LFRS and Minister for Foreign Affairs

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 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).
Section 3 of the Act sets out that the principal object of the Act is to “provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally”.
Section 7 of the Act provides that an Australian citizen is entitled to be issued with an Australian passport on application to the Minister.
Reasons the Minister may refuse to issue an Australian travel document are set out in Division 2 of the Act. Specifically, Subdivision A deals with Children and provides:
Subdivision A—Children
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.
(2) Subsection (1) does not prevent the Minister from issuing an Australian     travel document to a child if:
(a)     circumstances specified in a Minister’s determination as special       circumstances exist; or
(b)     the Minister is satisfied that the child’s welfare (physical or     psychological) would be adversely affected if the child were not able to travel internationally; or
(c)     the Minister is satisfied that:
(i) the child urgently needs to travel internationally because of a       family crisis; and
(ii) if there is a person who has parental responsibility for the child and         who has not consented to the child having an Australian travel     document—it is not possible to contact that person within a     reasonable period; or
(d)       in the case of a child who is outside Australia—the child departed               Australia less than 12 months before the application for the   Australian travel document was made and the Minister considers   that an Australian travel document should be issued to enable the   child’s return to Australia.
(3)If the Minister refuses to issue an Australian travel document to a child, the          Minister may declare that he or she is refusing to exercise the discretion      under subsection (2) because the matter should be dealt with by a court.
(5)For the purposes of this section, a person has parental responsibility for            a child if, and only if:
(a) the person:
(i)is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii)has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
(aa) the person:
(i)is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 189) in Subdivision 3 of Division 11 of Part 5 of the Family Court Act 1997 (WA)); and
(ii)has not ceased to have parental responsibility for the child because of an order made under that Act; or
(b)     under a parenting order:
(i)the child is to live with the person; or
(ii)the person has parental responsibility for the child; or
(d) the person has guardianship or custody of, or has parental    responsibility for, the child under a law of the Commonwealth, a State               or a Territory.
Note:The presumptions in the Family Law Act 1975 and the Family Court Act 1997 (WA) include a presumption arising from a court finding that a person is the child’s parent, and a presumption arising from a man executing an instrument under law acknowledging that he is the father of the child.
Division 2, Subdivision A of the Determination, outlines reasons the Minister may refuse to issue an Australia travel document to a child. Section 10 sets out the special circumstances in which the Minister may issue an Australian travel document to a child, providing:
Subdivision A—Children
10Special circumstances in which the Minister may issue an Australian travel document to a child
(1)       For paragraph 11(2)(a) of the Act, each of the circumstances mentioned in   subsection (3) is a special circumstance in which the Minister may issue an   Australian travel document to a child even though a person who has   parental responsibility for the child (the non‑consenting person) has not   consented to the child having an Australian travel document.
Note:Parental responsibility has the meaning given by subsection 11(5) of the Act.
(2)       Subsection (1) does not apply if the Minister has been provided with court   documents demonstrating that there are proceedings before a   Commonwealth, State or Territory court that may affect:
(a)       the rights of the child to travel internationally; or
(b)     who has parental responsibility for the child.
(3)       The circumstances are the following:
(a)     the Minister has not been able to contact the non‑consenting person   for a reasonable period;
(b)     the non‑consenting person is either or both of the following:
(i)missing;
(ii)presumed dead;
(c)     the non‑consenting person is medically incapable of providing   consent;
(d)     there has been no contact between the child and the non‑consenting   person for a substantial period before the application is made;       (e)       the non‑consenting person:
(i)is not an Australian citizen; and
(ii)is separated from a person who has parental responsibility for the child and has consented to the child having an Australian passport; and
(iii)has not had contact with the child since the child arrived in Australia;
(f)     a family violence order has been issued against the non‑consenting   person;
(g)     if the child is outside Australia—there is evidence of family violence;
(h)     if the child is outside Australia—the Minister considers that there is a   need for the child to travel internationally or the child requires a travel                document to continue to legally reside overseas;
(i) an order of a court in a convention country (within the meaning of the Family Law (Child Abduction Convention) Regulations 1986) permits any of the following:
(i)the issue of a passport to the child;
(ii)the child to travel internationally;
(iii)contact between the child and another person outside the country           where the order was made;
(j)        an order of a State or Territory court, made under a child welfare law,                  grants parental responsibility or guardianship of the child to:
(i)a parent of the child other than the non‑consenting person; or
(ii)a person other than a parent of the child.
(4) In this section, the following expressions have the same meaning as in the Family Law Act 1975:
(a)     child welfare law;
(b)     family violence;
(c)     family violence order.
The terms “contact” and “substantial” are not defined in the Determination. The Explanatory Statement to the Australian Passports Determination 2015 (Cth) (the Explanatory Statement) relevantly explains section 10 and then subsection 10(3)(d) as follows:[13]
Section 10 of the Determination sets out special circumstances in which a passport may be issued to a child without the consent of all persons who have parental responsibility for that child or a court order for travel. These special circumstances provide the Minister with a discretion to issue a passport to a child when it is not possible to meet the basic requirements or it is inappropriate to expect the basic requirements to be met.
……
