Minister for Foreign Affairs v Lee

Case [2014] FCA 927

FEDERAL COURT OF AUSTRALIA

Minister for Foreign Affairs v Lee [2014] FCA 927

Citation: Minister for Foreign Affairs v Lee [2014] FCA 927
Appeal from: Re William Lee and Minister for Foreign Affairs [2014] AATA 159
Parties: MINISTER FOR FOREIGN AFFAIRS v WILLIAM LEE
File number: NSD 410 of 2014
Judge: ROBERTSON J
Date of judgment: 29 August 2014
Catchwords: ADMINISTRATIVE LAW – appeal on a question of law from the Administrative Appeals Tribunal – whether error of law in decision of the Tribunal that the respondent was entitled to be issued with an Australian passport which not only recorded the respondent’s true date of birth but also contained an endorsement that the respondent had also used a different date of birth
Legislation:

Australian Passports Act 2005 (Cth) ss 3, 6, 7, 8, 29, 30, 31, 42, 43, 55, 57
Births, Deaths and Marriages Registration Act 1995 (NSW) ss 4, 14, 43
Road Transport (Driver Licensing) Act 1998 (NSW) s 22

Australian Passports Determination 2005 (Cth) ss 7, 9
Births, Deaths and Marriages Registration Regulation 2011 (NSW) reg 5
Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 10

Cases cited: BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115
Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65
Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] HCA 11; (2014) 250 CLR 490
Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467
Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87
Date of hearing: 25 August 2014
Date of last submissions: 25 August 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: Mr GR Kennett SC
Solicitor for the Applicant: Minter Ellison
Counsel for the Respondent: Ms AB Douglas-Baker (pro bono)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 410 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MINISTER FOR FOREIGN AFFAIRS
Applicant
AND:

WILLIAM LEE
Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

29 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The parties confer for the purpose of filing by 5 September 2014 agreed short minutes dealing with the extent to which the decision of the Tribunal should be set aside and the case be remitted to be heard and decided again by the Tribunal. If short minutes cannot be agreed then each…

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AGLC
Minister for Foreign Affairs v Lee [2014] FCA 927
Case
[2014] FCA 927
Decision Date

CaseChat Overview and Summary

This appeal before the court involves the Minister for Foreign Affairs and Mr Lee, the respondent, regarding an Australian passport issued to the respondent. The central issue was whether the Administrative Appeals Tribunal erred in its decision that Mr Lee was entitled to a passport that reflected his true date of birth and included an endorsement acknowledging his use of a different date of birth. The court was tasked with determining if the Tribunal had made an error in law when it reached its decision.

The primary legal issue before the court was whether the Administrative Appeals Tribunal had correctly interpreted and applied the relevant provisions of the Passports Act and the Passports Determination 2005 in granting Mr Lee's passport with the specified conditions. The court examined the Tribunal's construction of the policy and its adherence to statutory requirements. The court also had to assess whether the Tribunal's decision was influenced by evidence not originally before it, specifically certain policy pages that were tendered by the respondent's counsel.

In its reasoning, the court held that the material tendered by the respondent's counsel was inadmissible as it did not influence the correctness or incorrectness of the Tribunal's construction of the policy. The court found that the Tribunal's reliance on sections of the Passports Act and the Passports Determination 2005 was sufficient to address the issue at hand. Consequently, the court determined that the appeal should be allowed and the matter remitted back to the Tribunal for reconsideration. Given the Minister's concession on costs, no order was made regarding the costs of the appeal. The court set a timeline for the parties to agree on the terms for remitting the case or, if necessary, to file competing orders.

Orders

Orders of the court

1. The appeal be allowed.

2. The parties confer for the purpose of filing by 5 September 2014 agreed short minutes dealing with the extent to which the decision of the Tribunal should be set aside and the case be remitted to be heard and decided again by the Tribunal. If short minutes cannot be agreed then each party is to file by 12 September 2014 the short minutes for which that party contends.

3. There be no order as to the costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I should mention one other aspect of the hearing of the appeal. Counsel for the respondent sought to tender pages of the departmental policy which were not before the Tribunal. I marked that material MFI 1 and indicated that I would rule on its admissibility in the course of my reasons for judgment. In my opinion that material is not admissible as evidence to support the Tribunal’s decision, in particular its construction of the departmental policy. It is difficult to see how the correctness or incorrectness of the Tribunal’s construction of that policy could be affected by parts of the policy which the Tribunal did not have before it. In any event, the parts sought to be tendered did not, in my opinion, take the matter any further than the terms of the Passports Act and the Determination. For example, counsel for the respondent sought to emphasise a reference at page 99 of 132 to the place of birth and gender in an Australian travel document being the same as appears on the person’s cardinal document (i.e. the person’s Australian birth certificate). However, that part of the policy refers to s 7.2 of the Determination, which in turn is a reference to the Minister requesting certain kinds of personal information for the purpose of satisfying himself or herself of the person’s identity and the kind of personal information there specified is, relevantly, the person’s date of birth as shown in the records held by the Registrar of Births, Deaths and Marriages of the relevant Australian State. In my opinion the date of birth in those records, the cardinal document, is the respondent’s correct date of birth and not his incorrect date of birth shown on the Registrar’s endorsement. I reject the tender.Conclusion The appeal should be allowed. It was common ground before me that in those circumstances the appropriate disposal of the appeal was an order remitting the case to be heard and decided again by the Tribunal. I will give the parties an opportunity to file agreed orders or, failing agreement, competing orders on the extent to which the decision of the Tribunal should be set aside and remitted to be heard and decided again by the Tribunal. As to costs, the Minister agreed that if the appeal were allowed he did not seek an order for costs.

Ratio Decidendi

Legal Principle Established

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