McCabe and Minister for Foreign Affairs and Trade
[2007] AATA 1840
•8 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/22
GENERAL ADMINISTRATIVE DIVISION ) Re RE JAMES McCABE Applicant
And
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal Senior Member P W Taylor SC Date8 October 2007
PlaceSydney
Decision The Decision under review is affirmed ..............................................
Mr P W Taylor SC
Senior Member
CATCHWORDS
PASSPORTS – Australian Passports Act 2005 – Review of Minister’s Decision – Decision Refusing to Issue Passport - Request to Minister by Competent Authority – Indictable Offences – Subject of Arrest Warrant - Definition of Competent Authority – Decision Under Review is Affirmed
LEGISLATION
Australian Passports Act 2005, sections 12(1), 12(2), 18(2)(a)(b),48(b), ss22(2)(d)
Police Integrity Commission Act 1996 (NSW),sections 6(1),7(1),ss6(2),s13,s4(1),ss4 and 5(1), ss32, 33, 38, s28,s40, s59, ss15 and 16(1)(c),s15(4) and 22(1), s10(7),s123(1) and 123(3).
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Criminal Procedure Act 1986 (NSW), s237(1),s236,s109(1),SS14 and 48.
Acts Interpretation Act 1901, section 22(1)(a)
Police Act 1990 (NSW)
Passports Act 1938
Bail Act 1978, s6.
CASE LAW
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344-5
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Murphy v Minister for Foreign Affairs and Trade [2007] AATA 1272
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561.
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513
Holgate - Mohammed v Duke [1984] 1 All ER 1054 at 1056.
Australian Securities Commission v Bank Leumi Le-Israel (1996) 69 FCR 531 at 547
Fountain v Alexander (1982) 150 CLR 615 at 629F
Law Society of NSW v Bruce (1996) 40 NSWLR 77 at 84
Workers Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 653, 654.
Oates v Minister for Foreign Affairs (1999) 59 ALD 27
REASONS FOR DECISION
8 October 2007 Senior Member, P W Taylor SC THE APPLICATION BEFORE THE TRIBUNAL
1.On 20 November 2006 the Minister (i) cancelled Mr McCabe’s Australian passport, (ii) refused to issue a further passport pending the outcome of legal proceedings against him and (iii) agreed to issue a limited travel document for his return to Australia. Mr McCabe has applied for review of the Minister’s cancellation and refusal decisions.
2.The Minister’s cancellation decision was made under section 22(2)(d) of the Australian Passports Act 2005, in response to a request made by the NSW Police Integrity Commission. (Hereafter, I will refer to the legislation simply as “the Passports Act”.) Sections 12(1) and 18 of the Passports Act permit “a competent authority” to request a passport “refusal/cancellation request” where the authority believes, and has reasonable grounds for believing, the person concerned is the subject of an Australian arrest warrant issued in respect of an indictable offence.
3.The Minister’s refusal decision reflects, although it was not certainly made because of, section 12(2) of the Passports Act. Section 18(2)(a)(b) of the Passports Act states: “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.” Where such a request has been made, the Minister must not issue a passport to the person whilst the request remains current: subsections 12(2) and 19 of the Passports Act. Where the Minister has refused to issue a passport “because of subsection 12(2)” then section 48(b) of the Passports Act precludes review of that decision by the Administrative Appeals Tribunal (“the tribunal”).
4.Mr McCabe contends the Minister’s cancellation decision should be set aside on the grounds that it was contrary to the Passports Act and was made without notice to him and was unfair. These grounds were more specifically put at the hearing and involved contentions that:
(a)Mr McCabe is not a person who is subject to an arrest warrant;
(b)The Minister’s decision was not made in response to a request by a competent authority;
(c)The Minister’s decision to cancel his passport was made for an improper purpose – namely an attempt to secure his extradition from Cambodia; and
(d)the cancellation was not and is not a proper and appropriate exercise of the cancellation power.
The Tribunal’s review function and the time for consideration of relevant events.
5.The arguments relied on in support of the review application involve challenges both to the Minister’s power to make the relevant decisions and to the appropriateness of the result of its exercise. It is implicit in the Applicant’s arguments that the Tribunal should consider not only events at the time of the Minister’s decision but also the relevant circumstances at the time of the Tribunal’s review.
6.The Respondent contended to the contrary. The Respondent argued that in the exercise of its function to review the cancellation decision the Tribunal is confined to the question whether the “competent authority” had reasonable grounds for the belief required by s 12(1)(a) of the Passports Act and is also confined to a consideration of the evidence available to that authority and to the Minister. In support of that submission the Respondent relied on Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344-5; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 and Shi v Migration Agents Registration Authority [2007] FCAFC 59.
7.It was also submitted on behalf of the Minister that, despite the permissive generality of the cancellation power contained in section 22(1) of the Passports Act, once a “competent authority” had made a “refusal/cancellation request” complying with sections 12 and 18 of the Passports Act there was little, if any, further scope for a discretionary decision to refuse the cancellation request. According to the Respondent any person who is the subject of such a complying request is necessarily not lawfully free to travel internationally and, as a consequence, “the ordinary rationale for holding a passport is absent”: see Murphy v Minister for Foreign Affairs and Trade [2007] AATA 1272 at paragraph [18]. Consequently, even if there is any residual discretion not to comply with the request, a refusal to do so is likely to require special or unusual circumstances. In support of that view the Respondent submits that although section 7(1) of the Passports Act declares an Australian citizen’s general entitlement to be issued with an Australian passport (subject to proof of identity and citizenship), that entitlement is "affected" by the various express refusal and cancellation powers contained in sections 11 to 17 of the Passports Act. Of particular significance, according to the Respondent, is the subsection 12(2) prohibition against the issue of a passport where a “competent authority” has made a complying “refusal/cancellation request”. The Respondent relies on the combined effect of these provisions as evidencing a legislative intention that detracts from the significance of the general passport entitlement conferred on Australian citizens by subsection 7(1) of the Passports Act.
