Azizi and Minister for Foreign Affairs

[2018] AATA 1871

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 1975

Cases
Re Silva v Minister for Foreign Affairs [2017] AATA 1285

Secondary 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 2018

INTRODUCTION AND BACKGROUND FACTS

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

6. 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 written in Dari with an English translation headed “Confession Letter” (undated);

   (c)The T documents; and

   (d)The attachments to the Respondent’s Statement of Facts, Issues and Contentions:

   (i)Child Alert Request forms dated 9 December 2015, undated and 16 January 2018;

   (ii)Email from the mother of Ismail to the Tribunal and the Respondent dated 24 January 2018;

   (iii)Extract of the Australian Passports Determination 2015, Explanatory Statement; and

   (iv)Extract, Australian Passports Bill 2004, Explanatory Memorandum.

7. Additionally, Mohammad Azizi gave viva voce evidence.

   THE APPLICABLE PASSPORTS LEGISLATION

8. It is useful to reproduce the relevant sections of the Act.

9. Section 7 of the Act provides:

   Australian citizen is entitled to be issued an Australian passport

   (1)  An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister.

   (2)  An Australian citizen's entitlement to be issued with an Australian passport is affected by section 8 and by Division 2.

   (3)  An application for an Australian passport must be:

   (a)  made in the form approved by the Minister; and

   (b)  accompanied by the applicable fee (if any).

10. Division 2, of Part 2 of the Act provides reasons why the Minister may refuse to issue a passport.[5] Section 11 provides:

    [5] The Section refers to the Minister’s power not to issue an "Australian travel document". An Australian travel document is defined in section 6 of the Act and includes an Australian passport.

    Reasons relating to child without parental consent or court order for travel

    (1)  The Minister must not issue an Australian travel document to a child unless:

    (a)  each person who has parental responsibility for the child consents to the child having an Australian travel document; or

    (b)  an order of a court of the Commonwealth, a State or a Territory permits:

    (i)  the child to have an Australian travel document; or

    (ii)  the child to travel internationally; or

    (iii)  the child to live or spend time with another person who is outside Australia.

    (2)  Subsection (1) does not prevent the Minister from issuing an Australian travel document to a child if:

    (a)  circumstances specified in a Minister's determination as special circumstances exist; or

    (b)  the Minister is satisfied that the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally; or

    (c)  the Minister is satisfied that:

    (i)  the child urgently needs to travel internationally because of a family crisis; and

    (ii)  if there is a person who has parental responsibility for the child and who has not consented to the child having an Australian travel document--it is not possible to contact that person within a reasonable period; or

    (d)  in the case of a child who is outside Australia--the child departed Australia less than 12 months before the application for the Australian travel document was made and the Minister considers that an Australian travel document should be issued to enable the child's return to Australia.

    (3)  If the Minister refuses to issue an Australian travel document to a child, the Minister may declare that he or she is refusing to exercise the discretion under subsection (2) because the matter should be dealt with by a court.

    (5)  For the purposes of this section, a person has parental responsibility for a child if, and only if:

    (a)  the person:

    (i)  is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975 ); and

    (ii)  has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 ; or

    (aa)  the person:

    (i)  is the child's parent (including a person who is presumed to be the child's parent because of a presumption (other than in section 189) in Subdivision 3 of Division 11 of Part 5 of the Family Court Act 1997 (WA)); and

    (ii)  has not ceased to have parental responsibility for the child because of an order made under that Act; or

    (b)  under a parenting order:

    (i)  the child is to live with the person; or

    (ii)  the person has parental responsibility for the child; or

    (d)  the person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a State or a Territory.

    Note: The presumptions in the Family Law Act 1975 and the Family Court Act 1997 (WA) include a presumption arising from a court finding that a person is the child's parent, and a presumption arising from a man executing an instrument under law acknowledging that he is the father of the child.

