McGrath and Minister for Foreign Affairs and Trade [2003] AATA 13 (23 December 2003)

Last Updated: 7 January 2004

DECISION AND REASONS FOR DECISION [2003] AATA 1330

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2002/1958

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Luke McGrath

Applicant

And

Minister for Foreign Affairs and Trade

Respondent

DECISION

Tribunal

Ms N Isenberg, Member

Date 23 December 2003

Place Sydney

Decision

The decision under review is set aside.

........................................

N Isenberg Member

CATCHWORDS

AUSTRALIAN PASSPORT - prescribed minor - consent refused by mother - no contact for a substantial period - special circumstances - legitimate need to travel - decision set aside.

LEGISLATION

Passports Act 1938 (Cth)

CASE LAW

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW: The decision of the delegate of the Respondent, to refuse to grant Luke an Australian passport.

BACKGROUND

1. Luke is an Australian citizen aged 13. He currently resides with his father, Paul McGrath ('Luke's father'), in Fiji.

2. Luke applied for an Australian passport on 20 November 2001 through the Australian High Commission in Suva, Fiji (T5). The application attached a copy of an order of the First Class Magistrate's Court at Nadi (Fiji) awarding sole custody to Luke's father.

3. The Department wrote to Luke's mother, Ms Achariye (`Luke's mother'), and sought her consent to issue him with a passport (T7) because he was a 'prescribed minor' within the meaning of the Passports Act 1938 (Cth) (`the Act'). The Act prohibits (with some exceptions) an Australian passport being issued to a prescribed minor unless every person with 'caring responsibility' for the prescribed minor consented.

4. Luke's mother declined to give her consent on 13 December 2001 (T9). At that time she also provided a copy of an order of the Family Court of Australia, showing that the court had ordered sole custody of Luke to her.

5. On 18 December 2001, an Approved Senior Officer of the Department decided that special circumstances did not exist by reason of which an Australian passport should be issued to Luke in the absence of consent by his mother (T10).

6. On Luke's behalf, Luke's father sought review of this decision by the Respondent on 21 February 2002 (T17).

7. On 10 October 2002, the Department wrote to Luke's mother, informing her that the decision not to issue an Australian passport to Luke had been contested, and providing her with the opportunity to make submissions (T51). Luke's mother responded, restating her opposition to a passport being issued to Luke (T52).

8. The delegate of the Respondent decided to affirm the decision not to issue an Australian passport to Luke on 21 November 2002 (T54).

ISSUE BEFORE THE TRIBUNAL

9. It was conceded that under the Act Luke's mother's consent was required before an Australian passport could be issued to Luke as she has `a caring responsibility' for him.

10. However, a passport may also be issued to a prescribed minor if his physical or mental welfare would be adversely affected if an Australia passport were not issued.

11. Section 7A(4) of the Act also prescribes circumstances where a passport may be issued notwithstanding that a person with a caring responsibility does not consent. To come within this provision the Guidelines must be considered, and there must be special circumstances why the passport should be issued.

12. The Guidelines, so far as are relevant, require consideration of whether:

Luke's mother had no contact with him for a substantial period of time, or;

There is legitimate need for Luke to return to Australia or to travel to another country

APPEARANCES

13. A hearing was held before the Tribunal on 3 December 2003 at which Luke was represented by a friend, Annette Watson, retired solicitor, and the Department was represented by Greg Mole, of Minter Ellison.

EVIDENCE: Documents

14. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975. A number of exhibits were also tendered, and have been retained in the Tribunal's file.

CONSIDERATION OF ISSUES AND FINDINGS

15. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

16. I now turn to the identified issues.

Would Luke's physical or mental welfare be adversely affected if an Australia passport were not issued?

17. Ms Watson had made a detailed written submission in relation to this ground. She had written that from her personal experience Luke was extremely proud of his Australian heritage.

18. Luke himself told me that he was very upset at not being issued an Australian passport. He said he would like to visit his father's family in Australia and when he returns to Australia he intends to do so `with dignity'.

19. He was asked why he was determined to obtain a passport, as distinct from an identity document or a limited validity passport, either of which would permit his entry into Australia. He said he wanted to come on a passport `as a normal person'.