8.The parties differing views about the scope of the Tribunal’s review function require resolution. This involves recognising the tension that may sometimes exist between the amplitude of the review powers conferred by section 43 of the Administrative Appeals Tribunal Act 1975 and the particular nature of the decision under review. The majority judgments in Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525; (2007) 95 ALD 260, recognised the potential tension. The judgment of Nicholson J summarised the principles that apply to its resolution. So far as it is material to the circumstances of the present case, Nicholson J’s summary was as follows. (I have emphasised the text to enhance readability).
(2) The tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to the material before the tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 ; 2 ALD 60 ; 46 FLR 409 per Bowen CJ and Deane J at FLR 419; ALR 589–90; ALD 68–9 and Smithers J at FLR 438–9; ALR 606–8; ALD 84–5, cited by Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 at [24]. That is, the tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision …
(3) However, the tribunal is obliged to address the same question as the primary decision-maker: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; per Davies J; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234 ; 111 ALR 1 at 10–11 ; 28 ALD 50 at 58–9; Commissioner of Taxation (Cth) v McMahon (1997) 79 FCR 127;149 ALR 159 at FCR 133–4; ALR 164–6 per Lockhart J, FCR 140–1; ALR 170–2 per Beaumont J, and FCR 150; ALR 180–1 per Emmett J, cited by Branson J in Aged Care at [25]; followed by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 ; 161 ALR 53 ; 53 ALD 315 ; [1999] FCA 31. The principle in (2) cannot be applied beyond its scope, that is, in circumstances where the question under review does not attract the application of the principle: Freeman at FCR 344; ALR 508–9; ALD 673–4.
(4) Where the question to be decided arises under a statute, the relevance of later evidence will depend upon the proper construction of the statute and the particular factual context: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 ; [2005] FCAFC 58 at [51] per Hely, Gyles and Allsop JJ.
9.The tension between propositions (2) and (3) in the preceding extract are informatively illustrated by the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314. In that case procedural due notice was a condition precedent to valid exercise of the Minister’s visa cancellation power. The Full Court of the Federal Court held nevertheless, that the Migration Review Tribunal’s review power, which included all of the powers of the original decision maker, was not subject to the same procedural limitations: see Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at paragraph 41. Consequently, even though the original decision maker could not have made a valid decision adverse to the visa holder, the Migration Review Tribunal was not confined merely to recognising the original decision maker’s impotence and thus obliged to set aside the original decision.
10.The Full Court in Ahmed expressly affirmed the earlier decision in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561. In Zubair the Court held that the Tribunal could affirm an original decision despite the fact that it had been invalidly made because of a procedural failure to give prior notice. Two cases illustrate statutory limitation on the scope of the Tribunal’s review.
11.Two cases illustrate statutory limitation on the scope of the Tribunal’s review. In Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 the reviewable decision had to be made on the basis of the results of a specified audit procedure, and within a short period after the completion of the audit. Branson J held that the exercise of the Tribunal’s review power was dependent on the audit process. Regard to the audit result went to the very nature and scope of the relevant decision and was not a mere matter of procedural compliance. For this reason the statutory context indicated that the Tribunal’s review power was itself confined to matters that “bore on the merits of the decision at the time it was made”: Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 at [31].
12.In Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 Davies J held that, in the review of a decision cancelling a social security benefit, the Tribunal was limited to considering the Applicant’s benefit entitlement at the date of the cancellation. Change in the Applicant’s circumstances after the original cancellation, even where the change re-established the Applicant’s prospective qualification for the benefit, could not be relied on to justify setting aside the original cancellation.
13.It is important to realise that the decisions in both Freeman and Aged Care depend on the particular statutory provisions involved. The critical point in Freeman, for example, was not the fact that the original decision was a cancellation – as distinct from the refusal of an original application: see Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 at [26]. Rather the critical point was that payment of the statutory benefit could only be made to persons who had a qualifying entitlement for the whole of the period to which the payment related. There was a statutory indication that, if a person’s qualifying entitlement ceased, future payments required a new application and a new approval. Because the statutory provisions distinguished between “continuing” and “prospective” benefit entitlement, evidence that merely went to establish a person’s “prospective” entitlement could not detract from a decision that the entitlement had ceased to exist at the time of the decision under review: see Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345. The decision in Freeman illustrates that the scope of the Tribunal’s review function is limited where the original decision is statutorily mandated accordingly to whether specified circumstances exist, or do not exist, at that date.
14.Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at [30] illustrates the same point. In that case there was a statutory obligation to cancel a student visa for non-compliance with a relevant condition. Another situation where the Tribunal’s review function is confined is where the rights that were the subject of the reviewable decision would in any event have expired prior to the Tribunal’s review. In that case the Tribunal’s review powers are confined to the circumstances at the date of cancellation and do not permit the Tribunal to substitute a decision renewing the previously expired entitlement: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at paragraphs [61] – [63].
15.Against this background, the actual decision in Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525; (2007) 95 ALD 260, on which the Respondent relied in the present case, turns on the majority characterisation of the statutory criteria for the reviewable decision in that case. The majority finding was that the statutory criteria for the cancellation involved in that case were confined to the migration agent’s fitness for registration at the time of the decision. If the decision maker was satisfied that the statutory grounds for cancellation had been made out, there was no real residual discretion that could properly be exercised to justify continuing the agent’s registration. This was because, according to the proper interpretation of the statutory provisions, satisfaction about current fitness at the time of the decision was a precondition to the agent’s entitlement to continuing statutory registration. The statutory provisions did not contemplate, despite the availability of review by the Tribunal, renewal of a past registration once unfitness had been demonstrated. New registration could only occur by a process of separate application made after expiry of the statutorily declared intervening period of ineligibility: see Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525 at paragraphs [11] to [16].
