ABDL HAMEL SAAD and MINISTER FOR FOREIGN AFFAIRS
[2009] AATA 920
•27 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 920
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0776
GENERAL ADMINISTRATIVE DIVISION ) Re ABDL HAMEL SAAD Applicant
And
MINISTER FOR FOREIGN AFFAIRS
Respondent
DECISION
Tribunal The Hon B Tamberlin QC, Deputy President Date27 November 2009
PlaceSydney
Decision The decision under review is affirmed. .................[sgd]...........................
Deputy President
CATCHWORDS
PASSPORTS – Application for Australian passport – Refusal – Request by a competent authority to refuse issue – Whether competent authority suspects applicant would be likely to engage in conduct that might constitute and indictable offence – Whether reasonable grounds – Discretion not exercised – Decision affirmed
Australian Passports Act 2005, ss 14, 32, 33, 34, 37
Australian Passports Determination 2005
Re Saad and Minister for Foreign Affairs [2007] AATA 165
REASONS FOR DECISION
27 November 2009 The Hon B Tamberlin QC, Deputy President basic facts
1. On 5 January 2009, the Applicant, Mr Abdl Hamel Saad, applied for a passport under the Australian Passports Act 2005 (the Act). The Minister for Foreign Affairs (the Minister) decided to refuse to issue a passport to the Applicant on 4 February 2009. The Applicant now seeks review of the Minister’s decision by this Tribunal.
2. The Minister’s decision was made under subs 14(2) of the Act in the exercise of a discretionary power conferred on the Minister where a request is made by a “competent authority”. The Minister's power to refuse to issue a passport arises if a competent authority suspects on reasonable grounds that if an Australian passport were issued to the person, he or she “would be likely to engage in conduct that might constitute an indictable offence” against the Act: subs 14(1) of the Act.
3. There is no dispute in the present case that a request was made by a competent authority, namely Mr Russell, who, at the relevant times, was the director of the Passport Fraud section of the Department of Foreign Affairs and Trade (the Department).
4. On 6 February 2009, Mr Russell made a verbal request to the Minister to refuse to issue a passport to Mr Saad. The request referred to the fact that Mr Saad’s passport had been cancelled by the former Minister in November 2006 on the ground that he was likely to engage in conduct that might constitute an indictable offence against the Act. Mr Russell stated that he considered that the likelihood of such conduct remained current and that this was not outweighed by other factors.
5. Attached to Mr Russell’s submission to the Minister was the following statement:
…
Background
Mr Ian Russell, Director, Passport Fraud Section, who is a competent authority as defined in section 14 of the Australian Passports Act 2005 (The Act), requests that Mr Abdl Hamed Saad [DPOB omitted] be refused the issue of a further passport because it is believed on reasonable grounds that Mr Saad is likely to engage in conduct that might constitute an indictable offence under the Act.
In November 2006, the former Minister cancelled and refused to issue a passport to Mr Saad, and also refused to issue a passport to his wife, Ms Bedour Idaayen, on similar grounds. The Minister’s decision was premised on the outcome of a joint AFP/DFAT investigation which concluded that passports held by Mr Saad and Ms Idaayen and their four minor children were used in ways that might constitute indictable offences under the Act, in particular: (a) providing a travel document to another person and being reckless as to whether the document will be used by the other person in connection with travel or identification (s 32(3)); SELLING AN Australian TRAVEL document (s 33); damaging an Australian travel document (s 34) and bringing, taking or sending an Australian travel documents across international borders being a documents not issued to the person (s 37). The former Minister’s decision was affirmed in the Administrative Appeals Tribunal (AAT) in August 2007.
The investigation revealed that the six family members had held a total of 16 Australian passports in the period February 2002 to November 2006. Four further applications for replacement travel documents had been lodged at the time of the former Minister's decision. A total of five passports were reported lost within that period and four were reported damaged by water. At least two passports were used to enable entry and exit of unknown person to/from Kuwait and a further two were detected in New Zealand in 2002 in connection with a major criminal passport forgery and bio-substitution operation. Additionally, Mr Saad was convicted of making a false statement on a passport application in August 2004. He received a fine and was placed on a 12-month good behaviour bond for that offence.
The previous decision to refuse to issue passports to Mr Saad and his wife remain in force. However, as Mr Saad has lodged a fresh application, it is necessary to consider whether there are compelling reasons supporting passport issuance against any factors supporting refusal. In support of his current application, Mr Saad has included a copy of a letter addressed to the Minister for Immigration and Citizenship from Dr Karrima Attia Soliman of Auburn Medical Centre stating that he is receiving treatment for severe chronic depression, that his father is sick in Iraq, his mother is sick in London and that it would be therapeutic for his depression to travel overseas to see his parents. Mr Saad has also lodge a translation of an undated medical report describing treatment of injuries allegedly sustained by his father in Iraq. No other documents or statements were submitted in support of his application.
