Saad and Minister for Foreign Affairs
[2007] AATA 1675
•20 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1675
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2548
GENERAL ADMINISTRATIVE DIVISION ) Re ABDL hamed saad aka ABDEL-HAMID IDAAYEN Applicant
And
MINISTER FOR FOREIGN AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Date20 August 2007
PlaceSydney
Decision The reviewable decision of 24 November 2006 is affirmed.
..................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
PASSPORTS - Australian Passports Act 2005 – review of Minister’s decision – cancellation of passport and refusal to re-issue – request to Minister made by competent authority – definition of competent authority - suspicion on reasonable grounds -– applicant would be likely to engage in conduct that might constitute an indictable offence against the Act – grounds considered - decision affirmed.
Australian Passports Act 2005, ss 14, 18, 22, 48(b) and (c)
Australian Passports Determination 2005
Interpretation Act 1901 s 15AA
cases
Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244
King and Minister for Foreign Affairs and Trade [2006] AATA 636
Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 87 ALR 505
REASONS FOR DECISION
20 August 2007 Ms Robin Hunt, Senior Member
Summary
1. Mr Abdl Hamed Saad, the applicant, applied to the Tribunal for review of the respondent’s decision to cancel his Australian passport and to refuse the issue of a further passport to him. The respondent’s documents before me show that the applicant also is known as Abdel-Hamid Idaayen, Abdel-Hamid Fadil Idaayen and Saad Abraham. Further, Mr Saad has, since 21 October 1998, been issued with passports or travel documents in these names.
2. The Minister for Foreign Affairs made his decision on or about 24 November 2006. Mr Saad and his wife, Ms Bedour Idaayen, made similar applications to the Tribunal for review of the Minister’s decisions not to issue them with passports. The Australian Passport Office notified Mr Saad and his wife of the Minister’s decisions by letters dated 30 November 2006. I heard both review applications together. For my decision in Ms Idaayen’s case, see tribunal case number 2006/2522.
3. After hearing Mr Saad and his wife and considering all the evidence before me, I have decided to affirm the Minister’s decision. This means I find that, at the time of the Minister’s cancellation decision and decision not to issue a new passport, Mr Saad’s passport should have been cancelled and that he should have been refused further passport.
The Application Before The Tribunal
4. Mr Saad applied for review of the decision of the Minister for Foreign Affairs, which was made on November 2006, to cancel his passport and not issue a replacement. The Minister has power to make a cancellation decision under section 22(1) and (2) of the Australian Passports Act 2005 (the Act) if a competent authority makes an appropriate request. The Minister has power to refuse to issue a further passport under section 14(2) of the Act if a competent authority makes an appropriate request. The refusal request involves the competent authority suspecting on reasonable grounds that the person would be likely to engage in certain conduct described in paragraphs (a) (i) to (v) of section 14(1). In Mr Saad’s case, the ‘competent authority’, who made the request to the Minister, set out that he suspected on reasonable grounds that Mr Saad would be likely to engage in conduct that might constitute an indictable offence against the Act. This ground is available under section 14(1)(iv) of the Act. The Minister’s decision is reviewable by this Tribunal in accordance with section 48(b) and (c) of the Act
Issue
5. At issue is whether I find the Minister made the correct or preferable decision in exercising the discretion available to him to cancel the applicant’s passport and not issue him with a new passport. This involves consideration of whether a competent authority suspected on reasonable grounds that, if a passport were issued to Mr Saad, he would be likely to engage in conduct that might constitute an indictable offence under the Act.
Background
6. The respondent is responsible under the Administrative Arrangements Order for the administration of the Australian Passports Act 2005 and regulations and other instruments made under the Act. The Department administers the Act on behalf of the respondent. The respondent’s records show that, on 21 November 2006, the Director of the Passport Fraud Section of the Australian Passport Office made a request to the respondent pursuant to section 14 of the Act, to cancel Mr Saad’s passport and to refuse to issue him with a further passport. The Minister cancelled Mr Saad’s passport and refused to issue a new passport to him on the same day as the Minister refused to issue Ms Idaayen with a passport.
Consideration of Evidence
7. Mr Saad and Ms Idaayen were unrepresented. They both appeared before the tribunal and gave oral evidence. The respondent furnished his records about the applications of Mr Saad and his wife as well as the evidence of officers who had involvement in the Department’s investigations and the request made to the Minister to cancel Mr Saad’s passport.
