Silva and Minister For Foreign Affairs

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 review had been unsuccessful. The Corporate Counsel of the Department’s Corporate Legal Branch, under delegation by the Minister for Foreign Affairs (the Minister), affirmed the original decision.
In essence, the grounds for refusing to grant a passport to Ebony were stated as:
·each person with parental responsibility for the child has not consented to the child having an Australian travel document under section 11(1)(a) of the Australian Passports Act 2005 (the Act);
·no court orders were provided permitting the child to have an Australian travel document, travel internationally, or spend time or live with the person outside Australia; and
·I have not found that any other circumstances apply in this case that would allow an Australian travel document to be issued to the child under section 11(2) of the Act without the consent of all persons with parental responsibility.
On 12 May 2016 Mr Silva lodged an application with the Tribunal seeking review of the delegate’s decision of 14 April 2016. That application was made pursuant to s. 50(1) of the Australian Passports Act 2005 (the Passports Act).
ENTITLEMENT TO BE ISSUED AN AUSTRALIAN PASSPORT
Section 7 of the Passports Act provides:
(1)An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister.
(2)An Australian citizen’s entitlement to be issued with an Australian passport is affected by section 8 and by Division 2.
(3)An application for an Australian passport must be:
(a)made in the form approved by the Minister; and
(b)accompanied by the applicable fee (if any).
Division 2 of the Passports Act deals with reasons why the Minister may refuse to issue an Australian travel document. The expression, Australian travel document, is defined in s. 6 and it means an Australian passport or a travel-related document. Subdivision A of Division 2 deals with children. Section 6(1) of the Passports Act defines the word child as a person who is under 18 and who has never been married. Section 11 relevantly provides:
(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.
[There is no subsection (4)]
(5)For the purposes of this section, a person has parental responsibility for a child if, and only if:
…
(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
[There is no subsection 5(c)]
(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.
…
The Minister for Foreign Affairs, the Honourable Julie Bishop MP, has made an Australian Passports Determination 2015 (the Passports Determination) which commenced on 1 October 2015. The Explanatory Statement to that Determination states:
… The Determination remains a critical instrument for the implementation of the Passports Act.
The Determination is said to refine and clarify the special circumstances where a passport may be issued to a child without full parental consent or an Australian court order.
The special circumstances referred to in s. 11(2)(a) of the Passports Act refers to the circumstances specified in the Minister’s Determination as special circumstances. Those are set out in section 10 of the Determination which relevantly provides:
(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 the 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)…
(3)The circumstances are the following:
(a)if the application is made on or on behalf of the child – neither the applicant nor the Minister has 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 travel document; and
(iii)has not had contact with the child since the child arrived in Australia;
…
(g)if the child is outside Australia – there is evidence of family violence;
(h)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 travel document 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)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;
…
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 names those countries which have adopted the Convention on the Rights of the Child. Indonesia is not a convention country.
It is of some significance to note what is said about the objectives of the child passport provisions. The Explanatory Statement to the Passports Determination states at paragraph 36:
The objectives of the child passport provisions are to protect a child from international parental child abduction and to safeguard the rights of persons with parental responsibility.
The Explanatory Memorandum to the Australian Passports Bill 2004 has a similar statement regarding Subdivision A dealing with children. It states:
The objects of the provisions relating to issuing passports to children are to protect the child from abduction and to protect the rights of parents.
In addition, there is a Statement of Compatibility with Human Rights (the Statement) which was prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. That Statement refers to the Passports Determination and states:
This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Furthermore, the Statement states that the Determination engages a number of human rights including:
·Article 12 of the International Covenant on Civil and Political Rights (ICCPR)
·Article 3 of the Convention on the Rights of the Child (CRC)
·Article 10 of the CRC
The Statement says this about Article 12 of the ICCPR, which deals with the right to freedom of movement:
Article 12(2) of the ICCPR provides that everyone must be free to leave any country, including their own. The right in Article 12(2) may be subject to restrictions provided by law and necessary to protect national security, public order, public health or morals or the rights and freedoms of others (Art 12(3)). Under Article 12(4), no one shall be arbitrarily deprived of the right to enter his own country.
Articles 3 and 10 of the CRC should be set out in full. They provide:
Article 3
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 10
1.In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for applicants and for the members of their family.
