Alexander v Department of Foreign Affairs and Trade
[2015] FCA 663
•24 June 2015
FEDERAL COURT OF AUSTRALIA
Alexander v Department of Foreign Affairs and Trade [2015] FCA 663
Citation: Alexander v Department of Foreign Affairs and Trade [2015] FCA 663 Parties: TREVOR ALEXANDER, CHRISTIANE HILL and TARA CELESTE v DEPARTMENT OF FOREIGN AFFAIRS AND TRADE File number: VID 301 of 2015 Judge: TRACEY J Date of judgment: 24 June 2015 Catchwords: ADMINISTRATIVE LAW – judicial review of a decision of the delegate of the Minister for Foreign Affairs and Trade to refuse an application for the issue of an Australian passport to an infant child – whether delegate entitled to declare himself unsatisfied of the child’s identity or citizenship in the absence of a birth certificate Legislation: Acts Interpretation Act 1901 (Cth) ss 34AAA, 34A
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 10(2)(b)
Australian Passports Act 2005 (Cth) ss 7, 8, 43, 48(b), 49(1), 50(1), 51(1)(a), 53, 57
Australian Passports Determination 2005 (Cth) s 7.2(2)
Births, Deaths and Marriages Registration Act 1996 (Vic) ss 15, 18
Charter of Human Rights and Responsibilities 2006 (Vic)
Equal Opportunity Act 2010 (Vic)
Explanatory Memorandum, Australian Passports Bill 2004 (Cth) [108], [111], [136]Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – cited Date of hearing: 24 June 2015 Date of orders: 24 June 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 54 Counsel for the Applicants: The Applicants appeared in person Counsel for the Respondent: Mr SM Rebikoff Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 301 of 2015
BETWEEN: TREVOR ALEXANDER
First ApplicantCHRISTIANE HILL
Second ApplicantTARA CELESTE
Third ApplicantAND: DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
24 JUNE 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no orders as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 301 of 2015
BETWEEN: TREVOR ALEXANDER
First ApplicantCHRISTIANE HILL
Second ApplicantTARA CELESTE
Third ApplicantAND: DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
Respondent
JUDGE:
TRACEY J
DATE:
24 JUNE 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a delegate of the Minister of Foreign Affairs and Trade. The delegate refused an application by Mr Trevor Alexander (on behalf of himself and his wife) for the issuing of an Australian passport to an infant child who he claims is his daughter. I will refer to this girl, named Tara Celeste, as Mr Alexander’s daughter.
The application has been brought on for hearing at short notice because Mr Alexander wishes to travel overseas with his wife and daughter, departing on 26 June 2015, so that they can attend a family wedding in Europe.
Mr Alexander has pressed his application in the Court despite there being available to him a process of merits review at a senior level within the department and, if need be, thereafter in the Administrative Appeals Tribunal.
BACKGROUND
Mr Alexander has given evidence that his daughter was born at Baringhup in Victoria on 3 January 2014.
Under ss 15 and 18 of the Births, Deaths and Marriages Registration Act 1996 (Vic) Mr Alexander and his wife were jointly responsible for securing the registration of their daughter’s birth under that Act.
The birth was not registered. Mr Alexander explained in an affidavit and oral submissions that he was not prepared to register his daughter under the State legislation for religious reasons. In a form provided to the Australian Passport Office he declared that he did “not relinquish [his] fiduciary responsibility to the child’s best interests in that registering her to the state makes her a legal fiction ie a person, and as such the state takes ‘ownership’ of her.” As a result no birth certificate issued for Mr Alexander’s daughter.
At various times, commencing in January 2015, Mr Alexander attempted to file a passport application and supporting documents at his local post office and at a departmental office. In each case the attempt failed because the counter officer or a more senior officer considered that the application was deficient because it was not accompanied by a birth certificate.
Understandably frustrated by these refusals Mr Alexander commenced the present proceeding on 10 June 2015. He sought judicial review of refusals to consider and determine the applications.
