Singh and Minister for Foreign Affairs - [2025] ARTA 265

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…

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.

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Details

Case: [2025] ARTA 265
Decision Date: 17 March 2025

CaseChat Overview and Summary

The case of Singh and Minister for Foreign Affairs involved an Australian citizen who applied for a passport but was refused due to the consent of one of the parents not being obtained. The applicant, a child, had a divorced father who refused to consent to the issuance of the passport. There were no court orders in place regarding parental responsibility for the child. The legal issue before the court was whether exceptions apply to allow the issuance of a passport to a child without parental consent or a court order. The court had to determine whether a substantial period of no contact between the child and the non-consenting parent existed, whether the child's welfare would be adversely affected if unable to travel internationally, and whether the discretion should be exercised to issue the passport.

The court examined the statutory provisions and relevant case law to address these issues. It found that the statutory exceptions for issuing a passport to a child without parental consent were not applicable in this case, as there was no evidence of a substantial period of no contact or that the child's welfare would be adversely affected if unable to travel. The court also considered the welfare of the child and the importance of maintaining a relationship with both parents. Ultimately, the court concluded that the decision to refuse the passport was reasonable and affirmed the decision under review.

The court's reasoning was based on the lack of evidence to support the exceptions and the importance of maintaining a relationship with both parents. The court held that the decision of the Minister for Foreign Affairs was not unreasonable and was in accordance with the law. The final orders of the court were that the decision under review was affirmed, and the applicant's application for a passport was dismissed.

Orders