    RELEVANT FACTS

11. In addition to the matters already outlined in these reasons there are several other relevant facts.

12. The Applicant Ismail Azizi was born on 19 February 2011 to Mohammad Azizi (who has made this application on behalf of Ismail) and Najmia Bakhshi his mother.[6]

    [6] It should be recorded that some of the documents show the Applicant Ismail as being born in Pakistan. (For instance see the Citizenship Certificate for Ismail as part of document T 4 of the T documents page 49. Also in Part 2 of the Child Passport Application on page 38 of the T documents Ismail's place of birth is also described as being in "Quetta Pakistan”.) The evidence which emerged during the course of the hearing was in fact that this is incorrect and that he was born in Afghanistan. It would appear that for the purposes of this application nothing turns on this error.

13. Ismail’s father is an Australian citizen. On 7 June 2014 Ismail became an Australian citizen by descent.[7]

    [7] Document T 4 of the T documents.

14. Ismail’s mother and father divorced on 13 April 2015.[8] Something should also be said at this stage about the issue of Afghanistan divorce law. There was some evidence given by Mohammad Azizi about his understanding of the divorce law of Afghanistan. There was also some documentary evidence supplied by the Applicant’s father to the Department in an email of 25 June 2017[9] which purportedly contained articles concerning any extracts from the relevant Divorce Law of Afghanistan. Whilst the Tribunal has read it, and taken this material into account it is unverified by any expert qualified in the divorce law of Afghanistan and therefore, little if any weight can be attached to it. It is of concern to the Tribunal that beyond the evidence that has been provided which indicates that the father and the mother are divorced in accordance with the laws of Afghanistan there is little if anything more before the Tribunal concerning the applicable law if any, with respect to child custody and associated parenting issues.[10]

    [8] This is evidenced by the "Divorce Certificate", which forms part of document T 4 (page 52) of the T documents.

    [9] The email and attachments including what purports to be an extract from the "Civil Law of the Republic of Afghanistan, Gazette No 353, Child Care".

    [10] Article 237 of the extract from the "Civil Law of the Republic of Afghanistan Official, Gazette No 353, Child Care", insofar as the Tribunal can rely upon it, states: "Lineage mother has a priority right of care and nurture a child, during marriage and after separation, provided that she meets capacity conditions for custody." Article 249 states: "Period of custody of son ends with 7 years of age and that of daughter finishes with 9 years of age." Without verification of the Family Law system of Afghanistan and this document the Tribunal cannot rely upon it. In any event we are not informed as to who has legal custody of the child and if so whether or not it is pursuant to any decree or order of a recognised court in Afghanistan or pursuant to a statute or codified system of matrimonial law. In these circumstances the Tribunal cannot speculate as to such matters. Additionally, it should be stated that there are no documents before the Tribunal from any Australian court with Family Law jurisdiction concerning Ismail. It is concluded therefore, that in the absence of such documentation no Australian court has adjudicated on relevant parenting issues concerning Ismail.

15. In this context it also should be recorded that of course Ismail’s mother has not given evidence in this proceeding and the Tribunal has little material before it concerning her attitude towards this application. More will be said later in these reasons concerning the evidence that is available. However, one thing is abundantly clear from that material which is of course that she has not consented to the issue of an Australian passport to Ismail. This is highly relevant to the Tribunal’s determination.

16. Following the divorce of Ismail’s father and mother, the father asserts that he stayed in Afghanistan for a further year with Ismail. He then, on or about 28 January 2016, returned to Australia where he has lived ever since. Following the father’s departure from Afghanistan the father has given evidence that Ismail is living with his parents.[11]

    [11] See document T 5 page 58 of the T documents. Mohammad Azizi also gave this evidence to the Tribunal when he was in the witness box. However, beyond the statements made by the father there has been no other corroboration of this statement to the Tribunal.

17. Further, the evidence that is available to the Tribunal concerning the mother’s attitude to this application raises some concerns. Such evidence reveals that the mother does not consent to the issue of an Australian passport to her son. The evidence concerned will be articulated below in these reasons.

18. In evidence before the Tribunal are three documents which are known as “Child Alert Requests” that have been lodged by Ismail’s mother with the Australian Embassy in Kabul concerning Ismail.[12] The alerts were lodged over three separate years. They are in similar form. The child the subject of each of the alerts in each case was Ismail. In each document in the section headed “Reason for request” the details provided are the same in each year. They are as follows: “My husband is a drug addict and he wants to take my kids with him without my consent and he beats my kids in my presence and will be dangerous for my kids to be with him.”