2.A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligations of the States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with other rights recognised in the present Convention.
The Explanatory Statement to the Passports Determination says the following about s. 10 of the Determination:
Section 10 of the Determination engages these rights by providing for circumstances in which the Minister may issue a passport to a child without the consent of all persons who have parental responsibility for that child or a court order for travel. In doing so, it could limit the rights and responsibilities of persons who have parental responsibility for a child who have not consented to the child being issued a passport (non-consenting person).
However, the circumstances are limited to those where it would be reasonable or necessary to limit these rights and responsibilities, and, in those circumstances, promote the child’s right to freedom of movement. For example, the provisions promote the child’s right to freedom of movement in circumstances where the non-consenting person was not contactable or was incapable of consent, or where a family violence order has been issued against the non-consenting person.
…
There are also important safeguards in place. The provision does not apply if there are court proceedings pending that may affect the child’s right to travel or who has parental responsibility for the child. Further, the Minister retains a discretion in relation to the issue of the passport and would not normally exercise powers under this section if it was inappropriate to do so.
THE CIRCUMSTANCES OF REFUSAL TO GRANT CONSENT BY THE MOTHER
Ebony Silva was granted Australian Citizenship by Descent on 26 October 2007. She was issued with an Australian passport on 11 February 2008 which remained valid until 11 February 2013.
Mr Silva married Ms Puspa on 23 March 2007. I had in evidence a translated Certificate of Divorce which claims to have been granted on 5 September 2013. It appears to be a civil certification of the divorce granted by the Religious Court of Bandung in Indonesia.
In a document described as a Cassation (the action of making null and void – The Shorter Oxford English Dictionary) Petition, which is dated 21 August 2013 and addressed to the Supreme Court of the Republic of Indonesia, Mr Silva, as claimant, raised a number of allegations against Ms Puspa, including adultery and, in effect, abandoning Ebony in the care of Ms Puspa’s parents in Bandung. Mr Silva sought that the court make orders regarding Ebony’s right and entitlement to obtain a passport from Australia as well as Indonesia regardless of the marital status of her parents.
An attachment to an email dated 31 May 2013 from Ms Puspa to Ms Carolyn Silva appears to be a draft agreement which was to be put before the court in Indonesia regarding the custody of Ebony. Effectively, the letter proposed that sole custody of Ebony be granted to Mr Silva. There are a number of conditions dealing with that custody which need not be recited for these purposes save to say that both parties were required to sign divorce papers at the court together with the custody agreement.
I also had in evidence another draft agreement regarding the custody of Ebony under which custody was granted to Ms Puspa. There was no evidence that either of the parties had signed this agreement.
The dispute between Mr Silva and Ms Puspa which led to their divorce was described by Mr Silva in a letter dated 18 February 2016 to the Department. Mr Silva said that six months prior to their divorce, they had returned to live in Australia. Their intention was that their daughter would be educated in Australia. They returned to Bali on 15 March 2012. Ms Puspa refused to accept a waiver to stay in Australia until her spouse visa was processed. Two hours after their return to Bali, Ms Puspa told Mr Silva she wanted a divorce. One week after their return to Bali, Ms Puspa left Bali and went to live with her parents in Bandung, West Java. Their daughter went with her mother. Ms Puspa applied for the divorce in the Muslim Court in Bandung.
Mr Silva engaged a lawyer to assist with the divorce and property settlement. Given that Mr Silva was required to fly to Bandung to deal with the settlement, he provided a Power of Attorney to his lawyer. The property in issue was a villa which Mr Silva had built prior to meeting his wife and had put ownership of that property in her name to obtain a hotel licence for taxation purposes. The property settlement and divorce papers were all in Indonesian and were translated for Mr Silva by his lawyer. She advised Mr Silva to sign the documents and give his wife the money she demanded. According to Mr Silva there were three divorce hearings over a period of three months although he did not attend all of those hearings. He claimed that Ms Puspa left Indonesia in November 2012 before the divorce was finalised. She had apparently gone to Norway to live with a previous partner.
Mr Silva accepted that he had executed an agreement with Ms Puspa in which custody of their daughter was to be with her mother. Mr Silva was to have regular access to his daughter. Mr Silva said this agreement had never been verified by an Indonesian court.
Mr Silva said that after Ms Puspa had left to go to Norway with her previous partner, he was denied access to his daughter. He said he was advised by his lawyer that only a court could rule on custody matters and therefore the agreement he reached with his former wife regarding custody of the child was null and void. Apparently Mr Silva’s lawyer informed him that under Indonesian law, Ebony had been abandoned and that she had the right to protection from her father. At the time of writing the letter containing the above information, Mr Silva said there was a petition before the Civil Court for a divorce and custody ruling. That was in December 2015.

