Massey and Minister for Foreign Affairs - [2010] AATA 290

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5065

GENERAL ADMINISTRATIVE DIVISION )

Re Dale Massey

Applicant

And

Minister for Foreign Affairs

Respondent

DECISION

Tribunal The Hon Robert Nicholson, Deputy President
Date22 April 2010
PlacePerth

Decision
1. The decision by the respondent on 9 October 2008 to cancel the applicant’s Australian passport be set aside.

2. In substitution therefor, the Tribunal decides that the applicant’s Australian passport should not be cancelled.

....(sgd) The Hon Robert Nicholson....
Deputy President

10. Section 14 relevantly provides:
(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:

…
(ii)might endanger the health or physical safety of other persons (whether in Australia or a foreign country); 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 under subsection (1), the Minister may refuse to issue the person an Australian passport.

11. The Minister may cancel an Australian travel document, including an Australian passport, under s22. Subsection (1) of that section provides that the Minister may cancel an Australian travel document. This is an unfettered discretion vested in the Minister: Oates v the Minister for Foreign Affairs [1999] 95FCR 526 [52]. Subsection (2) provides that without limiting that provision the Minister may cancel an Australian travel document that has been issued to a person if “(d) a competent authority makes a refusal/cancellation request in relation to the person”.
12. The AFP is a competent authority: see sections 6(1) and 14(3)(b), and the Australian Passports Determination 2005 (“Determination”) at paragraph 3.4.
13. Offences against Part IIIA of the Crimes Act 1914 (Cth) (child sex tourism) are specified for the purposes of section 14(1)(a)(v): Determination paragraph 3.3 and Schedule 1. The Schedule is divided into part 1 and part 2. Item 2 of part 2 is “offences against Part IIIA of the Crimes Act 1914 (child sex tourism)”
14. The issues before this Tribunal therefore involve the questions of, firstly, whether the power to cancel was enlivened and, if so, what is the correct or preferable exercise of discretion under section 22 of the Passports Act. It is correctly common ground that it is not the function of this tribunal to review the reasoning of the respondent but only to review the decision in the light of remaking it in the face of the evidence before the Tribunal.
15. The consequence is that the Tribunal must consider whether the evidence as it appears before the Tribunal gives rise to a “suspicion” “based on reasonable grounds” that the applicant would be “likely to engage in conduct” that might either endanger the health or physical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] AATA 290
Decision Date: 22 April 2010

CaseChat Overview and Summary

Massey applied for a review of the Minister for Foreign Affairs' decision to cancel his passport, alleging the decision was unreasonable. The Federal Court was tasked with determining whether the Minister had reasonable grounds to suspect that Massey was likely to engage in proscribed sexual conduct if his passport was not cancelled. The central issue before the court was whether the Minister's suspicion was based on reasonable grounds and whether the decision to cancel the passport was justified.

The court examined the evidence provided by the Minister to support the suspicion of proscribed sexual conduct. It found that the evidence was not sufficient to establish reasonable grounds for the suspicion. The court emphasised that the suspicion must be based on more than mere speculation or conjecture; there must be a factual basis that reasonably supports the suspicion. In this case, the Minister's evidence did not meet this threshold. The court concluded that the Minister's decision to cancel Massey's passport was unreasonable and set aside the decision.

Consequently, the court ordered that the decision to cancel Massey's passport be set aside. In place of the cancellation, the court directed that the Australian passport should not be cancelled. This ruling underscores the necessity for the Minister to substantiate any suspicion of proscribed conduct with adequate evidence before taking action that significantly impacts an individual's freedom of movement.

Orders

Orders of the court

1. The decision by the respondent on 9 October 2008 to cancel the applicant’s Australian passport be set aside.

2. In substitution therefor, the Tribunal decides that the applicant’s Australian passport should not be cancelled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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