Mr Saad’s claims of his own and his parents’ ill health have not been tested but Mr Russell has provisionally accepted them in his consideration. However, in view of Mr Saad’s background of involvement in the misuse of his own and his family’s Australian travel documents, the compassionate factors supporting passport issuance are not considered sufficiently compelling to outweigh the assessed continuing likelihood that he will engage in conduct that might constitute an indictable offence under the Act.
6. Mr Russell clarified in a later affidavit that he discussed the draft Ministerial decision with Mr Ross Greenwood,the Assistant Secretary, Passport Business Improvements and Technology Branch of the Department, and made an oral request to him that the application for the passport be refused and that Mr Greenwood accepted those reasons, and on that basis, signed the request.
7. Mr Russell gave evidence that, in March 2005, the Australian Federal Police provided him with a document relating to Mr Saad and his wife concerning applications before the Passport Fraud Section in relation to members of Mr Saad’s family. This included a finding of guilt on 3 August 2004 in the Downing Centre of making a false statement in his 2003 passport application after Mr Saad presented a cancelled Victorian change of name certificate. He was given a $500 fine and a 12-month bond. This report, after setting out the details, contained a recommendation that on the balance of probabilities, the family of Mr Saad was more likely than not involved in the facilitation of passport fraud via the receipt of passports in their name and that the matter be assessed as to the suitability of being brought to the Minister’s attention for possible refusal of passport issue.
8. Mr Russell gave evidence that he was aware of information provided by the Department to the effect that it had been informed by the Kuwaiti authorities that a number of Australian passports had been detected and fraudulently altered and used illegally for entry to Kuwait. Two passports belonging to two of Mr Saad’s children were included in the list of 43 Australian passports identified by the authorities in that category.
9. Mr Russell became aware of the finding of guilt in relation to the false statement as to change of name. He noted that of 16 passports issued to Mr Saad's family since February 2002, five had been reported lost or stolen and a further four passports were reported as water damaged. Mr Russell suspected that the four passports that were water damaged were deliberately damaged to disguise evidence of their use by other persons. He was informed that two passports, one having been issued to one of Mr Saad’s children and the other to Mr Saad, were detected in the mail in Auckland by New Zealand authorities. Mr Russell noted links between Mr Saad and other suspected passport fraud cases.
10. Departmental records indicated that between February 2002 and August 2004, Mr Saad had held four passports in three different names. Mr Russell explains that he was a competent authority under the Act and made the report in that capacity. He made the request to refuse to issue the passport because he formed the belief that Mr Saad would be likely to engage in conduct that might constitute and indictable offence under the Act, including the provision of a travel document to another person and being reckless as to whether the document would be used by the other person in connection with travel or identification, which is an offence under s 32(3) of the Act. He also formed the belief that Mr Saad would be likely to engage in conduct that might constitute an indictable offence if he were permitted to hold a passport, namely selling an Australian travel document or damaging an Australian travel document, or bringing or sending an Australian travel document across international borders, being a document not issued to that person: see ss 33, 34 and 37 of the Act.
11. On 24 November 2006, the Minister decided to cancel Mr Saad’s passport and this was upheld on review by this Tribunal: see Re Saad and Minister for Foreign Affairs [2007] AATA 165 (20 August 2007).
12. The present application was precipitated by correspondence dated 31 August 2008 addressed to the Minister from Mr Saad’s general practitioner, Dr Karrima Attia-Soliman. The letter stated that Mr Saad was under her care for treatment of severe chronic depression, that his father was sick in Iraq and his mother was sick in London, and that he needs to travel overseas to see his sick parents as this is therapeutic for his depression. The doctor said that speeding up the request for issue of a passport was essential for the stabilisation of Mr Saad’s psychological condition.
13. There was also evidence translated from an Arabic certificate from the Ministry of Health General Hospital, Baghdad, stating that a Mr Fadiel Saad, aged 66, had a lower abdomen injury as a result of a shot and that surgery had been performed, that his pelvis had been fractured, that there was laceration of the colon and an artificial joint had been inserted. The document appears to be undated but there is a certificate by an Arabic translator dated 12 September 2008.