At a directions hearing, held on 15 June 2015, counsel for the Minister agreed that an application, made by Mr Alexander later that day would be accepted for processing and that a timely decision would be made.
Mr Alexander made the application on the afternoon of the following day. It was accepted. A delegate of the Minister considered the application and, on 19 June 2015, determined to refuse that application and provided reasons for his decision.
On 22 June 2015 the matter returned to Court and Mr Alexander was granted leave to file an amended application and supporting material to challenge the decision to refuse the application. Time was allowed for the Minister to put on answering material and submissions, and the matter came on again on 24 June 2015.
THE LEGISLATION
The issue of Australian passports is regulated under the Australian Passports Act 2005 (Cth) (“the Passports Act”).
Sections 7 and 8 provide:
“7 Australian citizen is entitled to be issued an Australian passport
(1) An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister.
(2) An Australian citizen’s entitlement to be issued with an Australian passport is affected by section 8 and by Division 2.
(3) An application for an Australian passport must be:
(a) made in the form approved by the Minister; and
(b) accompanied by the applicable fee (if any).8 Minister to be satisfied of person’s citizenship and identity
Before issuing an Australian passport to a person, the Minister must be satisfied:
(a) that the person is an Australian citizen; and
(b) of the identity of the person.”Section 53(3) requires that the name of a person to whom the passport is issued must appear on the passport. The subsection further provides that, except in circumstances specified in a Ministerial Determination, that name must be (relevantly) “the name on the person’s birth certificate”.
By s 43 a Minister’s Determination may specify the kinds of personal information that may be requested by the Minister for the purposes of Part 2 of the Act, in which ss 7 and 8 appear.
Minister’s Determinations are legislative instruments in which the Minister may “specify any of the matters that [the] Act provides may be specified” in such a determination: see s 57.
At relevant times the Australian Passports Determination 2005 (Cth) (“the Determination”), made by the former Minister under s 57 of the Passports Act, provided, in s 7.2(2), that:
“For subsection 43(1) of the Australian Passports Act, the Minister may request the following kinds of personal information for the purpose of satisfying himself or herself of the person’s identity under paragraph 8 (b) of the Australian Passports Act:
(a)the person’s name as shown in records held by the Registrar of Births, Deaths and Marriages of an Australian State or Territory or by the Department of Immigration and Citizenship;
(b) the person’s date of birth as shown in those records;
(c) the person’s place of birth as shown in those records;
(d) the person’s sex as shown in those records.”The Determination provided for no relevant exception to the requirement imposed by s 53(3) of the Passports Act.
Section 51(1)(a) provides for the Minister to delegate her powers under s 7 to a Departmental officer.
A decision to refuse to issue a passport is a reviewable decision: see s 48(b). A person aggrieved by such a decision by a delegate may apply in writing to the Minister for a review of the decision: see s 49(1). A person who is dissatisfied with a decision of the Minister may apply to the Administrative Appeals Tribunal for review of that decision: see s 50(1).
THE DELEGATE’S REASONS
The delegate provided written reasons for his decision to refuse the application.
The delegate recorded that the application had been lodged and set out the documents which had accompanied it. He then referred to the relevant legislation, the Minister’s Determination and to Online Passport Information (OPI) Guidelines published by the Australian Passport Office.
The reasons then continued:
“According to the application form lodged on behalf of Tara Celeste, Tara Celeste was born in Australia on or after 20 August 1986. Accordingly, the OPI Guidelines specify that a full Australian birth certificate issued by a State or Territory RBDM should ordinarily be provided to prove her citizenship and establish her identity.
The documents provided in support of the passport application lodged on behalf of Tara Celeste do not include a birth certificate for Tara Celeste issued by a State or Territory RBDM.
In accordance with the policy set out in the OPI Guidelines, I have considered whether it can be said that Tara Celeste is unable to obtain a birth certificate issued by a State or Territory RBDM. I have also considered whether the circumstances of the present case fall outside of the circumstances discussed in the OPI Guidelines and therefore whether, having regard to the nature and importance of an Australian passport, and the provisions of the Act and the Determination, I could be satisfied of Tara Celeste’s identity and citizenship based on documents other than a birth certificate issued by a State or Territory RBDM.