    [12] These documents form part of exhibit "R2". The dates of each of these documents are difficult to read. However the first one appears to be dated approximately 9 December 2015, the second one is indecipherable and the third Request appears to be dated 16 January 2018; which if it needs to be stated is of course after this application for review of the reviewable decision was lodged with the Tribunal.

19. On 16 May 2017 a Passport Officer with the Respondent sent an email to the Australian Embassy in Kabul Afghanistan. In that email he requested that an officer of the Embassy contact Ismail’s mother “to determine her consent or otherwise for a passport for the child”. There was a prompt response by email from the Australian Embassy in Kabul advising that she had been spoken to and that she did not give her consent. It was also mentioned in that email by way of reply that every year the mother had raised a Child Alert on the system for both her children Ismail and Habeel.[13]

    [13] The emails passing between the Passport Officer of the Respondent and the Australian Embassy in Kabul are to be found in documents T 8 and T 9 of the T documents. The email of 16 May 2017 from the Australian Embassy in Kabul sent at 4:05 PM states that he spoke with the mother "today" at 9:50 AM local time. Whilst the email does not say whether that conversation took place over the telephone or face-to-face the Respondent has contended it was by telephone which appears most likely in the circumstances. Had the mother attended the Australian Embassy in person one would have expected the Embassy official who spoke to her in such meeting to have said so.

20. An email apparently from the mother to the Department on 12 July 2017 is also in evidence before the Tribunal.[14] In this email the mother states that she was not consenting to the issue of a passport to Ismail. Further, in that email she provides details of why she does not consent including the father’s capacity to raise children and also allegations of abuse, domestic violence and drug use. She concludes that if her children were in his custody or as she puts it “under his supervision” she apprehended that her children would be in danger. She confirmed that she had raised these matters with the Australian Embassy in Kabul.

    [14] Document T 17 of the T documents.

21. Another email was sent by the mother on 24 January 2018 in response to an email from this Tribunal concerning this review.[15] In that email she reiterates that she does not consent to the issue of an Australian passport to her son and repeats the grounds that she relied upon in her previous email to the Department. The first ground was that the father is a drug addict and he could not take care of himself let alone a child. The second ground is that the father is an abuser who had beaten her and her children. She gave contact details in Kabul including her own telephone number.

    [15] This email forms part of exhibit "R2" "Attachment B".

    THE EVIDENCE OF MOHAMMAD AZIZI

22. Mr Azizi gave evidence from the witness box with the aid of an interpreter.

23. He stated that he got married in Afghanistan after he became an Australian citizen[16]. They were married in 2008 and from the first day it was not a good marriage as it had been arranged. The marriage broke down and when it broke down he applied for divorce in Afghanistan in 2015. There are two children of the marriage; the first child was born on 5 May 2009 and the second on 19 February 2011. The application for a child passport was with respect to his second son Ismail.

    [16] He stated that he had arrived in Australia in the year 2000 as a refugee. However, after arriving in Australia he tended to return to Afghanistan every 6 to 9 months over some extended time span.

24. After the breakdown of the marriage Mr Azizi gave evidence that initially his ex-wife went to her father’s house and the children remained with him. Subsequently, he alleged that his ex-wife pursued local elders who then came to his family and claimed one of the children. His response to this approach was that as her family were in possession of weapons “and so on” he agreed that she could have one of his sons. His ex-wife then took custody of the eldest son.

25. Mr Azizi further gave evidence that usually when there is a divorce in Afghanistan, it is customary for the husband or father to take custody of the children as there is no support or social services there.