When Mr Silva went to Bandung in September 2012, his daughter informed him that his mother was going to live overseas and make big money. She would come and get her daughter and take her back to Norway, presumably after she had made some money. Concerned that Ebony would not have parental contact in the absence of her mother, and concerned that Ms Puspa’s parents might subject her to female genital mutilation as was the custom, Mr Silva returned to Java in November 2012 and after his lawyer had a meeting with the police, they collected Ebony and brought her back to Bali. Mr Silva has had effective custody of his daughter since that time. Subsequently, Mr Silva instructed his lawyer to lodge a petition with the Civil Court for the purpose of granting him formal custody of his daughter.
Mr Silva said that Ms Puspa had not made any legal attempts to claim custody of Ebony after returning to Indonesia. Furthermore, Mr Silva claimed that Ms Puspa said she would sign the consent required to have Ebony issued an Australian passport if Mr Silva paid her $500,000 AUD. I had in evidence a copy of the message received by Mr Silva on his phone from Ms Puspa which appears to be a response to a suggestion that a person from Melbourne mediate the passport dispute. Ms Puspa’s response was:
Hi I am fine thanks. Up to you will choose anyone as mediator for us. If you want my sign for ebony’s passport, please prepare 500,000 aud for me. Thx Astri
Ms Puspa provided a response regarding the internal review of Mr Silva’s passport application for Ebony in an email dated 31 March 2016. Needless to say, many of the matters raised by Ms Puspa are plainly emotive and not supported by any corroborative evidence. In fact, there is objective evidence which indicates that Ms Puspa’s account of events is simply wrong. However, I have avoided relying on statements made by both Mr Silva and Ms Puspa for which there was no evidentiary basis.
Ms Puspa’s concern about her daughter being granted an Australian passport appears to be that if and when she goes to Australia, she will not return to Bali nor will Mr Silva permit her to have access. While she referred to Mr Silva’s financial circumstances in Bali and Australia, I have not taken that into account because there is no evidence before me to support her statements. Ms Puspa also said that when Mr Silva took Ebony from Bandung back to Bali, she decided to move back to Bali to get closer to her daughter. That involved her leaving her current employment. She also claimed that Mr Silva denied her access to her daughter for in excess of one year. However Ms Puspa made no mention of the fact that she had been overseas or for how long that was the case.
As for denial of access while in Bali, the evidence before me indicates that Mr Silva has provided Ms Puspa with access to her daughter whenever she has requested it or whenever Ebony requested to see her mother. Mr Silva has kept a record of the occasions on which Ebony has visited or stayed with her mother between 2016 and 2017. There are 31 entries in 2016 and 13 entries between January and March 2017. Some of those visits appear to be for functions. In some entries Ebony remained only for the day while in others she appears to have stayed overnight. I did not have any evidence of Mr Silva denying Ms Puspa access to her daughter.
In her interview with the Consul, Australian Consulate General Bali, on 25 November 2015, Ms Puspa said that although she moved to Bali to be close to her daughter, Mr Silva restricted her access. She claimed that in the preceding three years, on average she had only been permitted to see her daughter once a month for a day at most and only when Mr Silva agreed on the time. There had also been many times when Mr Silva had prevented access at the last minute.
Statements made by Ms Puspa are directly contrary to what Mr Silva said. Mr Silva said that when Ms Puspa was overseas on the first occasion, she phoned intermittently over a 12 month period, sometimes once a week, but usually only once every 10 or 14 days. Ms Puspa returned to Bali in late 2013. In about February 2014 she commenced living with another new partner at a house which was about 4 km away from where Ebony was living with Mr Silva. Despite that close proximity, Mr Silva recorded six days on which Ms Puspa had contact with Ebony between June 2015 and October 2015. Ms Puspa provides no financial support for her daughter.
I had no evidence of any interview with Ebony. It seems to me that could have been useful despite the fact that in 2015, she was eight years of age. I did have a handwritten letter which appears to be in child’s handwriting pleading that she be given her Australian passport so that she could see her family for Christmas 2015. I also had in evidence photographs of Ebony holding up a sign which was to the same effect.