Even if an applicant satisfies one or more of the special circumstances, the Minister may refuse to issue a passport to a child to meet the objectives of protecting a child from international parental abduction or to safeguard the rights of persons with parental responsibility.
……
Paragraph 10(3)(d) provides grounds to issue a passport to a child where the non-consenting person has not had contact with the child for a substantial period of time.
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.
[13] Explanatory Statement, Australian Passports Determination 2015 (Cth), at [39]-[49].
At Hearing the Respondent provided a policy document titled “No contact with child for a substantial period – special circumstance 10(3)(d).”[14] This policy document relevantly provides:
[14]    Admitted into evidence as Exhibit 5. The Tribunal considers that the document is consistent with the material       previously filed by the Respondent.
POL021913 No contact between the child and non-consenting person for a substantial period – application of special circumstance
·The Australian Passports Act 2005 and the Australian Passports Determination 2015 (the Passports Determination) do not define ‘substantial period’ of no contact between the child and the non-consenting person for paragraph 10(3)(D) of the Passports Determination.
·Guidance is provided by the Explanatory Memorandum to the Passport Determination which provides that “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.”
…..
POL022013 Contact between the child and the non-consenting person – definition
·          Contact includes all forms of contact (for example in person,          telecommunications, social media and any other avenue of communication),           excluding incidental contact.
·          Incidental contact is defined as unintended contact, i.e. a chance meeting in         the street or a meeting at a family funeral.
·          ….
·          The APO instructs the lodging person to pursue the consent of all persons            with parental reasonability, not the child. It is impossible for a delegate to    ascertain if the level of engagement, or the parties’ perception of that    engagement, is restricted to the pursuit of consent.
Unreciprocated contact is still contact
…..
ISSUES
The issues for the Tribunal to consider are whether:
(a)section 11(2)(a) of the Act is satisfied in this case. Specifically, has there been no contact between the Applicant and the Other Party for a substantial period before the application is made pursuant to section 10 of the Determination; or
(b)section 11(2)(b) of the Act is satisfied in this case. Specifically, is the Tribunal satisfied that the Applicant’s welfare (physical or psychological) would be adversely affected if the Applicant were not able to travel internationally; and
(c)if the answer to issue (a) or (b) is yes, should the discretion to issue a passport conferred by section 11(2) of the Act be exercised in the Applicant’s favour and a passport be issued under section 7(1) of the Act?
EVIDENCE AND CONTENTIONS
The Tribunal notes that throughout the review process both the Father and Other Party provided written submissions, copies of text messages and emails, photographs and a video recording. The Tribunal has reviewed all of the material as agreed by the Father and Other Party and constitute Exhibit 3, Applicant’s Bundle of Documents and Exhibit 4, Other Party’s Bundle of Documents. The Tribunal considers that much of the information found within the material is not relevant to the issues at hand but rather relate to the relationship between the Father and Other Party. Both the Father and Other Party did not dispute that point.
Further the material before the Tribunal is subject to numerous section 35 confidentiality orders pursuant of the Administrative Appeals Tribunal Act 1975 (Cth). Consequently, in acknowledging that the Tribunal has reviewed all material only that which is relevant to the issues at hand will be outlined and discussed in this decision.
Evidence provided by the Applicant at Hearing
At Hearing, the Applicant provided evidence under affirmation. The Tribunal considers that she conducted herself in a mature manner and answered all questions openly and honestly. The Applicant told the Tribunal:
·She has had no in person contact with the Other Party since Christmas 2015.
·She did text the Other Party on Christmas Day 2018 telling her to go away.
·That to her a passport means freedom to travel and see the world.
·She does not want anything to do with the Other Party ever again even though the Father encourages her to.
·The phone number listed in the documents as her number does belong to her Father but that is the number she used until the number was changed.
·That after her parents separated the Other Party contacted her regularly on that telephone number between 2015 and 2017 but only by text message.
·She did send text messages to the Other Party on 21 September 2017 seeking her birth certificate, passport and Disneyworld cup.
·She did not try and call the Other Party from that number, her Father did.
·She did send the messages on 2 January 2018 to the Other Party and on 25 December 2018 as shown in the Other Party’s Bundle of Documents.
·She did receive the message from the Other Party at Easter 2018, she read them but did not reply.
·She did send the email dated 3 August 2019 to the Other Party in which she expressed that she hates when the Other Party texts her and said that she did not want her to.
·She agrees that the Other Party has been sending her texts, that she has been receiving on days of celebration.
Evidence and contentions of the Father
At Hearing the Father sought to rely on the written submissions he had filed as the Applicant’s representative.[15] The Father confirmed that there are no court orders in place in relation to the care of the Applicant. The Father told the Tribunal that:
·The Other Party was no longer living in their family home sometime from the second half of 2015.
·The Other Party has not spoken to the Applicant, she has sent text messages that the Applicant did not want. He does not agree that this constitutes contact.
·When taken to a declaration he had made on a General Declaration form, he was acknowledging that the Applicant got texts from the Other Party.
·He confirmed that the Applicant received text messages from the Other Party at Christmas 2018 and on her birthday in April 2019.
·Text messages are not contact, contact is as per the Family Law and includes visitation be that supervised or otherwise.
·The reference to email and text that was removed from the Determination was removed for a reason and the Respondent cannot just assume it was in their favour.
·References made by the Respondent to the Applicant’s evidence regarding sessions with a psychologist and no reasons for the sessions being provided show that they do not understand how all of this affects the Applicant.
[15] Exhibit 3, Applicant’s Bundle of Documents.

