FEDERAL COURT OF AUSTRALIA

Khan v Minister for Foreign Affairs & Trade [2006] FCA 955

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Tribunal’s dismissal of application on ground “frivolous or vexatious” within s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) – application by father of child for review of decision to issue passport to child, allegedly procured by mother’s misrepresentations – term of passport long since expired – no order available to Tribunal that would serve applicant’s purpose.  Held: not shown that Tribunal erred in law in deciding proceeding frivolous or vexatious.

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(a)

Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 followed

KHALIQUE KHAN v

MINISTER FOR FOREIGN AFFAIRS AND TRADE & ANOR

NSD 937 of 2006

LINDGREN J

19 JULY 2006

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A PRESIDENTIAL MEMBER

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”).  By that decision, made on 18 April 2006, the Tribunal dismissed the present applicant’s application before it.  The dismissal was pursuant to s 42B(1)(a) of the AAT Act which gave the Tribunal power to dismiss an application if satisfied that the application was “frivolous or vexatious”.

2                     The background facts are as follows.  A passport was issued under the Passports Act 1938 (Cth) (“the Passports Act”) in October 2004 to the young daughter of the applicant and the second respondent, on the application of the second respondent.  The second respondent caused the daughter, who was apparently in Pakistan at the time, to enter Australia pursuant to the passport on or about 19 October 2004.  Importantly, the passport was issued with limited validity for the period 11 October 2004 to 11 October 2005.  That is to say, the passport has been of no effect since 11 October 2005.

3                     Section 7A of the Passports Act specified the circumstances in which a passport might be issued to an unmarried minor.  Section 7A(2)(a) provided that, to be issued with a passport, the unmarried minor must furnish the written consent of each person who “is entitled to custody or guardianship of, or access to” the minor.  Both the mother and the father had a caring responsibility of this nature.  There were, however, circumstances in which a passport could be issued to an unmarried minor without the consent of each person with a caring responsibility for him or her.  In this case the approved senior officer was satisfied that the circumstances brought the case within a “special circumstances” exception to the general rule (pars (b) and (c) of s 7A(2) of the Passports Act).

4                     On or about 20 January 2005, the applicant, being dissatisfied with the decision to issue the passport, requested a review of the decision to issue it.  There followed correspondence between him and the Department of Foreign Affairs and Trade in which he submitted material in support of his request for review.  It will be appreciated that by this time the child was residing in Australia with her mother.

5                     On 7 October 2005, the delegate with the power to review the decision decided that the issue of the passport without the consent of both parents had been warranted.

6                     On 1 November 2005 the applicant lodged his application with the Tribunal for review of the decision to issue the passport.

7                     In March 2006 there was an interlocutory hearing before the Tribunal in which the representatives of the present respondents submitted that the proceeding was frivolous and vexatious and that the application should be dismissed under s 42B(1)(a) of the AAT Act.  On 18 April 2006, the Tribunal Member accepted that submission.  The substance of the Member’s reasoning was that the term of the passport had long since expired, she therefore could not revoke the passport, and there was no order that the Member could make that would undo the issuing of the passport.  Hence, she found that the proceeding before the Tribunal was futile and vexatious.

8                     The Member cited a decision of a Full Court of this Court in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3.  This case also involved an application for review of a decision which had had an effect for a limited period of time which had long since expired.  What was in issue was a quota of shark allocated to a fisherman in relation to the 2001 fishing season from 1 January to 31 December 2001.  By contract made on 17 December 2001, the fisherman had sold the quota and transferred to the purchasers the fishing permits to which the quota was attached.  In that case the Tribunal observed that the proceeding before it would lead to “no practical outcome for” the applicant, and was “futile” and “must be regarded as frivolous and vexatious”.  That decision was upheld by the Full Court.

9                     In his notice of appeal to this Court the applicant states that “the questions of law raised on the appeal are”:

“(a)     That the Tribunal erred in finding that the Applicant had available to him the avenue of complaint to the Ombudsman.

(b)       That the Tribunal erred in finding that the basis of the applicant’s application for review was to give comfort to those who are disaffected by a decision, in circumstances where no orders can be made which can change what has occurred when such finding was inconsistent with the orders that the applicant was seeking in the Tribunal.

(c)        That the Tribunal erred in finding that the domestic issues underlying the applicant’s concerns had now been resolved.”

10                  The Tribunal did not make a “finding” that the applicant had available to him an avenue of complaint to the Ombudsman (ground (a)), but merely noted that the solicitor of the Legal Aid Commission of New South Wales, who represented the applicant’s wife, indicated that in his view the applicant still had available to him that avenue of complaint.

11                  Ground (b) does not state a “finding” of the Tribunal either.  Part of ground (b) quoted from para 11 of the Tribunal’s reasons.  In that paragraph, the Tribunal was paraphrasing a submission.

12                  Likewise, the Tribunal did not make a “finding” that the domestic issues underlying the applicant’s concerns had been resolved (ground (c)).  Rather, the Tribunal member merely stated, by way of background (at [16]): “[t]o some extent, it seems that the domestic issues underlying Mr Khan’s concerns have now resolved”.

13                  None of the grounds (a), (b) or (c) constituted any part of the Tribunal’s reasons for its decision.

14                  Section 44 of the AAT Act provides for a right of appeal to this Court “on a question of law” from any decision of the Tribunal but the notice of appeal does not identify any question of law.

15                  In substance, however, the question of law that might have been framed is whether the circumstances proved on the evidence before the Tribunal were capable as a matter of law of being characterised as frivolous and vexatious.  I think that they were.

16                  The applicant has not been able to point to any utility in the proceeding before the Tribunal.

17                  The applicant has known since the decision of the Tribunal on 18 April 2006 that the substance of the Tribunal’s decision was that there was no remedy that the Tribunal could give consequential upon a determination that the passport had been obtained as a result of the alleged misrepresentations by his wife to the Department.

18                  At the directions hearing before me on 21 June 2006, Mr Muston, counsel for the Minister, made it plain that the same point would be relied upon in the present hearing, that is to say, that he would seek to sustain the reasoning of the Tribunal.

19                  Before me today, however, the applicant has not been able to suggest any order which it would have been within the power of the Tribunal to make which would flow from a finding that his wife had obtained the passport for his daughter as a result of the misrepresentations.  He has therefore not demonstrated that the Tribunal was not entitled at law to conclude that the proceeding before it was frivolous or vexatious.

20                  Of course, I am not addressing the merits of the applicant’s complaint against his wife just as the Tribunal did not address them.

21                  It may be that there are remedies available to the applicant but the remedy is not the one that the applicant sought before the Tribunal, that is, an inconsequential finding that his wife obtained the issue of the passport by misrepresentations.

22                  The question whether misrepresentations were made, I emphasise, is not something that has been the subject of determination by either the Tribunal or this Court, and it remains open to both the applicant and the second respondent to ventilate that matter elsewhere if it should arise before a different forum.

23                  For the above reasons the application should be dismissed with a costs order in favour of the first respondent (the second respondent was not legally represented).

Associate:

Dated:              27 July 2006