The refusal/cancellation request
8. The cancellation and refusal requests concerning Mr Saad were made to the Minister in the one document. The request document states that it is made by the Director of the Passport Fraud Section, and that there were reasonable grounds to suspect that Mr Saad and Ms Idaayen were likely to engage in conduct that might constitute an indictable offence under the Act if they were permitted to hold a passport. The Ministerial Submission setting out the details of the request is made by the Executive Director, Australian Passport Office.
9. Mr Ian William Russell appeared before me and gave evidence that he was the Director of the Passport Fraud Section of the Australian Passport Office. He had made an affidavit sworn on 2 July 2007, which sets out his office and that he is a competent authority pursuant to section 14(3)(ii) of the Act and paragraph 3.4(1)(c) of the Australian Passports Determination 2005. The Director also gave oral evidence about the reasons why he formed his suspicion that Ms Saad and his wife might engage in the conduct suspected. He confirmed the content of his affidavit and gave further evidence about some aspects of his affidavit evidence.
10. The Director stated that he received advice about possible fraud under the Act by Mr Saad and his wife. He said that Mr Jody Earl of the Australian Federal Police (AFP), who was seconded to the Passport Fraud Section of the Department of Foreign Affairs and Trade, sent a document to him containing information about Mr Saad and his family. The Director gave further evidence to the effect that he was aware a number of Australian passports were identified by Kuwaiti authorities as having been fraudulently altered or used for illegal entry to Kuwait. Two out of a list of 43 such passports belonged to children of Mr Saad and his wife.
11. Following checks, the Director said he also became aware that Mr Saad was convicted of making a false statement in a passport application. On or about 6 April 2006, the Director said he prepared a minute to the Executive Director of the Passports Office recommending that the Minister be requested not to issue further passports to the family. The Director subsequently prepared the Ministerial Submission containing the request which formed the basis for the Minister’s decision.
12. Mr John David Payne, of the Department of Foreign Affairs and Trade, made an affidavit dated 2 July 2007 and gave oral evidence to the tribunal. Mr Payne stated he was currently the Regional Investigations Manager within the Australian Passports Office and had held this position since 2002. Mr Payne said that the applicant and his family first came to the attention of the Passport Fraud Section late in 2003 because of information received from New Zealand authorities. Mr Payne went through a history of the various passports issued to Mr Saad and his family members recently. He noted that Mr Saad and his wife had reported several family passports as stolen, lost or damaged.
13. Mr Payne further set out in his affidavit that, in or about September 2003, passport L3296138, in one of the names used by the applicant, and passport L3846500 in the name of the applicant's son, Ahmed Idaayen, were intercepted at the Auckland Mail Centre, Auckland New Zealand. The affidavit went on to say the sender was 'Idaayen, PO Box 39, Auburn 2144.' The applicant's family address is listed on Departmental databases as Auburn Rd, Auburn, NSW. I note that the post box address and the record in the database show the same suburb and that Idaayen is one of the names by which the applicant is known.
14. As to the circumstances surrounding the damaged passports, Mr Payne set out that Mrs Idaayen claimed that her passport, M1600822, and those of her four children were put into the washing machine by her daughter. The respondent’s counsel informed the tribunal that the children of the applicants still hold passports although I note that Mr Payne wrote in his affidavit that the damaged passports had been destroyed.
15. My Payne said that, in his experience, water damage will often disguise evidence of tampering with passports. In his view, based on all the events set out in his affidavit, there were reasonable grounds to suspect that any future passports issued to the applicant were likely to be used in an indictable offence under the Act. I note that the annexures attached to Mr Payne’s affidavit contain further details and substantiation of the matters about which he testified
16. On the basis of the above evidence, I find that, on 21 November 2006, the Director of the Passport Fraud Section of the Australian Passport Office made the request to the respondent pursuant to section 14 of the Act. The refusal/cancellation request stated that the request was made on the basis that the Director believed there were reasonable grounds to suspect that the applicant was likely to engage in conduct that might constitute an indictable offence under the Act if he were permitted to hold a passport. In the same document, the Director requested the Minister refuse to issue a passport to Mr Saad’s wife, Bedour Idaayen. The same background information was furnished in respect of both former Australian passport holders.
17. The information furnished to the Minister with the request read:
Recommendations:
That you:
note the recommendations under section 14(1) of the Australian Passports Act 2005 in relation to Abdl Hamed Saad and Bedour Idaayen;
agree to cancel passport M1792737 issued to Abdl Hamed Saad and refuse issue of a replacement travel document to him under Australian Passports Act 2005 (sections 22(2)(d) and 14(2)); and
refuse to issue a passport to Bedour Idaayen (s14(2)).
