FEDERAL COURT OF AUSTRALIA

Minister for Foreign Affairs v Lee [2014] FCA 927

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The parties confer for the purpose of filing by 5 September 2014 agreed short minutes dealing with the extent to which the decision of the Tribunal should be set aside and the case be remitted to be heard and decided again by the Tribunal. If short minutes cannot be agreed then each party is to file by 12 September 2014 the short minutes for which that party contends.

3.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal is from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 24 March 2014 and concerns an endorsement on a passport under the Australian Passports Act 2005 (Cth) (the Passports Act). The appeal is limited to a question of law.

2    The decision of the Tribunal was as follows:

The decision under review is varied. I find the correct and preferable decision to be that:

(a)    The applicant is not entitled to be issued with an Australian passport which records xx xxxx 1966 [14 February 1966] as his date of birth.

(b)    The applicant is entitled to be issued with an Australian passport which records his date of birth as xx xxxx 1962 [7 May 1962] but which contains an endorsement to the effect that the applicant has also used the date of birth xx xxxx 1966 [14 February 1966].

3    As found by the Tribunal, and about which there is no dispute, the respondent’s correct date of birth is 7 May 1962 and not 14 February 1966.

4    The applicant, the Minister for Foreign Affairs (the Minister), appeals from the Tribunal’s decision in so far as it decided to vary the decision under review so as to require the issue of a passport to the respondent containing an endorsement to the effect that he “has also used the date of birth xx xxxx 1966 [14 February 1966].”

The legislation

5    As expressed in s 3, the principal object of the Passports Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.

6    By s 8(b), before issuing an Australian passport to a person, the Minister must be satisfied of the identity of the person. By s 7(2), an Australian citizen’s entitlement to be issued with an Australian passport under s 7(1) is affected by, relevantly, s 8.

7    Sections 42 and 43 set out details about how the Minister satisfies himself or herself of an Australian passport applicant’s identity. By s 42, the Minister may request, amongst others, a person specified in a Minister’s determination to disclose to the Minister, or to a delegate, personal information about an applicant for an Australian travel document. “Australian travel document” is defined in s 6(1) of the Passports Act to mean an Australian passport or a travel-related document. By s 42(5) the Minister may disclose personal information to a person specified in a Minister’s determination. The personal information referred to in s 7.1 of the Australian Passports Determination 2005 (Cth) (the Determination) for the purposes of s 42(5) specifies the person’s date of birth, amongst other things.

8    By s 43 of the Passports Act a Minister’s determination may specify kinds of personal information that may be requested by the Minister for the purposes of Pt 2 of that Act. One of the kinds of personal information the Minister may request for the purpose of satisfying himself or herself of the person’s identity under s 8(b) is the person’s date of birth as shown in the records held by the Registrar of Births, Deaths and Marriages of an Australian State.

9    By s 29 of the Passports Act it is an offence to make a statement in, or in connection with, an application for an Australian travel document if the statement is false or misleading. By s 30 it is an offence to give information to another person in, or in connection with, an application for an Australian travel document if the information is false or misleading. By s 31 it is an offence to produce a document to another person in, or in connection with, an application for an Australian travel document if the document is false or misleading.

10    Section 55 of the Passports Act provides as follows:

55 Endorsements and observations

The Minister may endorse, or make observations on, Australian travel documents in the circumstances specified in a Minister’s determination.

11    “Minister’s determination” is defined in s 6(1) to mean an instrument made by the Minister for the purposes of the Passports Act under s 57.

12    Section 57 provides that the Minister may, by legislative instrument, specify any of the matters that the Passports Act provides may be specified in a Minister’s determination.

13    Section 53 of the Passports Act provides for passports to be issued in the name of the Governor-General and in forms approved by the Minister. Section 54 provides that a passport, amongst other Australian travel documents, “remains the property of the Commonwealth at all times”.

