Consideration
19 The power of the responsible authority to give permission to travel is not express, but arises by necessary implication from the exception in ss 271A.1(3)(a). The power is plainly discretionary. There are no express conditions bearing upon the exercise of the discretion, mandatory or permissive. The discretion is accordingly informed, and constrained, by the bona fide exercise of the discretion consistent with achieving the objective purpose of the statute.
20 The evident purpose of the statute is demonstrably clear. It is to protect vulnerable children in places outside the Commonwealth of Australia from the risk of sexual abuse by persons who by reason of having committed a sexual offence in Australia, are subject to registration as child sex offenders and subject to relevant state or territory child protection legislation. I respectfully agree with, and adopt, what was said by Doyle J in Zaharis v The Commissioner of Police [2018] SASC 143; 131 SASR 576; 337 FLR 70 at [94]-[95] and, more recently, by Wheelahan J in Ammouche v Chief Commissioner of Police [2018] FCA 1703; 162 ALD 249 at [61] .
21 I now turn to the reasons given in the Second Determination.
22 In my view, the first reason exposes a rational apprehension of the risk which may be inferred from the anterior offence committed by the applicant. Although formally the applicant did not have a burden to establish he would not re-offend if permission to travel were given, in the absence of a full and candid explanation of the circumstances relevant to the proposed travel, the rational concern based upon his earlier offending could not be said to have been dispelled.
23 If an applicant provides a cogent explanation for his or her reasons for wishing to travel and, to the extent reasonably practical, verification of the said purpose, the continued refusal of permission by the responsible authority may become unreasonable and therefore not consistent, or necessary, for the attainment of the legislative purpose. That is not the case in the present application. In my view, the applicant has not provided sufficient information to allay a rational apprehension of risk that is identified in the first of the reasons.
24 The applicant relied on a report produced by Corrections Victoria. The report indicates that in the case of offenders convicted of child pornography offences, without any other sexual offences against children, only eight percent re-offend at all, and only two per cent were found to have re-offended with conduct involving sexual contact as opposed to child pornography offences.
25 I have considered this information. It is relevant in a scientific sense but is not decisive for the purpose of exercising the discretion to give permission to travel in a particular case. The responsible authority is required to consider whether the particular application to travel, on the particular occasion and to the particular destination should be allowed. Non-specific information concerning the incidence of recidivism among child sex offenders, or a sub class of them, while generally informative to an understanding of the scope of the risk of re offending, is not a sufficient basis to dispel a rational concern about the risk of re offending in a particular case.
26 The second of the reasons given for refusing the request relate to the history in connection with the applicant's compliance with reporting requirements imposed upon him under the SORA, in particular, his conviction in 2016 for travelling to Thailand in November 2014 without giving prior notification as required.
27 In the applicant's points of claim and in oral submissions he disputed his fault regarding the 2016 conviction, submitting that he had mentioned his travel plans to a delegate of the Commissioner over the course of a phone call. It was both rational and reasonable for the responsible authority to take the conviction into account in assessing the risk that the applicant may pose to the intended beneficiaries of this legislation, namely children residing outside Australia.
28 The third reason was the absence of independent evidence corroborating the medical condition of the applicant's partner's mother. I accept what the applicant has said to me, namely, that it should not be assumed that the medical records in Vietnam would be as readily available as one may assume they are in Australia. However, that does not mean that there are no other ways to establish by third party verification the stated purpose for the travel. It is not necessary, or useful, to speculate about the other sources of corroborating evidence that may have been provided by the applicant. It is plain that the responsible authority required, reasonably in my view, that the applicant provide third party verification supportive of his stated purpose for travelling. The applicant failed to provide that evidence in any form, save for a general statement by his partner in her statutory declaration referred to above.
29 The fourth reason was that the undisputed evidence of the applicant was that he had not informed his travelling companions, namely, his partner or her sister, of the fact of his convictions for the offences or that his name is placed on the register of sex offenders. There is reason, in my view, to believe that disclosing these matters, embarrassing as that may be, to persons with the potential for some oversight and supervision of the applicant while travelling abroad is a factor which may ameliorate that risk. In my view, the responsible authority was entitled to take into account the applicant's failure to inform his travelling companions of his convictions.
30 The fifth and final reason was Vietnam's status as a tier 2 country. That information is plainly relevant. It is what is described as country information in other contexts where a question arises in relation to the various social or risk factors in the country concerned, for example in the context of claims for protection under s 36 of the Migration Act 1958 (Cth). In my opinion, it was quite proper and reasonable for the responsible authority to have regard to country information of that kind in the course of considering the applicant's request.