16.The statutory provisions considered in Shi have no relevant similarity to the Minister’s cancellation power under the Passports Act. Its provisions neither require nor warrant a conclusion that the Tribunal’s review functions in relation to cancellation decisions under the Act are confined to events that had occurred at the time of a request by a “competent authority” (under subsection 12 and 18 of the Passports Act). Neither are they confined to events at the time of the Minister’s actual decision (under section 22 of that Act).
17.It is important to note three aspects of the statutory provisions of the Passports Act. Firstly, section 12(1) of the Passports Act merely specifies the circumstances in which a “competent authority” may make a cancellation request. The subsection does not purport to confine the Minister’s powers. Secondly, no provision of the Passports Act obliges the Minister to act within any particular time of receiving the request from a “competent authority”. (Indeed section 19 of the Passports Act necessarily contemplates that a “refusal/cancellation request” may be withdrawn or lapse.) Thirdly, and perhaps most importantly, the criteria in section 12(1)(a) of the Passports Act do not require evidence demonstrating the existence of material, and objectively verifiable, facts. They simply authorise a “competent authority” to make a request on the basis of a reasonably based belief. Therefore, in all three respects, the provisions of the relevant sections of the Passports Act reveal material distinctions from the legislative powers considered in cases such as Freeman; Aged Care, Sharma and Shi.
18.The third point of distinction, the fact that section 12(1) of the Passports Act operates only by reference to the reasonably based belief of a “competent authority” is particularly significant. It would be a very strange interpretation of that provision, especially given both the status of the Minister as the decision maker, and the unqualified general discretionary power conferred by section 22 of the Passports Act, to conclude that mere satisfaction a requesting “competent authority” had a reasonably based belief at the time of its cancellation request, precluded the Minister from any enquiry about either the fact of the issue of the warrant, or the true nature and character of the offence, or the appropriateness of acting on the request either from that particular authority or in the particular circumstances. (Given the considerable generality of the definition of “competent authority” it is conceivable that circumstances could arise where different eligible authorities, perhaps with different responsibilities and functions, could have differing views about the appropriateness and the timing of any passport cancellation).
19.The inescapable fact is that section 22(1) of the Passports Act confers on the Minister an unqualified discretionary power to cancel an Australian passport. The particular circumstances illustrated in section 22(2) of the Passports Act are also granted in permissive terms and are expressly declared not to confine the generality of the power conferred in section 22(1). Consequently neither the fact that section 22(2)(d) of the Passports Act expressly confers a power to cancel where a “cancellation/refusal request” has been made, nor the fact that section 22(2)(e) of the Passports Act only expressly permits the Minister to rely on knowledge acquired independently of such a request in certain circumstances (not including Australian law enforcement matters under section 12 of the Passports Act) can be used to limit the scope of the Minister’s cancellation power. The width of the power conferred on the Minister is well calculated to permit consideration of a wide range of factual matters and does not confine the relevant considerations to a narrow enquiry as to whether the requesting authority had reasonable grounds for its belief. There is no legislative context to require a conclusion that the Tribunal’s review power is confined to the circumstances that were known at the time of the Minister’s decision.
20.The generality of the Minister’s power also provides a reason to resist the Respondent’s contention that, once a “competent authority” has made a complying “refusal/cancellation request” there is little scope for the Minister to make any decision other than to accede to the application. I referred above to the Respondent’s submission, relying on parts of the Tribunal’s reasons in Murphy v Minister for Foreign Affairs and Trade [2007] AATA 1272, that in the circumstances of a complying “refusal/cancellation request” the justification for the person concerned to retain their Australian passport will ordinarily be absent. This generality may be accepted. But it is unnecessary to proceed from a benign acceptance of that generality and embrace a proposition that special or out of the ordinary circumstances will be required before either the Minister (or the Tribunal on review) would be justified in refusing the cancellation request. There are two principal reasons for resisting that embrace. Firstly, the Minister’s cancellation power is expressed in section 22 of the Passports Act in unequivocally permissive terms. There is really no contextual justification for interpreting that power as one whose exercise is mandated where a complying request has been made. Indeed section 19 of the Passports Act contains a mandatory direction that the Minister “must not” act on a “refusal/cancellation request” if it “has been withdrawn” or it if is no longer current. This provision at least contemplates the relevance of a subsequent change in circumstances and provides a clear indication that the Minister is not obliged to exercise the cancellation power merely because a complying application has in fact been made. Secondly, although the Respondent has relied on the fact that section 12(2) precludes the Minister from issuing a passport where a complying “refusal/cancellation request” has been made, the contrast between the mandatory terms of section 12(2) and the permissive wording of section 22(2)(d) is actually informatively contrary to the Respondent’s argument. The contrast should be taken to reflect the deliberate parliamentary intention and to emphasise the reality of the Minister’s discretionary power to either accede to, or reject, any “refusal/cancellation request”. The Minister may do so, as the Minister considers appropriate, in the light of all the relevant circumstances at the time the cancellation decision comes to be made.
21.For these reasons the Tribunal’s review is not confined to the circumstances known either at the time of the “refusal/cancellation request” or at the time of the Minister’s decisions.
Mr McCabe’s circumstances relevant to review of the cancellation decision
22.Mr McCabe is a former Victorian police officer who served, on secondment, with the National Crime Authority and the Australian Crime Commission. Between January and December 2003, as part of his secondment, he was periodically deployed in Phnom Penh, Cambodia.
23.In August 2003 the New South Wales Police Integrity Commission commenced enquiries into drug related crimes said to have occurred in New South Wales on 25 September 2002. (Hereafter, I will refer to the Police Integrity Commission as either “the NSW PIC” or “the Commission”.) These allegations involved a New South Wales (“NSW”) police officer who was also on secondment to the Australian Crime Commission and a colleague of Mr McCabe. By 9 December 2003 information provided to the NSW PIC included allegations that Mr McCabe was involved with the other officer in the commission of the 25 September 2002 crimes.
24.In February 2004 the NSW PIC commenced public hearings investigating police involvement in the alleged crimes of 25 September 2002.