14. On 25 November 2008, Mr Saad wrote to the Department referring to his father’s condition.
15. Mr Russell gave evidence that, in considering whether to make a request for refusal, he considered the earlier request and its refusal and that he still had a suspicion that, if Mr Saad were issued with a passport he would be likely to engage in conduct that might constitute an indictable offence. He took into account Mr Saad’s history of passport abuse. He took into account whether any compassionate or compelling circumstances existed, which should be considered by the Minister in making his decision, and while accepting that Mr Saad’s mental health may be improved if he were given a passport to travel and that his mother was located in London, his view remained there was insufficient material to accept that his mother was ill. He accepted that his father had suffered a gunshot wound but on balance he concluded that these matters were not sufficiently compelling to outweigh the risk posed by Mr Saad to the integrity of Australia’s passport system.
16. The Minister decided on 4 February 2009 to refuse Mr Saad’s passport application. Mr Russell gave evidence is unaware of any change of circumstance that would lead him to change his view or suspicion that if granted a passport, Mr Saad would be likely to engage in conduct that might constitute an indictable offence.
reasoning
17. The question for this Tribunal is whether the Minister’s decision to refuse Mr Saad’s passport was the correct and preferable decision.
18. The Minister has provided evidence from Mr Lynch, the current Director of the Passport Fraud Section of the Department, which sets out information emphasising the need to protect the integrity of Australia's passport and travel-related document system, and the significant problems and enormous cost incurred as a result of identity fraud and associated criminal activities. He indicated that reports by the Securities Industry Research Centre of Asia Pacific, estimate the cost of identity fraud for Australian large businesses amounts to $1.1 billion. He refers to statements by government ministers and attaches an extensive report on identity crime produced by the Model Criminal Law Officer’s Committee, which describes in great detail the urgent need for protection against identity fraud.
19. When the matter came on for hearing, Mr Saad appeared with the benefit of an interpreter but without any legal representation. Mr Saad did not challenge in any way the contentions advanced on behalf of the Minister nor did he adduce any evidence of changed circumstances.. His case was that he should be issued with a passport in order to visit his sick parents.
20. It is not in dispute, and the evidence establishes, in this case that Mr Russell at all relevant times was a competent authority that is, an APS employee holding or performing duties in the Department at the position of Executive Level 1: see subs 14(3) of the Act; paragraph 3.4 of the Australian Passports Determination 2005.
21. Furthermore, I am satisfied that Mr Russell has to suspect and does suspect that if an Australian passport were issued to Mr Saad, he would be likely to engage in conduct that might constitute an indictable offence under the Act and that, therefore, the application of Mr Saad for an Australian passport should be refused.
22. It is important to note that the section refers “a suspicion” and does not require the formation of a conclusive opinion that the person will engage in the conduct described. There must be “reasonable grounds” for the suspicion so that it is not a suspicion at large or one that is entirely subjective. Also, the reference to “an indictable offence” is premised on the contingency that the conduct “might” be an indictable offence and again this does not require a formation of an opinion that there must be a definitive finding that there exists an indictable offence. The words “suspicion” and “might” require considerably less than the formation of a conclusion based on the balance of probabilities.
23. In my view the evidence in this case, particularly the material from the Australian Federal Police and concerning Mr Saad’s involvement in identity fraud operations in Kuwait and New Zealand, and Mr Saad’s conviction for making a false statement in a previous passport application, is sufficient to give rise to the existence of reasonable grounds for the formation of a suspicion by Mr Russell and the Tribunal that if an Australian passport were issued to Mr Saad, he would be likely to engage in conduct that might constitute an indictable offence under ss 32, 33, 34 and/or 37 of the Act.
24. The power of the Minister (and Tribunal on review) to refuse to issue a passport on the basis of a request by a competent authority in subsection 14(2) of the Act is discretionary. Accordingly, in the exercise of the discretion, there may be reasons which weigh against the refusal to issue a visa. The only countervailing matter raised is the compassionate grounds raised by Mr Saad in relation to his own mental health, and his injured father and sick mother in Kuwait. These are significant considerations but, in my view, they do not outweigh the considerations relating to misuse of passport and the charges of identity fraud which favour refusal.
Decision
25. Accordingly, for the above reasons, the correct and preferable decision in this matter is that the decision of the Minister is affirmed and the Tribunal so decides.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of the Hon B Tamberlin QC, Deputy President.
Signed: ……[sgd]………………
Associate
Dates of hearing: 24 August 2009
Date of decision: 27 November 2009
Representative for the Applicant: Self-representedCounsel for the Respondent: Mr G Kennett
Solicitors for the Respondent: Minter Ellison
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