WHHK and Minister for Foreign Affairs - [2022] AATA 446

WHHK and Minister for Foreign Affairs [2022] AATA 446 (14 March 2022)
Division:GENERAL DIVISION
File Number: 2020/5859
Re:WHHK
APPLICANT

Minister for Foreign AffairsAnd
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:14 March 2022
Place:Brisbane

The decision under review is affirmed.
.............[SGD]...........................................................
Deputy President J Sosso
CATCHWORDS
PASSPORT — Review of the Minister’s decision to cancel Applicant’s passport pursuant to s 14 of the Australian Passports Act 2005 — Where there is evidence the Applicant committed child sex offences — Passport needed for employment purposes — Risk of harm to overseas children — Decision under review affirmed
LEGISLATION
Australian Passports Act 2005 (Cth)
Australian Passports Determination 2005 (Cth)
Australian Passports Determination 2015 (Cth)
Crimes Act 2009 (Fiji)
Criminal Code (Qld)
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth)
Sentencing and Penalties Act 2009 (Fiji)
CASES
Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 331; (1991) 30 FCR 49
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Du Pont and Minister for Immigration and Ethnic Affairs (1983) ALN N205; [1983] AATA 180
Edelsten v Health Insurance Complaints Commission (1990) 93 ALR 711
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
King and Minister for Foreign Affairs and Trade [2006] AATA 636
Minister for Immigration & Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Saad and Minister for Foreign Affairs [2007] AATA 1675
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Thompson and Minister for Foreign Affairs and Trade (2007) 45 AAR 149; [2007] AATA 1244
Thompson and Minister for Foreign Affairs
[2019] AATA 2172

REASONS FOR DECISION
Deputy President J Sosso
14/03/2022
INTRODUCTION

WHHK (the Applicant) seeks a review of the decision of the Minister for Foreign Affairs (the Minister) to cancel his passport under s 14 of the Australian Passports Act 2005 (Cth) (the Act).
Subsection 14 provides that if a “competent authority” suspects on reasonable grounds that if an Australian travel document were issued to a person, and that person would be likely to engage in specified conduct, the competent authority may make a cancellation request in relation to that person.
A “competent authority” is defined by s 14(3) to include various specified persons and entities. In particular, subparagraph (c) refers to a “non-corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that is specified in a Minister’s determination as a competent authority in relation to the circumstance…”
The Minister has made a determination, namely the Australian Passports Determination 2005 (Cth). At subregulation 14(1) of the latest version of the Determination (Australian Passports Determination 2015 (Cth)), three entities are prescribed as…

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: [2022] AATA 446
Decision Date: 14 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Minister for Foreign Affairs to cancel the passport of the applicant, identified as WHHK. The dispute arose from evidence suggesting the applicant had committed child sex offences. The applicant sought the return of his passport primarily for employment purposes, but the Minister's decision was based on a concern that the applicant might engage in conduct that could endanger the health or physical safety of others overseas or constitute an indictable Commonwealth offence.

The Tribunal was required to determine whether the evidence presented satisfied the threshold for cancelling a passport under section 14 of the *Australian Passports Act 2005* (Cth). Specifically, the Tribunal had to assess if there were reasonable grounds to suspect that the applicant was likely to engage in conduct that would endanger others or constitute a specified indictable offence. This involved considering the meaning of "likely" in this context, which requires a real, not merely remote, possibility of the conduct occurring.

The Tribunal reasoned that its review task was qualitatively different from the Minister's initial decision, as it had the benefit of detailed, legally tested evidence. It adopted the principle that a suspicion is satisfied if there is a real, and not remote, possibility of the person engaging in the specified conduct. The Tribunal acknowledged that the cancellation of the passport might have negative employment ramifications for the applicant, particularly concerning his career prospects. However, it concluded that the prevention of potential child sex crimes overseas must be given greater weight than these employment impacts.

Consequently, the Tribunal affirmed the Minister's decision to cancel the applicant's passport.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal agrees with this submission. The cancellation of the Applicant’s passport may have employment ramifications that are impossible to determine at this juncture. However, insofar as the Applicant’s employer is aware of the offences he perpetrated in Queensland (and provided a reference) and is aware of the offences he committed in Fiji, it is unlikely that his employment would be terminated simply because he could not travel to New Zealand once a year. With the employment of Microsoft Teams and other technology, the ability of persons to participate remotely has been significantly enhanced. It may be, however, that the loss of the Applicant’s passport could negatively impact on his career prospects. This would be an unfortunate by-product of a cancellation decision and would have a long-term negative impact on the Applicant. However, when assessing the possible negative career enhancement impact against the possible perpetration of child sex crimes overseas, it is clear that the prevention of such crimes must be given greater weight.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I determined to make a Confidentiality Direction so that the Applicant’s surname would not be published. This was done because the Applicant has an unusual surname, and its publication would not only draw attention to him, but also to his ex-wife and his stepdaughter.CONSIDERATIONIntroduction The legal representatives of the Minister drew the Tribunal’s attention to observations made in Thompson and Minister for Foreign Affairs [2019] AATA 2172 – Exhibit 2 p. 6 para 8. In that matter, the Tribunal noted that the request made by the ABF was legally valid; however, the issue was whether the evidence presented enabled the competent authority to suspect on reasonable grounds that, if an Australian travel document was issued, the holder would be likely to engage in conduct that might either endanger the health or physical safety of other persons or might constitute an indictable offence against a Commonwealth law specified in the Australian Passports Determination 2015 (Cth). Clearly that is the case, as the Tribunal stands in the shoes of the Minister, and the task required of the Tribunal is the same as that required of the Minister at the outset. The difference between the Minister’s decision and that of the Tribunal is a practical and evidentiary one. The material provided to the Minister is necessarily of a summary nature, moreover, the Minister does not hear testimony and have the opportunity of watching and listening to person’s give evidence. In short, the review task undertaken by the Tribunal is of a qualitatively different nature. While the issue to be determined is the same, the Tribunal has the benefit of focused, detailed and legally tested evidence. Next, it is submitted, on behalf of the Minister, that the threshold which must be satisfied before a request can be validly made under s 14(1) is low – Exhibit 2 p. 6 para 9. It was further submitted that the suspicion that a person is likely to engage in conduct is satisfied if there is a real, and not merely remote, possibility that the person will do so – Exhibit 2 p. 6 para 9(a). A number of authorities were quoted in support of this proposition, but the Tribunal will only need, initially, to refer to Saad and Minister for Foreign Affairs [2007] AATA 1675. The Tribunal in that matter made the following observations:“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 s 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’.”