Singh and Minister for Foreign Affairs

Singh and Minister for Foreign Affairs [2019] AATA 36 (18 January 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4712
Re:Andrew Singh
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:18 January 2019
Place:Sydney

1. The decision made by the delegate of the Minister for Foreign Affairs on 10 July 2017 to affirm the earlier decision to cancel the Australian passport of Mr Singh, is set aside.
2. In substitution for the decision set aside it is decided that the Australian passport issued to Mr Moti Singh on 10 July 2015, not be cancelled.
...................[sgd].....................................................
J W Constance
Deputy President
CATCHWORDS
PASSPORTS – review of decision to cancel passport – whether the discretion to cancel the passport is to be exercised – report of passport as lost or stolen – whether passport was lost or stolen – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Australian Passports Act 2005 (Cth), s 21
CASES
Morales and Minister for Foreign Affairs and Trade [2007] AATA 1077
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Deputy President J W Constance
18 January 2019
INTRODUCTION

Mr Singh was issued with an Australian passport in 2015. This passport was cancelled by the Minister in 2016 following notification made on the Australian Passport Office website that the passport had been lost or stolen.
Mr Singh claims that he did not make the notification, nor was it made on his behalf. He says that at all times the passport was within his possession and was not lost or stolen. He is seeking a review of a decision by a delegate of the Minister affirming the decision to cancel the passport.
For the reasons which follow, the decision under review will be set aside. In substitution it will be decided that the discretion to cancel the passport not be exercised.
THE LEGISLATIVE POWER TO CANCEL AN AUSTRALIAN PASSPORT
Section 22 of the Australian Passports Act 2005 (Cth) provides, in part:
(1) Subject to section 22AA, 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:
(b) the document has been lost or stolen; or
Section 48 of the Act provides that a decision to cancel an Australian travel document (which includes a passport) is a “reviewable decision”. A person affected by a reviewable decision may apply in writing to the Minister for review of the reviewable decision (section 49). An applicant who is dissatisfied with the Minister’s decision review may apply to this Tribunal for a review of that decision.
On review, the Tribunal may affirm, vary or set aside the decision being reviewed by it: see section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
Mr Singh is an Australian citizen. On 10 July 2015 he was issued with an Australian passport in the name Moti Singh, being the name appearing on his Australian citizenship certificate. The passport was valid until 10 July 2025.
On 28 July 2016 the Australian Passport Office received notification on its website that Mr Singh’s Australian passport had been lost or stolen. The passport was immediately cancelled. For reasons of which I am unaware, it appears that Mr Singh was not sent the usual letter advising him of the cancellation until 8 March 2017.[1]
[1] Exhibit R1 at 17.
On 3 February 2017 Mr Singh departed Australia, travelling on his New Zealand passport.[2] When he returned to Australia three days later he sought to do so using his Australian passport which had been cancelled in July 2016. At the request of an authorised officer of the Australian Border Force, Mr Singh surrendered the cancelled passport.
[2] Exhibit R1 at 33.
On 20 February 2017[3] Mr Singh wrote to the Secretary of the Department of Foreign Affairs and Trade. In his letter he stated, in part:
First, as already mentioned I never advised DFAT that my Passport was stolen. Nor did I report it to the Police. At all material times I had its custody. Secondly, DFAT does not have any proof that I reported my Passport being lost. I can only assume that the only person who may have done this may have done so maliciously and suspect my former wife as she has the details of my Passport and my other personal details.
Mr Singh requested the Department to issue him with another passport without fee.
[3] Exhibit R1 at 15.
By letter of 28 March 2017[4] Mr Singh requested a review of the decision to cancel his passport. He reiterated his claim that his passport had not been stolen or lost at any time and that he had not made the report which appeared on the Australian Passport Office website.
[4] Exhibit R1 at 21.
On 10 July 2017, a delegate of the Minister affirmed the initial decision to cancel the passport.[5] On 4 August 2017 Mr Singh applied to the Tribunal to review the delegate’s decision.
[5] Exhibit R1 at 36.
Attempts by the parties to resolve the matter
On 7 September 2017 the Department wrote to Mr Singh, stating in part:
