Singh and Minister for Foreign Affairs
[2025] ARTA 265
•17 March 2025
Singh and Minister for Foreign Affairs [2025] ARTA 265 (17 March 2025)
Applicant/s: Andrew Zein Singh
Respondent: Minister for Foreign Affairs
Tribunal Number: 2024/5789
Tribunal:General Member L McBride
Place:Sydney
Date of decision: 17 March 2025
Date of written reasons: 24 March 2025
Decision:For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the Minister’s decision to refuse an Australian passport to the Applicant.
The decision was given orally on 17 March at 12.10 pm
Statement made on 24 March 2025 at 4:19pm
Catchwords
PASSPORT – Australian citizen refused a passport – where Applicant is a child – where consent for child to be issued with a passport refused by the father – where parents divorced – where no court orders in relation to parental responsibility for child – whether exceptions apply for issue of passport to child without parental consent or court order – whether substantial period of no contact between child and non-consenting parent – whether child’s welfare (physical or psychological) would be adversely affected if unable to travel internationally – whether discretion should be exercised – decision under review affirmed
Legislation
Australian Passports Act 2005 (Cth) ss 7, 11
Australian Passports Determination 2015 (Cth) s 10
Cases
FCMX v Minister for Foreign Affairs [2017] AATA 740
HGPV and Minister for Foreign Affairs [2023] AATA 339
LFRS and Minister for Foreign Affairs [2021] AATA 79
Re Drake ad Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179
ZQKF and Minister for Foreign Affairs [2024] AATA 316
Secondary Materials
Explanatory Statement to the Australian Passports Determination 2015
POL022013 Contact between the child and the non-consenting person - definition.
POL 028413 Physical or psychological welfare would be adversely affected if not able to travel internationally – application of exception
Statement of Reasons
PROCEDURAL HISTORY OF THE MATTER
Section 11(1) of the Australian Passports Act 2005 (Cth) (the Act) imposes a mandatory obligation on the Minister not to issue an Australian passport to a child unless each person who has ‘parental responsibility’ has consented, or there is a court order permitting the child to have a passport. Section 11(2) of the Act grants the Minister a discretion to issue an Australian Passport only if one of the circumstances in s 11(2) the Act are found to exist.
The issue in these proceedings is whether a passport should have been issued to the Applicant, Master Andrew Zein Singh, an Australian boy now aged 11, pursuant to the terms of section 11(2) (a) or (b) of the Act. The Applicant is represented in these proceedings by his mother Ms Indri Puspitasari (the mother).
On 26 February 2024 the mother lodged with the Department of Foreign Affairs (the Department) an application attaching a Form B-9 (Application for an Australian Travel Document -Child without full consent or an Australian court order permitting the issue of a travel document).
On 15 April 2024 the mother lodged with the Department her visa documents, travel documents and housing documents. On 16 April 2024 the mother lodged further documents requested by the Department, including a Certificate by a family dispute resolution practitioner under s 601 of the Family law Act 1975 arranging for a dispute resolution meeting to take place with the Applicant’s parents
On 17 April 2024 Mr Andrew Singh, junior, the Applicant’s father (the father) received a phone call from a representative of the Department seeking his view on the issue of an Australian passport to the Applicant. The father advised the Department’s representative “No, I am not consent at this stage, I have to seek advice from my lawyers”. The father instructed the department to deal with his lawyers.
On 22 April 2024, on the basis of the supporting material filed by the mother with the passport application and the father’s response a delegate of the Respondent (the Minister) made the decision to refuse the application to issue an Australian passport to the Applicant.
On 10 May 2024, Mr Marchesani of Hughes Legal Pty Ltd, the father’s lawyer, wrote to the mother listing the further information the father required to consider the proposed travel arrangements. One of the nonnegotiable conditions imposed by the father before agreeing to the issue of the passport was the payment of $10,000 into Hughes Legal’s trust account. The letter stated the payment was a bond that would be repayable on the Applicant’s return to Melbourne (T1 p10). In short, the father was not opposed to the mother’s travel plans but required more information about the trip and the payment of a rather large sum of money as “surety to ensure (the applicant’s) return to Australia”.
