Idaayen and Minister for Foreign Affairs
[2007] AATA 1676
•20 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2522
GENERAL ADMINISTRATIVE DIVISION ) Re bedour idaayen
Applicant
And
MINISTER FOR FOREIGN AFFAIRS
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member Date20 August 2007
PlaceSydney
Decision The decision under review is affirmed.
..................[Sgd].....................
Ms R Hunt
Senior Member
CATCHWORDS
PASSPORTS – Australian Passports Act 2005 – review of Minister’s decision – decision refusing to issue passport – request to Minister by competent authority – definition of competent authority - suspicion on reasonable grounds - applicant would be likely to engage in conduct that might constitute an indictable offence against the Act - grounds for suspicion considered - passport damaged by water - no exercise of discretion to issue further passport – decision affirmed
Australian Passports Act 2005, sections 14, 18(1)(a), 48(b)
Australian Passports Determination 2005
Thompson v Minister for Foreign Affairs & Trade [2007] AATA 1244
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Shi v Migration Agents Registration Authority [2007] FCAFC 59
King v Minister for Foreign Affairs and Trade [2006] AATA 636
Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711
REASONS FOR DECISION
20 August 2007 Ms R Hunt, Senior Member
Summary
1. Ms Bedour Idaayen, the applicant, applied to the tribunal for review of the Minister’s decision refusing to grant her a passport made on or about 24 November 2006. Ms Idaayen’s husband, Mr Abdl Hamed Saad, made a similar application to the tribunal for review of the Minister’s decision to cancel his passport and to not issue him with a new passport. The Australian Passport Office notified both applicants of the Minister’s decisions by letters dated 30 November 2006. I heard both review applications together. See AAT case 2006/2548 in regard to Mr Saad. In respect to Ms Idaayen’s review application, I have decided to affirm the Minister’s decision for the reasons set out below.
The Application Before The Tribunal
2. Ms Idaayen applied to the tribunal for review of the decision of the Minister for Foreign Affairs, made in November 2006, to not issue a passport to her. The Minister has power to make such a decision under section 14(2) of the Australian Passports Act 2005 (the Act). The Minister’s decision is reviewable by this tribunal in accordance with section 48(b) of the Act
Issue
3. The issue in this application is whether Ms Idaayen should be refused a passport. Under section 14(2) of the Act, the Minister (or the tribunal on review) may refuse to issue a passport to a person where a competent authority makes a refusal request to the Minister under section 14(1). The refusal request involves the competent authority suspecting on reasonable grounds that the person would be likely to engage in certain conduct described in paragraphs (a) (i) to (v) of section 14(1). In Ms Idaayen’s case, the ‘competent authority’, who made the request to the Minister, set out that he suspected on reasonable grounds that the applicant would be likely to engage in conduct that might constitute an indictable offence against the Act. This ground is available under section 14(1)(iv) of the Act.
Background
4. The respondent is responsible under the Administrative Arrangements Order for the administration of the Australian Passports Act 2005 and regulations and other instruments made under the Act. The Department administers the Act on behalf of the respondent. The respondent’s records show that, on 21 November 2006, the Director of the Passport Fraud Section of the Australian Passport Office made a request to the respondent pursuant to section 14 of the Act, to refuse to issue Ms Idaayen with a further passport. The Minister refused Mrs Idaayen’s application. The Minister cancelled her husband’s passport on the same day as the Minister refused to issue Ms Idaayen with a passport and also refused her husband a new passport
Consideration Of Evidence
5. Mr Saad and Ms Idaayen were unrepresented. They both appeared before the tribunal and gave oral evidence. Ms Idaayen told me that she applied for a new passport after her passport was damaged by water. Ms Idaayen further said her four year old child had put her passport in the washing machine at home. She said the family already had tickets to travel which an officer sighted at the time of her application. She gave further evidence she had been planning to visit her mother in Iraq.
6. Ms Idaayen said she still wants to visit her mother in Iraq. She planned to fly to Dubai and to meet her brother there. Her brother would then accompany her to Iraq. Her mother lives in the south and is unwell, with diabetes. Ms Idaayen said she had not seen her mother for six years. Ms Idaayen further gave evidence that she would not travel if her husband was refused a passport and could not accompany her and the children. Mr Saad gave evidence that the reason he wished to travel was to see his mother in London.
