LFRS and Minister for Foreign Affairs - [2021] AATA 79

LFRS and Minister for Foreign Affairs [2021] AATA 79 (2 February 2021)
Division:                  GENERAL DIVISION
File Number:2019/6555
Re:LFRS
APPLICANT

Minister for Foreign AffairsAnd
RESPONDENT

Alana JenkinsonAnd
OTHER PARTY

DECISION
Tribunal:Member D Mitchell
Date:2 February 2021
Place:Brisbane

The decision under review is affirmed.
................[SGD].................................................
Member D Mitchell
CATCHWORDS
PASSPORT – application for passport – child under 16 years – parent refused consent – whether special circumstances exist – whether no contact between child and non-consenting parent – whether child’s welfare would be adversely affected if not able to travel internationally – decision to refuse to issue passport affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Passports Act 2005 (Cth)
Australian Passports Determination 2005 (Cth)
Australian Passports Determination 2015 (Cth)
Family Law Act 1975 (Cth)
EXTRINSIC MATERIALS
Explanatory Memorandum, Australian Passports Bill 2004 (Cth)
Explanatory Statement, Australian Passports Determination 2015 (Cth)
Macquarie Dictionary (8th ed 2020)
Oxford Dictionaries (online at 29 January 2021) (def 1 Verb)
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
Aziz v Minister for Foreign Affairs [2018] AATA 1871
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, [1997] HCA 2.
FCMX v Minister for Foreign Affairs [2017] AATA 740
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, [2009] HCA 40
Singh v Commonwealth of Australia [2004] HCA 43
REASONS FOR DECISION
Member D Mitchell
2 February 2021
INTRODUCTION

LFRS (the Applicant) is seeking review of an internal review decision of the Respondent dated 13 September 2019.[1]
[1] Exhibit 1, T Documents, T26, page 172, Notification of Internal Review Decision.
The reviewable decision affirmed a decision to refuse to issue the Applicant with a passport on the basis that the Respondent formed the view that the requirements of section 11 of the AustralianPassports Act 2005 (Cth) were not met.[2]
[2] Exhibit 1, T Documents, T2, pages 45-50, Reasons for Decision.
BACKGROUND
On 4 July 2019, the Applicant’s Father (the Father) made a passport application on her behalf.[3] The Applicant was 14 years of age at the time.[4]
[3] Exhibit 1, T Documents, T3, pages 51-62, Passport Application.
[4] Exhibit 1, T Documents, T3, page 63, Applicant’s Birth Certificate.
There is no dispute that the Father and Ms Jenkinson (the Other Party) are the parents of the Applicant[5] or that there are no court orders in place that deal with custody arrangements of the Applicant.
[5] Exhibit 1, T Documents, T3, page 63, Applicant’s Birth Certificate.
In making the application for the passport the Father had not contacted the Other Party and provided that he objected to the Respondent contacting the Other Party.[6] After being contacted by the Respondent, the Father submitted a Form B11 “Application for an Australian Travel Document – General Declaration” to the Respondent on 15 July 2019 withdrawing his objection.[7]
[6] Exhibit 1, T Documents, T3, page 61, Passport Application.
[7] Exhibit 1, T…

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: [2021] AATA 79
Decision Date: 2 February 2021

CaseChat Overview and Summary

This matter concerned an application for an Australian passport by a 14-year-old applicant, on whose behalf the application was made by her Father. The Mother, the Other Party, did not provide consent for the passport to be issued. The Respondent affirmed a decision to refuse to issue the passport, as the requirements of section 11 of the *Australian Passports Act 2005* (Cth) were not met. The Tribunal was asked to review this decision.

The primary legal issues before the Tribunal were whether there were special circumstances, as defined by section 10 of the *Australian Passports Determination 2015* (Cth), that would permit the issuance of a passport without the consent of both parents. Specifically, the Tribunal had to determine if there had been no contact between the child and the non-consenting parent for a substantial period prior to the application, and whether the child's welfare would be adversely affected if unable to travel internationally.

The Tribunal considered the evidence of text messages exchanged between the applicant and the Other Party, and messages sent by the Other Party to the applicant. While the applicant and Father argued that text messages did not constitute "contact" in the relevant sense, and that physical contact had ceased much earlier, the Tribunal found that the text message exchanges, including replies from the applicant at various times up to December 2018, demonstrated ongoing contact. Consequently, the Tribunal concluded that the condition of "no contact... for a substantial period" was not met. Furthermore, the Tribunal found no evidence that the applicant's welfare would be adversely affected by being unable to travel internationally.

