Kaye and Minister for Foreign Affairs
[2007] AATA 1995
•29 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1995
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2007/00033
GENERAL ADMINISTRATIVE DIVISION ) Re JONATHAN KAYE Applicant
And
MINISTER FOR FOREIGN AFFAIRS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date29 November 2007
PlacePerth
Decision The Tribunal affirms the decision under review. ..........(Sgd. A Sweidan)......................
Senior Member
CATCHWORDS
Australian passport - cancellation - grounds for - applicant convicted of offences under Crimes Act 1914 (C'th) - applicant previously arrested and deported from Thailand in relation to charges of indecent acts on children - cancellation affirmed
LEGISLATION
Australian Passports Act 2005 (C’th)
Part IIIA of the Crimes Act 1914
Cases
George v Rockett (1990) 170 CLR 104 at 112
Hussien v Chong Fook Kam [1970]AC 942 at 948
Saad v Minister for Foreigh Affairs [1007] AATA 1675 at [31]-[33]
Thompson v Minister for Foreign Affairs [2007] AATA 1244 at [71]-73]
King v Minister for Foreign Affairs [2006] AATA 363 at [40]-[41]
Ruddock v Taylor (2005) 221 ALR 32 at [31]
Freeman v secretary, Department of Social Security (1988) 19 FCR 342 at 344-5
Shi v Migration Agents registration Authority [2007] FCAFC 59
Jebb v Repatriation Commission (1988) 80 ALR 329 at 333
REASONS FOR DECISION
29 November 2007 Mr A Sweidan, Senior Member INTRODUCTION
1. Applicant seeks a review of a decision made by the respondent’s delegate on 7 February 2007 to cancel applicant’s Australian passport and to refuse to issue a subsequent passport.
Background
2.The following matters are not in dispute:
(a)The applicant was granted an Australian passport on 13 April 2000 which was due to expire on 13 April 2010.
(b)The applicant had made travel arrangements and intended to travel to Thailand on 11 February 2007 using that passport.
(c)On 25 January 2007, M J Keelty, Commissioner of the Australian Federal Police, made a request to the respondent pursuant to s 14 of the Australian Passports Act 2005 (Cth) that the respondent
(i)cancel the passport held by the applicant; and
(ii)refuse issue of a subsequent passport to the applicant .
(d)On 7 February 2007, the respondent decided to:
(i)cancel the applicant's passport in accordance with s 22(2)(d) of the Australian Passports Act; and
(ii)refuse to issue a subsequent passport to the applicant under s14 (2) of that Act.
The legislative scheme
(i) The decision to cancel or refuse a passport
3. The principal object of the Australian Passports Act 2005 (the Act) is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally: s 3.
4. Part 2 of the Act deals with the issue of Australian travel documents, including Australian passports. By s 7,
(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 (relating to satisfaction as to identity) and by Division 2.”
5. These proceedings relate to the application of Division 2 of the Act and in particular Subdivision B thereof under which the Minister may refuse to issue an Australian passport for reasons relating to law enforcement and security. In each case, under that subdivision, the power of the Minister to cancel or to refuse to issue an Australian passport arises on a “refusal/cancellation request” by a competent authority. A competent authority is defined in each of ss 12, 13 and 14 for the purposes of each section.
6.By s 14:
(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:
(i)might prejudice the security of Australia or a foreign country; or
(ii)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii)might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv)might constitute an indictable offence against this Act; or
(v)might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; 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.
(2)If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.
(3)In this section:
competent authority:
(a)in relation to a circumstance mentioned in subsection (1) that relates to Australia, means:
(i)a person who has responsibility for, or powers, duties or functions in relation to, the circumstance under a law of the Commonwealth, a State or Territory (other than a person who is specified in a Minister’s determination as not being a competent authority in relation to the circumstance); or
(ii)a person specified in a Minister’s determination as a competent authority in relation to the circumstance; or
(b)in relation to a circumstance mentioned in subsection (1) that relates to a foreign country, means:
(i)an officer within the meaning of paragraph (a), (b) or (c) of the definition of officer in subsection 6(1); or
(ii)an employee of the Commonwealth who is specified in a Minister’s determination as a competent authority in relation to the circumstance; or
(iii)an agency (within the meaning of the Financial Management and Accountability Act 1997) that is specified in a Minister’s determination as a competent authority in relation to the circumstance.
7. Section 18 provides for refusal/cancellation requests 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.”
8.By s 18(2) a competent authority may make a refusal/cancellation request in relation to a person:
(a)whether or not the person has applied for an Australian passport; and
(b)whether or not an Australian travel document has been issued to the person; and
(c)whether or not the person is an Australian citizen.