14    The Determination provides, relevantly:

9.2 Endorsements and observations

In issuing an Australian travel document, the Minister may endorse, or make an observation on, that travel document to specify such particulars as the Minister thinks fit.

15    The statutory jurisdiction of the Tribunal was conferred by s 50(1) of the Passports Act. It was not submitted that the power in s 55 of the Passports Act was not, in a proper case, available to the Tribunal when reviewing an application to refuse to issue a passport.

The notice of appeal

16    The Minister seeks an order that the decision of the Tribunal dated 24 March 2014 be set aside and the case be remitted to the Tribunal for reconsideration in accordance with the reasons of the Court.

17    The questions of law as stated in the Minister’s notice of appeal are as follows:

1.    Whether, and in what circumstances, misconstruction or misapplication of an applicable departmental policy constitutes a failure to take into account a relevant consideration.

2.    Whether the fact that a proposed endorsement on a passport may assist the holder in explaining a discrepancy between the bio-data set out in the passport and the contents of other documents (such as the holder’s driver’s licence) is an irrelevant consideration in the exercise of the power conferred by s 55 of the Australian Passports Act 2005 (Cth) (the Passports Act).

3.    Whether reliance on the consideration that a proposed endorsement on a passport may assist the holder in explaining a discrepancy between the bio-data set out in the passport and the contents of other documents (such as the holder’s driver’s licence), as the sole reason for making the endorsement, amounts to the exercise of the power in s 55 of the Passports Act for an improper purpose.

18    The grounds relied on in the Minister’s notice of appeal are as follows:

1.    The Tribunal’s conclusion (at [22]) that the proposed endorsement was not inconsistent with the policy entitled “Alterations and endorsements in travel documents” (the Policy):

(a)    involved a serious misconstruction of its terms or misunderstanding of its purposes;

(b)    caused the Tribunal to fail to have regard to the content of the Policy; and thereby

(c)    resulted in a failure to take into account a relevant consideration.

2.    By giving weight (at [24]) to its conclusion that the proposed endorsement “would assist [the Respondent] in explaining the discrepancy between the date of birth on his passport, and that in other documents such as his driver’s licence”, the Tribunal took into account an irrelevant consideration.

3.    In relying on its conclusion that the proposed endorsement “would assist [the Respondent] in explaining the discrepancy between the date of birth on his passport, and that in other documents such as his driver’s licence” as the only factor supporting its decision to require the endorsement, the Tribunal purported to exercise the power in s 55 of the Passports Act for an improper purpose.

The Tribunal’s reasons

19    The present respondent lodged the presently relevant application for a passport dated 30 July 2012. His application was refused as the Minister was not satisfied of the respondent’s identity. That decision was affirmed on internal review and the respondent sought review of the decision.

20    The Tribunal found as follows.

21    The present respondent had previously held three Australian passports, one issued on 20 September 1983, the second on 13 September 1985 and the third on 22 September 1995. These passports were issued showing the respondent’s date of birth as 7 May 1962.

22    The respondent previously lodged a passport application dated 6 December 2010 wherein he stated his date of birth as 14 February 1966. The Department wrote to the respondent advising that a new passport could not be issued at that stage as the date of birth on the 2010 application did not match the date of birth on his birth certificate. The 2010 application did not proceed to determination.

23    On 30 July 2012 the respondent lodged the present application for an Australian passport. There he again stated that his date of birth was 14 February 1966. The delegate refused to issue the passport on the basis that he was not satisfied of the respondent’s identity as the date of birth appearing on his birth certificate — 7 May 1962 — did not match the date of birth given on his passport application form — 14 February 1966.

24    In his internal review application, the respondent requested that he be issued with an Australian passport containing an observation to the effect that he had also used the date of birth 14 February 1966. As noted by the Tribunal at [16], the present respondent in his submissions to the Tribunal no longer sought the endorsement to which he had referred in his internal review application, apparently being of the view that his more recent passport had contained the incorrect 1966 date of birth. The Tribunal was satisfied that no passport had previously been issued to the present respondent which recorded his incorrect date of birth.

