David and Minister for Foreign Affairs and Trade

[2009] AATA 295

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: N200601594

GENERAL ADMINISTRATIVE DIVISION        )   

ReGarry Benjamin DAVID

Applicant

AndMinister for Foreign Affairs and Trade

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date29 April 2009

PlaceSydney

DecisionThe application is dismissed under s 42B of the Administrative Appeals Tribunal Act1975 (Cth).

....................[sgd]..........................

Professor GD Walker
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - refusal or cancellation of Australian passport – applicant subject to arrest and imprisonment in a foreign country in respect of a serious offence – interlocutory application for stay of the proceedings – concurrent proceedings in the European Court of Human Rights – whether dismissal of application would interfere with proceedings in another tribunal - whether substantive application is vexatious

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RELEVANT ACTS:

Australian Passports Act 2005 (Cth) (the Act): ss 6, 13, 18, 22, 48, 50

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 4, 40, 42B

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CITATIONS

Re Williams and Australian Electoral Commission (1995) 38 ALD 366

Re McIntyre and Comcare (1997) 48 ALD 437

Re Nugent and Minister for Urban Services (2000) 61 ALD 570

Re Irving and Repatriation Commission (1997) 46 ALD 20

Re Sogo Duty Free Pty Ltd & Anor and Federal Commissioner of Taxation [2005] AATA 1298

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REASONS FOR DECISION

29 April 2009	Professor GD Walker, Deputy President
Basic facts

1. On 10 October 2006 the respondent wrote to inform the applicant that the minister had cancelled his Australian passport on the ground that he was subject to arrest and imprisonment in a foreign country in respect of a serious offence pursuant to ss 13(1)(a) and (b)(i), and 18 of the Australian Passports Act2005 (Cth) (the Act). The minister also determined that a further travel document not be issued to the applicant while he was prevented from travelling internationally by force of law of a foreign country or an order or other direction under a law of a foreign country (T7).

2.      Previously, on 19 September 2006, the head of mission at the Australian embassy in Athens wrote to the manager of the department’s passport fraud section in his capacity as a competent authority and recommended pursuant to s 13 the cancellation of the applicant’s passport and refusal to issue him with a new one (T4).

3.      The head of mission stated that the cancellation request was made on the basis that the applicant had been sentenced to five years' imprisonment for drug possession and that all legal proceedings had been completed and all appeal avenues had been exhausted.  On 4 October 2006 the respondent decided to cancel the applicant’s passport and refuse to issue a further passport to him pending the outcome of legal proceedings against him in Bulgaria (T5).

4.      On 15 October 2006 the applicant wrote to this tribunal seeking review of that decision (T1).

5.      On 17 December 2008 the applicant informed the respondent that he had been issued with a new Australian passport following his release.  By letter dated 17 February 2009 the respondent applied for dismissal of the application.

6.      At a telephone directions hearing held on 6 April 2009, Mr Lachezar Murdjev, a Bulgarian lawyer, represented the applicant in Bulgaria, and Ms Alice McCormick of Minter Ellison represented the respondent.

Applicable legislation

7.      Section 13 of the Act relevantly provides that:

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(1)If a competent authority believes on reasonable grounds that:

(a)a person is the subject of an arrest warrant issued in a foreign country in respect of a serious foreign offence; or

(b)a person (including a person who is in prison) is, in connection with a serious foreign offence, prevented from travelling internationally by force of:

(i)    an order of a court of a foreign country; or

(ii)   a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of a foreign country, or other similar arrangement made under a law of a foreign country; or

(iii)   a law of a foreign country, or an order or other direction (however described) under a law of a foreign country; or

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the competent authority may make a refusal/cancellation request in relation to the person.

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(3)In this section:

competent authority, in relation to a circumstance mentioned in paragraph (1)(a), (b) or (c), means:

(a)an officer within the meaning of paragraph (a), (b) or (c) of the definition of officer in subsection 6(1); or

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prevented from travelling internationally includes:

(a)required to remain in the foreign country concerned; and

(b)required to surrender a passport; and

(c)not permitted to apply for a passport; and

(d)not permitted to obtain a passport.

serious foreign offence means an offence against the law of a foreign country:

(a)for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

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8.      Subsection 6(1) of the Act relevantly defines “officer” to mean any of the following:

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(b)a member of the diplomatic staff of an Australian mission, being a person who is a member of the diplomatic staff of the mission within the meaning of the Vienna Convention on Diplomatic Relations;

(c)a consular officer of an Australian consulate, being a person who is a consular officer (but not an honorary consular officer) within the meaning of the Vienna Convention on Consular Relations;

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9.      The Vienna Convention on Consular Relations relevantly provides that:

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(d)“consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;

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10.     Section 18 of the Act relevantly provides that:

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(1)For the purposes of this Act, a refusal/cancellation request is a request made to the Minister under subsection 12(1), 13(1), 14(1) or 16(1) by a competent authority, being a request that the Minister do either or both of the following:

(a)refuse to issue an Australian passport to a person;

(b)cancel an Australian passport or travel-related document that has been issued to a person.

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11.     Section 22 of the Act provides:

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(1)The Minister may cancel an Australian travel document.

(2)Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:

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(d)a competent authority makes a refusal/cancellation request in relation to the person; or

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Issue

12. The issue in this application is whether the substantive application should be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) as being vexatious.