The documents provided to the Australian Passport Office on 26 March 2015 include a general declaration by Trevor Alexander (Form B-11), who the application form identifies as the father of Tara Celeste, in connection with her application for an Australian passport. The declaration states:
I have declined the option to register my child for a BRS for several reasons:
1.The legislation is unconstitutional.
2.I do not relinquish my fiduciary responsibility to the child’s best interests in that registering her to the state makes her a legal fiction ie a person, and as such the state takes “ownership” of her.
3.I have provided a federal court document that provides all the necessary information the passport office requires.
4.Federal legislation overrules state legislation when there is any conflict.
The affidavit filed by Mr Alexander in Federal Court proceeding No. VID 301/2015 also states (at paragraph 47):
“I believe the religious decision of the parents NOT to register the child’s birth, whether contrary to State legislature or justifiable under Human Rights legislation, should NOT prejudice any benefits to which the child herself, TARA CELESTE, is entitled to as an Australian citizen.”
Based on this material, I understand that the reason no birth certificate for Tara Celeste has been provided is that Mr Alexander and his wife, Christiane Hill, have chosen not to register the birth with the relevant Registrar, even though this is contrary to the relevant State legislation (Registration of Births, Deaths and Marriages Registration Act 1996 (Vic)).
The material before me does not suggest there is any other impediment to the registration of Tara Celeste’s birth or the provision of a birth certificate issued by the Victorian RBDM. In those circumstances, I do not consider that it can be said Tara Celeste is unable to obtain a birth certificate issued by the relevant RBDM and therefore falls within the exemption for such applicants provided under the OPI Guidelines.
I have also considered whether, in the circumstances of this case, and having regard to the reasons given for the refusal to register the birth of Tara Celeste, the nature and importance of an Australian passport, and the provisions of the Act and the Determination, I could be satisfied of Tara Celeste’s identity and citizenship based on documents other than a birth certificate issued by a State or Territory RBDM.
While I understand that Mr Alexander and his wife may have philosophical or religious objections to the registration of Tara Celeste’s birth, in considering whether I can be satisfied as to her citizenship and identity for the purposes of issuing her a passport I must also have regard to the critical nature of an Australian passport as an identity and travel document, and the rights which ordinarily attach to a passport issued by the Australian government.
In my view, the importance of a passport as a high value identity credential and the need to ensure that Australian passports are issued based on consistent and verifiable forms of evidence means that I should not be satisfied of an applicant’s identity or citizenship based on documentation other than a birth certificate issued by a State or Territory RBDM where such a birth certificate is available but the applicant chooses not to obtain or supply it.
I consider that applying a strict standard to the evidence required in order to be satisfied of an applicant’s identity and citizenship is consistent with the terms of the Act and the Determination (particularly sections 7.2 and 9.1 of the Determination) and reflects the emphasis in the OPI Guidelines on the need for appropriate evidence and safeguards to be in place before an Australian passport is issued.
For these reasons, I am not satisfied of the identity or citizenship of Tara Celeste and have therefore decided to refuse to issue an Australian passport to Tara Celeste.”
As can be seen the delegate was principally concerned that the application had not been supported by a birth certificate for Mr Alexander’s daughter. He did not explain why it was that the material, contained in the various documents which were submitted with the application, failed to satisfy him of the matters referred to in s 8 of the Passports Act.
THE AMENDED APPLICATION
Mr Alexander sought leave to amend his original application so that he could challenge the delegate’s decision. The Minister did not oppose leave and it was granted.
Under the heading “Grounds of Application” Mr Alexander provided a series of reasons for seeking leave to amend. No grounds for challenging the lawfulness of the delegate’s decision were identified.
Those grounds, insofar as they do appear in the amended application, would seem to be collected under the part in which Mr Alexander explains why he is aggrieved by the delegate’s decision. He says that he is aggrieved for the following reasons:
“1. Tara Celeste has been identified.
