William Lee and Minister for Foreign Affairs - [2015] AATA 142

[2015] AATA 142

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/5577

Re

William Lee

APPLICANT

And

Minister for Foreign Affairs

RESPONDENT

DECISION

Tribunal The Hon. Brian Tamberlin QC, Deputy President

Date 13 March 2015

Place Sydney
The decision under review is affirmed.

........................[sgd]..........................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
PASSPORTS – issue – date of birth given on passport application different to that on applicant’s birth certificate – discretion to endorse a travel document – decision affirmed
LEGISLATION
Australian Passports Act 2005 (Cth) s 55
CASES
Minister for Foreign Affairs v Lee (2014) 142 ALD 567; [2014] FCA 927
SECONDARY MATERIALS
Australian Passports Determination 2005 s 9.2
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
13 March 2015

This application was remitted to the Administrative Appeals Tribunal for reconsideration by the Federal Court in Minister for Foreign Affairs v Lee (2014) 142 ALD 567; [2014] FCA 927, which upheld an appeal on a question of law that there had been an error in the decision of the Tribunal.
The earlier decision of the Tribunal found to have been made in error was that the applicant was entitled to be issued with an Australian passport which recorded his date of birth as 1962 and which also had an endorsement to the effect that he used a different date of birth.
An Instrument Evidencing Change of Name dated 14 September 1995, which was in evidence, states that the applicant had ceased to use the name Libero Prevato and instead had begun to use the name LEE WILLIAM. The document states that:
In the future my new name will be used in all documents, transactions and on all occasions.
That Instrument evidencing the change of name was registered in the Land Titles Office on 14 September 1995.
A certified copy of the Birth Certificate of the applicant, naming him as Libero Prevato, dated 1 December 2010 shows he was born on 7 May 1962. It is uncontested that this is the applicant’s date of birth.
A later Birth Certificate dated 25 June 2012 states the applicant, named as William Lee, was born on 7 May 1962, but contains the following endorsement:
The full name of the registered person was previously recorded as Libero PREVATO, formerly known as Lee William PREVATO, formerly known as Lee WILLIAM, formerly known as Libero William PREVATO, formerly known as William Libero PREVATO. Registrar 22 June 2012.
The registered person has also used the date of birth 14 Feb 1966.
Registrar 22 June 2012
There was also in evidence an affidavit by Ms Samantha Callinan of the Department of Foreign Affairs and Trade dated 3 May 2013. As at May 2013 Ms Callinan was currently Acting Assistant Secretary for the Passport Client Services Branch and an officer of the Department of Foreign Affairs and Trade.
She states that “[t]he Department maintains the integrity of Australian passports in a number of ways, including through the application process.” She refers to passports held previously by the applicant…

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: [2015] AATA 142
Decision Date: 13 March 2015

CaseChat Overview and Summary

In the case of William Lee and the Minister for Foreign Affairs, the applicant sought a review of the decision by the Minister to refuse to issue a passport, due to a discrepancy in the date of birth provided on the passport application and that appearing on the applicant's birth certificate. The matter was heard and determined by the Federal Circuit Court of Australia.

The central legal issue before the court was whether the Minister's decision to refuse to issue a passport was lawful and justified, considering the discrepancy in the date of birth. The court had to consider the statutory framework governing the issuance of passports and whether the Minister had the discretion to endorse a travel document, particularly in circumstances where there was a minor discrepancy in the personal details.

The court found that the Minister had the authority to refuse to issue a passport under the relevant legislation, as the date of birth is a critical piece of information required for the issuance of a passport. The court acknowledged that while there may have been an honest error on the part of the applicant, the discrepancy was sufficient to warrant refusal. The court also noted that the Minister's decision was not irrational or unjust, and was therefore affirmed. The court did not find it necessary to order the Minister to issue a passport to the applicant.

Orders