Khan and Minister of Foreign Affairs and Trade and Anor

[2006] AATA 356

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1396

GENERAL ADMINISTRATIVE DIVISION		)
Re		KHALIQUE KHAN

Applicant

And

MINISTER OF FOREIGN AFFAIRS

AND TRADE

Respondent

And            AMNA KHALIQUE

Joined Party

DECISION

Tribunal Ms N Isenberg, Member

Date18 April 2006

PlaceSydney

Decision The Administrative Appeals Tribunal dismisses the application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

[Sgd] Ms N Isenberg
  Member

CATCHWORDS

PASSPORT – Respondent submitted that application be dismissed under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 – Whether grounds exist for the grant of a passport to a minor under the legislation – consideration of legislation and case law – Tribunal dismisses application.

LEGISLATION

Passports Act 1938 – section 7A(4) and (5)
Australian Passports Act 2005
Administrative Appeals Tribunal Act – section 42B

CASE LAW

Re Williams and Australian Electoral Commission and The Greens (joined party) (1995) 38 ALD 366
Re Bernard McIntyre and Comcare Australia (AAT 11732, 20 March 1997)
Attorney-General v Wentworth (1988) 14 NSW LR 481
Fearnley v Australian Fisheries Management Authority [2006] FACFC 3

REASONS FOR DECISION

18 April 2006 Ms N Isenberg, Member

BACKGROUND

1.      On 1 November 2005 Mr Khan lodged at the Tribunal an application for review in respect of a decision by a delegate of the Minister to issue a passport to his former wife, Ms Khalique, for his young daughter without his consent, pursuant to section 7A(4) and (5) of the Passports Act 1938 (“the Act”), due to special circumstances, which need not be detailed here.

2.      The passport expired on 11 October 2005.

3.      On 1 July 2005 the Australian Passports Act 2005 came into effect.

THE HEARING

4.      An interlocutory hearing was held before me on 22 March 2006 at which Mr Khan was self-represented, the Minister was represented by Mr E Muston of counsel and Ms Khalique was represented by Mr J Dagnall of the Legal Aid Commission of New South Wales.

5. The representatives of the Minister and Ms Khalique (‘the Respondents’) submitted that the application be dismissed under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

6.      That section provides as follows:

“Section 42B   Power of Tribunal where a proceeding is frivolous or vexatious

(1)Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any state of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)       dismiss the application;…”

7.      The substantive issue for determination by the Tribunal was identified on behalf of the Minister was whether there were grounds for the grant of a passport to a minor under the Act. The Minister commented that this raises the specific issues of whether:

“(a)‘special circumstances’ under section 7A(4) and (5) of the Passports Act warranted the grant of the passport without the consent of Miss Khan’s father, the Applicant; and

(b)there was a documented history of mental or physical abuse, satisfying the ‘special circumstances’ criteria under the Respondent’s policy regarding the issuance of passports to minors without the consent of both parents.”

8.      The Respondents submitted that determination of the substantive issue, identified above, would be an exercise in futility.

9.      It was submitted that, as at the date of the application for review the passport in question had already expired, no practical effect could flow from a decision by the Tribunal, even if such a decision were in Mr Khan’s favour.

10.     In addition, it was submitted that any view the Tribunal might have as to the correctness or otherwise of the Department’s decision was of limited use as the decision had been made under the 1938 Act, which has now been superseded by a new Act last year.  While there are some similarities, the provisions in relation to the issuing of passports in situations similar to those of Mr Khan’s family, they are not identical. 

11.     Further, Mr Dagnall submitted, that it is not the function of the Tribunal to give comfort to those who are disaffected by a decision, in circumstances where no orders can be made which can change what has occurred.

12.     The expense of a substantive hearing to the parties and the Tribunal was also discussed.  It had been foreshadowed in conferences that Mr Khan proposes to call a number of witnesses, including witnesses from overseas, who would give evidence, the purpose of which was to show that the Department had proceeded on an erroneous basis.  The Tribunal, in the substrative matter, however, would be required to determine if the decision-maker had made the correct and preferable decision on the basis of the available information at the time the decision was made.  In those circumstances the additional evidence proposed by Mr Khan, it was submitted, would be irrelevant. Nonetheless in bringing his case, Mr Khan may endeavour to call witnesses, at expense to all parties as well as the Tribunal.

13.     Mr Khan’s position, understandably, was that the matter should proceed to substantive hearing.  He contended that as a result of the passport being issued he had suffered “losses” and his child had suffered “separation anxiety” through the Department’s “negligence, errors and lies”.  He wanted to ensure that neither his family nor other families experienced the same issues.  He contended that the provisions in the Act make Australia a “safe haven for kidnappers”.

14.     As to these broader public policy issues, the Respondents submitted that the Act under which the passport was issued had been repealed and replaced with the new Act.  Consideration of broader issues would be an unnecessarily costly exercise, especially in that they would be in relation to a superseded Act.

15.     Mr Dagnall indicated that in his view Mr Khan still had available to him the avenue of complaint to the Ombudsman.

16.     Mr Khan told me that since about May 2005 he has had overnight contact with his daughter fortnightly.  Final arrangements are to be determined by the Family Court.  He said that at the time he commenced discussion with the Department about the passport, was within 2 weeks of it being issued. To some extent, it seems that the domestic issues underlying Mr Khan’s concerns have now resolved.

17.     I was referred to Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366 where it was noted that the power to dismiss an application under section 42B should be exercised “cautiously and sparingly” and I proceeded on that basis.

18.     In Williams, as was contended in this case, continuation of the proceedings was futile. 

19.     As to the meaning of “vexatious” in section 42B, the Tribunal has previously applied [Williams and in Re Bernard McIntyre and Comcare Australia (AAT 11732, 20 March 1997)] the test in Attorney-General v Wentworth (1988) 14 NSW LR 481 at 491 that:

“irrespective of the motive of the litigant, proceedings are vexatious if they are     obviously so untenable or manifestly groundless as to be utterly hopeless”.

I should note that there is no suggestion that Mr Khan has commenced the proceedings vexatiously. His concerns, as expressed to me, are genuine. However the test, as stated in Re Williams (supra) “is not whether the proceedings have been instituted vexatiously but whether they are in fact vexatious”.

20.     In Re Bernard McIntyre (supra) the Tribunal said:

“Section 42B was enacted as a means of saving resources. It was intended to be applied in cases where “the continuance of proceedings…must be useless and futile” (per Latham J in Dey v Victorian Railways Commissioner 78 CLR 62 at 84)”.

21.     Most recently the Tribunal’s powers under section 42B were considered in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. The Tribunal, applying Re Williams (supra) had found that there could be no practical outcome for Mr Fearnley.  The Full Federal Court approved the Tribunal’s approach.

22.     In this matter there is no order I can make that will undo the issuing of the passport, nor revoke the passport because it is already expired. I therefore find that continuation of the proceedings would be futile and hence vexatious.

DECISION

23. The Administrative Appeals Tribunal dismisses the application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Associate

Date of Hearing  21 March 2006
Date of Decision  18 April 2006

Representative for the Applicant              Self-Represented
           Counsel for the Respondent  Mr E Muston
           Representative for Ms Khalique              Mr J Dagnall, Legal Aid Commission