WTJP and Minister for Foreign Affairs
[2015] AATA 178
•4 February 2015
[2015] AATA 178
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5036
Re
WTJP
APPLICANT
And
Minister for Foreign Affairs
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 4 February 2015 Date of written reasons 26 March 2015 Place Melbourne For the reasons given orally during the hearing of this matter, the Tribunal affirms the decision under review
[sgd]........................................................................
Regina Perton, Member
FOREIGN AFFAIRS – passport – child under 16 years – parent refused consent for child’s passport – special circumstances – contact provisions – delegate’s decision to refuse passport issue affirmed
Legislation
Australian Passports Act 2005 ss 7, 11
Australian Passports Determination 2005 s 2.1
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (no 2) (1979) 2 ALD 634
Secondary Materials
Explanatory Statement of the Australian Passports Determination 2005 Paras 17-21
REASONS FOR DECISION
Regina Perton, Member
26 March 2015
The Tribunal provided oral reasons for its decision at a hearing of this application on 4 February 2015. Notwithstanding that the Tribunal’s decision affirmed the delegate’s decision, the respondent subsequently requested written reasons for decision. The reasons for the Tribunal's decision are set out below.
The Tribunal ordered that the applicant’s name be subject to a confidentiality order. The Tribunal has also chosen not to provide some of the detail discussed when the oral reasons were given to protect the identity of the applicant.
A young man in his early teens applied for a passport so that he could travel with his mother, stepfather and siblings to an Asian city to visit a relative who was temporarily based there for work. The mother sought the father’s agreement for the passport application but the father did not respond. The mother lodged the application on her son’s behalf on 3 March 2014 stating, amongst other things, that there was minimal contact between father and son.
Circumstances in which a passport can be granted to a minor without the consent of both parents are limited. The respondent’s delegate was not persuaded that the applicant met the specified criteria for issue of the passport without the consent of both parents. The delegate wrote to the father who eventually responded that he was not prepared to authorise the issue of a passport to his son as he did not want him to travel internationally. The application for a passport was refused on 27 June 2014.
A request for internal review was lodged on 5 July 2014. On 26 August 2014 an authorised delegate affirmed the original decision to refuse to issue a passport to the applicant.
On 29 September 2014 the applicant lodged an application with the Tribunal.
LEGISLATION
The Australian Passports Act 2005 (the Act) provides:
7 Australian citizen is entitled to be issued an Australian passport
(1) An Australian citizen is entitled, on application to the Minister, to be issued with an Australian passport by the Minister.
(2) An Australian citizen’s entitlement to be issued with an Australian passport is affected by section 8 and by Division 2.
(3) An application for an Australian passport must be:
(a) made in the form approved by the Minister; and
(b) accompanied by the applicable fee (if any).
11 Reasons relating to child without parental consent or court order for travel
(1) The Minister must not issue an Australian passport to a child unless:
(a) each person who has parental responsibility for the child consents to the child travelling internationally; or
(b) an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
(2) Subsection (1) does not prevent the Minister from issuing an Australian passport 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 whose consent to the child travelling internationally has not been given—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 passport was made and the Minister considers that a passport should be issued to enable the child’s return to Australia.
(3) If the Minister refuses to issue a passport 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.
Note: For example, the Minister may make a declaration under this section if the persons who have parental responsibility for the child disagree about the child travelling internationally.
(4) For the purposes of subsection (1), a reference to:
(a) a person consenting to a child travelling internationally includes a reference to a person consenting to the issue of an Australian passport to the child; or
(b) an order of a court permitting a child to travel internationally includes a reference to an order permitting:
(i) the issue of an Australian passport to the child; or
(ii) contact outside Australia between the child and another person.
(5) For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
Note: The presumptions in the Family Law Act 1975 include a presumption arising from a court finding that a person is the child’s parent, and a presumption arising from a man executing an instrument under law acknowledging that he is the father of the child.
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development; or
(d) the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
The Minister’s determination, namely the Australian Passports Determination 2005 (the Determination), sets out the criteria for special circumstances as follows:
2.1 Special circumstances
(1) For paragraph 11(2)(a) of the Australian Passports Act, subject to subsection (2), each of the circumstances mentioned in subsection (3) is a special circumstance in which the Minister may issue a passport to a child even though a person who has parental responsibility for the child (the non-consenting parent) has not provided his or her consent to the child travelling internationally.
(2) Subsection (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:
(a) the rights of the child to travel internationally; or
(b) who has parental responsibility for the child.
Note: For the purposes of section 11 of the Australian Passports Act, parental responsibility has the meaning given by subsection 11(5) of the Australian Passports Act.
(3) The circumstances are as follows:
(a) where the application is made by or on behalf of the child, neither the applicant nor the Minister has been able to locate or contact the non-consenting parent for a reasonable period;
(b) the non-consenting parent is missing and presumed dead;
(c) the non-consenting parent is medically incapable of providing consent;
(d) there has been no contact (including contact in person or by telephone, mail or e-mail) between the child and the non-consenting parent for a substantial period before the application is made;
(f) the non-consenting parent:
(i) is not an Australian citizen; and
(ii) separated from the person whose consent has been obtained before that person arrived in Australia; and
(iii) has not had contact with the child since the child’s arrival in Australia;
(g) a family violence order has been issued against the non-consenting parent;
(h) if the child is outside Australia—there is evidence of family violence;
(i) an order of a court in a country that, under the Family Law (Child Abduction Convention) Regulations 1986, is a convention country, permits the child to travel internationally;
(j) in the case of a child who is outside Australia—the Minister considers that there is a need for the child to travel internationally;
(k) 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 parent; or
(ii) a person other than a parent of the child.
CAN THE APPLICANT BE ISSUED WITH A PASSPORT?
The applicant, an Australian citizen, can be issued with a passport if each person who has responsibility for the child consent to him travelling overseas or there is a court order in place allowing him to do so. The father of the child did not consent to the issue of the passport.
In 2003, when the child was two years old, consent orders were made in the Victorian Magistrates’ Court under the Family Law Act 1975 concerning the child and his older sister that:
…
1. That the children …reside with the wife.
2. That the husband and wife each have responsibility for the long term care, welfare and development of the children.
3. That the wife have sole responsibility for the day to day care, welfare and development of the children.
...
There are also a number of clauses concerning the father’s contact with the children and arrangements to be made for such contact. There is no provision in the order concerning travel. There was no evidence of any further court orders.
The Tribunal finds that the applicant is unable to be issued with a passport pursuant to s 11(1)(a) of the Act as the father has not consented to the issue of the passport. Nor is there is a court order permitting international travel. Hence, the applicant does not meet s 11(1)(b) of the Act.
Section 11(2) of the Act allows the Minister to issue a passport if there are special circumstances specified in the Minister’s determination. Section 2.1 of the Determination sets out the circumstances where the Minister may issue a passport where a parent has not provided his consent to the child travelling internationally. The Minister may not do issue a passport if there are court proceedings pending concerning parental responsibility or the rights of the child to travel internationally. There is no evidence that there are any court proceedings in place so this paragraph is not relevant to this particular case.
Paragraph 3 of section 2.1 of the Determination sets out various circumstances that can be considered special circumstances. The respondent submitted, and the mother concurred, that the only possible relevant provision applicable to her son was paragraph 2.1(3)(d) of the Determination, namely:
there has been no contact (including contact in person or by telephone, mail or e-mail ) between the child and the non-consenting parent for a substantial period before the application is made:
Substantial period is not defined in the Act or the Determination. The Explanatory Statement of the Determination states:
…
17 Paragraphs… 2.1(3)(d) …provide grounds to issue a passport to a child who has had no contact (including in person, or by telephone, mail or e-mail) for a substantial period with the non-consenting parent.
18 In practice in most cases, a substantial period during which there has been no contact is at least:
·for a child aged less than 3 years – since the child’s birth; and
·for a child aged 3 years or more, but less than 16 years - 3 years.
...
20 These provisions have been an important tool over the past 20 years for the Department to fulfil its obligation to issue passports to children when it is procedurally difficult or unreasonably expensive to meet the basic requirements while meeting its objectives to protect the child from abduction and protect the rights of parents.
21 Paragraphs 2.1(3)(d) … implement the policy that the appropriate place for parents to commence the process of asserting their legal rights in relation to their children is through the family courts not the passports issuing system.
The Tribunal heard evidence from the applicant that he has infrequent contact with his father. The contact provisions agreed to when the applicant was less than three years old have not been adhered to for some time. The mother, in the passport application, stated that her son has very infrequent phone contact with his father. Asked in the form when the last contact was between the child and his father, she stated January 2014? and that it was a general conversation on phone. The applicant confirmed that he had a conversation with his father around that time which was a few weeks before the passport application was lodged. He described the various disappointments he had experienced in relation to his contact with his father.
In a written submission to the Tribunal received on 9 December 2014, the applicant and his mother described the relationship between father and son. They stated that the father had not seen his son for some years. They described the psychological impact on the applicant of the poor relationship with his father and of the further impact on his of father’s failure to consent to the passport. They stated that the opportunity to make the visit to the relative overseas had now passed. However, the applicant is still keen to get a passport as he may have an opportunity to travel overseas with his school.
The Tribunal will usually follow policy guidelines to assist with its determinations. Decision-makers should generally apply policy such as the guidelines, unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case (Re Drake and Minister for Immigration and Ethnic Affairs (no 2) (1979) 2 ALD 634). Whilst the policy in relation to absence of contact with the non-consenting parent might appear somewhat rigid, the Tribunal is nonetheless satisfied that the guidelines should be followed.
The Tribunal finds that the applicant does not meet the criteria specified in the Determination as constituting special circumstances. As indicated earlier, he did not meet any of the other alternative provisions.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ........................................................................
Associate
Dated 26 March 2015
Date of hearing 4 February 2015 Applicant In person Solicitors for the Respondent Ms A McCormick, Minter Ellison
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