McCarthy and Minister for Foreign Affairs

[2007] AATA 1616

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1616

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1768

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL McCARTHY

Applicant

And MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date31 July 2007  

PlaceBrisbane

Decision

The Tribunal:
(a) directs that the name of the applicant in the proceedings be amended to show Mr Paul McCarthy as the applicant;
(b) sets aside the decision under review;

(c) substitutes a decision that a passport be issued to the child L.

..............................................

Deputy President

CATCHWORDS

PASSPORTS – refusal to issue an Australian passport to child L  – issuing of passport requires consent from each person with parental responsibility for the child or relevant court order – court order that child L be issued passport despite consent of mother not being obtained – power of the Tribunal to require respondent to withdraw allegations made in the proceedings or to impose a time limit on the respondent – fresh application by the applicant is not required - decision under review set aside and substitute a decision that a passport be issued to the child L

Australian Passports Act 2005 (Cth) – s 11(1)(b),

Administrative Appeals Tribunal Act 1975 – ss 42C, 43(1)

REASONS FOR DECISION

31 July 2007 Deputy President P E Hack SC    

1.This is an application which has been brought by Mr Paul McCarthy. Mr McCarthy seeks a review of a decision of the respondent Minister, by a delegate, made on 18 April 2007. That decision affirmed an earlier decision, by another delegate, to refuse to issue an Australian passport to Mr McCarthy’s infant son who I shall call, for the purposes of these reasons, L.   L was born in July 2004.

2.No doubt because of the confusing detail in the material as originally lodged in this Tribunal the proceedings have been commenced in the name of L. That is plainly wrong. I propose to direct that the name of the applicant be amended to Mr Paul McCarthy, in lieu of L.

3.Mr McCarthy made application for the issue of a passport to L in July 2005. That application was refused in October 2005 on the basis that an Australian passport could not be issued to a child unless each person with parental responsibility for the child consented to the child travelling internationally or an order of a court permitted the child to travel internationally. Neither of these conditions was satisfied hence the decision to refuse to issue the passport to L.

4.The letter advising Mr McCarthy of the decision to refuse to issue a passport to L ought to have advised him of his right to seek a review of that decision, but it did not do so. Eventually Mr McCarthy was advised of these rights in April 2006 and he promptly sought internal review. That review culminated with the decision made on 18 April 2007 affirming the earlier decision to refuse to issue a passport to L.

5.Mr McCarthy sought a review of the decision by this Tribunal on 4 May 2007.

6.In the meantime, Mr McCarthy had commenced proceedings in the Federal Magistrates Court against the mother of L. On 4 May 2007 Federal Magistrate Coker ordered in those proceedings, inter alia:

“That pursuant to Section 7A(2) of the Passport Act 1938 the child [L] born … be issued with an Australian Passport notwithstanding the fact that the consent of the [mother of L] for the issue of a passport for the said child has not been obtained.”

7.The solicitors for the respondent accepts that the reference to s 7A(2) of the Passport Act 1938 is an error and that that should be a reference to s 11(1)(b) of the Australian Passports Act 2005 (Cth). The order, as taken out, did reflect the orders in fact made but it seems to be the case that the Federal Magistrate has now corrected the error.

8.But the effect of the order that has been made is that it is now accepted by the respondent that one of the two conditions required by s 11(1) of the Australian Passports Act to be satisfied before a passport may be issued to a child has now been satisfied. Accordingly, on 26 July 2007 the solicitors for the respondent forwarded to the Tribunal, to be forwarded to Mr McCarthy, a draft consent order under s 42C of the Administrative Appeals Tribunal Act 1975 (Cth.). That document proposed a decision in these terms,

“The decision under review is set aside and is substituted with a decision that an application for a passport for [L] be granted.”

9.The covering letter however pointed out that,

“… because the passport application the subject of the proceedings is no longer extant within the passport system of the Department of Foreign Affairs and Trade, a fresh application needs to be lodged at the Bangkok Post so that the proposed order of the Tribunal can be given effect.”

10.Mr McCarthy responded to that draft by submitting a proposed consent that required the respondent to grant L a passport:

“… within ten (10) days of the date of this order based upon the application already being submitted to the Department of Foreign Affairs and Trade at the Australian Embassy’s Bangkok Post and without the need for a further application to obtain [L’s] first minor’s passport.”

Additionally, Mr McCarthy proposed that the respondent be required to withdraw certain allegations that had been made against Mr McCarthy in the proceedings.

11.The solicitors for the respondent have now proposed a form of order that incorporates the ten day deadline that Mr McCarthy seeks but starts time only upon lodgement of a properly completed passport application at the Australian Embassy, Bangkok.

12.The matter was originally set down for a further telephone conference before a Conference Registrar today however, in discussions with the Conference Registrar, I have concluded it is appropriate that the matter be heard and determined today given the narrowness of the issues that separate the parties.

13.The Tribunal’s powers on review are specified in s 43 of Administrative Appeals Tribunal Act. It will suffice for present purposes to note that by virtue of s 43(1) of that Act the Tribunal is limited to,

(a)     affirming the decision;

(b)     varying the decision; or

(c)     setting aside the decision and,

(i)making a decision in substitution for the decision set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

14.It is immediately apparent that the Tribunal lacks power to require the respondent to withdraw allegations made in the course of the proceedings. Had the matter gone to a contested hearing I would not have had such power. At best for Mr McCarthy, had I considered that there was sufficient evidence to reach a conclusion on the correctness or otherwise of the allegations made, I may have expressed that conclusion in my reasons for decision however the reasons for the decision are not part of a decision.

15.The question of a ten day time limit is in the same category. I do not have power to impose a time limit upon the respondent. I expect that the respondent and his officials would do all that they could to give effect to the Tribunal’s decision forthwith. If that expectation is not met Mr McCarthy will need to pursue remedies elsewhere, perhaps with the Commonwealth Ombudsman or with his local member of parliament.

16.That brings me to the final aspect of the matter, the respondent’s insistence on there being a fresh application for a passport for L lodged because the application subject of these proceedings is no longer “extant”. The suggestion that Mr McCarthy should be required to again prepare and lodge an application now that it is agreed that the decision should be set aside seems to me to ignore the fundamental nature of administrative review in this Tribunal. The notion that Mr McCarthy should, in effect, start again ignores the fact that this Tribunal is part of the decision-making continuum. Mr McCarthy made an application. It was refused. Mr McCarthy exercised his right to seek internal review and was unsuccessful. He exercised his right to review by this Tribunal and the decision-maker concedes that he is entitled to have the original decision set aside and replaced with a decision that a passport be issued to L.

17.That decision is based on Mr McCarthy’s original application and no good reason has been shown why a further application is, or should be, required. If Mr McCarthy chooses to lodge a fresh application that is a matter for him but it is not something that I would or could require.

18.I would then set aside the decision under review and substitute a decision that a passport be issued to the child L.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:       .....................................................................................
  Eleanor O’Gorman, Associate

Date of Hearing  31 July 2007       
Date of Decision  31 July 2007
The applicant appeared in person           
Solicitors for the Respondent    Minter Ellison