25.Mr McCabe resigned from the Victorian Police in March 2004 and returned to Cambodia to live. Between then and November 2004 he travelled between Cambodia and Australia on several occasions and gave evidence at the Commission’s public hearings in April and November 2004. Mr McCabe last returned to Cambodia in November 2004.
26.On 30 September 2005 the NSW PIC delivered a report to the NSW Parliament relating to its investigation of the events of 25 September 2002. The report recommended, adopting a form of expression mandated by section 97 of the Police Integrity Commission Act 1996 (NSW), “that consideration be given to the prosecution of Mr McCabe” for the specified criminal offences.
27.In January 2006 Mr Errol Ryan, Senior Investigator of the NSW PIC, issued court attendance notices to Mr McCabe (thereby commencing committal proceedings against him) requiring him to appear to answer charges under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (namely, supplying a prohibited drug namely methylamphetamine) and section 97(2) of the Crimes Act 1900 (NSW) (namely, whilst armed with a Glock pistol, robbing a person of a quantity of methylamphetamine). Both of these charges were indictable offences: see section 22 of the Drug Misuse and Trafficking Act 1985 (NSW) and section 8 of the Criminal Procedure Act 1986 (NSW). The former NSW police officer first implicated in the NSW PIC’s investigations was jointly charged with Mr McCabe.
28.Between February and June 2006 Mr McCabe was legally represented at, but did not personally attend, several court hearings involving the criminal proceedings against him.
29.On 27 June 2006 warrants for Mr McCabe’s arrest were ordered to be issued, but not executed unless and until he failed to appear at the commencement of the committal hearing. The proceedings were adjourned to 23 October 2006 for the committal hearing.
30.Mr McCabe did not appear at the October 2006 committal hearing. At the conclusion of that hearing he was committed for trial. Warrants for his apprehension and commitment, under subsection 109 and 242 of the Criminal Procedure Act 1986 (NSW), were issued on 30 October 2006.
31.On 8 November 2006 the NSW PIC wrote to the Department of Foreign Affairs and Trade requesting the Minister’s cancellation of Mr McCabe’s passport. The application letter was in a standard format required by the Department. The letter included copies of the warrants of commitment. Those warrants recited that Mr McCabe had failed to appear to answer the charges against him. Each warrant of commitment recited that warrants for Mr McCabe’s arrest had previously been issued and that he had been refused bail.
32.The Minister made his cancellation decision on 20 November 2006. Following the cancellation decision, on 28 November 2006 the Acting Executive Director of the Australian Passports Office wrote to Mr McCabe demanding the return of his passport. (Section 24(1) of the Passports Act obliges compliance with such a request in relation to a cancelled passport.)
33.In April 2007 Mr McCabe received a letter from the Department of Foreign Affairs indicating that he would be issued with a travel document to facilitate his return to Australia. Nevertheless, Mr McCabe remained in Cambodia.
34.In June 2007 Mr Ryan caused a formal extradition request to be made to the Cambodian authorities for Mr McCabe’s extradition and return to Australia. Following that request, Mr McCabe was apparently arrested by Cambodian authorities. On about 27 June 2007 Mr Ryan travelled to Cambodia. He took Mr McCabe into custody and brought him back to Australia on 29 June 2007.
35.Mr Ryan said that the arrest warrants were then executed against Mr McCabe at the NSW police station at Mascot. Since his return to Australia and arrest Mr McCabe has been in custody in Parklea Correctional Centre. It may be inferred that he has not yet been tried and that he remains in custody as a consequence of the warrants for arrest and commitment issued in June and October 2006.
Whether Mr McCabe was or is the subject of an arrest WARRANT?
36.The argument that Mr McCabe was not, or is no longer, the subject of an arrest warrant was put on the basis that its acceptance would either impugn the Minister’s original cancellation decision or be a determinative consideration in the review of that decision.
37.The Applicant’s argument cannot be accepted in relation to the circumstances prevailing at the time of the Minister’s decision. The expression “is the subject of an arrest warrant” in section 12(1)(a) of the Passports Act refers to the time when the “competent authority” makes its cancellation request to the Minister. The available evidence justifies a finding, and the Applicant did not ultimately dispute, that warrants for his arrest had been issued in June 2006. It follows that even if the validity of the Minister’s decision did depend on whether Mr McCabe was subject to a relevant arrest warrant as at 20 November 2006, the evidence discloses that he was.
38.It is contended on Mr McCabe’s behalf that his forced repatriation in June 2007, and subsequent formal arrest in NSW, show that his arrest has been completed and that he is now held in custody pending the trial of the indictable charges against him. This is said to require a conclusion that he is not a person who “is the subject of an arrest warrant” for the purpose of s 12(1)(a) of the Australian Passports Act. The submission appears to draw some support from section 237(1) of the Criminal Procedure Act 1986 (NSW) which provides that a “warrant to arrest a person” remains in force until it is carried out. It is also submitted on Mr McCabe’s behalf that he is now in custody pursuant to the October 2006 warrants of commitment and that those warrants are not “arrest warrants” for the purpose of section 12(1) of the Passports Act.
39.Sections 236 and 242 of the Criminal Procedure Act 1986 (NSW) do contemplate two different forms of warrants and distinguish between arrest warrants and warrants of commitment. But this distinction is not material for the purpose of the expression “an arrest warrant” in subsection 12(1) of the Passports Act. The two forms of warrants are intended to reflect the different consequences that attach to the person’s apprehension, depending on the circumstances in which the warrant has been issued. Where a person has been apprehended in the execution of an arrest warrant (properly so called) the person must be brought before a Magistrate – for the purpose of permitting the person to make an application for bail under the Bail Act 1978: subsection 236(2)(c) and 239 of the Criminal Procedure Act 1986 (NSW); Bail Act 1978 section 6.