26. Mr Azizi has remarried and his current wife apparently lives in a suburb of Kabul with his son. She is not working. His son and his current wife live with his parents and he sends financial support to them. He also stated that he has other siblings who provide such support for them. His current wife, he said, does everything like a mother does for a child for Ismail. She washes his clothes, cooks his food and takes him to school. He explained that he is keen for his current wife and son to move to Australia. He stated there are several reasons for this, including kidnapping. Many people in Afghanistan, if they know the father of a child is in Australia, will ask for money or kidnap a child and take him for ransom. The situation in Afghanistan is quite dangerous with suicide attacks in Kabul every week. He also stated that he is concerned that his son should come to Australia so that he will have access to better educational and schooling facilities.[17] Thirdly, he stated that having his current wife and son in his parents’ house was causing a burden on his mother who is becoming old. He stated that his current wife has applied for a Partner visa but he has not decided when she should come to Australia because he does not wish to leave his son behind.

    [17] He stated that his son is only attending school on three or four days a week and that if he came to Australia he would go to school full-time. He also stated that his school attendance can be irregular and depends on a number of other issues, least of which is the issue of safety. The school he attends is approximately 30 minutes walking distance away from where he currently lives. He observed that there is "a huge difference” between Afghanistan and Australia in education.

27. He asserted that his ex-wife has not seen Ismail for some time. When probed on how he knew this, given the fact he is in Australia and his son and ex-wife are in Afghanistan, he offered several explanations. He stated that first of all when there is a divorce in Afghanistan the two families become enemies. Therefore, there would not be any contact by his ex-wife with her son. Secondly, he stated that he speaks to his family virtually every day on Skype including his son and he had not heard anything from them that his ex-wife has come to see Ismail. Evidence was given by him that his ex-wife may have seen Ismail a couple of times at various occasions such as weddings or mourning ceremonies. The source of this information, he stated, was from his parents and that his ex-wife only saw Ismail from a distance and had no interaction with him. He referred to the culture of Afghanistan where on such occasions the men and the women usually sit in separate areas as they do not mix.

1. As to other contact that he had with his ex-wife, he gave evidence about one occasion when he was travelling with his parents to a valley. His current wife and Ismail saw his

   
   

   ex-wife when they were having a meal in a restaurant. Ismail saw her but did not say anything about having had contact with her. He said strangely that he and his ex-wife are not allowed to talk to one another and that during such encounter his ex-wife didn’t even look at Ismail.

2. When asked whether he was a drug user or a drug addict he categorically denied the fact and further stated that he doesn’t smoke or drink alcohol.

3. He was questioned about allegations of family violence during the marriage. His response was that if it were true his ex-wife would have complained during that time and not after the divorce. He observed that she never complained to the police. He admitted that he had received some paperwork about allegations against him but reiterated with some level of indignity that the allegations against him were untrue.

4. After giving this evidence he stated that approximately 16 months ago he went to Afghanistan and gathered some tribal elders and sent them to speak to his ex-wife about consenting to the issue of an Australian passport to Ismail. He asked these people to write down what they saw when they visited his ex-wife and they did so in Dari. In the course of these meetings and in the letter that they wrote down which was described as a “Confession Letter”, she apparently said she would only sign if she was paid $40,000.[18] Later in his evidence in chief and in the course of cross-examination he said that his ex-wife demanded $40,000 to sign the consent to the issue of the passport on a number of occasions when she had discussions with the elders.[19]

   [18] The "Confession Letter" is in evidence before the Tribunal.

   [19] Mr Azizi’s evidence on this demand for $40,000 shifted during the course of his evidence. When the topic was first raised he only referred to one demand being made at the time that the "Confession Letter" was produced. Later in both his evidence in chief and cross-examination he stated that she made the demand "a number of times" and "each time when he contacted her through the elders." This shift in his evidentiary position did not reflect well upon him as a witness. It reflected a tendency observed in him to exaggerate or on occasion reconstruct in the belief that it would more readily persuade the Tribunal.

5. On several occasions in the course of both his evidence in chief and in cross-examination Mr Azizi made extremely severe attacks upon his ex-wife’s character. Further attacks were levelled upon her motives for withholding her consent to the issue of a passport to Ismail. These attacks consisted of several approaches. On one occasion in his evidence in chief he stated that he believed the main reason that his ex-wife was engaging in this conduct was because of the value of an Australian visa and that maybe she wants to come to Australia as well and therefore doesn’t want to “let go of the kid”. He stated that she had a belief that if her children came to Australia she would miss out on the opportunity of moving here herself. He felt that this was the reason that his ex-wife was claiming the children and that he had never heard of a mother claiming custody of children after divorce in Afghanistan. He then made the extraordinary assertion that this was one of the reasons that their mother became the enemy of the children.

