reason to spend any time with any children alone or absent of (sic) the presence of any other adults.

[Mr C] is aware of the offences and that I am on the Child Protection Register.

It is not something that I have kept secret or not otherwise disclosed to family and friends.

20    The applicant’s application to the respondent was supported by an affidavit sworn by him on 10 September 2019. That affidavit verified, and provided greater detail of, the matters set out in his application.

21    The applicant stated in his supporting affidavit that: in Nigeria land is not bought and sold as it is in Australia; the seller must be present in order to verify that the land is his and also to collect the money in person; property is not advertised by any third party or real estate agent, but is advertised personally with the direct contact details of the seller; the buyer only wants to talk with the owner; if there is a third party or agent involved most buyers will suspect that something is wrong and not buy the land; and he needed to be present in person.

22    In his supporting affidavit the applicant also stated, in relation to the commencement of the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act in December 2017, that between 22 February 2013 and about late April 2018 (the date when he was not permitted to travel by the competent authority (NSW Police Service)), he travelled on a regular basis outside Australia for both business and personal reasons. He travelled to Nigeria (his country of birth) on seven occasions and to China tor business purposes on nine occasions. Each time he returned he was thoroughly searched by Australian Border Force, including his personal belongings and any electronic devices in his possession.

23    The applicant stated that on each occasion he travelled using his Australian passport. He was a “registrable person” and in relation to his travel outside Australia between February 2013 and prior to December 2017, he had on each occasion advised the NSW Police of his intention to travel. Initially he did so by attending Granville Police Station, and subsequently after he moved to his current address, at Liverpool Police Station. On each occasion he simply attended the front desk and advised the Police Officer at the desk of his obligations and then travelled as he had planned.

24    The applicant stated that he was seeking permission to travel purely and simply to sell a block of land in Lagos in order to gain some money in order to provide for his wife and children.

25    The applicant’s application to the respondent was also supported by a lengthy psychological assessment and report of Mr Patrick Sheehan, forensic psychologist.

26    On 17 December 2019 the applicant’s solicitors were sent a letter setting out the matters likely to be taken into account by the decision-maker, together with a bundle of documents. The applicant’s solicitor responded to those matters by letter dated 18 December 2019, signed by Mr Paul Williams.

27    The applicant does not contend that he was denied procedural fairness.

The decision-maker’s reasons for decision

28    The respondent provided a statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act on 30 January 2020, it being common ground that that Act applied to the respondent’s decision under s 271A.1 of the Criminal Code. That statement of reasons was adopted in the decision made today, 5 February 2020.

29    Under the heading “Findings on Material Facts” the decision-maker stated that he had taken into account the following:

  (a)    The applicant’s current age, being approximately 43 years;

(b)    The applicant’s conviction for a registrable offence, being an offence under section 233BAB(5) of the Customs Act 1901 (Cth) (the Customs Act) – namely, the intentional import of tier 2 goods, being items of child pornography or child abuse material (the import of which is prohibited by the Customs Act), without obtaining the requisite approval and being reckless as to the fact that the goods were tier 2 goods;

(c)    The nature of the relevant offence provision and the range of penalties available, being imprisonment for 10 years or 2,500 penalty units, or both;

(d)    The sentence imposed on the applicant for the registrable offence, being the recording of a conviction and a fine of $1,000;

(e)    The applicant’s age at the time of the registrable offence, being approximately 36 years;

(f)    The time that has passed since the registrable offence occurred, being a period of approximately 6 years;

  (g)    The extent to which the applicant has demonstrated insight into his offending;

  (h)    The facts of the registrable offence, including that:

(i)    On 22 February 2013 at Sydney International Airport, the applicant presented to an officer of the then Australian Customs and Border Protection Service after the applicant disembarked Emirates flight EK414 from South Africa;

(ii)    The applicant was in possession of a Samsung Galaxy S3 mobile phone. On his Incoming Passenger Card (IPC), when asked whether he was bringing into Australia goods that may be prohibited, including illegal pornography, the applicant marked “No”;

(iii)    A customs officer conducted a search of the applicant’s baggage and located the phone, which was found to contain child pornography;

