HGPV and Minister for Foreign Affairs

[2023] AATA 339

HGPV and Minister for Foreign Affairs [2023] AATA 339 (1 March 2023)

Division:GENERAL DIVISION

File Number:          2022/6457

Re:HGPV, by her Mother

APPLICANT

AndMinister for Foreign Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:1 March 2023

Place:Melbourne

1.Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the reviewable decision dated 7 July 2022.

2.In its place, the Tribunal substitutes a decision that:

(a)it is satisfied that circumstances specified in a Minister’s determination as special circumstances exist so as to not prevent the issue of an Australian travel document to the Applicant; and

(b)that a passport issue in the name of the Applicant, as applied for on 16 February 2021.

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

Senior Member D. J. Morris

Catchwords

FOREIGN AFFAIRS – passports – renewal of Australian passport for a child – where passport refused – where parent of applicant applied for internal review by delegate of minister – where delegate of Minister affirmed refusal – where parent of applicant applied to Tribunal for review – general entitlement of citizens to an Australian passport – special provisions relating to passports for an unmarried child – one parent does not consent – consideration of provisions in Act relating to circumstances where issue of passport is not prevented – provisions of Determination – policy followed by Department – whether non-consenting parent has had no contact with Applicant for substantial period of time before application lodged – what is substantial period of time – whether applicant’s physical or psychological welfare would be affected if not allowed to travel internationally – whether discretion should be exercised to issue passport – decision set aside and new decision substituted

PRACTICE AND PROCEDURE – where non-consenting parent not joined in proceedings – where Respondent submitted proceedings could be adjourned to allow non-consenting parent to be joined or otherwise participate – where Respondent advised non-consenting parent of time and place of Tribunal hearing – where non-consenting parent did not contact the Tribunal – role of Tribunal in such a case – Tribunal satisfied non-consenting parent had reasonable opportunity to ask to be joined or to give evidence – recommendation that respondent institute protocol for non-consenting parent in such cases to be notified of an application to Tribunal – hearing proceeded

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 29C, 32, 30, 33A, 35, 37
Australian Passports Act 2005 (Cth), ss 7, 8, 11, 48, 49, 50
Australian Passports Determination 2005
Australian Passports Determination 2015, Div 2, Sub-div A – Children, Div 3
Family Law Act 1975 (Cth), s 69R
Passports Act 1920 (Cth)
Passports Act 1938 (Cth)
War Precautions Act 1914 (Cth)
War Precautions (Passports) Regulations 1916 (Cth), r 4

Cases
Drake and Minister for Immigration and Ethnic Affairs; Re:(No 2) (1979) 2 ALD 634

R v Paterson, Ex parte Purves [1937] ALR 144; (1937) 10 ALJ 468

Secondary Materials

Current Topics: The Right to a Passport 48 ALJR 61 (Editor: J. G. Starke, Q.C.)
Doulman, Jane and Lee, David, Every Assistance & Protection – A History of the Australian Passport (Department of Foreign Affairs and Trade; The Federation Press ,2008)
Hague Convention on the Civil Aspects of International Child Abduction [1987] ATS 2, done at The Hague 25 October 1980. Entered into force for Australia 1 January 1987
International parental child abduction, Attorney-General’s Department website – ag.gov.au (accessed 10 February 2023)
Lancy, Robert S., ‘The Evolution of Australian Passport Law’ (1982) 13 Melbourne University Law Review
Lloyd, Martin, The Passport (Sutton Publishing Ltd, 2003)
The Concise Oxford Dictionary of Current English (4^th ed, Clarendon Press, 1951)
The Parliament of the Commonwealth of Australia – Australian Passports Determination2005 Explanatory Statement
The Parliament of the Commonwealth of Australia – Australian Passports Determination 2015 Explanatory Statement

Wilkinson, Sir J. Gardner, A Popular Account of the Ancient Egyptians (John Murray, 1854)

REASONS FOR DECISION

Senior Member D. J. Morris

1 March 2023

ORDERS RELATING TO HEARING

1. The Applicant in this matter is a child. Accordingly, of its own motion, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of her name, or the publication of any other details in these reasons that might tend to identify her. Access to evidence in these proceedings is further restricted only to the Tribunal and parties. The hearing was also held in private. Apart from the Applicant’s representative and the legal representative of the Respondent, leave was given for two other persons to be present, the Applicant’s grandmother and an instructing officer of the Department of Foreign Affairs and Trade (‘the Department’). The Applicant will be referred to in these reasons by the anonym ‘HGPV’. The anonym will be substituted for the name where documents are quoted.

2. HGPV is the Applicant but, because of her age, the application has been brought by her mother. The reason for the application is that HGPV applied to renew her Australian passport. Her mother gave her consent, but her father did not. The Department decided not to issue the passport. Such a decision is reviewable by the Tribunal.

   HISTORICAL CONTEXT

   The evolution of the passport

3. A passport produced by a person instantly is proof that the person is a citizen of a particular nation state (Current Topics: The Right to a Passport; 48 ALJR 61).

   Literally, the word “passport” means a licence to pass a port or city gate or haven; or in other words a licence to pass safely from one place or one country to another place or country.

4. The article goes on to explain the three functions of a passport. It is a document of identity of the holder. It embodies a request to foreign governments to grant the bearer safe and free passage and all lawful aid and protection while within their territorial jurisdiction. Finally, a passport is prima facie evidence of the nationality of the holder.

5. The idea of the passport is not new. The Ancient Egyptians were known to have a passport system. Sir Gardner Wilkinson, the eminent Egyptologist, recorded that in about 1500 BC the common people in Egypt were required to register themselves with the magistrates. He wrote:

   ‘It appears that they not only enrolled their names and gave in the various particulars required of them, but were obliged to have a passport from the magistrate…for a document of that kind was required for every ship quitting a port.’

   The passport in Australia

6. In the Australian colonies before Federation, documents called ‘passports’ were issued to ticket-of-leave convicts when they had completed their sentence. They were not of much use, because free passage back to England was not provided by the authorities. The governments of the colonies occasionally issued passports on request to persons wishing to travel abroad, and continued sporadically to do so after Federation in 1901.