Background:
An investigation by Passports Fraud Section has elicited evidence that at least two Australian passports issued to Abdl Hamed SAAD, his spouse Bedour IDAAYEN and their four minor children (born between 1998 and 2004) have been used illegally to enable entry and exit of unknown persons to Kuwait. Information provided by the Kuwaiti authorities through DIMA advised that two passports identified as those issued to Saad/Idaayen family members had been used illegally for that purpose prior to December 2004. Also, two passports issued to Saad/Idaayen family members were detected in New Zealand in 2002 in connection with a major passport forgery and bio-substitution operation in that country. Mr Saad and Ms Idaayen declined to speak with the AFP regarding those matters. The six family members have held a total of 16 Australian passports since February 2002 and four further applications have been lodged. A total of five passports have been reported by the family as lost or stolen within that period, A further four passports were reported as damaged by water within the same period. We suspect that at least some of the passports reported lost or stolen were provided to others in the knowledge that the documents were likely to be used illegally. We also suspect that the water damage to passports may have been deliberate to disguise evidence of their use by other persons. A summary of the passport history of each family member is attached as Annex A.
Mr Saad has been convicted of passport fraud. In May 2003, he presented a cancelled name change certificate in a passport application. The passport issued in that name was subsequently cancelled and Mr Saad was charged with making a false statement on a passport application. He was found guilty in August 2004, received a $500 fine and was placed on a 12-month good behaviour bond.
Section 14(2) of the Australian Passports Act 2005 (‘the Act’) provides for the Minister to refuse an Australian passport following a request from a competent authority that there are: a) reasonable grounds to suspect that if a passport were issued to a person, the person would be likely to engage in conduct that might constitute an indictable offence against the Act, and b) that the person should be refused an Australian passport in order to prevent the person engaging in the conduct. Section 22(2)(d) provides for the Minister to cancel a passport upon receipt of a competent authority request.
The circumstances of the reported losses of an damage to the passports issued to members of the Saad/Idaayen family are regarded as suspicious. As a competent authority under the Act, the Direction PFS suspects on reasonable grounds that the passport held by Abdl Hamed SAAD, and any future passports issued to him or to his spouse, Bedour IDAAYEN, are likely to be used in ways that might constitute an indictable offence under the Act, in particular, providing a travel document to another person and being reckless as to whether the document will be used by the other person in connection with travel or identification (s32(3) of the Act), selling an Australian travel document (s33), damaging an Australian travel document (s34), or bringing, taking or sending an Australian travel document across international borders being a document not issued to the person (s37).
In regard to the current passport applications for the three young children of the family (Fatima, Aisha and Noor), our legal advice is that it would be difficult for a competent authority to suspect on reasonable grounds that a child under the age of 10 years would be likely to engage in conduct that might constitute an indictable offence under the Act. This is because the Criminal Code provides that a child under the age of 10 years is not criminally responsible for an offence. We therefore see no immediate alternative other than to issue passports to the three children. We propose to consider possible legislative amendments to the Act to address the gap where a passport issued to a young child might be used by a person having parental authority to engage in conduct that might constitute an indictable offence under the Act.
Annex A
Travel documents used to Saad/Idaayen family reported lost, stolen or damaged
Abdl Hamed Saad L3334212 (lost 13/5/2003) detected in mail by New Zealand authorities
* Bedour Idaayen M1600822 (damaged 13/7/2005)
Ahmed Idaayen L3846500 (stolen 4/9/2003) detected in mail by New Zealand authorities
* Fatima Idaayen L4364753 (stolen 16/8/2003) altered ppt used to enter/exit Kuwait
L3823831 (stolen 8/9/2003)
L4600793 (damaged 13/7/2005)
*Aisha Idaayen L4366181 (stolen 4/9/2003) altered ppt used to enter/exit Kuwait
L4599926 (damaged 13/7/2005)
*Noor Idaayen M2176141 (damaged 13/7/2005)
* Applications for replacement passports have been lodged.
18. As further evidence, the respondent tendered a bundle of documents produced to the Tribunal by the Australian Federal Police (AFP). These documents included copies of various travel documents in the name or names of the applicant as well as his wife and children and various case notes and other materials about the applicant and investigations undertaken by the AFP about the applicant and his family. Material about these investigations included details of the interception of the applicant’s passport and that of his son, Ahmed Idaayen, in New Zealand in 2003, and of the applicant’s conviction in NSW in 2004 of the criminal offence of making a false statement on a passport application.
