VAK and Minister for Foreign Affairs and Trade
[2002] AATA 588
•11 July 2002
CATCHWORDS – PASSPORT – whether issue of passport prohibited where a warrant in force for applicant – whether authorised officer has discretion – distinction between decision of authorised officer and any direction made by Minister, approved senior officer or approved officer – decision affirmed
CATCHWORDS –DOCUMENT OF IDENTITY – whether issue of Australian passport is unnecessary or undesirable when its issue is prohibited – whether a decision to issue a document of identity may be made when no application for it made – whether document of identity should be issued – decision affirmed
Passports Act 1938 ss. 7, 7A, 7B, 7C, 7D, 7E, 10, 11A, 12
Passport Regulations 1939 rr. 5, 7, 10, 13
Migration Act 1958 s. 166(1)(a)(i))
Taxation Administration Act 1953 s. 14S
DECISION AND REASONS FOR DECISION [2002] AATA 588
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/246
GENERAL ADMINISTRATIVE DIVISION )
ReVAK
Applicant
And MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 11 July, 2002
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 6 December, 2001.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 22 February, 2002 the applicant, who will be referred to as VAK in view of the confidentiality order made on 18 April, 2002, applied for review of a decision of a delegate of the respondent, the Minister for Foreign Affairs and Trade ("Minister"), dated 6 December 2001. The time within which he could lodge that application was extended by an order made on 8 March, 2002. In his decision, the delegate affirmed an earlier decision dated 22 August, 2001, which had two aspects. The first was to refuse to issue an Australian passport to VAK pursuant to s. 7B of the Passports Act 1938 ("the Act"). The basis of that aspect of the decision was that the delegate had reason to believe that there was in force a warrant issued in Australia for his arrest (s. 7B(a)). The second aspect of the decision was to issue him with a document of identity pursuant to r. 10(1)(a) of the Passport Regulations 1939 ("the Regulations"). That document would permit VAK to travel to Australia.
On 11 April, 2002 VAK further applied for review of the decisions of the delegate dated 15 March, 2002 issuing Australian passports to his children. VAK initially requested that his children's application and his own application be heard together but subsequently stated that the issue of Australian passports to his children should be conditional on the success of his own application. On 18 April, 2002 the Tribunal did not accept VAK's request that his application and that of his children be heard together. Instead, it directed that the review of the decision granting Australian passports to his children would be adjourned until the determination of the application brought by VAK.
VAK, who represented himself, and Mr Frost, who represented the Minister, agreed that VAK's application should be determined on the papers. Those papers include the documents lodged on behalf of the Minister pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") and the Statements of Facts and Contentions lodged by VAK on 6 May, 2002 together with two attachments.
THE ISSUE
The first issue is this case is whether VAK should be refused an Australian passport. In the circumstances of this case, resolution of that issue depends on whether there is reason to believe that there is in force a warrant issued in Australia for his arrest. The second issue is whether a document of identity should have been issued to VAK.
BACKGROUND
Having regard to the T documents and to the material lodged by VAK, I have made the findings of fact that I will set out in the following paragraphs.
VAK was born in Australia on 15 July, 1944 and is both an Australian citizen and a British citizen. He currently resides in Britain. In 2001 VAK held an Australian passport but it expired. At that time, he also lived in Britain and made enquiries of the Department of Foreign Affairs and Trade ("DFAT") in Canberra regarding the issue of passports to himself and his children, of whom he had custody. He was advised in a facsimile message dated 1 August, 2001 that he might be issued with a restricted validity passport for return to Australia to attend to an outstanding warrant. DFAT went on to advise VAK that, as the children's mother had refused to give her permission for passports to be issued to him for the children, he would have to lodge an application with the Australian High Commission in London for the issue of the passports because of special circumstances (T documents, page 74). On 8 August, 2001, VAK followed that advice when he applied for another passport using an Australian overseas passport application form. At the same time VAK also sought to obtain an Australian passport for each of his two children.
Enquiries made in connection with the processing of that application led the DFAT to make further enquiries including a search of the Passport Issue and Control System ("PICS"). Information on that system revealed that a warrant had been issued on 10 May, 1994 by the Queensland Police, with an expiry date of 10 May, 2094 (T documents, page 67). Further enquiries were made by DFAT with the Queensland Police on 16 August, 2001 regarding its warrant. On that same day, the Queensland Police sent DFAT a facsimile message stating that their computer records indicated that there was no outstanding matter for VAK (T documents, page 66). PICS was updated on the same day.
