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

1. 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.

2. 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.

3. 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

1. The following findings are based on the respective Statements of Facts, Issues and Contentions filed on behalf of W and the Minister, as well as the T-documents and the voluminous evidence adduced. Several of the witnesses also gave oral evidence and were cross-examined at length.

The family circumstances

1. W was born in January 2013 and is the child of the mother and ZQKF, who is the Other Party to these proceedings (the father). W is an Australian citizen by descent. His parents were both born in China. However, the father has lived in Australia since 1991 and the mother began living in Australia in 2008. The mother continued to live in Australia until 2014 when she left for China, and obtained Australian permanent residency which has since lapsed. While she lived in Australia, the mother went on yearly trips to China, including one of about 12 months.

2. W’s parents were married in October 2008 and they separated in or about July 2014. The child has lived with the mother in China since then. A divorce order was made in November 2015 which took effect from 27 December 2015.

3. The circumstances in which the child left Australia in about July 2014 and began living in China are disputed. The father’s position is that the mother abducted the child from Australia and retained him there without the father’s consent, whereas the mother stated the father acquiesced to her decision to return to China with the child. Another issue which is disputed is whether there was any family violence. I will return to these issues shortly when examining the evidence.

The passport applications and procedural history

1. W’s first Australian passport was issued with the consent of both of his parents on 6 August 2013. That passport expired on 5 August 2018.

2. On 25 April 2018, the mother lodged an application for the issuing of a new passport to W. That application was refused after the Department became aware that the mother had forged the father’s signature on the application.

3. On or about 12 March 2020, the mother lodged a further application for a passport to be issued to W.  In support of that application, the mother contended that a passport should be issued even though the father did not consent. The submissions the mother made in support included the following:

   My child is currently residing in China with myself and my parents. [The father] lives in Australia with his new wife and his child from his new marriage. This has been the general living arrangement since 2014 and my ex-husband has not paid any child support. The child loves his grandparents and has settled very well in China.

   The child’s Australian passport expired in August 2018 and since then he has been residing in China illegally as he could not apply to extend his visa without a current passport. Without a current passport, the child cannot apply for a visa to remain in China and cannot regularise his status in China. Further, the child is now 7 years of age and needs to enrol in a school. However, he cannot enrol in a school because he does not have a valid visa in China and a current passport.

   The child has seen his biological father only intermittently in the last 7 years and does not have a bond with his biological father. The child relies heavily on me as his primary carer and if the child is separated from me, it is highly likely that the separation will have serious negative psychological impact on the child.

4. In April 2020, the father confirmed to the Department that he did not consent to a passport being issued to W.

5. On 11 May 2020, a delegate of the Minister refused the passport application for the following reasons:

   (a)section 11(1)(a) of the Act was not met, as the father who was considered a person with “parental responsibility” for W under s 11(5) of the Act did not consent to the grant of an Australian travel document to W;

   (b)section 11(1)(b) of the Act was not met as there were no court orders permitting the child to hold a passport, travel internationally, or live or spend time with a person overseas; and

   (c)the delegate was not satisfied that any circumstances specified under s 11(2) of the Act applied.

6. With respect to the abovementioned reasons, it is not in dispute that the father is W’s biological parent and therefore has “parental responsibility” as defined in s 11(5) of the Act and has not ceased to have parental responsibility because of an order made under the Family Law Act 1975 (Cth) (the FL Act). It is also not in dispute that the father does not consent to the grant of a passport to W and, furthermore, that there are no court orders permitting the child to hold a passport, travel internationally, or live or spend time with a person overseas.

7. On 8 June 2020, the mother applied to the Minister for review of the original decision under the Act. The father continued to withhold his consent and expressed concern that if a passport was issued to the child, then the mother would remove the child to a third country with the result that he would “lose [his] only hope to meet [his] boy”.

8. On 15 December 2020, the delegate affirmed the original decision not to issue an Australian passport to W for similar reasons as were given by the original decision-maker.

