HELP! My passport is being cancelled?

This short note is to provide some information for those who’s Australian passport is about to be or has been cancelled.

The Australian Passports Act 2005 (Cth) (Act) came into effect on 1 July 2005. It sought to ‘balance the citizen’s sense of entitlement to a passport’ with the government’s duty to protect Australia. The Act allows the government to refuse to issue passports to criminals, terrorists, persons using false identities, and to children lacking appropriate parental supervision or relevant court sanction to travel, and to cancel passports once issued.

The Act also changed the basis upon which ministerial discretion operated. It prescribed in detail the circumstances where the Minister for Foreign Affairs, or his delegate, may (or must) refuse or cancel a passport. It also makes those decisions reviewable under the Administrative Appeals Tribunal Act 1975 (Cth).

The Minister has discretion to cancel or refuse to issue a passport where a competent authority has reasonable grounds to believe that a person is ‘likely to engage in conduct … prejudic[ial to] the security of Australia or a foreign country,’ or ‘might endanger the health or physical safety of other persons’, or ‘might interfere with the rights or freedoms of other persons’ or if the person’s conduct might constitute an indictable offence under the Act or another law of the Commonwealth ‘specified in a Minister’s determination.’ In practice, this means offences relating to national and international security (including terrorism), illicit drugs, pedophilia or child
pornography, or violent offences.

Australian citizens do not need to obtain a visa under the Migration Act 1958 (Cth) in order to re-enter Australia from overseas. However, this does not necessarily mean that Australian citizens have an ‘absolute right of re-entry’ into the country. Section 4(3) of the Migration Act provides that the Act requires citizens, as well as non-citizens, to identify themselves upon entering Australia — although the purpose of this is expressed as being furtherance of the Migration Act’s object of regulating the entry into and presence in Australia of non-citizens. The key provision to this end is s 166(1), which requires both citizens and non-citizens to present identification evidence for immigration clearance when entering Australia. For Australian citizens, this identification evidence typically consists of the person’s passport.

Refusal or cancellation of a citizen’s passport deprives that citizen of the right to travel abroad. If a person’s passport is cancelled while they are overseas, the cancellation would, in a practical sense, deprive them of the capacity to re-enter Australia.

As noted above, the Act provides for certain decisions made by the Australian Passport Office to be reviewable decisions. The decisions that are reviewable include a decision to cancel an Australian travel document and a decision to demand the surrender of an Australian travel document, amongst other things.

If a review of a decision is requested, the Department of
Foreign Affairs and Trade will appoint an internal review officer who has not been involved in the original decision to examine all the facts carefully. The original decision may be affirmed; it may be varied; or it may be set aside and a new decision made in its place, with the applicant notified of the outcome of the review as soon as possible. If an applicant is still not satisfied following the internal review, they may seek to have the decision reviewed by the Administrative Appeals Tribunal.

If you are issued a notice telling you that your passport is about to be cancelled, please contact your lawyer urgently, as you have 28 days after being notified to apply for a review of the decision.

BY RSG LAWYERS.

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