7. The refusal request made to the Minister is before me and states that the request was made on the basis that the Director of the Passport Fraud Section, believed there were reasonable grounds to suspect that Mr Saad and Ms Idaayen were likely to engage in conduct that might constitute an indictable offence under the Act if they were permitted to hold passports.
8. The affidavit of Mr Ian William Russell, the Director of the Passport Fraud Section of the Australian Passport Office, sworn on 2 July 2007, sets out that he is a competent authority pursuant to section 14(3)(ii) of the Act and paragraph 3.4(1)(c) of the Australian Passports Determination 2005. The Director appeared before me and gave oral evidence confirming the content of his affidavit and giving similar evidence as to some aspects of his affidavit evidence.
9. The Director stated that he had received advice of possible fraud under the Act by Ms Idaayen and her husband. Mr Jody Earl of the Australian Federal Police (AFP), who was seconded to the Passport Fraud Section of the Department of Foreign Affairs and Trade, sent this document to the Director. The Director gave further evidence to the effect that he was aware a number of Australian passports were identified by Kuwaiti authorities as fraudulently altered or used for illegal entry to Kuwait. Two of a list of 43 such passports belonged to children of Mr Saad and Ms Idaayen.
10. Following checks, the Director said he also became aware that Mr Saad was convicted of making a false statement in a passport application. On or about 6 April 2006, the Director said he prepared a minute to the Executive Director of the Passports Office recommending that the Minister be requested not to issue further passports to the family. The Director subsequently prepared the request which formed the basis for the Minister’s refusal decision.
11. I have quoted the whole of the recommendation to the Minister in matter number 2006/2548 concerning Mr Saad and take note of the whole recommendation in respect to Ms Idaayen’s case although I have not repeated it in full. When making his affidavit, the Director drew particular attention to the indictable offences which he suspected Ms Idaayen and her husband were likely to commit. A passage in the recommendation regarding the offences the Director suspected they were likely to commit reads:
As a competent authority under the Act, the Director PFS suspects on reasonable grounds that the passport held by Abdl Hamed SAAD, and any future passports issued to him or to his spouse, Bedour IDAAYEN, are likely to be used in ways that might constitute an indictable offence under the Act, in particular, 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 (s32(3) of the Act), selling an Australian travel document (s33), damaging an Australian travel document (s34), or bringing, taking or sending an Australian travel document across international borders being a document not issued to the person (s37).
12. Mr John David Payne of the Department of Foreign Affairs and Trade made an affidavit dated 2 July 2007 and gave oral evidence to the tribunal. Mr Payne stated he was currently the Regional Investigations Manager within the Australian Passports Office and had held this position since 2002. Mr Payne said that the applicant and her family first came to the attention of the Passport Fraud Section late in 2003 because of information received from New Zealand authorities. Mr Payne went through a history of the various passports issued to the family. He noted that Ms Idaayen had been issued with three passports since September 2002. Mr Saad and Ms Idaayen had reported several family passports as stolen, lost or damaged. I note that further details of the reported passport losses and damage are contained in the background information accompanying the request to the Minister.
13. Mr Payne further set out that in or about September 2003, passport L3296138, in one of the names used by the applicant’s husband, and passport L3846500 in the name of the applicant's son, Ahmed Idaayen, were intercepted at the Auckland Mail Centre, Auckland New Zealand. The sender was 'Idaayen, PO Box 39, Auburn 2144.' The applicant's family address is listed on Departmental databases as Auburn Rd, Auburn, NSW. While the postal address is not identical to the residential address, I note that the suburb is the same.
14. As to the circumstances surrounding the damaged passports, Mr Payne set out that Ms Idaayen claimed that her passport M1600822 and those of her four children were put into the washing machine by her daughter. The respondent’s counsel informed the tribunal that the children of the applicants still hold passports although I note that Mr Payne wrote in his affidavit that the damaged passports had been destroyed. Ms Idaayen confirmed before the tribunal that this is how the passports came to be damaged.
