Morales and Minister for Foreign Affairs and Trade
[2007] AATA 1077
•22 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1077
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1584
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN MORALES Applicant
And
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal Deputy President GD Walker Date 22 February 2007
PlaceSydney
Decision The decision under review is affirmed with a recommendation that consideration be given to issuing a travel document under s 9. ..................[SGD]...................
Professor GD Walker
Deputy President
CATCHWORDS
issue of passports – loss of two passports in five years – whether passport ‘lost’ for purpose of the Australian passports act – whether discretion to issue further passport should be exercised
Australian Passports Act 2005 ss 9, 15, 22, 41
Acts Interpretation Act 1901 s 15AA
REASONS FOR DECISION
22 February 2007 Deputy President Walker Issue
1. The issue in this application is whether the application should be refused the issue of a passport pursuant to s 15 of the Australian Passports Act 2005 (Cth).
Background
2. The applicant Steven Morales was born in Medellín, Colombia and is aged 26. The translation of his birth certificate shows that his name is given as Steven MORALES Ortiz. In Spanish-speaking countries, it is customary to give a person’s mother’s maiden name (in this case Ortiz) immediately following the person’s surname. For many purposes, both the surname and the mother’s maiden name are used, but for everyday purposes the surname and first name alone may be used, with the mother’s maiden name either being omitted or being noted only by its initial.
3. His Australian citizenship certificate issued on 23 June 1986 gives his name as Steven Morales ORTIZ. That presumably reflected the way his mother completed the forms.
4. On 4 July 2001, the New South Wales Births Deaths and Marriages Registry (BDMR) issued a change of name certificate (supplementary T p5) noting that the applicant had changed his name to Sandro Escobar from Steven Morales and, previously, Steven Morales Ortiz. He applied for and was issued on 4 September 2001 with an Australian passport in the name Sandro Escobar, number L9947541.
5. On 5 September 2002, the BDMR issued a further change of name certificate noting that Mr Morales had changed his name from Sandro Escobar to Alfonzo Santo’s. The use of an apostrophe in the name “Santo’s” was obviously absurd, but his only explanation for it was that he was “young and silly”. His first passport, the one in the name of Escobar, was recorded as lost on 29 January 2004, and the following day a new passport number M1047165 was issued to the applicant in the name Alfonzo Santo’s.
6. On 3 February 2006, the BDMR issued to Mr Morales a third change of name certificate recording his changing of his name from Santo’s to Steven Morales.
7. On 30 August 2006, the applicant applied for a third passport, this time in the name Steven Morales and stating that his second passport (in the name Santo’s) had also been lost.
8. Section 15 of the Act reads as follows:
The Minister may refuse to issue an Australian passport to a person if, in the 5 years before the passport application under consideration is made 2 or more Australian passports issued to the person have been lost or stolen.
9. On 16 October 2006, the acting director of the passport fraud section wrote to the applicant stating that as he had reported two passports lost or stolen in the five years prior to lodging his application, the minister had decided to refuse to issue him with a passport. He would be eligible to apply for a further Australian passport on or after 29 January 2009 (T p14). That is the reviewable decision before the tribunal in this case.
Evidence
10. At the hearing Mr Donald Cawthorne, a fraud officer with the Australian Passport Fraud Office of the Department of Foreign Affairs and Trade, became involved in the case when an investigation was launched into the applicant’s passport application of 30 August 2006. The application was being investigated because the signature of the guarantor, Cettina Mangano, on that application was different from her signature on another passport application for which Ms Mangano had become guarantor on the same date. In the course of his inquiries, Mr Cawthorne had given the applicant his name and contact telephone number. On 9 October 2006 at about 10:30 am, Mr Morales telephoned him to ask when he would receive his passport. Mr Cawthorne replied that he could not give a date, and drew to Mr Morales’s attention the requirements of s 15 of the Act. Later that day, the applicant arrived at the passports office on Lee Street, Sydney, and presented his first passport (L9947541) to Mr Cawthorne, saying that his mother had just found that passport in her house.