25    The respondent’s birth certificate as issued on 25 June 2012 shows his date of birth as being 7 May 1962 but also contains the following endorsement:

The registered person has also used the date of birth 14 Feb 1966.

26    The internal review officer affirmed the decision not to issue an Australian passport that showed the respondent’s date of birth as 14 February 1966 but she indicated that, subject to the respondent’s agreement, she would be willing to issue the respondent with a passport which showed his date of birth as 7 May 1962.

27    The respondent’s driver’s licences — issued since at least 2000 — showed his date of birth as being 14 February 1966.

28    As I have indicated, the Tribunal found, at [20], that the respondent’s correct date of birth was 7 May 1962 and not 14 February 1966. The Tribunal therefore found that the respondent was not entitled to be issued with an Australian passport showing a date of birth of 14 February 1966. No issue arises from that part of the Tribunal’s decision.

29    The Tribunal then went on to consider whether the respondent’s passport should contain an endorsement. The full reasoning of the Tribunal on this point was as follows:

21.    The [Minister] referred to its policy titled “Alterations and endorsements in travel documents” which provides guidance for decision makers in exercising the discretion under s 55 of the Act and s 9.2 of the Determination, and was included in the “T” documents. The policy provides that endorsements “must not conflict with, or be used to try to alter any personal details on the bio-data page”. The respondent submitted, and I accept, that the policy is consistent with international standards relating to the content and format of international travel documents. One requirement is that the passport holder’s date of birth be “as recorded by the issuing State”: ICAO Document 9303: Machine Readable Travel Documents which is annexed to the Convention on International Civil Aviation.

22.    I do not consider that an endorsement that “has also used the date of birth xx xxxx 1966” to be inconsistent with the policy or the international obligations the policy reflects. As discussed above, such an endorsement is unequivocal in its terms – it is only that the [present respondent] has used a different date of birth. Further, it could possibly even be said, that in any event such an endorsement precisely accords with the information on his birth record.

23.    The [Minister] submitted that there is a public interest in ensuring the integrity of Australian passports as an identity document, including to aid in the prevention of identity theft and passport fraud. I unreservedly agree. However, I do not accept that this objective would be undermined if the inclusion of an endorsement or observation would result in conflicting dates of birth being shown in a passport. Only one date of birth is shown. The endorsement merely acknowledges that the [present respondent] has used another date of birth too.

24.    I accept that having a s 55 endorsement on his passport that he “has also used the date of birth xx xxxx 1966” would assist the [present respondent] in explaining the discrepancy between the date of birth on his passport, and that in other documents such as his driver’s licence.

25.    The [Minister] submitted that there are no special circumstances in the [present respondent]’s case which would warrant a departure from its policy in relation to endorsements and observations, or that would override the public interest in protecting the integrity of passports as documents of identity. Having found that the endorsement is not inconsistent with the policy, this submission falls away.

The parties’ submissions

Ground 1

30    The applicant Minister submitted that the Tribunal’s analysis of the policy referred to only one sentence. That sentence must be understood in its full context. First, the purpose of the Passports Act was to provide for passports to be used as evidence of identity and citizenship when travelling outside Australia. Secondly, the policy erected a tightly controlled regime for the inclusion of additional information in a travel document, of which the sentence quoted by the Tribunal was only one element. The correct understanding of the policy was that it covered the field of permissible endorsements, so that the only endorsements permitted to be made on a travel document were those referred to in the policy itself. It did not merely prohibit endorsements that conflicted with “personal details on the bio-data page” so as to otherwise leave the issue to the discretion of the issuing officers. In concluding that the endorsement was “not inconsistent with” the policy the Tribunal acted on a misunderstanding of the terms and effect of the policy. That misunderstanding was fundamental. Although the policy was not binding in any direct statutory sense, it had long been established that the existence and content of a lawful government policy guiding the exercise of a statutory power was a matter which the Tribunal was bound to take into account and give such weight as it thought proper: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (Gray) at 206. In this context, the duty to take into account a “policy” is not satisfied merely by reading and considering the document in which the policy is expressed. Rather, the “policy” is the set of objectives or preferred outcomes which such a document, properly construed, expresses. Accordingly, to proceed on a serious misconstruction of the terms in which policy was expressed was to fail to have regard to the relevant “policy”, and to have regard instead to something else. The Tribunal, by acting on an incorrect understanding of what the policy required, failed to take into account a relevant consideration and thus erred in law: Gray at 208 and 211.

