Azizi and Minister for Foreign Affairs [2018] AATA 1871 (26 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4496
Re:ISMAIL AZIZI
APPLICANT
AndMinister for Foreign Affairs
RESPONDENT
DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:26 June 2018
Place:Melbourne
The Tribunal affirms the decision under review.
...........................[sgd].............................................
Senior Member
Catchwords
PASSPORTS – application for Australian child passport – refusal of parental consent by one parent – child an Australian citizen living in Afghanistan – allegations of domestic violence – allegations of blackmail – whether non-consenting parent has contact with child – whether matter referred to court – decision affirmed
Legislation
Australian Passports Act 2005
Australian Passports Determination 2015
Family Law Act 1975Cases
Re Silva v Minister for Foreign Affairs [2017] AATA 1285Secondary Materials
The Parliament of the Commonwealth of Australia, “Australian Passport Determination 2015: Explanatory Statement”The Parliament of the Commonwealth of Australia, House of Representatives, ‘Australian Passports Bill 2004 – Australian Passports (Application Fees) Bill 2004 – Australian Passports (Transitionals and Consequentials) Bill 2004: Explanatory Memorandum”
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
26 June 2018INTRODUCTION AND BACKGROUND FACTS
Mohammad Nader Azizi on 21 March 2017 lodged a child passport application pursuant to the relevant provisions of the Australian Passports Act 2005 (“the Act”) on behalf of his son the Applicant Ismail Azizi (“Ismail”)[1]. Part 15 of the Child Passport Application (“Declaration and consent”) was only signed by Mr Azizi. The section of that part for completion by the child’s mother was left blank.
[1] The Child Passport Application is document T 4 of the T documents.
On or about 23 May 2017 a delegate of the Minister for Foreign Affairs made a decision not to issue a passport to Ismail. A letter to this effect notifying both Mr Azizi and the child’s mother was sent on 26 May 2017.[2]
[2] A separate letter was sent to both the child's mother and father. Copies of those letters are contained in documents T 11 and T 12 of the T documents.
Mohammed Azizi applied on 30 May 2017 by email[3] for an internal review of the decision in May 2017 refusing to issue an Australian passport to the Applicant child Ismail Azizi.
[3] Mr Azizi’s request for internal review of the decision to refuse to issue a passport to Ismail Azizi is document T 13 of the T documents.
The internal review was concluded on 19 July 2017 and the original decision to refuse to issue an Australian passport to Ismail was affirmed.[4] (“the reviewable decision”)
[4] The decision of 19 July 2017 and "Reasons for decision" are document T 2 of the T documents.
By an application filed in this Tribunal on 28 July 2017 Mohammad Azizi applied to this Tribunal for review of the reviewable decision.
THE EVIDENCE BEFORE THE TRIBUNAL
The following evidence was before the Tribunal:
(a)A letter from Dr Narges Akhlaqi purportedly from the “French Medical Institute for Mothers and Children” Kabul;
(b)An original letter…
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- Case
- [2018] AATA 1871
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the Minister was correct to refuse to issue an Australian passport to Ismail. Specifically, the court had to consider whether the requirements of section 11 of the Australian Passports Act 2005 (Cth) were met. This involved assessing whether the non-consenting parent, Ismail's mother, had ceased to have parental responsibility, or if any of the exceptions outlined in section 11(2) of the Act applied, such as special circumstances or the child's welfare being adversely affected by not being able to travel. The Tribunal also had to consider the evidence presented regarding the mother's contact with the child and the applicant's ability to contact her.
The Tribunal found that both Mr Azizi and Ismail's mother retained parental responsibility for Ismail under section 11(5) of the Act, and that the mother had not consented to the passport application. The Tribunal considered the applicant's arguments that special circumstances existed under section 11(2)(a) of the Act, specifically relating to the inability to contact the non-consenting parent and the lack of contact between the child and the non-consenting parent for a substantial period. However, the Tribunal was not satisfied that the evidence established a lack of contact to the required standard, noting that Mr Azizi had limited means of knowledge regarding his ex-wife's contact with their son. The Tribunal also considered whether Ismail's welfare would be adversely affected under section 11(2)(b) but found insufficient evidence to support this.
Ultimately, the Tribunal affirmed the original decision to refuse to issue the Australian passport to Ismail. The Tribunal concluded that the necessary consent from both parents was not provided, and the exceptions under section 11(2) of the Act were not sufficiently established by the evidence presented.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As for Mr Azizi’s evidence concerning his ex-wife’s lack of contact with Ismail, the Tribunal cannot be satisfied that this has been established to the requisite standard. We simply do not know what contact she has had with Ismail at any time let alone the last two years. Mr Azizi has not been in Afghanistan to see what contact she has had. He has limited means of knowledge and the evidence is at best unverified hearsay. One can speculate however, what if for instance she has been attending at Ismail’s school and seeing him there without the knowledge of Mr Azizi’s current wife and/or his parents. If this is the case it would be quite unfair to reach a conclusion that she has had no contact.CONSIDERATION Mr Azizi and his ex-wife as the mother and father (the parents) of Ismail have “parental responsibility for the child” (Ismail) within the meaning of section 11(5) of the Act. Section 11(1) of the Act provides that the Minister must not issue an Australian travel document (which includes a passport) to a child unless each person who has parental responsibility for such child so consents. Lest it needs to be said there is no evidence before the Tribunal of any orders made under the Family Law Act 1975 concerning Ismail’s ability to travel. For the reasons outlined earlier the Tribunal is satisfied that Ismail’s mother has not consented to the issue of an Australian passport to him. Where a person who has parental responsibility for a child within the meaning of section 11(2) has not given their consent to the issue of a passport under section 11(2) of the Act, there is a discretion conferred upon the Minister to issue a passport to the child if the circumstances identified in that section are satisfied. It was the contention of the Applicant via his legal representative Mr Samarakoon that the applicable sections were sections 11(2)(a) and (b). Section 11(2)(a) confers a power on the Minister to issue a passport to a child if special circumstances exist. Section 11(2)(b) gives the Minister the power to issue a passport to a child if he or she is satisfied that the child’s welfare (physical or psychological) would be adversely affected if such child were not able to travel internationally. In determining whether there are any applicable special circumstances that should be taken into account for the purposes of section 11(2)(a), the decision-maker is required to consider the provisions of section 10 of the Australian Passports Determination 2015 (“the Determination”). Section 10(3) of the Determination defines special circumstances arising from several matters. Mr Azizi via his legal representative contended that there were two applicable special circumstances identified in section 10(3). They were paragraph (3)(a) that neither the Applicant nor the Minister had been able to contact the non-consenting person for a reasonable period; and paragraph (3)(d) that there had been no contact between the child and the non-consenting person for a substantial period before the application was made. Mr Samarakoon contended that these sections should be strictly interpreted in favour of his client. This contention was fortified by the assertion that the father and son are Australian citizens and that the father’s current wife has a partner visa but she is unable to bring Ismail to Australia.