S and Minister for Foreign Affairs (General)

[2018] AATA 1083

S and Minister for Foreign Affairs (General) [2018] AATA 1083 (27 April 2018)

Division:GENERAL DIVISION

File Number:           2016/6094

Re:S

APPLICANT

AndMinister for Foreign Affairs

RESPONDENT

And[Redacted]

OTHER PARTY

DECISION

Tribunal:Deputy President B W Rayment

Date:27 April 2018

Place:Sydney

1.The Tribunal directs that the applicant is to be referred to in the title of the proceedings as S and that persons whose names may indicate the identity of the applicant be referred to in general terms or by pseudonyms; and

2.that the proceedings continue with the mother of S being the tutor of S.

3.The Tribunal orders that the reviewable decision be set aside and substituted with a decision that the discretion in s.11(2) of the Australian Passports Act 2005 (Cth) to issue an Australian passport to S be exercised in her favour.

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

Deputy President B W Rayment

CATCHWORDS

PASSPORTS  – Australian citizen refused a passport  – where applicant is a child – applicant residing in Vietnam – where arrangements for schooling of child in Australia if passport issued – where child will live with family friend in Australia –  consent for child to be issued with a passport withheld by one parent –  effect of passport refusal on child’s welfare – Vietnamese court orders – application of Minister’s Determination at the time of refusal and on review – where applicant has previously been issued a passport – consideration of Australia’s obligation in relation to the [Hague] Convention on the Civil Aspects of International Child Abduction – decision under review set aside and substituted

LEGISLATION

Australian Passports Act 2005 (Cth) – ss 11, 11(2), 11(2)(b), 11(3)

Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Schedules 1, 2 – regulation 4

CASES

MW v Director-General, Department of Community Services [2008] HCA 12; (2008) 244 ALR 205

SECONDARY MATERIALS

Australian Passports (Transitionals and Consequentials) Bill 2004 – clause 11

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Chapter 1 - Articles 1, 4

REASONS FOR DECISION

Deputy President B W Rayment

27 April 2018

INTRODUCTION

1. At issue in these proceedings is whether a passport should be issued to an Australian girl whom I will call S, aged 13 presently resident in Vietnam with her mother. S became an Australian citizen by descent on 7 February 2006, when she was aged one year. The parents of the child are divorced and each of them has a new partner. The father is an Australian born Australian citizen, also resident in Vietnam. The mother is a Vietnamese national. The mother applied for the applicant’s passport but the father withheld his consent. The previous application for a passport for S, dated 2012, is signed by the father. At the time of the divorce, the Vietnamese court ordered that (the father of S) “has the right to visit, care and educate his child without any obstacle” according to a translation of the order which is before me.

2. These proceedings were commenced in the name of the child, with the active support of the mother and of Ms P, a friend of the mother and a former wife of the father. The proceedings have been commenced in the name of S as applicant, and I have decided to direct that they continue with her mother as tutor, in order to clear up any doubt about the constitution of the proceedings. This is consistent with the application to the Tribunal where the mother is described as the representative of S.

3. Ms P. and her de facto husband live in Sydney. She has had extensive contact with S both in Australia and in Vietnam, and is referred to by S as part of her extended family, and as her “aunty”.

4. S was born in 2004. Her parents had married in 2003, separated in 2008, and divorced in 2015.  She has been to Australia on a number of occasions, sometimes with both her parents, sometimes with her father alone and sometimes with her mother alone. In total she has spent almost six months of her life here.  Her spoken English is very close to perfect, colloquial Australian English.  She identifies as an Australian, and describes this country as “home”. I have a photograph of S in evidence, and she looks Eurasian with an emphasis on Australian caucasian features.  That has led to difficulties for her in Vietnamese schools, where she has experienced bullying and discrimination.  She wishes to attend a Sydney girls’ high school, where a place had been arranged for her to start earlier this year.

5. The main factual issue addressed in these proceedings is whether S’s welfare would be adversely affected if she were not able to travel internationally.  A second issue pressed upon me on behalf of the applicant is whether the absence of contact between the applicant and her father for the last two years is a circumstance referred to in a Ministerial determination in which a passport may be issued even if one parent does not consent.