31    The respondent submitted that the decision of the Tribunal so far as concerned the endorsement was consistent with the endorsement on the respondent’s birth certificate as issued on 25 June 2012.

32    The respondent submitted that s 7.2 of the Determination was silent as to whether the date of birth on an Australian passport ought to be the same as appears on the birth certificate.

33    The respondent submitted that the policy in effect required the place of birth recorded in an Australian passport to be the same as appears on the person’s cardinal document (i.e. the Australian birth or citizenship certificate). The policy reflected a concern to ensure that the bio-data pages of an Australia passport reflected the bio-data contained in the passport holder’s cardinal document or documents.

34    In light of the identified purposes of the Australian passport, the additional information, it was submitted, may include matters pertaining to the bearer’s identity so long as that additional information was included in an endorsement that was not inconsistent with any personal details on the bio-data page.

35    Read as a whole, the policy did not purport to limit the generality of the additional information referable to a person’s identity that may be included in an endorsement. The policy could not be said to be a comprehensive guide as to permissible endorsements on Australian passports and did not cover the field.

36    It was common ground, the respondent submitted, that the Tribunal was bound to take into account the policy as a relevant factor in determining whether the decision the subject of the review was the correct or preferable decision. However, it could not be said that the Tribunal failed to take the policy into account in making its decision. In this respect, the Tribunal was correct to identify and give weight to the central and operative consideration identified in the policy in the manner in which it did. That central and operative consideration identified in the policy was that the endorsement must not conflict with, or be used to try to alter, any personal details on the bio-data page. Further, the Tribunal referred in terms to other matters identified in the policy, such as consistency between the information contained in a passport and a cardinal document, the maintenance of the integrity of Australian passports as identity documents, and that the endorsement would facilitate the respondent explaining the discrepancy between his passport and driver’s licence (and thus establishing his identity).

37    In reply on this ground the Minister submitted that, contrary to the respondent’s submissions, the Tribunal did not give weight to the central and operative consideration identified in the policy but rather identified one express prohibition in the policy which the proposed endorsement did not infringe (a consideration which was therefore not operative in the present circumstances) and proceeded on that basis to treat the policy as having no bearing on the case. In oral submissions, the Minister accepted that it was open to the Tribunal to find that the endorsement did not conflict with or would be used to try to alter any personal details on the bio-data page, but submitted that the Tribunal erred because the policy, properly construed, had more to say about the subject of endorsements than the particular limitation which the Tribunal identified. The express provision denying passport staff any authority to vary the text of an endorsement from the standards listed, read in context, was at odds with the respondent’s submission that the policy accorded flexibility. Properly understood, the Minister submitted, the policy was exhaustive as to the matters that could be reflected in an endorsement.

38    The issue of consistency with a passport applicant’s cardinal document was, the Minister submitted, a distraction. While it was true that a section of the policy which was not before the Tribunal called for the bearer’s date of birth as recorded in a travel document to be the same as appears on the person’s cardinal document, that requirement was met in the present case by recording the respondent’s correct date of birth on the bio-data page of the passport. Nothing in the policy called for, or permitted, additional notes or endorsements on the relevant cardinal document to be reflected in endorsements on the person’s passport. Permissible subject-matters for endorsements were expressly set out. In oral submissions, the Minister submitted that the endorsement about the use of another incorrect date of birth was not information relevant to the true identity of the bearer of the passport and in that respect the Tribunal had misconstrued the policy.