I confirm that, even if the original decision is overturned on review, the Department is unable to ’reactivate’ your cancelled passport. As such, you will still be required to submit a new passport application even if your application for review is successful.
…
… I also confirm that the Department is prepared to waive the application fee that would ordinarily attach to your new passport application.[6]
[6] Attachment A to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
By email of 8 September 2017 Mr Singh advised the Department that he was willing to accept the Department’s offer on condition that it paid to him the $100 application fee that he paid upon filing his application for review in the Tribunal. On 11 September 2017 the Department declined to meet this condition.[7]
[7] Attachment B to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
On 11 December 2017 the Solicitors for the Minister wrote to Mr Singh, in part as follows:
While the Minister remains of the view that the original decision was correctly made, upon review of the further materials provided in this matter, including the information you have now provided to the effect that your passport was not in fact lose at the time it was reported lost, and in order to deal with this matter as expeditiously as possible, the Minister is open to resolution of this matter and proposes that the parties agree to have the original decision set aside by the Tribunal. This course of action is available under section 42C of the Administrative Appeals Tribunal Act 1975.
In those circumstances, we are instructed to seek your consent to approach the Tribunal and seek a decision by the Tribunal setting aside the decision of the Minister’s delegate and substituting it with a decision that your passport not be cancelled. Enclosed is a copy of an agreement pursuant to section 42C of the Administrative Appeals Tribunal Act 1975. If you are happy with the enclosed agreement please sign and date it and return it to us (email is quickest). We will then do the same and file the document with the Tribunal.
If the Tribunal is happy with the agreement it will make orders in accordance with the agreement, and the Australian Passport Office will be able to arrange for the reinstatement of your passport. As the physical version of your previous passport cannot be reinstated, this would involve issuing you with a new passport, however on the same terms and conditions (i.e. validity period) as the cancelled passport.[8]
Mr Singh replied to this letter on 12 December 2017 without accepting or rejecting the proposal for settlement.[9]
[8] Attachment C to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
[9] Attachment D to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
The Solicitors replied to Mr Singh by email of 15 December 2017.[10] They advised that the Minister was willing to have the decision set aside on the basis of the current evidence that the passport was not in fact lost, that evidence being that Mr Singh was able to present the passport to airport authorities after it had been cancelled and his assertion that he did not lose the passport. The Solicitors affirmed that there would be no charge for the issue of a new passport if the agreement under section 42C was made. The email concluded:
Should you choose to reject this offer (which, of course, is an option available to you noting your rejection of our clients [sic] earlier offer), we note that our client will consider seeking dismissal of your application for review pursuant to section 42B of the Administrative Appeals Tribunal Act 1975. In particular, we consider a full Tribunal hearing in circumstances where our client has indicated it is willingness [sic] to enter into orders setting its original decision aside, is contrary to the Tribunal’s objectives of “fair, just, economical, informal and quick” review.
[10] Attachment D to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
It is to be noted that the above was the first reference to a possible application for dismissal under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth). Section 42B(1) provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
On 21 December 2017 Mr Singh emailed the Solicitors advising that he was prepared to accept an offer to issue him with a new passport at no fee, effective from the date of issue. He requested the matter be resolved in accordance with section 34D of the Administrative Appeals Tribunal Act, rather than section 42C, as he claimed that the latter section could not be invoked in this case. Mr Singh advised that his counter-offer was open until close of business on 5 January 2018.[11]
[11] Attachment D to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
