Murphy and Minister for Foreign Affairs and Trade

[2007] AATA 1272

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1272

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600544

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LISA MURPHY

Applicant

And MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date1 May 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision of the respondent of 4 July 2006 to cancel the applicant’s passport L7928345.  

...............Signed..........

Deputy President

CATCHWORDS

PASSPORTS – decision to cancel passport and to refuse to issue – condition of parole requiring consent of the Attorney-General in order to leave Australia – applicant prevented from travelling internationally – Minister has unfettered power to cancel under s22(1) – applicant’s circumstances do not warrant not cancelling passport – decision of respondent affirmed

WORDS AND PHRASES – “prevented from travelling internationally”

Australian Passports Act 2005 ss 6, 7, 12(1),(2),(3), 13, 14, 16, 18, 19, 22(d), 48(b)

Australian Passports Determination 2005 cl 3.1, 8.2(j)

Groth v Secretary, Department of Social Security (1996) 40 ALD 541

REASONS FOR DECISION

1 May 2007	Deputy President P E Hack SC
Introduction

1.On 4 July 2006 the respondent, the Minister for Foreign Affairs and Trade, determined to cancel the passport that had been issued to the applicant, Ms Lisa Murphy, and to refuse to issue her with a passport pending the expiry of the parole conditions that the applicant was then subject to.

2.The applicant seeks a review of this decision.

Background

3.On 29 April 2005 the applicant was sentenced in the District Court at Southport to terms of imprisonment in relation to offences against the criminal law of the Commonwealth and of Queensland. The transcript of the sentencing remarks by Newton D.C.J. indicates that the applicant received Commonwealth benefits, I assume social security benefits, to which she was not entitled. The amount involved was $81,592. She obtained these benefits by adopting “multiple identities”. In relation to the Commonwealth offences the applicant was sentenced to an effective term of three years and six months and the sentencing judge fixed a non-parole period of 15 months. That non-parole period expired on 28 July 2006.

4.Upon her release on parole the applicant became subject to a parole order dated 19 June 2006 and made pursuant to s 19AL(1) of the Crimes Act 1914 (Cth.) by Mr C.M. Dennis as delegate of the Attorney-General. The applicant will remain subject to the parole order until 28 October 2008. The parole order contained a number of conditions including, relevantly, one in these terms:

“You must not leave Australia without first obtaining the written permission of the Attorney-General or a Delegate and if permission to leave Australia is granted subject to any conditions, you must comply with those conditions.”

5.On the same day Mr Dennis made a request to the respondent for the cancellation of the applicant’s passport.  That decision was made by the respondent on 4 July 2006 and the applicant was informed of the decision by letter dated 14 July 2006.

6.These proceedings were commenced on 7 August 2006.

The Legislation

7.The issue and administration of passports is dealt with by the Australian Passports Act 2005 (Cth) (“the Act”). By virtue of s 7 of the Act an Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister. A passport comes within the definition of “Australian travel document” in s 6 of the Act.

8.By virtue of s 22 of the Act the respondent may cancel an Australian travel document that has been issued to a person in a variety of circumstances, including where:

“(d)a competent authority makes a refusal/cancellation request in relation to the person”.

9.The expression “refusal/cancellation request” is defined in s 18 of the Act as being a request made to the respondent under, inter alia, s 12(1) of the Act to do either or both of cancelling, or refusing to issue, an Australian passport. By a combination of s 12(3) of the Act and Clause 3.1 of the Australian Passports Determination 2005 the expression “competent authority” in this context encompasses the Attorney-General, the Secretary of the Attorney-General’s Department and SES employees in that Department.

10.The circumstances under which such a request may be made are specified in s 12(1)(b) of the Act in terms that permit a request to be made if a competent authority believes, on reasonable grounds, that:

“(b)a person (including a person who is in prison) is prevented from travelling internationally by force of:

…

(ii)a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of the Commonwealth, a State or Territory;

…”

By force of s 12(2), where a competent authority makes a request under s 12(1) of the Act “the Minister must not issue an Australian passport to the person”. A decision by the respondent to cancel an Australian passport is a decision that may be reviewed in this Tribunal but a decision made because of s 12(2) of the Act to refuse to issue a passport is not reviewable here.

11.Finally, the expression “prevented from travelling internationally” is defined in s 12(3) of the Act as including:

“(a)     required to remain in Australia; and

(b)      required to surrender an Australian passport; and

(c)       not permitted to apply for an Australian passport; and

(d)      not permitted to obtain an Australian passport.”