Grounds 2 and 3

39    The applicant Minister submitted that the primary purpose of the Passports Act as expressed in s 3, and the importance of the integrity and reliability of passports as evidence of identity and citizenship, were reflected in:

(a)    the requirements of satisfaction as to a person’s identity and citizenship before a passport is issued: reference was made to s 8 and the offence provisions in ss 29–31;

(b)    provision for a passport to be refused in circumstances where facilitating overseas travel by a person would be undesirable or where previous passports had been reported lost or stolen: reference was made to ss 11–14, 18–19 and 15;

(c)    provisions for officers to demand the surrender of travel documents in certain circumstances: ss 23–24;

(d)    penalties for selling, damaging or dishonestly obtaining a travel document (ss 33–35), possessing false travel documents (s 36), the issue of documents contrary to the Act (ss 38–39), and failure to report a lost or stolen travel document (s 41).

40    The scheme of the Passports Act reflected the traditional concept of a passport as explained in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 307 per Burchett J:

At common law, the issue of a passport is an exercise of the royal prerogative by which the protection of the Crown is extended to the citizen who travels abroad: Halsbury’s Laws of England (4th ed), Vol 18, par 1412. Lord Alverstone CJ described a passport in R v Brailsford [1905] 2 KB 730 at 745 as “a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries”. In Australia, the issue of passports is regulated by the Passports Act, but their nature remains unchanged. Section 7 provides that Australian passports “shall be issued in the name of the Governor-General”.

In essence, the Minister submitted, a passport was a form of communication between states, whereby the issuing state vouched for the identity of its citizen and asked foreign states to provide safe passage to him or her.

41    The provision of assistance to the respondent in “explaining the discrepancy” between the date of birth on his passport and that shown in other documents was at best irrelevant to the purposes for which the Passports Act authorised the issue of passports. There was no finding by the Tribunal to suggest that those other documents had any bearing on the purposes for which a passport was issued. The integrity and effectiveness of a passport as evidence of a person’s identity and citizenship when travelling internationally were not enhanced by an endorsement which recognised the person’s adoption of an alternative identity.

42    In giving weight to the convenience of the respondent in maintaining his use of a fictitious birthdate for some purposes, the Tribunal had regard to an irrelevant consideration or exercised the power in s 55 for an improper purpose on the basis that the only purpose identified was one which was extraneous to the purposes of the Passports Act.

43    The respondent submitted there were two considerations identified by the Tribunal as supporting the endorsement: (a) the endorsement precisely accorded with the information in the respondent’s birth record; and (b) the inclusion of the endorsement would explain the discrepancy between the date of birth of the respondent’s passport and the date of birth on the respondent’s driver’s licence. The first consideration, (a), flowed from two matters identified in the policy being the consistency of bio-data pages in the passport with the bio-data contained in a cardinal document and attestation of the passport as to the identity of an Australian citizen. The second consideration, (b), flowed from at least the attestation of the passport as to the identity of an Australian citizen. While not adverted to in terms by the Tribunal, any discrepancy between the date of birth recorded on the respondent’s driver’s licence and as would be recorded on his passport would need to be explained as a matter going directly to the respondent’s identity. The endorsement did not involve the recognition of an alternative identity adopted by the respondent but operated, in a manner consistent with the policy, to record additional information relevant to the respondent’s identity.

44    In reply on these grounds 2 and 3, the Minister submitted that the only factor that could be seen as having actuated the Tribunal’s exercise of the discretion in s 55 (as distinct from answering objections to it) was helping the respondent to explain the inconsistency between his passport and other documents. The Tribunal pointed out that the proposed endorsement accorded with the information in the respondent’s birth record only in the context of its finding that the endorsement would not conflict with information on the bio-data page and thus would not be in conflict with the policy. The Tribunal’s reasons did not suggest that the point carried any positive weight as a reason why the endorsement should be made. The identification of a second consideration supporting the endorsement did not assist the respondent in answering ground 2 in the application. In any event, the additional consideration so identified was itself irrelevant to the proper exercise of the discretion. The inclusion of an endorsement manifestly had no bearing on the consistency of the passport’s bio-data pages with the respondent’s birth record: that was achieved by the correct recording of his name, and place and date of birth, on those pages. Nor did acknowledgement of the respondent’s use of an alternative identity (i.e. claiming a fictitious date of birth) have any relevance to the attestation of his true identity.