6. He then in cross-examination made the remarkable assertions that he was afraid to return to Afghanistan because of his ex-wife’s family. He believed she might think that if she killed him she might be able to come to Australia with the children. He stated in the past he had lost people to suicide attacks and Taliban attacks. However, he stated that a bigger danger was posed from his ex-wife if she thought she could kill him and come to Australia. It was he described “a 99% danger”. He further stated, “In the past I was fearful of danger from the Taliban but 99% I fear my wife attacking me.” He stated that two of her siblings are residing in western countries; she knows the rules of Western countries that a woman can get custody of the child and suggested she might try to do it. When probed by Ms Cannon for the Respondent he said that he hadn’t heard of any threats. When asked about what basis there was for the kidnapping fear he said that in Afghanistan everyone knows each other and knows each other’s business about who was doing what. He stated there are a lot of cases of children being kidnapped in Afghanistan particularly when their parents live in what he described as “wealthy countries”.

7. It has to be said that these comments were indicative of the propensity of Mr Azizi to exaggerate his evidence in the misguided belief that it would assist the application.  As for the alleged demands of $40,000 made by his ex-wife, the Tribunal does not take them into account at all and is not satisfied that they were in fact made. This belief is heightened by the fact that Mr Azizi’s ex-wife did not give evidence before the Tribunal and has not had the opportunity to address or respond to the allegations in any shape or form. Such allegations have not been put to her. They are serious allegations of moral turpitude that cannot be made lightly.

8. As for his allegations about his ex-wife trying to kill him, once again similar considerations apply. She is not a party to the proceeding. She has not made a statement that has been filed in the proceeding and most critically of all, such allegations have not been put to her. As noted above she has made complaints to the Australian Embassy in Kabul by way of “Child Alert Requests”. Whilst the allegations in those documents made against Mr Azizi cannot be adjudicated on by this Tribunal, nonetheless it demonstrates that there are in fact two sides to every story and also that his ex-wife clearly has an ongoing interest in the welfare of her children. These contemporaneous documents lodged with a responsible authority such as the Australian Embassy in Kabul[20] at the very least significantly contradict the evidence of Mr Azizi which would have the Tribunal believe that she has no contact or interest in her children. Therefore, in many respects at the very least the Tribunal views Mr Azizi’s evidence with caution and in some instances, certainly with respect to the possibility of threats to kill and demands for $40,000, it rejects it.

   [20] The other contact that Mr Azizi’s ex-wife has also had with the Australian Embassy in Kabul concerning the issue of a passport to Ismail and this Tribunal in more recent times referred to above in these reasons also add to the concerns that the Tribunal must have about his evidence.

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. There was some reference by the Applicant to the Explanatory Statement to the Determination which should also be referred to. Firstly, paragraphs 48 and 49 of the Explanatory Statement deal with section 10(3)(d) of the Determination where there has been no contact between the child and the non-consenting person for a substantial period before the application is made. Reliance was placed on the contents of paragraph 49 by the Applicant which observes that in most cases a substantial period during which there has been no contact is considered to be up to two years, but may be less depending on the age of the child and the circumstances of the application.

16. Additionally, paragraph 55 of the Explanatory Statement was emphasised concerning the need of a child to travel or reside internationally as contemplated by section 10(3)(h) of the Determination. It was contended that that need had been in some way established from the evidence before the Tribunal.

17. Finally, Mr Samarakoon referred to the section headed “2. The rights of the child” in the Explanatory Statement. Emphasis was placed by Mr Samarakoon on the rights of the child and in particular Articles 3 and 10 of the Convention on the Rights of the Child (CRC) which oblige the States Parties to ensure the protection and care necessary for a child’s well-being. Further, Mr Samarakoon contends that Articles 5 and 18 of the CRC trigger an obligation on the part of the Respondent to facilitate the protections afforded by that convention, with respect to responsibility for the upbringing of Ismail, to make decisions and take actions that are in his best interests. In short it was contended that his best interests were served by moving to Australia where there was a better standard of education, healthcare, safety, well-being and ultimately future career prospects.