9. Section 18(3) states “to avoid doubt” that a competent authority may suspect on reasonable grounds that circumstances in subsection 14(1) apply in relation to a person, even if the competent authority knows that the person has already been issued with an Australian passport.
10. By s 20, an Australian passport ceases to be valid if it is cancelled. The Minister may cancel a passport that has been issued to a person if a competent authority makes a refusal/cancellation request in relation to the person: s 22(2) (d).
(ii) review of decisions
11. Part 5, Division 3 provides that certain decisions under the Act are reviewable decisions, including, in s 48:
(b)a decision to refuse to issue an Australian travel document (other than a decision in relation to which a declaration under subsection 11(3) has been made or a decision made because of subsection 12(2));
(c)a decision to cancel an Australian travel document.
A reviewable decision made by the Minister is reviewable in the Administrative Appeals Tribunal: s 50.
(iii) Other matters
12. The Minister may, by legislative instrument specify any of the matters that the Act provides may be specified in a Minister’s determination: s 57. A Minister’s determination was made in 2005. Relevantly, by clause 3.4 (3)(b) of that Determination, the Australian Federal Police is a competent authority for the purposes of subparagraph (b) (iii) of the definition of competent authority in subsection 14 (3).
13. Finally, clause 3.3 and Schedule 1 of the Determination, specify offences for the purposes of s 14(1) (a) (v). They include, in Part 2, item 2, Offences against Part IIIA of the Crimes Act 1914 (child sex tourism).
The refusal/cancellation request
14. The refusal/cancellation request was made by a competent authority – the (AFP) Australian Federal Police.
15. Document T 4 at page 37 and at page 41, par 37, sets out that the competent authority had the required state of mind. That is, the AFP suspected that if the applicant’s passport was not cancelled and he was to travel overseas, he would be likely to engage in conduct that:
(a)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(b)might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; namely offences against Part IIIA of the Crimes Act 1914 - Child Sex Tourism.
16. As noted in previous cases suspicion is a state of mind. In George v Rockett (1990) 170 CLR 104 at 115, the High Court approved the definition of "suspicion" given by Lord Devlin in George v Rockett (1990) 170 CLR 104 at 112: “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.”
17. Further, there is nothing in the Act to suggest that the suspicion must be based on evidence which would be admissible in a court.
18. All that is required is that the competent authority must suspect on reasonable grounds that the person is likely to engage in such conduct. That is, it is a suspicion about something that might in the future occur. The meaning of “likely” in this context does not require that the particular conduct is more likely than not to occur, but rather that there is a real, and not remote possibility that it will: see the Explanatory Memorandum to the Act, discussed in Saad v Minister for Foreign Affairs [2007] AATA 1675 at [31]-[33]; and Thompson v Minister for Foreign Affairs [2007] AATA 1244 at [71]-[73]; Kingv Minister for Foreign Affairs [2006] AATA 636 at [40]-[41].
19. Thus the competent authority need only suspect that the conduct is likely. The Act requires, however, that the suspicion is “on reasonable grounds.”
“When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.”
George v Rockett (1990) 170 CLR 104 at 112. In that case, at 115, the Court said:
“The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown”.
20. What constitutes reasonable grounds, is to be judged against what was known or reasonably capable of being known at the time: see Ruddock v Taylor (2005) 221 ALR 32 at [31].