Also on 16 August, 2001, DFAT, through its Consular & Passport Office at the Australian High Commission in London wrote to VAK advising him that the police alert had been lifted and that it could now issue him with a ten year passport. As a decision had not been made in relation to passports for his children, DFAT went on to ask him whether he wanted his application processed or whether he wanted to wait for a decision on his children's applications (T documents, page 62). On the same day the Department sought clarification in respect of VAK's need to travel to Australia and requested that he provide evidence of the need for him to attend a court in Queensland in person (T documents, page 60). On 18 August, 2001 VAK responded to DFAT's request and supplied it with a copy of a minute he had obtained from the Queensland Police. That minute had been written on 19 May, 1998 by Senior Sergeant McKenzie to the Officer in Charge at Mt Isa. Senior Sergeant McKenzie advised that the proceedings against VAK had been stayed until he appears in court to answer the original matter as well as his failure to appear (T documents, page 58).
On 20 August, 2001 the Queensland Police informed the DFAT that, although it had previously advised that there were no outstanding matters against VAK, there was in fact an outstanding warrant that had been overlooked (T documents, page 56). DFAT corrected its records. A passport had been issued in the High Commission in the name of VAK but had not been given to VAK. The High Commission undertook to spoil it.
On 22 August, 2001, the High Commission wrote to VAK advising that the Queensland Police had corrected their earlier incorrect advice. It then went on to notify VAK of the decision that it could not issue a passport but could issue a Document of Identity.
CONSIDERATION
VAK has stated that he requires an Australian passport as he needs to attend to his business interests in Australia. He is the sole director of a company, which is registered in Australia and is the trustee of a property trust. The property trust owns and manages a number of investment properties in Australia. VAK and his children are the beneficiaries of that trust. VAK submitted that, in order to fulfil his duties as director, he needs to travel regularly to Australia to attend to matters associated with the investment properties. VAK also submitted that his failure to be able to attend to the proper management of the Trust could have a considerable detrimental effect on the benefits that his children could obtain under the trust.VAK's solicitors, Matthew Shaw and Associates, supported VAK's submission in a letter dated 8 January 2001 (T documents, page 42).
In addition, VAK raised concerns about the health of his children, particularly his son, and his children's desires to return to Australia to holiday and visit family. VAK submitted that he needed an Australian passport so that he could freely escort his children to and from England. Without an Australian passport his children would suffer considerably by not being able to travel to Australia.
The Act provides that, subject to the Act and the Regulations, the Minister or an officer authorised by the Minister ("an authorised officer") may issue Australian passports to Australian citizens (ss. 7(1) and (3)). The Act does not confer a right on an Australian citizen to be issued with an Australian passport. Instead, it confers a power on the Minister and an authorised officer to issue an Australian passport where the applicant is an Australian citizen. The power, though, may not be exercised without constraint. The Minister and an authorised officer may not refuse to exercise that power unless one or more of the circumstances dealt with in ss. 7A, 7B, 7C, 7D or 7E applies. If one or more of those circumstances applies, the authorised officer is prohibited from issuing an Australian passport.
Of these sections, only s. 7B is relevant. It provides that:
"an authorized officer shall not, unless otherwise directed by the Minister, the approved senior officer or the approved officer, issue an Australian passport to a person if -
(a)the authorised officer has reason to believe that there is in force a warrant issued in Australia for the arrest of the person; or
(b) the authorised officer has reason to believe that the person is required, by an order of a court made in pursuance of a law of the Commonwealth or of a State or Territory, or under a condition or parole or of a recognisance, surety or bail bond, to remain in Australia or to refrain from obtaining an Australian passport."
Only s. 7(1)(a) is relevant in this case and its effect is that there need only be reason to believe that there is in force a warrant for the arrest of VAK. There is no need to take the extra step and establish, on the balance of probabilities, that there is such a warrant in force. Furthermore, there is no need to consider the reason or reasons why a warrant has been issued for his arrest; all that is required is reason to believe that it has been issued.
On the written material in this case, I am satisfied that there is reason to believe that there is in force a warrant issued in Australia for VAK's arrest. More particularly, there is reason to believe that such a warrant has been issued in the State of Queensland on 10 May, 1994 and that it remains in force. I have reached that conclusion partly on the basis of VAK's own advice to DFAT that he needed to attend a court in Queensland and the copy of the minute from Senior Sergeant McKenzie stating that proceedings against VAK had been stayed until he appeared to answer the original matter and to answer his previous failure to appear in court. On its own, that material does not necessarily lead to the conclusion that there is a warrant in force for his arrest. It does, however, provide background to, as well as support, the clear statement made by the Queensland Police Service in its later letter to DFAT dated 20 August, 2001 that there is an outstanding warrant for VAK.
