Stanley and Minister for Foreign Affairs - [2018] AATA 982

Stanley and Minister for Foreign Affairs [2018] AATA 982 (20 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5445
Re:Peter Stanley
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

DECISION
Tribunal: Senior Member Dr M Evans
Date:20 April 2018
Place:Perth

The Tribunal dismisses the Applicant's application for review of two decisions of the Respondent dated 8 September 2017 under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.................[sgd].......................................................
Senior Member Dr M Evans
CATCHWORDS
PRACTICE AND PROCEDURE − application for dismissal of application for review – whether Tribunal satisfied that application is frivolous, vexatious – whether no legitimate purpose can be achieved by continuing application – whether outcome of proceedings would be futile and/or have no practical effect – application for review dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A, s 25(1), s 37, s 42B(1)(a), s 42B(1)(c), s 42B(2)
Australian Passports Act 2005 (Cth) – superseded - s 22(2)(d), s 48(c), s 50(1)
Australian Passports Act 2005 (Cth) – commencement date 13 December 2017- s 12(1A), s 12(2), s 12(3), s 13(2), s 14(1), s 14(2), s 22AA, s 22(2)(d), s 48(c)
Criminal Code Act 1995 (Cth), s 271A.1
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) – superseded - s 5, s 16, s 23(1)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) – commencement date 13 December 2017 - s 13(1A), s 13(2), s 15(1), s 16(1A), s 23(1)
Passport Legislation Amendments (Overseas Travel by Child Sex Offenders) Act 2017 (Cth)
Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Commencement Proclamation 2017
CASES
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
McCarthy and Building Practitioners Board [2016] AATA 1029
Mills and Secretary, Department of Employment [2016] AATA 121
Re Currey and Others and Australian Community Pharmacy Authority (2007) 99 ALD 106
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Transurban City Link Ltd v Allan (1999) 95 FCR 553
Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
Senior Member Dr M Evans
20 April 2018
BACKGROUND TO THE APPLICATION

Since October 2006, the Applicant has been registered as a high risk offender under the National Child Offender System (NCOS), and is subject to reporting conditions for life. He is a dual citizen of Australia and New Zealand (Exhibit R2).
On 11 September 2017 the Applicant lodged with the Administrative Appeals Tribunal (AAT) an application for review of two decisions of the Respondent, both dated 8 September 2017 (the Decisions). Specifically, the Decisions were a decision of the Respondent made under:
(a)s 22(2)(d) of the Australian Passports Act 2005 (Australian Passports Act) to cancel the Applicant’s Australian passport (number PA3625828) (Exhibit R1, T2, page 10); and
(b)s 16 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) that the Respondent’s foreign passport be surrendered (Exhibit R1, T2, page 12).
In his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 982
Decision Date: 20 April 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by the Minister for Foreign Affairs to dismiss an application for review lodged by Mr Stanley. Mr Stanley sought to review two decisions made by the Minister on 8 September 2017: the cancellation of his Australian passport and a direction for the surrender of his foreign passport. Mr Stanley's stated grounds for review included his status as a reformed offender, recent overseas travel without incident, and the denial of his right to visit family and a partner overseas, which he argued infringed upon his human rights.

The central legal issue before the Tribunal was whether it should exercise its discretion under section 42B(1)(a) or (c) of the Administrative Appeals Tribunal Act 1975 (Cth) to dismiss Mr Stanley's application for review. The Minister contended that the application was futile, meaning it was either frivolous or vexatious, or that no legitimate purpose could be achieved by its continuation, rendering any outcome futile and without practical effect.

The Tribunal was required to determine if Mr Stanley's application met the criteria for dismissal under the AAT Act. This involved assessing whether the grounds for review presented by Mr Stanley were so lacking in substance or prospect of success that continuing the proceedings would be a waste of resources and achieve no meaningful result. The Tribunal considered submissions from both parties at an interlocutory hearing, where Mr Stanley appeared in person and the Minister was represented. A subsequent request from the Western Australian Child Protection Registry on 20 March 2018 to refuse or cancel Mr Stanley's Australian and New Zealand passports was also before the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 11 September 2017 the Applicant lodged with the Administrative Appeals Tribunal (AAT) an application for review of two decisions of the Respondent, both dated 8 September 2017 (the Decisions). Specifically, the Decisions were a decision of the Respondent made under: (a)s 22(2)(d) of the Australian Passports Act 2005 (Australian Passports Act) to cancel the Applicant’s Australian passport (number PA3625828) (Exhibit R1, T2, page 10); and(b)s 16 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) that the Respondent’s foreign passport be surrendered (Exhibit R1, T2, page 12). In his application (contained in Exhibit R1, T1, page 7), in response to the question, “why do you claim the decision is wrong?” the Applicant stated:The decision to seize my passports is wrong because, It [sic] has not been taken into account that I am a reformed offender, having completed a program to address previous offending and now categorised as a low risk, and that only last month I travelled overseas without incident, and the United Nations Declaration of Human Rights says I have the right to marriage and family and this is being denied me because I can not [sic] visit my partner or my family overseas. At the interlocutory hearing the Applicant stated that he had lodged an application for review of the Decisions because he had been travelling overseas since 2006 without incident. He expressed concerns about “due process” with respect to the Decisions. When asked by the Tribunal as to what he meant by this, he stated that he was not sure if the Minister knew that he had recently travelled overseas without incident before making the Decisions. On 5 February 2018, the Respondent applied to the Tribunal for an order under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to dismiss the Applicant’s application for review of the Decisions on the basis that his application to the Tribunal is futile (Exhibit R2, at [1]). The Respondent seeks the dismissal under ss 42B(1)(a) or (c) of the AAT Act. On 20 March 2018, the Western Australian Child Protection Registry made a request to the Respondent to refuse or cancel an Australian passport, and for the surrender of foreign travel documents with respect of the Applicant’s Australian and New Zealand passports (Exhibit R3, Attachment A). ISSUE FOR DETERMINATION The issue for determination by the Tribunal is whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review of the Decisions under s 42B(1)(a) or (c) of the AAT Act. MATERIAL BEFORE THE TRIBUNAL An interlocutory hearing was held at the Tribunal on 22 March 2018. The Applicant appeared in person and was self-represented. The Respondent was represented by Clayton Utz by telephone. Both parties made verbal submissions to the Tribunal at the interlocutory hearing, and the Tribunal is satisfied that the parties had adequate opportunity to be heard by the Tribunal.

Ratio Decidendi

Legal Principle Established

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