45    The Minister submitted that the discrepancy between the dates of birth recorded in the respondent’s passport and his driver’s licence was not an aspect of his “identity”, or a matter relevant to establishing it. The function of the passport was to record the respondent’s identity correctly and provide evidence of it (together with his Australian citizenship). If another document recorded an aspect of his identity incorrectly, he might possibly face questions as to why that was so; but it was not the function of a document of identity to assist with those questions.

46    Some time was spent in oral submissions on the question whether a person’s identity was objective and the respondent referred to Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] HCA 11; (2014) 250 CLR 490 in support of the proposition that a person’s date of birth, along with his or her name and gender, was not necessarily objective. In my opinion a person has one date of birth even if, in a particular case, that date is difficult to ascertain. In the present case, the Tribunal has found that fact and there is no challenge to that finding.

47    Similarly, in response to questions from the Court, time was spent in oral submissions on the provisions of the Births, Deaths and Marriages Registration Act 1995 (NSW), in particular s 43. That section relevantly provides:

43 The Register

(1)    The Registrar must maintain a register or registers of registrable events.

(2)    The Register:

(a)    must contain the particulars of each registrable event required under this Act, or another law, to be included in the Register, and

(b)    may contain such further information as the Registrar considers appropriate for inclusion.

…

In that respect I conclude that the Register must contain the particulars, including the date of birth, of the registrable event being the birth: see the Births, Deaths and Marriages Registration Act ss 4 and 14 and the Births, Deaths and Marriages Registration Regulation 2011 (NSW) reg 5. The birth certificate dated 25 June 2012 in respect of the respondent, containing the endorsement “[t]he registered person has also used the date of birth 14 Feb 1966”, fell within s 43(2)(b), conferring a discretion on the Registrar by virtue of which the Register may contain such further information as the Registrar considers appropriate for inclusion.

Consideration

48    It may be inferred that the Tribunal, standing in the shoes of the Minister, thought fit that the passport be endorsed to specify the particulars, within the meaning of s 9.2 of the Determination.

49    As will have been seen, the Tribunal referred to three matters in its decision that the respondent’s passport should contain the endorsement.

50    The first, at [22], was that an endorsement that the respondent had also used the (incorrect) 1966 date of birth would not be inconsistent with the policy or the international obligations the policy reflected. The Tribunal said that the endorsement would be only that the present respondent had used a different date of birth (my emphasis). In my opinion that reason, lack of inconsistency with the policy, cleared away an obstacle and of itself was not the reason for deciding that the present respondent’s passport was to include the endorsement. The Tribunal also stated that it could possibly even be said that the endorsement precisely accorded with the information on the present respondent’s birth record. I would not regard that observation as an operative part of the Tribunal’s reasons. The terms in which it was expressed are too tentative. It follows that I do not need to consider further the terms of the Births, Deaths and Marriages Registration Act.

51    The second reason, at [23], was that the public interest in ensuring the integrity of Australian passports as an identity document would not be undermined if the inclusion of an endorsement or observation would result in conflicting dates of birth being shown in a passport. Only one date of birth was shown. The endorsement merely acknowledged that the present respondent had used another date of birth too (my emphasis). This paragraph is difficult to understand in so far as it refers to “conflicting dates of birth” as the balance of the Tribunal’s reasoning tends against the conclusion of conflict. Perhaps the word “not” is missing before the word “result”. More importantly, in my opinion, this reason cleared away a further obstacle and of itself would not be the reason for deciding that the respondent’s passport was to include the endorsement.