I had in evidence a number of statements from persons who have known the Silva family for some time in Indonesia. Many of those persons had children who were at school with Ebony. On occasion, some of those people have been neighbours or close neighbours. There was also a letter from the principal of a primary school attended by Ebony. He, like many of the other letter writers, said that Mr Silva was responsible for taking Ebony to school and picking her up in the afternoon. Although some of those letters are not dated, those that are appear to have been drafted in November or December 2015.
The evidence before me regarding Ebony’s care discloses that her principal carer is Mr Silva. That has been the case since 2012. Ms Puspa has made no attempt to have custody of Ebony formally recognised by the Indonesian Court. Mr Silva, on the other hand, has lodged a petition with the Supreme Court of the Republic of Indonesia in which, amongst other things, he seeks the right to protect his daughter mentally and physically, which I understand equates to having custody of the child. He also sought acknowledgement of Ebony’s right to hold a passport issued by Australia and Indonesia.
I find, on the evidence before me, that Mr Silva has had de facto custody of his daughter Ebony since 2012 and that she has not been denied access to her mother whenever her mother requested it or she requested it.
Perhaps the most disturbing thing about this dispute is Ms Puspa’s statement that if Mr Silva paid her $500,000 AUD, she would consent to a passport being issued to Ebony. It is disturbing because it discloses that Ms Puspa is not genuinely concerned to have the care and custody of her daughter but rather, is using her as a bargaining chip to obtain more money from Mr Silva. That observation is further supported by the evidence that Ms Puspa, shortly after the divorce, left Indonesia to live in Norway for about 12 months. There was only sporadic telephone contact with her daughter during that time. On her return to Indonesia, and in particular when she returned to Bali, despite living in close proximity to where her daughter lived, there was not significant contact between the two of them nor did Ms Puspa make any attempt to gain formal custody of Ebony.
That gives rise to another disturbing aspect of this application. Ms Puspa has stated on a number of occasions that Ebony has an Indonesian passport. She has not produced that to any person at the Australian Consulate in Bali nor did I have any evidence of that passport before me other than the statements made by Ms Puspa. Nevertheless, given that Ebony was born in Indonesia, it is reasonable to expect that she either has a passport or is capable of obtaining one in Indonesia. There was no evidence that Mr Silva objected to her holding that passport and in fact the evidence discloses that he is content that she holds two passports. Ebony is an Australian citizen, her Australian Citizenship Certificate being granted on 26 October 2007. She previously held an Australian passport between February 2008 and February 2013.
Given the state of affairs at the moment, the impact on Ebony is that she is effectively trapped in Indonesia and the only travel document which would allow her to leave Indonesia for any other country is in the control of Ms Puspa. Despite being a citizen of Australia, without access to a travel document allowing her entry into Australia, she has been prevented from travelling to Australia.
APPLICATION OF THE STATUTORY REQUIREMENTS
Plainly, s. 11(1)(a) of the Passports Act prevents the Minister issuing an Australian travel document to Ebony without the consent of Ms Puspa, her mother. However subsection (2) sets out a number of exemptions.
I have referred to the Explanatory Memorandum to the Australian Passports Bill 2004 and the Explanatory Statement to the Passports Determination in order to establish the objects or purpose behind the restrictions in issuing a child under the age of 18 years with an Australian passport. Essentially, the purpose of having restrictions on the issue of a travel document to a child is to protect the child from international parental child abduction and to safeguard the rights of persons who hold parental responsibility.
In addition to the special circumstances provisions, to which I will refer presently, s. 11(2) of the Passports Act sets out a number of other circumstances which, if they were to apply to an applicant, would not prevent the Minister from issuing an Australian travel document to a child. The first of those is where the child’s welfare, physical or psychological, would be adversely affected if the child is not able to travel internationally.