Having reached that conclusion, that is an end of the matter. Section 7B clearly prohibits an authorised officer from issuing a passport once that conclusion has been reached. It does not permit him or her to look at all of the circumstances and to consider whether a passport should be issued as a matter of discretion. There is no discretion permitted by the section. On reviewing the decision to refuse to issue a passport, s. 43(1) of the Administrative Appeals Tribunal Act 1975 gives the Tribunal the powers and discretions of the authorised officer but no more. That section has not been varied by the Act. Consequently, this Tribunal does not have any discretion in the matter. Consequently, I may not take into account VAK's reasons for wanting an Australian passport.
Section 7B contemplates that a second decision may be made. That decision is in the form of a direction made by the Minister, the approved senior officer or the approved officer under the Act to issue a passport even though its issue would otherwise be prohibited. A decision to issue a direction is clearly a decision separate from a decision not to issue a passport. The distinction between the two decisions that may be made in s. 7B is recognised in s. 11A. That section gives the Tribunal power to review what it describes as "Ministerial decisions" made under the Act (s. 11A(5)) but not reviewable decisions. For the purposes of this case, decisions that come within the description of "Ministerial decision" include a direction that has been made by the Minister under s. 7B (s. 11A(1)(g)). A decision made by an authorised officer under s. 7B (s. 11A(1)(d)(iv)) is not a Ministerial decision but a reviewable decision. So too is a direction made by an approved senior officer and a direction made by an approved officer under s. 7B (ss. 11A(1)(b)(ii) and (c)). A person affected by a reviewable decision may apply under s. 11A(2) to the Minister to review that decision under s. 11A(4). The decision made by the Minister or his delegate in response to that application is a Ministerial decision and so is reviewable by the Tribunal (s. 11A(5)).
Having regard to the course of decision-making that has occurred in this case, there has been no direction issued by the Minister, approved senior officer or approved officer and VAK has not sought such a direction. In view of that, the Tribunal has no jurisdiction to consider whether a direction should have been made and, of so, in what terms.
That brings me to the second issue in this case. That is whether a document of identity should have been issued to VAK. VAK submitted that he does not want a document of identity. Under the Regulations, an authorised officer:
"…may issue a document of identity for travel purposes to a person, being:
(a)in a case where the issue of an Australian passport to the person is unnecessary or undesirable - an Australian citizen; or
(b)a person who possesses the nationality of a Commonwealth country." (r. 10(1))
A document of identity may only be issued in respect of a period specified in the document but that period may be no longer than five years from the date on which the document is issued (r. 10(1A)). That period may be extended (r. 10(2)).
I note that, pursuant to r. 5(1), an application for documents including an Australian passport and a document of identity must be in accordance with a form approved by the Minister. VAK applied for a passport of 32 visa pages on 8 August, 2001 (T documents, page 69). He did so by placing a cross in the box marked passport but made no such mark against the box marked document of identity. There is no indication in the material before me that he applied for a document of identity on any other occasion. In the absence of an application, it may be arguable that an authorised officer may not issue a document of identity. The better view may be that while such an application may be made, an application is not necessary to enliven the authorised officer's powers. Regulation 10 is not expressed in terms of his or her powers being exercisable only in response to an application. The day to day exercise of an authorised officer's powers under the Act and the Regulations would suggest that, as a matter of practicality, he or she might, in an appropriate case, turn to consider a document of identity if a passport could not be issued. These matters persuade me that the Regulations permitted the authorised officer to consider whether to issue a document of identity to VAK even though VAK had not applied for it. It is irrelevant whether VAK actually wants a document of identity. If he does not want it, he does not pay the fee specified in Schedule 2 pursuant to r. 13 and does not receive it.
Clause 2.4.2 of the Manual of Australian Passport Issue ("the Manual") used within DFAT states that:
"Categories of persons to whom Documents of Identity would normally be issued include:
Australian citizens whose travel the Minister believes should be restricted;
Australian citizens being repatriated or deported to Australia;
Australian citizens travelling to Norfolk Island (valid for five years);
Australian citizens who are transgendered – i.e. who are living in the identity of a member of the opposite sex (refer to paragraph 3.17); and
Persons who possess the nationality of a Commonwealth country (Commonwealth countries for this purpose are listed in Schedule 1, Passports Regulations 1939." (T documents, pages 29-30)
With respect to the period for which a document of identity is issued, the Manual goes on to provide:
"The Authorised Officer has discretion to restrict the time and geographical validity of a Document of Identity, but must take into consideration the circumstances surrounding each application. In most cases a Document of Identity is issued for a short-term or single journey." (clause 2.4.5)
Regulation 10(1) raises an initial difficulty in its interpretation. In the case of an Australian citizen, it speaks of a document of identity's being issued where the issue of an Australian passport is "unnecessary or undesirable". In this case, the issue of a passport to VAK is prohibited by virtue of s. 7B. Does that mean its issue is "unnecessary or undesirable"? This point has not been addressed in the material that I have. On their face, the words "unnecessary or undesirable" carry with them connotations of matters having been weighed and a judgement having been made about the necessity or otherwise or desirability or otherwise of a passport's being issued. It would seem that there can be no such judgement exercised when a provision is mandatory in its terms in the manner in which s. 7B is mandatory. As I have previously said, the Minister is not entitled to refuse, and may not direct an authorised officer, to refuse to issue a passport except where it is prohibited by virtue of ss. 7A, 7B, 7C or 7D or where the Minister has issued a direction under s. 7E. Apart from any discretion that is inherent in directions that may be given under ss. 7A, 7B, 7C and 7D and in reaching a decision under s. 7E (none of which is relevant in this case), the Minister does not have a discretion whether to issue a passport or not. He has no scope for deciding whether the issue of a passport to an Australian citizen is "unnecessary or undesirable".