40.Where a person has been committed for trial they must be committed to a correctional centre and a warrant for their commitment must be issued: section 109(1) of the Criminal Procedure Act 1986 (NSW). Where such a person is apprehended under a warrant for commitment, they need not be brought before any Magistrate and must, subject to the terms of the warrant itself, be taken into custody in the correctional centre specified in the warrant: section 242 of the Criminal Procedure Act 1986 (NSW).
41.Each form of warrant, whether of arrest or commitment, authorises the person’s apprehension. That authority is made explicit in the case of the two warrants for commitment issued on 30 October 2006. Each of those warrants directs the NSW Commissioner of Police “to apprehend the said Defendant”. Such a direction makes the warrant an arrest warrant for the purposes of section 12(1) of the Passports Act.
42.Section 237(1) of the Criminal Procedure Act 1986 (NSW) does not require the conclusion that a person who has been arrested pursuant to an arrest warrant, and who remains in custody following their arrest, is no longer a person who “is the subject of an arrest warrant” for the purpose of section 12(1) of the Passports Act. In the present case where the warrant of commitment commands both Mr McCabe’s apprehension and his continued custody, in the absence of any contrary order having been made, he remains a person who is “the subject of an arrest warrant”. This conclusion is consistent with the basic concept of arrest. Once an arrest has been effected it is taken to continue until some other lawful authority exists for the person’s continued apprehension - such as the order of a Magistrate refusing bail when the arrested person is brought before them: see Holgate-Mohammed v Duke [1984] 1 All ER 1054 at 1056.
43.The question whether or not Mr McCabe is still a person "the subject of an arrest warrant" is not, in any event, determinative of the existence of proper grounds for the cancellation of his passport. Although the Minister’s 20 November 2006 decision was avowedly made pursuant to section 22(d) of the Passports Act, the Minister’s power is not limited to the grounds asserted in any request made by a “competent authority”. Neither is it even limited to the circumstance that such an authority has made a “refusal/cancellation request”.
44.There is no reason to suppose that the Minister could not act independently of any such a request if the Minster became aware that a relevant warrant had been issued. Alternatively, it is readily foreseeable that a “competent authority” may have made a “refusal/ cancellation request” under section 22(1)(a) of the Passports Act and then have arrested the person before the Minister has made a decision on the cancellation request.
45.In the latter situation, and certainly if the person remained in custody pursuant to the arrest, the “competent authority” could immediately make a second “refusal/cancellation request” under section 12(1)(b) of the Passports Act. That application could rely on the fact that the arrested person was in fact “prevented from travelling internationally” for the purpose of section 12(1)(b) of the Passports Act. The expression “prevented from travelling internationally” is defined in subsection 12(3) of the Passports Act.
46.It is instructive to set out that definition in the context of section 12 of the Passports Act.
12 Reasons relating to Australian law enforcement matters
(1) If a competent authority believes on reasonable grounds that:
(a) a person is the subject of an arrest warrant issued in Australia in respect of an indictable offence against a law of the Commonwealth, a State or Territory; or
(b) a person (including a person who is in prison) is prevented from travelling internationally by force of:
(i) an order of a court of the Commonwealth, a State or Territory; or
(ii) a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of the Commonwealth, a State or Territory; or
(iii) a law of the Commonwealth, or an order or other direction (however described) under a law of the Commonwealth;
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 must not issue an Australian passport to the person.
(3) In this section:
competent authority, in relation to a circumstance mentioned in paragraph (1)(a) or (b), means:
(a) a person who has responsibility for, or powers, functions or duties in relation to, that 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
(b) a person specified in a Minister’s determination as a competent authority in relation to the circumstance.
prevented from travelling internationally includes:
(a) required to remain in Australia; and
(b) required to surrender an Australian passport; and
(c) not permitted to apply for an Australian passport; and
(d) not permitted to obtain an Australian passport.
47.The effect of the definition in subsection 12(3) of the Passports Act is that a person is “prevented from travelling internationally” if they are “required to remain in Australia” by force of an order of an Australian court. Subsection 12(1)(b) permits a “refusal/cancellation request” application to be made by a “competent authority” that has reasonable grounds for believing such a state of affairs exists.
48.If a “competent authority” could make a “refusal/cancellation request” under section 12(1)(b) of the Passports Act in these circumstances - where a person’s continued custody follows their initial arrest - the Minister’s cancellation power would again be attracted. But there is no reason to confine the Minister’s powers in these circumstances so that it is dependent on a further request by a relevant authority. The Minister’s cancellation power must be no less than the statutory permission conferred on a “competent authority” to make a “cancellation/refusal request”. Indeed, this must be especially the case if the circumstances establish the objective facts, as distinct from the reasonably based belief in the facts, to which either subsections 12(1(a) or (b) apply.
49.In the present case Mr McCabe was committed for trial in June 2006. Since his return to Australia in June 2007 he has been apprehended and remains in custody pending the outcome of that trial. Whatever the precise nature and content of the legal authority for his continued custody, it is an irresistible inference that Mr McCabe is subject to orders of an Australian court that require him to remain in Australia. He is therefore, a person who is in fact “prevented from travelling internationally” for the purposes of section 12(1)(b) of the Australian Passports Act.
50.It follows that circumstances still exist, as they did at the time of the Minister's 20 November 2006 decision, in which the Passports Act readily contemplates a person's passport may be cancelled. Accordingly, the Tribunal rejects the Applicant’s contention that the execution of the arrest warrants removes the basis for any continuing operation of section 12(1) of the Passports Act, and itself justifies review of the Minister’s cancellation decision.
The status of the NSW Police Integrity Commission
51.The preceding reasons involve the conclusion that neither the Minister’s cancellation power, nor the Tribunal’s review power, is limited to the situation where a complying “cancellation/refusal request” has been made under section 12(1) of the Passports Act. Notwithstanding this conclusion, and his ongoing custody, Mr McCabe contended it was still relevant to consider whether the 8 November 2006 "cancellation/refusal request” application was made by a "competent authority" and whether or not the Minister's decision was made on that basis.