Application of the Legislation

12.I have evidence that satisfies me that Mr Dennis, at the time of the making of the request, was occupying an SES position within the Attorney-General’s Department. He was, in fact, occupying the position of Mr Craig Harris, the Assistant Secretary of the National Law Enforcement Policy Branch within that Department during a temporary absence of Mr Harris. I am accordingly satisfied that the request made on 19 June 2006 was made by a “competent authority” as defined in the Act.

13.The next issue is whether the applicant was prevented from travelling internationally by force of a condition of her parole. The applicant is not free to travel internationally. She may do so only with the written consent of the Attorney-General first had and obtained. In other settings it might be said that her right to travel is subject to a condition precedent but it is sufficient for present purposes to note that, by virtue of the condition of her parole extracted above, the applicant is required to remain in Australia. That condition may be overcome by obtaining consent but without that consent she may not travel internationally.

14.Thus I conclude that the matters in s 12(1) of the Act are satisfied. That being so it remains to consider the operation of s 22 of the Act.

The Operation of Section 22

15.It may be helpful, in order to consider the operation of the section, to set out s 22 of the Act in its entirety. It is in these terms:

“(1)The Minister may cancel an Australian travel document.

(2)Without limiting subsection(1), the Minister may cancel an Australian travel document that has been issued to a person if:

(a)     the document is still valid at the time when the person applies for, or is issued with, another Australian travel document; or

(b)     the document has been lost or stolen; or

(c)     the person dies; or

(d)     a competent authority makes a refusal/cancellation request in relation to the person; or

(e)     if the document is an Australian passport – the Minister becomes aware of a circumstance that would have required or permitted the Minister to refuse to issue an Australian passport to the person because of section 8, 11 or 17, had the Minister been aware of the circumstance immediately before the document was issued; or

(f)     if the document is a travel-related document - the Minister becomes aware of a circumstance that would have required the Minister to refuse to issue a travel-related document to the person:

(i)    because of section 10; or

(ii)because a Minister’s determination made for the purposes of subsection 9(1) in relation to that kind of travel-related document no longer applies; or

(g)     circumstances specified in a Minister’s determination exist.”          

16.The respondent’s case accepted that the word “may” when used in s 22 of the Act was used in a permissive sense not an obligatory sense; that is, it conferred on the Minister a discretionary power to cancel rather than empowering and obliging him or her to do so. I do not find it necessary to determine whether the concession was rightly made.

17.But in considering the manner in which s 22 operates it is significant, in my view, that sub-section (1) confers an unfettered power to cancel and sub-section (2) gives, by way of example, some circumstances where the power may be exercised. Viewed in that way I consider that, where one of the several conditions specified in sub-section (2) are made out, the proper exercise of the discretion would ordinarily require it to be exercised to cancel. That seems to me to flow from the nature of the examples given. Thus it seems difficult to see why, in any of the circumstances postulated in paragraphs (a), (b) or (c), there would be any reason not to cancel the travel document and thus no reason why the discretion to cancel should not be exercised.

18.That view is reinforced when regard is had to the circumstances under which a refusal/cancellation request may be made by a competent authority. A request may be made under s 12 in circumstances that may be regarded as being in aid of the criminal justice system. That is, where a request is made in relation to a person subject to an arrest warrant or a person prevented by a court order, bail, parole or similar from travelling overseas. Section 13 deals with similar situations in aid of the enforcement of international criminal law. Finally s 14 permits a request to be made in circumstances where there is a reasonable suspicion that a person issued with a passport would be likely to engage in harmful conduct.  In circumstances where passport holders are not permitted, or ought not, for policy reasons, be permitted, to travel internationally the ordinary rationale for holding a passport is absent.

19.There is a further reason, drawn from the structure of the Act, that supports the conclusion that ordinarily the discretion to cancel should be exercised if the pre-condition is made out and that is the presence of s 12(2) of the Act. That sub-section has the effect that where a competent authority makes a refusal/cancellation request the Minister must not issue an Australian passport to the person. Contrary to the view taken in this case the sub-section seems not to require the Minister to actually make a decision to refuse to issue a passport, rather it operates of its own force to deny the Minister power to issue where a request is made.

20.It would produce a curious result in a case such as the present for the Minister to determine not to exercise a discretion to cancel where, by virtue of the request and by operation of s 12(2), a new passport could not be issued to the person subject of the request until it had been withdrawn under s 19 of the Act.