7. After the national Australian government was established, requests for Australian passports were responded to on an ad hoc basis by officers of the then Department of External Affairs.

8. The first two Australian passports are believed to have been issued by the Barton Government in April 1901 to a Melbourne businessman, Mr John Briscoe, and his sister Helen. They were leaving Melbourne by boat, sailing to Vladivostok and thence entrain to Europe on the Trans-Siberian Railway. They required a passport so that the Russian Imperial Consul in Melbourne could issue a visa. Just how rarely passports were sought in these early years is reflected in the fact that 1908 is the next year passports are recorded being issued by the Department.

9. In 1912 regulations were made by the Fisher Government providing rules around the issuance of passports, which included that an applicant had to either be known to the Minister or recommended by someone in a class of persons. Passports had to be personally picked up from the Department of External Affairs’ offices in Melbourne, or from the Custom House at the point of embarkation.

10. Until the outbreak of the Great War in 1914, it was not essential for international travellers to possess passports. Very few people could afford to travel for pleasure. British subjects (which included persons born in Australia or its colonies) did not generally need a passport to, for instance, enter the United Kingdom.

11. Although we today regard passports as a travel document, in Australia the first substantial legislative measures governing passports was designed to prevent Australians leaving the country, not to facilitate travel. The War Precautions (Passports) Regulations 1916 provided, at r 4, that

    no person whose age exceeds or appears to an officer to exceed fifteen years shall embark at any place in the Commonwealth for any place beyond the Commonwealth unless he is in possession of a passport.

    The policy driving these regulations made by the Hughes Government was reportedly to prevent eligible men leaving Australia for the purposes of avoiding conscription.

12. These war-time regulations were replaced by a statute, the Passports Act 1920 (the ‘1920 Act’). One of the difficulties with the 1920 Act was the wide ambit it gave to the Minister administering the Act to refuse to issue a passport. Some of the reasons used by officials in the 1920s to refuse passports seem ridiculous by today’s standard. For example, reasons for refusal included the following: a single woman wanting to accompany a man on a trip abroad; persons wishing to go to the USA to join certain religious organisations; persons of ‘weak mentality’; and persons wishing to proceed abroad without consent of husband or wife (as the case may be).

13. This last reason was relevant to a High Court decision, R v Paterson, ex parte Purves (1937) ALR 144; (1937) 10 ALJ 468 (‘Purves’). The facts in Purves were as follows. Mr and Mrs Purves married in September 1935. After four months, Mrs Purves left her husband and returned to the home of her father. In 1938 Mr Purves was informed by a friend that his wife’s passage had been booked on a steamship that was leaving Melbourne the following month. Mr Purves instituted proceedings in the Supreme Court relating to the relationship. Mr Purves’ lawyers wrote to the Minister requesting him not to issue a passport to the wife, on the ground that the course of justice would be defeated in the litigation by her departure. The Minister responded that he had granted authority for the passport to be issued to the wife but that it would not be made available for five days, to allow the husband to take such action as might be advised.

14. Mr Purves applied to the High Court for a writ of mandamus and an interim injunction against the issue of the passport. In his judgment in Purves, Evatt J said:

    On the whole, I am of opinion that the Minister is possessed either of a discretionary power to refuse to issue a passport, or at least a discretionary power to cancel any passport which has been issued. This view is supported by the general tenor of the enactment, which derives from war-time conditions…

15. Evatt J went on to say that the Department’s practice, to inform a spouse of an application for a passport by their husband or wife, had no statutory basis and that, in any case, the absence of consent does not preclude the Minister from granting a passport.

16. Purves therefore was authority that, in Evatt J’s words, so long as the Minister carries out his duties under the statute honestly, no Court could interfere with him. The Minister had a discretionary power to issue or cancel passports if done ‘on grounds conformable with the general objects’ of the legislation.

17. It was clear that the discretionary powers in the legislation (which reflected war-time emergency exigencies) needed to be defined, so the 1920 Act was repealed by the Passport Act 1938. This statute, while periodically amended, was the principal legislation governing the issuance of Australian passports until 2005.

18. When the legislation was overhauled with the enactment of the Australian Passports Act2005 (‘the Passport Act’), for the first time it was put into law that an Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport.

19. However, s 7 of the Passport Act does not confer an absolute right on an Australian citizen to have a passport, should he or she apply for one. The right is conditioned in several ways. Section 8 of the Passport Act requires that the Minister must be satisfied that the person is an Australian citizen and of the identity of the person.

20. Division 2 of the Passport Act codifies reasons that the Minister may refuse to issue an Australian passport (or other Australian travel document). Division 2 is divided into four subdivisions. Subdivision A relates to passports to be issued to unmarried children; subdivision B relates to Australian law enforcement matters and international law enforcement cooperation and the potential for harmful conduct; subdivision C relates to administrative reasons, such as repeated loss or theft or where a person may have an outstanding consular debt relating to repatriation to Australia; and subdivision D relates to requests by competent authorities.

21. The only relevant parts of the Passport Act concerning HGPV are these: first, whether she is an Australian citizen, and thereby entitled to an Australian passport. Secondly, as she is an unmarried child, whether both parents consent to the passport being issued.

22. In this case, the Applicant applied for a passport on 16 February 2021. On 19 May 2021, a delegate of the Minister refused the application on the basis that both parents did not consent. The Applicant’s mother sought internal review by a Department officer under ss 48 and 49 of the Passport Act, on the basis that the Applicant’s father played no active role in the Applicant’s life and that she was the sole carer for the Applicant.

23. On 7 July 2022 the delegate affirmed the decision to refuse the passport. Under s 50 of the Passport Act, the Applicant through her mother has brought the matter to the Tribunal for review.

    HEARING

24. A hearing was held on 1 February 2023. HGPV was represented by her mother with the permission of the Tribunal under s 32(4) of the AAT Act. The mother will be referred to as Ms ‘AM’. The Respondent was represented by Mr Christopher Orchard, a solicitor of Sparke Helmore. Ms AM also gave evidence, as did two other witnesses, who appeared by leave of the Tribunal under s 33A of the AAT Act by electronic means. They were Ms FM, who is deputy principal of the school HGPV attends; and Mr DB, who is the employer of Ms AM. At the conclusion of the hearing, the Tribunal reserved its decision and asked the Respondent to provide some additional information.