52.In challenging the actual basis on which the Minister’s decision was made Mr McCabe’s argument relied on errors in the factual material put to the Minister.
53.The 8 November 2006 application bore the letterhead of the Police Integrity Commission and relied on functions conferred by the Police Integrity Commission Act 1996 (NSW). However, it is not clear that the application itself came to the Minister's attention. Instead the Minister’s decision is endorsed on a departmental submission dated 9 November 2006. The submission erroneously stated that Mr McCabe had fled NSW whilst on bail. It also misdescribed the “cancellation/refusal request” has having been made by the “New South Wales Police Commissioner". This misapprehension, perhaps understandable, of the true relationship between the NSW PIC and the NSW Commissioner of Police, was repeated in a subsequent letter written by the Department of Foreign Affairs and Trade.
54.The Applicant contends that these factual errors in the departmental submission to the Minister are material errors that probably influenced the Minister's decision and warrant its review. The contentions should be rejected. The statement that Mr McCabe had fled NSW whilst on bail is immaterial. The significant, and uncontroversial, facts were that, at the time of the Minister's decision Mr McCabe was thought to be in Cambodia, had failed to attend court on several occasions in relation to the offences with which he had been charged and, in particular, had failed to attend the committal hearing in October 2006. In relation to the identity of the person who had made the cancellation request, while the ministerial submission was erroneous, reality comfortably establishes that the application was made by the NSW PIC. Any misunderstanding that the Minister may have had in relation to either matter as at 20 November 2006 provides no reason for the Tribunal to come to a different view in relation to the cancellation of Mr McCabe’s passport.
55.The same conclusion applies in response to Mr McCabe’s contention that the NSW PIC was not a “competent authority” for the purposes of section 12(3) of the Passports Act. Even if it was proper to conclude that the NSW PIC was not a “competent authority,” that conclusion would not result in an absence of power to cancel Mr McCabe’s passport. Neither would it require, of itself, the conclusion that setting aside the cancellation was the correct or preferable decision to be made by the Tribunal on the review of the Minister’s decision. Partly this flows from the amplitude of the Minister’s cancellation power under section 22(1)(d) of the Passports Act, partly it is also a result of a proper understanding of the special position of the NSW PIC.
56.Section 6(1) of the Police Integrity Commission Act 1996 (NSW) constitutes the NSW PIC as a statutory corporation. The Commission is therefore a “person” for the purpose of the definition of “competent authority” in section 12 of the Australian Passports Act: section 22(1)(a) of the Acts Interpretation Act 1901.
57.The 8 November 2006 application letter to the Minister was signed by the person appointed as a Commissioner under section 7(1) of the Police Integrity Commission Act 1996 (NSW).
58.Subsection 6(2) of the Police Integrity Commission Act 1996 (NSW) provides that the Commission's functions are exercisable by the Commissioner and anything done in the name of the Commission either by the Commissioner or with his authority, is taken to have been done by the Commission. It follows that it is unnecessary to attempt to distinguish between the Commissioner in his personal status and the corporate status of the NSW PIC in relation to identifying the relevant "person" for the purpose of satisfying the definition of "competent authority" in subsection 12(3) of the Australian Passports Act.
59.The principal functions of the NSW PIC are to prevent, detect and investigate police misconduct. Its functions extend to "managing" and "overseeing" other agencies in the detection and investigation of police misconduct: section 13 of the Police Integrity Commission Act 1996 (NSW).
60.The word "function" is itself defined to include "a power, authority or duty": section 4(1) of the Police Integrity Commission Act 1996 (NSW). Police misconduct includes the commission of any criminal offence by a NSW police officer and irrespective of whether it occurs whilst the officer is on duty, involves non police participants or involves an offence under the laws of another State or the Commonwealth: subsections 4 and 5(1) of the Police Integrity Commission Act 1996 (NSW).
61.In the exercise of its functions to detect or investigate police misconduct the NSW PIC may compel the production of documents and the provision of other information: subsection 25 and 26 of the PIC Act. The Commission may summon witnesses to give evidence at its hearings: subsections 32, 33 and 38 of the Police Integrity Commission Act 1996 (NSW). The privilege against self-incrimination is not available to prevent a person being compelled to provide information to the Commission: section 28 and 40 of the Police Integrity Commission Act 1996 (NSW).
62.Where the Commission conducts a public hearing it must, and in other cases it may, prepare a report to Parliament. Where the NSW PIC prepares a report it must include, in relation to any person against whom a substantial allegation has been made, a statement of the Commission's opinion as to whether or not consideration should be given to the prosecution of the person for a specified criminal offence: section 97 of the Police Integrity Commission Act 1996 (NSW).
63.In addition to its own investigative functions in relation to police misconduct, the Commission's functions include matters related to criminal prosecution. These include assembling evidence for the prosecution of criminal offences, providing evidence to relevant prosecuting authorities, making recommendations about action that should be taken in relation to the evidence. The Commission’s powers also include making recommendations for "taking of other action that the Commission considers should be taken in relation of the subject matter of its assessments or opinions, or the results of any such investigations": subsection 15 and 16(1)(c) of the Police Integrity Commission Act 1996 (NSW) .
64.In addition sections 15(4) and 22(1) of the Police Integrity Commission Act 1996 (NSW) provide as follows:
15 Other functions regarding evidence and information collected
…
(4) If the Commission obtains any information in the course of its investigations relating to the exercise of the functions of a public authority (other than the Ombudsman in the exercise of its functions in relation to police misconduct or police complaints), the Commission may, if it thinks it desirable to do so:
(a) furnish the information or a report of the information to the authority or the Minister for the authority, and
(b) make to the authority or the Minister for the authority such recommendations (if any) relating to the exercise of the functions of the authority as the Commission thinks appropriate.
22 Incidental powers
(1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions. Any specific powers conferred on the Commission by this Act are not taken to limit by implication the generality of this section.