Applicant’s evidence and submissions
19. Mr Saad and his wife both gave oral evidence before me. Mr Saad told the Tribunal that his wife had nothing to do with any of the shortcomings that had arisen over the passport matters concerning his family. He said that the fault was all his. He claimed that he was a victim of circumstance when his and his son’s passports were intercepted in New Zealand.
20. Mr Saad explained that he had migrated to Australia because of the situation in Iraq and that he was a refugee. The applicant’s further evidence was that, since he arrived in Australia, he had lived at various locations in NSW, Victoria and Queensland. He initially had worked on farms and currently was working as a car washer. Mr Saad said this was his own business and he offered a mobile service.
21. Mr Saad and his wife were furnished with copies of the Ministerial submission which was the basis for the cancellation and refusal decisions and copies of the affidavit of Mr Payne and other material before the tribunal. Mr Saad agreed he had used in the names set out in Mr Payne’s affidavit. He did not claim that any information in the affidavit of Mr Payne or contained in the recommendation to the Minister was incorrect except that he denied he and his wife declined to be interviewed by the AFP. Mr Saad gave evidence that he had been contacted by the AFP and had sought legal advice about the matter. He conceded that he did not participate in an interview at the offices of the AFP but said he had taken part in an interview at the passports office and that a police officer had been present.
22. The applicant further said that the offence of making a false statement relating to a passport application arose because of one letter missing in the name used and that he got the passport. Nevertheless, he conceded he had pleaded guilty to the offence and was convicted. This was the only matter about which he had spoken to police. He agreed he did not speak to police about the location by authorities of the passports belonging to him and his son in New Zealand but said he did not refuse to do so.
23. Mr Saad also responded to questions asked about certain named persons whom he agreed he had asked to be guarantors or identifiers on his or the family’s passport applications. He gave evidence that he was not aware that these persons had been investigated for passport fraud.
24. As I have noted in my reasons for decision about Ms Idaayen’s application, she gave evidence about the damaged passports of herself and the children. She said that one of the children had put these passports into the washing machine and that was how they came to be damaged by water. Mr Saad gave evidence that, if he received a passport, he planned to visit his mother in London.
Analysis and Findings
25. Section 14 of the Act requires a competent authority to form the relevant suspicion that the person seeking a passport “would be likely to engage in conduct” that is set out in the following paragraphs. In the present case, the conduct suspected was that the applicant would engage in conduct that might constitute an indictable offence under the Act if he were issued a passport. Such conduct is specified under paragraph (iv) of section 14(1) of the Act.
Competent authority
26. Mr Ian Russell, Director of the Passport Fraud Section of the Australian Passport Office made the request to the Minister, on 21 November 2006, that that the Minister should cancel the applicant’s passport and not issue a new passport as he there were reasonable grounds to suspect the applicant would be likely to engage in that might constitute an indictable offence under the Act.
27. Section 14 of the Act provides, in part:
(1) If a competent authority suspects on reasonable grounds that:
(a)if an Australian passport were issued to a person, the person would be likely to engage in conduct that:
…
(iv)might constitute an indictable offence against this Act;… and
…
(b)the person should be refused an Australian passport in order to prevent the person from engaging in the conduct …
…
the competent authority may make a refusal/cancellation request in relation to the person.
(3) In this section:
competent authority, in relation to a circumstance mentioned in subsection (1), that relates to Australia means:
(ii)a person specified in a Minister's determination as a competent authority in relation to the circumstance…
28. The Australian Passports Determination 2005 (Determination) states at paragraph 3.4:
Competent Authorities – potential for harmful conduct
(1)For subparagraph (a) (ii) of the definition of competent authority in subsection 14(3) of the Australian Passports Act, the following persons are specified in relation to conduct of the kind mentioned in subparagraph 14(1)(a)(iv) of the Australian Passports Act:
(c) APS employees holding, or performing the duties of, a position in the Department of Foreign Affairs and Trade classified at Executive Level 2, whose duties include the performance of functions under the Australian Passports Act....