25. The Tribunal admitted into evidence the following documents:

    (a)A volume of ‘TD’ documents lodged by the Respondent under s 37 of the AAT Act (Exhibit R1);

    (b)Statement of Ms AM, not dated (Exhibit A1);

    (c)Letter from the Child Support Agency dated 14 May 2020 (Exhibit A2);

    (d)Statutory Declaration of Ms AM dated 28 November 2022 (Exhibit A3);

    (e)Federal Circuit Court of Australia Affidavit of Service by Hand (Divorce), served 24 July 2019 (Exhibit A4);

    (f)Family Law Act 1975 – Divorce Order dated 17 September 2019 (Exhibit A5);

    (g)Statement of Ms AM dated 28 November (no year) (Exhibit A6);

    (h)Statutory Declaration of Ms FM dated 24 November 2022 (Exhibit A7); and

    (i)Letter from Ms FM dated 24 November 2022 (Exhibit A8).

26. In addition, the Respondent submitted a Statement of Facts, Issues and Contentions dated 25 January 2023, and a document titled Respondent’s Outline of Oral Argument, lodged on 31 January 2023.

    PRELIMINARY MATTER

    Whether non-consenting parent should be made a party or invited to participate

27. At the commencement of the hearing, Mr Orchard raised the fact that an invitation had not been issued to the Applicant’s father to join the proceedings as a party under s 30(1A) of the AAT Act.

28. The Respondent submitted that it would be open to the Tribunal to invite Mr AF to be joined as a party to the proceedings and, if the Tribunal was so minded, the Minister would not oppose an adjournment as it would allow Mr AF, as a person with ‘parental responsibility’ under the Passport Act, to be heard if he so chose.

29. Mr Orchard advised the Tribunal that on 25 January 2023 he had left a message for Mr AF at his work, and Mr AF had called back. Mr Orchard advised Mr AF that the Applicant’s mother had applied to the Tribunal for review of the decision to refuse the passport and that he was entitled to become involved in the proceedings if he wished; or to inform the Tribunal that he did not wish to become involved.

30. Mr Orchard said that he had advised Mr AF of the date and time of the hearing and the purpose of it. Mr Orchard handed up a file note dated 25 January 2023, which the Tribunal admitted into evidence as Exhibit T1. It relevantly said:

    He [i.e., Mr AF] indicated that he continued to oppose the passport being issued and nothing had changed from what he told the department (i.e., that he opposed the passport being issued). He also said he didn’t want his daughter going overseas with an “international DJ” his wife had an affair with. He said what he said to the department was what he would say to the Tribunal. I [i.e., Mr Orchard, the Minister’s lawyer] said it was up to him if he wanted to say anything else or provide any further documents etc.

31. Mr Orchard handed up an email dated later on 25 January 2023 which referred to his telephone conversation with Mr AF and attached a copy of the application to the Tribunal and a copy of the file note he had made of their conversation earlier that day. He reiterated that Mr AF could approach the Tribunal; and that the Minister’s legal representative could not provide advice on what Mr AF should do. That email was admitted as Exhibit T2.

32. A further email Mr Orchard sent to Mr AF dated 30 January 2023, asking whether he was in a position to say if he would take any further part in the application, was also handed up (Exhibit T3).

33. Finally, Mr Orchard handed up a file note dated in the afternoon of 31 January 2023 (i.e., the day before the hearing) recording that he had left a message on Mr AF’s mobile phone asking, again, whether he intended to become involved and saying he should contact either the Respondent or the Tribunal indicating his position and reminding him of the Tribunal’s email address (Exhibit T4).

    Consideration

34. Section 30(1) of the AAT Act sets out who are the parties to a proceeding before the Tribunal. Relevantly, in this case they are:

    (a)the person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision. In this case that is HGPV, represented by her mother (s 30(1)(a));

    (b)the person who made the decision. In this case that is the Minister for Foreign Affairs, through her authorised delegate, represented by Mr Orchard (s 30(1)(b));

    (c)       any other person who has been made a party to the proceeding by the Tribunal on          application by the person in accordance with subsection (1A).

35. Section 30(1A) of the AAT Act states:

    Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

36. Section 29AC(1) of the AAT Act provides that if an application is made to the Tribunal for review of a decision, the Registrar must give the following persons written notice that the application has been received: the applicant; the person who made the decision; and any other person who is made a party to the review by the enactment that authorised the application.

1. Section 29AC(2) of the AAT Act states:

   The Tribunal or an officer of the Tribunal may, if satisfied that another person’s interests may be affected by the decision:

   (a)give the other person written notice of the application and of the person’s right to apply to be made a party to the proceeding under subsection 30(1A); or

   (b)         require the applicant to give the other person such a notice.

2. The enactment that authorised the application in this case is s 50 of the Passport Act. There is no provision, as far as the Tribunal is aware, in the Passport Act that makes a non-consenting parent of a passport applicant a party to a review by the Tribunal. Therefore, the Registrar does not have a duty in terms of s 29AC(1) of the AAT Act in this matter.

3. The Tribunal did not give Mr AF notice of the application and of his right to apply to be made a party to the proceedings, under s 29AC(2)(a). The Tribunal does not consider that an applicant who is a child should be required to give notice, under s 29AC(2)(b).

4. The Tribunal remarked that there is no power of the Tribunal to, of its own motion, decide that a person may have an interest in a decision which is the subject of an application for review, and join them to the proceeding on that basis. There is also no duty in s 29C for the Tribunal to initiate that. The Respondent agreed that there was no such duty.

5. Having said that, whether a person may be affected by proceedings is closely linked to the nature of the proceedings. In this case there was no contest by the Applicant’s representative that Mr AF, as the father of the Applicant, has parental responsibility for his daughter. Therefore, there is a strong case that, if Mr AF sought to be joined, the Tribunal would exercise its discretion to make a joinder order. This is because it is his action, in not providing consent for the passport to be issued, that has precipitated the reviewable decision and the consequent application to the Tribunal.