On 30 May 2024, Hughes Lawyers wrote to the mother to advise her the father was “satisfied with your response and will execute the forms relating to (the applicant’s) passport on receipt of the money into our trust account”. It was unclear whether the mother did not have the financial ability to deposit such a large amount into the lawyer’s trust fund, did not trust the father to instruct his solicitors to return the money on the mother’s evidence that the Applicant had returned to Melbourne Australia, or objected to the level of control the Applicant’s father was still able to assert over her and the Applicant. In any event, the Applicant did not deposit the required $10,000 into Hughes Lawyer’s trust account and the father refused to consent to the Minister issuing a passport to the Applicant.
On 25 July 2024, a different delegate of the Minister reconsidered the material before the Department including additional documents in support of the application provided to the Department by the mother on behalf the Applicant. After considering the material, the second delegate affirmed the earlier delegate’s decision (T20, T24, T25, T28, T29, T34, T36, T39).
On 12 August 2024, the mother applied to the Tribunal for a review of the internal review decision.
On 31 August 2024, the Family Dispute Resolution with a Family Dispute practitioner under s 601 of the Family Law Act 1975 (Cth) was to take place to resolve the dispute between the mother and the father (the parents) over the issuing of a passport to the Applicant. The father refused to take part in the dispute resolution process. In the circumstances the arranged dispute resolution meeting could not proceed. (T 47 p 200)
On 11 November 2024, the Applicant’s father confirmed with the Minister that he did not consent to the passport being issued to the Applicant and he refused to be involved in the Tribunal proceedings.
It was common ground:
a.the father did not consent to the Applicant having an Australian passport/travel document, and
b.there were no valid court orders permitting the Applicant to have an Australian passport/travel document or to travel internationally or see a person outside Australia.
Consequently, the only matter for the Tribunal to decide was whether the Minster’s discretion to issue a passport under Section 11(2)(a) and (b) was enlivened (subsections 11(c) and (d) are not relevant for present purposes).
Section 11(2) operates to give the Minister a discretion to issue a passport even if ss (11) (a) and (b) are not satisfied.
For the reasons set out below, the Tribunal was satisfied, on the evidence before the Tribunal, that at the date the Minister made the decision to refuse the Applicant an Australian passport the ‘circumstances’ set out in s 11(2) did not exist. Consequently, the Minister’s discretion to issue an Australian passport to the Applicant was not enlivened.
THE FAMILY BACKGROUND
The Applicant was born in Jakarta, Indonesia on 15 August 2013. The Applicant’s parents are divorced. The Applicant’s parents have parental responsibility for the child under s 11(5) of the Act. There was no valid Court order provided to the Department by either parent removing parental authority from one of the parents.
It appeared from the mother’s oral and written statements and the documents filed by the mother as “supporting documents (T47, T48) that:
a. The mother lived with the Applicant in Indonesia for the better part of 3 years after the Applicant’s birth. The father having returned to work in Melbourne, Australia shortly after the Applicant’s birth.
b. The father’s mother (the grandmother) travelled to Indonesia to assist the mother look after the Applicant, but the pair did not get on and the grandmother returned to Australia.
c. The Applicant and the mother travelled to Australia in 2014 to live with the father and the father’s family but because of a “conflicted parental separation”, the Applicant and the mother returned to Indonesia where they resided in 2015. At some stage in 2016, the mother and the Applicant returned to Australia to live with the father and his family before departing again in 2016 to live in Indonesia. (T24 p 130)
d. During the period the mother and the Applicant lived in Indonesia the father did not provide the mother with financial support for the Applicant or herself.
e. As a result, the mother struggled financially. The mother found she was unable to pay many of her bills, including for rent and electricity and the Applicant and the mother were often homeless.
f. At the request of the father and her former father-in-law (the grandfather) and because of the financial difficulties the mother was experiencing, in 2017 the mother agreed she and the Applicant would return to Australia to live with the father and his family in Melbourne.
g. Upon arrival at the international airport in Melbourne, the mother contacted the father who did not answer the phone. Instead, the father sent the mother a text message telling her to return to Indonesia, he no longer wished to reunite with the Applicant and the mother.
h. Because of the father’s actions, the Applicant and the mother were left homeless and lived in “crisis accommodation” in Melbourne for about 4 years. At the time the mother was residing in Australia on a temporary entry visa but worked as a cleaner to provide for the Applicant and herself. (T28- p.153, T24 -pp,93, 94,122,130).
i. In May 2016 a paediatrician at the Alfred Hospital in Melbourne diagnosed the Applicant with autism spectrum disorder. As a result, the Applicant was given access to development support services available with the National Disability Insurance Scheme (NDIS) and specialist education services at the Southern Autistic School (T24-p 140). The Applicant attended the “special needs” school until this year when he commenced at a “mainstream” school.
j. The mother told the Tribunal the Applicant was regarded as very clever by his new teachers, demonstrated talent at maths and was fascinated with Japan having become friendly with a Japanese family who were also living in crises accommodation at the same time as the Applicant. Clearly, the Applicant has blossomed under the assistance given to the Applicant by the NDIS. If the Applicant’s diagnosis as suffering from autism remains current, the Applicant is a high functioning example of that disability.
k. At some stage in around 2021 or 2022, the mother’s application for permanent residency was refused by the Minister for Immigration. The mother currently resides in Australia on a protection visa. One of the conditions imposed by the Australian Government under the protection visa issued to the mother is she is not able to enter Indonesia.
n or around August 2022, the mother was facing deportation from Australia for overstaying her temporary entry visa. To prevent deportation, the mother arranged for Dr Jill Sewell; a developmental behavioural Paediatrician at the Royal Childrens Hospital Melbourne to provide a letter in support of her remaining in Australia. Dr Sewell’s letter dated 9 August 2022 stated that if the Applicant were “to be removed with his mother to her previous country of Indonesia, he would have no access to specialist education services and specialist development disability services which are not publicly funded and therefore not accessible to most people. This would be a deprivation to his rights to have the opportunity to develop to his fullest extent”. (T23 p 140)
l. The father initially blocked the mother from being the primary carer on the National Disability Insurance Scheme (NDIS) access. More recently the mother has been listed as the primary caregiver under the NDIS. (T47 p 197)
m. The mother now has a permanent job as a case manager at a family violence organisation established to deal with family violence in multicultural families. In July 2024 the mother enrolled in post graduate studies at RMIT to study ““Sex, Gender and Justice”. Since arriving in Australia in 2017 and living in crisis accommodation, the mother has worked diligently to save enough money to buy a “small house’” in Melbourne where the mother and Applicant now live. The mother has purchased a “reliable car” to transport the Applicant to and from his appointments. The mother has managed to save enough money to book and pay for an oversea holiday for the Applicant and herself. (T47 p.189), (T47 pp 187,188,196)
n. The Applicant lives with his mother and has had very limited contact with his father since the Applicant returned to Australia in 2017 at the age of 4. (T25)
o. The last contact the Applicant had with the father was in January 2023 when the mother, at the Applicant’s request, took the Applicant to see his father at the father’s house. The visit lasted for approximately 15 minutes.
p. In February 2023, at the Applicant’s insistence, the mother again took the Applicant to the father’s house to see him. On that occasion the father and the father’s sisters told the mother and the Applicant to leave immediately and threatened to call the police if they ever returned to the house. Since the visit in February 2023, the father has blocked all social media and other forms of communication from the mother and although unclear, possibly from the Applicant. (T47 p 198)
THE RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
19.An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister (s 7(1) of the Act). However, the entitlement created by s 7(1) is affected by s 7(2), which relevantly states that an Australian citizen’s entitlement to be issued with an Australian passport is affected by Division 2 in Part 2 of the Act.
20.Division 2 of Part 2 of the Act is headed ‘Reasons the Minister may refuse to issue an Australian travel document’. Division 2 Subdivision A deals with the issue of passports to minors. Section 11 is in the following terms:
“11. Reasons relating to child without parental consent or court order for travel
(1) The Minister must not issue an Australian travel document to a child unless:
(a) each person who has ‘parental responsibility’ for the child consents to the child having an Australian travel document; or
(b) an order of a court of the Commonwealth, a State or a Territory permits:
(i) the child to have an Australian travel document; or
(ii) the child to travel internationally; or
(iii) the child to live or spend time with another person who is outside Australia.
(2) Subsection (1) does not prevent the Minister from issuing an Australian travel document to a child if:
(a) circumstances specified in a Minister's determination as special circumstances exist; or
(b) the Minister is satisfied that the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally; or …“….. (emphasis added)
21.Section 10(3) of the Australian Passports Determination 2015 (Determination) (T50) sets out the ‘special circumstances’ for the purposes of s 11(2)(a) of the Act. Section 10(3) of the Determination, is in the following terms:
(3) The circumstances are the following:
(a) the Minister has not been able to contact the non-consenting person for a reasonable period;
(b) the non-consenting person is either or both of the following:
(i) missing;
(ii) presumed dead;
(c) the non-consenting person is medically incapable of providing consent;
(d) there has been no contact between the child and the non-consenting person for a substantial period before the application is made;
(e) …
(f) a family violence order has been issued against the non-consenting person; …”
22.When there has been no contact between the child and the non-consenting person for a substantial period, the Determination allows the Minister to issue a passport to a child without the consent of each person with parental responsibility. (emphasis added)
23.The mother contended there had been no substantive contact between the Applicant and the father since November 2022 and provided a list of communication attempts between the mother on behalf of the Applicant and the father. (T29 p 156)
24.The term ‘substantial period’ is not defined in the Act or the Determination. The Explanatory Statement issued with the Determination (T51) at [49], provides “in most cases, a substantial period during which there has been no contact is considered to be up to two years, but may be less depending on the age of the child and the circumstances of the application.”
25.As Deputy President Lazanas stated in TYRQ and Minister for Foreign Affairs [2024] AATA 316 at [32], “The Department has issued a policy to assist decision makers to determine whether s 10(3)(d) of the Determination is met. Although the Tribunal is not bound to apply the policy, government policy should be given due consideration unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179). The policy referred to as ‘POL022013 Contact between the child and the non-consenting person – definition’ relevantly states that “[c]ontact includes all forms of contact (for example in person, telecommunications, social media and any other avenue of communication), excluding incidental contact.... Unreciprocated contact is still contact”. (emphasis added) (see also and HGPV and Minister for Foreign Affairs [2023] AATA 339 at [121] and LFRS and Minister for Foreign Affairs [2021] AATA 79 at [60]).
26.On the mother’s own evidence, there had been contact as defined for the purposes of POL022013 between the Applicant and the father within the last 2 years. Specifically, the application for the passport prepared by the mother under heading 5 “Contact between the Child and other person who may have parental responsibility” the mother wrote “last spent time with the child was & January 2023 for 15 minutes”. (T4 p.29) The mother confirmed that the last contact of any type between the father and the Applicant took place in February 2023 when she took the Applicant to the father’s house because the Applicant had insisted, he wanted to see his father, but the Applicant and the mother were refused entry to the house. (T8/60, T47/197)
27.The evidence before the Tribunal and the Minister was:
a. the last contact between the Applicant and the father was 12 months prior to the mother lodging the passport Application,
b. the Department had sought the father’s views and the father expressly advised the Department he did not consent to the issue of a travel document to the Applicant, and;
c. a copy of Hughes lawyers’ letter to the mother had been provided to the Department and the surety or bond required had not paid by the mother.
28.In the above circumstances the Minister could not form an opinion that there had been no contact between the Applicant and the father for a substantial period. Minimal contact, even if not reciprocated, is not tantamount to no contact.
29.The Minister is bound to exercise the discretion vested in him in a manner that is consistent with the fundamental objectives of the provisions in the Act that deal with the issue of passports to children. The overarching purpose of those provisions is to protect the rights of persons with “parental responsibility” (see [36] and [42] of the Explanatory Statement to the Determination). The Minister was on notice of the father’s position and of the father’s concern, whether genuine or not, that the father was concerned the mother would not return to Australia with the Applicant
FAMILY VIOLENCE ORDER HAS BEEN ISSUED AGAINST THE NON-CONSENTING PERSON
30.The Tribunal accepts the mother’s evidence that in the past there have been incidences of domestic abuse by the father. It is well documented that domestic abuse is not always physical. Coercive and controlling behaviour is at the heart of domestic abuse.
31.The Tribunal accepts the mother’s evidence that the father intimidated, frightened, punished, and humiliated, both the mother and the Applicant. The mother’s evidence of being forced to live with a 4-year-old child in crisis housing for 4 years is just one example of the father’s “controlling behaviour”. Withdrawing his attention and refusing to see the Applicant is another.
32.The extent of the father’s control was evident when the father insisted on a large sum of money be paid as surety to ensure the Applicant’s return to Australia, when all the objective evidence was the Applicant, and the mother would return to Australia after a brief holiday. If for no other reason, the availability of the high level of care the Applicant received under Australia’s NDIS system should have been sufficient for the father to believe the Applicant and his mother would be returning to Australia after their holiday. If that were not sufficient reason, the mother owns real property in Melbourne where she and the Applicant live, the mother has a full time position as a case manager at a family violence organization in Melbourne, the Applicant now attends a main stream school and the mother has applied for Australian Citizenship an opportunity the mother would forfeit if she failed to return to Australia with the Applicant. The Tribunal doubted the genuine nature of father’s concern for the welfare of the Applicant. The Tribunal perceived the requirement of a bond as a condition of the father giving his consent to the issue of a passport to the Applicant was simply a more sophisticated way of limiting the mother’s freedom and independence.
33.Notwithstanding the above observation, Determination s.10(3)(f) does not apply in the present circumstances as there was no evidence before the Minister or the Tribunal that a “family violence order has been issued against the father”. Accordingly, the father’s coercive behaviour towards the mother and Applicant is not a ‘special circumstance’ for the purposes of 10(3) (f) of the Determination.
34.Section 11(2)(b) states that the Minister may issue a passport to a child if the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally.
35.The mother’s evidence, which the Tribunal accepts, was:
a. the Applicant was a child with special needs,
b. the mother had worked diligently to “ensure her son receives the best opportunity for growth”,
c. the mother had promised the Applicant, while they were living in crisis accommodation, that when she had money, she would take him to visit Japan to see a Japanese friend the Applicant had made while living in a crisis shelter, visit Disneyland and see the native Japanese monkeys.
d. the mother’s motivation was to provide the Applicant with an opportunity “to grow socially, experience new cultures, learn about the world beyond what he has known, enrich his language vocabulary, and development” and;
e. the mother wanted to help the Applicant build the social and life skills he would need to survive.
36.While the above are all admirable desires for a parent the only issue relevant to the Minister is whether the Applicant’s physical or psychological welfare would be adversely affected if the Applicant were not able to travel internationally.
37.POL028413 (T53/287) relevantly provides:
· Risk of physical or psychological harm to the child includes any detrimental effect of a significant nature on a child’s physical, psychological or emotional well-being. Harm may be caused by physical or emotional abuse, neglect and/or sexual abuse of exploitation.
· Risk to the child’s physical welfare includes cases where the child’s medical needs are life threatening and cannot be met if the child is unable to travel internationally, as the child’s current country of location does not provide (or the child cannot access) the needed medical care.
38.Any application made under s11(2) (b) of the Act is required to be accompanied by a written statement from a registered healthcare provider. The healthcare provider must be registered with a registration authority as a member of a particular health profession. The policy also states:
· 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.
39.The “risk” that the healthcare provider must impartially state is defined in the extract of POL028413 above at [35]. POL028613 (T53/289) then provides that:
· The delegate must be satisfied that the child’s welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally.
· While it is expected that the adverse effects on the child will be more than the usual disappointment experienced, the delegate does not have the relevant expertise to dispute a statement provided by an acceptable healthcare provider if that statement specifically addresses the adverse effect of the child’s welfare should the child not be able to travel internationally.
· The delegate must assess the full circumstances of the case (i.e. purpose of travel, whether the non-lodging person is refusing to consent, etc.) and, where this exception has been met, decide whether they wish to exercise their discretion in light of any other information available.
· For example, it may not be appropriate to exercise the delegate’s discretion where the lodging person is wishing to permanently relocate the child against the wishes of another person with parental responsibility.
· Delegates must also ensure that the medical statement has been verbally confirmed with the author and, where the healthcare provider in Australia has failed to detail their professional registration number and national registration body on the statement, a verbal confirmation of their registration has also been sought. (emphasis added)
40.On 22 April 2024, the mother in her correspondence with the Minister stated that it was “imperative for his well-being and development to have access to necessary medical and education resources, which may require international travel”. (T19/90)
41.The mother also stated, “the Applicant is autistic” (T21/105) and provided medical evidence confirming a diagnosis of autism and other neurodevelopmental disabilities. (T24)
42.However, the Applicant’s learning and behavioural difficulties, as difficult as they are for the mother, are not the test the Minister needs to consider. It is evident from the wording of POL028413 the test imposed on the Minister has a very high threshold. The Applicant’s understandable disappointment at not being able to travel in 2024 fails to meet that threshold.
43.In essence, the Applicant must satisfy the Minister that the Applicant will suffer a detrimental effect of:
a. a significant nature should he be unable to travel internationally at age 11 for a brief holiday, and;
b. such a detriment is unable to be treated in Australia as opposed to some other unidentified country.
44.Feelings of disappointment do not satisfy the requirement in s 11(2)(b) of the Act (see: FCMX v Minister for Foreign Affairs [2017] AATA 740 at [24], LFRS and Minister for Foreign Affairs [2021] AATA 79 at [63]).
45.There was no evidence before the Tribunal that would support the Minister exercising the discretion vested in the Minister under s 11(2) (b) of the Act, even if the Minister was minded to do so.
46. The evidence before the Tribunal was the Applicant’s “special needs” were being treated and were well provided for in Australia. The Tribunal agrees with the submissions made by the Respondent at [39]:
“An exercise of the discretion in this case would be contrary to the fundamental objectives of the provisions in the Act relating to the issuance of passports to children, which include to protect a child from international parental child abduction and to safeguard the rights of persons with “parental responsibility.” (TYRQ and Minister for Foreign Affairs [2024] AATA 316 at [35].
CONCLUSION
The Tribunal agrees with the Respondent’s submissions: the requirements of ss.11(1) (a) and (b) are not met and none of the circumstances arising under s11 (2) are applicable. Furthermore, even if s.11(2) could apply in the present circumstances it would not be appropriate for the Minister to exercise the discretion vested in the Minister to issue a passport under s 11(2) of the Act.
DECISION
48. The decision under review is affirmed.
| I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for the decision herein of General Member L McBride. |
.........................[SGD]...........................
Associate
Dated: 24 March 2025
| Date(s) of hearing: | 17 March 2025 |
| Applicant: | By Microsoft Teams |
| Solicitors for the Respondent: | A. Cunynghame, Sparke Helmore |
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