Oates v Minister for Foreign Affairs

Case [1999] FCA 1825

FEDERAL COURT OF AUSTRALIA

Oates v Minister for Foreign Affairs [1999] FCA 1825

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal decision affirming decision to cancel appellant’s passport – whether errors of law in Tribunal’s decision – whether misconstrued s 8 of the Passports Act 1938 (Cth) – whether exercised power for ulterior or improper purposes – whether Tribunal’s decision involved a fresh exercise of discretion as required by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – where appellant is charged with serious criminal offences and the Australian government as seeking his extradition from the Republic of Poland

International Convenant on Civil and Political Rights 1966 Art 12

Administrative Appeals Tribunal Act 1975 (Cth) ss 43 & 44
Passports Act 1938 (Cth) ss 4A, 7A, 7B, 7C, 7D, 7E & 8

Robtelmes v Brenan (1906) 4 CLR 395 discussed
R v Secretary of States for Home Affairs; Ex parte Duke of Chateau Thierry [1917] 1 KB 922 cited
R v Superintendent of Chiswick Police Station; Ex parte Sacksteder [1918] 1 KB 578 cited
Ferrando v Pearce (1918) 25 CLR 241 cited
Znaty v Minister of State for Immigration (1972) 126 CLR 1 cited
Barton v Commonwealth (1974) 131 CLR 477 cited
Salemi v MacKellar (No 2) (1977) 137 CLR 396 cited
Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 cited
The Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 discussed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

O’Higgins J “Disguised Extradition: The Soblen Case” (1964) 27 Mod L Rev 521
de Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed 1995
I A Shearer Extradition and Human Rights (1994) 68 ALJ 451

ANTONY GORDON OATES v
C LAMB AS THE DELEGATE OF THE MINISTER FOR FOREIGN AFFAIRS

NG 718 OF 1998

MATHEWS, TAMBERLIN AND MANSFIELD JJ
SYDNEY
23 DECEMBER 1999


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 718 OF 1998

BETWEEN:

ANTONY GORDON OATES
APPELLANT

AND:

C LAMB AS DELEGATE OF THE MINISTER
FOR FOREIGN AFFAIRS
RESPONDENT

JUDGE:

MATHEWS, TAMBERLIN & MANSFIELD JJ

DATE OF ORDER:

23 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 718 OF 1998

BETWEEN:

ANTONY GORDON OATES
APPELLANT

AND:

C LAMB AS DELEGATE OF THE MINISTER
FOR FOREIGN AFFAIRS
RESPONDENT

JUDGE:

MATHEWS, TAMBERLIN & MANSFIELD JJ

DATE:

23 DECEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. Mr Oates (“the appellant”) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the AAT”) constituted by Deputy President B J McMahon. That decision, delivered on 18 June 1999, affirmed a decision to cancel the appellant’s passport under s 8…

Continue reading Oates v Minister for Foreign Affairs

Sign in free to access the full text

Details
AGLC
Oates v Minister for Foreign Affairs [1999] FCA 1825
Case
[1999] FCA 1825
Decision Date

CaseChat Overview and Summary

In the matter of Oates v Minister for Foreign Affairs, the appellant sought to appeal a decision of the Administrative Appeals Tribunal (AAT) that affirmed the cancellation of his passport under section 8 of the Passports Act 1938 (Cth). The appellant, Mr Oates, contended that the AAT erred in its interpretation of section 8 of the Act, failed to consider that the Minister exercised his power for improper purposes, and misunderstood its own function in reviewing the decision. The primary legal issues centred on whether the AAT misconstrued section 8 of the Act, whether the Minister exercised the power for ulterior or improper purposes, and whether the AAT exercised its powers correctly under the Administrative Appeals Tribunal Act 1975 (Cth).

The court considered whether the AAT correctly interpreted section 8 of the Passports Act and whether the cancellation was for an improper purpose, such as facilitating extradition or avoiding public criticism. The court held that the onus of proving an improper purpose lay with the appellant and was difficult to discharge. The court found no error in the AAT's reasoning that the cancellation of the passport could have practical consequences, such as inducing the return of a fugitive to Australia. The AAT's consideration of the likely consequences of the cancellation was deemed appropriate and not indicative of improper motives.