2. Tara Celeste is an Australian Citizen.
3.….
4.the Respondent unlawfully and/or illegally refused the issuing of a passport to Tara Celeste.”
Elsewhere in the amended application Mr Alexander referred to a number of paragraphs of ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) which, he said, supported orders which he sought. If errors of the kind which are identified in these sections were established, they could lead to the quashing of the delegate’s decision.
No legal errors were, however, otherwise particularised.
During his oral argument I invited Mr Alexander to identify the legal errors which he contended provided a basis for intervention by the Court. His principal submission was that the documents which he had submitted with the application provided overwhelming evidence of his daughter’s identity and Australian citizenship. This was because the documents had identified when and where she had been born, her name and her gender. The accuracy of this information had not been challenged by the delegate. In these circumstances Mr Alexander alleged that there had been a denial of natural justice and that the decision was unreasonable.
Mr Alexander also submitted that, even if the delegate had been properly authorised by the Minister to act in this capacity pursuant to s 51 of the Passports Act, it was not possible for the Minister to delegate to him the authority to form the subjective judgments contemplated by s 8 of the Passports Act. He further submitted that the delegate acted in bad faith by proceeding to make the assessment under s 8 himself without referring the matter to the Minister and awaiting her advice.
Mr Alexander also referred to certain state legislation, including the Charter of Human Rights and Responsibilities 2006 (Vic) and the Equal Opportunity Act 2010 (Vic), and to international treaties. The Victorian legislation can have no bearing on the delegate’s decision making under the Passports Act, nor can international treaties, which are not binding in Australia unless made so binding by legislation.
I explained to Mr Alexander that the Court could not undertake merits review of the delegate’s decision in the way that could occur during an internal departmental review or on application to the Administrative Appeals Tribunal. I further explained that, ordinarily, the Court was not in a position to direct a decision maker to make a particular decision and that, if a decision is found to have been affected by jurisdictional error, the normal remedy is for the decision to be quashed and the original application to be remitted to the decision maker for determination according to law.
CONSIDERATION
The availability of merits review under the Passports Act may provide a reason for the Court, in its discretion, to refuse an application under ss 5 and 6 of the ADJR Act: see s 10(2)(b). The Minister did not seek to invoke this provision and, given the urgency of the application and Mr Alexander’s professed desire to pursue judicial review, I do not consider that he should be prevented from doing so.
It was common ground that the Court should proceed to final determination of the amended application this morning.
Section 7 of the Passports Act creates an entitlement for an Australian citizen to be issued with a passport. That entitlement is subject to a precondition, prescribed by s 8, that the Minister must be satisfied that the person is an Australian citizen and of the identity of the person. It is important to note that it is for the Minister (or her delegate) to be so satisfied, not the Court. The fact that the delegate’s decision turns on his or her subjective state of satisfaction does not immunise the resultant decision from judicial review but it does, in some respects, confine the scope of the review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-7, 281-2.
The Minister has determined, pursuant to s 43 of the Passports Act, that the production of a birth certificate may be requested in order to satisfy her of the applicant’s identity for the purposes of s 8(b). The Explanatory Memorandum for the Bill which became the Passports Act said (at [136]) that the purpose of this provision was to “make it clear that certain information is necessary for the purpose of satisfying the Minister of an applicant’s identity, citizenship or entitlement”.
The need for the Minister to be provided with a birth certificate is also evident from the requirement of s 53(3) of the Passports Act which requires that the name of any person appearing in a passport issued under s 7 must be the name which appears on the person’s birth certificate. There are certain exceptions made to this requirement but none are presently relevant. That being so no passport bearing Mr Alexander’s daughter’s name could be issued to her. The Explanatory Memorandum for the Bill explained the purpose of s 53 in paragraphs 108 and 111. Insofar as those provisions are relevant, they provide:
“108.This provision will complement the requirement that the Minister must be satisfied of the identity of the person (new section 8), which is important to combat identity fraud. There are limited legal powers relating to the name of a person under Commonwealth law. This makes the Minister’s task of satisfying him or herself as to the identity of the person more difficult. The legal responsibility for recording names resides with the Registrars of Births, Deaths and Marriages under State and Territory laws. Accordingly, the name registered with these Registrars will normally be used, as part of the process of satisfying the Minister of the identity of the applicant.
