The Supreme Court is ruling in favour of a woman who had her New Zealand passport cancelled over allegations she'd attempted travel to Syria to join a terror group.
In April 2016, then-acting Internal Affairs (DIA) Minister Judith Collins suspended the woman's New Zealand passport for 10 days while a report was being prepared regarding the possibility of her travel document being cancelled.
Then-Internal Affairs Minister Peter Dunne, less than a month later, cancelled the passport after the New Zealand Security Intelligence Service report said the woman intended to fly to Syria and connect with the Islamic State of Iraq and the Levant (ISIL), the Supreme Court said in a decision released on Wednesday.
"The appellant was born in Saudi Arabia in 1986 but has never been a citizen of that country. Her parents were Egyptian citizens, and as a child she travelled on their passports," the decision said.
"In 1998, the family emigrated to New Zealand and, in 2001, she became a New Zealand citizen, acquiring her first New Zealand passport.
"Later the same year the family emigrated to Australia, where she also acquired citizenship.
"In August 2015, the appellant was detained by Turkish authorities on suspicion of attempting to enter Syria, allegedly to marry an ISIL fighter. She was said to be in a van of ISIL supporters stopped near the Syrian border."
The decision said her travels brought her to the attention of the NZSIS.
"When she returned to New Zealand on September 21, 2015, with her brother, she was interviewed by Customs officials. She advised them that the purpose of her travel to Turkey was to visit family members in a refugee camp at the Syrian border.
"On October 3, 2015, the appellant and her brother left New Zealand for Indonesia but returned when they were denied entry there. They travelled to Australia on October 6, 2015, and returned to New Zealand on October 25, 2015."
A few months later, when the woman's brother booked flights for them to Australia, her passport was suspended.
"On April 22, 2016, however, the appellant travelled from Wellington to Melbourne without a passport, relying on a letter stating that the Australian Entry Operations Centre approved her to travel as she was an Australian citizen awaiting her Australian passport being renewed," the decision said. "On April 29, 2016, the NZSIS wrote a letter to the DIA, recommending the cancellation of the appellant's passport and offering to give a classified briefing to the minister."
The woman's notice of cancellation was served by the Australia Federal Police on May 5.
But the Supreme Court said on Wednesday the Government's decision at the time was unlawful, pointing out there were "uncertainties" and, therefore, it would've been "advisable... to keep the passport holder's position under review and revisit the decision if the uncertainties are resolved in a way that calls into question the reasonable belief of the minister at the time the decision was made".
"We conclude that the briefing paper to the minister not only failed to meet the fair, accurate and adequate' requirement, it also did not provide an adequate basis for the minister to form the necessary belief on reasonable grounds that the appellant was a danger to the security of Syria because she intended to facilitate a terrorist act," the Supreme Court decision said. "We therefore declare that the minister's decision to cancel the appellant’s passport was unlawful and invalid.
"Although the appellant also challenged the decision to suspend her passport prior to its cancellation, this aspect of the case was not pursued before us."
The Supreme Court awarded the woman $30,000 in costs.
