Miller and Minister for Foreign Affairs and Trade

[2003] AATA 395

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 395

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/1175

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Desmond Miller

Applicant

And Minister for Foreign Affairs and Trade

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date30 April 2003

PlaceSydney

Decision The Tribunal has no jurisdiction because the matter in respect of which the Applicant seeks a review does not involve a “decision” for the purposes of s 27(1) of the Administrative Appeals Tribunal Act 1975.

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

RP Handley
  Deputy President 

CATCHWORDS

PASSPORT APPLICATION – proof of identification for Australian passport – requirements of PC1 form and PC7 form – supply of forms is an administrative step in obtaining a passport - necessity for applicant for a passport to provide identification by a nominated person if required by the Regulations – examination of history of previous application by Applicant for a passport and Overseas Alert being placed on the Applicant’s passport  – no reviewable decision – held that the Tribunal does not have jurisdiction.

Passport Act 1938 ss 7, 12

Australian Security Intelligence Organisation Act 1979

Administrative Decisions (Judicial Review) Act 1977

Passport Regulations – regulation 5(2), 14(1), 14(2), 14(5), 16(1)

Australian Broadcasting Tribunal v Bond  (1990) 170 CLR 321

Director-General of Social Services v Chaney (1980) 3 ALD 161

Director-General of Social Services v Hales (1983) 47 ALR 281

REASONS FOR DECISION

30 April 2003 Mr RP Handley, Deputy President          

1.      This is an application by Desmond Miller (“the Applicant”) for a review of a decision of a delegate of the Minister for Foreign Affairs and Trade (“the Respondent”) made on 6 August 2002 affirming a decision that Mr Miller not be issued with a PC7 Australian passport renewal application form but instead be issued with a PC1 Australian passport adult application form.

2. At the hearing, Mr Miller represented himself and the Respondent was represented by Lex Holcombe, Solicitor, of Minter Ellison, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) together with documents tendered by the parties. Mr Miller gave oral evidence.

The Facts

3.      The facts of this matter are not in dispute.  Mr Miller was born on 12 August 1926 and is aged 76.  On Friday 19 June 1992, he applied urgently for a passport in order to travel to Malaysia but was unable to comply with the usual identification requirements.  He therefore completed a Statutory Declaration nominating a person he had known for more than one year who could confirm his identity.  After Mr Miller had lodged his application, the Passport Office sought to confirm Mr Miller’s identity with the nominated person but was unable to contact her.  When it was realised that Mr Miller had previously been issued with a passport, by then expired on 6 August 1985, the Passport Office contacted the person who had completed the proof of identity declaration on that occasion (Mr Miller’s general practitioner) to ascertain whether he had had any recent contact with Mr Miller.  The doctor confirmed that he had seen Mr Miller recently and had known him for 12 years.  On this basis, the Passport Office issued Mr Miller with a new passport, valid for 10 years, which he collected at 9am on the following Monday, 22 June 1992.  That passport expired on 22 June 2002.

4.      Unknown to Mr Miller, an “alert” was recorded against his name by the Passport Office in 1992 to the effect that there was an anomaly in relation to the issue of his passport.  The consequence of this was that when, on or about 6 June 2002, Mr Miller phoned the Australian Passport Information Service (“APIS”), a call centre, to ask for an application form to renew his passport, APIS told Mr Miller they were unable to issue him with a PC7 Australian passport renewal application form and referred the matter to the Passport Office.  The Passport Office decided that Mr Miller could not be issued with a PC7 form and issued him instead with a PC1 Australian passport adult application form.  After the hearing, the Tribunal invited further written submissions on who made the decision characterised as the “reviewable decision”.  The parties agreed it was this decision made by the unidentified officer at the Passport Office on or about 6 June 2002. 

5.      The difference between the PC7 form and the PC1 form is that the PC7 form is shorter and simpler (one page to be completed), does not require a declaration, and the only documents which must be submitted with the form are two recent identical colour photographs.  Essentially, reliance is placed on the expiring/expired passport.  By contrast, the PC1 form involves answering questions on three pages, requires proof of Australian citizenship and requires that an “identifier”  - a person of 18 years or over, who has known the applicant for the past 12 months, and is not related by marriage or birth - complete a declaration vouching for the applicant’s identity and endorse and sign the back of one of the passport photographs supplied.

6.      On 9 June 2002, Mr Miller wrote to the Secretary of the Department of Foreign Affairs and Trade (“the Department”) asking for an explanation for the refusal to provide him with a passport application form.  On 1 July 2002, Mr Bob Nash, the Assistant Secretary of the Passport Branch of the Department, responded explaining that because at the time Mr Miller applied for a passport in 1992 “you did not know anyone within the occupational categories that could provide the required certification”, the Passport Office was unable to issue him with a renewal form (a PC7 form) and that he would need to submit a complete application form (a PC1 form).  Two copies of the PC1 form were enclosed.

7.      By letter dated 5 July 2002, Mr Miller responded requesting “a completed application form, to which I am entitled, by return mail”..  By letter dated 17 July 2002, Mr Nash reiterated the need for Mr Miller

to provide a proof of identity certification from an acceptable identifier.  As you did not provide this information with your previous application, you cannot be issued with a renewal form (PC7).

By letter dated 23 July 2002, Mr Miller wrote to the Respondent seeking a review of this decision and stating the issue is the PC7 “to which I am entitled”..   By letter dated 6 August 2002, Mr Nash responded on behalf of the Respondent confirming what he had said in his earlier letters (characterised as the “Ministerial decision”).

8.      On 14 August 2002, Mr Miller lodged an application for a review of this decision by the Tribunal.  On the same day that he wrote to the Tribunal (9 August 2002), Mr Miller also wrote to the Freedom of Information Unit at the Department seeking access to all material regarding himself.  Ultimately, this resulted in a second application to the Tribunal on 25 November 2002.  That application has been separately resolved.