9. On 11 January 2021, the mother applied to the Tribunal for review of that decision on behalf of W.

10. On 23 March 2021, the Tribunal made an order joining the father as a party to the proceedings.

THE ISSUES TO BE DETERMINED

1. The key issues to be determined by the Tribunal can be categorised as follows.

2. First, whether any of the circumstances covered by s 11(2) of the Act apply. These include any of the “special circumstances” referred to in the Australian Passports Determination 2015 (Cth) (the Determination) which would enable the Minister to issue a passport to the applicant without consent from the father (s 11(2)(a) of the Act). The “special circumstances” argued by the mother are covered by the following paragraphs of s 10(3) of the Determination:

   (a)paragraph (d) - there has been no contact between the child and the non-consenting person for a substantial period before the application is made;

   (b)paragraph (g) - if the child is outside Australia - there is evidence of family violence; and

   (c)paragraph (i) - 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.

3. Another circumstance separately covered by s 11(2)(b) of the Act and which was canvassed by the mother is whether W’s welfare (physical or psychological) would be adversely affected if he were not able to travel internationally.

4. Secondly, if any circumstance under s 11(2) of the Act does apply, whether the discretion to issue a passport to W should be exercised.

THE RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

1. 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.

2. Division 2 of Part 2 of the Act bears the heading ‘Reasons the Minister may refuse to issue an Australian travel document’. Subdivision A is concerned with ‘Children’ and s 11 in Division 2 Subdivision A of the Act relevantly states, as follows:

   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

   (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. W relied on s 11(2) of the Act and the paragraphs in bold in the above extract.

4. With reference to the “special circumstances” referred to in s 11(2)(a) of the Act, these are prescribed in s 10(3) of the Determination, as follows:

   (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) 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;

   (f) a family violence order has been issued against the non-consenting person;

   (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; Authorised Version F2017C00949 registered 06/10/2017 Australian travel documents Part 2 Reasons the Minister may refuse to issue an Australian travel document Division 2 Section 11 Australian Passports Determination 2015 7 Compilation No. 4 Compilation date: 6/10/17 Registered: 6/10/17

   (iii) contact between the child and another person outside the country where the order was made;

   (i) 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;

   (j) an order of a State or Territory court, made under a child welfare law, grants parental responsibility or guardianship of the child to:

   (i) a parent of the child other than the non-consenting person; or

   (ii) a person other than a parent of the child.

5. As stated above, W relied on the circumstances referred to in paragraphs (d), (g) and (i) of s 10(3) of the Determination which are set out in bold in the above extract.

6. The provisions of the Determination must be viewed in the context of the following principles set out in the Explanatory Statement to the Australian Passports Determination 2015 (the Explanatory Statement to the Determination) at paragraphs [36], [42], [56] - [57]:

   36. The objectives of the child support provisions are to protect a child from international parental child abduction and to safeguard the rights of persons with parental responsibility.

   …

   42. Even if an applicant satisfies one or more of the special circumstances, the Minister may refuse to issue a passport to a child to meet the objectives of protecting a child from international parental child abduction or to safeguard the rights of persons with parental responsibility.

   …

   56. The Determination amends the 2005 Determination to include circumstances where a child is outside of Australia and the minister considers there is a need for the child to reside legally overseas. This provision is intended to protect children who had been residing lawfully overseas – sometimes for most, if not all, of their life – and where a passport is necessary to support the child’s continued lawful residence overseas. Possession of a valid passport is often a condition of a child’s visa. As such, a passport refusal has the potential to affect the child’s immigration status in that foreign country, including their ability to attend school or seek medical assistance.

   57. Importantly, this amendment is not intended to be used in cases where a child is subject to an abduction allegation.

DO ANY OF THE EXCEPTIONS IN THE ACT APPLY? IF SO, SHOULD THE DISCRETION BE EXERCISED?

1. As stated above, a number of exceptions were relied on, and it is appropriate to address them individually.

Has there been no contact between the child and the non-consenting parent for a substantial period before the passport application was made?

1. The first “special circumstance” relied on is in s 10(3)(d) of the Determination which states that there has been no contact between the child and the non-consenting person for a substantial period before the application is made.

2. The term “substantial period” is not defined in the Determination or the Act. The Explanatory Statement to the Determination relevantly states at [49] that “[i]n 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”.

3. 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”.

4. In LFRS and Minister for Foreign Affairs [2021] AATA 79 at [60] the Tribunal concluded that the time period as outlined by the Explanatory Statement to the Determination (two years) should be accepted in relation to the issue of what constitutes a substantial period for the purposes of s 10(3)(d). There was no contention that the standard should be departed from in the present case. The “application” referred to in s 10(3)(d) of the Determination is the passport application made to the Minister’s Department, being the March 2020 application by the mother for W.