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.
In contending that contact for the purposes of section 10(3)(d) of the Determination includes text messages, the Respondent provided:[24]
6.12    The Respondent contends that the word "contact" in section 10(3)(d) should be interpreted broadly, so as to include in-person contact, as well as other methods of contact such as phone calls, emails, and (of particular relevance here) text messages.
6.13    Statutory interpretation, first and foremost, involves identifying the meaning of the text, and the starting point is the words used.[25] They are to be understood in light of the background, purpose and object, and surrounding circumstances, but it is the actual words used which remain the focus of the interpretive exercise.[26]
6.14    Section 10(3)(d) states that a special circumstance exists where there has been "no contact" between the child and the non-consenting person. The word "contact" is used there in its verb form. To "contact" a person means to initiate communication with that person or establish or be in contact with them.[27] Significantly, when used in its verb form, "contact" does not require reciprocity. It does not require that the recipient of the contact desires or wishes to receive it or responds to it, or that a dialogue needs to occur. It is sufficient if there is communication initiated by the non-consenting person to the child, or visa versa.
6.15    There are of course any number of ways in which contact might be made. Contact can of course occur in person, but that is not the only way. There are more traditional means, such as sending letters or calling a home phone, and more modern ones, using email, text messages and some computer and mobile phone apps. There is nothing in section 10(3)(d) to suggest that the drafters were concerned to exclude communication by some or all of those means, nor is there anything in section 10(3)(d) to suggest that only in-person contact qualifies as "contact" for the purposes of section 10(3)(d).
6.16    Another consideration in statutory interpretation is the purpose or object of the Act and the mischief which the law is intended to cure.[28] The interpretation that would best achieve the purpose or object (whether or not that purpose or object is expressly stated in the Act) is to be preferred over each other available interpretation.[29]
[24]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 9, paragraphs 6.12-6.16,       noting that footnotes have been included.
[25]    Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 at [47].
[26]    Singh v Commonwealth of Australia [2004] HCA 43 at [19].
[27]    Macquarie Dictionary (8th ed, 2020).
[28]    Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, [2009] HCA 40, at [65] (Crennan and Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, [1997] HCA 2.
[29] Section 15AA of the Acts Interpretation Act 1901 (Cth).
The Respondent contended that: “to limit the interpretation of “contact” to mean only in-person contact would fail to give effect to the objects of section 11 of the Act. Such an interpretation would fail to protect the rights of parents who are unable to see their children in-person, and instead make contact by other means. It would also be contrary to the ordinary meaning of the provision.”[30]
[30] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 10, paragraph 6.19.
The Respondent made reference to the Explanatory Memorandum, Australian Passports Bill 2004 (Cth) setting out that the object of section 11 of the Act are to protect a child from abduction and to protect the rights of the parents.[31]
[31] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 9-10, paragraph 6.18.
The Respondent referred to legislative history of section 10(3)(d) of the Determination to support its contentions in relation to contact being interpreted broadly referring the Tribunal to the comparable provision of the Australian Passports Determination 2005 (Cth), which was in place prior to the Determination. Specifically, section 2.1(3)(d) of the Australian Passports Determination 2005 provided:[32]
There has been no contact (including contact in person or by telephone, mail or e-mail) between the child and the non-consenting parent for a substantial period before the application is made.
(emphasis added)
[32] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 10, paragraphs 6.20-6.21.
The Respondent noted that there is no explanation in the Explanatory Statement to the Determination for why the words “including contact in person or by telephone, mail, or e-mail” …. were removed”. The Respondent contended that “it might logically be inferred that the words were removed so as to avoid them constraining or narrowing the meaning that might otherwise be given to the word “contact”.”[33]
[33] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 10, paragraph 6.22.
The Respondent contended that a substantial period for the purposes of section 10(3)(d) of the Determination is two years or less depending on the age of the child and the circumstances of the application that fell directly prior to the application for passport being made.[34]
[34] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 10-11, paragraphs 6.24- 6.27.
Further the Respondent contended that none of the other special circumstances set out in section 10(3) apply to the Applicant.[35]
[35] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 11-12, paragraph 6.29.
The Respondent contended that based on the evidence before it, the Tribunal should not be satisfied for the purposes of section 11(2)(b) of the Act that the Applicant’s welfare (physical or psychological) would be adversely affected should she not be issued with a passport.[36]
[36] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 13, paragraph 6.38.
The Respondent contended that the statement made by the Father at internal review that it is important for the Applicant’s wellbeing that she obtain a passport and the letter from a psychology practice disclosing dates of appointments that were attended by the Applicant and/or her family between 29 October 2015 and 12 November 2016, in the absence of providing an opinion about the adverse effects and inability to travel may have on the Applicant from a psychological perspective or any context to matters discussed, were insufficient to establish that section 11(2)(b) of the Act was met.[37]
[37] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 13, paragraphs 6.34-6.38.
The Respondent referred the Tribunal to two previous decisions of the Tribunal where section 11(2)(b) of the Act was considered. The Respondent provided:[38]
6.32 The interpretation of section 11(2)(b) was considered in FCMX v Minister for Foreign Affairs.[39] In FCMX, the Tribunal found that mere feelings of disappointment do not satisfy the requirement in section 11(2)(b) – evidence of actual, or potential, physical or psychological harm is required. The Tribunal stated at [24]:
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.
6.33     In Aziz v Minister for Foreign Affairs, the Tribunal found that there was insufficient information to enable it to conclude that the child's welfare (physical or psychological) would be adversely affected if he were not able to travel internationally in circumstances where the medical evidence did not include contact details for the healthcare professional, and the evidence could not be tested.[40]
[38]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 13, paragraphs 6.32-6.33,      footnotes included.
[39]    FCMX v Minister for Foreign Affairs [2017] AATA 740.
[40]    Aziz v Minister for Foreign Affairs [2018] AATA 1871, at [58]-[60].
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.
The Respondent contended that the term contact should be given its ordinary meaning in the context of the Act and significant period should be considered to be within the two years prior to the application for passport being made in accordance with the relevant explanatory material.
The Father drew the Tribunal’s attention to definitions of contact for family law and family court access purposes. The Tribunal considers that the context of the term contact is materially different in that regard as it relates primarily as to how contact will be achieved between a child and a parent in accordance with court orders or agreed parenting plans. The references provided by the Father particularly relate to how in person contact will occur.
The Father disputes the Respondent’s interpretation of the term contact and contended that the Respondent was applying the changes to the Determination in an incorrect manner.
It is not uncommon for legislation and legislative instruments to contain terms of which are not defined. The Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) assists to some regard in the subsequent interpretation of those terms and provisions. Further the principles of statutory interpretation are relatively settled by a large volume of case law and academic commentary.
In that regard the Tribunal, with respect to the Father, agrees that the principles outlined by the Respondent in relation to statutory interpretation are those that should be appropriately followed in this matter. In that, the starting point is the words used[43] which are to be understood in light of the background, purpose and object and surrounding circumstances.[44] Further consideration is also given to the purpose of object of the Act and the mischief which the law is intended to cure.[45]
[43]    Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 at [47].
[44]    Singh v Commonwealth of Australia [2004] HCA 43 at [19].
[45]    Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, [2009] HCA 40, at [65] (Crennan and Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, [1997] HCA 2.
Section 15AA of the Acts Interpretation Act provides that “in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation”.
Section 15AB of the Acts Interpretation Act outlines the use of extrinsic material in the interpretation of an Act. It provides that such relevant material may be given consideration:
(a)to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)      to determine the meaning of the provision when:
(i)    the provision is ambiguous or obscure; or
(ii)    the ordinary meaning conveyed by the text of the provision taking into          account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
As such the Tribunal considers that in determining the meaning of “contact” for the purposes of section 10(3)(d) of the Determination it is appropriate to look at the meaning of the word and the intention and purpose of the Act together with the relevant explanatory material.
It is clear to the Tribunal that the Act seeks to ensure that passports are only issued to children where all parties (or in this case parents) with parental responsibility consent to the issuing of the passport, other than in limited situations. Parental responsibility is maintained regardless of the level or type of interaction between the parent and the child and is only displaced through a court order.
As outlined above the objects of section 11 of the Act in relation to issuing passports to children was outlined in the Explanatory Memorandum, Australian Passports Bill 2004 (Cth) and are to protect a child from abduction and to protect the rights of a parent.
The Oxford Dictionaries Online defines contact in the verb form to mean “communicate with (someone), typically in order to give or receive information”[46] which is consistent with the definition outlined above by the Respondent taken from the Macquarie Dictionary.
[46] Oxford Dictionaries (online at 29 January 2021) (def 1 Verb).
The Tribunal notes that the previous iteration of the Determination provided examples of contact of which were not included in the current Determination, nor did the Explanatory Statement address the change. The Tribunal considers that the 2005 Determination envisaged incorporating contact to mean forms of electronic contact (for example e-mail) and non-physical or non-in person forms of contact being the telephone (which if interpreted broadly may include telephone calls, voice messages and text messages). As such the Tribunal considers that the change in the particular drafting of the contact special circumstance in the new Determination cannot be said to have limited the scope of the meaning of “contact”. Doing so would not be consistent with the objects of the Act or Determination as outlined above.
Further the definition of contact on its own and when considering the Act, the Determination and associated Explanatory Statement does not refer to any such contact being limited to in-person contact.

Based on the evidence provided at Hearing by both the Applicant and the Father, the Tribunal considers that the most recent contact made by the Other Party with the Applicant was in April 2019. Given there were a number of contacts both responded to and not responded to by the Applicant sent by the Other Party during the two years preceding July 2019, the Tribunal considers that there has not been a substantial period of no contact. The fact that the Applicant may not have wanted the contact made by the Other Party or that she did not respond on a large number of occasions is not relevant to contact being made by the Other Party.
To address the issue of what constitutes a substantial period for the purposes of section 10(3)(d) of the Determination the Tribunal considers the time period as outlined by the Explanatory Statement should be accepted. There was no evidence advanced that the few months between April 2019 and July 2019 should be considered a substantial period in the circumstances, rather the Father relied on the argument that text messages do not constitute contact.
Based on the evidence before the Tribunal and considering the meaning and application of the terms in section 10(3)(d) of the Determination the Tribunal finds that the Applicant’s circumstances did not satisfy section 10(3)(d) or any of the circumstances outlined in section 10(3) of the Determination. Consequently, the Tribunal finds that the Applicant did not satisfy section 11(2)(a) of the Act.
In considering whether the Applicant’s welfare (physical or psychological) would be adversely affected should she not be issued with a passport in accordance with section 11(2)(b) of the Act, the Tribunal has had regard to the reasons provided by the Applicant for seeking a passport at this time.
While the Tribunal accepts that having a passport opens up opportunities to travel and expand the Applicant’s horizon’s, the Tribunal agrees with the interpretation of section 11(2)(b) of the Act as provided by the Tribunal in FCMX v Minister for Foreign Affairs [2017] AATA 740 as outlined at paragraph 38 above. Disappointment alone in the absence of any further evidence does not establish that the Applicant would suffer any physical or psychological harm or long-term damage to her endeavours.
The Tribunal also accepts the evidence from the Father that the passport application process has been difficult for the Applicant. The difficulty for the Tribunal though is that there is no independent medical evidence that provides any information in relation to the Applicant’s physical or psychological welfare and the impact not being issued with a passport may have.
The Tribunal considers there is insufficient evidence to allow it to find that the Applicant’s circumstances satisfy section 11(2)(b) of the Act.
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.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

................[SGD]...................................................
Associate
Dated: 2 February 2021

Date of hearing: 14 December 2020

Applicant: Father, by phone

Counsel for the Respondent: John Bird

Solicitors for the Respondent: Ashurst Lawyers

Other party: By phone

[2021] AATA 79

2 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Consent

Standing

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	14 December 2020
Applicant:	Father, by phone
Counsel for the Respondent:	John Bird
Solicitors for the Respondent:	Ashurst Lawyers
Other party:	By phone