65.Notwithstanding the amplitude of the NSW PIC’s functions, evidenced by the various provisions of Police Integrity Commission Act 1996 (NSW) referred to above, the Applicant correctly submits that they do not include any specific power or function to prosecute criminal offences. Indeed the Police Integrity Commission Act 1996 (NSW) draws an explicit distinction between the Commission's powers and functions in relation to “police misconduct" on the one hand, and the ordinary process of criminal prosecution, on the other. This is made clear in the subsection 16(2) and (3) of the Police Integrity Commission Act 1996 (NSW). Those provisions explicitly prohibit the Commission from making findings or recommendations in relation to criminal guilt. They are in the following terms;
(2)… the Commission may not:
(a) make a finding or form an opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) make a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(3) An opinion that a person has engaged, is engaging or is about to engage:
(a) in police misconduct (whether or not specified conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve police misconduct), is not a finding or opinion that the person is guilty of or has committed, or is committing or is about to commit a criminal offence or disciplinary offence.
66.Nevertheless, the NSW PIC may designate eligible members of its staff as an “approved former police officer”: section 10(7) of the Police Integrity Commission Act 1996 (NSW). Such an “approved former police officer” may exercise all of the statutory functions of a person appointed as a NSW police constable under the Police Act 1990 (NSW), when acting as an officer of the Commission: see section 123(1) and 123(3) of the Police Integrity Commission Act 1996 (NSW). Under subsection 14 and 48 of the Criminal Procedure Act 1986 (NSW) any NSW police officer, unless expressly excluded by some other legislative provision, may commence proceedings against a person for an indictable offence by the issue of a court attendance notice. These various provisions lead to the result that particular individual members of the NSW PIC staff may exercise a power to commence criminal proceedings, if they do so in the course of acting as an officer of the Commission. In the present case the evidence establishes that Mr Errol Ryan was such a member of the NSW PIC staff and did issue the court attendance notices commencing the criminal proceedings against Mr McCabe.
67.The proper conclusion to draw from the provisions of the Police Integrity Commission Act 1996 (NSW) is that the Commission, despite an amplitude of advisory powers, and some permissive functions concerning the gathering of evidence, has no explicit executive function to pursue criminal prosecutions. However, the procedure involving the designation of “approved former police officers”, the amplitude of the NSW police powers available to such an “approved former police officer” and the proper inference that Mr Ryan was acting “as an officer of the Commission” in commencing the proceedings against Mr McCabe, justify the conclusion that the Commission does have some powers in relation to the actual commencement of criminal proceedings.
68.In any event, the NSW PIC’s advisory functions could properly include a recommendation for passport cancellation by the Minister. And the amply expressed incidental power bestowed on the NSW PIC by subsection 22(1) of the Police Integrity Commission Act 1996 (NSW), could reasonably be regarded as authorising it to make a formal passport “refusal/cancellation request” of the kind contemplated by section 12 of the Passports Act and made in the Commission's letter of 8 November 2006.
69.However, it is not necessary to reach an affirmative conclusion that the NSW PIC has an actual function under its own constituting legislation to make a formal “cancellation/refusal request” under section 12 of the Passports Act.
70.Subsection 12(1) of the Passports Act deals with the Minister’s power. That statutory power is available to the Minister where the Commission is a “competent authority”. It will relevantly satisfy that requirement if it has either “responsibility for” OR (my emphasis) "powers, functions or duties in relation to" a circumstance that is "mentioned" in subparagraph 12(1)(a) of the Australian Passports Act.
71.The expression “relating to” conveys a wide permissible range of relationship. The degree of connection that satisfies the relationship requirement depends, in any particular context, on the apparent purpose of the requirement in which the sufficiency of the relationship arises for assessment: Australian Securities Commission v Bank Leumi Le-Israel (1996) 69 FCR 531 at 547; Workers Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 653, 654. The view has been expressed, in relation to the similar words “with respect to” that the width of meaning permitted or required should not be restricted unless there is a compelling reason to do so: Law Society of NSW v Bruce (1996) 40 NSWLR 77 at 84; Fountain v Alexander (1982) 150 CLR 615 at 629F.
72.The context of the definition of “competent authority” in subsection 12(3) manifests an intentional level of generality. This is evident from the distinction between the probable narrowness of the concept of “responsibility for”, on the one hand, and the unspecified potential width of the concept of “in relation to”, on the other. It is emphasised by the further disjunctive references to “powers, functions or duties”, and the indication that a “relation” to any of the disjunctive concepts would suffice to comply with the definition. The intentionally permissive generality of the expression is even further emphasised by the recognition that the relationship is sufficient if it involves “a circumstance mentioned” in subparagraph 21(1)(a) of the Australian Passports Act.
73.The relevant circumstances “mentioned” in subparagraph 12(1)(a) are (i) the arrest warrant and (ii) the conduct alleged to be involved in the “indictable offence” to which the warrant relates. (Neither of the references in the sub paragraph to a “person” and to a “law” could properly be regarded as the mention of a circumstance.) The subparagraph 12(3) definition explicitly contemplates that a relevant relationship between either circumstance, or, the “functions” of the person who makes the application, will suffice to satisfy the definition.
74.In the light of the intended generality evidenced by the context of subparagraphs 12(1) and 12(3) of the Australian Passports Act it is proper to conclude that the NSW PIC comes within the definition of a “competent authority” for the purpose of the 8 November 2006 application – either because of the amplitude of its express and incidental functions or because section 12 of the Passports Act poses a merely factual enquiry as to what the authority has done (and is unconcerned with the formal legal character of the conduct). Alternatively, the NSW PIC’s functions involve a wide range of activities concerning police misconduct. The conduct alleged to constitute the indictable offences on which Mr McCabe had been committed for trial involved Mr McCabe acting in connection with a member of the NSW police and fell clearly within the concept of police misconduct as it is defined in the Police Integrity Commission Act 1996 (NSW). In its functions concerning police misconduct the NSW PIC has functions closely analogous to those contemplated by section 12(1) of the Passports Act as belonging to a “competent authority”. It is therefore, well within the scope of the cancellation power conferred on the Minister by section 22(1) of the Passports Act to comply with a cancellation request made by an person such as the NSW PIC.
