Willats and Minister for Foreign Affairs

[2024] AATA 2983

Willats and Minister for Foreign Affairs [2024] AATA 2983 (19 August 2024)

Division:GENERAL DIVISION

File Number:          2023/6882

Re:Amelia May Willats

APPLICANT

AndMinister for Foreign Affairs

RESPONDENT

DECISION

Tribunal:Member McLean-Williams

Date:19 August 2024  

Place:Brisbane

The reviewable decision made on 6 September 2023 is set aside and substituted with a decision by the Tribunal that the Applicant is to be issued with an Australian travel document.

.................[SGD]..................

Member McLean-Williams

Catchwords

PASSPORTS – Australian Passports Act 2005 (Cth) – Department of Foreign Affairs and Trade – Australian Passports Office – Australian Travel document – Australian passport – refusal to issue Australian passport to a child – parental responsibility – non-lodging parent – non-contact between non-lodging parent and child – substantial period – special circumstances – decision under review set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Passports Act 2005 (Cth)

Family Law Act 1975 (Cth)

Cases

Secondary Materials

Australian Passports Determination (2015) (Cth)

Australian Passports Determination (2015) (Cth) Explanatory Statement

REASONS FOR DECISION

Member McLean-Williams

19 August 2024

PRELIMINARY

1. The Applicant, Amelia May Willats (‘Amelia’), is a nine-year old child, and an Australian citizen. 

2. By means of an Application for Review filed by her mother, Ms Hannah Maree Willats (‘Hannah’), Amelia seeks a review before the Tribunal of a decision made on 6 September 2023 by a Delegate of the Minister for Foreign Affairs, pursuant to s.49(4)(a) of the Australian Passports Act 2005 (Cth) (‘the Passports Act’), whereby the Delegate had affirmed an earlier decision of the Australian Passports Office to refuse to issue Amelia with an Australian Passport.

3. The Tribunal has review jurisdiction over the Delegate’s decision by reason of s.50 of the Passports Act. 

   CHRONOLOGY & RELEVANT FACTUAL BACKGROUND

4. On 17 February 2023 Hannah, as the ‘Lodging person’, filed an application for an Australian passport on behalf her daughter Amelia. Hannah indicated on the application form that she wished to take Amelia overseas on holidays; that Amelia’s father had not provided his consent for Amelia being conferred with a passport; and that she objected to Amelia’s father being contacted by the Australian Passports Office in relation to the application, claiming prior domestic violence by Amelia’s father.  

5. At this juncture, it is necessary to record that the Department of Foreign Affairs has a policy of not contacting the ‘Non-consenting’ parent in relation to applications for passports for children, whenever the Lodging person has objected to that, on family violence grounds. In conformity with the policy, the Australian Passports Office did not seek to contact Amelia’s father.

6. On 6 June 2023, the Australian Passports Office refused Amelia’s passport application on the basis that ‘both parents had not consented’. In the circumstances it could not be said that section 11(1)(a) of the Passports Act had been satisfied. The Delegate also recorded:

   ‘I accept the possibility that NLP[1] may not have had contact with the child, and special circumstances under s.10(3)(d) may exist. However, without the presence of either verifiable evidence or ability of APO[2] to contact the NLP, I am not satisfied to apply the provision at this stage’.

   (‘the passport refusal’)

   [1] ‘NLP’ – Non-lodging parent.

   [2] ‘APO’ – Australian Passports Office.

7. On 12 June 2023, Hannah requested internal review of the passport refusal, pursuant to sections 48 and 49 of the Passports Act; specifying that Amelia’s father had played no role in Amelia’s life, and that Hannah had always been Amelia’s sole parental carer.

8. On 6 September 2023, the Internal Review Delegate affirmed the passport refusal. It is this decision that is now under review before the Tribunal.

9. The Internal Review Delegate determined to affirm the passport refusal because:

   ·Amelia’s father continues to have “parental responsibility” for Amelia, as understood under s.11(5)(a) of the Passports Act. Amelia’s father had been identified as such in the passport application, yet had not provided his consent to the application, such that it could not be said that s.11(1)(a) of the Passports Act had been satisfied.