By email of 4 January 2018 the Solicitors advised Mr Singh that the provisions of section 34D were not applicable to him in this application. This advice was correct. The Solicitors also confirmed that the application fee for a new passport would be waived and that the passport would be issued with the validity period running from the date of issue. They acknowledged that Mr Singh would likely wish to await the issue of a new passport before discontinuing the Tribunal proceedings.[12]
[12] Attachment E to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
Despite further correspondence between the parties, the dispute between them did not resolve by the time the matter came on for hearing. Mr Singh’s position was that a new passport should be issued to him in the name Andrew Moti Singh.[13] As the name was different to that shown on the cancelled passport the Minister had previously requested that he provide certain documents to confirm this identity. Mr Singh was not prepared to meet that request.
[13] Attachment H to Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018.
The Minister’s application under section 42B of the Administrative Appeals Tribunal Act
The Solicitors for the Minister filed a Statement of Issues, Facts and Contentions on 4 April 2018. The Minister’s contentions included:
In circumstances where the Respondent has been prepared to issue a new passport to the Applicant (in the same name) but the Applicant has refused to agree to this outcome, the Respondent contends that there is nothing further that the Tribunal can do to assist the Applicant and that it would be open for the Tribunal to summarily dismiss the application on the basis that, in light of the existing offers of the Respondent, the current proceeding is an abuse of process. In effect, the Respondent has been prepared to agree to the relief that the Applicant would be entitled to if he succeeded in his review before the Tribunal, but he has been refusing to accept it.[14]
Although the Solicitors for the Minister had foreshadowed this application in correspondence to Mr Singh in December 2017, this was the first application to the Tribunal for such an order.
[14] Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018 at [4.19].
THE ISSUE FOR DETERMINATION
The issue in this application is whether the decision affirming the decision to cancel Mr Singh’s passport should be affirmed or set aside. If the decision is to be set aside, the issue then arises as to the appropriate decision to be substituted.
EVIDENCE AND FINDINGS OF FACT
The investigation report of 30 June 2017[15]
[15] Exhibit R1 at 31.
Following the allegation by Mr Singh that the report of his passport being lost or stolen was false and possibly malicious, an investigation was carried out by a Departmental Investigator.
On the basis of the Investigator’s report I am satisfied that the IP address from which the report of the passport being lost or stolen emanated was subscribed in the name of Mr Singh’s nephew at the nephew’s home address.
On 30 June 2017 Mr Singh spoke to the Investigator and advised him that he was residing with his nephew at his nephew’s address on 28 July 2016, the date on which the report of the passport being lost or stolen was made on the Australian Passport Office website. Mr Singh advised that the other occupants of his nephew’s address were the wife of his nephew and their young child.[16] I accept this evidence.
[16] Exhibit R1 at 34.
I accept also the statement by the Investigator in the report that “[a]s Mr Moti SINGH had possession of the Australian passport he was not advantaged in any way to make a false report to the Australian Passport Office.”[17]
[17] Exhibit R1 at 35.
Mr Singh does not dispute these aspects of the report.
Mr Singh’s evidence
Mr Singh provided written submissions to the Tribunal which included several statements of fact. He also gave evidence at the hearing.
On the basis of Mr Singh’s evidence I am satisfied that:
(a)on 28 July 2016 Mr Singh’s Australian passport was in his possession and was neither lost nor stolen;
(b)the passport remained in Mr Singh’s possession from 28 July 2016 until 6 February 2017 when Mr Singh surrendered it to an officer of the Australian Border Force at Sydney Airport;
(c)it is unlikely that anyone who was at Mr Singh’s nephew’s residence on 28 July 2016 (other than Mr Singh), was aware of the personal information relating to Mr Singh which was included in the report of the lost or stolen passport.
When he gave evidence, Mr Singh was unable to offer an explanation as to how the report was sent from the IP address from which it emanated by a person with the necessary knowledge to complete the security questions required when the report was made.
Further, Mr Singh denied the Investigator’s statement in his report that Mr Singh told the Investigator that it was possible that he had believed his passport was lost, that he then reported the loss online, and that he had subsequently forgotten about the reporting.
CONSIDERATION
