LO and MINISTER FOR FOREIGN AFFAIRS AND TRADE
[2010] AATA 672
•25 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 672
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0702
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER JOHN LO Applicant
And
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date25 August 2010
PlaceCanberra
Decision The decision under review is set aside. In place thereof the Tribunal decides that Mr Lo’s Australian passport should not be cancelled.
.....................[sgd].........................
Mr S. Webb, Member
CATCHWORDS
PASSPORTS – Applicant charged with a serious foreign offence – passport cancelled by the Minister at the request of a competent authority – Applicant lodged bail surety and his passport with the Court and is prevented from travelling internationally – Applicant requires a valid passport to obtain an extension to his US visa in order to face the charges and comply with his bail terms - exercise of discretion requires all relevant factors to be considered – decision set aside
Australian Passports Act 2005 ss 6, 13, 22
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
25 August 2010 Mr S. Webb, Member 1. Christopher John Lo is presently in the United States of America. He is an Australian citizen and holds an Australian passport. He is also a citizen of the United Kingdom and holds a British passport. In January 2010 he was arrested, charged with an offence and bailed in Harris County, Texas. The bail terms required him to surrender his passport to the 248th District Court. This he did. Nevertheless, by that time the Minister for Foreign Affairs had cancelled Mr Lo’s Australian passport. Mr Lo has applied for review of this decision.
2. The sole issue for determination is whether Mr Lo’s Australian passport should be cancelled.
3. In the Minister’s submission the passport should be cancelled. The overarching reason for this is that the request for Mr Lo’s Australian passport to be cancelled was made by a competent authority and it was reasonable. The Minister says that the charges against Mr Lo relate to a serious foreign offence, in relation to which he is prevented from travelling internationally. In those circumstances, and consistent with sections 13 and 22 of the Australian Passports Act 2005 (the Act), it is desirable for the passport to be cancelled.
4. I do not agree.
5. The power to cancel an Australian passport under section 22 of the Act is discretionary; the discretion is enlivened if essential preconditioning factors are established. But if the preconditioning factors are established it does not follow that the particular passport must be cancelled; the Minister, and in those shoes this Tribunal, must decide whether or not to cancel the passport. When making such a decision, it is necessary to examine all the relevant evidence concerning the particular circumstances of each case.
6. It is important to note that in circumstances such as these, where a passport cancellation decision is before the Tribunal for review, the Tribunal must make a fresh decision on the basis of the material that is before it; the Tribunal must ‘do over again’ what the original decision-maker did.[1] There is nothing in the Act that fixes a time at which an assessment of whether an Australian passport should be cancelled must be undertaken. . Thus, applying Shi v Migration Agents Registration Authority,[2] the Tribunal is not restricted to consider only material that was before the Minister, or to consider only the circumstances pertaining at the time the original decision was made, but must consider the materials that are before it and the present circumstances.
[1] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 502 per Kitto J.
[2] [2008] HCA 31 at [25] to [51] per Kirby J and [96] to [101] per Hayne and Heydon JJ.
7. In Mr Lo’s case, it is clear that on 8 January 2010 he was charged with a serious offence – online solicitation of a minor (T3, T4, T5, T6, T14). That offence carries a penalty of imprisonment for a term of two to ten years. That being so, I am satisfied that the offence is within the meaning of ‘a serious foreign offence’ for the purposes of subsection 13(3) of the Act. It follows that the discretion given to a competent authority to request cancellation of Mr Lo’s Australian passport is enlivened. It appears that Elizabeth Ward, Australia’s Acting Deputy Head of Mission in Washington, decided to exercise the discretion and on 8 January 2010 requested cancellation of Mr Lo’s passport (T6). I note in passing that I am satisfied that Ms Ward was acting as a competent authority within the meaning of that term in subsection 13(3) of the Act and that her request was made on reasonable grounds at the time. Consequently, the Minister decided to cancel Mr Lo’s passport on 14 January 2010 (T10).
8. Nevertheless, it is clear on the evidence that the 248th District Court in Harris County, Texas, ordered bail conditions: payment of a $10,000 surety and surrender of Mr Lo’s passports. I am satisfied that Mr Lo complied with these conditions on 15 January 2010, and so find.
9. Three facts arise from this state of affairs. Firstly, Mr Lo is prevented from travelling internationally by force of the Court orders concerning his passport. Secondly, Mr Lo is not presently in possession of his Australian passport, which is held by the Court. And thirdly, subject to this review, his Australian passport has been cancelled by the Minister and Mr Lo is not able to use the document for any lawful purpose, including applying for an extension to his US visa.
10. As it appears to me, these are relevant factors that should be considered in addition to Ms Ward’s cancellation request when deciding whether or not to exercise the discretion to cancel Mr Lo’s passport.
11. The stated intention of section 13 of the Act is to support international law enforcement cooperation. In the circumstances pertaining to Mr Lo on 8 and 14 January 2010, it appears that the request to cancel his passport and the subsequent decision to that effect may have been directed to prevent Mr Lo fleeing from the charges levelled against him and departing from the US, contrary to the Court orders. It is noteworthy that Mr Lo did not surrender his passport to the Court until 15 January 2010.
12. Nevertheless, as can be seen, Mr Lo did comply with the Court orders and, presently, if the decision to cancel his passport is affirmed, it may adversely affect his ability to lawfully remain in the US. I note that the applicable US visa regulations provide an E-3 visa class that allows for the temporary entry of Australian professionals to perform ‘speciality services’ for a US employer.[3] It appears that Mr Lo’s present H-1B visa as extended by E-3 Approval Notices is within this class and it is due to expire on 26 August 2010. I so find. The fact that he holds dual Australian and British citizenship does not assist him, as his present visa is confined to his presentation to US authorities as an Australian citizen. It is also tolerably clear that without a valid Australian passport Mr Lo is unable to apply for an extension to his visa, and he is liable to be categorised as an illegal immigrant and may face deportation. Furthermore, absent a valid passport, will lose his ability to remain in the US as a speciality worker after today even if the charges against him are reduced by negotiation or dropped or he is found to be not guilty.
[3] US Foreign Affairs Manual, 9 FAM 41.51 N16.1.
13. Thus, for present purposes, it is necessary to weigh the reasonableness of Ms Ward’s request at the time and the desirability of ensuring that Mr Lo remains available in the US to face the charges against him, consistent with the objective of supporting international law enforcement cooperation, as well as any unfairness to Mr Lo that will flow from cancellation of his passport and the expiration of his visa.
14. As it appears to me there is little to be gained by cancelling Mr Lo’s passport in the present circumstances. His passport is not in his possession, being held by the Court, and he is not able to use it while the proceedings remain on foot. There is little utility in cancelling his passport to purportedly support international law enforcement when the surrender of the passport to the Court has achieved that same end. The interests of justice are served by ensuring, insofar as it is possible, that Mr Lo is not able to depart the US by using his Australian passport while the criminal proceedings are on foot. That end is served by the orders of the Court with which Mr Lo has complied.
15. There is no evidence before me that Mr Lo faces more than a single charge, or that he represents a high risk.
16. In the circumstances, it is desirable to enable Mr Lo to seek an extension of his E-3 visa while the criminal proceedings are on foot. This will serve the interests of supporting international law enforcement.
17. Thus, in conclusion, having carefully considered all of the relevant circumstances and the present state of affairs concerning Mr Lo, I am reasonably satisfied that it is appropriate to exercise the discretion conferred by section 22 of the Act not to cancel Mr Lo’s Australian passport. It follows that the decision under review is set aside.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ....................................[sgd]............................................
AssociateDate/s of Hearing 25 August 2010 (on the papers)
Date of Decision 25 August 2010
Solicitor for the Applicant Jerry Graves – Graves & Graves P.C.
Solicitor for the Respondent Alice McCormick - Minter Ellison Lawyers
0
3
0