6. The Tribunal commends the Respondent’s legal representatives for initiating the approach to Mr AF on 25 January 2023. It is the proper approach of the Commonwealth as a model litigant. It was open to the Applicant to inform Mr AF of the Tribunal proceedings, but she is under no obligation to do so. However, the contact made by the Respondent means that Mr AF was made aware of the time and date of the proceedings, with enough time to make an approach to the Tribunal to be joined, or, alternatively, to ask to appear as a witness.

7. I am satisfied that the matter proceeded properly, without adjourning for the purpose of making further inquiries to Mr AF. The reason for that state of satisfaction is that Mr AF had four direct approaches – two by telephone and two by email – apprising him and then reminding him of (i) the application, (ii) the purpose of the hearing and (iii) the fact that the Tribunal had the power to affirm or set aside the decision under review. Mr AF was aware of the time and date of the hearing. Had he made an approach to the Tribunal, he could have appeared in person or by telephone or video-link. He could also have applied to be joined or could have made another submission, such as to seek an adjournment to enable him to obtain legal advice.

8. Mr AF made no approach to the Tribunal prior to the hearing of which he was apprised. Apart from his telephone discussion with Mr Orchard on 25 January 2023, he apparently made no other approach to the Respondent. Ms AM indicated he had made no approach to her about the hearing. Important in my consideration of this matter is the two points Mr Orchard recorded Mr AF said to him: (a) that he continues to oppose the passport being issued, and (b) that ‘what he said to the Department was what he would say to the Tribunal’.

9. In the material Mr Orchard handed up there is no new information about Mr AF’s position, other than the fact that he was given the opportunity to participate in the hearing if he wished to. It was of course open to either party to call Mr AF as a witness, including if necessary by asking the Tribunal to issue a summons.

10. There having been no application in writing under s 30(1A) of the AAT Act, there is no party to join under s 30(1)(d) of the AAT Act. The Tribunal saw no value, in this set of circumstances, to delay the hearing. It is not the Tribunal’s function to delay matters to chase up persons who may have an interest in proceedings, even in this case an interest that would be objectively well-based. That is essentially a matter for the parties.

11. However, the raising of this issue by the Respondent leads me to include in these reasons a recommendation to the Minister for Foreign Affairs. Given that it is administrative practice of the Minister’s Department to advise a non-consenting parent whether a passport has been issued to their child, it would be consistent if the Department established a protocol that, where the Respondent is advised that an application has been made to the Tribunal to review a refusal decision, the non-consenting parent should be advised, and told that he or she can apply to the Tribunal to be made a party to the proceeding under s 30(1A) of the AAT Act.

12. Given the decision that the Tribunal has made on the review, I also make the point that Mr AF has other remedies available to him for judicial review, if he can make a case that he is an affected party.

    THE MATTER BEFORE THE TRIBUNAL

13. It is not in contest between the parties that HGPV is an Australian citizen. Her birth certificate was before the Tribunal. She was born in Australia in 2013 to Ms AM, an Australian citizen, and Mr AF, who is a British citizen but who is a permanent resident in Australia (TD, pp 42 and 47).

14. Being satisfied that she is an Australian citizen and of her identity, the Tribunal finds the requirements of ss 7(1) and 8 of the Passport Act are met.

15. Section 11 of the Passport Act provides that the Minister must not issue an Australian travel document (which includes a passport) to an unmarried child unless each person who has parental responsibility for the child consents to the child having the travel document (s 11(1)(a) – but see below).

16. In this case, when the application was made by Ms AM on behalf of HGPV for the passport, she indicated that the father’s consent had not been obtained (TD, p 40).

17. Mr AF is named on HGPV’s birth certificate as her father, creating a presumption of parentage under s 69R of the Family Law Act 1975 (Cth). It was common ground that there are no Court orders in place which remove Mr AF’s parental responsibility for the Applicant. I find that he therefore remains a person with parental responsibility for HGPV; and his consent or the existence of a special circumstance is necessary for the passport to be issued.

18. The bar on issuing a passport in such a case may be lifted in circumstances stipulated later in s 11 of the Passport Act. Provisions include cases where a Court has issued an order permitting the child to have an Australian travel document, or where the Minister is satisfied that the child urgently needs to travel internationally because of a family crisis and a person with parental responsibility cannot be contacted within a reasonable period. It was common ground that neither of these exceptions apply to HGPV.

19. Section 11(2)(a) of the Passport Act provides that the Minister is not prevented from issuing a passport to a child if circumstances specified in a Minister’s determination as special circumstances exist. In addition, under s 11(2)(b) of the Passport Act, the Minister is not prevented from issuing a passport if 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.

20. Ms AM confirmed at the commencement of the hearing that the two grounds on which she considers the passport should be issued are, first, that one of the special circumstances stipulated in the Australian Passport Determination 2015 (‘the Determination’) determination applies (i.e., no contact for a substantial period of time); and, second, that HGPV’s welfare would be adversely affected if she were not able to travel internationally. The hearing proceeded on that basis.

    THE RESPONDENT’S POSITION

21. In respect of these two contentions of the Applicant’s mother, Mr Orchard submitted that the Respondent’s position on the first contention is as follows. He said that the Minister remains of the view expressed by the delegate that there are conflicting accounts presented by the Applicant’s parents that cast doubt such that the Tribunal cannot be satisfied one way or another as to the date of the last contact between the Applicant and her father. Therefore, it cannot be found that there has been no contact between HGPV and Mr AF for a “substantial period” before the application was made. Accordingly, the Respondent submitted that the exception available in s 11(1) under s 11(2)(a) of the Passport Act is not enlivened.

22. On the second contention of Ms AM, Mr Orchard submitted that there is no clear medical evidence before the Tribunal regarding any physical or psychological impact that would be caused as a result of HGPV not being able to travel internationally.

23. The Minister submitted that, if the Tribunal was to find that a special circumstance does apply, the Respondent takes no formal position on whether the Tribunal should exercise the discretion in relation to issuance of the passport. Mr Orchard said, should the Tribunal decide to set aside the reviewable decision, it would be within power of the Tribunal to make an order that the passport issue.