Was the Minister’s cancellation decision made for the improper purpose of securing Mr McCabe’s extradition from Cambodia?
75.It may reasonably be supposed that the Minister's cancellation decision was likely to lead to considerable practical difficulty for Mr McCabe's international travel. As specific evidence of those kinds of difficulties the Applicant relied on evidence of Cambodian immigration practice by a solicitor, Mr Alan Lemon.
76.Mr Lemon served as an agent of the Australia Federal police, and later as an adviser to the Joint Transnational Crime Investigation Team in Phnom Penh Cambodia, at various times between July 2001 and March 2003. Mr Lemon said that persons in Cambodia who did not have valid travel documents or residential status were liable to arrest, detention without charge (for up to six months) and ultimately deportation from Cambodia.
77.There is no evidence that these considerations were brought to the Minister's attention at the time of the cancellation decision. But the nature of an Australian passport, and the Minister's own decision indicating that he would issue travel documents for the purpose of facilitating Mr McCabe's one-way return travel to Australia, suggest that the foreseeable practical consequences at the time of the decision must have included at least encouraging, if not ultimately resulting in, Mr McCabe's return to Australia. On the other hand, there is nothing to suggest that, at the time of the Minister's decision any formal extradition request had been made. Neither is there anything to suggest that an actual motivating purpose of the cancellation decision was either to circumvent, or avoid proper consideration of, any extradition application that might be made. Neither is there any evidence to show that the cancellation decision itself either had any effect, or was likely to have any effect, on any extradition application that might have been made.
78.The very nature of the cancellation decision gave rise to foreseeable consequences, including the possible practical imperative of Mr McCabe’s return to Australia. But section 12 of the Australian Passports Act provides, in the circumstances of this case, an explicit statutory mandate for such a decision. The foreseeable consequences of the decision cannot itself justify a conclusion that the Minister’s decision was in fact motivated by a purpose that involved improper exercise of the power. The decision of the Full Federal Court in Oates v Minister for Foreign Affairs (1999) 59 ALD 27 (especially at paragraphs [35] to [54]) although it considered a slightly differently worded cancellation provision in the Passports Act 1938, demonstrates that impropriety of purpose cannot be found merely because of the foreseeability of possible, or even likely, consequences. In the circumstances before the Tribunal, there is no proper basis for a finding that the cancellation decision was motivated by any improper purpose.
79.In any event, the Applicant’s arguments about extradition have little relevance to the Tribunal’s decision on the review application. Mr McCabe has returned to Australia, he remains in custody and his present circumstances provide a justification for cancellation of his passport, having regard to the nature of the power conferred on the Minister by the Passports Act. Whether or not Mr McCabe has any legitimate complaint about the circumstances of his return to Australia, the fact is that he remains in custody in NSW and appears likely to remain in custody at least until his trial has been concluded. Those facts, rather than the detailed circumstances of his return to Australia, are the matters of material importance to the review of the Minister’s cancellation decision.
Was the cancellation a reasonable and appropriate exercise of the cancellation power?
80.The real question that falls for determination on the review is whether cancellation of Mr McCabe’s passport is the correct or preferable decision in the circumstances. Plainly those circumstances include his arrest, apparent failure to return voluntarily to Australia and his continuing custody on very serious criminal charges that attract long custodial sentences.
81.Those circumstances enliven the Minister’s cancellation power. The real question is whether its exercise is the preferable decision. As to that nothing in the material before the Tribunal establishes that Mr McCabe has any current need to retain his passport entitlement. Nor is there any evidence that its absence, pending the determination of the criminal proceedings against him, is of practical disadvantage to him. As against that absence of evidence of practical disadvantage or detriment to him, there is an available inference that Mr McCabe is only reluctantly present in Australia.
82.In these circumstances there is no adequate basis for the Tribunal to conclude that permitting him to retain the Australian passport he held prior to the Minister’s 20 November 2006 decision is the correct or preferable decision.
The Minister’s refusal decision
83.I noted earlier in these reasons that the Minister’s decision refusing to issue a new passport to Mr McCabe was consistent with, but not certainly made “because of” section 12(2) of the Passports Act. The qualification was prompted by four considerations. Firstly, the Minister’s decision does not refer to section 12 of the Passports Act. Secondly, the Minister’s decision applies until the outcome of the criminal proceedings against Mr McCabe, and arguably indicates a wider discretionary decision than mere observance of the section 12(2) prohibition. Thirdly there is the ambiguity that I addressed earlier in these reasons, as to whether the Minister had acted under a misapprehension about the true identity of the “person” who had made the “cancellation/refusal request”. And, fourthly, there is the Applicant’s argument (that I have rejected earlier in these reasons) that the NSW PIC was not a “competent authority”.
84.Notwithstanding the qualification commented on in the preceding paragraph, the better view is that the Minister’s refusal decision was made “because of” section 12(2) of the Passports Act and is not reviewable by the Tribunal. Alternatively, even if the refusal to issue decision is reviewable, the circumstances of Mr McCabe’s continuing custody, pending the outcome of the criminal proceedings against him, involve the same ultimate considerations as those relating to the Minister’s cancellation decision. They lead to the same result, that the Minister’s decision should be affirmed in any event.
85.The Minister’s cancellation decision under review is affirmed. The Minister’s refusal decision is not reviewable.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of SYDNEY
Signed: ..............................................(Sgd).......................................
AssociateDate/s of Hearing 20 August 2007
Date of Decision 8 October 2007
Counsel for the Applicant
Solicitor for the Applicant Mr Gordon Elliott
Counsel for the Respondent Mr Nicholas Chen
Solicitor for the Respondent Megan Window
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