Federal Court of Australia

Mentink v Commissioner for Northern Territory Police [2022] FCA 1549

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 5 January 2022 to refuse the applicant’s request for permission to travel under s 271A.1 of the Criminal Code Act 1995 (Cth) is set aside.

2.    The respondent is to decide the applicant’s request for permission to travel according to law.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The applicant, Mr Wilfred Mentink, is a registered child sex offender as defined in s 271A.1 of the Criminal Code Act 1995 (Cth) (CC Act). Having that status, it is an offence for him to travel overseas without the permission of a competent authority:  CC Act, s 271A.1(1) and s 271A.1(3)(a).

2    Mr Mentink wants to travel to the Indonesian province of Ruteng where he claims to have established family and community connections. To that end, he has made applications to the Commissioner of the Northern Territory Police for permission to travel pursuant to s 271A.1(3)(a) of the CC Act. The most recent of those applications was made on 6 September 2021.

3    Mr Mentink applies for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of the Commissioner’s decision made on 5 January 2022 to refuse him permission to travel (2022 Decision). Among his multiple grounds of review is an allegation that the Commissioner failed to afford him procedural fairness. That ground should be upheld for the reasons given below. The 2022 Decision will be set aside and there will be an order requiring the Commissioner to decide Mr Mentink’s travel application according to law. The remaining arguments advanced by Mr Mentink on this application are rejected.

Background

4    On 24 November 2017, Mr Mentink was convicted of two counts of indecent treatment of children under the age of 16 contrary to s 210(1)(a) of the Criminal Code 1899 (Qld) (2017 convictions). The offending behaviour occurred between 31 May and 31 December 1976. For those offences Mr Mentink was sentenced to nine months’ imprisonment, suspended after four months. The 2017 convictions followed earlier convictions for sex offences committed in the early 1990s.

5    Mr Mentink has relocated from Queensland to the Northern Territory on two occasions, most recently in 2020. Upon his relocation, and by virtue of the 2017 convictions, Mr Mentink became a reportable offender pursuant to s 6 and s 8 of the Child Protection (Offender Reporting and Registration) Act 2004 (NT) (CPORR Act). Section 64 of the CPORR Act requires the Commissioner to establish and maintain a Child Protection Offender Register. In accordance with s 12(1)(a) of the CPORR Act, Mr Mentink’s name and identifying particulars have been entered on the Register and he is subject to ongoing reporting obligations.

6    The effect of s 271A.1(1) and s 271A.1(3)(a) of the CC Act is that Mr Mentink requires the permission of a competent authority to leave the country. The Commissioner has responsibility for, and the powers and functions provided under, s 12(1A) of the Australian Passports Act 2005 (Cth). As such, he is a competent authority for the purposes of s 12 of the Passports Act and s 271A.1(3)(a) of the CC Act.

7    The decision presently under review must be understood in the context of past decisions responding to Mr Mentink’s prior requests for permission to travel. It is necessary to set out some history about them.

8    In 2018, Mr Mentink sought and obtained approval to travel to Indonesia for a period between 18 October and 13 November 2018 for the purpose of caring for his wife who had been diagnosed with breast cancer. Mr Mentink did not return to Australia by 14 November 2018 as he was required to do. Following the death of his wife in February 2019, Mr Mentink remained in Indonesia until July 2019 when he was deported by Indonesian authorities after his passport was cancelled by the Australian Federal Police (AFP).

9    On 25 August 2020 Mr Mentink again applied for permission to leave Australia for Indonesia (2020 travel application). The Commissioner denied the 2020 travel application. That decision was communicated to Mr Mentink on 16 June 2021 and will be referred to as the 2021 Decision. A written statement of reasons for the 2021 Decision was provided on 13 July 2021. Mr Mentink submits that his 2020 travel application had been determined (and refused) at an earlier time by a different decision-maker, although little of moment turns on that point for the purposes of this proceeding.

10    Mr Mentink filed an originating application for review of the 2021 Decision (first review application). However, on 6 September 2021, and before the first review application was substantively determined, Mr Mentink submitted a fresh travel application. The Commissioner accepted that he was obliged to consider that application.

11    As a consequence of that acceptance, Justice Logan dismissed the first review application. His Honour concluded that if Mr Mentink were to succeed in impugning the 2021 Decision, the remedy that would be awarded to Mr Mentink would be an order quashing 2021 Decision and remitting the earlier travel application to the Commissioner to be reconsidered in accordance with the law:  Mentink v Commissioner for Northern Territory Police (No 2) [2021] FCA 1452 (Mentink No 2). As the Commissioner had by then acknowledged his obligation to decide the fresh application, Logan J determined there could be no utility in granting relief. Mr Mentink did not appeal from Logan J’s orders.

12    In a letter to Mr Mentink, the Commissioner stated that “[t]he competent authority intends to consider both of your Overseas Travel Applications together and make the one decision based on all evidence and submissions received from yourself.”

13    As at 14 December 2021, Mr Mentink had received no decision. On that day, he commenced this proceeding seeking various orders pursuant to the ADJR Act, including an order compelling the Commissioner to make a decision. As I have mentioned, the 2022 Decision was made on 5 January 2022, after this action was commenced. Mr Mentink then amended his application so as to advance grounds for review in relation to the 2022 Decision and conduct relating to it.

Reasons for the 2022 Decision

14    In his written reasons for the 2022 Decision, the Commissioner identified the protection of children overseas as a primary consideration. He stated that each proposed departure from Australia is assessed on its merits “having regard to the risk of reoffending presented by the applicant, the nature, duration, destination of the travel and other relevant considerations, including any protective factors that may ameliorate risks to children overseas”:  at [13]. He acknowledged that a decision to refuse Mr Mentink permission to travel to Indonesia impacted on his rights and freedoms.

15    The Commissioner referred to the death of Mr Mentink’s wife in 2019. He recorded that Mr Mentink had asserted that he was a father figure to his wife’s son (then 23 years old).

16    The Commissioner went on to describe Mr Mentink’s history of criminal behaviour. As mentioned earlier, that offending involved convictions founded on the sexual abuse of young males in 1991 and 1992. Mr Mentink was a teacher at that time. The victims were his students. In 2017, Mr Mentink was convicted of earlier offences committed in 1976, also involving the sexual abuse of male students. The Commissioner noted that as a result of that offending Mr Mentink had been sentenced to nine months imprisonment, suspended after four.

17    The Commissioner concluded that Mr Mentink’s offending was very serious and observed that it had markedly escalated from “contact offending” to sexual intercourse.

18    The Commissioner summarised the submissions Mr Mentink had made in support of the travel application including submissions to the effect that:

(1)    he wanted to travel to Indonesia for no less than six months so as to “enjoy mutual support with his stepson and his family to be”, to complete and maintain a home he was building, to finalise his deceased wife’s estate and to live out the rest of his life;

(2)    he had been separated from his stepson and family for a prolonged period;

(3)    he had not disclosed his reportable offender status to his stepson;

(4)    his prolonged and unexplained absence had caused tension in the family and he wanted to rebuild those relationships;

(5)    his stepson was engaged to be married and was (then) expecting his first child;

(6)    he is recognised in Darwin, and was ostracised in the community, whereas in Indonesia he could lead a normal life where his criminal history was not known; and

(7)    the heat in Darwin was negatively affecting his health, whereas the weather in Ruteng, Indonesia, was cooler.

19    The Commissioner said that there were many parts of Australia, where reportable offender reporting obligations existed, that would fulfil Mr Mentink’s need to live in a more temperate climate.

20    The Commissioner accepted that Mr Mentink had a desire to reengage in community life in Indonesia and to support his stepson, however, he noted that Mr Mentink had made a deliberate choice not to inform his stepson and extended family of his convictions and the true reason for his not being able to return. He said that to some extent that must have contributed to the asserted animosity arising from Mr Mentink’s absence. The Commissioner referred to correspondence suggesting that Mr Mentink’s stepson had support from his extended family. The Commissioner found that the stepson also had support from his fiancée, and so did not accept that the stepson would not have adequate support unless Mr Mentink was present in Ruteng.

21    The Commissioner accepted information provided by the AFP identifying Indonesia as a “high risk sex tourism destination”. The Commissioner concluded that Indonesia had a “significantly weaker legal framework than that of Australia” including because it did not have a sex offender register or similar framework for monitoring child sex offenders.

22    The Commissioner rejected an assertion by Mr Mentink that the duration of his travel was not relevant. The Commissioner said again that while in Indonesia Mr Mentink was not subject to the deterrent effect of monitoring and reporting obligations. The Commissioner said that those deterrent effects were “diminished the longer the duration of the travel is”.

23    The Commissioner noted that Mr Mentink had no intention of informing the parents or guardians of children that he would come into contact with that he is a reportable offender, nor that he had a history of child sex offences. The Commissioner noted Mr Mentink’s submission that the phrase “reportable sex offender” had no accurate translation in Indonesia such that it would either be ignored or the subject of alarm.

24    The Commissioner considered that Mr Mentink lacked remorse and insight in respect of his prior offending, including because he had maintained his innocence with respect to the offences committed in 1976. The Commissioner referred to letters Mr Mentink had written from prison in 1993 to one of his victims and the victim’s parents, in which he described the victim as “a very special friend” and compared his love for the victim to that which a father would have for his son. In the letter to the victim’s parents, Mr Mentink had stated that he had been deceived by the police and had denied that his relationship with the victim was inappropriate. The Commissioner concluded that the letter further indicated Mr Mentink’s lack of remorse, responsibility and insight into his offending behaviour.

25    The Commissioner did not accept that Mr Mentink’s time in prison and a significant period of time since his offending conduct demonstrated that he did not pose a risk to children, nor did he accept Mr Mentink’s submission that all prior child sex offences were irrelevant to any objective assessment of risk today. The Commissioner said that Mr Mentink’s prior offending was highly relevant and found that his comments further revealed a lack of remorse, responsibility and insight. The Commissioner rejected Mr Mentink’s assertion that remorse, responsibility and insight were not relevant factors. The Commissioner considered that the lack of remorse, responsibility and insight were relevant in considering a person’s prospects of reoffending.

26    The Commissioner referred to a report dated 20 October 1995 concerning Mr Mentink’s participation in a sex offender treatment program. By reference to that report, the Commissioner found that Mr Mentink continued to display a “victim-mentality”, continuously placing blame on the police and other authorities.

27    The Commissioner referred to further reports and letters in 1997, 1998 and 2018 concerning Mr Mentink’s likelihood of reoffending. He said that the author of that material did not have psychiatric or psychological qualifications, nor had he provided any formal counselling to Mr Mentink for over 20 years, and that he attached little weight to the author’s opinion.

28    The Commissioner continued:

A psychiatric evaluation using the Risk of Sexual Violence Protocol (RSVP) was obtained in 2018. In the report written by Dr Velmir Kovacevic, it is concluded that the Applicant is of a relatively low risk of reoffending. I note that Dr Kovacevic’s report does not address potential risk scenarios in Indonesia. The report states that ‘A consideration of likely future scenarios is made even more complicated in Mr Mentink’s case by the fact that his future social circumstances in Indonesia, his exposure to stress and a potential access to vulnerable persons are largely unknown’. Based on these limitations, I give little weight to the conclusions expressed by Dr Kovacevic.

29    The Commissioner went on to refer to the conditional permission to travel granted to Mr Mentink in 2018 on compassionate grounds. He found that Mr Mentink had not complied with the conditions of the travel permission and had not returned as required. He noted that Mr Mentink had only returned to Australia after he was deported by the Indonesian authorities. The Commissioner rejected Mr Mentink’s submission that the “doctrine of necessity” excused his failure to comply with the conditional permission. The Commissioner said that the doctrine of necessity did not permit Mr Mentink to determine for himself that a particular law was evil based on his subjective belief.

30    The Commissioner also found that Mr Mentink had demonstrated non-compliance with his domestic reporting obligations, including because of his failure to notify Queensland authorities of his relocation to the Northern Territory. The Commissioner described that breach as serious. He also found that Mr Mentink had begun living with his wife and stepson when his stepson was 10 years old, and so had chosen not to comply with a recommendation for community-based supervision following his release from prison in 1996.

31    The Commissioner said:

I also note that the purpose of the reporting and monitoring regime established by the CPORR Act is to ensure that the most vulnerable members of the community, being children, are protected from the risk of harm from sexual abuse. The permanent or lengthy relocation from Australia and therefore absent from the reporting and monitoring regime has the effect of undermining the purpose of the legislation and also rendering the protections established by the regime to be ineffective.

32    The Commissioner said that Mr Mentink’s past failure to comply with his obligations informed the assessment of his risk of reoffending. He placed significant weight on Mr Mentink’s past failure to comply.

33    Under the heading “Other Matters” the Commissioner said:

I note that on 21 November 2020, information was received in relation to the Applicant frequenting the Parap Swimming Pool for long hours, usually around 3:30pm when children’s swimming lessons are on and being observed loitering around the children’s area of the pool acting in a suspicious manner. The Applicant was subsequently banned from the Parap Pool on 26 November 2021. Given the conduct can only be described as suspicious, I regard it as relevant but I place little weight on it.

34    The Commissioner concluded that the potential risks to children overseas outweighed the reasons and circumstances submitted by Mr Mentink in support of his travel application. At [71] of the reasons, the Commissioner said that he had regard to the following considerations:

a.    The length of time since the Applicant’s last offending.

b.    The Applicant’s completion of a sex offender’s programme while in prison and counselling with Dr Rosevear.

c.    The Applicant’s desire to provide support to his step-son and to re-engage in the community in Ruteng.

d.    The Applicant’s offending history, which is particularly serious.

e.    The Applicant’s lack of remorse, responsibility and insight into his previous offending.

f.    Indonesia is a high risk sex tourism destination.

g.    The lack of a robust child protection system in Indonesia including the lack of monitoring and reporting requirements.

h.    The Applicant’s history of non-compliance with (i) the conditional permission to travel to Indonesia on compassionate grounds in 2018 and (ii) the failure to report his relocation to the NT to QPS.

The ADJR Act

35    It is not disputed that the 2022 Decision is a “decision under an enactment” for the purposes of the ADJR Act and so is a decision to which the statute applies. Section 5(1) relevantly provides that a person who is aggrieved by a decision to which the ADJR Act applies may apply to this Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

36    Section 6 provides that where a person “has engaged, is engaging, or proposes to engage” in conduct for the purposes of making a decision, a person aggrieved by that conduct may apply to this Court for an order of review in respect of the conduct specified on grounds, most of which apply to circumstances in which a decision has not yet been made.

37    Mr Mentink complains of conduct in the nature of delay and a breach of the rules of procedural fairness. However, to the extent that the 2022 Decision is said to be affected by a breach of the rules of procedural fairness, it may be reviewed on the grounds referred to in s 5(a) without resorting to s 6. Mr Mentink’s submissions concerning delay are to be understood as an allegation that the Commissioner’s power was exercised for an improper purpose.

38    Section 16 confers power on this Court to make orders, in its discretion, including an order quashing or setting aside a decision, or a part of a decision, an order referring the matter to the decision-maker for further consideration, an order declaring the rights of the parties in respect of any matter to which the decision or conduct relates, and orders directing a party to do or refrain from doing any act or thing.

Mr Mentink’s grounds of review

39    Mr Mentink was self-represented throughout this proceeding. In his amended originating application filed on 13 May 2022 (amended OA), he sets out a history of his dealings with the Commissioner, including the history relating to the 2021 Decision and the first review application. Those paragraphs are in the nature of submissions and I have had regard to them.

40    His grounds for review are then contained in 10 paragraphs. They, too, are largely in the nature of submissions. They will be interpreted beneficially, having regard to Mr Mentink’s lack of legal assistance.

41    The first five grounds may be shortly dealt with. They are as follows:

1.    The 4 November 2020 decision refusing permission was not communicated to the applicant and he was denied the opportunity to seek review. (breach of natural justice, s6(1)(a); procedure not observed, 6(1)(b))

2.    By June 15 2021 the respondent had (i) delayed unreasonably for 10 months (breach of natural justice, s6(1)(a)); (ii) expecting the applicant to return to Queensland (improper exercise of power s6(1)(e), (2)(d) bad faith).

3.    As early as October 2020 the respondent had developed a decision‐making ‘policy’ for s271A.1 requests, the policy intended as an amendment to the NT registration act, but did not advise the applicant at any time until after the making of the 15 June 2021 decision (breach of natural justice s6(1)(a)).

4.    The applicant expressed concern about the ‘policy’ and in his 13 July 2021 reasons the respondent stated but did not rely on the ‘policy’ (improper exercise of power s6(1)(e), other abuse of power (2)(j)).

5.    The respondent’s reasons of 13 July 2021

5.1.    exceeded his jurisdiction by considering the possible consequences of the applicant returning to Queensland (error of law s6(1)(f), (improper exercise of power s6(1)(e), (2)(d) bad faith).

5.2.    referred to the applicant’s offending as ‘particularly serious’ and refer to the 15‐year period between 1976 until 1991 in terms implying a continuum of escalating offending (error of law s6(1)(f), (improper exercise of power s6(1)(e), (2)(j) other abuse of power).

5.3.    repeatedly referred to some universal high risk attributed to all registrants but make no attempt to assess the applicant’s risk of re‐offending (procedure required by law s6(1)(b)).

5.4.    failed to consider the evidence of the applicant’s low risk (improper exercise of power s6(1)(e) failure to take relevant considerations into account, (2)(b)), namely

5.4.1.    the psychiatric report of Dr Kovacevic;

5.4.2.    the reports of Dr Rosevear;

5.4.3.    the sentence remarks of Judge Farr in November 2017; and

5.4.4.    the very low risk indicated using RM2000 and actuarial principles correctly, a failure aggravated by the fact that this tool is the police choice across Australia.

5.5.    appear to give conclusive weight to the applicant’s failure to comply with the direction to return to Australia in November 2018 but fail to mention and take into account the applicant’s submissions on the Defence of Necessity (improper exercise of power s6(1)(e), failure to take a relevant consideration into account, (2)(b)).

5.6.    serve to conceal the respondent’s failure to admit and address his errors in scoring the applicant using RM2000 and the adverse consequences to the applicant of those errors (improper exercise of power s6(1)(e), exercise of a power for a wrong purpose (2)(c), bad faith (2)(d)).

42    The reference in [1] to a decision made on 4 November 2020 reflects Mr Mentink’s position that the 2021 Decision was not the only decision made in response to the earlier travel application he made on 25 August 2020. It is Mr Mentink’s case that that earlier application was in fact refused by a different decision-maker on 4 November 2020, without that decision having been communicated to him. The Commissioner denies that any “decision” made on 4 November 2020 was one that determined the travel application made on 25 August 2020. He submits that it is nothing more than a recommendation. I do not consider it necessary to resolve that issue.

43    Mr Mentink complains that the failure to communicate the earlier decision caused delay and that it evidenced bad faith on the Commissioner’s part. Properly understood, the complaint in [1] is about conduct preceding the 2021 Decision. It is also a complaint founded on an assumption that the reasons of the decision said to have been made on 4 November 2020 were later adopted by the Commissioner when making the 2021 Decision.

44    The complaint in [2] also relates to the delay in making the 2021 Decision. By [3] and [4] Mr Mentink impugns the reliance on a “policy”, again in relation to the 2021 Decision. By [5], Mr Mentink alleges defects in the 2021 Decision by reference to grounds of review and conduct contained in s 5 and s 6 of the ADJR Act.

45    It is to be recalled that Mr Mentink previously sought review of the 2021 Decision on his first review application. That application was dismissed for want of utility after Mr Mentink made his subsequent application on 6 September 2021. At present, the legally operative decision is the 2022 Decision responding to that application. It cannot assist Mr Mentink to show error in the 2021 Decision, even if it presently remained open to him to seek review of it following the dispositive order of Logan J in Mentink (No 2). To the extent that Mr Mentink alleges that Logan J was wrong to dismiss the first review application, the proper course was to appeal from his Honour’s judgment.

46    Mr Mentink correctly points out that he was informed by the Commissioner that in determining the application made on 6 September 2021, all of the material provided by him in support of the earlier travel application made on 25 August 2020 would be taken into account. However, that does not mean that the reasons for the 2022 Decision must be taken to incorporate the reasons for the 2021 Decision. Nor does it mean that conduct engaged in for the purposes of the 2021 Decision is to be equated with conduct engaged in for the purpose of making the 2022 Decision.

47    Whether or not it is open to Mr Mentink to seek orders for review relating to the 2021 Decision, I do not consider there to be any utility in scrutinising the reasons for that decision (or conduct preparatory to it) for reviewable error. The reasons for refusing Mr Mentink’s permission to travel to Indonesia are those given for the operative 2022 Decision made on 5 January 2022. Its operation would not be altered by the identification of error affecting any earlier decision.

48    The grounds for review relating to the 2022 Decision are set out at [6] to [10] of the amended OA. They are as follows:

6.    Given that no law in Australia compels a registrant to disclose his status to any person, and that the respondent is expressly prohibited from such disclosure, the respondent had no jurisdiction to consider unfavourably the applicant’s statement that in Indonesia he would not disclose to the parents of any child with whom he might incidentally make contact (error of law, s5(1)(f)).

7.    The respondent had regard to matters that are irrelevant to the exercise of his power (improper exercise of power s5(1)(e), taking an irrelevant consideration into account, (2)(b)), including the following examples:

7.1.    that clement weather could be found in Australia where there are offender registers;

7.2.    that in Indonesia there are no sex offender registers;

7.3.    that the report of Dr Kovacevic in 2018 did not address potential risk scenarios in Indonesia

7.4.    with respect to a combination of ‘remorse, insight, and responsibility’ which the respondent fails to distinguish,

7.4.1.    that the applicant’s ongoing denial of the offences alleged to have occurred in 1976 indicates risk today;

7.4.2.    that letters written by the applicant from prison in 1993 indicate risk today, an adverse case of which the respondent failed to advise the applicant prior to the making of the decision, as his Guidelines require;

7.4.3.    that the applicant’s letter to Commissioner Kershaw on 15 November 2018 enlivened concerns raised in the 1995 psychological report of Mr Smallbone, elevating risk today;

7.4.4.     that the applicant’s failure in August 2020 to report to QPol his relocation to the NT indicates risk;

7.4.5.    that the applicant’s failure to return to Australia in November 2018 indicates risk;

7.4.6.    that the applicant’s very submissions of little relevance after 30 years of non-offending indicate risk today;

8.    The respondent failed to take into account the applicant’s submissions concerning the tool Risk Matrix 2000 and actuarial principles which, properly engaged, show the applicant to present minimal risk of re‐offending (s5(1)(e) (2)(b)). He does so ignoring the fact that this tool is routinely used by NTPol and police in other Australian jurisdictions and is thus equivalent to a procedure required by law (s5(1)(b)). Furthermore, in 2018 the respondent scored the applicant using RM2000 and erroneously derived a high risk rating that has caused enormous detriment to the applicant (exercise of a discretionary power for a wrong purpose and in bad faith s5(1)(e); (2)(c and d)). Further still, the respondent has since October 2019 resisted the applicant’s requests that the errors be redressed and compensated including provision of a letter to the Government of Indonesia. In the present matter he remains silent, and the history of it now strongly supports the allegation of prejudgment, the failure of natural justice, and the absence of the open mind which the respondent required of himself in his Guidelines.

9.    In respect of RM2000 the respondent may have admitted the actuarial opinion and then proceeded, for example, to point out its static, historical nature and the need to accommodate what is known as dynamic risk assessment, the consideration of recent matters that in the case of an individual rated at low risk might reasonably indicate an escalation of risk. Such matters arose in November 2020 when the applicant was excluded from Darwin swimming pools, and in March 2021 when he was excluded from the NT Parliamentary precinct. The respondent’s Reasons refer to the pool matter, which more than a year after the event was stated to involve an allegation of loitering near children and acting suspiciously. The respondent irrationally gave the matter little weight (Reasons, paragraph 65). The matter was not mentioned in the 4 November 2020 and 15 June 2021 decisions, nor as an obviously ‘adverse case’ of which the respondent’s guidelines required the applicant to be informed prior to the decision. The respondent refuses to disclose police records of these matters in order that the applicant may reply and defend himself (breach of natural justice). Where the respondent, required to assess the applicant’s risk of re-offending in Indonesia, relies almost exclusively on dated material, he attaches little weight to these highly relevant recent matters that prima facie indicate risk today.

10.    The grounds raised above with the particular instances of unreasonable, irrational, illogical and corrupt conduct of the Commissioner and his reasoning disqualify him from making further decisions regarding the applicant under s271A.1 and the Passports Act, noting the following:

(a)    Cognitive errors, distortions and denials originating in 2018.

(b)    Reliance on the applicant’s failure to report to QPol his departure from Queensland in August 2020, describing it as a serious breach in the face of the applicant’s simple defence of the matter.

(c)    Inexplicable error of fact and analysis concerning the applicant’s 14 November 2018 report of being unable to return, apparently designed to dilute the applicant’s Defense [sic] of Necessity.

(d)    The Assessment conjured an alleged failure in a foreign jurisdiction to comply with a requirement that he report to Indonesian Immigration following the passing of his wife; had this matter, designed to be adverse to the applicant, been raised with him, the evidence that this did not occur could have been produced.

(e)    Absurdly characterized as a domestic breach of a condition, the Reasons refer to a recommendation by the psychologist Stephen Smallbone to the Queensland Parole Board in 1995 that routinely became a condition of parole in 1996, claiming this to bebreached in 2009 by the applicant when he married his wife whose son was then 11 years old.

(f)    The applicant’s submission on the Doctrine of Necessity referred to two emails sent to the decision‐maker on 5 and 14 November 2018; the Assessment claims this to be a lie, the registrar blind to two references to the earlier correspondence in the 14 November letter. These matters do not appear in the Reasons, and no mention is made of the applicant’s letters to the Commissioner and the Police Minister on 14 and 15 November 2018 respectively.

(g)    The applicant submitted in a 4‐page document that his decision to not comply with the requirement to return to Australia by 15 November 2018 was justified by the Defence of Necessity. While turning this document to a wrong purpose the Assessment states the applicant’s point reasonably without offering any opinion. The Reasons, however, state

The doctrine of necessity does not permit the Applicant to determine for himself that a particular law is evil based on his subjective belief and therefore he is not require [sic] to comply with it.

This response is so irrational that no reasonable person having engrossed the applicant’s submissions could have so dismissed them.

(h)    The Commissioner correctly saw his task as weighing the applicant’s reasons for leaving Australia against his assessment of risk that the applicant would sexually abuse Indonesian children. No reasonable person could decide that the applicant’s well-evidenced established life of optimal rehabilitation in Indonesia was outweighed by the Commissioner’s aggregation of indefinite and largely unjustified risk indicators most of which are outdated by the applicant’s 25 years of non‐offending.

(i)    The decision incurs losses to the applicant that are grossly disproportionate to the measures which the respondent has decided to implement by refusing the applicant permission to leave Australia, measures to which the applicant is vulnerable by virtue of conviction of two offences alleged to have occurred during little more than 20 seconds in 1976.

(j)    On 13 July 2021 the respondent’s reasons informed that were the applicant to return to Queensland his reporting period would revert from 15 years to 5 years. Disclosure of the respondent’s documents in September 2021 confirmed that this information was on record from late 2020. This consideration exceeds his jurisdiction, and is an improper exercise of power. The information did not reappear in the Assessment and in the Reasons, but on 3 September 2021 the applicant had written criticizing the respondent’s apparent intent to play for time by suggesting that the applicant return to Queensland. The imprint remains:  the respondent need stall for only some 8 months in the belief that the applicant will be persuaded to return to Queensland. Far more serious is the clear inference that the Commissioner by law protects Indonesian children from the applicant for 15 years by making conservative s271A.1 decisions and/or doing nothing at all in the expectation that the applicant will eventually relocate to a jurisdiction which protects the same children from the applicant for only 5 years. The Commissioner corrupts the purpose of the legislation.

(emphasis in original)

49    It is convenient to approach these grounds according to the factual subject matter with which they are concerned.

Actuarial assessment

50    In his submissions to the Commissioner, Mr Mentink asserted that when previously assessed by the Queensland Police under an actuarial tool known as Risk Matrix 2000 (the RM2000 tool) “and actuarial principles” he presented a minimal risk of reoffending. Mr Mentink performed his own assessment using the tool and provided the “low risk” results to the Commissioner in support of his travel application.

51    The risks assessed by use of the RM2000 tool are based on statistical data on recidivism rates among offenders of certain types across the population. Mr Mentink submitted that as at the date of his release from prison, his risk of recidivism (according to the RM2000 tool) was 8% over a five year period and 11% over a 15 year period. He told the Court that the percentage figures indicate the proportion of offenders with certain characteristics who would reoffend in the stated timeframes.

52    It is correct that an assessment utilising the RM2000 tool previously undertaken by the Queensland Police showed Mr Mentink to be a person of “low risk”. However, that assessment was undertaken without regard to Mr Mentink’s 2017 convictions for the offences he committed in the 1970s. As the Commissioner correctly pointed out, Mr Mentink did indeed reoffend between the 1970s and the 1990s. For the purposes of what follows, I will nonetheless proceed on the assumption that if applied correctly, the RM2000 tool would identify Mr Mentink as a person of “low risk” of recidivism.

Failure to have regard to low risk assessment

53    Mr Mentink submits that the Commissioner failed to have regard to the correct outcome reached on the RM2000 tool and so erred in failing to assess him as presenting a “low risk”. He submits that the RM2000 tool is routinely used by the Commissioner in different policing contexts and is therefore to be regarded as procedure that the Commissioner was required by law to observe when making the 2022 Decision:  ADJR Act, s 5(1)(b).

54    The material before the Commissioner included submissions and materials Mr Mentink provided in support of his claim that he should be assessed as “low risk”, including his submissions concerning the RM2000 tool.

55    The reasons of the Commissioner contain no express reference to or analysis of that material. I accept Mr Mentink’s submissions in that respect.

56    However, I do not accept that any routine use by the Northern Territory Police of an actuarial tool in monitoring sex offenders has the necessary consequence that the tool is a procedure required by law to be followed in the exercise of powers conferred on the Commissioner by the CPORR Act. Nor do I accept that actuarial data of the kind relied upon by Mr Mentink constitutes a mandatory relevant consideration of the kind discussed by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. As Anastassiou J observed in Kaufman v Chief Commissioner of Police [2019] FCA 1996:

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.  …

57    The statute does not expressly prescribe any procedure required to be observed by a competent authority in determining an application for permission to travel. Whilst I accept that an obligation to follow a particular procedure may of course arise by necessary implication, I am not satisfied that there exists any implied obligation to have regard to the outcome of any actuarial device such as the RM2000 tool in the exercise of the power. Accordingly, there is no proper basis to set aside the 2022 Decision on the ground specified in s 5(1)(b) of the ADJR Act.

58    The reasons of the Commissioner correctly identify the statutory purpose of the provisions preventing Mr Mentink from leaving the country. He identified (again correctly) that the decision to grant or refuse permission is one involving the evaluation of all of the facts and circumstances. There were multiple relevant facts and circumstances considered by the Commissioner that are not able to be input into the RM2000 tool.

59    The reasons otherwise deal comprehensively with Mr Mentink’s claim that he presents a low risk to children in Indonesia. The reasons state (correctly) that the travel application must be determined with reference to the facts and circumstances of the particular case. The reasons state that the Commissioner had had regard to the material provided by Mr Mentink, and the schedule of materials annexed to the reasons confirms that Mr Mentink’s materials concerning the RM2000 tool were among those documents. They include the results of the assessment Mr Mentink had administered to himself utilising the RM2000 tool. It is plain from the face of the reasons that the Commissioner evaluated the risk Mr Mentink posed to children in Indonesia with specific reference to past and present day circumstances and so implicitly rejected the invitation to exercise his power by use of any actuarial tool. That is not to say that it would not be open to a decision-maker to employ such a tool to inform the decision making task. But in my evaluation there was no legal obligation to apply the RM2000 tool in making the 2022 Decision, whether as a matter of statutory construction or as a matter of procedural fairness.

Erroneous high risk assessment

60    Mr Mentink further alleges that in 2018 the Commissioner assessed him using the RM2000 tool and erroneously derived a “high risk” rating, amounting to an exercise of power for an improper purpose. He contends that the Commissioner’s asserted failure to deal with Mr Mentink’s complaints about that assessment amounts to bias and a failure to afford procedural fairness.

61    To the extent that it was argued that in making the 2022 Decision the Commissioner took into account an erroneous assessment made in 2018 using the RM2000 tool, that allegation has not been established on the evidence before me. The reasons contain no reference to the existence of the earlier assessment and it has not been shown that it was taken into account by the Commissioner in making the 2022 Decision. Nor has it been shown that the obtaining of any erroneous assessment in 2018 is properly characterised as conduct preparatory to the 2022 Decision.

62    The task of the Commissioner under the CC Act was to make his own assessment by reference to the particular facts and circumstances for the specific purpose of identifying the present day risk posed by Mr Mentink to children in Indonesia.

63    As to the allegation of apprehended bias, the test is whether a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to bear in determining Mr Mentink’s application for permission to travel:  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ (at [6]). I do not consider the test to be satisfied by proof of the existence of an erroneous actuarial assessment performed some years prior by members of the Northern Territory Police for general policing purposes. To reason in that way would be to impute to the fair-minded lay observer an overly suspicious mindset, imputing to the Commissioner an undisclosed intention to rely on the allegedly erroneous assessment in the exercise of the power.

64    Mr Mentink’s submissions were otherwise to the effect that he was aggrieved by the past use of an erroneous assessment that has adversely affected his interests more generally, including in his relations with Indonesian authorities. The difficulty with that aspect of the grounds is that it has not been shown that past reliance on the 2018 assessment is properly to be regarded as conduct of the Commissioner in relation to, or preparatory to, the decision forming the subject matter of this application for review, namely the 2022 Decision.

Weather

65    Mr Mentink contends that the Commissioner took into account an irrelevant consideration in concluding that there were places in Australia having more temperate climates:  amended OA, [7.1]. The Commissioner’s finding was made in the course of considering Mr Mentink’s submission that he wanted to travel to Indonesia to escape the climate in Darwin that was said to be the cause of some of his health problems. The Commissioner was entitled to make the observation that he did. In doing so, the Commissioner made it plain that he placed little or no weight on Mr Mentink’s desire to reside in Indonesia on the basis of the weather. The Commissioner was entitled to have regard to the circumstance that there were places in Australia where Mr Mentink could reside, being places having sex offender reporting regimes. The Commissioner did no more than to reject a submission that Mr Mentink had advanced on a factual topic that he asserted was relevant.

Matters affecting the safety of children in Indonesia

66    Mr Mentink submits that he could not be compelled to disclose his status as a registered sex offender to the parents of any children with whom he may have incidental contact in Indonesia. He submits that the Commissioner therefore had “no jurisdiction” to take into account the fact that he had no intention to make any such disclosure:  amended OA, [6].

67    The Commissioner identified the interests of children situated overseas as a “primary consideration”. That identification is consistent with the statutory purpose of the provisions that restrict Mr Mentink’s freedom of travel as identified by Wheelahan J in Ammouche v Chief Commissioner of Police (2018) 266 FCR 430 (at [61]):

…  While the purposes of s 271A.1 of the Criminal Code can be taken to include the prevention of child sex tourism and other forms of travel posing a real risk to vulnerable children, I do not consider that either the text of the legislation or the extrinsic material supports confining the focus of the legislation in that way.  ....  It is the fact of the offending and the class of offending that are indicative of the risk that the legislation seeks to address by imposing reporting requirements under that legislation, including reporting in relation to overseas travel. One of the purposes of s 271A.1 of the Criminal Code is to address the risk arising where some countries do not have monitoring and reporting systems in place in relation to sex offenders.  ...

68    The Commissioner did not reason in a way that compelled Mr Mentink to disclose his status as a reportable offender. Rather, he took into account the undisputed fact that Mr Mentink had chosen to make no voluntary disclosure of his own. The circumstance that parents in Indonesia would not be made aware of Mr Mentink’s criminal history was plainly capable of informing the assessment of the risk that he presented to children situated there. The Commissioner’s consideration of the issue did not deprive him of power to make the 2022 Decision, nor did it involve the consideration of an irrelevant consideration. To the contrary, his consideration of the issue was consistent with the statutory purpose.

69    A related contention that the Commissioner took into account an irrelevant consideration in observing that Indonesia had no sex offender registration regime should be rejected for the same reason:  amended OA, [7.2]. So too should a contention that the Commissioner took into account an irrelevant consideration in observing that an expert report upon which Mr Mentink relied did not address potential risk scenarios in Indonesia:  amended OA, [7.3]. Those matters properly informed the Commissioner’s assessment of risk presented by Mr Mentink to children situated overseas.

Prior breach of conditions and recommendations

70    Mr Mentink submits that it was irrational for the Commissioner to characterise as “serious” his failure to report his relocation to the Northern Territory to the Queensland authorities:  amended OA, [10(b)]. He further submitted that his failure to report the relocation was irrelevant in determining risk:  amended OA, [7.4.4]. Neither of those contentions can be accepted. The Commissioner was entitled to have regard to past instances of non-compliance by Mr Mentink as an indicator of his attitude toward compliance. The characterisation of the failure to report the relocation as “serious” was an evaluation that was plainly open to the Commissioner to make. Mr Mentink has not taken this Court to any material that would render that evaluation irrational or legally unreasonable.

71    Mr Mentink submits that it was “absurd” for the Commissioner to observe that he had not complied with a parole recommendation about his residing with children by living with his wife and stepson. Presumably that submission was based on the passage of time between the parole recommendation and Mr Mentink’s choice to reside with a male child in Indonesia more than 10 years later. However, in my view, it was open to the Commissioner to take into account Mr Mentink’s choices in years following his release on parole. That is especially so given Mr Mentink’s history of criminal offending, comprised of sexual offences against boys in the 1970s and in the 1990s. This aspect of the reasons does not constitute a finding that Mr Mentink was in breach of his parole conditions. It was simply an observation that Mr Mentink had chosen to reside with a boy in Indonesia in circumstances where there had been a past recommendation accompanying his release from prison that he not do so. I do not consider that choice to have been an irrelevant consideration. The weight to be ascribed to it was a matter for the Minister.

Delay

72    Mr Mentink’s submissions complaining of delay in the resolution of his application for permission to travel were premised on the assumption that he had been waiting since about 2020 for an answer. Whilst that is strictly correct, the circumstances are explained by Mr Mentink’s choice to lodge a new application for permission in September 2021 and the resultant judgment of Logan J in Mentink (No 2). In my view, the delay between September 2021 and 5 January 2022 is not such as to evidence an improper purpose on the part of the Commissioner including any purpose of frustrating Mr Mentink in his attempt to obtain permission to travel before such time as permission under the CC Act is no longer required.

Failure to return to Australia in 2018

73    In his submissions to the Commissioner, Mr Mentink asserted that this failure to return to Australia when he was last granted permission to travel in 2018 was explained by the “doctrine of necessity”. The Commissioner reasoned that it was not for Mr Mentink to determine for himself what the conditions on his prior grant of permission should be. That reasoning was plainly open to the Commissioner. The reasoning does not disclose error as alleged at [7.4.5] and [10(c)] of the amended OA.

Parap Pool information

74    Interpreted generously, the complaint in [9] of the amended OA appears to involve at least two contentions relating to the Commissioner’s reasons (at [65]) concerning Mr Mentink’s presence and conduct at the Parap Swimming Pool on 21 November 2020. It is to be recalled that the Commissioner was in receipt of information to the effect that Mr Mentink had frequented the pool “for long hours, usually around 3:30pm when children’s swimming lessons are on and being observed loitering around the children’s area of the pool acting in a suspicious manner”. The Commissioner noted that Mr Mentink had been banned from the pool soon after the reported events. The Commissioner said “given the conduct can only be described as suspicious, I regard it as relevant but I place little weight on it”.

75    Mr Mentink’s first contention on this topic (articulated in the ground itself) is that it was irrational for the Commissioner to rely almost exclusively on dated material whilst attaching little weight to information that might “prima facie indicate risk today”. I reject that contention. The reasons do not indicate that the Commissioner relied almost exclusively on dated material. The Commissioner identified (correctly) that his assessment of the risk that Mr Mentink presently posed involved a “multifactorial approach”. The Commissioner was entitled to place considerable weight on Mr Mentink’s past behaviour, given the criminal history described earlier in these reasons.

76    Mr Mentink’s second contention is that the Commissioner failed to afford him an opportunity review the information concerning the Parap Swimming Pool and comment upon it.

77    Indisputably, the Commissioner’s powers under the CC Act are conditioned by an implied requirement that he afford Mr Mentink (the person affected by his decision) procedural fairness:  Kioa v West (1985) 159 CLR 550. The content of that obligation was as explained by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 591 – 592):

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect on the outcome, he or she should be given the opportunity of dealing with it:  Kioa v West at 587 (Mason J), 628 (Brennan J). …

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. …

(emphasis added)

78    In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590, Kiefel CJ, Gageler, Keane and Gleeson JJ (at [2] to [3]) said that the onus was on the party asserting a denial of procedural fairness to demonstrate that the denial was material in the sense that it deprived the party of a realistic possibility of a different outcome.

79    In Nathanson v Minister for Home Affairs [2022] HCA 26, Kiefel CJ, Keane and Gleeson JJ explained the decision in MZAPC as follows:

31    In MZAPC, a majority comprising Kiefel CJ, Gageler, Keane and Gleeson JJ explained the evolution of the contemporary understanding of jurisdictional error that supported that principle of interpretation. Their Honours further explained:

‘The principle accommodates determination of the limits of decision making authority conferred by statute to the reality that ‘[d]ecision-making is a function of the real world’ by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no ‘practical injustice’ will deprive a decision of statutory force.’

32    As explained in MZAPC, the materiality of a breach requires consideration of ‘the basal factual question of how the decision that was in fact made was in fact made’. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’. The burden falls on the plaintiff to prove ‘on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition’.

33    There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of ‘reasonable conjecture’ is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive ‘story’ of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, ‘reasonable conjecture’ does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of ‘reasonable conjecture’, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

(emphasis added)

See also Gageler J (at [45]).

80    The circumstance that Mr Mentink had not been afforded the opportunity to comment on the Parap Swimming Pool information prior to the 2022 Decision is not disputed.

81    Counsel for the Commissioner submitted that there was nonetheless no breach of the rules of procedural fairness because, on a fair interpretation of the reasons, the information was not taken into account at all. Counsel pointed to the concluding paragraphs of the reasons in which the Commissioner listed those matters that had been taken into account, that list does not include the information concerning the Parap Swimming Pool.

82    Whether the Commissioner had regard to the information is a question of fact to be ascertained by reference to the reasons interpreted as a whole. In my view, the absence of any reference to the information in the list at [71] of the reasons is not determinative of the issue. Earlier in the reasons the Commissioner made express reference to the information, objectively describing Mr Mentink’s conduct and characterising it as “suspicious”. The Commissioner expressly stated that he considered the information to be relevant. It was neither discarded nor discredited. My finding that the Commissioner had regard to the information and considered it to be relevant does not arise by inference. The fact that it was considered by the Commissioner to be relevant is expressly stated on the face of the reasons.

83    Next, it was submitted that there was no obligation to draw the information to Mr Mentink’s attention because he was already aware that he had been banned from attending the Parap Swimming Pool in November 2020. On the material before me I am satisfied that on or about 26 November 2020 Mr Mentink had been made aware that he had been banned from attending the Parap Swimming Pool, although the legal basis upon which that occurred is somewhat unclear. In my view, the circumstance that Mr Mentink was aware that he had been banned from the pool does not mean that the Commissioner had no obligation to afford him an opportunity to be heard before information about it was taken into account in making the 2022 Decision. On the material before me, the facts that are said to have justified excluding Mr Mentink from the pool have never been admitted by him. Moreover, the information taken into account in making the 2022 Decision were not taken into account by the Commissioner when making the 2021 Decision. There is no basis upon which it could be said that proposed reliance by the Commissioner on the information was or should have been obvious to Mr Mentink.

84    Next, Counsel for the Commissioner submitted that if the information had been taken into account, it was afforded such little weight that any breach of the rules of procedural fairness could not have materially affected the outcome. To some extent that submission involves some repetition of the contention that the information was not taken into account at all, because of its absence from the list appearing at [71] of the reasons. It also involved the contention that the information could not have materially altered the outcome because it was a matter to which the Commissioner had afforded very little weight. Counsel for the Commissioner submitted that the large number of facts and circumstances weighing against the grant of permission to Mr Mentink to travel was such that referral of the matter back to the Commissioner for further consideration could not conceivably result in a different decision.

85    In my view, the failure to afford Mr Mentink an opportunity to review and comment on the information concerning his alleged conduct at the Parap Swimming Pool was a material error in the relevant sense. In accordance with the principles summarised in Nathanson it is plain that if afforded an opportunity to be heard, Mr Mentink would have availed himself of it. I am satisfied that there was a possibility that the outcome might have been different had he been afforded that opportunity, for three reasons.

86    First, the Commissioner has proceeded on the basis that the information he had before him was sufficient to found a “suspicion”. Implicitly, the Commissioner has proceeded on an assumption that the information was capable of giving rise to a reasonable suspicion that Mr Mentink had loitered at the pool to observe children for prurient purposes. The information was highly prejudicial, having regard to the Commissioner’s task of assessing the present day risk that Mr Mentink posed to children. The information could only have been “relevant”, in the Commissioner’s own assessment, if it were damaging to Mr Mentink.

87    Second, the circumstance that the Commissioner recognised that the information rose no higher than to support a “suspicion” does not demand a conclusion that the denial of procedural fairness was immaterial. That is principally because the reasons of the Commissioner do not include an express statement as to the degree of risk that the Commissioner considered Mr Mentink posed. Whilst it is clear that the Commissioner considered there to be at least some risk, the degree of that risk is not discussed in a quantitative way. It may be that the Commissioner considered that even the slightest risk was sufficient to justify refusing Mr Mentink’s request for permission to travel. It is also apparent that the Commissioner had some regard to the circumstance that Mr Mentink had family connections in Indonesia, but concluded that matters favouring the grant of permission to travel were outweighed by need to protect children situated overseas. The absence of a more detailed analysis of the degree of risk posed by Mr Mentink leaves open the possibility that if the Parap Swimming Pool information were to be disregarded, the balance of countervailing factors might have tipped in Mr Mentink’s favour. I am reinforced in that view by the circumstance that the Parap Pool information appears to be the only recent information in the possession of the Commissioner capable of supporting a finding that Mr Mentink continues to be a person who cannot control his sexual impulses in relation to children, notwithstanding that he has not been convicted of a sexual offence committed after the early 1990s.

88    Third, whilst it is not necessary for Mr Mentink to adduce evidence as to the submissions he would have made to the Commissioner in relation to the information had he been afforded an opportunity to do so, this Court does have before it evidence of the submissions he might have made. They include submissions as to what occurred at the Parap Swimming Pool that, if accepted, might cause the Commissioner to change his view that the objective circumstances were enough to found a “suspicion” that Mr Mentink had loitered at the pool for prurient purposes.

Prison letters

89    The Commissioner’s conclusion that Mr Mentink “lacked remorse, responsibility and insight into his offending behaviour” was based in part on the content of letters he had written from prison to a victim of the offences he had committed in the early 1990s and to the parents of that victim (reasons, [50]). As mentioned earlier in these reasons, the Commissioner summarised the content of those letters, in which Mr Mentink described the victim as “a very special friend”, compared his “love” for the victim to that a father would have for his son, denied that the relationship was inappropriate, and claim to have been deceived by the police.

90    Mr Mentink’s submissions with respect to this aspect of the reasons are, first, that the letters were irrelevant and second, that he was denied procedural fairness in respect of them:  amended OA, [7.4.2].