18. The Respondent understandably cavils with the Applicant’s contentions by asserting that the special circumstances described in section 10(3) of the Determination have not been established and therefore do not enliven the decision-maker’s discretion to issue a passport without the consent of Ismail’s mother. Secondly, it is contended on behalf of the Respondent that there is insufficient evidence to demonstrate that the child’s welfare (physical or psychological) would be adversely affected if he were not able to travel internationally. Additionally, it is submitted on behalf of the Respondent that if otherwise the Tribunal were satisfied that the child’s welfare (physical or psychological) would be adversely affected if he were not able to travel internationally, the Tribunal has discretion not to order that a passport be issued.

19. Finally, the Respondent did refer to the provisions of section 11(3) of the Act which provides in the event the Respondent refuses to issue a passport to a child, he or she may declare that he or she is refusing to exercise the discretion under section 11(2) because the matter should be dealt with by a court. This is in effect inviting the decision-maker (in this case the Tribunal) to refer the matter for consideration by a court of competent jurisdiction.

    Section 10(3)(a) of the Determination - neither the Applicant nor the Minister has been able to contact the non-consenting person for a reasonable period

20. As noted above there is considerable evidence of contact made with Ismail’s mother. The evidence of the contact arises from the following facts:

    (a)Departmental Officers contacted Ismail’s mother and obtained her views on the passport application;

    (b)His mother has lodged the three Child Alert Requests with the Australian Embassy in Kabul over three separate years;

    (c)There is the email from the mother to the Department of 12 July 2017 in which she states she was not consenting to the issue of a passport to Ismail;

    (d)Another email was sent by the mother on 24 January 2018 in response to an email from this Tribunal reiterating that she does not consent to the issue of an Australian passport to her son and explaining why she holds this attitude.

21. Therefore, by reason of the Tribunal accepting this evidence, the facts required to establish the relevant grounds under section 10(3)(a) have not been made out by the Applicant.[21]

    Section 10(3)(d) of the Determination - there has been no contact between the child and the non-consenting person for a substantial period before the application is made

    [21] Further, although not specifically argued by the Applicant's lawyer these facts are also supportive of a conclusion that the special circumstances referred to in sections 10 (3) (a), (b) and (c) of the Determination are not established because she is not missing, dead or medically incapable of providing consent.

22. There is simply insufficient evidence to enable the Tribunal to reach a conclusion that there has been no contact between Ismail and his mother for a substantial period and certainly not up to 2 years. The evidence available to the Tribunal shows some limited contact between Ismail and his mother.

23. The Tribunal should observe that Mr Azizi made some bald assertions from the witness box that there had not been any contact other than information he had obtained from his parents that his ex-wife had only seen his son from a distance and had no interaction with him at all. He described these occasions as being various ceremonies such as weddings or mourning ceremonies. He also reached this conclusion because he says he speaks with his family virtually every day on Skype including his son and has not heard from them that his ex-wife has come to see her son. This approach was amplified by his explanation that in Afghanistan when a husband and wife divorce, the two families in effect become enemies. There was also the incident he gave evidence about when he was travelling with his parents and was in a restaurant with his son where coincidentally his ex-wife was also present. The fact that he did not observe his ex-wife and Ismail have any interaction was relied upon by him as further proof of no contact having taken place.

24. Whilst the Applicant might find this approach superficially appealing, the Tribunal does not. Much of what the Applicant relies upon is at best hearsay. The Tribunal is not bound by the rules of evidence but nonetheless the rule against hearsay is a refined version of procedural fairness. Further, we have not heard any evidence from Mr Azizi’s ex-wife, Ismail’s mother. The contact that Ismail’s mother has had with the Australian Embassy in Kabul referred to earlier in these reasons is repeated and it is consistent with a mother who is concerned about the welfare of her son. It is inconsistent with someone having absolutely no contact nor interest in her son’s future and his welfare. The matter has to be looked at also with some degree of realism as she and her son are in Afghanistan; this Tribunal is in Australia. What if for instance Ismail’s mother had been seeing him during school hours without it coming to the attention of Mr Azizi’s parents? It is quite possible that she has done so in order that her contact with Ismail doesn’t come to the attention of Mr Azizi’s parents and cause any tensions or ill feeling, given the issues that apparently arise when parties to a marriage in Afghanistan divorce.

25. Given these considerations the Tribunal cannot be satisfied that the special circumstances referred to in section 10(3)(d) of the Determination have been established by the Applicant.

    Section 10(3)(h) of the Determination - If the child is outside of Australia and the Minister considers that there is a need for the child to travel internationally or the child requires the passport to continue to legally reside overseas

26. Whilst this ground was not specifically emphasised by Mr Samarakoon for the Applicant it is considered by the Tribunal appropriate to address this issue.

27. The Respondent correctly contends that there is no definition of what is meant by “a need to travel” within the meaning of that section. Reference was made to the Explanatory Statement at paragraph 55 which states that the need to travel complements the provisions of the Department’s Consular Services Charter, which outlines relevant consular services that may be provided to Australians situated overseas. It is therefore contended that the notion of “a need to travel” when construing this section of the Determination should be limited to situations that would warrant consular assistance. With respect to this submission, the Tribunal finds that the language of the Determination itself does not place such a restriction on its construction. However, there is no evidence, applying the actual language used, that Ismail requires a passport to either travel internationally, or to be able to continue to legally reside in Afghanistan. These are the two pre-requisites that must be in existence to trigger such a consideration by the Minister. Given that these prerequisites have not been established, this section cannot apply.

    Section 11(2)(b) of the Act - the Minister is satisfied that the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally

28. Mr Samarakoon for the Applicant whilst relying upon this ground perhaps did not emphasise it with strength.

29. The Applicant was probed in evidence in chief and cross-examination as to the circumstances in which a medical certificate concerning Ismail was obtained from the “French Medical Institute for Mothers and Children” in Kabul. The certificate was apparently prepared by Dr Narges Akhlaqi and tendered in evidence. The certificate is difficult to read but expresses an opinion that Ismail has suffered from childhood depression for several years.

30. The Applicant stated that he got the certificate from the “French Hospital” in Kabul. He gave evidence that there are not many medical centres in Kabul with advanced technology. However, there is a French hospital and a German hospital in Kabul. He conceded that there is no telephone number on the letterhead and no doctor’s registration number but otherwise was unable to comment. He stated that his mother, his brother and current wife took Ismail to the French Hospital and got the certificate. The fact that the Applicant has no direct knowledge as to the circumstances in which this certificate came into existence must of necessity make it very difficult for the Tribunal to rely upon it in any way.

1. The Respondent challenges the certificate and the Tribunal’s capacity to rely upon it in determining whether or not Ismail’s welfare (physical or psychological) would be adversely affected as required by the relevant section. The Tribunal accepts the grounds of challenge relied on by the Respondent.

2. The Respondent contended that the certificate does not meet the requirements of the Departmental Policy document used to assess such claims. The policy document and the relevant sections of it relied upon by the Respondent will not be reproduced. However, it is fair to say that they impose some reasonable verification requirements for a medical certificate obtained overseas to be considered. These requirements include that the healthcare provider or official institution date and sign the document accordingly. Upon receipt of the document the processing officer is required to test such claims by contacting the healthcare provider to verbally confirm they authored the letter. Where the healthcare provider is overseas investigation should be undertaken with an equivalent registrations body. A written statement must be provided on the letterhead clearly indicating the health professional’s name, occupation, registration, date and contact details to allow appropriate testing of the contents of the certificate. None of this has occurred in this case.

