Silva and Minister For Foreign Affairs - [2017] AATA 1285

Silva and Minister For Foreign Affairs [2017] AATA 1285 (17 August 2017)
Division:GENERAL DIVISION
File Number: 2016/2511
Re:Ebony Silva
APPLICANT

AndMinister For Foreign Affairs
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:17 August 2017
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that the applicant be issued with an Australian passport.
..........................[sgd]..............................................
Egon Fice, Senior Member
PASSPORTS – application for Australian child passport – refusal of parental consent by one parent – child an Australian citizen living in Indonesia – child’s physical or psychological welfare adversely affected – custody considerations – foreign court orders – application of Minister’s Determination regarding special circumstances – consideration of Child Abduction Convention – consideration of Convention on the Rights of the Child – consideration of International Covenant on Civil and Political Rights – child’s physical and psychological welfare will be adversely affected if not permitted to travel internationally – decision under review set aside and substituted with decision to grant passport
LEGISLATION
Australian Passports Act 2005; ss. 6, 7, 11 & 50
Australian Passports Determination 2015; s. 10
Family Law (Child Abduction Convention) Regulations 1986; Sch 2
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
SECONDARY MATERIALS
Explanatory Memorandum to the Australian Passports Bill 2004
Explanatory Statement to the Australian Passports Determination 2015
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Art 3 & 10
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Art 12
REASONS FOR DECISION
Egon Fice, Senior Member
17 August 2017

This application is brought by Mr Peter Silva on behalf of his daughter, Ms Ebony Silva, who is a minor. She was born in Indonesia on 1 September 2007. Her Excerpt of Birth Certificate records Peter Ronald Silva as the father and Astri Maya Puspa as the mother. Ebony Silva is the holder of an Australian citizenship certificate which was issued on 26 October 2007. There is evidence that she held an Australian passport but no longer has that passport.
On 24 November 2015 Mr Silva lodged an application on behalf of Ebony Silva for the issue of an Australian passport for a person aged less than 18 years. Ms Puspa refused to consent to that passport being issued. Mr Silva and Ms Puspa are apparently divorced although Mr Silva has also stated that they had separated but have never been formally divorced.
On 22 January 2016 an Approved Senior Officer with the Department of Foreign Affairs and Trade (the Department) decided to refuse to issue a passport to Ebony Silva. On

18 February 2016 Mr Silva applied for an internal review of the decision refusing to issue an Australian passport to his daughter. Following that review, the Department notified Mr Silva on 14 April 2016 that his application for…

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.

Keep reading for free

Create a free CaseChat account to read Silva and Minister For Foreign Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 1285
Decision Date: 17 August 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Silva, on behalf of his daughter Ebony Maya Silva, for an Australian passport. The Minister for Foreign Affairs had refused to issue the passport, a decision affirmed on review. The dispute arose because Ms Puspa, who also held parental responsibility for Ebony, refused to consent to the passport being issued.

The primary legal issue before the Tribunal was whether the Minister's discretion to issue an Australian travel document to a child, notwithstanding the lack of consent from all persons with parental responsibility, was enlivened. This required the Tribunal to consider whether Ebony's psychological and possibly physical welfare would be adversely affected by not being able to travel to Australia, and whether the circumstances warranted overriding Ms Puspa's refusal to consent.

The Tribunal found that Ms Puspa had largely relinquished her parental responsibilities, having left Ebony in the care of Mr Silva for an extended period and not disputing his custody. It was noted that Ms Puspa appeared to be using her consent as leverage for financial gain. The Tribunal determined that Ebony's welfare would be adversely affected if she could not travel to Australia, and that granting an Australian passport would provide her with freedom of movement without raising concerns of abduction, given her dual nationality and age. Consequently, the Tribunal set aside the Minister's decision and substituted it with a determination that Ebony Maya Silva should be issued with an Australian passport.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If this were simply a custody dispute between the parents, that might be an appropriate course to take. It is not a custody dispute. Although there was an initial agreement between Mr Silva and Ms Puspa that Ms Puspa would have custody of Ebony, I accept that Ms Puspa breached that agreement by leaving Ebony in the care of her parents while going overseas and remaining there for a considerable time. In any event, since Mr Silva has taken custody of Ebony, I did not have any evidence that Ms Puspa disputed or sought to recover custody. In fact, she appears to have been content to leave the parenting responsibilities to Mr Silva while nevertheless having regular visits from her daughter and taking her on outings. It is Mr Silva who has the day to day care of Ebony including taking her to and from school and arranging additional tutoring as a consequence of her having difficulties with schooling. Furthermore, for the payment of $500,000 AUD, Ms Puspa is prepared to consent to Ebony having an Australian passport. Regretfully, the evidence discloses an appearance by Ms Puspa to use her daughter simply as a pawn to achieve an end. This is not about custody. Accordingly I reject Ms Graves’ submission that this matter should be dealt with by a court.Conclusion Ms Puspa, who has parental responsibility for Ebony, has refused to consent to her being issued with an Australian passport. However, I have found that the Minister’s discretion to issue an Australian travel document to a child regardless of whether both persons with parental responsibility consent to that travel document is enlivened in the circumstances of this case. In accordance with s. 11(2)(b) of the Passports Act, I have found that Ebony’s psychological and possibly physical welfare would be adversely affected if she were not able to travel to Australia. If Ebony were granted an Australian passport and able to travel to Australia, I have found that because she also holds an Indonesian passport, she would not be trapped and unable to depart Australia to return to Indonesia if she so desired. No question of abduction can arise in the circumstances. Additionally, Ebony is now of an age where she is able to give rational consideration to where she wishes to reside. There would be no reason why, if she had a change of mind at any time while in Australia, she could not exercise the right to return to Indonesia. The grant of an Australian passport would provide her with freedom of movement to which she has a right. While I accept that Ms Puspa has a parental responsibility for Ebony, the evidence before me discloses that certainly in the last four and a half years, she has done little to exercise that responsibility. She has relinquished any custody claims which she appears to have had at the time of divorce and has not sought to reinstate those claims. I find that the decision made by Corporate Counsel by delegation from the Minister for Foreign Affairs on 14 April 2016 affirming the original decision not to approve the issue of an Australian passport to Ebony Maya Silva was not the preferable decision. I set aside that decision and in substitution determine that Ebony Maya Silva should be issued with an Australian passport.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.