6. Dr John Kasinathan, a forensic and child psychiatrist, prepared a report and gave evidence at the hearing. He conducted a psychiatric assessment of S by an audio-visual link at his Sydney rooms in May 2017. He interviewed S both individually and with her mother. She told the doctor that other students at school “look at her differently” and that she has suffered significant bullying.  She said: “kids make fun of me and say, ‘go back to your country and don’t come back’”. When asked by the doctor about what would happen if she were prevented from coming to Australia, she began to cry and said that she would be very disappointed if made to stay in Vietnam. The doctor found that she had depressive symptoms, anhedonia and initial insomnia when going to sleep. He described her affect as flat and teary with profound crying when she spoke about being bullied.   The doctor said her thought content revealed depressive cognitions directly related to not presently holding an Australian passport and not presently being able to study in an Australian school.

7. She told the doctor that she does not see her father because “he gives me a hard time all the time, he asks so many questions and he makes things up”.  In video material provided to the doctor of interactions with her father in 2014, Dr Kasinathan said the “father frequently swore and used obscenities in front of [S] and spoke of adult Asian women in a sexually objectifying manner”. The doctor described the father’s manner towards S as one of “intimidation and interrogation at times”, saying that “[S] appeared to agree with the father’s statements to appease him”.

8. Dr Kasinathan noted that S had previously held two Australian passports and stated his fear that if an Australian passport were withheld from her, that would have significant negative and detrimental impacts upon her mental health and emotional development.  He expressed the view that it was most certainly in S’s best interest that she is able to attend an Australian school to complete her high school education. He expressed the opinion that she has a psychiatric diagnosis as per DSM-5 (American Psychiatric Association 2013) consistent with dysthemia (persistent depressive disorder), precipitated by extensive bullying in Vietnamese schools, and exacerbated by her sense of identity being firmly attached to being an Australian. Her appetite was variable and there was poor concentration at school with low energy and a feeling of hopelessness.

9. He also said that she would have better access in Sydney to evidence-based psychiatric and psychological treatment than is available in Vietnam, where her recovery and future trajectory would be jeopardised.  In oral evidence the doctor explained that he had gathered that information from published literature from a Vietnamese university and international centres. Funding for psychiatric and psychological treatments is not subsidised in Vietnam, and the number of child psychiatrists per capita is much less in Vietnam.

10. He said that he would characterise S’s disorder as being moderate. Such disorders are characterised as mild, moderate or severe, and moderate disorders would typically be treated by medication and cognitive behavioural therapy at eight to ten sessions per year.

11. The Sydney school at which S has a place, or rather had earlier this year, is in quite a cosmopolitan part of Sydney with many students of mixed race. Dr Kasinathan said that she would probably “fit right in” at the school.

12. When asked by the doctor how she would be without her mother in Sydney, S said she knows her mother loves her and wants what is best for her.

13. When cross-examined by Mr Anderson for the respondent Minister, the doctor explained that he was experienced in doing audio-visual assessments for persons living in regional Australia He said he found the form of contact which he had with S sufficient to enable him to formulate a diagnosis.  He said he did not administer any psychometric tests, which are notoriously unreliable with children.   He also said he gathered from his assessment that S and her mother would maintain strong levels of contact through Facetime or Skype and by means of return to Vietnam in school holidays, or by visits to Australia by her mother. He was then cross-examined for a time by the father of S.

14. I should next refer to the stance adopted by the father of S in these proceedings. He had attended a directions hearing before the Tribunal by telephone on 5 March 2018. At that directions hearing I directed him to file and serve his statement of facts issues and contentions, a statement of any evidence on which he seeks to rely and any other evidence on which he wished to rely and where no such material was to be filed, he was to notify the Tribunal and the other parties by 27 March 2018.   Those directions were reduced to writing and communicated by email to the parties, including the father of S. At the directions hearing on 5 March 2018 I also informed him that if he desired to engage a legal representative to appear for him in Sydney at the hearing, that option was open to him.

15. No material was filed by the father of S.

16. On 28 March 2018 my associate wrote an email to the father of S. The email noted that at 2.30 pm on that day, no materials had been received from him and notifying him that as the deadline had passed, he would need to make an application for leave to file  any materials he had to file out of time The email reminded him that the hearing date was 5 April 2018. Attached to the email was another copy of the directions dated 6 March 2018.

