Mr Richard Maksymiuk and Minister for Foreign Affairs

[2014] AATA 24

[2014] AATA 24

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6086
Re	Mr Richard Maksymiuk
APPLICANT
And	Minister for Foreign Affairs
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	21 January 2014
Place	Brisbane

The Tribunal does not have jurisdiction to hear the application.

....................[Sgd]....................................................

Senior Member Bernard J McCabe

Catchwords

PASSPORTS - Application for a passport – Incomplete form – Rejection of application – Internal review required – Jurisdiction of the Tribunal

Legislation

Australian Passports Act 2005 (Cth) s 50

REASONS FOR DECISION

Senior Member Bernard J McCabe

21 January 2014

INTRODUCTION

1. The applicant recently made an application for review of a decision made by the respondent. Application 2013/6086 relates to what the applicant says was a decision by the Minister for Foreign Affairs refusing to issue the applicant with a passport.

2. The respondent submitted the Tribunal does not have jurisdiction to deal with the dispute. She says the application should be dismissed because the Tribunal does not have jurisdiction to decide the matter. I agree, for reasons I will explain.

   THE TELEPHONE DIRECTIONS HEARING

3. A telephone directions hearing of jurisdiction was listed for 16 January 2013 at 2.45pm. The applicant was contacted and informed of the hearing, and arrangements were made for the applicant to attend his local Centrelink office to participate by telephone. The applicant did not attend the Centrelink office as agreed at the appointed time, and he could not be contacted. He did not contact the Tribunal in advance of the hearing to say he was unable to attend. I note the Tribunal received an email from the applicant the day after the scheduled telephone directions hearing in which he explained he was detained when contractors made an unscheduled visit to his apartment.

4. I decided to proceed with the hearing of jurisdiction in the applicant’s absence.

   DECISION

5. The applicant says the respondent made a decision to refuse his application for a passport. The respondent says there was no decision: the applicant submitted an incomplete form to the post office and the officer who took the application returned it with a request that the applicant complete the form. Until a complete form was lodged, I was told, the respondent did not have enough information to discharge her statutory obligation. On that view, there was not so much a decision to refuse the application as there was a failure on the part of the applicant to make an application in the first place.

6. For reasons best known to himself, the applicant decided to contest the purported decision by making an application to the Tribunal. I would have thought it was easier to simply complete the form like any other applicant for a passport, but that is not what the applicant did. I understand he did not seek an internal review of the purported decision; in any event, an internal review did not occur.

7. I do not think the officer’s action in returning the application form to the applicant amounts to a decision to reject the application. But even if it was a decision that was capable of review, s 50 of the Australian Passports Act 2005 (Cth) effectively requires the Minister (or the Minister’s delegate) to conduct an internal review of the decision to refuse an application for a passport before the Tribunal has jurisdiction to conduct its review. Because the purported decision in this case has not been reviewed by the Minister for Foreign Affairs (or her delegate), the Tribunal cannot review the decision.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

....................[Sgd]....................................................

Associate

Dated 21 January 2014

Date of hearing	16 January 2014
Applicant	In absentia
Solicitors for the Respondent	Alice McCormick, Minter Ellison Lawyers