…
111.The requirement for a stricter legal documentation of the name of a person will enhance the integrity of the passport system and prevent the potential for abuse through using names established by deed poll or ‘by reputation’.”
I will deal immediately with the delegation point raised by Mr Alexander. If his contention is correct then the delegate’s decision must fail because he lacked authority to make it.
Under s 51(1)(a) of the Passports Act the Minister may delegate her powers and functions under various provisions, including s 7, to an officer of the Department. A written notice of delegation to the person holding the office of Assistant Secretary of the Australian Passport Office was tendered. The delegate held the office at the relevant time.
Section 51 does not empower the Minister to delegate any functions or powers granted to her by s 8 of the Passports Act.
Section 34AAA of the Acts Interpretation Act 1901 (Cth) provides that delegations, such as those provided for in s 51 of the Passports Act, may be effected by the identification of a particular office or position, the holder of which becomes the delegate, rather than by naming a particular person.
Section 51 does not empower the Minister to delegate any functions or powers granted to her by s 8 of the Passports Act. The relevant power is, however, the power in s 7 to issue or to refuse to issue a passport. As already noted, the power is qualified by ss 7(2) and 8.
These provisions make it a precondition to the issuing of a passport that the Minister be satisfied of the matters identified in s 8. Section 8 does not, of itself, confer any power on the Minister.
It follows that it was for the delegate, when exercising the power delegated to him under s 51 to determine applications under s 7, to form the necessary judgments contemplated by s 8 of the Act without reference to the Minister. It was for the delegate to form the judgments as a precondition to exercising his power: see s 34A of the Acts Interpretation Act.
There was, therefore, no usurpation by the delegate of the Minister’s power as alleged by Mr Alexander and the failure of the delegate to refer the matter to the Minister was not indicative of bad faith.
I turn now to the other arguments advanced by Mr Alexander. The first of these is that the decision of the delegate was unreasonable.
Were it not for the legislative provisions to which I have referred and, in particular, ss 43 and 53 of the Passports Act and the Ministerial determinations made in relation to them, I would have considered there was considerable force in Mr Alexander’s argument that the delegate’s decision was unreasonable because there was available to the delegate a good deal of evidence in the form of affidavits and other documents which, on their face, would have had the capacity to establish that Mr Alexander’s daughter was both an Australian citizen and an identified person.
No serious attempt is made in the delegate’s reasons to explain why he was not persuaded by the material that had been advanced by Mr Alexander to support his contention. The statutory provisions to which I have referred, however, elevate the requirement for the production of a birth certificate to a requirement that must be satisfied in most cases where passports are applied for, the only exceptions having no present application. The result was that the delegate was entitled, reasonably, to declare himself unsatisfied of the matters identified in s 8 in the absence of a birth certificate.
I acknowledge Mr Alexander’s submission that no such certificate exists. It remains the case, however, that Mr Alexander and his wife were under a legal obligation, and remain under such an obligation, under the Victorian legislation to register the birth and, if they were to do so, even at this late stage, in accordance with their legal obligations, a birth certificate would then become available which can be submitted to support an application under s 7 of the Passports Act. The delegate’s decision was not, therefore, unreasonable.
Whilst I can understand an argument that, in the period between January this year and this month, Mr Alexander may have been denied natural justice by reason of the failure of officers of the Department or the post office to receive and consider his applications, there can be no suggestion that, once his application had been made and accepted, natural justice was denied by the delegate in the making of the decision.
It follows that the application must be refused.
The decision that I make is made without prejudice to any rights that Mr Alexander has and may wish to pursue under the Passports Act for a review of the delegate’s decision on the merits.
The order of the Court will be that the application be dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 1 July 2015
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