29. Section 18 of the Act provides that a 'refusal/cancellation request for the purposes of the Act:
(1)is a request made to the Minister under subsection 12(1), 13(1), 14(1) or 16(1) by a competent authority, being a request that the Minister do either or both of the following:
(a) refuse to issue an Australian passport to a person;
30. On the basis of Mr Russell’s unchallenged evidence, I accept and find that Mr Russell is a competent authority.
The meaning of ‘likely’
31. The Act and the Explanatory Memorandum (EM) make it plain that the competent authority need not be satisfied that the subject of a refusal request is actually engaging in conduct that constitutes an indictable offence under the Act. The competent authority must suspect merely that the person is likely to engage in such conduct. The meaning of “likely” in this context is explained in the EM to the Australian Passports Act 2005. Paragraph 50 of the EM explains that the phrase 'likely to engage' is based on section 7E of the 1938 Act, and 'ensures that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct'.
32. The courts have considered the meaning of ‘likely’ and the standards that should be applied to make a finding that something is likely. See, for example, Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; Shi v Migration Agents Registration Authority [2007] FCAFC 59; and the approach taken by the tribunal in Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244. I note also that in King and Minister for Foreign Affairs and Trade [2006] AATA 636, Senior Member Ettinger applied a similar test to that described by Jenkinson J in the case of Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711 when considering a similar phrase. Justice Jenkinson thought reasonable grounds to suspect a person may have done something “should be construed as to exclude a possibility which has a very low probability, of a kind sometimes described as remote or fanciful or merely theoretical”.
33. However, in view of the body of information accumulated about the applicant and the history of his family’s passports I find that, on balance, I am satisfied that there are reasonable grounds to suspect that the applicant may engage in the conduct involved in the request to the Minister. The evidence before me is more than sufficient by any standard, to support the formation of a reasonable suspicion that both the applicant is likely to engage in conduct that constitutes an indictable offence under the Act. I have set out my further findings in regard to the formation of the competent authority’s suspicion below.
Formation of suspicion by competent authority
34. A summary of matters relevant to the formation of a suspicion by a competent authority is set out by the respondent in the facts and contentions. I refer to the following history of events which have enabled me to reach the above conclusion:
(i)the applicant and his family's extensive history of lost, damaged or stolen passports within a short period of time;
(ii)the interception by New Zealand authorities of the applicant's passport and his son's passport in New Zealand;
(iii)the alteration and use by unknown persons of two of his children's passports to enter or exit Kuwait;
(iv)the name changes registered by the applicant and the subsequent applications for passports made by the applicant soon after these changes; and
(v)his conviction for making a false statement on one of his passport applications,
35. In addition, as to reasonable grounds for the competent authority to suspect that, if a passport were issued to the applicant, the applicant was likely to engage in conduct that might constitute an indictable offence under the Act, I note the following provisions of the Act drawn to my attention, namely:
(a)providing a travel document to another person and being reckless as to whether the document will be used by the other person in connection with travel or identification (s 32(3));
(b)selling an Australian travel document (s 33);
(c)damaging an Australian travel document (s 34);
(d)bringing, taking or sending an Australian travel document across international borders being a document not issued to the person (s 37).
36. Taking all these matters into account and on the basis of the evidence before me, I am satisfied, on balance, that there were in existence at the time of decision reasonable grounds to suspect that, if a passport were issued to the applicant, the applicant was likely to engage in conduct that might constitute an indictable offence under the Act.
Did the Minister Make the Correct or Preferable Decision?
37. I must make a decision based on the likelihood of Mr Saad’s conduct should he have been issued a passport at the time of the Minster’s decision. See Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344-5; 87 ALR 505 per Davies J. In view of the evidence furnished by the respondent and the supporting statements of Mr Payne and Mr Russell, I am satisfied that the Minister made the correct or preferable decision in Mr Saad’s case. I am satisfied that the Minister's decision to cancel and not to issue another passport to the applicant, was entirely appropriate on the evidence available at 26 November 2006.
38. I note that should Mr Saad have a need to travel overseas, he may make an application to the Minister for a travel document that would enable her to travel. Travel documents may be issued in emergencies or on humanitarian grounds but the applicant’s wish to travel to visit his mother does not meet that criterion and he has not argued that she should be considered on these grounds. It follows that I am satisfied that the reviewable decision should be affirmed.
39. For the reasons set out above, I affirm the decision of the Minister to cancel Mr Saad’s passport and to refuse any renewal.
decision
40. The reviewable decision is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: T. Collis
AssociateDate/s of Hearing 16 July 2007
Date of Decision 20 August 2007
Solicitor for the Applicant Self-Represented
Counsel for the Respondent Mr Nicholas ChenSolicitor for the Respondent Ms Megan Window – Minter Ellison Lawyers
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