(iv)    Forensic examination of the phone revealed that it contained, relevantly:

•    A video depicting two children, being a boy aged approximately 2 years and a girl aged approximately 7 years, engaging in sexual activity; and

•    A video depicting two girls aged approximately 13–15 years naked on a bed;

(v)    When interviewed by customs officers, the applicant stated, inter alia, that:

•    A friend in Nigeria had “blue-toothed” the child pornography to the applicant’s phone along with other pornographic videos;

•    The applicant had shown the child pornography to his friends in Nigeria to make them aware of “what children get up to in Africa”;

•    The applicant did not copy the videos for his own pleasure;

•    The applicant knew the child pornography was on the phone when he brought it into Australia, but he did not declare it on his IPC because he “did not think it was that bad”;

•    The applicant thought possessing child pornography was not illegal if he was not the person who created it; and

•    The children depicted in the child pornography were “from his [the applicant’s] area”, being the Eastern part of Nigeria;

  (i)    The absence of any criminal convictions of the applicant in New South Wales;

  (j)    The information contained in COPS Event Report E 30345744, specifically:

(i)    That the applicant admitted to officers of the NSW Police Force on 2 July 2007 to having had sexual intercourse with a female aged 17 years in or around June 2007;

(k)    The extent to which the applicant has complied with his reporting obligations as a registrable person, noting that:

(i)    COPS Event Report E 69263569, dated 19 July 2018, indicates that the applicant failed to disclose his reactivation of social media, use of encrypted messaging services and use of his wife's motor vehicle, in contravention of his reporting obligations, and was issued a warning;

 (l)    The details of the proposed travel, including:

(i)    The destination, being Nigeria;

(ii)    The dates of departure and return, being 8 February to 4 April 2020;

(iii)    The duration, being approximately 56 days;

(iv)    That the applicant will be travelling alone; and

(v)    The reasons for travel, being for the purpose of the applicant selling a block of land in order to address his difficult financial situation;

(m)    The travel destination being Nigeria, the fact that the child pornography found in the applicant’s possession in connection with the registrable offence also originated from that country;

(n)    The extent to which the applicant’s activities would be monitored by law enforcement in the travel destination;

  (o)    The steps the applicant would take to mitigate risk while travelling overseas;

  (p)    The details of the applicant’s employment and income;

  (q)    The details of the applicant’s marital status and family situation;

(r)    The extent of the applicant’s support network and any engagement of community services; and

(s)    The applicant’s non-involvement in any formal rehabilitation or sex offender treatment.

30    Under the heading “Reasons for Decision” the decision-maker set out the following:

19.    I acknowledge that the only offence of which the applicant has been convicted in New South Wales is the Commonwealth offence under the Customs Act. However, I afford limited weight to the applicant’s relative lack of criminal antecedents. Investigations into child exploitation regularly uncover offenders with no prior criminal history and who lead otherwise normal lives, often residing with children. For the same reason, I place limited to no weight on the Nigeria Police Force character certificate provided by the applicant.

20.    I place significant weight on the nature of the offence that caused the applicant to be placed on the Child Protection Register (the CPR); namely, the applicant’s conviction in relation to the importation of items of child pornography under the Customs Act. The highly serious nature of such an offence is demonstrated by the severity of the maximum penalty that may be imposed (being imprisonment for 10 years, 2,500 penalty units, or both), and the fact that a conviction for this offence, where it involves items of child pornography or child abuse material, results in an offender’s name and details being added to the CPR.

21.    I accept that the penalty imposed on the applicant by the sentencing court was at the lower end of severity; however, I place limited weight on this. The offence for which the applicant was convicted is a highly serious one irrespective of the penalty imposed, and it is the underlying facts of the offending that provide insight into the risk posed by the applicant.

22.    Having regard to the specific facts underlying the registrable offence, I note the highly graphic nature of the items of child pornography discovered on the applicant’s phone. The material depicted children as young as two years of age engaging in sexual activity. It does not reflect well on the applicant that he failed to declare the material to customs officials. I am particularly concerned by the applicant’s stated lack of awareness at the time of the offence that he was committing a crime.