15. My Payne said that, in his experience, water damage will often disguise evidence of tampering with passports. In his view, based on all the events set out in his affidavit, there were reasonable grounds to suspect that any future passports issued to the applicant or her husband were likely to be used in an indictable offence under the Act. I note that the annexures attached to Mr Payne’s affidavit contained further details and substantiation of the matters about which he testified.
16. Additional material before me includes documents produced by the Australian Federal Police (AFP) in response to the respondent’s summons. Much of the material produced is the same as that attached to Mr Payne’s affidavit. The respondent particularly drew attention to case notes concerning Mr Saad and investigations about possible identity crime that followed the discovery of his passport and that of one of his sons in New Zealand in 2003.
Legislative Scheme
17. Section 14 of the Australian Passports Act 2005 provides, in part:
(1) If a competent authority suspects on reasonable grounds that:
(a)if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
…
(iv)might constitute an indictable offence against this Act;… and
…
(b)the person should be refused an Australian passport in order to prevent the person from engaging in the conduct …
…
the competent authority may make a refusal/cancellation request in relation to the person.
(3) In this section:
competent authority, in relation to a circumstance mentioned in subsection (1), that relates to Australia means:
(ii)a person specified in a Minister's determination as a competent authority in relation to the circumstance…
18. The Australian Passports Determination 2005 (Determination) states at paragraph 3.4:
Competent Authorities – potential for harmful conduct
(1)For subparagraph (a) (ii) of the definition of competent authority in subsection 14(3) of the Australian Passports Act, the following persons are specified in relation to conduct of the kind mentioned in subparagraph 14(1)(a)(iv) of the Australian Passports Act:
(c)APS employees holding, or performing the duties of, a position in the Department of Foreign Affairs and Trade classified at Executive Level 2, whose duties include the performance of functions under the Australian Passports Act....
19. Section 18 of the Act provides that a 'refusal/cancellation request’ for the purposes of the Act:
(1)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;….
Analysis And Findings
20. Section 14(1)(a) of the Act requires a competent authority to form the relevant suspicion that the person seeking a passport “would be likely to engage in conduct” that is set out in the subparagraphs. The particular offence suspected in Ms Idaayen’s case is that in paragraph (iv), namely, that she might engage in conduct that constitutes an indictable offence against this Act. The offences suspected that Ms Idaayen might commit are those set out in the quotation I have included under paragraph 11 of these reasons.
Competent Authority
21. Mr Ian Russell, Director of the Passport Fraud Section of the Australian Passport Office is the officer who made the request and recommendation to the Minister, on 21 November 2006, that that the Minister should not issue a new passport to her as there were reasonable grounds to suspect she would be likely to engage in conduct that might constitute an indictable offence under the Act. I accept and find that Mr Russell is a competent authority on the basis of the information contained in his affidavit and in accordance with the legislation I have set out above.
Formation of Suspicion by Competent Authority
22. A summary of matters relevant to the formation of the relevant suspicion by the competent authority is set out in the respondent’s facts and contentions. I refer to the following history of events:
(i)the extensive history of lost, damaged or stolen passports belonging to the applicant’s husband and children as well as the damage to her own passport, events which all occurred within a short period of time;
(ii)the interception by New Zealand authorities of the applicant's son's passport in New Zealand along with that of her husband;
(iii)the alteration and use by unknown persons of two of the applicant’s children's passports to enter or exit Kuwait;
(iv)the name changes registered by the applicant’s husband and the subsequent applications for passports made by the applicant’s husband soon after these changes;
(v)her husband’s conviction for making a false statement on one of his passport applications; and
(vi)Ms Idaayen testified that she would not travel unaccompanied by her husband.
23. While Mrs Idaayen does not have an extensive record of troubling dealings with her passport, I am mindful of the methods of destruction of her passport and that of her children through water damage. I accept the evidence of Mr Payne and Mr Russell that this is a method familiar to them for disguising tampering of passports. I also note that Mr Saad has a conviction concerned with passport fraud and that various family passports have turned up in New Zealand and Kuwait in unusual circumstances that have triggered investigations in those countries as well as in Australia. While Ms Idaayen’s passport was not one of those involved in these suspicious circumstances, I note that she does not intend to travel unless her husband can accompany her. I am concerned that she is in a difficult position if her husband, who has admitted to making a false statement in a passport application, is likely to engage in the conduct about which the competent authority and the Minister have formed a suspicion.
