Rupawan and Minister for Foreign Affairs

[2022] AATA 987

Rupawan and Minister for Foreign Affairs [2022] AATA 987 (3 May 2022)

Division:GENERAL DIVISION

File Number:          2021/6950

Re:Rozaidi Bin Rupawan

APPLICANT

AndMinister for Foreign Affairs

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:3 May 2022

Place:Melbourne

The Tribunal affirms the decision under review.

...[sgd].....................................................................

R Cameron, Senior Member

Catchwords

CERTIFICATE OF IDENTITY – not leaving Australia - does not satisfy criteria – decision affirmed

Legislation
Australian Passports Act 2005 (Cth)

Australian Passports Determination 2015 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

3 May 2022

INTRODUCTION

1. The applicant seeks a review of a decision made on 2 September 2021 by a delegate of the respondent Minister, confirming a decision to refuse the applicant’s application to be issued with a Certificate of Identity[1] (“the reviewable decision”).

   [1] The delegate's decision is document T13 of the T documents.

   BACKGROUND AND RELEVANT FACTS

2. The applicant is a Malaysian citizen who currently holds a bridging visa, granted to him on 12 October 2020. He was the holder of a Malaysian passport which has expired.

3. An application for a protection visa was made by the applicant, which was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. He has sought review of this decision in the Migration and Refugee Division of this Tribunal, which has not as yet been heard and determined.

4. On 17 July 2021, the applicant applied for a Certificate of Identity (“COI”) under the Australian Passports Act 2005 (Cth) (“the Act”). He explained in his application form that the reason he was seeking a COI was to enable him to apply for Medicare and to obtain what is known as a “MADEC card”. MADEC is apparently a training organisation that issues a card which is recognised in many employer circles as proof of the holder’s entitlement to work or their permission to work in Australia. Having a MADEC card would facilitate the applicant obtaining employment. Usually, it appears that an application for participation in Medicare and to obtain a MADEC card requires someone in the position of the applicant to produce a current passport.[2] As his passport has expired this option is not open to him.

   [2] There was amongst the T documents a letter dated 20 November 2020 from Medicare addressed to the applicant. That letter provided that the applicant was required to produce personal details page from the current passport that he held. It also stated that if the recipient did not have a current passport he should contact the Department of Home Affairs and gain a current "Titre de Voyage". It appears that this letter prompted the application for the COI made by the applicant.

5. It was explored at the hearing of this application whether the applicant could apply for a new Malaysian passport. The applicant explained that he had attended the Consulate General of Malaysia in Melbourne and applied for a new Malaysian passport. The Consulate advised him that it would not issue a new passport in Australia to the applicant as he held a bridging visa and was awaiting a decision on his application for a Protection Visa 866.[3] It also advised the applicant that he could renew his passport if he returned to Malaysia and applied for one. Why this position was adopted by the Malaysian Consulate was not explained to the applicant or, for that matter, this Tribunal.

   [3] Apart from the advice given orally to the applicant when he attended the Consulate General of Malaysia there was in evidence before the Tribunal an email from the Immigration Section, of the Consulate General of Malaysia to this effect. It is at page 14 of the T documents.

6. It should be noted that the applicant stated that he has no intention of returning to Malaysia and that he wishes to stay in Australia for a long time. It should also be observed that there was no evidence before the Tribunal showing that the applicant had any intention to leave Australia. Such evidence might include airline tickets that have been booked or an itinerary of a proposed journey to Malaysia. The applicant readily conceded that he had no such plans.

7. A delegate of the Minister on 29 July 2021 rejected the applicant’s application for a COI on the grounds that the delegate was not satisfied that the applicant was about to leave Australia. The applicant sought an internal review of the delegate’s decision.

8. The internal review was determined on 2 September 2021 and affirmed the original decision not to issue a COI to the applicant. Once again, the delegate was not satisfied that the applicant was about to leave Australia. It is from this decision that the applicant sought review in this Tribunal.

   THE LEGISLATIVE REGIME

9. Section 9 of the Act prescribes that the Minister may issue a person with a document of a kind specified in a Minister’s determination, being a document issued for the purposes of travel. The applicable determination is the Australian Passports Determination 2015 (Cth) (“the Determination”).

10. Section 7(1) of the Determination provides that the Minister may issue a COI to a person who:

    (a) is not an Australian citizen; and

    (b) is about to leave Australia and

    (c) is:

    (i) stateless; or

    (ii) unable to obtain a valid travel document from the country of which the person claims to be a national.

    CONSIDERATION

11. Unfortunately for the applicant the Tribunal is satisfied from the admissions that he has made, that he is not about to leave Australia and therefore does not satisfy the requirements of section 7(1)(b) of the Determination.

12. Apart from the admissions that the applicant has made that he wants to stay in Australia for a long time and that he does not want to return to Malaysia, there is no evidence of any other kind demonstrating that the applicant is about to leave, such as airline tickets and an itinerary.

13. For these reasons a COI cannot be issued to the applicant.

14. It is unfortunate that the applicant is unable to obtain a new passport from the Malaysian Consulate in Melbourne. However, this fact is irrelevant to the application before the Tribunal on review.

    DECISION

15. By reason of the foregoing matters, the reviewable decision is affirmed.

16.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

....[sgd].......................................................

Associate

Dated: 3 May 2022

Date of hearing:

28 April 2022

Applicant:

Self-represented

Advocate for the Respondent:

Solicitor for the Respondent:

S Cummings

Sparke Helmore