11. On 18 October 2006, immigration officers at Sydney Airport confiscated the applicant’s second passport, N1047165 as the applicant had reported it lost in his application of 30 August 2006 and it had therefore been cancelled. The following day, the applicant telephoned Mr Cawthorne explaining that his mother had found that passport also, but he had thought he could still use it to go to Vanuatu, so he had changed the name on his air ticket to match the name on his passport and tried to leave Australia.
12. Mr Morales was charged with two offences, one of attempting to leave Australia using a cancelled travel document, and one of making a false statement in relation to losing his previous passport. Those matters are currently pending in the Local Court.
13. Federal Agent Luke Boon of the Australian Federal Police is currently attached to the passports fraud section. In the course of the investigation mentioned above, Mr Boon was asked to obtain details of the applicant’s criminal record. He ascertained that a number of convictions and charges were recorded against the applicant’s name. It was not disputed that he had convictions for the following offences:
·Obtaining or renewing a license by false statement;
·Drive on road while suspended;
·Forging or fraudulently altering or using a license;
·Driving with a low range prescribed concentration of alcohol;
·Driving with a middle range prescribed concentration of alcohol;
·Obtaining money ($2,000) by deception;
·Stealing from a person;
·Larceny to a value of less than $2,000;
·Obtaining money etc by deception; and
·Using a false instrument with intent.
He did not serve any custodial sentences as a result of these convictions, although one of them resulted in a suspended sentence of nine months’ imprisonment.
14. Movement checks showed that Mr Morales had never travelled on either of the two passports with which he had been issued. Mr Boon formed the opinion that the two passports had never been lost at all and was concerned that as Mr Morales had at his disposal two passports with concurrent validity issued in different names and was now applying for a third passport in a third name, he might have been using the two passports as identity documents.
15. Mr Ian Russell, director the passports fraud section, explained that given the problems and enormous costs incurred as a result of identity fraud and associated criminal activity, passports recorded as lost or stolen are of serious concern to the respondent. Lost or stolen passports provide criminals with the potential to assume another identity, carry out criminal activities in different names or travel illegally.
16. In view of the applicant’s previous offences, including offences of dishonesty or involving fraudulent use of identification, the department was concerned that Mr Morales might be reporting his passports as lost so that he could obtain further passports, and then using his passports for fraudulent purposes himself, or allowing others to do so.
17. The circumstances in which the earlier passports were recovered did not allay the department’s concerns, as they were recovered by Mr Morales only after he was told that he would not be issued with a further passport. That suggested to Mr Russell that the passports were not in fact lost, but were in the applicant’s possession all along.
18. Mr Russell pointed out that there is a power under s 9 of the Act to issue a document of identity to Australian citizens, but normally only in exceptional circumstances such as where the person’s travel should be restricted (including persons being deported or repatriated to Australia), or persons not entitled to a passport but who need to travel overseas because of demonstrated and compelling humanitarian or emergency circumstances, such as a need to attend a family emergency or a parent’s funeral. Mr Morales’s circumstances were not, in the department’s view, such as to warrant issue of such a document of identity.
19. Neither Mr Russell, Mr Boon nor Mr Cawthorne was cross-examined.
20. Mr Morales was unrepresented at the hearing. In his oral evidence, he said he is a carpenter, carrying on business as a sole trader under contract to a company named JDS Pty Limited, of Drummoyne. On 15 October 2006, he married Sonia Dimitrievski at St Dimitrija’s Macedonian Orthodox Church in Wollongong (T p18). The couple had planned to spend their honeymoon in Vanuatu on a travel package Mr Morales had purchased for between $5,000 and $6,000. They were at the airport attempting to depart on 18 October 2006 when the applicant’s second passport, which by now had been cancelled, was confiscated. He was able to postpone the honeymoon travel package to a 7 March 2007 departure date, but would not be able to obtain another postponement.
21. He acknowledged his 10 convictions, saying that he had formed some bad associations that led him into criminal activity, but he had distanced himself from that group. He was now concentrating on taking his work and his marriage seriously. He had never been involved in drugs. He attributed his multiple changes of name to youthful foolishness and he said that he had never used the names Ortiz or Santos (without the apostrophe) as surnames.
22. The applicant said that he had genuinely thought he had lost the passports. His mother had found the first one on the day after the wedding and he had surrendered it himself. His mother lived in what he termed the family home, which he had purchased in 2001. Although he had moved out in 2004, he still left many of his papers there.
23. His mother had also found the second passport, in a briefcase in an upper room of the house. After speaking to Mr Cawthorne on the morning of 9 October 2006, he had driven to the family home where he and his mother had “ransacked” his papers and located it. He had returned to the passports office just in time, before it closed. Both passports had been returned in their original condition and had not been tampered with in any way.
Were the passports “lost”?
24. Mr Chen on behalf of the minister pointed out that s 15 of the Act creates a two-stage process. The first requirement is the establishment of the loss of the requisite number of passports during the relevant time (in this case, two passports lost in the five years before 30 August 2006). The second stage, which follows proof of the first, involves the discretionary consideration by the minister of whether, notwithstanding the passport losses, a new passport should issue.
25. He submitted that the fact that Mr Morales had reported both passports as lost was sufficient to satisfy the requirement that the two passports “have been lost”. Although there was no authority on the phrase’s meaning, that interpretation was consistent with the ordinary meaning of the phrase. The use of the past tense denoted that the later discovery of the passports would be of no consequence because the language was broad enough to include passports that had been lost only temporarily. Further, the use of the phrase “have been”, as opposed to “are”, was significant. The latter would require factual satisfaction as to whether the passport was or was not lost, whereas the former would and did include a report by the holder that they were lost.
26. That interpretation, Mr Chen contended, is consistent with s 41 (which provides for the reporting of lost or stolen passports) and s 22 (which provides for cancellation). A passport is lost, for the purposes of the Act, when it is reported to be so by the holder. There is no means whereby the department could know that a passport is lost until it is reported lost by the holder. Once it is reported lost, the passport is cancelled under s 22(2)(b).
27. Thus, reporting the loss has two consequences: it invalidates the lost passport and it entitles the holder to apply for another one. Any other interpretation would be unworkable from the viewpoint both of the department and of the passport holder, who would be required to prove loss, besides merely reporting it. Further, a situation might arise in which a passport might not be cancelled when reported lost.
28. The interpretation he advanced, Mr Chen argued, was one that promotes the purposes or objects underlying the Act (see Acts Interpretation Act 1901 (Cth), s 15AA), and is consistent with the objects and intention of the legislation as expressed in the explanatory memorandum, which makes specific reference to the need to minimise the problems caused by lost or stolen passports.
29. The applicant made no submissions on this point.
30. I have reservations as to whether the distinction between “have been” and “are” is that the former means that a report of loss by the holder would be sufficient, whereas “are” requires factual satisfaction as to whether or not the passport is lost. I read the words “have been” as meaning that the owner claims to be, or has claimed to have been, unable to find the passport at some stage, whether or not he or she has subsequently found it, whereas “are” indicates that the holder claims to be still unable to locate it.
31. In all other respects, however, I accept the respondent’s submissions. I conclude that a passport has been “lost” for the purposes of s 15 if the holder has reported it lost, whether or not it has since been recovered and regardless of whether or not the holder subjectively believed it was lost. Consequently, the first requirement of s 15 is satisfied.
Discretionary considerations
32. The second stage of the s 15 enquiry involves considering whether, despite losing two passports within five years, the applicant should nevertheless be issued with a new one as a matter of discretion. The discretion is implied by the use of the words “may refuse”.
33. Mr Chen submitted that there would clearly be cases where the discretion would be exercised in the applicant’s favour, for example, where a passport had been lost and promptly reported, and another had been lost in a house fire. The present case, however, was as strong a case for refusal to issue as one could envisage.
34. The applicant has a significant criminal record, and of the 10 offences recorded, six involve dishonesty. The circumstances surrounding the recovery of the passports following the advice given to the applicant by Mr Cawthorne on 9 October 2006 told against the applicant. They include the late discovery of the passports, their recovery only once he became aware of the department’s attitude, and the fact that even on his own evidence there is nothing to suggest that he had ever properly searched for them. His attempted departure using the second passport after being told that he might not receive a new one also reflected badly on him. The legislation and government policy were directed at eliminating misuse of passports and the circumstances made a strong case for refusal.
35. The respondent submitted that the applicant has used four different names in addition to his original name, but the applicant maintains there have been only two, Escobar and Santo’s, and that he never used Santos or Ortiz. In any event, for the reasons given above, Ortiz can be regarded as a variant of his birth name Morales Ortiz.
36. Mr Morales stressed that he had always believed the two passports had been lost but they had become misplaced at the family home where he kept most of his papers. They had never been tampered with or used for fraudulent purposes. If he had not genuinely thought the second passport had been lost, he would have had no reason to apply for a third one. When he attempted to use the second passport to depart on his honeymoon, he had not realised it had been cancelled and believed he was still entitled to use it.
37. While nothing in the evidence shows that he ever actually attempted to use the two passports for unlawful or improper purposes, I do not think his explanations are sufficient to justify exercise of the discretion in his favour. At best, he was grossly negligent as regards storage and custody of his passports. His conviction of several offences of dishonesty, coupled with his repeated name changes and applications for passports in different names, make it difficult for his account of the events to dispel entirely the apprehension that improper use of identification documents may have been intended.
38. The applicant will be eligible to apply for a new passport in 2009, but in my view, it would not be appropriate to issue him with a new one until then.
Other possible travel document – a recommendation
39. As was noted above, the respondent’s position is that not only should the applicant be refused a passport, but also that this is not an appropriate case for the issuance of any other form of travel-related document such as might be issued pursuant to s 9. Those documents, the respondent has stated, are issued only in emergencies or on humanitarian grounds and the applicant’s wish to travel to Vanuatu on his honeymoon does not meet that criterion.
40. The reviewable decision before the tribunal in this case is the respondent’s refusal to issue a passport pursuant to s 15. There is no reviewable decision in relation to any other form of travel-related document, and accordingly the tribunal has no jurisdiction to make a determination on that subject.
41. Although I am satisfied that the reviewable decision should be affirmed, I think it appropriate to offer a strong recommendation that some other form of travel-related document be issued to the applicant for that purpose.
42. There are three reasons for this. First, there is an innocent party involved, Mrs Sonia Morales. It is her honeymoon too. A honeymoon is an important event in the lives of most married people and the memories associated with it can often help to sustain a marriage during more difficult times. For centuries, the courts have held that the safeguarding and upholding of marriage forms part of public policy.
43. Secondly, the applicant, aged 26, may be at a critical juncture in his life. He has a significant criminal record involving several offences of dishonesty, and may have committed another in mid-2006 in connection with the application for his third passport. On the other hand, there are several factors in his background that suggest he is a good candidate for rehabilitation. He is qualified in a trade and holds several other useful qualifications (Exhibit A1). He is working full-time in his own business and owns the family house, subject to a mortgage. He has had no involvement with drugs, which according to most police lie at the root of 90 percent of today’s crime. He has distanced himself from the associates who influenced him to engage in crime. Finally, he has contracted a genuine marriage. It is well accepted in criminology and sociology that a stable marriage is a strong factor counting against the risk of recidivism. Permitting the applicant and his wife to travel to Vanuatu on their honeymoon would in my view help to get the marriage off to an auspicious start and could thereby help the rehabilitation process.
44. Finally, the risk of fraud or misuse associated with a limited travel document under s 9 must be quite minimal.
45. I therefore determine that the reviewable decision should be affirmed but I add the recommendation that, if the appropriate application is promptly made, favourable consideration be given to issuing a travel document under s 9 to enable the couple to honeymoon in Vanuatu.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of DP Walker
Signed: BKS (Associate to DP Walker)
Date/s of Hearing 19 February 2007
Date of Decision 22 February 2007
Solicitor for the Applicant Self-represented
Counsel for the Respondent Mr Nicholas Chen
Solicitor for the Respondent Ms Clare McNamara, Minter Ellison
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