TAN TUAN NGUYEN and MINISTER FOR FOREIGN AFFAIRS

[2010] AATA 425

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 425

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/3531

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		TAN TUAN NGUYEN

Applicant

And MINISTER FOR FOREIGN AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date9 June 2010

PlaceMelbourne

Decision The decision made by the Minister on 16 April 2009 and by Mr Tysoe on 16 June 2009 will both be affirmed.

(Sgd)    John Handley

PASSPORT CANCELLATION – Applicant convicted, sentenced and released on parole – a condition of parole prohibits international travel – passport cancelled by the Minister and delegate decided it should be surrendered – whether discretion should be exercised to set aside the decisions – decisions affirmed

REASONS FOR DECISION

9 June 2010   Mr John Handley, Senior Member

1.      Mr Nguyen the applicant in these proceedings has applied to review two decisions.  One decision was made by the Minister to cancel his passport.  The other decision was made by a delegate of the Minister to surrender his passport.

2.      The decisions were made by reason of the applicant having been sentenced by the County Court of Victoria on 2 November 2005 to a term of imprisonment for six years.  He had been convicted of offences under the Customs Act 1901.  A non parole period of four years was fixed.  The applicant was released on parole on 9 April 2009.  The period of parole will expire on 14 April 2011.

3.      As a condition of parole, the applicant is prohibited from leaving Australia without obtaining the written permission of the Attorney-General or a delegate.

4.      The cancellation process was initiated by Ms Chidgey, a delegate of the Attorney-General, having been delegated pursuant to the Law Officers' Act 1964.  She is also a competent authority within the meaning of s 12 of the Australian Passports Act 2005 (the Act), by reason of her being an SES employee within the Attorney‑General's Department (refer paragraph 3.1 of the Australian Passports Determination 2005).

5.      Ms Chidgey directed that the applicant be released on parole (T‑documents p16-17) and made a request to the Minister to cancel his passport (p18).  The Minister agreed with the request and decided to cancel the passport on 16 April 2009 (p18).

6.      On 20 April 2009, Mr Morgan, the Acting Assistant Secretary of the Passport Business Improvement and Technology Branch of the Department of Foreign Affairs and Trade, made a demand upon the applicant to surrender his passport.  Mr Morgan also advised in the making of that decision that the passport previously issued to the applicant had been cancelled.  That is to say, Mr Morgan demanded that the applicant surrender his cancelled passport (p20-21).

7.      The Minister made his decision pursuant to s 22(2)(d) of the Act upon the basis that Ms Chidgey, as the competent authority, had made a request for cancellation.

8.      Mr Morgan made his decision pursuant to s 24 of the Act by reason of him being a officer (refer s 6 of the Act) and by reason of the passport having been cancelled.

9.      The decision made by Mr Morgan was reviewed and affirmed on 16 June 2009 by Mr Tysoe, the Assistant Secretary of the Business Assurance Branch of the Department of Foreign Affairs and Trade.  He is also a delegate of the Minister.

10.     The Minister's decision and the reviewable decision are both capable of review by this Tribunal (refer s 50 of the Act).

11.     A discretion is available to the Minister and to the delegate under s 22 and s 24 respectively by reason of the word may appearing in both sections.  However, the Ministerial Policy found at Chapter 6.5.2 (T‑documents p33) record that the Minister must not issue an Australian Passport to a person who is prevented from international travel by reason of a condition of parole.

12.     Despite the conflict between the legislation and the policy, I am satisfied on the documents lodged, that the decisions under review should be affirmed.

13.     I would emphasise that the decision that I have made is only upon the documents that have been lodged because the applicant failed to appear at the hearing of this review.

14.     When the applicant failed to attend the Tribunal at the time appointed for the commencement of the hearing enquiries were made of his mobile telephone number but without success.  A telephone call was also made to his parole officer who advised that the applicant had notified her that he was aware that the matter was listed for hearing on 7 June.

15.     I did convene the hearing, for a short time, to have some issues clarified with Ms McCormick who appeared for the Minister.  The proceeding was transcribed.

16. I am satisfied that the Tribunal did forward a notice of the hearing to him by a pre paid letter of 12 May 2010 to a specified address. (A copy was also forwarded to his parole officer). The listing notice has not been returned and I am satisfied that it was received by the applicant (refer s 160 Evidence Act 1995).

17.     The applicant was previously represented by a solicitor with the Victorian Legal Aid Commission (LAC).  In a letter to the Assistant Secretary of the Passport Client Services Branch of the Department of Foreign Affairs and Trade dated 22 May 2009 (p24-25) the solicitor advised that whilst the applicant had no intention then of travelling internationally, he was married with a wife and children in Vietnam who he had not seen since 2005.  It was foreshadowed that should an emergency arise in relation to them, the applicant would need his passport to travel.  It was also notified that the applicant had no other means of identification and in the absence of such documentation it was virtually impossible for him to obtain employment or open a bank account.

18.     Persons are able to prove their identity other than by a current passport.  The applicant must have a connection with Australia to have had previously qualified as a citizen.  He would have, for example, a citizenship certificate.  It is likely that a number of persons do know him and could certify his identity.  He would be entitled to extracts from the prosecutor's file with respect to the charges over which he was convicted.  There would be documents within that file which would establish his identity.  The applicant has been released from prison on parole.  Effectively he remains under sentence but with his liberty restored.  Absent a current passport he is not denied, nor would it be impossible, for him to prove his identity.

19.     Although his passport has been cancelled he is not prohibited absolutely from international travel.  He remains entitled to apply to the Minister for a travel document permitting him to travel overseas for a limited period and for a specified purpose in the event of emergency or some other catastrophe, for example, affecting his family or for some other reason which satisfies the Minister.  Additionally, it is a term of his release on parole that he may leave Australia if he obtains the written permission of the Attorney-General or the Attorney's delegate.

20.     I am not satisfied that the applicant is unable to prove his identity in the absence of a passport.  I am not satisfied that the applicant is prohibited absolutely from travel outside Australia.

21.     I note that the applicant is currently serving a period of sentence but on parole which is due to expire in April next year.  A term of the parole also prohibits him from departing Australia.

22.     I have read nothing from the materials lodged which would satisfy me to disturb the decisions under review.  They will be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of  
Mr John Handley, Senior Member

Signed:         Grace Carney, MST Support

Date of Hearing  7 June 2010
Date of Decision  9 June 2010
Applicant  Did not appear
Solicitor for the Respondent     Ms A McCormick, Minter Ellison