17. Prior to 5 April 2018, my associate also notified S’s father that his attendance by telephone at the hearing to make submissions would be permissible.

18. At the commencement of the hearing on 5 April 2018, S’s father was contacted by telephone and when the connection was lost, he was telephoned again.  I was at that stage of the hearing inviting submissions on whether the proceedings might best be dealt with by a deputy president of this Tribunal who was also a Family Court judge. The possibility of the Tribunal being constituted by a Family Court judge who is appointed to the Tribunal pre-empted a situation where the Tribunal decision was that the matter should be dealt with by a court due to the existence of international family court orders needing to be accounted for by a deputy president or judge who is experienced with such matters. 

19. Prior to 5 April 2018, S had been legally unrepresented. Mr Fernandez of counsel who appeared for the applicant opposed the suggestion the matter be referred to a Family Court judge who is a Tribunal deputy president; drawing attention to the expense that would be incurred on behalf of the applicant. He stated that he and his instructing solicitor would need to cease to act for the applicant because they did not practise in the Family Court. He said that the estimate for the costs of appearing before the Family Court was $130,000.

20. In the course of discussion about the possibility of referring the hearing to a Family Court judge who was also a deputy president of the Tribunal, S’s father told me that he opposed the application for the applicant to be issued with a passport. When asked on what grounds he opposed the passport application, made a number of factual assertions inconsistent with the evidence later put before me, including an assertion that he had seen his daughter several weeks before the hearing day, and denying other information placed before me.  He also asserted, incorrectly, that he did not get my directions until after the date for compliance with the directions had expired.  He indicated that he reserved his right to appeal and terminated the call. The factual assertions made by S’s father were effectively no more than submissions, since no affirmation was administered to him, and he was not able to be called or cross-examined at that stage. The opportunity for such a thing to occur might have arisen later in the hearing however I would have needed to hear submissions from the parties as to whether I should permit evidence to be given by S’s father by telephone, on which he might be cross-examined as to credit. As matters eventuated, no such question arose whether the father should be permitted to give evidence.

21. S’s father was dialled back into the hearing and the hearing resumed. I decided to proceed with the hearing, even if the result were that I might have decided the matter should instead be dealt with by the Family Court.

22. S’s father was informed that he would be able to cross-examine witnesses in due course. After Mr Anderson for the Minister had cross-examined Dr Kasinathan, S’s father was invited to cross-examine the doctor. He elicited from the doctor that the doctor had had one consultation of about 50 minutes with S. When asked by S’s father why he had not been contacted by him for the purpose of the consultation, the doctor replied that he had no instructions to do so. When the question was repeated to the doctor, I intervened to say the doctor had already answered that question. S’s father then suggested that the proceedings were stacked against him as they were “unfair, biased, bigoted and nasty”. He then hung up and apparently turned off his telephone. At the luncheon adjournment, an email was sent to him by my associate indicating that Ms P had commenced to give evidence and that S’s mother and S herself would be giving evidence by telephone during the afternoon. The email stated that the Tribunal would try to ring him back at 2.00 pm Sydney time and he would have the opportunity, if he wished, to cross-examine Ms P, and also S and her mother when they gave evidence by telephone later in the hearing.   The father was also sent a copy of a document tendered by the applicant during the examination in chief of Dr Kasinathan.

23. At 2.00 pm efforts to reach S’s father failed, since he had apparently turned off his phone. The hearing proceeded without the father’s further involvement. He appears to have elected no longer to participate in the proceedings. I do not treat either his assertions of fact made before me referred to in 20 (or some assertions embodied in questions asked by him of Dr Kasinathan) as evidence before me. In any event, if I had been of a different view about that matter, I would have accorded those assertions no weight in the circumstances.

24. Ms P, whose evidence I accept, said that she has recently retired and that for most of her working life she worked in the travel industry.  She ran a tour business with the father of S, where she was located in Sydney and he was located in Hanoi. They were married between 1990 and 2003. She then worked for Vietnam Airlines and later for Etihad Airways. She has been with her present partner for 12 years. She has known S since she some two or three months old.  She has been in her life consistently, either in Vietnam on one of her visits or in Sydney when S came here, or by Skype about every week.