Applicant’s submissions

13.     By way of written submissions dated 5 April 2009, the applicant opposed the dismissal application and noted that from time to time the respondent had refused to agree that the matter be adjourned sine die on the ground that concurrent proceedings were pending in the European Court of Human Rights (ECHR) in respect of the same or similar subject matter.

14. Noting that the tribunal’s jurisdiction is extended by s 4 of the AAT Act to apply to every external territory, the applicant submitted that an external territory for those purposes could include Bulgaria and ultimately European bodies. Any adjudication of the matter by the tribunal would constitute contempt, as it could or would be required to reach conclusions on matters of fact or law relating to the applicant’s conviction that are the same as the issues before the ECHR for adjudication.

15.     Under the principle of comity it was totally inappropriate for the tribunal to attempt to deal with the same dispute or subject matter.  The issue of a passport did not change the factual circumstances of there being two concurrent proceedings.  The respondent at all material times had been made aware that the ECHR had taken jurisdiction over the matter.  As the applicant’s interest in personal liberty is still in issue, he is entitled to every procedural protection the tribunal and the law can offer, including natural justice.

16. There were no legal grounds for dismissal under s 42A of the AAT Act and the applicant had not at any time applied to the tribunal for such a direction.

17.     What is before the tribunal is the subject matter of the dispute.  Dismissal would constitute interference with the ECHR proceedings and would undermine the applicant’s proceedings before that court because dismissal would imply that the passport had been cancelled pursuant to a valid criminal conviction.  That would be unjust and would impose its jurisdictional decision on another tribunal (ECHR) before that tribunal had adjudicated that the applicant was indeed subjected to a valid conviction under Bulgarian law.  Conversely, to allow the matter to proceed would violate the principle of comity because it would leave on foot a matter dealing with the same subject matter as another proceeding.

18.     The applicant submitted that the matter should be adjourned sine die under s 40(1)(c) of the AAT Act until the ECHR deals with the applicant’s substantive complaints. The applicant also noted that the Bulgarian parliament had now passed an amnesty law which, according to his local legal advice, should apply to the applicant. That amnesty would have the effect of making the proceedings moot.

19.     At the hearing Mr Murdjev submitted that the decision to cancel the passport and the act of cancellation were separate matters.  As the matter is before the ECHR, this tribunal must proceed with the application for reasons of comity.  Dismissal would be improper.

20.     The Commonwealth government should have had reasonable grounds to believe that the applicant had committed a crime abroad, but the applicant was currently appealing against his Bulgarian conviction.  Further, cancellation of his passport had interfered with his rights because it was not effected by a court.

No evidence was adduced.

Consideration

21.     The applicant did not dispute that, pursuant to s 6(1) of the Act, the head of mission at the Athens embassy is a “competent authority” for the purposes of the Act.  Nor did he dispute that the head of mission, as a competent authority, made the cancellation request to the minister asking that he cancel the applicant’s current passport and refuse to issue another pursuant to s 13 of the Act.  The Act does not require that a cancellation request or decision should be made by a court.

22.     It is not clear what the applicant meant by the submission that the government action behind the act of cancellation, and the cancellation itself, are two separate matters.  The decision to cancel pursuant to s 22(2)(d) of the Act is a reviewable decision within the meaning of s 48(c) of the Act.  Where a reviewable decision is made by the minister, a person dissatisfied with the decision may apply to this tribunal for review of that decision: s 50(1) of the Act.

23.     While pending in the tribunal the application was scheduled for 11 conferences in order to assist the applicant, who was imprisoned in Bulgaria.  He now has a new Australian passport and a Bulgarian permanent resident visa.

24. The power to dismiss an application under s 42B of the AAT Act is to be used carefully. An applicant who generally believes that he or she has a basis for bringing an application is entitled to “a day in court”. That an applicant’s case appears weak is not a basis for declining to hear it: Re Williams and Australian Electoral Commission (1995) 38 ALD 366.

25.     Nevertheless, if pursuing the application can produce no useful result, the tribunal may dismiss the proceedings, as was held in Re McIntyre and Comcare (1997) 48 ALD 437, a case in which recovery of damages meant that a compensation claim could not be pursued. Similarly, a challenge to a refusal to approve a structure that was subsequently rendered futile by a change in the law removing the need to obtain approval was dismissed in Re Nugent and Minister for Urban Services (2000) 61 ALD 570; see also Re Irving and Repatriation Commission (1997) 46 ALD 20.

26.     As the applicant has now been issued with an Australian passport, it is difficult to see how dismissing the application for review of the original cancellation decision would in any way interfere with, or embarrass, the applicant’s proceedings before the ECHR.  Consequently, Re Sogo Duty Free Pty Ltd & Anor and Federal Commissioner of Taxation [2005] AATA 1298, on which the applicant relied, could have no application.

27. Proceeding to a hearing of the application could serve no useful purpose and is vexatious within the meaning of s 42A of the AAT Act.

28.     The application for review of the cancellation decision is therefore dismissed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ........................[sgd]..................................................
               Adele Veness, Associate

Date/s of Hearing:  6 April 2009
Date of Decision:  29 April 2009
Solicitor for the Applicant:                  Mr L Murdjev
Solicitor for the Respondent:             Ms A McCormick, Minter Ellison