24. Section 14 of the Act only requires that the competent authority suspects on reasonable grounds that a person is likely to engage in conduct that might constitute an indictable offence under the Act. It is not necessary to find that Ms Idaayen will commit such offences. Paragraph 50 of the Explanatory Memorandum to the Act says that 'likely to engage' is based on section 7E of the 1938 Act, and 'ensures that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct.' In the present case, the future conduct suspected of the applicant is conduct that might constitute an indictable offence under the Act if she were issued a passport. The Act and the Explanatory Memorandum make it plain that the competent authority need not be satisfied that the subject of a refusal request will actually engage in conduct that constitutes an indictable offence under the Act.
25. The conduct in which the applicant was suspected of being likely to engage in includes:
(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));
(b)selling an Australian travel document (s 33);
(c)damaging an Australian travel document (s 34);
(d)bringing, taking or sending an Australian travel document across international borders being a document not issued to the person (s 37).
26. I am mindful of decided cases that have expounded on the meaning of ‘likely’ and the standards that should be applied to make a finding that something is likely. For example, Deputy President Hack in Thompson v Minister for Foreign Affairs & Trade [2007] AATA 1244 interpreted the word ‘likely’ in this context. He noted (at [72]-[73]):
The other concept that is in issue is whether it is “likely” that the applicant will re-offend. In the well-known passage from Tillmanns Butcheries Pty Ltd v Australasian Meat Employees’ Union Bowen C.J. (with whom Evatt J agreed) identified the wide variety of meanings of the word in these terms:
The word ‘likely’ is one which has various shades of meaning. It may mean ‘probable’ in the sense of ‘more probable than not’ – ‘more than a fifty per cent chance’. It may mean ‘material risk’ as seen by a reasonable man ‘such as might happen’. It may mean ‘some possibility’ – more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.
In its present context I think ‘likely’ is to be equated with ‘material risk’ rather than ‘more probable than not’ or ‘some possibility’ which seem to me to be the opposite ends of the spectrum of likelihood. Given that the decision to cancel a passport is a serious constraint upon the ordinary freedoms of citizens it would not be proper to judge the issue by reference to mere possibility. Some greater degree of likelihood, but not necessarily the balance of probabilities, is required. Thus I propose to consider ‘likely’ on the basis of ‘material risk’.
27. Also see Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; Shi v Migration Agents Registration Authority [2007] FCAFC 59; and the approach taken by the tribunal in Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244 and in King and Minister for Foreign Affairs and Trade [2006] AATA 636, where Senior Member Ettinger applied a similar test to that described by Jenkinson J in the case of Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711. However, in view of the body of information accumulated about the applicant and her family, I consider that, on balance, it is more than sufficient, to support the formation of a reasonable suspicion that the applicant was likely to engage in conduct that constitutes an indictable offence under the Act by any standard and certainly on the balance of probabilities.
28. Taking all these matters into account and on the basis of the evidence before me, I am satisfied, on balance, that there were in existence at the time of decision reasonable grounds to suspect that, if a passport were issued to the applicant, she was likely to engage in conduct that might constitute one of the above indictable offences under the Act.
Did the Minister Make the Correct or Preferable Decision?
29. I must make a decision on the likelihood of Ms Idaayen’s conduct should she have been issued a passport at the time of the Minster’s decision. It may be that Ms Idaayen’s circumstances change in the future. She did not inform me of any particular change at the time of the hearing. I am satisfied that the Minister's decision not to issue another passport to the applicant, was the correct or preferable decision as at 26 November 2006.
30. I note that should Ms Idaayen have a need to travel overseas, she may make an application to the Minister for a travel document that would enable her to travel. Travel documents may be issued in emergencies or on humanitarian grounds but the applicant’s wish to travel to visit her mother does not meet that criterion and she has not argued that she should be considered on these grounds. It follows that I am satisfied that the reviewable decision should be affirmed.
Decision
31. The decision under review is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: T. Collis
AssociateDate/s of Hearing 16 July 2007
Date of Decision 20 August 2007
Solicitor for the Applicant Self-Represented
Counsel for the Respondent Mr Nicholas ChenSolicitor for the Respondent Ms Megan Window – Minter Ellison Lawyers
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