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…

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.

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Details

Case: [2023] AATA 339
Decision Date: 1 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for the renewal of an Australian passport for a child, HGPV, represented by her mother, Ms AM. The Minister for Foreign Affairs had refused to issue the passport, a decision that was affirmed on internal review. The dispute centred on the requirement for consent from both parents for a passport to be issued to an unmarried child, where one parent, Mr AF, did not consent.

The Tribunal was required to determine whether special circumstances existed that would permit the issue of a passport despite the lack of consent from the non-consenting parent. This involved considering whether Mr AF had had no contact with HGPV for a substantial period, and whether HGPV's physical or psychological welfare would be adversely affected if she were unable to travel internationally. The Tribunal also addressed the procedural issue of Mr AF not being joined as a party to the proceedings, despite the Respondent suggesting an adjournment for this purpose.

The Tribunal reasoned that the policy followed by the Department, and the provisions of the relevant Determination, allowed for the issue of a passport in special circumstances even without the consent of one parent. Evidence was presented regarding the lack of contact between HGPV and Mr AF since early 2019, with conflicting accounts of their last interaction. Ms AM testified that HGPV experienced sadness, abandonment, and rejection due to the lack of contact with her half-sister in the United Kingdom, which she believed impacted HGPV's mental health. The Tribunal found that Mr AF had been given reasonable opportunity to participate in the proceedings but had not done so.

Ultimately, the Tribunal set aside the decision to refuse the passport. It substituted a new decision, finding that special circumstances existed that did not prevent the issue of an Australian travel document to HGPV, and that a passport should be issued in her name.

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

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).EVIDENCEMs AM 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. 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.’ 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. 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. 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” Ms AM said that this was categorically untrue. 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’.” 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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). 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. 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. 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. 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. 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). 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.