21.These matters lead me to the conclusion that once one of the pre-conditions in s 22(2) is made out then, ordinarily the Minister (or the Tribunal on review) would regard that as sufficient warrant to exercise the discretion to cancel a passport. Something out of the ordinary or unusual would need to be shown to persuade the decision-maker not to exercise the discretion to cancel. The nature of those circumstances would need to be considered having regard to the basis of the request for cancellation. By that I mean that in considering the exercise of the discretion the Minister (or the Tribunal) would need to consider any damage that might be caused were a passport not to be cancelled. Thus, one might more readily determine not to exercise the cancellation discretion in the case of a request under s 16 of the Act (where the passport holder owes money to the Commonwealth for overseas assistance) than in the case of a request under s 14 where there is a potential for harmful conduct.

22.As a result it is my view that where, as in this case, a competent authority has made a refusal/cancellation decision I should examine the applicant’s particular circumstances to see whether those circumstances are such as would warrant not cancelling her passport.

The Applicant’s Circumstances

23.The applicant presented her case with admirable clarity. Her case was set out in a letter to the Tribunal (Exhibit 2), amplified by the arguments that she advanced orally at the hearing. The essence of the case, as she propounded it, was as follows:

·she will incur additional and unnecessary cost and inconvenience in having to re-apply for a new passport at the end of her parole period;

·having her passport cancelled is humiliating and unjust and it is unnecessary because adequate safeguards are in place to ensure that she complies with her parole conditions;

·cancellation of the passport deprives her of a readily accepted form of identification.

24.In my view none of these matters, or the applicant’s circumstances generally, are sufficient to warrant not cancelling the passport.

25.In considering all of the issues raised by the applicant it is to be borne in mind that she is presently on parole having committed serious crimes that warranted a long gaol sentence. The severity of that sentence has been abated by her release on parole, but that release is subject to a number of restrictions that curtail the rights and freedoms that citizens of this country enjoy.

26.I accept that it will be inconvenient for the applicant to re-apply for a new passport and there may be additional costs incurred by the applicant as a consequence of the cancellation decision of the respondent. In that regard I note that fees to obtain travel documents may be waived under “special circumstances”[1]. It may be a matter for a subsequent decision-maker to determine whether fees ought be waived however I observe that the jurisprudence regarding the expression “special circumstances” in the Social Security Act 1991 (Cth) suggests that the expression, whilst not capable of being defined with any degree of precision, generally requires that there be circumstances that distinguish the particular case from others[2].

[1]        See Australian Passports Determination 2005, s 8.2(j).

[2]        See e.g. Groth v Secretary, Department of Social Security (1996) 40 ALD 541 at 545.

27.It is difficult to see how it could be said, objectively, that having a passport cancelled in the applicant’s circumstances is humiliating. The applicant is on parole, having served a sentence of imprisonment. The humiliation referred to is entirely of the applicant’s making and, it might be thought, insignificant when compared with the humiliation of gaol.

28.I note, however, that the applicant suggested that not all persons subject to similar parole conditions have their passports cancelled. The evidence of Mr Harris satisfies me that refusal/cancellation requests are routinely made in relation to persons subject to a condition of Commonwealth parole that prevents them from travelling overseas. Whether that is true of offenders on State parole was not within the knowledge of Mr Harris. It seems likely that the explanation for this apparent anomaly is that refusal/cancellation requests are not made by State parole authorities.  

29.Finally, I accept that passports are used routinely as a means of identification within Australia. But absent a suggestion that the applicant’s passport was her only means of identification I am unable to place any weight on this consideration. The matter is no more than a minor inconvenience that must be regarded as part and parcel of the restrictions that will fetter the applicant’s life during the term of her parole.

30.In the result the matters that the applicant relies upon are not such as lead me to conclude that the passport ought not be cancelled. I would affirm the respondent’s cancellation decision.

31.I add for completeness that whilst the respondent is recorded as having made a decision to refuse to issue a passport to the applicant that decision was otiose having regard to the terms of s 12(2) of the Act. But, in any event having regard to s 48(b) of the Act, that decision, if made, is not capable of being reviewed in this Tribunal.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................Signed..............................................
  Lynne Stalley, Personal Assistant

Date of Hearing  19 April 2007
Date of Decision  1 May 2007
The Applicant appeared in person  
Counsel for the Respondent         : Ms L. Walker
Solicitors for the Respondent       : Minter Ellison