25. She said that S has always regarded herself as Australian. Every trip to Vietnam she takes books for S. She finds out from a young friend of S in Sydney what books S is reading and takes those books for her. Her own family, including her husband have always embraced S. Generally, S would stay with Ms P whenever she came to Sydney and whether she came with her father and mother, or one of them. She would stay for periods of three or four weeks and on one occasion, seven weeks. When her mother did not travel with S, they communicated by Skype or Facetime every couple of days. In evidence is a map of Australia drawn by S which she labelled “HOME”.  She has a local Medicare card. S has been at a private school in Vietnam for the last several years, a school which permits her to write with her left hand, unlike earlier schools. Ms P pays the private school fees because the wage of S’s mother is too low to enable her to pay it.

26. Ms P last saw S in Vietnam in February 2018 during the lunar New Year celebrations. She then took the photograph to which I referred in [4]. She said she could and would provide financially for S while she is in Sydney and referred to her financial means.

27. She said that the mother of S would be welcome to come to Sydney any time, and that if the father of S wished to see her, Ms P’s decision to permit or deny this would be informed by S, but because he hasn’t seen S for over two years, she or her husband would be present to ensure all was well.  She said that the father would be welcome in her home and “ultimately it would be great if they all got on”. When asked what would happen if S wanted to come out of the proposed school in Sydney or go back to Vietnam, she said that “she’ll come out if she wants to.  It’s completely up to [S]. If she said to me ‘I want to stay in Vietnam with my mum and do school there that’s fine. And just to come to Australia to visit, which she really wants to do”.

28. She and the mother of S have agreed on a plan for S which involves S living with Ms P while in Sydney.  That plan is in evidence.  It is contingent on the issue of a passport to enable S to travel. Her understanding is that S last saw her father in 2016.

29. In cross-examination on behalf of the Minister she said that she knows that S wants to come to Sydney and has wanted to for years.

30. I accept the evidence of Ms P. She also appeared to me to be a person very well disposed to S, who wished only to do her best for S.

31. I then heard from S by telephone.  She told me that she wanted to come here to go to school and see her extended family and friends. She named some seven such people as well as Ms P and her husband. She has been twice to the school where she had a place earlier this year and likes it, as well as a private school in Sydney which she visited with her mother, but which she knows is expensive. She gave me examples of the bullying of which she complained to Dr Kasinathan. “Well they called me names, they say that I should go back to my country and never return … and they hide my stuff … and they step on my back pack”.

32. Under cross-examination on behalf of the Minister she said that she had not seen her father this year, that he does not communicate with her by text message and does not ring her at home.

33. She told me that she wishes to come to Sydney as soon as possible, that she wanted to finish high school here and then go to university and get a job in Australia. I asked her whether her mother would come here and she said yes, maybe for a few weeks. I asked her if she would want to see her father here if he wanted to see her. She said “I guess so, yes.  Maybe”.

34. I then heard from the mother of S, who affirmed that she is working full time for a travel company, and very much wanted S to be able to travel and go to school here, staying with her friend Ms P. She also regarded Ms P and her husband as part of her own extended family.

35. The mother of S gave evidence largely to the same effect as her daughter and Ms P. She said that the last time she had seen the father of S was on 5 April 2016 when she went over to his café premises to pick up the application form for S’s passport. She told me that as S has grown up, contact between her and her father has been, in effect, very slight.  She had been in tears on the last several occasions when she spent time with her father some years ago.  I accept the evidence of both S and her mother.

    The legislative background

1. Section 11 of the Australian Passports Act2005 (Cth) is the main statutory provision which is to be applied.

2. Section 11 relevantly provides as follows:

   (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 is 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.

3. The provision gives the Minister a discretion to issue a passport at the request of only one parent if she considers that one or more of the provisions of s.11(2) are engaged. The evidence has mainly been directed to s.11(2)(b). The evidence led at the hearing to which I have referred, particularly that of Dr Kasinathan, satisfies me that the discretion is engaged on the ground that S’s psychological welfare would be adversely affected if she is not able to travel internationally.