52    The third reason, at [24], was that the endorsement would assist the present respondent in explaining the discrepancy between the date of birth on his passport, and that in other documents such as his driver’s licence. In my opinion this was the substantial reason for deciding that the respondent’s passport should include the endorsement: in context, without that reason the Tribunal would not have so decided. I do not accept the respondent’s submission that this was a secondary or subsidiary consideration and not one that necessarily actuated the Tribunal’s decision in this case.

53    In my opinion, it is outside the purpose of the Passports Act that a passport be used to contain, even as an endorsement, a date of birth known to be incorrect so that it may be used to explain the existence in another document of an incorrect date of birth. That consideration stands outside the scope of the discretion. It seems to me that endorsing a passport, or making an observation on a passport, to the effect that the holder has used another (incorrect) date of birth or has on his driver’s licence another (incorrect) date of birth would be to exercise the discretion for a purpose outside the Passports Act. The relevant purpose or object of the Passports Act is to record the identity of the bearer of the passport, identity being the true facts concerning the passport holder’s relevant characteristics, here the date of his birth. The statutory provisions to which I have referred at [5]–[10] above so demonstrate.

54    In light of my findings at [52] above it is unnecessary to consider the expression of the test where an improper purpose, in the sense of a purpose extraneous to the statute, is found amongst a combination of purposes: see Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40 at [287]. However, in my opinion the authorities there referred to, Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 at 106 (Thompson) and Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 (Samrein) at 469, albeit resumption cases, are not accurately reflected by saying that the exercise will be invalid only if an improper purpose was the “substantial” or the “true and dominant” purpose of the exercise of the power. In Thompson the High Court spoke of where “such a purpose is a substantial purpose in the sense that no attempt would have been made” to exercise the power if it had not been for the purpose found to be improper (my emphasis). In Samrein, the High Court spoke of whether an unauthorised purpose was a substantial purpose of the acquisition (my emphasis).

55    The only specific discrepancy referred to by the Tribunal at [24] was the respondent’s driver’s licence.

56    The Road Transport (Driver Licensing) Regulation 2008 (NSW) provided:

10    Form of driver licence (cf cl 22 1999 Reg)

(1)     A driver licence must show:

(a)     a licence number for the person to whom it is issued, and

(b)    the full name of the person, and

(c)     a photograph of the person, and

(d)     the person’s date of birth, and

…

By s 22 of the Road Transport (Driver Licensing) Act 1998 (NSW) (see now the Road Transport Act 2013 (NSW) s 49) a person must not by a false statement or any misrepresentation or other dishonest means, obtain or attempt to obtain a driver licence.

57    In my opinion it is foreign to the purpose or object of the Passports Act that a passport be used to assist the present respondent in explaining a discrepancy between the correct date of birth on his passport and the incorrect date of birth on his driver’s licence where, it would appear, consistently with the provisions of the State Act, the incorrect date should not have appeared on the driver’s licence.

58    I have not found it necessary to reach a concluded view on question of law 1 or ground 1 in the Minister’s notice of appeal concerning the departmental policy.

59    In Gray there were two or possibly three categories explained at 208. The first category was where the existence and content of such a policy was to be regarded as a relevant fact which the Tribunal is bound to consider. Justices French and Drummond said that a serious misconstruction of the policy’s terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. The second category was where a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else. Justices French and Drummond said there may then be reviewable error. The third possible category was where “in a limiting case” a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose.