The court dismissed the appeal, affirming the AAT's decision that the Minister's exercise of power was not for an improper purpose. The court held that the AAT correctly interpreted its function and did not err in its application of the law. The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

Mr Oates (“the appellant”) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the AAT”) constituted by Deputy President B J McMahon. That decision, delivered on 18 June 1999, affirmed a decision to cancel the appellant’s passport under s 8 of the Passports Act 1938 (Cth) (“the Act”). The appellant submits that the reasons for decision of the AAT disclose three errors of law. They are said to be:(a) The AAT misconstrued s 8 of the Act.(b)The AAT erred in finding that the Minister did not exercise his power for an ulterior or improper purpose, namely:(i)to facilitate the extradition of the appellant from Poland; and(ii)in order to avoid public criticism if the passport were not cancelled.(c)The AAT misunderstood its function as being “to justify” the cancellation decision rather than to exercise its powers in accordance with the AAT Act.Factual background The appellant is a former director of Bond Corporation Holdings Ltd (“Bond”) which acquired a company known as Bell Group Limited which in turn controlled a company known as Bell Resources Limited (“Bell Resources”). After the takeover the appellant resigned as director of Bond and became a director of both Bell companies. During 1988-1989 assets were transferred from Bell Resources to various other companies within the Bell group. In 1995 charges were laid against Alan Bond, Peter Mitchell and the appellant in relation to those transactions. Messrs Bond and Mitchell pleaded guilty to those charges and they were sentenced respectively to seven years and four years imprisonment. The charges laid against the appellant are for alleged offences under the Criminal Code of Western Australia and the Companies (Western Australia) Code. In substance it is alleged that the appellant conspired with others to defraud Bell Resources, its subsidiaries and shareholders contrary to s 41 of the Criminal Code; and made improper use of his position as an officer of Bell Resources, and failed to act honestly in the exercise of his powers and in the discharge of his duties as a director of Bell Resources contrary to s 229(4) of the Companies Code. It is common ground that at the time of the cancellation of the appellant’s passport on 24 April 1997 there was in force a warrant issued in Australia for his arrest within the meaning of s 7B(a) of the Act. At all material times before and after the charges were laid the appellant has been living in the Republic of Poland. On 2 February 1995 the appellant was informed that warrants had been issued against him and he was invited to return to Australia voluntarily. He did not do so. Negotiations to this end were commenced in February 1995 and continued up to 22 May 1998 when the Attorney-General advised the appellant’s solicitors that no further negotiations would be entertained concerning the appellant’s voluntary return to Australia. On 7 July 1996 the Attorney-General signed a request for the extradition of the appellant to Australia from Poland. This was sent to the Polish Ministry of Foreign Affairs on 8 August 1996 and on 22 October the appellant was arrested by Polish authorities and confined to prison in Gdansk.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MATHEWS, TAMBERLIN AND MANSFIELD JJ
Although the Court may in an appropriate case set aside a decision to cancel a passport, where that power is shown to have been exercised for an improper or extraneous purpose, the onus of proving the existence of such a purpose is not one which can lightly be discharged. The observations of Stephen J in Salemi are apposite in this respect where his Honour said (at 446-7) in relation to the Ministerial power of deportation:“He need give no reasons for his decision and unless it can be made to appear that he must have arrived at that decision for reasons extraneous to the exercise of the power of deportation his decision will not be examinable in the courts.” In addition, when considering an application to set aside a Ministerial decision, it is important to bear in mind the remarks of Donovan LJ made in the context of deportation in R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 at 307:“In my opinion, the fact that the present applicant will serve an existing sentence of imprisonment, if he is sent to the Unites States, does not mean that an act which otherwise would be deportation and nothing else becomes instead not deportation but the surrender of a fugitive criminal. To hold otherwise would be to give assent to the proposition that the quality of an act is determined by its consequence, which is obviously untrue; otherwise cause would become the same thing as effect.” See also Lord Denning M R at 301-302 and Pearson LJ at 312 in Soblen; and de Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed. 1995 at par 6-059 ff. Counsel for the appellant submitted that he could not be considered to be a “fugitive”. We do not accept this. He has been charged with serious offences; he is outside Australia, and despite negotiations over several years for his return he refuses to return voluntarily. In dealing with the submission in relation to “disguised extradition” the AAT set out in its reasons a number of considerations which led it to the conclusion that cancellation of the passport should be affirmed. The first matter referred to by the Tribunal was that there was no evidence that the cancellation of the passport would in fact effect deportation of the appellant from Poland. Counsel for the appellant submits that this submission is not to the point because it is the “purpose” which is significant and not whether that purpose is in fact achieved. While there is some force in this observation, what in substance the Attorney-General is saying is that certain practical consequences will flow from depriving an Australian citizen of a passport while outside Australia. There is nothing in our view inappropriate about engaging in consideration of likely consequences. It is not improper, in our view, to take into account the fact that cancellation may induce, as a practical matter, the return of a fugitive to Australia. To adapt the words of Donovan LJ, in Soblen, the fact that a person may in fact be induced to return to Australia if his passport is cancelled, does not make the cancellation of his passport part of the extradition process.

Ratio Decidendi

Legal Principle Established

Established by: MATHEWS, TAMBERLIN AND MANSFIELD JJ

Full text does not contain this section.