5. The mother stated that the last contact between W and the father was in 2016. Although the father did visit W’s place of residence when he visited Beijing in 2017, he did not physically see W. The mother also stated that the father had never paid child support, and that from January 2017 the father had never bought W a birthday present or sent him a birthday card. The mother asserted that the father had not contacted W for more than two years due to the father’s inaction. Therefore, the father, being the non-consenting person has not had contact with W for a “substantial period”.

6. According to the father, the mother refused to open the door to allow the father to see W when he visited the mother and W in Beijing in January 2017. The father stated the lack of contact with W post-January 2017 was not by his choice and was forced upon him by the mother who removed W from Australia without the father’s knowledge and kept him overseas without the father’s consent. The father stated that the mother kept saying that that she would return to Australia but kept changing her mind. The father stated he did not buy presents for W from January 2017 onwards as the mother returned to the father all the toys and books he had previously purchased for W.

7. I accept that the passport application was made more than two years after the father last had contact or last attempted contact with the child and, therefore, the criterion regarding no contact for a “substantial period” is met. This is nevertheless not a case where I consider it is appropriate to issue a passport to the child on the basis that paragraph (d) of s 10(3) of the Determination is enlivened. To exercise the discretion in that way would be contrary to the fundamental objectives of the provisions in the Act relating to the issue of passports to children, in particular, to protect the rights of persons with “parental responsibility” (see [36] and [42] of the Explanatory Statement to the Determination extracted above).

1. This is especially the case where the father’s lack of contact with the child has not resulted from a failure by the father to initiate or seek out such contact. He travelled from Australia to China in January 2015 and again in January 2017 with a view to having such contact and, on that last occasion, the mother did not let him into the house to meet W. I accept the father’s evidence that the mother has “blocked [him] on all available channels of communication”, as the mother did not challenge this. Furthermore, I also accept the father’s evidence that he ceased attempting to contact W, as he believed his efforts would be futile in light of the mother’s actions.

2. I have taken into account that the father made efforts to visit W in Beijing and that he commenced proceedings in February 2017 seeking parenting orders in the Family Court of Australia, as strong evidence supporting his desire to have a relationship with W. The father later discontinued the proceedings based on legal advice about the Court’s want of jurisdiction.  The father also actively participated in these proceedings regarding W’s passport application further supporting his contention that he continues to take an active interest in the W’s life.

3. The reality is that the fact that the mother and the child are in China means that the father cannot seek parenting orders under the FL Act. He also cannot call in aid the provisions of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Child Abduction Convention) to have the child returned to Australia because China is not a signatory to the Child Abduction Convention. (See further below in relation to the child abduction allegations).

4. Accordingly, although I agree with the mother’s claim that there has been no contact between the father and W for a “substantial period”, it would not be appropriate for the Tribunal to exercise the discretion to issue a passport to the child on that basis.

Is there evidence of family violence?

1. The next “special circumstance” relied on is s 10(3)(g) which refers to the situation where, if the child is outside Australia, there is family violence. “Family violence” is defined in s 4AB(1) of the FL Act to mean violent, threatening or other behaviour by a person that “coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”.

2. The mother claimed that the father committed acts of family violence, including during his visits to China. In her affidavit affirmed in May 2018 in her Family Court proceedings, the mother stated there was family violence, including the father slapping her since 2008.  In relation to an incident in 2012, the mother stated “she was pushed to ground, was thrown to the bed when they had argument”. That incident is alleged to have taken place when the mother was 8 weeks pregnant when they had an argument and the father pushed her onto the bed and caused her to bleed from her vagina. The mother referenced these events in her two witness statements for these Tribunal proceedings.

3. On another occasion, in about May 2014, the mother stated that she and the father had an argument which caused him to start yelling at her and he also pushed her. The mother’s mother (W’s maternal grandmother) was holding W and, according to the mother, the father also swore at W’s maternal grandmother in Mandarin.

4. The alleged family violence incidents were also referred to in the statements of W’s maternal grandmother who claimed that the father had, on one occasion, yelled at her because she had asked the father to stop in a shopping centre to feed the child. W’s maternal grandmother had not, however, directly observed the father to have been physically violent or abusive towards the mother.

