Opinion Number. 1056

Subject

PASSPORTS WHETHER MINISTER HAS POWER TO WITHHOLD VISA TO PASSPORT: EXERCISE OF DISCRETION: MEANING OF LEAVING THE COMMONWEALTH ON DUTY'

Key Legislation

PASSPORTS ACT 1920, s. 3 (2) (a)

Date
Client
The Secretary, Department of Home and Territories

The Minister for Home and Territories asks for advice on the questions raised in the following memorandum:

The Consul for Sweden, in protection of the rights of a Swedish subject-the plaintiff in the action Lundgren v. O'Brien for damages for breach of promise of marriage recently heard in the Supreme Court of Victoria-has requested the Minister to withhold the passport of the defendant, Captain Garrett Farrelly O'Brien, for a period of fourteen days to enable the plaintiff to make him insolvent, with a view of legally securing her rights before he leaves Australia.

Captain O'Brien is an officer of the Royal Air Force who is visiting Australia on furlough.

He is the holder of a passport issued by the British Foreign Office and has lodged his passport with this Department, with the object of having it visaed to enable him to leave Australia on or about 27 April.

The Minister would be glad of advice as to whether, in the absence of express provision to this effect in the Passports Act 1920, it is competent for him either to refuse to visa the passport, or to defer visaing it for a specified period, as requested by the Consul for Sweden.

He would be glad further of advice as to whether Captain O'Brien comes within the scope of paragraph (a) of sub-section (2) of section 3 of the Passports Act 1920.

In the latter connection, attention is invited to the following statement by the Consul for Sweden:

The defendant admits that he is not to resume duty in England until 8 July and he is now going on a pleasure trip with his father on the Continent before resuming duty.

I think that, as a matter of law, the granting or withholding of a visa to a passport is discretionary with the Minister.

On the facts stated, I do not think that O'Brien being on furlough can strictly be said to be 'leaving the Commonwealth on duty', though he is leaving with a view to taking up duty.

My answer therefore to the precise questions asked is:

  1. Yes.
  2. No.

I would point out, however, that according to the newspaper reports, the question of detaining O'Brien in Australia for the satisfaction of the judgment has been before the Judge who tried the case, an application having been made (apparently under the Imprisonment of Fraudulent Debtors Act 1915) for O'Brien's arrest on the ground that he was about to leave Victoria without satisfying the judgment; and the Court though having power to order his arrest accordingly, declined under all the circumstances to do so.

The Age report of the application is as follows:

Giving judgment yesterday afternoon on an application for the arrest of Garrett Farrelly O'Brien, a captain in the Royal Air Force, on the ground that he was about to leave Victoria without satisfying a judgment for £300 and costs obtained against him by Caroline Alphonsine Lundgren, musician, for breach of promise of marriage, Mr Justice Mann said, in all the circumstances of the case, he did not see fit to make the order asked for. Defendant was domiciled in England, and his proposed departure from Victoria was in the ordinary course of returning to his work in the Royal Air Force. The date of his departure was somewhat earlier than necessity demanded, but he was leaving in accordance with an arrangement made some time ago and without mala fides. He did not wish to refer to other circumstances in the case more particularly than to say that it appeared from the evidence that O'Brien had no assets in this country, and that his assets consisted of the right to receive salary in Great Britain. O'Brien having now, at his (the Judge's) suggestion, given plaintiff an instrument which in his opinion would facilitate the assertion of her rights in Great Britain, should it be ever necessary to there assert them, he did not think it right to make an order. Of course, he was to some extent swayed by the consideration that the imprisonment of defendant might lead to the serious prejudice of his position and of his opportunity to earn the money with which to satisfy the judgment against him. He made no order for costs of the application.

Seeing that the grounds of the Consul's application relate to legal proceedings in the Supreme Court of Victoria, and that that Court, after full judicial investigation of the rights of the parties, has declined to make an order for O'Brien's detention, I would suggest for consideration whether it is not inadvisable that the unusual step of withholding a visa from a British passport should be taken for substantially the same purpose as the plaintiff's unsuccessful application to the Court.

[Vol. 17, p. 279]