4. If the Minister decides to issue the passport, she may do so in the exercise of her discretion.  If she decides to refuse to issue the passport in the absence of a Court order, then ordinarily in practice, the Family Court will deal with the matter.  Each exercise of Ministerial discretion, whether exercised personally or by a delegate, will be reviewable in this Tribunal. In the present case the discretion was exercised by a delegate and the decision was that the matter should be dealt with by a court.

5. The explanatory memorandum to the Australian Passports (Transitionals and Consequentials) Bill 2004 states at clause 11 that the “objects of the provisions relating to issuing passports to children are to protect a child from abduction and to protect the rights of parents”. That remark appears to be about s.11 generally, and is not expressly directed to the discretion exercisable under s.11(2) of the Act.

6. The discretion to which I have referred in [38] is not, in my opinion, on the proper construction of the statute, confined to the question of protecting a child from abduction or protecting the rights of parents. It is clear that the welfare of the child is involved in the conferral of discretion when one looks at s.11(2)(b). That consideration is in my opinion of great importance to the resolution of these proceedings. Indeed, s.11(2)(b) seems to me to require a decision-maker to consider all the circumstances of the matter and not just those referred to in the explanatory memorandum as general objects of the section as a whole.

7. The Department itself was apparently troubled by the need to consider such matters itself under the earlier form of enactment. Such a consideration does not directly affect, as such, a review such as has been conducted in the present case by this Tribunal where relevant parties, including the Minister as respondent, have had the opportunity to lead and test evidence. The Tribunal need not take the view that contested matters should go to the Court if the discretion in s.11(2) is engaged and the Tribunal feels that it has sufficient material to exercise discretion. The father of S has had an opportunity to participate in the proceedings, although he appears to have decided to withdraw from them.

8. The Minister submitted in written submissions that the word ‘abduction” in the explanatory memorandum should be understood in the sense in which that word is used in the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the Regulations).

9. Those regulations give effect to the (Hague) Convention on the Civil Aspects of International Child Abduction, the terms of which are set forth in Schedule 1 to the Regulations. The objects of the Convention, by Chapter 1, article 1, are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that right of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.  By article 4, the Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. It applies until the child attains the age of sixteen years. Vietnam is not a Contracting State.

10. The convention countries are listed in Schedule 2 to the Regulations.  They do not include Vietnam.  Regulation 4 provides that, for purpose of the Regulations, a person, institution or other body has rights of custody in relation to a child if the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention.  S is habitually resident in Vietnam at the present time and no person has by the Regulations themselves any right of custody in respect of S at the present time.  

11. The Convention and the Regulations were discussed by the High Court of Australia in MW v Director-General, Department of Community Services [2008] HCA 12; (2008) 244 ALR 205. The joint judgment of Gummow, Heydon and Crennan JJ contains a discussion of alternative steps which may be taken in the Family Court with respect to children in the jurisdiction. None of those steps have been taken in this case.

12. Since Vietnam is neither a Contracting State under the convention nor a convention country under the Regulations, it would seem that the Regulations are not directly material in the case.

13. In any event, exploring the meaning of the word “abduction” in the explanatory memorandum does not seem to me to be a useful course in exploring the reach of the discretion conferred on the Minister in s.11(2) of the Act – for reasons I have indicated at [41]. To the extent to which it may matter, I am prepared to assume that in the explanatory memorandum the word “abduction” has a meaning analogous to the scheme of the (Hague) Convention on The Civil Aspects of International Child Abduction. A general discretion conferred by a statute will not be confined by the terms of an explanatory memorandum, absent ambiguity in the statute itself, or some doubt about the mischief to which the statute is directed. It is the statute which is to be construed, not the explanatory memorandum. The provisions of the explanatory memorandum do not seem to me to be directed to the question of the limits of an exercise of discretion under s.11(2).

    The Departmental background

14. The reviewable decision is that of the Acting Corporate Counsel as the Minister’s delegate made on 17 October 2016. At that time two years had not passed since the last contact between S and her father, and for that reason the delegate was not satisfied that any of the circumstances in the Minister’s determination were present. One provision of the of the Minister’s determination is to the effect that if a substantial period of time has passed since the last contact between the non-consenting parent and the child, then that will be regarded as a special circumstance engaging the discretion in s.11(2).

