WTTW and Minister for Foreign Affairs - [2025] ARTA 160

WTTW and Minister for Foreign Affairs [2025] ARTA 160 (26 February 2025)
Applicant/s:  WTTW
Respondent:  Minister for Foreign Affairs
Other Party:  FSPP
Tribunal Number:                2024/1258

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:26 February 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides as follows:
The Tribunal declares under section 11(3) of the Passports Act 2005 (Cth) that it refuses to exercise the discretion under section 11(2) to issue a passport to the applicant because the matter should be dealt with by a court.

..............................[sgnd]...................................
Senior Member N Manetta

CATCHWORDS
PASSPORTS – section 11 of Passports Act, 2005 – divorced and estranged parents – refusal by father to agree to issuing of child passport to minor – mother seeks decision from Tribunal that passport be issued under section 11(2)(b) because of adverse psychological impact on minor of not being able to travel internationally – father alleges improper purpose of mother – Tribunal decides that matter better dealt with by Court and refuses passport under section 11(3) – Tribunal makes decision to refuse passport application with express declaration as envisaged by section 11(3)
LEGISLATION
Family Law Act, 1975 (Cth)
Passports Act, 2005 (Cth)
CASES
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Statement of Reasons

This is an application brought in the name of ‘WTTW’, a minor to whom I shall refer as ‘N’ in these reasons. N has sought a review of a decision by the respondent’s internal-review delegate to refuse to issue a child passport to her under the Passports Act, 2005 (Cth) (‘the Act’).[1] The passport application was opposed by ‘FSPP’, N’s father. He was joined to the proceeding. I shall refer to FSSP as ‘N’s father’ in these reasons.
[1] The review delegate’s letter and reasons appear at Ex 3, 11ff.
BACKGROUND FACTS
N’s mother had applied for the passport to enable N to travel with her to the United Kingdom to visit family members who are now older and somewhat frail. N’s father opposed the application, as I have said,[2] and explicitly advanced a concern he says he genuinely holds that N would not be returned to Australia after the visit.
[2] See Ex 3, 120.
M’s mother and N’s father divorced several years ago. Consent orders governing their rights in respect of N, amongst their other children, were made in late 2021 under the Family Law Act, 1975 (Cth). Those orders were before me.[3]
REASONS
[3] Ex 3, 45ff.
Passports Act, 2005: relevant provisions
Section 11 of the Act governs the circumstances in which a passport may be issued to a minor where those having parental responsibility disagree. I must apply the relevant provisions, which are in subsections (1) - (3):
Reasons relating to child without parental consent or court order for travel
11 (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)If 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.
Subsection (1) commences with a prohibition against the issuing of an Australian travel document to a minor unless all those with parental responsibility consent or there is a court order in place permitting the child to have a travel document or to travel internationally. There is no court order to this effect, and, as I have said, N’s father opposes the grant of a passport.
Subsection (2) provides that subsection (1) does not prevent the Minister from issuing an Australian travel document in a number of circumstances. One such circumstance appears in paragraph (b). This paragraph refers to adverse effects upon a child’s welfare if he or she is not permitted to travel overseas. N’s mother claims that N’s psychological welfare would be adversely affected if N were not permitted to travel overseas to see her grandparents.
Subsection (3) then provides that the Minister[4] may declare that he or she refuses to exercise ‘the discretion under subsection (2)’ because the matter is better dealt with by a court. Subsection (3) refers explicitly to ‘the discretion under subsection (2)’. The word discretion is usually used to describe a power that may be exercised in the decision-maker’s reasonable opinion having regard to the circumstances of the individual case and all relevant factors. Subsection (2) does not in terms confer a discretion as such: it merely specifies circumstances in which subsection (1) is taken not to prevent the Minister from issuing an Australian travel document. Nevertheless, given the explicit terms of subsection (3), and reading the section as a whole, I have decided that subsection (2) should be understood as conferring a discretion.
[4] And therefore this Tribunal on review.
Tribunal’s task
Given this construction of section 11, my task in this case is two-fold. First, there is the question of whether I am satisfied that one or more of paragraphs (a) to (d) of subsection (2) apply. Secondly, if one of these paragraphs is satisfied, the question arises as to whether the discretion in subsection (2) should be exercised in the circumstances of the case; and, in particular, whether a decision should be taken in this case to refuse to exercise the discretion to issue a passport to N because the matter should be dealt with by a court.
Application of section 11 of the Passports Act, 2005 by the Tribunal
In this case, the delegate decided that he or she was not satisfied that paragraph (b) in section 11(2) applied.[5] No other paragraph was relevant. This meant that the exercise of the discretion under subsection (2) did not arise for consideration in the delegate’s view.
[5] Ex 3, 16.
At the hearing before me, N’s mother provided reports[6] that indicate that N’s mental health would be adversely affected if N were not able to travel internationally. N’s mother submitted that I ought to be satisfied that paragraph (b) of subsection (2) does apply. Mr Chan, appearing for the respondent, submitted that the evidence was not sufficient to demonstrate a real and ongoing psychological impact upon N. N’s mother’s requested that the psychologist be given the opportunity to provide further evidence if the reports were judged insufficient.[7] That request was a reasonable one, and I have decided that I should not proceed to affirm the decision under review on the basis that paragraph (b) is not satisfied without allowing the psychologist to give further evidence.
[6] Ex 4 and Ex 5.
[7] See N’s mother’s Statement of Facts, Issues and Contentions: Ex 2, [44].
I do have some doubts about the reports, and so the next question is whether I should allow that further evidence to be given and thereby prolong the hearing; or whether, on an assumption that N would be adversely affected if she could not travel internationally, I should nevertheless refuse to exercise the discretion in section 11(2) to grant N a passport because the matter is one better dealt with by a court.
Despite any adverse psychological impact on N, I have decided that the latter course is the more appropriate one. My reasons can be summarised as follows.
First, in my opinion, as a decision by the Tribunal to grant a passport under s 11(2) cannot override or detract from the court orders made in this case, I should refuse to exercise the discretion in s (11)(2) if granting N a passport would conflict with those orders. The court orders in this case do not expressly allow N’s mother to remove N from Australia without N’s father consent.[8] The default position under the orders (namely, that both parties have equal shared responsibility for N)[9] appears to govern the question of international travel. If that is correct, the legal position under the orders as they presently stand is that N’s mother and N’s father must both agree to any international travel by N. At the present time, therefore, and in the absence of further court orders, N’s father’s refusal to grant his consent is a legal bar to N’s lawful departure from Australia whether N has a passport or not.
[8] The issue of domestic interstate travel is dealt with explicitly in the orders. N’s mother is permitted to take N on interstate trips on notification, as is N’s father (Ex 3, 58 [10]); but international travel is not the subject of an explicit order in either parent’s favour.
[9] Ex 3, 54 [2].
N’s father is clear that he is unwilling to consent to the issuing of a passport; and N’s mother indicated for her part that whilst she was prepared to inform N’s father of N’s whereabouts overseas, she did not intend to seek his permission before taking N out of Australia. That must be so because there would be no point to the application in this Tribunal if N’s mother did not intend N to travel overseas without N’s father’s consent. Indeed, I believe that if I made a decision authorising the grant of a passport, N’s father might well approach a competent court for an injunction to prevent N’s removal from Australia given the terms of the current orders and given his own firm opposition to N travelling.
Secondly, whether N should travel overseas gives rise to the question of what would be in N’s best interests overall. This question includes, but is wider than, whether N’s psychological health would be adversely affected by her not travelling overseas at this time. The question of where N’s best interests lie is one that is more appropriately addressed by a responsible court in my opinion. The Tribunal is not equipped to make that wider decision in this case. In this regard, I note that while I have considerable doubts about the reliability of N’s father’s assertion that N would not be returned to Australia after the family visit, I cannot dismiss the assertion out of hand.
These two considerations are substantial in my opinion. Accordingly, I think the preferable conclusion in this case is to refuse to exercise the discretion in section 11(2) because the question of whether N should travel internationally is a matter that should be dealt with by a court.
FORMAL DECISION
The remaining question is the formal decision I should make as a result of this conclusion. Subsection (3) of section 11 envisages that when the Minister exercises the power under that subsection to refuse to grant a passport, he or she will do so by way of a declaration. Mr Chan submitted that the Tribunal, although standing in the shoes of the decision-maker so to speak, was not bound to do this, and that it was sufficient for the Tribunal to affirm the decision under review (albeit for reasons that might differ from the delegate’s). The submission that was made is that any declaration I might make would lack utility.[10]
[10] Ex 1, footnote to [14d].
I do not agree with this submission. A statutory provision should not be interpreted in a way that leaves a word or expression superfluous and without function. Following that principle, I believe Parliament must be taken to have intended that the refusal of a passport on the basis that the matter should be dealt with by a court ought always to include a declaration to this effect: this is what subsection (3) specifies clearly. Furthermore, I note that his Honour Justice Brennan, then sitting as President of the Administrative Appeals Tribunal, observed as follows:
When an enactment confers a power, and defines expressly a condition of its exercise (whether as a condition precedent to the power being available for exercise or as a condition governing the manner in which the power is to be exercised), an attempt to exercise the power without fulfilling or observing the condition falls outside the power conferred. (emphasis supplied)[11]
I have decided to proceed – in any event, it is more prudent to proceed – on the basis that subsection (3) does intend to ‘define expressly a condition governing the manner in which the power is to be exercised’; namely, by requiring a declaration by the decision-maker (or by the Tribunal on review).
[11] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, 178.
Although I agree with the delegate that a passport should not be issued to N in this case, my reasons do differ from the delegate’s. The delegate did not act under s 11(3) of the Act, whereas I propose to. All in all, I believe that I should set aside the decision under review and substitute a decision that the Tribunal declares under section 11(3) of the Passports Act 2005 (Cth) that it refuses to exercise the discretion under section 11(2) to issue a passport to N, the applicant, because the matter should be dealt with by a court. This will more appropriately reflect my reasons than a decision merely to affirm the delegate’s
decision.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.
……………..[sgnd]…………….
Associate
Dated: 26 February 2025
Date of Hearing: 6 November 2025

Applicant’s Representative

Self-Represented

Other Party’s Representative

Self-Represented

Respondent’s Representative

A Chan

Sparke Helmore