Ms C Graves, a solicitor who appeared on behalf of the Minister, in the Respondent’s Statement of Facts, Issues and Contentions, referred to policy guidelines drafted by the Department of Foreign Affairs and Trade dealing with the exercise of discretion in respect of s. 11(2)(b) of the Passports Act. Those guidelines apparently appear as Online Passport Information. Ms Graves submitted that the existence and content of a lawful government policy guiding the exercise of statutory power is a matter which the Tribunal is bound to take into account and to give such weight as it thinks proper. She referred to the Federal Court of Australia (Neaves, French and Drummond JJ) decision in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. French and Drummond JJ said, at 205 – 206:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:
“If the original decision maker has properly paid regard to some general government policy and reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.
The place of government policy in the Tribunal’s decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers:…
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. …
…But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal.
Plainly, the Tribunal is not bound by government policy. Nevertheless, particularly where the policy relates to a discretionary power which may be exercised by the Tribunal, it is in the interests of consistent decision-making that it be taken into account.
The policy in relation to s. 11(2)(b) may be stated as follows:
If a claim is made that the physical or psychological welfare of the child would be affected if a passport was not issued, the following could be drawn upon to support the claim although all circumstances need to be taken into account:
–An Apprehended Violence Order for the protection of the child or custodial parent; or
–A statement from a competent medical practitioner, counsellor, psychologist or psychiatrist who can state impartially whether the physical and/or psychological welfare of the child is at risk.
The current Online Passport Information policy makes the following statements:
2.17.7.2.1.1 Summary
1.Where an application for a child passport is submitted without full parental consent, and it is claimed the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally, it should be carefully considered by an Approved Senior Officer level 1 delegate.
…
2.17.7.2.1.2 Proof of Claim
1.The healthcare provider must state impartially whether the physical and/or psychological welfare of the child is at risk if the child is not able to travel internationally.
…
2.17.7.2.1.3 Healthcare Provider Requirements in Australia
1.The healthcare provider must be registered with the registration authority as a member of a particular health profession to ensure that only healthcare providers who are suitably trained and qualified to practice in a competent and ethical manner are recognised for the purposes of providing such a statement.
2.For the purposes of issuing a passport to a child under section 11(2)(b) of the Australian Passports Act 2005, a written statement will only be accepted from the following healthcare providers:
·Medical practitioner; or
·Counsellor; or
·Psychologist; or
·Psychiatrist; or
·Social Worker.
Although I had in evidence a number of statements made by persons who have known Ebony for some time and who stated that Ebony was suffering emotionally as result of not being able to travel to Australia, none of those persons are qualified to offer an opinion about her psychological state. I cannot place any weight on those statements.
I also had in evidence a brief statement from Dr Ristie Darmawan, a General Practitioner practising in Bali, Indonesia. Dr Darmawan said:
Physically Ebony Maya Silva is a 9 year-old healthy girl. Mentally there is a potential to be in a depressed condition due to not being able to do overseas (Australia) trip for her holiday and also because of her family matters.
Ms Puspa also obtained a medical report from Dr Gusti Twi Adnyana who she described as a child doctor at Siloam Hospital. She said he was not a General Practitioner but was fully qualified to assess children. Ebony’s physical presentation was normal. The only statement regarding her psychological state was: No Anxieti Sign.
A more recent assessment was made by Dr H John McIntosh, who described himself as a specialist qualified General Practitioner and a family doctor. He did not have qualifications in psychiatry. In his oral evidence, Dr McIntosh said that about 70% of his practice was dealing with persons with family problems including drugs and alcohol. Dr McIntosh said that he went to Bali to conduct the examination which was undertaken in a hotel. Although he had previously seen Ebony about two years prior to this examination, he was not her treating doctor. Although he obtained background information from Mr Silva prior to his examination, the interview he conducted with Ebony was not in the presence of Mr Silva or anyone else. Dr McIntosh conducted what he described as a psychological assessment indicating that Ebony had significant issues which impacted on her psychological well-being and that she was at significant risk of further long-term damage. He cited the following as evidence of his conclusion:
·Ebony described getting regular nightmares over the preceding three years when left alone and that her mother turns evil with a scary monster face. She becomes scared for her safety. There is no one there to help her.
·Ebony has a feeling of desertion and isolation. She is upset (disappointed) with the loss of her mother’s affection and love as her mother appeared to just leave town and not have any interest in her most of the time. Her mother put her new partners ahead of her needs. Ebony said that her mother told her that her new partners’ health was more important than her getting her homework done and she would leave the area (home) for long periods in the past without contact. Ebony felt isolated and rejected by her mother with no access to that side of the family and unable to visit her father’s side of the family. She felt unconnected and isolated with her father being the main social contact. Ebony openly described that she missed her family in Australia and all her own friends. She felt trapped and lonely.
·There have been some school performance problems, Ebony requiring regular tutoring at home to keep up. Tutoring is provided daily for several hours after school ends and occurs six days a week.
·Ebony is regularly picked on and bullied by other girls in her school and they taunt her about her parent’s separation with derogatory comments made about her mother on Facebook and about her father. The bullying is mostly verbal but also involves physical trauma on a regular basis. She is a sensitive child and gets upset by this. Frequently tears result. She has few children in the class who she can trust and even her friends frequently take sides against her and torment her. Ebony judges her behaviour as being weak and Dr McIntosh believes this will continue to erode her psychological well-being if not addressed.
·She has expressed fear for her personal safety, describing she was scared of her mother. Ebony described her mother as deliberately hurting her, being nasty to her (verbally, not physically) and being unfair to her. Her interpretation is that her mother does not love her and describes her mother as always telling lies to her. She does not feel safe when she is with her mother because she has been left alone on many occasions when in her mother’s care. Ebony’s mother probes her aggressively to get information about her father and threatens her with punishment if she does not give her the answers.
·Ebony also expressed fear that her mother may get her cut (female genital circumcision). Ebony’s mother has talked to her about this and pressured her into believing it was a good thing. Ebony is fearful that when she is with her mother this may be forced on her without her consent. She stated she was scared of that happening.
Dr McIntosh offered the following summary:
This 9 year old girl is the victim of a vitriolic separation and as a result of not being able to travel outside of Indonesia is cut off from her parental family, does not see her maternal family and her only positive contact is with her father. Her social circles are limited and also toxic and with this limited social network she is at significant risk of further emotional and psychological problems in the future.
It is well-known that developing strong family ties and support networks is important for self-esteem and personal health and this is a high risk situation, with her self-esteem being eroded from most sides (mother and school) and only her father seeming to give positive encouragement.
In my opinion, it is extremely important for Ebony to cultivate her social and family network and ensure that she has the positive input of as many relatives and friends as possible to neutralise the negative inputs that she currently experiences. The combination of nightmares, personal safety fears, low self-esteem and self-criticism, inconsistent school performance and bullying are all ominous signs of leading to personal or medical illnesses in the future, particularly anxiety, depression, anti-social habits and substance abuse.
The cultivation of positive social connections (grandparents, cousins, friends without agendas) and the mental resilience that this will create is very important for her long-term wellbeing. I would therefore consider that she should be allowed to travel internationally (back to Australia) to prevent these damaging psychological effects over the next few years.

Section 11(2)(c) and (d) of the Passports Act do not apply in this case. There was no evidence that Ebony needed to urgently travel internationally because of a family crisis and it was not possible to contact her mother within a reasonable period. Although she is a child who is outside Australia, she departed Australia after 12 months before the application for her Australian passport was made.
Section 11(3) of the Passports Act does not apply as a Minister has not refused to issue an Australian travel document to Ebony because the matter should be dealt with by a court. It appears that Mr Silva has lodged an application (the Cassation Petition) with the Supreme Court of the Republic of Indonesia. That petition appears to deal with Mr Silva’s right to retain custody of Ebony which has been the case in any event for some years now. It also apparently seeks affirmation from the Court that Ebony should be entitled to an Australian and an Indonesian passport. The evidence before me indicates that she already holds an Indonesian passport. In my opinion, the Cassation Petition does not create a basis for refusing to exercise the discretion under subsection (2).
The only remaining issue to consider is whether any of the special circumstances set out in the Determination at s. 10(3) apply in this case. The only circumstances which may apply are those set out in subsection (3)(i) which provides:
if the child is outside Australia – the Minister considers there is a need for the child to travel internationally or the child requires a travel document to continue to legally reside overseas;…
The Explanatory Statement in respect of s. 10 of the Determination states:
However, the circumstances are limited to those where it would be reasonable or necessary to limit these rights and responsibilities, and, in those circumstances, promote the child’s right to freedom of movement.…
The provisions also promote and protect the rights of the child by providing discretion to issue a passport without full consent to ensure the protection and care necessary for the child’s well-being (Arts 3 of the CRC).…
…
To the extent that section 10 limits the rights of non-consenting persons with parental responsibility, these are applied in a reasonable and proportionate manner to promote the rights of the child.
There was no evidence before me that Ebony requires a travel document to continue to legally reside in Indonesia. Her mother is an Indonesian citizen and claims that Ebony has an Indonesian passport. As for a need for Ebony to travel internationally, my consideration of the evidence does not disclose a necessity or obligation as is suggested by use of the word need. Contrary to what has been claimed by Mr Silva, there was no evidence that Ebony had a medical condition requiring her to travel outside Indonesia for treatment.
SHOULD THE DISCRETION BE EXERCISED IN FAVOUR OF GRANTING AN AUSTRALIAN PASSPORT
This is clearly a very difficult case. It is, in any circumstances, unusual to allow a travel document to be issued to a child where both parents do not agree. The very purpose of having such a restriction on the issue of a passport or travel document to a child is to avoid one parent abducting the child against not only the other parent’s will, but also the child’s will. I believe it is important in this case to focus firmly on the best interests of the child rather than either of the parents. Ebony is now 10 years of age. She has reached the age where she is capable of determining right from wrong as well as being able to freely express an opinion about where she would like to reside. The fact that she has chosen to live with her father and has not sought to live with her mother, in my opinion, speaks volumes. Mr Silva, on the evidence before me, clearly allows Ebony’s mother free access to her and delivers her to where Ms Puspa resides. Ms Puspa has made no attempt to seek or obtain formal custody of Ebony. Despite that, there was no evidence that Ebony has expressed any desire to change the custody arrangements as they exist at present by default. She has now resided with her father for in excess of four and half years.
The only factor amongst those circumstances described as special in s. 10(3) of the Determination which might possibly ground a basis for the discretionary grant of an Australian passport in the absence of both parents’ consent is the need for Ebony to travel internationally. However, I find that the evidence said to support that ground is insufficient to make a decision in favour of granting the passport to Ebony. It is not reasonable and proportionate to promote the rights of Ebony in her circumstances. The evidence is not sufficiently strong to support a necessity or obligation.