3. The Respondent contends that there are several matters of concern with the certificate. There is no written statement on the letterhead clearly indicating the healthcare professional’s occupation, registration and contact details. Indeed there are no contact details on the certificate to enable contact to be made with the doctor concerned to verify that he authored the letter. The Respondent also contends that it was not able to locate Dr Akhlaqi on the FMIC’s “Find a Doctor” feature on its website. Whilst preliminary searches indicate that the professional concern may be Mrs Nargis Akhlaqi, Clinical Psychologist, the Respondent was unable to confirm this fact. The Tribunal also observes that given the fact that Mr Azizi had legal representation, if he was able to locate the doctor in Afghanistan (which presumably it was open to him to do given that his mother, brother and current wife attended the French Hospital) it surely should have been possible to have procured a report that addressed the concerns of the Respondent and if necessary call the doctor to give evidence by telephone or appropriate video link[22]. The failure to do so must ultimately weigh against Mr Azizi and the Tribunal in the circumstances has to draw an adverse inference from this failure.

   [22] This is not to mention the possibility that appropriate steps could have been taken with that doctor (whoever he or she may be) to have verified his or her credentials via the Australian Embassy in Kabul. When those credentials had been verified such confirmation could have been produced to the Tribunal in an admissible form.

4. For these reasons, the Tribunal accepts that there is just insufficient information to enable it to conclude that Ismail’s welfare (physical or psychological) would be adversely affected if he were not able to travel internationally. The discretion contained in section 11(2) is not enlivened.

   Section 11(3) - whether the matter should be dealt with by a court

5. Given the finding that the relevant jurisdiction in section 11(2) is not enlivened, strictly the Tribunal does not need to consider this section.

6. The Tribunal was referred to the Explanatory Memorandum for the Australian Passports Bill 2004 concerning this section.[23] This memorandum observes that the application of this discretion to refer the matter to a court of competent jurisdiction will be used sparingly and usually in a situation where the non-consenting parent has not been represented at the relevant stage of the decision-making process. This can occur if the parents of a child disagree about the child travelling internationally in certain circumstances.

   [23] Attachment D to the Respondent's Statement of Facts, Issues and Contentions which was received in evidence by the Tribunal.

7. Whilst there is some level of disagreement between the parents of Ismail in this case the Tribunal is not inclined to refer the matter to a court for several reasons at this stage.

8. As has been noted throughout these reasons there is comparatively scant evidence available to the Tribunal concerning the contact that Ismail’s mother has had with him. There is really no medical evidence concerning his physical and psychological welfare. There is very little evidence as to his other needs, his attachment to where he is living in Afghanistan and other matters such as his level of education and language skills that would inevitably be relevant in making a decision of this kind. The Respondent fairly contends that Ismail is only seven years old and has never been to Australia.

9. His mother has not been put on notice of this proposed course of action. Procedural fairness dictates that she should be alerted to it and given the opportunity to make appropriate submissions with respect to such a proposal as she may be advised. It is apparent that Ismail’s mother has in the past raised concerns about his well-being particularly if he were to leave Afghanistan and live in Australia with his father, or for that matter live with his father at all.

10. The observations of Senior Member Fice in ReSilva v Minister for Foreign Affairs [2017] AATA 1285 at paragraph [59] is apposite:

    This is clearly a very difficult case. It is, in any circumstances, unusual to allow a travel document to be issued to a child where both parents do not agree. The very purpose of having such a restriction on the issue of a passport or travel document to a child is to avoid one parent abducting the child against not only the other parent’s will, but also the child’s will. I believe it is important in this case to focus firmly on the best interests of the child rather than either of the parents.

11. The Tribunal considers that it is not appropriate to act in accordance with section 11(3) of the Act to declare that the matter should be dealt with by a court for the reasons articulated above.

    CONCLUSION

12. Having considered all the material before the Tribunal, including the contentions of the Applicant and the Respondent, the Tribunal concludes that the reviewable decision made on 19 July 2017 to refuse to issue an Australian passport to Ismail was the preferable decision. Accordingly, that decision is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron

................................[sgd]........................................

Associate

Dated: 26 June 2018

Date(s) of hearing:	18 May 2018
Solicitors for the Applicant:	Sam Samarakoon
Solicitors for the Respondent:	Eleanor Cannon