5. The mother testified that she did not expose the father’s violent behaviour at the time or when she applied for the passport for W in 2020 because she was trying to preserve the dignity of both parties and protect their child. She claimed to have been only 23 years of age when she suffered the domestic violence incidents, and she had no family or friends in Australia to whom she could turn to. She also had limited knowledge about the Australian legal system and did not know how to protect herself.

6. The mother argued that her evidence and that of W’s maternal grandmother, who was not cross-examined, was sufficient evidence of family violence. The mother also relied on the fact that the Australian police were called following an argument with the father. The mother explained that the attending police officers did not take any action as she told them they had heated arguments only, and the father was asked not to return to the home for a period of 24 hours.

7. The father denied the allegations of family violence. However, he accepted in cross examination that he and the mother had heated arguments and, on one occasion, the police were called.

8. The Minister’s legal representative observed that this is a situation of ‘he said, she said’ as regards the narratives given by the mother and the father. Additionally, although the evidence of W’s maternal grandmother tended to support the mother’s version of events, this was hearsay evidence. Furthermore, the fact that W’s maternal grandmother sided with the mother was not surprising, in particular, because the father did not get along with W’s maternal grandmother. Amongst other reasons, this appeared to be because of prior financial disputes, to which the father and W’s maternal grandmother both deposed in their respective statements.

9. There is no foreign family violence order nor any other independent evidence of family violence. As the allegation of family violence is a very serious one, in the absence of independent, probative evidence, I am not prepared to make any findings about the existence of family violence. In particular, I was not satisfied that any behaviour or actions, such as the verbal arguments were of a kind by “a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”  In this regard, I note that the mother and the father continued to directly communicate with each other after the mother left Australia for China in July 2014, including by daily video calls for a period of time, as well as spending time together as a family when the father visited the mother and W in Beijing in around December 2014 and January 2016.

10. The fact there were some inconsistencies in the father’s oral evidence about the incidents involving arguments, including as to the time of the day that the arguments took place, which might suggest the father did not give a reliable account is insufficient proof that there was family violence, and merely corroborates that heated arguments had taken place. There also appeared to be some inconsistencies in the mother’s evidence. Her testimony was that she had taken W to China “because of the family violence”. However, that statement was not reconcilable with her other statement that she left with W for China in July 2014 with the father’s acquiescence.

11. It is appropriate at this juncture to also deal with certain medical evidence that was adduced by the mother. I was not persuaded that the medical evidence supports the mother’s claim that the father pushed and hit her resulting in her needing to be taken to the doctor. None of the records before the Tribunal substantiate that claim. The mother’s patient health summary and obstetric ultrasound report state that an ultrasound on 6 June 2012 confirmed the mother’s early pregnancy of less than 5 weeks. The oral evidence of the father’s mother (W’s paternal grandmother) is consistent with the father’s evidence that he had called his mother to say that the mother had some blood spotting and asked his mother to take the mother to the doctor. The oral evidence of W’s paternal grandmother was that Dr Tse had examined the mother, sent her for an ultrasound and confirmed everything was fine and that the discussions with Dr Tse were in Mandarin. Therefore, the mother understood the discussions, contrary to the suggestion by the mother that she did not understand what was being discussed by the doctor with W’s paternal grandmother. In any event, there were no medical records to support the mother’s claim that she needed medical attention because of alleged family violence occasioned by the father.

12. Another report by a doctor, Associate Professor Watson, relied on by the mother also does not support the mother’s claim that her limb hemangioma was caused by family violence at the hands of the father. On the contrary, Associate Professor Watson stated there was “0% likelihood” that it was induced by any trauma and that hemangiomas are caused by genetic mutations.

13. I am circumspect about the mother’s reliance on another medical report prepared by Dr Le, a forensic, child and adult psychiatrist. Dr Le had been instructed and had assumed to be accurate the mother’s allegations regarding “multiple instances of physical violence and coercive control”. Dr Le also accepted at face value her representation to him that it was “due to her strong fear of domestic violence by her ex-husband and family conflicts” that led to her leaving Australia with W in July 2014.

14. Dr Le reported the child’s claim that he remembered seeing his father hit his mother when he was aged one or two. I prefer the opinion of Dr Lennings, a clinical psychologist, who noted that a child could not have any independent recollection of events he witnessed when he was aged 18 months, based on research in relation to child memory. Additionally, Dr Lennings considered the interview of W that was conducted by Dr Le by way of telehealth had a number of limitations including that W had not been interviewed on his own but was in the company of the mother, nor had any rapport been established with W.