91    The submission that the letters were irrelevant must be rejected. In my view, they are plainly capable of informing the Commissioner’s assessment of Mr Mentink’s degree of insight into the nature and seriousness of his offending. The circumstance that the letters are dated is a matter that may affect the weight to be ascribed to them, but it does not render them irrelevant.

92    It is not disputed that the Commissioner did not inform Mr Mentink that the letters would be taken into account, nor was Mr Mentink otherwise afforded an opportunity to comment on the use to which they might be put.

93    Counsel for the Commissioner submitted that Mr Mentink could not have been taken by surprise in relation to the existence of the letters, given that he was their author.

94    Mr Mentink does not deny that he is the author of the letters nor does he deny the accuracy of their content as summarised in the Reasons. However, there is a real issue as to the inferences that may legitimately be drawn from the content of the letters (authored nearly 30 years ago) in a proper assessment about the risk that Mr Mentink poses as at the present day. In my view, it could not have been anticipated by Mr Mentink that the letters would be employed adversely to him in determining his travel request. It follows that the Commissioner was obliged to afford him procedural fairness in respect of them, more specifically to invite his comment as to the inferences that might fairly be drawn concerning his present day lack of “remorse, responsibility and insight”.

95    Counsel for the Minister then submitted that any error in this respect could not have materially affected the outcome because consideration of the letters occurred in the context of a multifaceted evaluation of which they formed but a small part. It was submitted that the Commissioner identified four different considerations that led to the conclusion that Mr Mentink is not remorseful or has not taken responsibility or gained insight into his offending. They are expressed as follows:

48    The Applicant maintains innocence with respect to the offences from 1976. The Applicant asserts that the allegations were falsified by the victim who was motivated by notoriety or financial gain. The Applicant provided submissions on his perceived deficiencies with the prosecution case, along with evidence from the criminal brief. The Applicant submits that the 1976 offending should be disregarded. I do not accept either of these submissions. The offending was the subject of a criminal trial, the outcome of which was a finding of guilt beyond reasonable doubt. I am bound to accept that verdict. I consider the Applicant’s failure to accept the verdict displays a lack of remorse, responsibility and insight into the seriousness of his offending behaviour.

49    The Applicant acknowledges the offending was serious but disputes that it was ‘particularly serious’. This is also a demonstration of a lack of remorse, responsibility and insight into his offending.

50    In 1993, the Applicant wrote letters from prison to his victim and his victim’s parents. In the letters the Applicant describes his victim as ‘a very special friend’ and compares his love for his victim to that a father would have for his son. In the letter to his victim’s parents, the Applicant writes of being deceived by the police and generally denies that his relationship with his victim was inappropriate. This further indicates the Applicant’s lack of a lack of [sic] remorse, responsibility and insight into his offending behaviour.

51    The Applicant states that his served time in prison and the significant period of time since he has offended demonstrates that he does not pose a risk to children and states that, on this basis, all prior child sex offences are irrelevant to any objective risk assessment today. I do not accept that all prior child sex offences are irrelevant. On the contrary, while acknowledging the absence of offending for a lengthy period of time, I find that the Applicant’s previous offending is highly relevant. I also find that the Applicant’s comments further reveals a lack of remorse, responsibility and insight into his offending.

52    The Applicant’s [sic] asserts that insight, remorse and responsibility are not relevant factors. I do not accept this assertion. In general, I consider insight, remorse and responsibility to be relevant considerations of a person’s prospects of reoffending. In this case, for the reasons given above, I find that the Applicant has demonstrated a lack of remorse, responsibility and insight into his offending and this is a significant consideration in relation to his risk of reoffending.

96    It was submitted that the combination of matters referred to in those paragraphs were sufficient to support the conclusion that Mr Mentink lacked remorse, responsibility and insight into his offending, such that compliance with the rules of procedural fairness with respect to the findings that [50] would not give rise to a possibility of any different outcome. Again, I do not accept that submission. It is notable that the Commissioner found that Mr Mentink continued to maintain his innocence with respect to the offences committed in the 1970s. But there is no equivalent finding with respect to the offences committed in the 1990s (to which the prison letters relate). At the hearing of this application, Mr Mentink acknowledged that the letters do demonstrate a lack of insight and remorse existing at the time that they were written. However, he contended that there were submissions that he could and would have made about the interpretation of the letters, and their significance in assessing his present day state of mind. It is not necessary to detail the nature of those submissions here. In accordance with the principles discussed in Nathanson it may readily be inferred that Mr Mentink could and would have made submissions concerning the content and significance of the letters had he been afforded an opportunity to do so. I do not accept the Commissioner’s submission that there existed discrete independent findings upon which he reasoned to the conclusion that Mr Mentink lacked insight and remorse into his prior offending. The reasons are expressed in a way that indicate that a multitude of factors were weighed in the balance such that no single factor was determinative of the issue. In addition, as I have said, findings concerning Mr Mentink’s propensity to reoffend, of their nature, involved matters of judgment and degree. They were issues critical to the assessment of Mr Mentink’s travel request because they directly informed the risk that he presented to children situated overseas. The Commissioner approached his task as a nuanced one, such that no single consideration was said to be dispositive of any particular issue, let alone this critical issue. Accordingly, I am satisfied that if the Commissioner had disregarded the letters or placed less weight on them after affording Mr Mentink an opportunity to be heard, there is a possibility that the outcome might have been different.

Relief

97    By his amended OA, Mr Mentink seeks an order that he be permitted to leave Australia for the purpose of residing permanently in Indonesia. That relief cannot and will not be granted by this Court. It has not been shown that the only lawful decision that may be made is a decision granting Mr Mentink permissions to travel.

98    Mr Mentink also seeks a declaration to the effect that the Commissioner is “not a competent authority fit to make decisions concerning the applicant’s requests” for permission to travel under the CC Act. There is no proper basis for making a declaration of that kind.

99    Nor does the Court propose to make any declaration concerning the conduct complained of by Mr Mentink. As I have said, the conduct complained of related principally to the 2021 Decision. The first review application relating to that decision was dismissed and I can perceive of no utility in reviewing conduct preparatory to it. To the extent that delay was relied upon as conduct relating to the 2022 Decision, I have concluded that the delay does not evidence an exercise of the power for an improper purpose.

100    Mr Mentink otherwise seeks orders that a communication be sent to the “Indonesian National Police and Immigration authorities” advising that an assessment communicated to them in 2019 to the effect that he is a “high risk offender” be replaced with an assessment that he is a “low risk offender”. That relief will not be granted. The communication complained of is a letter dated 1 February 2019 issued by the AFP to authorities in Indonesia. Mr Mentink has not joined the AFP as a party to the proceeding. Whether the AFP based the “high risk” conclusion on information provided solely by the Commissioner has not been established in this proceeding. Nor has it been established that the “high risk” assessment referred to by the AFP was founded on any erroneous assessment, whether using the RM2000 tool or otherwise.

101    There will be orders setting aside the Decision and referring Mr Mentink’s travel permission request to the Commissioner for determination in accordance with the law.

102    The parties will be heard as to costs.

Associate:

Dated:    21 December 2022