15. Today, two years have passed since the last contact between S and her father, and the matter referred to by the delegate is sufficient to engage the discretion in s.11(2), quite apart from the findings I have made. I am to take into account the current circumstances proved before me rather than those which existed when the reviewable decision was made.

16. At the present time, in my opinion, a substantial period of time has passed since the last contact between S and her father. Similarly, at the time of the delegate’s decision, the application was not then supported by the evidence of Dr Kasinathan, which has persuaded me that the ground mentioned in s.11(2)(b) is made out. I therefore find myself in the position on this review that the discretion in s.11(2) effectively falls to be considered for the first time before me.

17. The Tribunal file contains an email from an officer of the Department in Hanoi dated August 2016. The email states that the last contact between S and her father was on 5 April 2016 when S and her mother asked him to consent to a passport being issued. That is the date on which I was told by S and her mother was the last date on which S and her father had contact. S’s father told the departmental officer that he had sent texts to S, who had not replied. However as noted above, that information was denied by S in her evidence.

18. The file includes a handwritten communication signed by S’s father making a number of allegations against S’s mother and Ms P, which were not supported in the evidence given before me.  I attach little weight to the contents of the communication.

    Exercising the discretion

19. What is ultimately in issue in these proceedings is the discretion to issue a passport to a child where only one parent has consented.  The most important issue is the welfare of S. I find that the evidence led before this Tribunal indicates that the best interests of S will be served by the issue of the passport, for reasons indicted by Dr Kasinathan, S herself, her mother and Ms P.

20. I must consider and evaluate as possible reasons not to cause the passport to be issued the fact that the father of S opposes the issue of the passport. I must also take account of the fact a Vietnamese court has made the orders referred to in [1].

21. The order made by this Tribunal cannot determine the proper construction of the Vietnamese order, nor whether proposed plans for S if issued a passport will involves a breach of the order. The father of S presumably has rights to approach a court in Vietnam, or if he elects to do so, a court in Australia, if he believes that what is being proposed by S, her mother and Ms P, involves an infringement of his rights to access or any other rights which he has as S’s father.

22. The father of S may or may not seek to take some step in Australia or Vietnam designed to protect his rights to “visit” S.  There is no evidence that he will do so, and nothing to suggest that the issue of a passport to S will take away or interfere with such right as her father may have to approach a court either in Australia or in Vietnam for any appropriate relief.

23. The father of S has elected not to place any evidence before this Tribunal in opposition to the making of an order for the issue of a passport to S.  His allegations are unproven, and to the extent to which they are inconsistent with evidence led before me at the hearing, and findings made by me in these reasons, I reject them.

24. As a matter of discretion, his failure on the evidence to exercise any right to “visit” S for two years, and his failure to take steps to “educate” her since orders were made in Vietnam in 2015, affect the importance to be given to his failure to consent to the issue of a passport. Indeed his opposition to the issue of a passport, for what is shown to be for the benefit of his daughter S on the evidence before me, makes his opposition to the making of an order issuing a passport to S difficult to understand. He may or may not seek to exercise his rights to “visit” S under the Vietnamese order in Australia, whether with or without a Court order. The evidence before me from Ms P indicates that she will be led by S, and so far as she is concerned, he will be able to do so, albeit under her supervision or that of her partner. He may, if he comes to Australia, not seek to visit S, since he has not done so for two years while they have both been in Vietnam.

25. I see good reason to issue a passport to S and no cogent countervailing reason not to do so. In particular, having heard the evidence, I do not decide that the matter needs to be referred to a court, with consequent delay and expense. The Minister has submitted that I ought to declare under s.11(3) of the Act that the matter ought to be dealt with by a court, because the case involves a potential effect on the orders made by the Vietnamese court and refers to the submission noted earlier as to the contents of the explanatory memorandum. I have already discussed above those legal issues, and have decided for all of the reasons given above that it is appropriate in the present circumstances to exercise the discretion as I have indicated.

26. For those reasons I find that the correct and preferable decision is to cause a passport to be issued to S, and the reviewable decision will be set aside.

I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 27 April 2018

Date of hearing:	5 April 2018
Counsel for the Applicant:	Mr L Fernandez
Solicitors for the Applicant:	Maria Walz Legal
Solicitors for the Respondent:	Ashurst
Other Party:	By telephone