Whiteman and Minister for Foreign Affairs

[2024] AATA 1176

Whiteman and Minister for Foreign Affairs [2024] AATA 1176 (23 May 2024)

Division:GENERAL DIVISION

File Number:          2024/1930

Re:Philip Whiteman

APPLICANT

AndMinister for Foreign Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:23 May 2024

Place:Hobart

Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application because it is satisfied that the decision is not reviewable by the Tribunal.

..........................[sgd]..............................................

Senior Member D. J. Morris

Catchwords

PASSPORTS – applicant held Australian travel document – passport – passport cancelled owing to debt – applicant had avenue to have cancellation decision reviewed by Minister – no review by Minister – Tribunal does not have jurisdiction unless Minister has reviewed decision – application therefore dismissed

PRACTICE AND PROCEDURE – no review of initial decision by Minister – Tribunal’s powers limited to review of decisions by Minister under Act – statutory timeframe for review by Minister has expired

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Passports Act 2005(Cth)

REASONS FOR DECISION

Senior Member D. J. Morris

23 May 2024

1. On 26 March 2024 the Applicant, Mr Philip Whiteman, lodged an application with the Tribunal to review a decision by a delegate of the Minister for Foreign Affairs to cancel his Australian travel document, namely his passport.

2. In his application, Mr Whiteman quoted the number of his Australian passport, but stated that he did not know the name of the decision-maker nor the date of the decision. He wrote:

   The basis of cancelling my passport was based on incorrect information.

3. On 3 April 2024, an officer of the Registry of the Tribunal made inquiries of the Department of Foreign Affairs (‘the Department’), being the department that administers the Australian Passports Act 2005 (‘the Passports Act’) about any reviewable decision relating to the Applicant.

4. On 5 April 2024, the Department responded to advise that a decision was taken on 11 July 2022 to cancel Mr Whiteman’s passport under s 22(2)(d) of the Passports Act. However, a search had not discovered any records of an application for review of that decision, nor a decision under s 49(4) of the Passports Act.

5. On 19 April 2024, the Applicant wrote again to the Tribunal to provide further information and confirmed that the decision about which he was aggrieved was a decision on 11 July 2022 to cancel his passport.

   THE LEGISLATION

6. Section 22(1) of the Act states that, subject to s 22AA, the Minister may cancel an Australian travel document. Section 22AA is not relevant to Mr Whiteman’s case.

7. Section 22(2)(d) of the Passports Act provides:

   (2) Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:

   …

   (d)         a competent authority makes a refusal/cancellation request in relation to the person; …

8. The phrase ‘competent authority’ is defined in s 16(4) of the Passports Act as “in relation to a debtor, means a person who has authority to incur expenses on behalf of, or lend money to, the debtor on behalf of the Commonwealth.”

   CONSIDERATION

9. It would appear from the Department’s advice that the Applicant’s passport was cancelled by a delegate of the Minister on the basis that a competent authority requested that it be cancelled (s 22(2)(d)). The Tribunal can glean, even with the sparse information before it, that this might be associated with a debt owed by the Applicant for past financial assistance overseas, because the definition of ‘competent authority’ is found in s 16(4) of the Act, relating to financial assistance to travellers.

10. A person may, under s 49 of the Passports Act, apply to the Department for a review of such a decision by a delegate, but must do so within 28 days of the decision.

11. If the person is still dissatisfied with a decision of the Minister on review, that decision is reviewable under s 50 of the Passports Act by the Tribunal.

12. The problem for Mr Whiteman is that the Department advises that no reviewable decision has been made under s 49 of the Passports Act, and they cannot locate any request by Mr Whiteman for a review.

13. The Tribunal’s power to review decisions is limited by s 25 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Section 25 provide that an enactment may provide for applications for review of decisions (‘enactment’ meaning a Commonwealth Act). In this case, the enabling power that gives the Tribunal jurisdiction is s 50 of the Passports Act, but that only allows the Tribunal to review decisions by the Minister under s 49. The Tribunal cannot review a decision at first instance by an officer acting under the Act.

14. As the period of 28 days for Mr Whiteman to seek a ministerial review of the 11 July 2022 decision to cancel his passport has clearly expired, the best course of action for Mr Whiteman is to apply afresh for a new Australian passport. If, as he says in his application, the basis of the cancellation was incorrect, he can explain this to the Passport Office.

15. However, the unfortunate outcome for Mr Whiteman in terms of his application to the Tribunal is that I must find that there is no jurisdiction to review the decision in July 2022 to cancel his passport.

    DECISION

16. Pursuant to s 42A(4) of the AAT Act, the Tribunal dismisses the application because it is satisfied that the decision is not reviewable by the Tribunal.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................. [SGD].......................................

Associate

Dated: 23 May 2024