As the Tribunal found that the applicant had not satisfied the requirements of section 11(2)(a) or 11(2)(b) of the Act, it was not necessary to consider the exercise of discretion regarding the issuance of the passport. Accordingly, the Tribunal affirmed the decision under review, meaning the applicant could not be issued a passport in the absence of the Other Party's consent or a court order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The reviewable decision affirmed a decision to refuse to issue the Applicant with a passport on the basis that the Respondent formed the view that the requirements of section 11 of the AustralianPassports Act 2005 (Cth) were not met.[2][2] Exhibit 1, T Documents, T2, pages 45-50, Reasons for Decision.BACKGROUND On 4 July 2019, the Applicant’s Father (the Father) made a passport application on her behalf.[3] The Applicant was 14 years of age at the time.[4][3] Exhibit 1, T Documents, T3, pages 51-62, Passport Application.[4] Exhibit 1, T Documents, T3, page 63, Applicant’s Birth Certificate. There is no dispute that the Father and Ms Jenkinson (the Other Party) are the parents of the Applicant[5] or that there are no court orders in place that deal with custody arrangements of the Applicant.[5] Exhibit 1, T Documents, T3, page 63, Applicant’s Birth Certificate. In making the application for the passport the Father had not contacted the Other Party and provided that he objected to the Respondent contacting the Other Party.[6] After being contacted by the Respondent, the Father submitted a Form B11 “Application for an Australian Travel Document – General Declaration” to the Respondent on 15 July 2019 withdrawing his objection.[7][6] Exhibit 1, T Documents, T3, page 61, Passport Application.[7] Exhibit 1, T Documents, T6, pages 72-80, Application for an Australian Travel Document – General Declaration. The Other Party did not provide consent for the Applicant to be issued with a passport.[8] [8] Exhibit 1, T Documents, T19, page 145, Letter to the Other Party advising of Decision; T16, pages 134- 135, Record of Decision. Subsequently, on 31 July 2019, the Respondent declined to issue a passport to the Applicant on the basis that the requirements of section 11 of the AustralianPassports Act 2005 (Cth) were not satisfied.[9][9] Exhibit 1, T Documents, T18 and T19, pages 141-145, Notification of Decision provided to the Father and Other Party. An application for internal review of that decision was made.[10] On 13 September 2019, the Respondent affirmed the decision.[11][10] Exhibit 1, T Documents, T20, pages 146-148, Application for Internal Review.[11] Exhibit 1 T Documents, T2, pages 45-55, Reasons for Decision. Following this, the Father sought review of the matter by this Tribunal by way of an application dated 8 October 2019.[12][12] Exhibit 1, T Documents, T1, pages 1-44, Application for Review and attachments. On 14 December 2020, a Hearing was held by telephone for this application. At the Hearing the Applicant was represented by the Father. Both the Applicant and the Father gave evidence under affirmation. The Other Party was self-represented and also gave evidence under affirmation. The Respondent was represented by Mr John Bird of Counsel.THE LAW The issuing of an Australian Passport is determined in accordance with the Australian Passports Act 2005 (Cth) (the Act) and the Australian Passports Determination 2015 (Cth) (the Determination).

Evidence

Evidence Before The Court

In his closing submission the Father contended that it is up to the Tribunal to determine what was contact and whether it had been absent for a substantial period of time, noting it is anywhere up to 2 years and is dependent on the circumstances at the time. He contended that all of his evidence was true and shows that special circumstances exist.Evidence and contentions of the Other Party At Hearing the Other Party sought to rely on her written submissions and the emails and text message records she had provided.[16] She confirmed that there are no court orders in place in relation to the Applicant. The Other Party told the Tribunal that the last time she saw the Applicant was on 30 December 2016 when they bought things to her grandparents’ house.[16] Exhibit 4, Other Party’s Bundle of Documents. The Other Party’s evidence showed that she had regularly sent text messages to the Applicant during the period between mid-October 2015 and November 2017[17] and between April 2018 and April 2019[18] she sent text messages on special occasions such as Easter, Christmas and the Applicant’s birthday. The text message evidence also shows that while after November 2016 the Applicant rarely replied, she did reply to text messages sent by the Other Party on 21 September 2017,[19] 2 January 2018[20] and 25 December 2018[21] as confirmed in the evidence provided by the Applicant at Hearing.[17] Exhibit 4, Other Party’s Bundle of Documents, pages 632-815.[18] Exhibit 4, Other Party’s Bundle of Documents, pages 630-631.[19] Exhibit 4, Other Party’s Bundle of Documents, page 635.[20] Exhibit 4, Other Party’s Bundle of Documents, page 631.[21] Exhibit 4, Other Party’s Bundle of Documents, page 630, confirmed in Exhibit 3, Applicant’s Bundle of Documents, pages 75 and 76. The text message history also show text messages that appear to be sent by the Applicant to the Other Party on 25 September 2017, 26 September 2017, 15 October 2017, 26 October 2017, 31 October 2017, 10 November 2017 and April 2018 and relate to the Applicant’s request for her birth certificate and finally asking the Other Party not to contact her.[22] Respondent’s contentions[22] Exhibit 4, Other Party’s Bundle of Documents, pages 631-635. The Respondent contended that the reviewable decision should be affirmed as:[23](a)section 11(2)(a) of the Act is not satisfied as none of the circumstances specified in section 10 of the Determination exist;(b)there is no evidence that the Applicant’s welfare would be adversely affected if she were unable to travel internationally; and(c)even if the Tribunal did find that an exception under section 11 of the Act is satisfied the discretion ought not be exercised in this case.[23] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 7, paragraphs 6.1-6.2. In regard to section 11(2)(a) of the Act and section 10 of the Determination the Respondent contended that the text messages from the Other Party to the Applicant and between the Other Party and the Applicant constituted contact. The Respondent further contended that given the last contact was in April 2019, some four months before the application for a passport was lodged, and as regular contact had been made in the preceding 2 years, it could not be said that there had been no contact within a substantial period prior to the passport application having been made.

Decision

Reasons for decision

As the Tribunal has found that the Applicant has not met the section 11(2) of the Act requirements there is no need to consider the overall discretion as to whether a passport should be issued.DECISION The Tribunal finds that based on the evidence before it the Applicant has not satisfied sections 11(2)(a) or 11(2)(b) of the Act and as such in the absence of consent by each person who has parental responsibility for the Applicant’s or an order of a court she cannot be issued with a passport. Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent contended that should the Tribunal find that one or more of the exceptions in section 11 of the Act are made out, the discretion should not be exercised to issue the Applicant with a passport because the Other Party has been attempting to exercise her parental rights.[41][41] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 13-14, paragraph 6.41.CONSIDERATION This is a matter that has arisen because consent for a passport to be issued to the Applicant has not been provided by both parents who have parental responsibility. The Other Party was not asked for her consent for the Applicant to be issued with a passport prior to the application for passport being made by the Father. The Other Party is not aware of the specific reason as to why the Applicant is seeking a passport and the Applicant has both personally and through the Father made it clear that she does not want any of her personal information provided to the Other Party. The majority of the material provided to the Tribunal and the process leading up to the Hearing related primarily to the ill feelings between the Father and Other Party and the breakdown of their relationship. At Hearing both the Father and the Other Party agreed that matters should be kept to those that relate to the application at hand and the matters for which the Tribunal must have regard. The Tribunal made it clear at the Hearing and reiterates now, it is not the role of this Tribunal to pass judgement or comment on the parenting or partnering skills of either the Father or the Other Party, the role of the Tribunal is limited to considering whether or not according to law the Applicant can/should be issued with a passport. In considering whether the Applicant satisfies section 11(2) of the Act, in that whether a special circumstance set out in section 10 of the Determination applies, the Tribunal considers that only section 10(3)(d) of the Determination is directly relevant. The Tribunal is satisfied, and it is agreed by the parties that the Applicant does not meet and is not contesting the other circumstances set out in section 10(3) of the Determination. The crux of this matter therefore comes down to what constitutes “contact between the child and the non-consenting person for a substantial period before the application is made”.[42][42] Section 10(3)(d) of the Determination. The Applicant and the Father do not dispute that the Other Party has sent the Applicant text messages throughout the two years prior to the application for a passport being made, nor do they dispute that at various times in at least September 2017, January 2018 and December 2018 the Applicant also sent text messages to the Other Party. What the Applicant and the Father dispute is that text messages constitute contact. They contended that the last physical contact between the Applicant and the Other Party was at the end of 2015. The Other Party contended that she has attempted to maintain contact with the Applicant.