Applicable Law

9.      The primary legislation governing the issue of a passport is the Passport Act 1938.  Section 7 provides for the Minister or his/her delegate to issue Australian passports to Australian citizens.  Section 12 provides for a power to make regulations “for carrying out or giving effect to the Act”, which has been utilised in making the Passport Regulations.  Regulation 5(1) states that an application for an Australian passport “shall be in accordance with a form approved by the Minister”..  The Respondent has approved a number of application forms for this purpose including the PC1 and PC7 forms.  Regulation 5(2) states:

An Authorised Officer may require an applicant to furnish such further evidence in relation to any application under these Regulations as the Officer deems necessary.

10.     The exercise of this power by an Authorised Officer constitutes a “reviewable decision” under regulation 14(1).  Review may be sought by written application to the Minister within 28 days (regulation 14(2)).   Regulation 14(5) provides for a person to apply to the Tribunal for a review of the Minister’s decision.  Regulation 16(1) empowers the Minister to delegate his/her power to review such a decision to a Senior Executive Service Officer of the Department “other than a reviewable decision in the making of which the officer had a part”.

Application of the Law

11.     In response to a question from the Tribunal at the commencement of the hearing, Mr Miller said the relevant issue is what he contends is his entitlement to apply for the renewal of his passport using a PC7 form.  Mr Holcombe, for the Respondent, submitted that there is no expressed entitlement to a PC7 form.  The issuing of forms is purely an administrative step and is not a decision which is reviewable by the Tribunal.  The Respondent has therefore characterised the reviewable decision as one made pursuant to subregulation 5(2) on the basis that the unidentified officer at the Passport Office required Mr Miller to provide “proof of identity” evidence.

12. Pursuant to s 27(1) of the AAT Act, applications may be made to the Tribunal for a review of a decision where the Act itself “or any other enactment (other than the Australian Security Intelligence Organisation Act 1979)” so provides. In this case, the Tribunal is empowered by regulation 14(5) of the Passport Regulations. However, it should be noted that s 27(1) of the AAT Act states the application to the Tribunal is “for a review of a decision”. The term “decision” is defined in subsection 3(3) of the AAT Act:

A reference in this Act to a decision includes a reference to:
(a)      making, suspending, revoking or refusing to make an order or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)      imposing a condition or restriction;
(e)      making a declaration, demand or requirement;
(f)       retaining, or refusing to deliver up, an article; or
(g)      doing or refusing to do any other act or thing.

13. The first issue is whether a decision to refuse to issue an applicant with one passport form and instead issue him/her with another is a “decision” for the purposes of the AAT Act.

14. While the Tribunal recognises that a flexible approach should be taken in interpreting what constitutes a decision for the purpose of fulfilling its function of reviewing administrative decisions expeditiously, and bearing in mind that the AAT Act is beneficial legislation, nevertheless, for practical purposes, clearly not every action taken by an officer employed by the Commonwealth is reviewable. In Director-General of Social Services v Chaney (1980) 3 ALD 161, the Full Federal Court emphasised that it is the ultimate or operative decision which is reviewable. (See, for example, Deane J at 181).

15.     In the Full Federal Court decision in Director-General of Social Services v Hales (1983) 47 ALR 281, Lockhart J said, at 305, that the meaning of the word “decision” “must take its colour and content from the enactment which is the source of the decision itself”. While emphasising that a “narrow or pedantic approach” should not be taken, he also recognised that not every step in the administrative process is reviewable. Otherwise, the business of government could be stymied.

16. The definition of “decision” in the AAT Act is similar to that in subsection 3(2) of the Administrative Decisions (Judicial Review) Act 1977. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court considered the meaning of the word. Mason J, with whom Brennan and Deane JJ agreed, stated at 327:

… a reviewable ‘decision’ is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment.

His Honour stated that “Another essential quality of a reviewable decision is that it be a substantive determination”:  (1990) 94 ALR 11 at 23-24. (170 CLR 321 at 337)

17. In the Tribunal’s view, the issuing of forms is, as Mr Holcombe contended, purely an administrative step. It is part of the process of applying for a passport. The decision whether or not to grant the passport is the substantive determination – the ultimate or operative decision which is reviewable. The Tribunal notes that the difference between the two passport application forms in question is not great, the longer form, PC1, requiring further proof of Australian citizenship and a declaration by an identifier. Thus, the Tribunal concludes that a decision to refuse to issue Mr Miller with a PC7 form but instead to issue him with a PC1 form is not a decision which can be reviewed by the Tribunal pursuant to section 27(1) of the AAT Act. The Tribunal therefore has no jurisdiction to hear Mr Miller’s application in this matter.

18.     However, even if the Tribunal were wrong in so concluding, for an officer in the Passport Branch of the Department to require further evidence as to a person’s identity, pursuant to subregulation 5(2)  - by, for example, requiring an applicant to supply further evidence beyond that required in the standard PC7 renewal form in circumstances where the person did not comply with the normal proof of identity requirements when the previous passport was issued, seems perfectly reasonable.  The required additional proof of identity and declaration by an identifier is not, in the Tribunal’s view, onerous in light of the need to ensure the integrity of the Australian passport as “a form of identification acceptable to foreign Governments for the purposes of international travel” (Manual of Australian Passport Issue, July 2001, Vol 19 para 2.1.1).   Thus, if the Tribunal had jurisdiction in this matter it would affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  20 March 2003
Date of Decision  30 April 2003
Representative for the Applicant               Self represented
Representative for the Respondent          Mr L Holcombe, Solicitor