21. T 4 sets out in detail the facts and information by reason of which the competent authority held its suspicion. The documents to which the request refers are annexed to the affidavit of Federal Agent, Glenda Beryl Frichot, made 23 August 2007. The report and supporting documents in GFP 1 show, in particular:
(a)in May 1997, the applicant was arrested in Thailand and charged with committing an indecent act on a child under 15 (tabs 3 and 7); in August 1999 he was again arrested in Thailand, and charged with an offence of committing an indecent act on a child over 15 but under 18 (tabs 4 and 7 – and see also annexure 50). Neither case proceeded because the younger boy decided not to give evidence, and the applicant agreed to compensate the older boy (tab 6);
(b)the applicant was deported to Australia from Thailand in 1999 (tab 6);
(c)the applicant was convicted in the Perth District Court in February 2003 of an offence against ss 50BC(1) (a) and 50DB(1) of the Crimes Act 1914, and was sentenced to imprisonment for 6 years with a non parole period of 3 years (tabs 1 and 9). The offence was committed in late 2000;
(d)the statement of facts (at tab 10) includes extensive reference to the applicant engaging in sexual activity with young boys in Thailand, and the ability of the applicant to provide young boys to others;
(e)the substance of the offence, as described in the trial judge’s sentencing remarks, was that the applicant offered to assist another to commit indecency with a person under 16 in Thailand, and did so with the intention to encourage that conduct (tab 9, transcript 532, 532);
(f)the trial judge said in sentencing:
(i)the evidence at trial was that the applicant said that he had himself performed sexual acts with a young Thai boy (transcript 530); and
(ii)that from the verdict, the jury had found the applicant had contacts in Thailand and by those contacts could provide, or make arrangements for, sexual contact with underage children (transcript 532);
(g)the applicant had booked to travel to Thailand on 11 February 2007, the day after he completed his parole period for the offence (tab 16);
(h)in 2006, while planning to return to Thailand, the applicant established email contact with young Thai men (tabs 17-19; 24 and 25). In the course of that correspondence he spoke of finding 2 or 3 children from disadvantaged backgrounds for the applicant to sponsor (email 11 June 2006 at annexure 19). The applicant also made inquiries about locating boys with whom he had previously been associated (at tabs 23 and 27). There is further correspondence with Thai men at tabs 20 and 28, although the age of the correspondent in each case is not apparent;
(i)the AFP was advised by the Australian National Child (Sex) Offender Register that, in early 2006, the applicant had been assessed as falling in the high risk category (but later became aware that it was a medium risk assessment).
The material provided by the applicant
22. First, the applicant contends in par 1 of his submission that, as an Australian citizen he is entitled to a passport. In terms of the Act, s 7 recognises that entitlement, but states that it is affected by Division 2. Both aspects of the Act must be given their proper operation. It is clear that the entitlement is not absolute, nor does the Act give it any primacy.
23. Further, the applicant and his witnesses refer to his “exemplary” record during his imprisonment, and his progress towards re-integration into the community, although the applicant himself declined to enter the witness box. However, against this must be set his conduct in 2006, in particular the content of his email correspondence with men in Thailand. Even in 2006, the applicant asked about finding 2 or 3 children from disadvantaged backgrounds for the applicant to sponsor (email 11 June 2006 at tab 19). The applicant also made inquiries about locating boys with whom he had previously been associated (at tabs 23 and 27). No satisfactory explanation of these activities has been provided by the applicant.
24. The applicant (in par 8 of his submission) argues his desire to travel to meet people with whom he has a close rapport. No evidence has however been presented to support that claim nor is it consistent with the arrangements he has attempted to make by email (see for example at tabs 19 and 20).
25. The applicant’s expressed wish is to travel to Thailand. The Tribunal finds on the material before it, namely, his past conduct (particularly in Thailand), the conduct which led to his conviction in 2003, and the arrangements he was apparently making in 2006 for his return to Thailand that there are reasonable grounds to suspect that the applicant would be likely (in the sense that there is a real chance) to engage in sexual activity with children in Thailand. Such conduct is likely to endanger the health or physical safety of children in Thailand, or would constitute a child sex tourism offence under Australian law.
Did the Minister make the correct or preferable decision?
26. While the Act makes the decision of the Minister liable to review in the AAT, it does not require the Minister or the Tribunal to hold the suspicion on which the request is made. The factual questions for the Minister, and for the Tribunal on review, are
(j)whether the AFP made a refusal/cancellation request in relation to the applicant; and
(k)whether, on the material available to it at the time of the request, the AFP formed the relevant suspicion on reasonable grounds.
27. The question for the Tribunal is whether the decision of the Minister to cancel the applicant’s passport was the correct and preferable decision at the time of the Minister’s decision and on the material then available: see Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344-5; Shi v Migration Agents Registration Authority [2007] FCAFC 59. The review of refusal to issue a passport does not presently arise.
28. The Tribunal finds that on the material before the AFP, there were reasonable grounds for the suspicion held. The Tribunal also finds that the AFP made a cancellation request in relation to the applicant and that the cancellation of the applicant’s passport is the correct and preferable decision.
29. The same result would arise even if regard is to be had to material not available at the time of the decision, but available at the time of the review (see, e.g., Jebb v Repatriation Commission (1988) 80 ALR 329 at 333; Shi v Migration Agents Registration Authority [2007] FCAFC 59, Dowsett J at [35]-[47]), and McCabo v Minister for Foreign Affairs 2007 AATA 1840 per Senior Member Taylor (as to which see below).
DECISION
30.The Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ...................(Sgd. R Riberi).............................
AssociateDate/s of Hearing 15 October 2007
Date of Decision 29November 2007
Applicant’s Representative Mr Keith Larner
Counsel for the Respondent Mr Jeremy Allanson
Solicitor for the Respondent Minter Ellison
8
0