   ·There were no court orders permitting Amelia to hold an Australian travel document, to travel internationally, or to live or spend time with another person who is outside Australia, such that it could not be said that s.11(1)(b) of the Passports Act had been satisfied. 

   ·The Delegate was unable to be satisfied that ‘Special circumstances’ existed under s.11(2)(a) of the Passports Act because Hannah had claimed that there had been no contact between Amelia and her father since a few weeks after Amelia’s birth. The passport application had raised the issue of family violence, and had requested that there be no contact by the Department with Amelia’s father. Accordingly, the Delegate found ‘in light of the mother’s request that the father not be contacted, these [no contact] claims were unable to be tested with him’.

   ·No submissions or evidence had been provided relating to ss.11(2)(b) – (d) (inclusive) of the Passports Act, such that those sections were deemed not met, either. 

10. On 17 September 2023, Amelia (again by means of her mother Hannah), applied to this Tribunal for a further review of the internal review decision made on 6 September 2023, this time pursuant to section 50 of the Passports Act.

    FURTHER EVIDENCE

11. A hearing was conducted before the Tribunal at Brisbane on 29 May 2024. By the conclusion of the review hearing, the following factual information is before the Tribunal:

    ·A copy of Amelia’s birth certificate. Thereon, Hannah is listed as Amelia’s mother. Nobody is named as Amelia’s father.

    ·A statutory declaration made by Hannah on 5 May 2023 by which she declares:

    oThat [Amelia’s father] is the biological father of Amelia, yet her relationship with him had ended, approximately two months prior to Amelia’s birth. 

    oInitially, Amelia’s father had denied paternity, yet his status as her father was later confirmed by way of DNA testing, obtained as part of an application for child support.

    oThe only contact that Amelia has ever had with her father had been one brief meeting (10-15 minutes), in a park at Mooloolaba. This had been when Amelia was about two weeks old.

    ·Undated photocopies of ‘Facebook messenger’ communications between Hannah and Amelia’s father, said to relate to the time when Hannah had originally claimed paternity of Amelia by Amelia’s father. Some of these messages contain language directed at Hannah that is menacing.

    ·A letter from a Dr Kylie Stephan dated 20 November 2023, stating that Dr Stephan had regularly treated Amelia between December 2018 and August 2022, and: “[a]s far as I am aware, Amelia’s father has never been involved in her life. Amelia was never brought in by anyone who identified as her father, and we had no other contact details on file other than her mother, Hannah”.

    ·A statutory declaration made on 5 December 2023 by Hannah’s sister, Ms Chloe Willats in which Chloe declares that she had lived with Amelia and Hannah from late 2017 until November 2022, during which time Amelia’s father had “absolutely zero contact with Amelia whatsoever and has not been in any way apart [sic] of her life”.

    ·A further statutory declaration from Hannah, as made on 5 May 2024. Therein, Hannah declares that:

    oShe has re-partnered, is once again pregnant, and expects to give birth to her second child on or about 31 July 2024.

    oShe is the owner of a home in the northern suburbs of Brisbane, subject to a mortgage held by the Commonwealth Bank.

    oShe is a self-employed beauty therapist, working from home.

    oShe was born in Australia, to Australian parents, and has no basis to claim nationality in any other country, and does not have any family overseas.

    oThe purpose for seeking a passport for Amelia is in be able to travel overseas for short holidays, to destinations such as Bali.

    ·Child support assessments issued on 15 November 2023 which confirm that Hannah has 100% of the care of Amelia for the period between 1 October 2020 and 28 February 2025.