60    The present case, on the parties’ submissions, was within category one. However, it does not appear to me that the majority in Gray intended to depart from what had been said in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake) at 420, another criminal deportation case. There Bowen CJ and Deane J distinguished between a case where the Tribunal may be expressly required to regard itself as bound by the principles formulated by the Minister and the case before that Court which was where it was permissible for the decision-maker to take relevant government policy into account in making his decision but where the Tribunal was not under a statutory duty to regard itself as being bound by that policy. It may be correct to say, as the Minister submitted, that the first two categories referred to in Gray overlap. However, my preferred analysis is that the first category is where the decision-maker is bound to have regard to the existence and content of the policy, because it amounts to a mandatory relevant consideration, while the second category is where the decision-maker is not bound to apply a policy but purports to apply it as a proper basis for disposing of the case in hand. In any event, there was no Ministerial policy in the present case and it may be that, despite the agreement of the parties, the present case is in the second category, being a case where the Tribunal was not bound to have regard to the departmental policy but chose and purported to do so. In such a case, as I understand Gray, the misconstruction or misunderstanding of the policy must be more radical than for the first category. A further complication is that there appears to have been a number of decisions of the Court which seem to elide the use of “relevant” in its ordinary sense of permissible to be taken into account, as in Drake, and “relevant” in its technical sense of a mandatory consideration. These decisions include Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 81; BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665 at 682; and Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1 at 15. On that approach, which appears to be that a valid but non-statutory policy is not binding upon a decision-maker but is always a mandatory relevant consideration in the making of a decision, it is not clear what the content is of the second category in Gray. Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [58] also suggests there may be no relevant distinction for this purpose between a Ministerial policy and a departmental policy.

61    As I have said, it is not necessary in the present case to attempt to resolve these complexities. In my opinion the Tribunal erred in exercising its discretion on the basis that it was a purpose of the Passports Act to assist the present respondent to explain the discrepancy between the correct date of birth on his passport, and the incorrect date of birth in other documents, particularly on his driver’s licence.

62    However, I observe that in my opinion to include a reference to an incorrect date of birth as an endorsement would be inconsistent with the policy because an incorrect date of birth is not information which is relevant to the identity of the bearer. Put differently, to state the fact that the respondent had also used an incorrect date of birth is to make a statement about the respondent’s practices rather than about his identity. I would not accept the submission on behalf of the respondent that any discrepancy between the date of birth recorded on the respondent’s driver’s licence and as would be recorded on his passport would need to be explained as a matter going directly to his identity or that the endorsement would operate to record additional information relevant to the respondent’s identity.

63    I should mention one other aspect of the hearing of the appeal. Counsel for the respondent sought to tender pages of the departmental policy which were not before the Tribunal. I marked that material MFI 1 and indicated that I would rule on its admissibility in the course of my reasons for judgment. In my opinion that material is not admissible as evidence to support the Tribunal’s decision, in particular its construction of the departmental policy. It is difficult to see how the correctness or incorrectness of the Tribunal’s construction of that policy could be affected by parts of the policy which the Tribunal did not have before it. In any event, the parts sought to be tendered did not, in my opinion, take the matter any further than the terms of the Passports Act and the Determination. For example, counsel for the respondent sought to emphasise a reference at page 99 of 132 to the place of birth and gender in an Australian travel document being the same as appears on the person’s cardinal document (i.e. the person’s Australian birth certificate). However, that part of the policy refers to s 7.2 of the Determination, which in turn is a reference to the Minister requesting certain kinds of personal information for the purpose of satisfying himself or herself of the person’s identity and the kind of personal information there specified is, relevantly, the person’s date of birth as shown in the records held by the Registrar of Births, Deaths and Marriages of the relevant Australian State. In my opinion the date of birth in those records, the cardinal document, is the respondent’s correct date of birth and not his incorrect date of birth shown on the Registrar’s endorsement. I reject the tender.

Conclusion

64    The appeal should be allowed. It was common ground before me that in those circumstances the appropriate disposal of the appeal was an order remitting the case to be heard and decided again by the Tribunal. I will give the parties an opportunity to file agreed orders or, failing agreement, competing orders on the extent to which the decision of the Tribunal should be set aside and remitted to be heard and decided again by the Tribunal.

65    As to costs, the Minister agreed that if the appeal were allowed he did not seek an order for costs.

Associate:

Dated:    29 August 2014