It may be arguable that the issue of an Australian passport may be thought to be "unnecessary or undesirable" if consideration had been given to whether or not a direction should have been made pursuant to ss. 7A, 7B, 7C or 7D. There is nothing in the material to suggest that consideration was ever given to issuing such a direction and I am satisfied that it was not given. I have not asked the parties for submissions regarding the direction or whether the issue of a passport can be though unnecessary or undesirable when its issue is prohibited. That is so because I do not need to resolve those issues for the purposes of reviewing the decision.
As a British subject, VAK possesses the nationality of a Commonwealth country. Whether a document of identity is issued is a matter of discretion as the authorised officer "may" issue such a document under r. 10(1) but is not required to issue it. The Regulations do not give any express parameters within which that discretion should be exercised. Apart from providing that the Regulations may provide for documents of identity, the Act does not provide any such parameters (s. 12(1)(a)).
There are, however, implied parameters within which the issue or otherwise of a document of identity must be considered. They come in part from the fact that, with a few exceptions that are not relevant and arise under legislation such as the Taxation Administration Act 1953 (s. 14S), a passport effectively ensures that an Australian citizen is free to travel in an out of Australia. All that he or she must do is to show his or her passport (Migration Act 1958 ("Migration Act"), s. 166(1)(a)(i)) and that passport remains in force for a ten year period (r. 7(1)). A document of identity is more circumscribed. It may be shown to a clearance officer as evidence of the person's identity and may form the basis of the clearance officer's knowing or reasonably believing that the person is an Australian citizen (Migration Act, ss. 166(1)(a) and 166(3). It may, however, only be issued for a limited period, and in any case only for a maximum period of 5 years, or for a limited number of entries and exits (rr. 10(1A) and (2)).
Given that a document of identity is more circumscribed than a passport and is only given to an Australian citizen, who does not also possess the nationality of a Commonwealth country, in circumstances in which the issue of a passport would be unnecessary or undesirable, it would follow that it should, as a general proposition, only be given in circumscribed circumstances. It should not be issued in terms that would permit freedom of travel that equates with a passport even if for a shorter period of time. This is consistent with the policy set out in the Manual. In the circumstances of this case, it seems to me consistent with the general prohibition on the issue of a passport where there is a warrant in force that a document of identity be issued to enable VAK to return to Australia on one occasion. That will give him the opportunity to appear before the court in Queensland if he should choose to rely on the document of identity to return to Australia and to do so. It may be conceivable that the Queensland Police may choose not to enforce the warrant unless VAK specifically comes to their attention. That is a matter for them but the possibility of that being the case does not justify VAK's being given a document of identity that enables him to travel more freely.
On the material that I have been given, I am not satisfied that VAK should be given a document of identity permitting him any more latitude than one-way trip to Australia. His wish that he be able to bring his children to Australia and his wish to be in Australia to carry out functions as the sole director of a company do not lead me to a different conclusion. He may return to Australia with the document of identity given to him. Having done so, he may pursue his personal interests in Australia. Given that there is an outstanding warrant against him, it would be inappropriate to give him a document of identity that permitted him the freedom to come and go as he likes. That freedom will be restored to him in the form of a passport when he has dealt with the warrant. It follows that I consider that the decision of the authorised officer to issue a document of identity for a one-way trip to Australia was correct.
For the reasons I have given, I affirm the decision of the respondent dated 6 December, 2001 affirming the decision dated 22 August, 2001.
I certify that the thirty eight preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateOn the Papers 11 July, 2002
Date of Decision 11 July, 2002
Solicitor for the Applicant self representedSolicitor for the Respondent Australian Government Solicitor
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