Reasonable suspicion that Minister has reasonable suspicion?

Federal Court: the Minister may seize a document if he/she "reasonably suspects" that it is forfeited under s 45A(2) of Citizenship Act, which provides that a "bogus document" given to the Minister is forfeited. A bogus document is defined as a document that the Minister "reasonably suspects" satisfies some criteria. Does that mean that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document"?

Summary and discussion

The Applicant applied for citizenship by conferral and voluntarily handed over his foreign passport to the Department, which kept that passport. Several months later, the Department gave the Applicant notice of seizure of that passport under s 45B of the Citizenship Act 2007.

The Applicant applied to the Federal Court (FCA) under s 45C for a declaration to the effect that the passport was not forfeited.

The relevant pieces of legislation were the following:

Citizenship Act 2007:

3    Definitions

bogus document has the same meaning as in subsection 5(1) of the Migration Act 1958.

45A    Prohibition on, and forfeiture of, bogus documents

(1)    A person (whether a citizen or non-citizen) must not give a bogus document to the Minister, a person acting under a delegation or authorisation of the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given.

(2)    A bogus document given in contravention of subsection (1) is forfeited to the Commonwealth.

45B    Seizure of bogus documents

(1)    If the Minister reasonably suspects that a document is forfeited under subsection 45A(2), then the Minister may seize the document.

(2)    As soon as practicable after seizing the document, the Minister must give written notice of the seizure to the person who gave the document to the official under subsection 45A(1).

(3)    The notice must:

(a)    identify the document; and

(b)    state that the document has been seized; and

(c)    specify the reason for the seizure; and

(d)    state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:

(i)    to recover the document; or

(ii)    for a declaration that the document is not forfeited.

(4)    For the purposes of paragraph (3)(d), the period must:

(a)    start on the date of the notice; and

(b)    end 90 days after that date.

45C    Document condemned as forfeited

(1)    If a document is seized under subsection 45B(1), then:

(a)    the person who gave the document to the official under subsection 45A(1); and

(b)    if that person is not the owner of the document – the owner; may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:

(c)    to recover the document; or

(d)    for a declaration that the document is not forfeited.

(2)    The proceedings:

(a)    may be instituted even if the seizure notice required to be given under subsection 45B(2) in relation to the document has not yet been given; and

(b)    may only be instituted before the end of the period specified in the seizure notice.

(3)    If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.

(4)    If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:

(a)    an order for the person or owner to recover the document; or

(b)    a declaration that the document is not forfeited.

(5)    For the purposes of subsection (4), if the proceedings go to judgment, they end:

(a)    if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or

(b)    if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.

Migration Act 1958 (s 5(1)):

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

The question to the FCA was whether a literal interpretation of the above provisions should be adopted, with the effect that "all that is required for seizure is a reasonable suspicion that the Minister has a reasonable suspicion that the document is a bogus document".

The FCA answered as follows...

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