15. In all the circumstances, I do not consider there to be sufficient evidence of family violence to satisfy s 10(3)(g) of the Determination.

Does W require a passport to travel internationally or continue to legally reside overseas?

1. Section 10(3)(i) of the Determination applies where, if the child is outside Australia, and 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. There was no suggestion that W needs to travel internationally because of any crisis, so the first part of this “special circumstance” does not arise.

2. The mother claimed that W needs a passport to continue to legally reside overseas. The mother provided a letter from a Chinese attorney which states that W’s residence in China is illegal because he does not have a visa and he is unable to obtain a Chinese visa without an Australian passport.

3. I accept that without a passport, W does not legally reside overseas. This is the case even though in cross examination the mother gave evidence that W has, to date, had access to schooling, health care and has been undertaking extracurricular activities. This is also the case even though there was no evidence that W is in any present danger of deportation or adverse action by the Chinese authorities. Indeed, the Minister emphasised the normality of the present circumstances and the fact that the mother specifically confirmed in her evidence, as follows:

   (a)there is no document in evidence from the Chinese authorities with a warning or fine relating to W’s immigration status in China; nor has he received a visa violation notification or a deportation notification;

   (b)W has been attending an international school for the past 3 years, has received awards in mathematics and Mandarin, and is a good student;

   (c)W’s health insurance has been renewed yearly since he was young, he has attended private hospitals and is in very good health; and

   (d)W has participated in filming a television series and recorded a song in 2020, participated in a fashion show and acting lessons in 2021, and participated in a television variety show in 2022.

4. Without a passport, however, W is not able to legally reside in China. He is also presently prevented from participating in overseas school excursions and he may also be unable to use some forms of transport within China. Although the mother claimed W would not be entitled to graduate from school, there was no independent evidence before the Tribunal regarding this issue.

5. It is also appropriate to record that there have been ongoing discussions and correspondence between the mother’s lawyers and the father about W being naturalised as a Chinese citizen, with the father’s attitude having changed over time in relation to that topic. In cross examination, the father was unable to explain why he refused, at one stage, to consent to W having an Australian passport but at other times stated he would agree to W being naturalised as a Chinese citizen (which would mean renouncing his Australian citizenship). The inescapable conclusion is that the father wants W to return to Australia so he can obtain parenting orders and that he will, therefore, not consent to the passport application or sign the Chinese citizenship application forms.

6. Ultimately, the position in relation to s 10(3)(i) of the Determination turns on the child abduction allegation (see [56] and [57] of the Explanatory Statement to the Determination extracted above). The Explanatory Statement to the Determination confirms that s 10(3)(i) is not intended to be used in cases where a child is subject to an abduction allegation.

7. In those circumstances, even though I would have been prepared to accept the mother’s claim that the child requires a passport so as to continue to legally reside in China, it would nevertheless not be appropriate for me to exercise the discretion s 11(2) of the Act to grant the passport against the background of a child abduction allegation (see below). To issue the passport on the basis of the “special circumstance” under s 10(3)(i) of the Determination would be contrary to its intended purpose, as well as the fundamental objectives of the child passport provisions, being to protect a child from abduction and to protect the rights of parents.

Is there a child abduction allegation?

1. “Child abduction” is not defined in the Act nor the Determination. In the present matter, it is indisputable that whether or not the father consented to W leaving Australia together with the mother in July 2014 (in respect of which there is conflicting evidence in the statements of the father and the mother, including as to what if anything was agreed about the mother’s trip to China with W), the father did not consent to the mother keeping W in China. W has remained overseas without the consent of all persons who have “parental responsibility” and there are no parenting orders or parenting agreements in place. The mother asserted that there was “a shared intention between the mother and the father that the applicant live in China with a sufficient degree of continuity”. However, there was no independent evidence substantiating any such arrangement.

2. As stated above, in February 2017, shortly after returning from his trip to Beijing when he was not able to see W, the father filed an application for parenting orders in the Family Court of Australia. In relation to those Family Court proceedings, the mother agreed in cross examination before the Tribunal that she had engaged lawyers to act for her in relation to the father’s application, however, she inexplicably did not file a response to the father’s application despite engaging the lawyers.

3. Moreover, it is clear the mother could have returned to Australia at that time to obtain parenting orders in the proper and ordinary course through an Australian court including if, as she asserts, they had a “shared intention” about W’s stable life. I do not accept the mother’s claim that she could not return to Australia because she was in danger and feared for her safety. The fact is that W’s maternal grandmother had returned to Australia in 2017 to sell a property belonging to the mother following the consensual property orders made in December 2016 that the mother had applied for. The mother did not provide a plausible explanation as to why the mother and W could not have returned with W’s maternal grandmother to Australia and obtained parenting orders.

4. Ultimately, the father discontinued his application because the court had no jurisdiction as W was overseas and China is not a party to the Child Abduction Convention. Despite this fact, and the additional fact that in August 2018 the mother commenced and then discontinued her own Family Court proceedings seeking parenting orders (after the failed forged application for the passport in April 2018), the mother claimed in her November 2021 affidavit that she has tried every method to resolve the parenting order issue. I agree with the Minister’s viewpoint that that is plainly not the case because the mother has not returned to Australia with W to engage the court’s jurisdiction which, in all the circumstances, was the proper method. Instead, her two attempts to obtain a passport for W have both avoided going through the formal court process.

5. The mother also argued that, according to the High Court’s decision in LK v Director General, Department of Community Services [2009] HCA 9, the claim about child abduction is defeated if the removal was consensual. The mother further argued that the “father’s consent exists in fact and its existence could not be undermined by the fact that it was later revoked”. The High Court decision referenced is of no direct assistance in the present case, in part, because it is not clear whether or not W was removed from Australia with the father’s conditional consent as had occurred in that case. What is clear, however, is that W was retained in China without the father’s consent. It will also be recalled that the child abduction allegation was ventilated by the father at the time of the father’s Family Court proceedings seeking parenting orders, before the issue of the passport application arose.

Would W’s welfare be adversely affected if he were unable to travel internationally?

1. 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.

2. The mother claimed that W is unable to participate fully at the school he attends as he cannot travel internationally with his peers in exchange programs and international study tours. The mother also stated that W is passionate about acting and performing and, in 2019, he was heartbroken when he was unable to travel to Korea to receive tuition as part of an acting and singing group. As he grows older, it is expected W would have more opportunities to travel internationally and in China which he would not be able to do without a passport.

3. In a medical report, Dr Le opined that W has an anxious temperament which predisposes him to developing a range of psychiatric disorders in adolescence and adulthood. Dr Le noted W’s awareness of the limitations on his ability to access, amongst other things, education, subsidised health care and travel on public transport. Dr Le considered that these worries undoubtedly had an adverse effect on W’s sense of security and had the potential to substantially impact his psychological wellbeing.

4. However, in cross examination, Dr Le agreed that W’s psychological state is focused on his sense of insecurity rather than his inability to travel internationally, and that the conflict between his parents is also impacting his psychological state. In re-examination, Dr Le stated that if W could not travel overseas with his school, it could be an additional factor affecting his mental health because it would contribute to a sense of being different to his peers and being potentially alienated. Dr Le did not agree that being unable to go overseas on holiday or to buy toys from overseas would have an impact on W, as he is more concerned about practical day-to-day limitations.

1. The Minister stated that policy guidance provides that the 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 wellbeing. I agree with the Minister’s submission that the impact on W, as articulated by Dr Le, is not sufficient to meet the policy guidance as it is not a detriment of a significant nature to W’s physical, psychological or emotional wellbeing.

2. Moreover, as with the other “special circumstances” considered, it would not be appropriate for the Tribunal to conclude that the discretion should be exercised on this basis as it would be contrary to the fundamental objectives of the child passport provisions, namely, to protect a child from abduction and to protect the rights of parents.

CONCLUSION

1. It is not appropriate in the circumstances of this matter for the Tribunal to exercise the discretion to issue a passport to W under s 11(2) of the Act.

DECISION

1. The decision under review is affirmed.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

................................[Sgd]........................................

Associate

Dated: 29 February 2024

Date(s) of hearing:	29-30 November 2022; 8 and 19 May 2023
Date final submissions received:	5 October 2023
Solicitors for the Applicant:	Ms K Chen, Chen Shan Lawyers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore
Other Party:	In person