Federal Court (Full Court). The Minister found that the Appellant failed to recognise that he had "psychological sexual issues relating to children". Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"? If so, was the adjective "psychological" used by the Minister in its unscientific sense?
A delegate cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (Cth), after which the Minister personally decided under s 501CA(4) not to revoke the cancellation. The basis for the non-revocation was the Applicant's convictions for child pornography.
In making the non-revocation decision, the Minister wrote as follows:
33. In my opinion the fact that [the Appellant's] previous sexual offending against an underage person, and that more recently over a prolonged period he organised child abuse material, stored it systematically on various devices and made it available to others with similar interests and admitted to police that he accessed the images for ‘sexual gratification’ demonstrate that he has an ongoing sexual interest in children. I have had regard to and concur with the Judge's comments that he has a ‘limited but telling criminal history’ and that his ‘antecedents reflect sexual issues dating back 30 years’. I am concerned that despite the experience of being tried for these crimes, hearing the comments of the Court when sentencing and receiving substantial terms of imprisonment, [the Appellant] has failed to acknowledge he has psychological sexual issues relating to children. In my opinion [the Appellant's] attribution of his protracted and repeated access and distribution of child pornography to ‘voyeurism’ demonstrates his insight into his offending and its impact on the victims is inadequate and not fully appropriate.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the "term “psychology”, acontextualised, is ambiguous in that it can refer to the scientific study of the human mind or the mental (in contrast to physical) characteristics, properties or attitudes of a person or persons"?
Question 2: If the answer to Question 1 is 'yes', was the adjective "psychological" used by the Minister in its unscientific sense?
The FCAFC answered those questions as follows:
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