23.    I am not persuaded by the applicant’s explanation as to how he came to be in possession of the child pornography discovered on his phone. I would expect a person who received unsolicited child pornography on their phone to report same to the authorities. In addition, the child pornography discovered on the applicant’s phone appears to have originated in Nigeria. In circumstances where the applicant seeks permission to travel to Nigeria, the risk that the applicant may reoffend if he is permitted to travel is strengthened by this factor.

24.    Nigeria is a high-risk location with respect to the sexual abuse of children. The applicant would not be subject to supervision by a competent authority if he were permitted to travel to Nigeria. The ability of the NSW Police Force to monitor the applicant’s activities while he was in Nigeria would be extremely limited. Registrable persons under the CP(OR) Act are not given any special recognition under Nigerian law, and the applicant would not be subject to any independent monitoring or reporting requirements while he was in that country. This is exacerbated by the fact that the applicant intends to travel alone. Further, on the material before me, the applicant has never specifically identified the individual who provided him with the child pornography, and there would be no way of monitoring any contact with that individual.

25.    Although the applicant now professes to have greater insight into his offending, he does not appear to have fully acknowledged the abhorrent content of the specific material discovered on his phone. I have also taken into account COPS Event Report E 69263569, which indicates serious non-compliance with the applicant’s reporting obligations as a registrable person under the CP(OR) Act. In particular, the applicant’s downloading and use of encrypted messaging services betrays a lack of insight into his offending and demonstrates a failure to take active steps to mitigate his risk of his reoffending. On balance, I am not satisfied that the applicant has demonstrated genuine insight into his offending.

26.    I place some weight on the fact that the applicant has not completed any formal sex offender treatment program. I also place some weight on COPS Event Report E 30345744, which discloses a sexual encounter between the applicant and a minor.

27.    I place limited weight on the report of forensic psychologist Patrick Sheehan, in circumstances where Mr Sheehan himself accepts that the risk of sexual reoffending cannot be predicted with any certainty, and where Mr Sheehan did not have regard to all of the information available to me in preparing his report. I also afford limited weight to the applicant’s statement that the proposed travel will not involve any direct contact (planned or anticipated) with children, as this possibility cannot be precluded with any certainty given the proposed length of the trip.

28.    I have considered the applicant’s stated reason for seeking to travel to Nigeria, being to sell a block of land in order to address his difficult financial situation, as well as all the documentation provided in support of that purpose. Even accepting the matters raised by the applicant in support of his reason for travel at face value, I am not persuaded that those matters sufficiently outweigh my concerns about the risk the applicant poses to the safety of children if he is permitted to travel to Nigeria as set out above.

29.    On balance, therefore, I have determined to refuse the application.

The applicant’s application for judicial review

31    In a document apparently drafted before the applicant was provided with the respondent’s statement of reasons, the applicant submitted that the respondent: took into account irrelevant considerations; failed to take relevant considerations into account; and made a decision that was so unreasonable that no reasonable decision-maker could have made it. Under the third of those grounds, the unreasonableness ground, the applicant gave the following detail:

3.1    A reasonable decision-maker would not have made a decision to refuse permission for the Applicant to travel outside of Australia to Nigeria having regard to:

3.1.1    the object and purpose of the Amending Act, namely, the types of offenders to which it is directed;

3.1.2     the nature and full circumstances of the original offending conduct which resulted in the Applicant’s being placed on the Child Protection Register of New South Wales operated under the CPOR Act;

3.1.3    the report of forensic psychologist, Patrick Sheehan, that indicates that the risk to vulnerable children and the risk of re-offending posed by the Applicant being on the lowest end of the risk spectrum;

  3.1.4    the duration of time that has passed since the Offence;

3.1.5    the absence of any other criminal convictions of the Applicant in New South Wales or other jurisdiction in Australia;

  3.1.6    the absence of any criminal convictions of the Applicant in Nigeria;

3.1.7    the absence of any breaches of the Applicant’s obligations under the CPOR Act for the duration of his time on the Child Protection Register;

  3.1.8    the nature and purpose of the proposed travel;

3.1.9    the necessity that the Applicant himself be present to fulfil the sale of his property.

3.2    A reasonable decision maker could not have formed the conclusion that he or she was not satisfied that sufficient time has passed to properly conclude that the Applicant no longer poses an appreciable risk to the safety of children.

3.3    A reasonable decision maker could not have formed the conclusion that the Applicant’s stated reasons for wishing to travel to Nigeria are not sufficiently compelling to outweigh the risk to the safety of children if he is permitted to leave Australia in the circumstances of this case.

32    The applicant sought orders: that the decision of the respondent be set aside; that the applicant’s application for permission to travel to Nigeria be referred to the respondent for further consideration according to law; and that the respondent make a decision on the application of the applicant for permission to travel to Nigeria within 24 hours.

The submissions of the parties

33    The applicant submitted that the respondent had taken into account irrelevant considerations. In Zaharis v The Commissioner of Police [2018] SASC 143; 131 SASR 576, the applicant submitted, Doyle J confined the scope of the “broad discretion” by holding that decisions on applications of this type require “a case by case assessment, taking account of the particular risk presented by the person wishing to travel and the nature and circumstances of their travel” (at [95]). This was cited with approval by Wheelahan J in Ammouche v Chief Commissioner of Police [2018] FCA 1703; 266 FCR 430 at [59].

34    On the basis of what fell from their Honours in Zaharis and Ammouche, any reliance on matters outside of a specific assessment of the risk posed by the applicant resulted in the impermissible taking into account of irrelevant considerations, the applicant submitted. Irrelevant matters taken into account by the respondent in this application included: the respondent’s reliance on experience with investigations into other offenders of a similar type ([19] of the statement of reasons); placing “significant weight” on the type of offence and available penalty, but disregarding the actual penalty imposed on the applicant ([20] and [21] of the statement of reasons); and the respondent referred to underlying facts that showed the risk imposed by the applicant, but failed to demonstrate a nexus between underlying facts and risk imposed in this specific case ([21] of the statement of reasons);

35    The applicant submitted the respondent had failed to take into account relevant matters being: the report of forensic psychologist Patrick Sheehan which indicated, inter alia, that the applicant possessed none of the dynamic factors that indicated a risk of sexual re-offending, that the applicant possessed no corroborative information to infer sexual deviance, paraphilia or paedophilic disorder and that the participation in treatment or counselling was unnecessary; the impecuniosity of the applicant and the impact that had on the applicant’s family; the requirement that the applicant, as sole inheritant of the property, was the only person who could sell the referred property; that since being placed on the Child Protection Register, the applicant had travelled to Nigeria at least 5 times and, upon return, had been subject to inspection of mobile phones and laptops, and no objectionable material had been located; that the facts upon which he was sentenced demonstrated that he did not manufacture or produce the content of the material he possessed and he has never been accused of sexually exploiting or abusing children; any of the matters referred to, and substantiated, in the letter of Paul Williams solicitor of 18 December 2019, provided in response to a letter of the respondent of 17 December 2019.

36    Under the heading “Unreasonable”, the applicant submitted that following an assessment of the specific applicant, including all the relevant circumstances of the application and the specific risk posed, the only reasonable decision open to the respondent was to permit the applicant to leave Australia to travel to Nigeria to sell his property to provide for his family. See further at [62] below. The applicant relied on the formulation of this ground as set out by French CJ (at [23] to [31]) and the plurality (at [63] to [76]) in Minister for Immigration v Li (2013) 249 CLR 332.

37    As I have said, no denial of procedural fairness was alleged.

38    The respondent submitted that [19]-[27] of the statement of reasons all bore upon the specific risk the applicant posed in respect of abusing or otherwise exploiting children while overseas. At [28] of the statement of reasons, the decision-maker specifically considered the applicant’s stated reason to travel to Nigeria to sell a block of land to address his difficult financial situation but determined that these did not outweigh the decision-maker’s “concerns about the risk the applicant poses to the safety of children if he is permitted to travel to Nigeria”. Contrary to the applicant’s submissions, the decision-maker was not confined by s 271A.1 to consider only the specific risks posed by the applicant’s travel. In any event, the decision­maker did consider that specific risk.

39    The observations at [22]-[23] of the statement of reasons were relevant to the applicant’s risk, the respondent submitted. The decision­maker must be taken to have identified a risk that the applicant intentionally sought out the child pornography, and if permitted to travel abroad, that he may seek to evade Australian law, including by not reporting that he had come into possession of child pornography.

40    The respondent submitted that rather than taking into account irrelevant considerations, the decision-maker considered the specific risk that the applicant posed if allowed to travel to Nigeria.

41    As to the alleged failure to take into account mandatory relevant considerations, the respondent submitted that the applicant relied on a piece or pieces of evidence put before the decision-maker in respect of the issues which he was determining. In any event, the respondent submitted, the decision-maker did consider Mr Sheehan’s report. The fact that the decision-maker maker gave “limited weight” to Mr Sheehan’s report (statement of reasons at [27]) did not demonstrate that the decision-maker failed to consider the risk of the applicant travelling – it indicated that the decision-maker preferred other indicators of the applicant’s risk of sexual reoffending, including (but not limited to): the seriousness of the offence; Nigeria’s status as a high risk location; his non-compliance with his reporting obligations; and the 2007 incident. Indeed, some of those matters were not before Mr Sheehan at the time his report was written.

42    In relation to legal unreasonableness, the respondent submitted the applicant had to establish that “the only reasonable decision that was open to the respondent was to permit the applicant to leave Australia for the purposes of travel”: Ammouche at [72] (citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]). Whether there was a difference between the irrationality or illogicality ground at common law (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) and the unreasonableness ground in ss 5(1)(e) and 5(2)(g) of the Administrative Decisions (Judicial Review) Act, the decision failed to meet either standard. While reasonable minds may differ in the final result, the factors relied upon at [19]-[28] of the statement of reasons were capable of supporting the conclusion that the risk associated with the applicant’s proposed travel justified declining permission to travel pursuant to s 271A.1(3).

43    As to the prayer for relief sought, an order that the respondent make a decision within 24 hours, forthwith, or in a period of time, the respondent submitted that was an exceptional remedy. It was inappropriate in circumstances where there was no constructive failure to consider the applicant’s real application and there was no substantial urgency on the part of the applicant: see Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 541.

Consideration

44    In turning to consider the applicant’s grounds and submissions, it must be borne in mind that the Court does not have jurisdiction to conduct a merits review of the decision and it is not to the point whether the Court agrees with the substance of the decision or the reasons for decision, or not. The jurisdiction of the Court is as to the lawfulness or legality of the decision.

45    Similarly, in judicial review “relevant considerations” and “irrelevant considerations” are specialised terms and do not have their ordinary meaning. The term “relevant considerations” means mandatory considerations, such that the decision would miscarry in law if the consideration were not taken into account. The term “irrelevant considerations” means prohibited considerations, such that the decision would miscarry in law if the consideration were taken into account. The word “unreasonableness” also does not have its ordinary meaning. It means in this context legal unreasonableness and does not mean a matter on which reasonable minds might differ.

46    These fundamental distinctions were not invariably maintained in the submissions on behalf the applicant.

47    Reasons having been provided by the respondent, the focus must be on those reasons.

48    Fundamental to the applicant’s case that the respondent’s decision miscarried in law and involved the taking into account of irrelevant considerations was the proposition at [95] of Zaharis. The applicant submitted that Doyle J, in stating that the issue of whether permission is appropriate ultimately requires a case-by-case assessment, taking account of the particular risk represented by the person wishing to travel and the nature and circumstances of their travel, meant to exclude as legally irrelevant matters of a general or normative nature.

49    In my opinion, Doyle J did not mean this but was emphasising the proposition, at [88] of Zaharis, that it would not be sufficient for the decision-maker to proceed by reference to the inherent risk that exists in respect of any person whose name is on the Register, without regard to the circumstances of the particular person in question and the nature of their travel plans.

50    Another overarching point made on behalf of the applicant was that the legislation was directed towards those offenders who engage in child sex tourism and exploitation of vulnerable children. This was put by reference to the second reading speech for the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017. However, it is not appropriate to take a term used in a second reading speech and then consider dictionary definitions of that term, particularly when the term in question (here, exploitation) is not used in the legislation. The language of the legislative provision is what matters. I note in this respect that the applicant accepted that he fell within the terms of the legislation.

51    In my opinion, the decision-maker did not take into account legally irrelevant, that is, prohibited, considerations. Those enumerated in the oral submissions on behalf of the applicant were: the reliance on the decision-maker’s experience with investigations into other offenders of a similar type by his reference to other offenders at [19] of the statement of reasons; the reference to the nature of the offence of which the applicant was convicted and the seriousness of it; the reference to the type of material that was involved in the offence; and the decision-maker’s view of the applicant’s interaction with customs officials and the applicant’s previous awareness of what constituted certain offences. These matters were said to show that the decision-maker failed to consider the particular circumstances of the applicant.

52    In my opinion, it was not legally irrelevant for the decision-maker to reason by reference to these factors. It was open to the decision-maker to reason that the nature of the offence, the class of offending, was indicative of the risk that the legislation seeks to address: see Ammouche at [61]. It was also permissible to have regard to the serious nature of the offence of which the applicant was convicted and to do so by reference to the severity of the maximum penalty before, at [21] of the statement of reasons, proceeding by reference to the penalty imposed on the applicant, the decision-maker observing that it was at the lower end of severity.

53    It was then open to the decision-maker, in that context, to place limited weight on the penalty imposed. It was also permissible to have regard to the underlying facts of the offending for the purpose stated at [21] of the statement of reasons, being to “provide insight into the risk posed by the applicant.” Equally, it was not legally irrelevant for the decision-maker to have regard to the specific facts underlying the registrable offence and what he described as “the highly graphic nature of the items of child pornography discovered on the applicant’s phone.” What follows refers to the applicant’s stated lack of awareness at the time of the offence that he was committing a crime and his explanation as to how he came to be in possession of the child pornography discovered on his phone. Later in the reasons, at [25], the decision-maker expressly referred to the applicant’s (present) profession of greater insight into his offending.

54    In assessing risk, in my opinion, it was not legally irrelevant for the decision-maker to refer to these matters. It was also not legally irrelevant to refer to the circumstance that the child pornography discovered on the applicant’s phone appeared to have originated in Nigeria, where the applicant was seeking permission to travel to Nigeria. It was open to the decision-maker to reason that the risk that the applicant may reoffend if he were permitted to travel was strengthened by that factor.

55    I do not accept the applicant’s submission that the decision-maker “should not” have taken into account the nature of the offence or referred to and placed significant weight on the available penalty. Similarly I do not accept the submissions that it was legally irrelevant to take into account the applicant’s lack of awareness that he was committing a crime or his explanation as at the date of the offence. In my opinion, it was open to the decision-maker to take those matters into account in assessing the risk that the applicant may reoffend if he were permitted to travel.

56    Contrary to the submissions on behalf of the applicant, these matters do not show that the decision-maker failed to consider the particular circumstances of the applicant.

57    Turning to what was said to be the mandatory considerations which the applicant submitted the decision-maker failed to take into account, it was common ground that risk was a mandatory relevant consideration.

58    The first matter relied on by the applicant was [22]-[38] of Mr Sheehan’s report. However, the decision-maker expressly considered this report at [27] of the statement of reasons and placed limited weight on it for the reasons there given. It could not be said in my opinion that the respondent’s discretion miscarried by the decision-maker failing expressly to refer to particular paragraphs of Mr Sheehan’s report in the circumstances. It was the respondent’s statutory task, here carried out by the decision-maker, to form his own view on the risk of reoffending.

59    The submissions on behalf of the applicant were to the effect that there was no actual consideration of the risk posed by this applicant and that the consideration of the risk amounted to lip service. I do not accept this characterisation of the reasons for decision. In my opinion the decision-maker’s assessment was of the risk posed by this applicant and was one of substance.

60    The applicant submitted that it was a mandatory relevant consideration that the applicant had previously, before the 2017 amendments, travelled to Nigeria a number of times without reoffending and that the decision-maker had failed to take this into account. Although it appears that this matter is not expressly referred to as such in the statement of reasons, I do not consider it to be a mandatory relevant consideration at that level of particularity. Further, I do not infer that the decision-maker ignored that material by reason of the lack of reference to it in his statement of reasons.

61    It was next submitted on behalf of the applicant that the decision-maker did not take into account as a mandatory consideration the reasons for the applicant’s proposed travel to Nigeria, including that it was necessary for him to be there in person to effect the land transaction. In my opinion, assuming this to be a mandatory relevant consideration, it was sufficiently taken into account at [28] of the statement of reasons where the decision-maker said he had considered the applicant’s stated reason for seeking to travel to Nigeria to sell a block of land and referred to the documentation provided in support of that purpose.

62    Lastly it was said that it was a mandatory consideration that the applicant had no other convictions. In my opinion this is a matter referred to at [19] of the statement of reasons and there has not been a failure to take that matter into account, even assuming that it was a mandatory consideration at that level of detail.

63    I turn finally to the submission that the exercise of the respondent’s discretionary power was legally unreasonable. The applicant submitted that a reasonable decision-maker would have had regard to a list comprising the following enumerated matters:

(a)    the Applicant’s Travel Application Form, and annexed affidavit, which outlined that the nature and purpose of his travel is to sell his home to be able to provide for his family (see Zaharis at [95]); that he, as the title holder, is the only person able to travel to Nigeria to sell his property as opposed to an agent or lawyer;

(b)    the financial circumstances which have caused the need for the Applicant’s travel to Nigeria;

(c)    the negative impact that refusing the travel would have on his wife and five children;

(d)    the objects and purposes of the Amending Act as described in the paragraphs above, namely the prevention of child sex tourism, which is a matter not involved in the offence which caused the Applicant to be placed on the Child Protection Register;

  (e)    the nature and full circumstances of the original offending conduct, namely:

i.    that the Applicant did not manufacture or produce the material imported;

ii.    that the Applicant possessed the material for the purpose of warning other parents;

iii.    that the Applicant obtained no sexual gratification from the possession of the material;

iv.    that the Applicant obtained no financial, or other, benefit from possession of the material;

v.    the objectively low classification of the material on the CETS scale; and

vi.    the only penalty imposed for the offence was a fine of $1000, being on the lowest end of possible penalties

(f)    the matters contained in the report of the forensic psychologist, Patrick Sheehan, mentioned above at [72] above;

(g)    the duration of time that has elapsed since the offending conduct occurred on 13 February 2013;

(h)    the absence of any allegations of a similar nature to the offending conduct before the offence occurred;

(i)    the absence of any allegations of a similar nature to the offending conduct since the offence occurred;

  (j)    the absence of any other criminal convictions of the Applicant;

(k)    the fact that the Applicant is subject only to 8 years of reporting requirements under the CPOR Act, and over 5 years have elapsed without the occurrence of any material incidents;

(l)    the Applicant has previously travelled to Nigeria on seven occasions following his placement on the Child Protection Register without any further offending conduct having been committed; and

(m)    the necessity that the Applicant himself be present to effect the sale of his property …

and that bearing in mind all of those factors the only reasonable decision open according to law was to permit the applicant to leave Australia to travel to Nigeria to sell his property to provide for his family.

64    In my opinion this list, and submission, constitutes an appeal to the merits. Those matters formed only one side of the statutory exercise.

65    In my opinion, the decision-maker considered the matters raised by the applicant in support of his reasons for travel but was not persuaded that those matters sufficiently outweighed the decision-maker’s concerns about the risk the applicant posed to the safety of children if he was permitted to travel to Nigeria. This assessment was for the decision-maker and it has not been established that the decision, or the reasoning of the decision-maker, was outside the field of discretion open to him. It did not accept the submission on behalf the applicant that the only legally reasonable decision was for the respondent to give permission for the applicant to leave Australia.

Conclusion and orders

66    For these reasons I would dismiss the application for judicial review. I will hear the parties in relation to costs.

Associate:

Dated:    5 February 2020