FCMX and Minister for Foreign Affairs - [2017] AATA 740

FCMX and Minister for Foreign Affairs [2017] AATA 740 (23 May 2017)
Division:GENERAL DIVISION
File Number: 2015/3711
Re:FCMX
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

AndLTDM
JOINED PARTY

DECISION
Tribunal:Regina Perton, Member
Date:23 May 2017
Place:Melbourne

The Tribunal affirms the reviewable decision of the respondent’s delegate dated 5 March 2015.
........................[sgd]................................................
Regina Perton, Member
FOREIGN AFFAIRS – application for passport – child under 16 years – parent refused consent for child to travel internationally – whether special circumstances exist – decision to refuse to issue passport affirmed
LEGISLATION
Australian Passports Act 2005 ss 7(1), 11(1), 11(2)
Australian Passports Determination 2005 s 2.1
Family Violence Protection Act 2008 (Vic)
SECONDARY MATERIALS
Explanatory Memorandum to the Australian Passports Bill 2004
Explanatory Statement to the Australian Passports Determination 2005
REASONS FOR DECISION
Regina Perton, Member
23 May 2017

On 9 January 2015, ECPZ (the mother) applied for a passport for her son, FCMX (the child), so that he could travel overseas with his grandparents for a short holiday. On 20 February 2015 the child’s father, LTDM (the father), completed a declaration in which he did not consent to the child travelling internationally.
On 5 March 2015, a delegate of the Minister for Foreign Affairs (the respondent) refused to issue a passport to the child. The mother sought internal review of that decision and on 8 July 2015 a delegate of the respondent decided to affirm the decision (the reviewable decision). On 24 July 2015, the mother lodged an application with the Tribunal on behalf of the child for review of the reviewable decision.
LEGISLATION
The Australian Passports Act 2005 (the Act) relevantly provides:
7Australian 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.
…
11Reasons 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.
Section 11(2) of the Act allows the Minister to issue a passport in certain circumstances:
(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
…
Section 2.1 of the Australian Passports Determination 2005 (the Determination) was in force at the time of the application for the issue of a passport. It provides that the criteria for determining if special…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read FCMX and Minister for Foreign Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 740
Decision Date: 23 May 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by FCMX for a passport for a child, against a decision by the Minister for Foreign Affairs to refuse its issuance. The mother, on behalf of the child, contended that the child's welfare would be adversely affected by being prevented from international travel.

The Tribunal was required to determine whether the child's welfare, as defined by section 11(2)(b) of the relevant Act, would be adversely affected by the refusal of a passport. This involved assessing whether the child would suffer harm or long-term damage to their life endeavours by not being able to travel internationally.

The Tribunal reasoned that while the child might experience disappointment at not being included in a proposed holiday, there was insufficient evidence to establish that this would amount to physical or psychological harm or detriment to their future life endeavours. The Tribunal noted that alternative opportunities for domestic travel and maintaining contact with overseas relatives existed, and therefore concluded that section 11(2)(b) of the Act was not satisfied.

Consequently, the Tribunal affirmed the reviewable decision to not issue a passport to the child.

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

Full text does not contain this section.

Decision

Reasons for decision

In respect of s 11(2)(b) of the Act (the child’s welfare), the mother claimed that the child would be adversely affected if prevented from travelling internationally. The Tribunal considers that the child may indeed feel left out or disappointed not to be included in the proposed short holiday, but there is no evidence to suggest that the child would suffer any physical or psychological harm or long-term damage to his life endeavours. There would be ample opportunity for the grandparents to take the child and other grandchildren on holidays within Australia, and contact with relatives living overseas could be maintained by other methods. As such, s 11(2)(b) of the Act does not apply to the child’s application for a passport. DECISION The Tribunal affirms the reviewable decision to not issue a passport to the child.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.