    OPENING SUBMISSIONS FOR THE APPLICANT

24. Ms AM submitted that it is only fair that HGPV is able to have a full education, outside of the home and the classroom, and that she has the same opportunities that other children have.

25. Ms AM said she separated from Mr AF in 2017. He had one per cent of care of HGPV for 18 months. In 2019 the Applicant started her preparatory year at a primary school in Melbourne. She saw her father the week before she started school.

26. Ms AM said that HGPV has opportunities through her involvement in the Scouting Movement to travel and referred to a letter from a scout leader which is in evidence (TD, p 13). She said that the school HGPV attends also had links with a Japanese school and that she studies Japanese and would hope to have opportunities for any future exchanges between her school and the school in Japan.

27. Ms AM also referred to HGPV having a half-sister (the daughter of Mr AF from an earlier relationship) who resides in the United Kingdom. She said that HGPV knows about her half-sister and would hope to have opportunities to travel to visit her. Ms AM said that the half-sister is the only ‘blood relative’ HGPV has, and she would like them to form a relationship. She noted that Mr AF’s former partner in Britain had written a letter in June 2021 expressing her support for her daughter and HGPV to forge a relationship (TD, p 91).

    EVIDENCE

    Ms AM

28. Ms AM said that the last contact between HGPV and her father was in 2019 prior to her starting her prep year at school. She told the Tribunal that Mr AF and the Applicant had regular contact hours with HGPV each Thursday between 9 am and 1 pm. She said that the last time Mr AF saw his daughter was on 24 January 2019, which was the Thursday prior to her starting her prep year on the following Monday, 28 January 2019.

29. The Tribunal remarked that, given the Applicant was starting full-time school, new arrangements would have to have been made for contact between Mr AF and his daughter.  Ms AM agreed and said that on the last occasion they saw each other, Mr AF gave the Applicant a teddy bear which had a recorded message of his voice saying, ‘I love you for ever and ever.’

30. Mr Orchard noted that there was a letter in evidence from the Child Support Agency which states ‘We were told on 28 April 2020 that the care of [HGPV] changed on 27 February 2019’.  Ms AM said that she had given Mr AF a month’s leeway from his last meeting with HGPV because she had anticipated he would contact her to set up a new arrangement to see his daughter. The letter from the Agency also states that its records show that Ms AM has 100 per cent care of HGPV and Mr AF has zero per cent care from 27 February 2019.

31. Ms AM said Mr AF ceased paying child support under their informal mutual arrangement on 28 April 2020. She told the hearing that, once he ceased paying child support, the Child Support Agency garnisheed his wages, for the purpose of payments for HGPV.

32. Mr Orchard noted that Mr AF, in a file note taken by a Department officer (TD, p 99), had said that that last contact he had with the Applicant was:

    “February last yr [i.e. 2020], before covid Lockdowns”  

33. Ms AM said that this was categorically untrue.

34. Mr Orchard noted that a Department officer recorded in a file note in April 2021 (TD, p 63) that, when Mr AF was asked when about his last contact with HGPV, he responded ‘well over a year ago’, which would mean well before April 2020. Ms AM responded: “I see that as his way of saying ‘I cut ties well over a year ago’.”

35. Mr Orchard then asked about the welfare of HGPV. He asked Ms AM why she thought the Applicant’s welfare will be affected if HGPV is unable to travel internationally. Ms AM responded:

    I believe her welfare would be affected by missing out on contact with her half-sister. [HGPV] shows great sadness and abandonment and rejection, which is a challenge to her mental health.

36. Mr Orchard referred to letters of a child psychologist HGPV sees which were before the Tribunal, and asked Ms AM whether she agreed that the psychologist’s letters focus more on the effect on HGPV of her father not agreeing to her getting a passport, rather than about travelling. Ms AM said she did not agree with that. She said:

    She has deep-seated pain and disappointment with her father. He can’t see past his feelings and is hurting her for his own gratification. It is about opportunities. Disappointment in missing out. To know she would not be a contender due to someone’s decision over her is heart-breaking.

37. Mr Orchard put to Ms AM that, if the Tribunal finds that more than two years have elapsed since Mr AF last had contact with HGPV, given that he does have parental responsibility despite not having any care arrangements, why should the discretion be exercised to grant the passport. Ms AM responded:

    He is disengaged. He is selfish and bitter and trying to hurt me through our daughter. I never dispute that he is her father. I want HGPV to be a happy and fulfilled child.

38. Ms AM was asked about HGPV’s interest in travelling. She said that the Applicant’s half-sister is aged 22 and lives in a city in northern England. She said that HGPV is heavily involved in Scouts and that jamborees are held in New Zealand, which the Applicant would like to be able to participate in. She said that HGPV is learning Japanese at school.

39. When asked whether Mr AF had ever indicated that he will get back in contact with HGPV, she responded:

    No. No birthday cards. No Christmas cards. No acknowledgment of starting another year at school. No interest in her medical care. HGPV has gone to the same general practitioner all the time. He used to go to the same GP many years ago. There has never been any inquiry or a request for meeting with her doctor.

40. Ms AM said that HGPV previously had a passport, which had been issued in 2016 with the consent of Mr AF before the marriage ended (TD, p 34). During the marriage, she and Mr AF had travelled with the Applicant for a three-week holiday to Singapore in around August 2017.  Ms AM said she had also gone away to Thailand for a birthday celebration with HGPV and her mother for around 10 days in 2020. In response to a question from the Tribunal, Ms AM said that her new partner and his mother also went on the same trip.

41. Ms AM said HGPV was enrolled at her school in Melbourne. Ms AM said that she is an Australian citizen and does not hold any other citizenship. She said that her new partner is also an Australian citizen and is based in Melbourne.

42. Mr Orchard asked how often she thought HGPV would travel overseas if she was granted a passport. Ms AM responded: “Once a year. Financial factors are relevant. I would like her to go to Disneyland.”

43. Ms AM said Mr AF is a British citizen and she believed he only held a British passport and had not become an Australian citizen.

    Ms FM

44. Ms FM gave evidence that she has taught at the same primary school in Melbourne for 20 years; she is currently deputy principal of the school. Ms FM checked the enrolment records and confirmed that HGPV started in prep year at the school on 29 January 2019.

45. When asked whether the school had any contact from Mr AF since HGPV started school, Ms FM responded: “No. Since she started prep, I would be aware of any contact by a parent, and he’s had none.”

46. The Tribunal asked Ms FM if the school had arrangements in place where an enrolled student might have parents who do not have contact with one another. She said that the school maintains a ‘portal’ and told the hearing about an example where another student had parents who did not talk to each other, but they would come to various school functions, being alerted through the portal. She said Mr AF had never made any contact with the school.

47. In answer to direct questions from the Tribunal, Ms FM said that the school has a sister school relationship with a school in Okinawa, Japan. She said that the relationship currently consists of students from each school using ‘Skype’ to talk to each other, but it was hoped that in time there would be student exchanges or visits.

    Mr DB

48. Mr DB gave evidence that he has been the employer of Ms AM for just short of eighteen years. He said he has known HGPV since she was a day old. He says that he sees the Applicant probably around a dozen times a year.

49. Mr DB said he had often spoken to the Applicant and had shared meals with her on regular occasions, describing her as a wonderful young child.

50. He said that he had tentatively brought up with HGPV about the last time she saw her father ‘about five years ago’, asking how she was feeling. Mr DB’s recollection was that was in Christmas 2018.

51. Mr DB said he did not know Mr AF well; having met him on two or three occasions. He said he had only once seen Mr AF with the Applicant, when he visited their home and HGPV was very young.

52. Mr Orchard asked Mr DB whether he thought Mr AF had purposefully removed himself from HGPV’s life.  He responded: “I know her mother tried. She did everything she could to enable them to meet. She was always making arrangements for him to see his daughter on Thursday mornings, I remember because I had to change the rosters to accommodate that.”

    CONSIDERATION

53. This matter boils down to three things: First, is the Tribunal satisfied that Mr AF, who has refused to consent to the passport, has not had contact with the Applicant for a ‘substantial period of time’ such that special circumstances exist where the Minister may issue an Australian travel document to a child.

54. Secondly, is the Tribunal satisfied that HGPV’s welfare (physical or psychological) would be adversely affected if the Applicant was not allowed to travel internationally (see s 11(2)(b) of the Passport Act).

55. If the answer to either of these questions is ‘yes’, then the final question to be decided is whether the discretion to refuse the passport nonetheless should stand.

56. The Tribunal will deal with the second of the issues first.

    The child’s physical or psychological welfare

57. In considering this part of the Passport Act, delegates of the Minister are guided by a document called Australian Passports Policy (‘the Policy’). It is well-established in the Tribunal that where a decision-maker has applied policy to a reviewable decision, the Tribunal, standing in the shoes of the decision-maker, should have regard to the policy so applied. This is to promote consistency in decision making. However, where a policy would produce an outcome that is manifestly unjust or where a policy is inconsistent with the relevant legislative provisions, the Tribunal would not apply it (see Brennan J, as President of the Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634).

1. Chapter 13.24 of the Policy was in evidence (TD, pp 132-133). Where a person is seeking a passport and relying on this exception in the Passport Act, the Policy requires that the application for the passport must be accompanied by a written statement from a registered healthcare provider to support the claim.

2. The Tribunal had before it letters from Mrs Kerry Smith-Amato, paediatric psychologist, of the Melbourne Children’s Clinic, dated 1 August 2022 (TD, p 11) and 21 June 2021 (TD, p 92); together with a file note of a discussion by a Department officer with Mrs Smith-Amato in August 2021 (TD, p 95).

3. Mrs Smith-Amato stated that she has been seeing HGPV since July 2020, after she was referred by her family general practitioner for treatment for loss and emotional dysregulation due to her father’s absence.

4. In the Department file note dated August 2021, the officer recorded Mrs Smith-Amato saying that HGPV had referred to a proposed trip to New Zealand but also future travel to see her half-sister. She said that HGPV found it difficult not having her father involved in her life, and this had affected her self-esteem. Mrs Smith-Amato expressed the opinion to the officer that if HGPV were to obtain a passport, this would help her self-identity by being able to better connect with her family.

5. In her more recent letter of 1 August 2022, Mrs Smith-Amato wrote:

   The recent news of her father not agreeing to allow her to receive a Passport has triggered deep feelings of confusion, anger and sadness within HGPV. She does not understand why he would want to deprive her having the opportunity to travel internationally when he is not in her life at all. HGPV stands to miss out on travel opportunities provided through her Scouting group and other opportunities such as Student Exchange opportunities and other family trips throughout her teenage years. The news of this decision to refuse her Australian Passport has triggered deep feelings of neglect and self-worth and subsequently unquestionably impacts her psychological health.

6. In the Tribunal’s consideration of this particular submission, care should be taken to look at the wording of s 11(2)(b). The Parliament has couched it so that the Minister (or in this case the Tribunal) must be satisfied that a child’s physical or psychological welfare would be adversely affected if the child were not able to travel internationally.

7. Therefore, I must be satisfied that there would be a direct correlation between a child being prevented (by not having a passport) from being able to travel internationally and this fact having an adverse effect on his or her physical or psychological welfare. The Policy suggests that ‘more than the usual disappointment’ is expected, but that decision-makers should not dispute a statement by an acceptable healthcare provider.

8. The Minister did not dispute that Mrs Smith-Amato was a person of relevant expertise in terms of such an assessment. In a fair reading of Mrs Smith-Amato’s most recent letter, the effect on HGPV is more than ‘the usual disappointment’. However, it would seem to me, on the whole of the information provided, that this assessment is more about the disappointment and inability of HGPV to understand why Mr AF would not consent to her passport, as distinct from her being affected by specific planned international travel not being able to take place.

9. Relevant here is that HGPV previously had a passport, and has travelled overseas using it, with her parents and, more recently before that passport expired, with Ms AM. I therefore accept that even though she is only nine years of age, the Applicant would be conscious that she had something that has now been taken away – an ability to travel outside Australia.

10. I note the evidence of a Scout Leader (TD, p 13) that HGPV has been an active member of Scouting since 2019, and that she would be disadvantaged with her peers if she was unable to participate internationally in Scouting activities. I also note Ms FM’s evidence about the sister school relationship with Japan (TD, p 16), but on her oral evidence I classify this as nascent, given there are no concrete plans for student visits or exchanges. I accept Ms AM’s evidence that HGPV would like to travel to Britain to meet her half-sister. When asked whether the half-sister could travel to Australia, Ms AM said she is a student so would not have the funds in the foreseeable future. I accept that the Applicant would be disappointed if she was unable to travel to meet her half-sister, having learned of their link.

11. However, I am not satisfied that there is sufficient evidence before me to be satisfied that the discretion available in s 11(2)(b) of the Passport Act is enlivened. It is more recently that the Applicant has learned that her father has refused consent for her to renew her passport. This refusal by Mr AF does not seem to me to be one of the many factors as to why HGPV was referred to Mrs Smith-Amato for specialist psychological care, i.e., the withdrawal of her father from her life, but it may (now) be in the mix. However, the ability for HGPV to travel internationally does not seem pivotal in that mosaic.

12. While I am sure the re-issue of a passport to HGPV would be something that would greatly please the Applicant, this is not a case where specifically planned travel has had to be abandoned because of the lack of a passport. I cannot therefore conclude that the Applicant’s physical or mental welfare is adversely affected when only aspirational international travel is cited.

13. I find there is insufficient evidence to be satisfied that the exception available under s 11(2)(b) of the Passport Act is enlivened.

    No contact between the non-consenting person and the child for a substantial period

14. The other submission made by the Applicant relates to the exception where there has been no contact with a non-consenting parent. A passport may be issued to an unmarried child without the consent of a parent where there has been no contact between the child and the non-consenting person for a ‘substantial period before the application is made’ (Div 2, paragraph 10(3)(d) of the Determination) (TD, p 115).

15. The word ‘substantial’ is not defined in the Passport Act or in the Determination. The Respondent submitted that reference therefore should be made to the Explanatory Statement relating to the Determination. The Tribunal agrees that this is a usual resort to aid an understanding of statutory intent.

16. Paragraph 49 of the Explanatory Statement says:

    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.

17. Ms AM submits that the last contact between HGPV and her father was on 24 January 2019, which is about two years and 23 days before the application for the passport was made. Mr AF, on the other hand, submits that he last had contact with his daughter was ‘February 2020’. If the father’s submission is accepted, that would be a period of one year and 15 days before the passport was applied for.

18. It is important to note that ‘contact’ in this sense does not have to mean face-to-face meetings; it can include other forms of reciprocal exchanges such as text messages, telephone calls and video-links.

19. The evidence of Ms AM was that there was a regular mutual arrangement between her and Mr AF for their daughter to spend time with her father on Thursday mornings between 9 am and 1 pm. There were no submissions that this regular arrangement was not followed until HGPV started school. In fact, Mr DB in his evidence volunteered that he had to arrange work rosters to account for the fact that Ms AM would be absent on Thursday mornings to facilitate this arrangement. In addition, Ms FM gave evidence that the first day of the school year for HGPV in 2019 was Monday 28 January 2019. She interrupted her evidence to obtain the direct records from the school’s enrolment data base to confirm that was the fact.

20. Before the Tribunal (TD, p 17) was a string of text messages between Ms AM and Mr AF spanning the period from 16 January 2019 to 5 September 2020. The messages record Ms AM and Mr AF confirming arrangements for the father to see the Applicant on 24 January 2019. The following text message is dated 30 January 2019 to Mr AM, reminding him that the Thursday contact arrangement had finished owing to HGPV starting school, and reminding him that an alternative weekend contact arrangement was necessary. There was no response to this message. The next message was on 26 March 2019 asking Mr AF to check his email about a missed payment. The next message in the string was dated 25 June 2019 where Ms AM advised Mr AF that she had initiated divorce proceedings. The next following message was almost a year later, on 24 April 2020 about missed payments. The last message in the string is dated 5 September 2020 and says:

    [HGPV] misses you so much and is really upset at the moment. She does not understand why you don’t see her any more.

21. In regard to this last message, Ms AM told the Tribunal that the Applicant  asked her to send it, and  essentially dictated what she wanted said.

22. Mr AF himself told the Department officer that he has ‘no contact’ with HGPV. Ms FM said that he has never inquired about her progress at school, nor sought school reports, nor expressed interest in attending any school activities or functions. Mr AF had the opportunity, both in his discussions with Department officers to make a case about contact, or that he had a desire for future contact, but did not take up that opportunity.

23. In addition, as set out in detail above, Mr AF was apprised of the imminence of the Tribunal hearing to review the decision to refuse the passport; and I am satisfied he knew that the Tribunal had the power to either affirm the refusal decision or to order that the passport be issued. He did not take up the opportunity to contact the Tribunal to seek either to be joined as a party or, less formally, either to make a written submission or simply ask to be heard as a witness, to put his point-of-view. I accept that he told the Respondent’s solicitor that ‘what he said to the Department is what he would say at the Tribunal’.

24. While the nomination of the last date or period of contact by Ms AM and Mr AF is not directly corroborated, I take account of the generally supportive evidence of Mr DB about the access arrangement, and the strong evidence of Ms FM about when HGPV started full-time school, which was, consequently, when the Thursday morning contact visits had to cease. This is corroborated by the text messages sent at the time. I therefore on balance prefer to accept Ms AM’s evidence. Mr AF’s statement to the Department about his last contact with his daughter being ‘February 2020’ is somewhat vague and is not supported by any proof put forward by him.

25. I am therefore prepared to accept that Thursday 24 January 2019 was the last time HGPV saw her father face-to-face. While there is no incontrovertible evidence, the combination of the contemporaneous text messages and the date when the Applicant started school tend to support that conclusion.

    Has there been a ‘substantial period of no contact’?

26. What is a ‘substantial’ period of no contact, as set out in the Determination, is not defined in the Determination; and its meaning is not helped much by reference to the Explanatory Statement. As I pointed out at the hearing, a period of ‘up to two years’ can mean a period of one day. Paragraph 49 of the Explanatory Statement also has two other qualifiers, ‘in most cases’ and, following the period of ‘up to two years’, the qualifier ‘but may be less depending on the age of the child and the circumstances of the application’.