20. Ms Watson referred me to the report of Dr Narayan, consultant physician at Lautoka Hospital dated 6 October 2003. The doctor wrote that on examination Luke had experienced `mental anguish' caused by the `loss' of his Australia passport. He wrote of Luke's inability to concentrate well on his schoolwork and his disturbed sleep pattern. He considered Luke had a loss of self-esteem and anger. He regarded him as suffering from physical and mental stress, and that, on examination, was `of depressed and withdrawn mood'.

21. This account, however, is at odds with other evidence. Luke's evidence was given in an articulate manner which did not suggest to me that he was `withdrawn' and he seemed to me to demonstrate maturity beyond his years. Similarly, documents in the nature of references from his school and others suggest that he is a delightful young man.

22. His school results also indicate good academic performance, which is also at odds with the doctor's findings of an inability to concentrate at school. Luke himself had told the doctor he did not want to see a psychiatrist because he 'does not suffer from a mental illness'.

23. As to other physical effects there was extensive evidence in the material before me of his outstanding swimming skills and the great determination and dedication with which he trains.

24. I accept that Luke is proud of his Australian heritage and is extremely disappointed and frustrated by his inability to obtain an Australian passport at this time. I do not however, consider that the evidence supports a finding that his physical or mental welfare would be adversely affected if a passport were not issued.

25. I then turn to the Guidelines and the questions to be addressed.

Has Luke's mother had no contact with him for a substantial period of time?

26. Luke's father gave a lot of information about the acrimony between him and his wife and information about the family history, which is not required for the purpose of this decision.

27. He also made a number of contentions about Luke's mother and his perception of her attitude towards Luke. He gave his account in an understandably emotive fashion and I prefer, for the purposes of coming to a view about the level of contact, to rely on the information provided by Luke and the detailed material tendered by Ms Watson.

28. Luke told me the only contact from his mother he had received between the ages of 3 and 9 was a single birthday card in which she had wished him a happy 8^th birthday, when it was in fact his 9^th birthday. He said he had tried to contact her in 2001 but her solicitors (through whom he was obliged to communicate) returned the Christmas card he had sent. He said he has sent videos of himself through the solicitor, and, although these have not been returned, he has had no acknowledgment of them. He was aware she had written letters about him, in declining to consent to the issuing of a passport.

29. Ms Watson, in her written submission, noted that Luke had been residing in Fiji since 1993 and that his mother was aware of his address since that time. Luke's mother had not contacted him at all between 1994 and July 1999, when she sent him the birthday card.

30. The birthday card was apparently in response to Ms Watson's efforts to encourage Luke's mother to establish contact with him. From that time to January 2000 Luke had received only one further card and one letter from his mother. He has received nothing since that time notwithstanding that his address remains unchanged.

31. Ms Watson, when writing to Luke's mother on 22 June 1999 had recorded that Luke had attempted to visit his maternal grandparents in Fiji but had been refused entry to the compound.

32. Although Luke's mother has right of contact under Fijian law (which she obtained at the time of her divorce) she has chosen not to exercise those rights.

33. There appears to have been no impediment to Luke's mother visiting Fiji in the time he has resided there. Ms Watson said that Luke had learned that his mother had in fact visited her family in Fiji in January 2000 but had not contacted him while there. It was also in January 2000 that Luke's mother wrote to Ms Watson suggesting that she (Ms Watson) persuade Luke's father to return Luke to Australia. She told Ms Watson not to bother her again with correspondence and court documents unless Luke was returning to Australia.

34. It was the Respondent's position that Luke's mother had limited opportunity to maintain contact with her son because of his continued residence in Fiji.

35. There was also some suggestion that correspondence from Luke's mother may have been intercepted. In this regard Mr Mole referred me to the letter sent to Luke via Ms Watson dated 19 August 1999, that had been `censored'.. Ms Watson explained that she had done so on the basis that she had considered it unfair to Luke (then aged 9) to suggest that if he returned to his mother's custody he may be sponsored by the Australian government in respect of his studies and swimming.

36. In her letter to the Department (received there on 9 September 2003) declining to consent to the passport application, Luke's mother wrote that she had written to her son `many times' and suggested that Luke's father may have been intercepting mail. In an earlier telephone conversation with an officer of the Department on 11 December 2001 it was also recorded that she had sent letters and cards to Luke but did not know if they were received or handed to Luke. Ms Watson, in her letter to Luke's mother dated 22 June 1999 had undertaken to personally arrange for delivery of letters to Luke. She also offered to forward any letters that had been returned to Luke's mother, but none were received.

37. Ms Watson tendered a Christmas card that Luke had sent to his sister (who resides with their mother) in 2001. The card had been returned by the solicitors for Luke's mother. I do not draw any conclusion from the return of the card, but I do note that in the card Luke wrote:

Mum never writes to me. Hasn't she got a pen?

38. A difficulty for me is that `contact' is not defined in the legislation.

39. I accept that the only correspondence received by Luke were those forwarded through Ms Watson in 1999 and 2000. In that regard I note that prior to her intervention, that is between 1994 and 1999, there had been no correspondence received by Luke at all. In 2001 Luke sent the card to his sister which, poignantly, includes a reference to having received nothing from his mother, which I take to be during that year. There is no evidence that he received anything from her in 2002 or this year either.

40. Mr Mole submitted that as Luke's mother had attempted contact `as recently' as July 1999 (ie the birthday card) it could not be said that there was `no contact for a substantial period of time'.

41. I have come to a contrary view.

42. I accept that the geographical differences have made physical contact improbable. I observe however that as Luke's mother was given ex parte property orders as a result of which she sold the family home. Presumably her financial situation was somewhat enhanced compared to that of Luke's father whose only income (since 1978) is an Australian disability support pension. Travel to Fiji may have been more available to her than for Luke and his father to travel to Australia. She may in fact have done so.

43. As to contact by mail, Luke's mother apparently wrote to him in 1994, some 18 months after he left Australia. No details are to hand about this correspondence. The other correspondence received has been referred to above.

44. I cannot come to a view whether Luke's mother wrote additional letters to him which were intercepted. Certainly Ms Watson received no more to forward after 2000. Having opened this avenue for correspondence there was no reason for Luke's mother to adopt a direct mailing address instead, thereby bypassing Ms Watson.

45. I regard the time since the last letter received by Luke, in 2000 in the circumstances of this case, to be a `substantial period of time'.

46. In coming to this view I do not rely on the suggestion that Luke's mother may have visited Fiji in 2000. If this were the case it is, I would suggest, given her professed love for her son, inexcusable that she did not visit him. By contrast, in the letters that she did write to him, Luke's mother wrote of her love for him.

Is there is legitimate need for Luke to return to Australia or to travel to another country?

47. Having come to the above view it was not necessary for me to decide if there is legitimate need for Luke to return to Australia or travel elsewhere. I do observe however that the issue of Luke's custody remains unclear. Both parents have custody orders from courts of their respective places of residence. Of particular relevance is that, on return to Australia, Luke's mother may seek to enforce the orders previously made in her favour. This appears to be a consideration of which both Luke and his father are aware. It might be said that resolution of Luke's custody, in itself, gives rise to a legitimate need for him to return to Australia.

48. I also observe that Luke's travel to Australia or elsewhere is not precluded whether or not an Australian passport is issued. He may return to Australia on a limited validity passport or on a document of identity. He holds a Fijian passport and can, and does, travel using that passport. However I do not think that alternative means of travel preclude consideration of entitlement to an Australian passport. If that were so, then this Guideline would have no relevance to the issue of a passport to Australian citizens in Luke's circumstances.

Are there special circumstances to issue an Australian passport to Luke notwithstanding that Ms Achariye does not consent?

49. A further difficulty I encountered in coming to my decision is that `special circumstances' is also not defined in the Act.

50. The phrase `special circumstances' has been dealt with extensively by the Tribunal and the Federal Court, albeit in the context of social security legislation., notably in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where it was said:

"An expression such as `special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special."

51. I have used this as a guide in the present case.

52. Luke said he and his father had `been in Fiji long enough'.. When he was asked what he proposed to do in Australia he said he is going to attend Cronulla High School, at which he is already enrolled. He said his present school has limited facilities. For example, there are no computers, a restricted choice of subjects and there are 52 students in his class. He is near the top of his class and would like to improve his education. From his evidence I accept that education in Australia would be far more beneficial than that which can be offered to him in Fiji.

53. Luke also told me that he wanted to further his swimming training. For the last 7 years he has been training on his own, there being no swimming club near his home, nor any coaches. He is, by all accounts, a gifted swimmer. He was recently sponsored by a Fijian business to go to Beijing to train and found that his times improved even with only short exposure to competition. At the time of hearing he was again undertaking sponsored training, in New Zealand. He hopes to swim for Fiji in the Olympics until he is 21. After that age (by which time he must elect for whom he swims) he hopes to swim for Australia. He is confident of achieving his goal with the right training. I accept that facilities for swimming training are limited in Fiji and that training outside Fiji has to date relied upon a corporate benefactor. It is unclear if Luke's swimming ability would make him a candidate for the Australian Institute of Sport, although it was clear that with even minimal training opportunity he has already improved significantly.

54. Ms Watson also wrote in her submission that Luke's father is unwell and wishes to return to Australia for treatment. That Luke accompany him is entirely appropriate. Luke also wishes to visit his grandmother who is also aged and infirm. Accommodation with Luke's stepbrother has already been arranged.

55. Ms Watson said that Luke had been `hurt' by his mother's letters declining to consent to the passport application, and she personally found the whole matter `distasteful'.

56. Although I discussed this at length with Ms Watson and Mr Mole, it remains unclear to me precisely why Luke (and his father) would not accept the lesser travel documents in order to facilitate Luke's return to Australia. (I have already discussed that I do not regard the availability of those documents as an impedient to the issue of a passport, if Luke would otherwise be so entitled.) If return to Australia were all that was at stake then these avenues would appear to meet their requirements.

57. I accept though that Luke is proud of his Australian heritage. In a letter to Ms Watson dated 2 September 2003 Luke wrote that he was `ashamed' and `embarrassed' and that he felt he had lost his Australian identity. He also wrote that the visas he must acquire when travelling on his Fijian passport are expensive. Luke's father told me of their lack of funds. Furthermore, because they live 500 kms from Suva, Luke told me it is `a big hassle' to obtain a visa to travel to New Zealand to train whereas, on an Australian passport, no visa would be required at all. He also wrote that he had no intention of `belowing' (sic) himself by being examined by a psychiatrist to `prove to the AAT and my mother' that he needs his own Australian passport.

58. Perhaps more perplexing is what has operated on Luke's mother's mind in refusing to consent to the application.

59. When Luke's mother wrote to the Department declining to consent to the passport application (December 2001) she expressed concern that Luke would be taken `even further abroad'.. Although it was unclear from her next letter (October 2002) what was the basis of her concern, in a conversation between her representative and an officer of the Department at about the same time, the concern about Luke being taken further away was again raised. Most recently (September 2003), Luke's mother wrote again of this concern. It is unclear if she is aware that as Luke already has a Fijian passport he is able to travel freely (other than to Australia), subject to usual visa requirements.

60. Ms Watson prepared a detailed chronology. Amongst events detailed was information that in 1990 Luke's mother sought to deny her husband access to Luke. Luke's father obtained an injunction preventing Luke's removal from Fiji but in 1991 Luke was removed contrary to the court order. Luke's father needed to bring proceedings in the Family Court in Australia in order to locate him. In Fiji Luke's mother advised the court that she wished custody to be given to Luke's father. When Luke's paternal grandfather was gravely ill Luke's father asked Luke's mother to take care of Luke but apparently she declined to do so and the child was left in the care of his maternal grandparents. Luke's father had to take further proceedings in Fiji to have Luke's grandparents release him. In June 1993 Luke's father was granted sole custody by the Fijian court and it was not until August 1994 that Luke's mother obtained orders from the Family Court of Australia.

61. Taking into account all of the above I am satisfied that the circumstances surrounding Luke's application for an Australian passport are special. This is not a case where the issue of a passport will facilitate the removal of the child from the jurisdiction. Nor is it one where the child's travel on an Australian passport will make his whereabouts unknown to one parent. These factors make the case markedly different from the usual cases where one parent who has legitimate concerns does not consent to the issue of a passport. Furthermore return to Australia is highly desirable in Luke's case: his education will be greatly enhanced, his swimming prospects are likely to improve, and, most importantly, his custody is likely to be conclusively resolved. As I have stated earlier - I do not consider the availability of alternative travel documents to be a factor in deciding entitlement to an Australian passport.

DECISION

62. The decision under review is set aside.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER

Signed: .......................................................................................

Niamh Kinchin, Associate

Date/s of Hearing 3 December 2003

Date of Decision 5 October 2001

Counsel for the Applicant

Solicitor for the Applicant Annette Watson

Counsel for the Respondent

Solicitor for the Respondent Greg Mole