12. Also attached to the Application for Review to the Tribunal is a letter from Mr Ross Cameron, a family law barrister, dated 9 June 2023. In that letter, Mr Cameron indicates:

    oThat he has known Hannah professionally and personally since early 2017, having first met Hannah when he had acted for her in relation to an application for child support for Amelia. 

    oThat Hannah had instructed that she had ended her relationship with Amelia’s father prior to Amelia’s birth, in circumstances of domestic violence. Mr Cameron informs that Amelia’s father had been threatening and abusive towards Hannah in relation to the question of DNA testing, although Amelia’s father did eventually submit to DNA testing, and did ultimately accept the fact of his paternity of Amelia. 

    oThat the undated Facebook messenger messages (as now identified and described, above) are the same as those that were first shown to him as part of his initial retainer, back in 2017.

    oThat he had subsequently assisted Hannah in relation to a family dispute resolution (‘FDRP’) process initiated by Amelia’s father who had - at that time - been seeking unsupervised access to Amelia, yet nothing was resolved. Mr Cameron describes that as having been an unrealistic expectation, given the circumstances. Amelia’s father never thereafter commenced any court proceedings for access to Amelia, as is ordinarily contemplated under the Family Law Act 1975 as the next step after unsuccessful FDRP. 

    oThat he has since become a family friend of Hannah and Amelia, and has interacted with them socially, on numerous occasions. Based on his personal knowledge of their circumstances, Mr Cameron believes that there had been no contact (or even attempted contact), between Amelia and her father since the FDRP process, in early 2017.

13. At the hearing, the Tribunal received oral evidence from Hannah, and from Hannah’s sister/Amelia’s aunt, Ms Chloe Willats (‘Chloe’). Each of Hannah and Chloe were available for cross-examination by Ms Mia Donald, the solicitor advocate acting for the Respondent Minister, as well as their being subjected to further questioning emanating from the Tribunal. 

14. During her oral evidence, Hannah Willats was consistent in stating:

    oThere had been no contact between Amelia and her father since about two weeks after Amelia’s birth.

    oThe purpose of the requested passport for Amelia was to enable the possibility of short overseas holidays. Bali was instanced, as one possible destination.

    oShe has strong ties to the Australian community, including to her new domestic partner; to her sister and her parents; and to her home and her business; such that she has no intention of fleeing overseas with Amelia.

    oShe continues to be fearful of Amelia’s father, because of the same factors that had caused her to end their relationship, prior to Amelia’s birth.

    APPLICABLE LAW AND POLICY

15. Relevantly, s.11 of the Passports Act provides:

    11       Reasons relating to child without parental consent or court order for travel

    2the Minister must not issue an Australian travel document to a child unless:

    (b)each person who has parental responsibility for the child consents to the child having an Australian travel document; or

    (c)an order of a court of the Commonwealth, 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.

    3Subsection (1) does not prevent the Minister from issuing an Australian travel document to a child if:

    (b)circumstances specified in a Minister’s determination as special circumstances exist; or

    (c)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

    (d)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

    (e)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.

    4if 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.

    (Emphasis included here, by the Tribunal)

16. Section 11(2)(a) of the Passports Act makes reference to ‘circumstances [as] specified in a Ministerial determination as special circumstances’. The Australian Passports Determination (2015) (Cth) (‘the Passports Determination’) now qualifies as a Ministerial determination of the type referred to in s.11(2)(a).

17. Relevantly, Section 10 of the Passports Determination provides:

    10Special circumstances in which the Minister may issue an Australian travel document to a child

    1For paragraph 11(2)(a) of the Act, each of the circumstances mentioned in subsection (3) is a special circumstance which the Minister may issue an Australian travel document to a child even though a 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.

    2Subsection (1) does not apply if the Minister has been provided with court documents demonstrating that there are proceedings before a Commonwealth, state or territory court that may affect:

    (aa)the issue of an Australian travel document to the child; or

    (a)the rights of the child to travel internationally; or

    (b)who has parental responsibility for the child.

    3The 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.

    …

    (Emphasis included here, by the Tribunal)

    DEPARTMENTAL POLICY GUIDANCE

18. An Explanatory Statement circulated by the Minister for Foreign Affairs in relation to the Australian Passports Determination 2015 provides:

    36The 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.

    37Subsection 11 (1) of the Passports Act sets out the basic requirements for a child to be issued a passport. These requirements are:

    -consent of all persons with parental responsibility for a child; or

    -an order of a court of the Commonwealth, a State or a Territory that permits the child to have a passport, to travel internationally, or to live or spend time with another person who is outside Australia.

    38The Passports Act provides for a number of exceptions to the basic requirement for the issue of a passport to a child (paragraphs 11(2)(a) to (d) of the Passports Act) including:

    -circumstances specified in a Minister’s determination as special circumstances exist;

    -child welfare;

    -the child needs to travel urgently because of a family crisis and it has not been possible to contact the non-consenting person within a reasonable period; or

    -the child has been outside of Australia for less than 12 months and the Minister considers a passport should be issued to enable the child to return to Australia

    39Section 10 of the Determination sets out special circumstances in which a passport may be issued to a child without the consent of all persons who have parental responsibility for that child or a court order for travel. These special circumstances provide the Minister with a discretion to issue a passport to a child when it is not possible to meet the basic requirements or it is inappropriate to expect the basic requirements to be met.

    40Approximately 5,500 children’s cases are considered under these provisions annually. These provisions are important tools for the department to fulfil its obligation to issue passports to children.

    41Subsection 10(2) provides that the special circumstances do not apply if the Minister has been provided with court documents demonstrating that there are proceedings in a court of the Commonwealth, a State or a Territory that may affect the rights of a person in relation to the child or the child’s right to travel internationally.

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

19. Departmental Policy POL021913, entitled ‘No contact between the child and non-consenting person for a substantial period - application of special circumstance’ provides the following further policy guidance:

    -The Australian Passports Act 2005 and the Australian Passports Determination 2015 (the Passports Determination) do not define ‘substantial period’ of no contact between the child and the Non-consenting person for paragraph 10(3)(d) of the Passports Determination

    -Guidance is provided by the Explanatory Statement to the passports determination which provides that “in most cases, a substantial period during which there has been no contact is considered to be up to 2 years, but may be less depending on the age of the child and the circumstances of the application.”

    -If the child is under two, then a ‘substantial period’ of no contact is since birth.

    RESPONDENT MINISTER’S CONTENTIONS

20. Initially, by way of her Statement of Facts Issues and Contentions (‘SFIC’) filed on 21 December 2023, the Respondent Minister maintained the position taken by the Delegate at the time of the making of the decision here under review.

21. Yet, by way of supplementary submissions dated 27 May 2024, the Respondent Minister withdrew the submissions made by way of paragraphs [18] – [29] in her original SFIC, and in lieu thereof now accepts that a ‘special circumstance’ exists under s.11(2)(a) of the Passports Act, given that there has not been any contact between Amelia and Amelia’s father for a substantial period, before the passport application was lodged.[3]

    [3] per s.10(3)(d) of the Passports Determination. 

22. Despite that concession, the Respondent Minister submits that this is not a case in which it would be appropriate for the Tribunal to exercise the discretion under s.11(2) of the Passports Act. As basis for that, the Respondent Minister contends the following:

    ·An exercise of the discretion would be contrary to the fundamental objectives of the child passport provisions within the Passports Act, namely to “protect a child from international parental child abduction”, and to “safeguard the rights of persons with parental responsibility”.

    ·Section 11(1) of the Passports Act sets out the basic requirements for a child to be issued with a passport. These include consent of all persons with parental responsibility; or an order of a court of competent jurisdiction permitting a child to have a passport, travel internationally, or to live or spend time with a person who is outside Australia.[4]

    [4] Respondent’s Supplementary Submissions (27 May 2024), at [5].

    ·The Passports Act provides for a number of exceptions to the basic requirements. Section 11(2)(a) affords a discretion to the Minister to issue a passport if a special circumstance - as set out at section 10 of the Passports Determination - is met.[5] Yet, according to the Explanatory Statement accompanying the Passports Determination,[6] the special circumstances provision only provides the Minister with a discretion to issue a passport to a child “when it is not otherwise possible to meet the basic requirements, or it is inappropriate to expect the basic requirements to be met”.[7]

    ·It cannot be said that it is impossible for the Applicant to meet the basic requirements. Amelia’s Father’s views regarding Amelia being issued with a passport are currently unknown. Yet his views could be obtained by way of Hannah consenting to Amelia’s father now being contacted by the Australian Passports Office. Equally, there is no evidence before the Tribunal to suggest that it is ‘not possible’ for Hannah to obtain a court order, in the manner now suggested by s.11(1)(b) of the Passports Act.[8]

    ·An exercise of the discretion in s.11(2) of the Act should be taken as requiring more than just the existence of a special circumstance, because of what is expressed in the Explanatory Statement to the Passports Determination:  

    o“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 the child from international parental child abduction or to safeguard the right of persons with parental responsibility”.[9]

    ·The residual discretion involves the Minister (or, as here, the Tribunal on review) considering the objectives of protecting a child from international parental child abduction, and safeguarding the rights of persons with parental responsibility.[10]

    ·In circumstances wherein the Applicant has conceded that Amelia’s father continues to have parental responsibility, and in circumstances in which no court order has been sought and obtained to overcome that presumption, it would be ‘procedurally unfair’ to Amelia’s father for the Tribunal to now exercise the discretion in s.11(2)(a). He has not been afforded the opportunity to provide his views regarding a passport for Amelia, by reason of the Department complying with the policy of not contacting the Non-consenting parent in circumstances where an objection has been raised by the lodging parent on family violence grounds.[11]

    ·To make a decision which will lead to a child being taken outside of Australia in the absence of the views of a parent who maintains parental responsibility is a significant matter, that should not be undertaken lightly in the absence of any views or evidence from Amelia’s father. In circumstances where Hannah maintains an objection on family violence grounds, the policy contemplates that it is open to the Tribunal to refuse to exercise the discretion as the matter is better dealt with by a specialist family court.[12] 

    ·The need for the Tribunal to decline to exercise the discretion is compounded by the need to have regard for the fundamental objective of protecting the child from international abduction. Although all of the evidence before the Tribunal points to Hannah only taking Amelia outside Australia temporarily for a short holiday to Bali, the Respondent Minister still submits that this represents an ‘incomplete basis’ for the Tribunal making a proper assessment of the risk of international child abduction, because an application of the Minister’s policy of not contacting the non-consenting parent in circumstances whenever the lodging parent has objected on family violence grounds has given rise to a situation of the “evidence all being presented from one side”. In those circumstances, it would ‘not be appropriate’ to exercise the discretion under section 11(2)(a) of the Passports Act.[13]

    [5] Respondent’s Supplementary Submissions (27 May 2024), at [6].

    [6] Explanatory Statement at [39] (T16/86).

    [7] Respondent’s Supplementary Submissions (27 May 2024), at [6].

    [8] Respondent’s Supplementary Submissions (27 May 2024), at [7].

    [9] Respondent’s Supplementary Submissions (27 May 2024), at [8].

    [10] Respondent’s Supplementary Submissions (27 May 2024), at [9].

    [11] Respondent’s Supplementary Submissions (27 May 2024), at [10].

    [12] Respondent’s Supplementary Submissions (27 May 2024), at [11].

    [13] Respondent’s Supplementary Submissions (27 May 2024), at [12].

    APPLICANT’S CONTENTIONS

1. Amelia and her mother Hannah were represented before the Tribunal by Mr Robert Lake, of Counsel. Mr Lake contends the following:

   ·The Minister/the Tribunal standing in the shoes of the Minister is not prevented from issuing a travel document if there is a “special circumstance” as described in s.10(3)(d) of the Passports Determination.[14]

   ·Although the Respondent Minister invites the Tribunal to apply a period of two years in relation to the putative special circumstance (here drawing upon the words used in the Explanatory Statement), there is no need to have recourse to extrinsic materials such as the Explanatory Statement: per s.15AB of the Acts Interpretation Act 1901 (Cth). Here, there is no ambiguity, obscurity, absurdity or unreasonableness in the ordinary meaning of the term ‘special circumstance’ when read in the context in which it has been used in the provision. This is because the ordinary meanings of ‘substantial’ that might reasonably be applied in the circumstances of this case are ‘of real importance or value’, or ‘of large size or amount’. 

   ·Even if the Tribunal were to have regard for the Explanatory Statement, the precise words used therein are “up to two years but may be less depending on the age of the child and the circumstances of the application”. Both ‘up to’ and ‘may be less’ reveal that a period of less than two years was clearly envisaged as still being capable of qualifying as a substantial period. In this light, a “substantial period” is one to be determined having regard to the age of the child and [any] relevant circumstance that has real importance in the child’s life.[15]

   ·On all of the available evidence, Amelia has had no contact with her father since she was about two weeks of age, at the end of June, 2015. Although the Respondent Minister contends that it is ‘not possible to test’ this evidence, that submission should be rejected, as the evidence to that effect from Hannah has now been corroborated by her sister Chloe, and the evidence of both Hannah and Chloe has now been able to be tested, by way of cross-examination before the Tribunal.[16]

   ·Although the Respondent Minister submits that the discretion should not be exercised, on the basis that to do so would be contrary to fundamental objectives of the Act, that contention does not withstand proper scrutiny. In relation to the need to have regard to protection of the child against the risk of international abduction, the Minister’s contention is raised by means of recourse to extrinsic materials, when such is unwarranted.[17] In circumstances in which Hannah is an Australian citizen and Australian homeowner with a mortgage; is Australian-born, of Australian parentage; and is now expecting another child with her new partner in Australia, there is just no credible basis to suggest that Hannah might seek to abduct Amelia, internationally. As to the safeguarding of the rights of persons with parental responsibility, it is incumbent on the Minister to explain how the issuing of a travel document for Amelia would be contrary to those putative rights, which the Minister has not done.[18]

   ·The Respondent Minister goes so far as to submit that Amelia’s father has ‘not been afforded procedural fairness’ in this application. Yet, that submission should be assessed as one that is based on fallacious reasoning, by reason that each of the Passports Act and the Passports Determination provide that a substantial period of no contact between the child and a Non-consenting parent may amount to a special circumstance for the issue of a passport.[19]

   ·To contend that it would not be appropriate to exercise the discretion to issue a passport in the absence of any substantive or independent evidence to show that Amelia would experience significant negative impact if she were not permitted to travel internationally is to conflate the language of s.11(2)(b) with that used in s.11(2)(a), despite these sub-sections being separated by the disjunctive ‘or’. The language used in s.11(2)(b) is an irrelevant consideration in the case of Amelia’s passport application, which is now made pursuant only to s.11(2)(a).[20]

   [14] Applicant’s Supplementary Submissions (29 May 2024), at [5].

   [15] Applicant’s Supplementary Submissions (29 May 2024), at [7] – [12].

   [16] Applicant’s Supplementary Submissions (29 May 2024), at [14] – [15].

   [17] Applicant’s Supplementary Submissions (29 May 2024), at [19].

   [18] Applicant’s Supplementary Submissions (29 May 2024), at [21].

   [19] Applicant’s Supplementary Submissions (29 May 2024), at [25].

   [20] Applicant’s Supplementary Submissions (29 May 2024), at [26] – [29].

   CONSIDERATION

2. The Tribunal accepts all of the submissions made by Mr Lake of Counsel.

3. Although the Respondent Minister invites the Tribunal to now apply a period of two years when construing what amounts to a ‘substantial period’, the Tribunal declines to do that, by reason it is unwarranted, given the expression used has not been given any such determinate meaning. The Tribunal notes that the Explanatory Statement provides that a substantial period may be one of “…up to two years, but may be less depending on the age of the child and the circumstances of the application”. 

4. The Tribunal considers that the correct approach therefore requires regard for Amelia’s age, both at the time of the passport application, and now at the time of decision, as well as consideration of the length of time of no contact between the child and the non-contacting parent at the time of the decision about passport conferral, and the circumstances in which that has arisen.

5. Amelia was seven years and eight months of age at the time of the passport application, and is now aged nine-years and about two months. On the available evidence, Amelia has had no contact with her father for more than nine years. In the case of a child of her age the Tribunal is satisfied that this now amply qualifies as a ‘substantial period’.

6. The Respondent Minister also concedes the fact of there being a special circumstance under s.11(2)(a) of the Passports Act by reason of s.10(3)(d) of the Passports Determination. 

7. The Tribunal determines that the existence of a special circumstance is sufficient - in and of itself - to allow for the conferral of an Australian Travel document in the case of Amelia. The power to so issue is clear on the face of the provision, and there is not the need to have recourse to extrinsic materials such as the Explanatory Statement in order to understand the legislative intent of the words used in s.11(2).[21] On the face of s.11(2), once a ‘special circumstance’ has crystallised, there are no further limits or qualifications upon the exercise of the discretion of the kind now urged[22] upon the Tribunal, by the Respondent Minister. 

   [21] Acts Interpretation Act 1901 (Cth) s.15AB(3)(a).

   [22] Respondent’s Supplementary Submissions (27 May 2024) at [6].

8. Further, the Tribunal does not accept that it is necessary for an Applicant to first positively demonstrate that it is not possible to comply with either s.11(1)(a), or s.11(1)(b), in order to access s.11(2). The provision does not require that extra step. Section 11(2) clearly states that s.11(1) does not prevent the Minister from issuing an Australian travel document to a child, such that to find that the provision does require the construction now urged by the Minister would be to require a perplexing understanding, that is not in conformity with the clear words as now used in the provision.

9. Nor does the Tribunal here accept that an exercise of the discretion in s.11(2) really requires more than the existence of a special circumstance, as raised by a Ministerial Determination. The Tribunal notes that the scheme as used in s.11 of the Passports Act has in contemplation that any residual concerns of the kind now urged upon the Tribunal by the Respondent Minister[23] are open to be dealt with by means of a decision maker refusing to issue the child with an Australian travel document and in the process making a declaration under s.11(3) of the Act. The suggestion of Amelia being abducted internationally is completely fanciful and may be put to one side. Concerns for the rights of the non-lodging parent are (on the facts as known before the Tribunal) more theoretical than they are actual. Had there been actual evidence to give rise to the concerns now raised by the Minister, then the Tribunal may well have had recourse to s.11(3). Yet, the Minister expressly disavows the need for the making of a declaration under s.11(3), and, on the facts as known to the Tribunal, the taking of such a step is unwarranted.

   [23] Respondent’s Supplementary Submissions (27 May 2024) at [11] – [12].

10. As a matter of completeness the Tribunal rejects the contention that regard for procedural unfairness towards the Non-lodging party arises, given that the clear language used in s.11(2)(a) of the Passports Act enables the conferral of an Australian travel document to a child in circumstances in which the other parent has not been consulted, and by logical extension is therefore unaware of the fact of the passport application. On the facts as known to the Tribunal, Amelia’s father ceased to agitate any putative parental rights around the time of the FDRP process, in early 2017. No further steps were taken by him to agitate those rights, despite the pathway being available under s.60I of the Family Law Act 1975 (Cth). In the circumstances, any dormant parental rights should not now become a hurdle to Amelia having conventional childhood experiences including such things as school trips, or family holidays with her Mother and younger sibling.

    DISPOSITION

11. The correct and preferable decision is for the reviewable decision dated 6 June 2023 to be set aside by the Tribunal, and for it to be substituted with a fresh decision requiring that Amelia be issued with an Australian travel document.

1.       I certify that the preceding 3 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

..............[SGD]..............

Associate

Dated: 19 August 2024

Dates of hearing:

29 May 2024

Applicant Representative:

Mr Robert Lake of Counsel

Respondent Representative:

Ms Mia Donald

Sparke Helmore (Partner)