27. One of The Concise Oxford Dictionary definitions of the word ‘substantial’ is ‘of considerable amount’. The previous version of the Determination was the Australian Passports Determination 2005. The Explanatory Statement for the 2005 Determination, about the same provision was much more precise. It stated:

    In practice in most cases, a substantial period during which there has been no contact is at least:

    ·for a child aged less 3 years [sic] – since the child’s birth; and

    ·for a child aged 3 years or more, but less than 16 years – 3 years.

28. I therefore interpret that when the 2005 Determination was replaced in 2015, the new Explanatory Statement intended to guide decision-makers to a general view, with some qualifications, that a period of two years of no contact, counted back from the date the passport application is lodged, is a ‘substantial period’.

29. Having preferred the evidence that the last contact (of any sort) between the Applicant and the non-consenting parent was on or about 24 January 2019, that is a period more than two years before the application to renew the passport was lodged.

30. I therefore find that I am satisfied that special circumstances apply that the Minister may issue a passport to the Applicant.

    Should the discretion be exercised to grant the passport?

31. Mr Orchard told the hearing that, if the Tribunal finds that an exception exists which amounts to special circumstances, the Respondent adopts no position on whether the discretion should be exercised.

32. I made clear in the hearing, a non-consenting parent is under no obligation to provide a reason why he or she does not agree to a passport being issued to their child. Mr AF has not provided a reason. Extrapolating the only relevant remark he made, both to the Department officer and to Mr Orchard when advised of the hearing, is that he thought HGPV had been ‘travelling all over the world’ with Ms AM and her new partner, and, one can deduce, Mr AF had a view about that.

33. There is no evidence before the Tribunal that this has happened in the past or is in contemplation in the future. I am satisfied that Ms AM is an Australian citizen and not a citizen of any other country. She is domiciled here, and I accept her evidence that only living family – her own mother (the Applicant’s maternal grandmother) – lives in Australia. She gave evidence that her new partner is also an Australian citizen who resides here. There is also no evidence before me that Ms AM has any plans to decamp to live in another country with HGPV.

34. I requested that the Respondent provide the movement record for the Applicant. The movement record was provided on 28 February 2023. It records that HGPV has travelled out of Australia on two occasions – from 25 August to 10 September 2017 and from 15 to 26 October 2018. The Department officer recorded in a file note in April 2021 (TD, p 63):

    NLP [i.e. Mr AF] said his ex-wife had an affair with an international DJ and travelled all over the world with him and she took [HGPV] with her[.].}

    Mr AF’s assertion is factually not borne out. HGPV has in fact undertaken two visits out of Australia in her life, once with Mr AF and Ms AM during their marriage when they travelled as a family in 2017 and once in 2018, apparently with Ms AM, her mother, her new partner, and his mother. The movement record accords broadly with Ms AM’s oral evidence, although she thought the second trip was in 2020. In any event, it establishes that the Applicant has not travelled, as Mr AF asserted, “all over the world”.

35. The April 2021 file note goes on to record:

    I asked when was the last contact with [HGPV] – he replied well over a year ago.

    NLP then asked why the passport office needed to know when [was] the last time he saw his daughter? I told him APO [i.e. Australian Passport Office] needed to establish the relationship between himself and the child. He replied “there is no relationship”. He told me he pays child support but does not see the child.

36. The Tribunal has found that that Mr AF’s reference to ‘well over a year ago’ in April 2021 is to be interpreted as on or about 24 January 2019. The Tribunal is further satisfied that there is no evidence of other contact between Mr AF and the Applicant since that time.

37. Even if the Tribunal is satisfied that one of the special circumstances exists in the Determination that do not prevent the issue of the passport, in this case satisfying s 10(3)(d) of the Determination, there remains a discretion to nonetheless refuse to issue the passport.

38. Among reasons where a passport for a child might be refused is if the decision-maker was concerned, as set out in the Policy (TD, p 133) that the lodging person (i.e., Ms AM) is wishing to permanently relocate the child against the wishes of another person with parental responsibility. This could be especially relevant if a custodial parent had citizenship of another country or there was some evidence of plans to permanently reside abroad. This could have the effect of permanently preventing a parent making contact with a child. Such matters are properly the province of Courts with competent family jurisdiction, not the passport-issuing authority. The Attorney-General’s Department website relevantly states:

    If you want to relocate overseas with your child, you should seek the other parent’s agreement in writing, or seek relocation orders through the Australian Family Law Courts.

39. In addition, Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’), which provides for reciprocal arrangements with other signatory countries should a child have been permanently removed from Australia. There is no evidence on the circumstances of this particular matter that these factors are relevant for HGPV.

40. I make the particular point that, if Ms AM for instance had citizenship or the right of abode in a country which was not a signatory to the Hague Convention, or with which Australia did not have a bilateral agreement, that might contribute to a suspicion that the purpose of obtaining the passport could be in order to deny access of a parent to a child. Such a reasonably grounded suspicion might, by itself, be enough to cause the discretion not to be exercised.

41. However, in this matter on the evidence I am satisfied there are no such plans and that the purpose of the passport for HGPV is to facilitate periodic travel out of Australia for recreational or, perhaps, educational purposes. I am therefore satisfied that the passport should issue.

42. I note that, under the Determination (Div 3, s 17, Item 2), the validity of a passport issued to a person 18 who is unmarried is five years, so in the event a passport was issued, and HGPV wanted to renew it before she is an adult, the Applicant would have to seek the consent of both her parents.

    DECISION

43. Pursuant to s 43(1)(c) of the AAT Act, the Tribunal sets aside the reviewable decision dated 7 July 2022.

44. In its place, the Tribunal substitutes a decision that it is:

    (a)satisfied that circumstances specified in a Minister’s determination as special circumstances exist, so as not to prevent the issue of an Australian travel document to the Applicant; and

    (b)that a passport issue in the name of the Applicant, as applied for on 16 February 2021.

I certify that the preceding 137 (one-hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 1 March 2023

Date of hearing:	1 February 2023
Applicant:	HGPV by her mother, Ms AM (self-represented)
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers