Azizi and Minister for Foreign Affairs

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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…

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Details
Case
[2018] AATA 1871
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mohammad Azizi for review of a decision by the Minister for Foreign Affairs to refuse to issue an Australian passport to his son, Ismail. Mr Azizi, an Australian citizen, sought the passport for his son, who was also an Australian citizen and residing in Afghanistan. The refusal was based on the lack of consent from Ismail's mother, who also held parental responsibility for the child. Allegations of domestic violence and blackmail were raised by Mr Azizi concerning his ex-wife. The review was heard by R Cameron SM in the Administrative Appeals Tribunal.

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

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 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. Additionally, Mohammad Azizi gave viva voce evidence.THE APPLICABLE PASSPORTS LEGISLATION It is useful to reproduce the relevant sections of the Act. 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). 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

Decision

Reasons for decision

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 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. Additionally, Mohammad Azizi gave viva voce evidence.THE APPLICABLE PASSPORTS LEGISLATION It is useful to reproduce the relevant sections of the Act. 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). 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

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.