The Minister’s application for dismissal in accordance with section 42B of the Administrative Appeals Tribunal Act
It is unfortunate that this matter could not be finalised without proceeding to a hearing on the merits.
The agreement proposed by the Solicitors for the Minister on 11 December 2017 would have given Mr Singh the best outcome he could achieve in this application. The proposed decision is identical to what I have decided is the preferable decision based on the merits of the application. That is to say, a decision that Mr Singh’s passport not be cancelled.
Although an application under section 42B was foreshadowed by the Solicitors in correspondence with Mr Singh on 15 December 2017, they did not apply to the Tribunal for an order under this section until 4 April 2018, 12 days prior to the date set for the final hearing. In these circumstances I considered that in fairness to Mr Singh, he should have the opportunity to have the matter heard on its merits, particularly as, by that stage, he had indicated that he was seeking a different decision to that previously proposed on behalf of the Minister. Had the application under section 42B been made at an earlier stage I may have taken a different view.
The Tribunal’s jurisdiction in this application
By the time this matter came on for hearing, Mr Singh was seeking a decision of the Tribunal that the Minister issue him with a new 10 year passport in the name Andrew Moti Singh. At that stage, Mr Singh and the Minister were not in agreement as to the documents necessary for this to happen.
At the commencement of the hearing I determined that the Tribunal did not have jurisdiction to direct the Minister to issue a new passport on the basis sought by Mr Singh. As I explained at the time, the jurisdiction of the Tribunal in this application is limited to reviewing the decision made 10 July 2017 which confirmed the earlier decision to cancel Mr Singh’s passport. In an application such as this, the Tribunal’s powers are those of the maker of the decision under review. Those powers do not extend to a decision to issue a new passport.
Should the decision to cancel Mr Singh’s passport be affirmed or set aside?
The requirement that a passport be “lost or stolen”
The power of the Minister and, therefore, the Tribunal in this application, provided by section 22 of the Australian Passports Act 2005 (Cth), is discretionary. In this particular case, it is not in dispute that the discretion to cancel Mr Singh’s passport is able to be exercised if the decision-maker is satisfied that the provisions of section 22(2)(b) have been met, i.e. that the document had been lost or stolen.
It was argued on behalf of the Minister that I should follow the decision of the Tribunal in Morales and Minister for Foreign Affairs and Trade.[18] In that matter it was decided that “a passport has been ‘lost’ for the purposes of s 15 if the holder has reported it lost, whether or not it has since been recovered and regardless of whether or not the holder subjectively believed it was lost.”[19]
[18] (2007) 45 AAR 98; [2007] AATA 1077.
[19] Ibid at [31], noting that section 15 of the Australian Passports Act 2005 (Cth) provides:
The Minister may refuse to issue an Australian travel document to a person if:
(a) an application for an Australian travel document is under consideration; and
(b) in the 5 years before the application is made, 2 or more Australian travel documents issued to the person have been lost or stolen.
Although in Morales the Tribunal was dealing with a different section of the Act, there is no relevant difference in the use of the words referring to passports which have been “lost or stolen”. Regrettably, I find myself unable to agree with the interpretation adopted in the Morales reasons for decision. In my view, the wording of section 22(1)(b) clearly requires a finding that the document in question “has been lost or stolen”. Had Parliament intended that the discretion to cancel a passport be enlivened by a report alone, it would have said so. However, it is to be noted that, in appropriate circumstances, the making of a credible report may provide a proper basis for a finding that a document has been lost or stolen.
The Tribunal is required to make its decision in this application based on the evidence before it
Whilst the Tribunal stands in the shoes of the maker of the decision under review, it is not restricted, when making its decision, to the material before that decision-maker.
In Shi v Migration Agents Registration Authority,[20] the High Court of Australia made clear that the role of the Tribunal is to make a decision based on the circumstances which exist at the time of making the decision. In many cases, as in this matter, the Tribunal will have available to it evidence which was not available at the time the initial decision was made.
[20] (2008) 235 CLR 286; [2008] HCA.
Discussion

It was argued on behalf of the Minister that I should follow the reasoning in Morales and that there are good policy reasons why a passport should be cancelled immediately upon notification that it has been lost or stolen.
As I have outlined above, I cannot agree that the words “the document has been lost or stolen” should be interpreted to mean “the document has been reported to have been lost or stolen”. To do so would be to disregard the clear meaning of the words of the statute.
In this matter I have found on the evidence before me that at no relevant time was Mr Singh’s passport either lost or stolen. It follows that the discretion to cancel the passport was not enlivened under section 22(2)(b). It has not been argued that it was enlivened under any other provision of the Australian Passports Act 2005 (Cth).
On this basis it is not necessary that I determine how it came about that the report that the document was lost or stolen was made. In any event, the evidence before me does not enable me to do so. Mr Singh has given evidence that he did not make the report. I have no reason to believe that he was not telling the truth. It is difficult to understand how the report was made if it was not made by someone with access to the IP address from which the report emanated and with the necessary knowledge to answer the security questions. It is possible that Mr Singh did make the report and he has forgotten that he did so. However, I note the evidence in the Investigator’s report that there was no advantage to Mr Singh to make a false report.
The decision I have reached does not mean that the initial decision to cancel Mr Singh’s passport was wrong. On the material available to the delegate of the Minister at the time, it was reasonable for a finding to have been made that the passport had been lost or stolen. In the circumstances, the finding could have been made on the basis of the report made on the Department’s website.
It was after the initial cancellation decision was made that it became apparent that:
·on 6 February 2017 Mr Singh had the passport in his possession,
·he claimed that it had been in his possession at all times; and
·he claimed that he had not made the report to the Department.
It was argued on behalf of the Minister that “the immediate cancellation of a reported lost or stolen passport is essential for the protection against the misuse of Australian passports and the prevention of identity crime.”[21] I accept this argument. Nothing in these reasons should be taken to impede this process in any way. My reasons are based on the evidence that Mr Singh retained possession of his passport at all relevant times. The original decision to cancel his passport was correct at the time it was made.
[21] Respondent’s Statement of Issues, Facts and Contentions dated 4 April 2018 at [4.5].
For the reasons stated, the decision under review, being the decision to affirm the initial decision, will be set aside.
What decision should be made in substitution for the decision set aside?
For reasons already given, I cannot make the decision sought by Mr Singh.
As I have determined that Mr Singh’s passport was neither lost nor stolen, the appropriate decision in substitution is that his passport not be cancelled. I note that this is precisely the decision which the Solicitors for the Minister proposed to be made by agreement in their email to Mr Singh on 11 December 2017.
I note also that implementation of the Tribunal’s decision will require a new document to be issued to Mr Singh as his original passport has been physically dealt with in such a way that it cannot be simply returned to him.
The conduct of this matter by and on behalf of the Minister
In his written submissions dated 14 May 2018, Mr Singh contended that the Minister and her Solicitors have acted inappropriately and, in the case of the Solicitors, in breach of the Model Litigant Rules.
I reject this argument entirely. There is no evidence whatsoever before me to support such a contention. In fact, the evidence is that the Minister and her Solicitors endeavoured to resolve this matter well before the hearing and, in fact, forwarded a draft agreement to Mr Singh which reflected exactly the decision I have reached.
Mr Singh was critical also of the manner in which the Department conducted the investigation following the report of the passport being lost or stolen. There is nothing to suggest in the evidence before me that the investigation was conducted in any way which was inappropriate.
CONCLUSION
The decision made by the delegate of the Minister for Foreign Affairs on 10 July 2017 to affirm the earlier decision to cancel the Australian passport of Mr Singh, will be set aside.
In substitution for the decision set aside it will be decided that the Australian passport issued to Mr Moti Singh on 10 July 2015, not be cancelled.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................[sgd]...................................................
Associate
Dated: 18 January 2019

Date(s) of hearing: 16 April 2018

Applicant: In person

Solicitors for the Respondent: Clayton Utz

[2019] AATA 36

18 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	16 April 2018
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz