TYRQ and Minister for Foreign Affairs - [2024] AATA 316

TYRQ and Minister for Foreign Affairs [2024] AATA 316 (29 February 2024)
Division:GENERAL DIVISION
File Number(s): 2021/0114
Re:TYRQ
APPLICANT

AndMinister for Foreign Affairs
RESPONDENT

AndZQKF
OTHER PARTY

DECISION
Tribunal:Senior Member G Lazanas
Date:29 February 2024
Place:Sydney

The decision under review is affirmed
...........................[Sgd].............................................
Senior Member G Lazanas
Catchwords

PASSPORT – Australian citizen refused a passport – where applicant is a child – where applicant is residing with mother in China – 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 evidence of family violence – whether abduction of child – whether child requires passport to continue to legally reside overseas – 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
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth) s 4AB
Cases
LFRS and Minister for Foreign Affairs [2021] AATA 79
LK v Director General, Department of Community Services [2009] HCA 9
Re Drake ad Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179
Secondary Materials
Explanatory Statement to the Australian Passports Determination 2015
POL022013 Contact between the child and the non-consenting person - definition
REASONS FOR DECISION
Senior Member G Lazanas
29 February 2024

The issue in these proceedings is whether a passport should be issued to an Australian boy referred to by the pseudonym TYRQ (or W in these reasons), aged 11, pursuant to the terms of the Australian Passports Act 2005 (Cth) (the Act). W is represented in these proceedings by his mother (the mother) with whom he is living in China.
On 15 December 2020, a delegate of the respondent (the Minister) decided to affirm an earlier decision of a different delegate dated 11 May 2020 who refused the mother’s application for W to be issued an Australian passport.
For the reasons that follow, the Minister’s decision to refuse to issue a passport to W was the correct or preferable decision. The general rule is that the Minister must not 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. There are exceptions to this rule. As set out below, while W satisfied certain exceptions, it is nevertheless not appropriate to exercise the discretion to issue W a passport.

THE FACTUAL BACKGROUND

The following findings are based on the respective Statements of Facts, Issues and Contentions filed…

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: [2024] AATA 316
Decision Date: 29 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by TYRQ, a child, for an Australian passport. The applicant, an Australian citizen, resided in China with their mother. The father, who was divorced from the mother, refused to consent to the child being issued with a passport. There were no existing court orders concerning parental responsibility for the child. The AAT was asked to review the Minister for Foreign Affairs' decision to refuse the passport.

The primary legal issues before the Tribunal were whether any exceptions to the requirement for parental consent applied for the issuance of a passport to a child in these circumstances. Specifically, the Tribunal had to determine if there was a substantial period of no contact between the child and the non-consenting parent, evidence of family violence, or if the child had been abducted. Furthermore, the Tribunal considered whether the child required the passport to continue to legally reside overseas, whether the child's welfare would be adversely affected by an inability to travel internationally, and whether the discretion to issue a passport should be exercised in the applicant's favour.

The Tribunal affirmed the Minister's decision, finding that the exceptions to the parental consent requirement were not met. The evidence did not establish a substantial period of no contact, family violence, or abduction. While acknowledging the child's need to travel for residency purposes and the potential impact on their welfare, the Tribunal concluded that these factors, in the absence of the statutory exceptions, did not warrant the exercise of discretion to issue the passport without the father's consent or a court order.

Orders