However, the report of Dr McIntosh as well as his oral evidence at this hearing raises very serious concerns for Ebony’s psychological well-being should she be prevented from coming to Australia. The account given to Dr McIntosh by Ebony in the absence of both parents at the interview raises disturbing matters which cannot be ignored. Furthermore, there is a factual foundation for many of the matters raised by Ebony in that interview. Ms Puspa effectively deserted Ebony, leaving her with her parents in Bandung, far away from school friends or others with whom she might have developed a relationship. While it is not clear how long Ms Puspa was overseas, the evidence indicates it was fairly close to one year. At that time, Ebony was five years of age. Since then, it is clear that Ms Puspa has had at least two further partners and has travelled to Australia with at least one of those, without any regard to Ebony.
The most disturbing aspect of the conflict between Mr Silva and Ms Puspa is the effect this has had on Ebony’s psychological well-being as described by Dr McIntosh. Dr McIntosh is a medical practitioner and competent to express the views he has. In interviewing Ebony, he took care not to influence her account of concerns she had not only for her psychological well-being but also her physical safety. Furthermore, Ms Puspa has plainly indicated that she would consent to an Australian passport being issued to Ebony if Mr Silva paid her $500,000 AUD. In my opinion, irrespective of the context in which that statement was made by Ms Puspa, it amplifies the concerns Dr McIntosh has expressed about Ebony’s well-being should she remain in Indonesia. While I am acutely conscious of the fact that Ms Puspa was not given the opportunity to give evidence on the hearing of this matter, I have no reason to doubt the statements made by Ebony to Dr McIntosh. There was no evidence of coercion or rehearsal by Mr Silva.
There was no evidence that Mr Silva would not permit Ms Puspa access to Ebony should she be allowed to travel to Australia. Furthermore, at least according to Ms Puspa, Ebony has an Indonesian passport and therefore if she wanted to travel to Indonesia from Australia at any time, there should be no difficulty in making suitable arrangements. Ebony would not need a visa to go back to Indonesia. As the situation presently exists, Ebony is trapped in Indonesia regardless of her wishes or the wishes of her grandparents in Australia. The granting of an Australian passport to Ebony would release her from the confines in which she now finds herself and would not cause her to become trapped in Australia should she wish to return to Indonesia. It seems to me that the grant of an Australian passport would be a decision consistent with Article 10 of the CRC enabling Ebony to have direct contact with both parents while respecting her right to leave any country and to enter her own country, be it Australia or Indonesia.
Relying essentially on the evidence of Dr McIntosh, I find that Ebony’s psychological and possibly physical welfare would be adversely affected if she were not permitted to return to Australia.
A final concern expressed by Ms Graves was that if I were to find that the Minister’s discretion was enlivened under s. 11(2) of the Passports Act to grant an Australian passport where both parents have not given consent to that issue, I should refuse to exercise the discretion on the ground set out in s. 11(3). That is, I should find that the matter should be dealt with by a court. Respectfully, I cannot agree to that course. As Ms Graves correctly submitted, currently there are no binding parenting orders made either by an Australian or Indonesian court.
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.
I should just make one concluding remark regarding the s. 37 documents prepared by the solicitors for the Minister. I have found them extremely difficult to navigate due to the multiple copies of many documents included. There is no logical chronology and the grouping of documents under various general headings has simply resulted in multiple duplications of attachments. This should be avoided in future.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

..............................[sgd]..........................................
Associate
Dated: 17 August 2017

Date of hearing: 31 March 2017

Advocate for the Applicant: Ms J. Silva

Advocate for the Respondent: Ms C. Graves

Solicitors for the Respondent: Minter Ellison

[2017] AATA 1285

17 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Consent

Breach

Standing

Remedies

Procedural Fairness

Date of hearing:	31 March 2017
Advocate for the Applicant:	Ms J. Silva
Advocate for the Respondent:	Ms C. Graves
Solicitors for the Respondent:	Minter Ellison