Brelin, A.B. v The Minister for Immigration & Ethnic Affairs
[1987] FCA 239
•14 MAY 1987
Re: AISHA BYAMIE BRELIN By his next friend Dominique Simone Raymonde Brelin;
CLIVE WILLIAM MATTHEWS; DOMINIQUE SIMONE BRELIN
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NSW G411 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.
CATCHWORDS
Administrative Law - Immigration - Decision to refuse application for permanent residence - Applicant mother of young child born in Australia who would be taken with her to France - Father Australian citizen remaining in Australia - Failure of Minister to take into account a relevant consideration, namely effect on child of severance of relationship with father - Adequacy of consideration of this matter - Effect of effluxion of time since application lodged.
Migration Act 1958 ss.6, 6A.
Administrative Decisions (Judicial Review) Act 1977 s.5.
HEARING
SYDNEY
#DATE 14:5:1987
Counsel for the Applicants: Mr H Gulpers
Solicitors for the Applicants: Terry Buddin & Associates
Counsel for the Respondent: Mr R B Wilson
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The decision made by the respondent to refuse the application of the third applicant dated 11 December 1984, for the grant to her of resident status in Australia pursuant to ss.6 and 6A of the Migration Act 1958, be set aside.
The said application be referred back to the respondent for further consideration according to law.
The respondent pay to the applicants their costs of this proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Dominique Simone Brelin, the third applicant in this matter, was born in France on 24 August 1957. She entered Australia on 4 November 1981, having been granted a temporary entry permit under the Migration Act 1958 for a period of three months. This permit was later extended to expire on 4 May 1982. In November 1981, whilst residing in Sydney, Miss Brelin met Clive William Matthews, the second applicant. They became friends. Mr Matthews resided on a farm at Upper Bobo, via Ulong, in the Coffs Harbour district. He invited Miss Brelin to visit the farm, which she did in January 1982 and again in September 1982. During the course of this second visit Miss Brelin and Mr Matthews conceived a child, Aisha Byamie Brelin, the first applicant. Aisha was born on 23 June 1983, being therefore now almost four years of age.
On 18 April 1985 Miss Brelin applied to the Department of Immigration and Ethnic Affairs for the grant to her of resident status. The application was forwarded to the Department on her behalf by the Macquarie Legal Centre. With the application was enclosed 21 supporting documents, including letters from numerous friends of Miss Brelin. These letters included a letter from Mr Matthews in which he acknowledged his paternity of Aisha; as he had previously done when the birth was registered. Mr Matthews said in his letter:
"Since the birth of Aisha Dominique and I have not resided together but when I am able, I visit them in Sydney and give them what emotional and financial support I can.
It would be a great personal hardship for me if Dominique and Aisha were not allowed to remain in Australia and I was deprived of the opportunity to continue my relationship with my son. Please approve her application to remain in Australia."
The two friends with whom Miss Brelin had resided since her arrival in Sydney in November 1981 wrote a letter in which they referred to Aisha's contact with his father:
"Since Aisha was born in June 1983, Bill has been a caring and attentive father & has visited frequently. With his mother, Aisha has also stayed several times on his father's farm.
It would be a shame to separate this family by not allowing the mother to stay here. As an Australian, Aisha has the right to be brought up by both his parents.
We will be happy to offer any further testimony that you may require and thank you for your consideration of this matter."
There were other letters in which reference was made to the interest taken by Mr Matthews in the child.
On 10 May 1985 Mr E Joseph, Director, Immigration Board, refused Miss Brelin's application. The letter of notification of this decision, dated 21 May 1985, stated that the application had been considered under s.6A(1)(e) of the Migration Act, which permits the grant of a permanent entry permit where there are "strong compassionate or humanitarian grounds". It went on to say that the Director "has decided that your circumstances are not sufficiently compelling to meet the terms of this provision".
On 15 August 1985 Miss Brelin requested review of this decision. With her application form she enclosed a statement which included the following:
"I have now been in Australia for over 3 1/2 years and for the past two years I have had the sole responsibility for the care of my son, Aisha Brelin, who is an Australian citizen by birth. Although my son's father, Bill Matthews, is an Australian citizen and resident in New South Wales, because of his present circumstance it is impossible for him to take over the care and control of Aisha. Bill Matthews lives on a farm in Northern New South Wales but his living conditions are of a very primitive type and he lives without the benefit of electricity and running water. The area in which the farm is located is one with a high rainfall and his results in almost continual dampness which would be very detrimental to the health of a young child.
As an Australian citizen Aisha is entitled to enjoy all of the benefits and rights which flow from that citizenship. Should I be required to leave Australia it would not be possible for me to leave Aisha in the care of his father given the conditions under which he presently lives and I have no close friends to whom I would entrust the care of my son in Australia. This means the only alternative I would have if Aisha were to remain in Australia would be to place him in the care of the Department of Youth and Community Services in New South Wales. This would not be in the best interests of my son and would not be contemplated by me.
Both the International Covenant on Civil and Political Rights and the Declaration on the Rights of the Child have been included as schedules to the Human Rights Commission Act
1981. In accordance with Article 24 of the International Covenant on Civil and Political Rights Aisha was registered immediately after his birth, has a name and has acquired Australian nationality pursuant to Australian law. This being so he has a right be virtue of his status as a minor to such measures of protection as he may need on the part of his family, society and the state as set out in the International Covenant.
Principle 2 of the Declaration of the Rights of the Child states that the best interests of the child are paramount and Principle 3 gives every child an entitlement from his birth to a name and a nationality. Every child without exception is entitled to these benefits. The Declaration goes on to state that wherever possible a child shall 'grow up in the care and under the responsibility of his parents and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not save in exceptional circumstances, be separated from his mother'.
Should I be required to leave Australia my son's emotional and physical well-being would dictate that he leave with me and he would therefore be denied the benefits and protections which are contained in the aforesaid documents and which should be the birthright of every child.
Whilst Aisha's father and I are not living together if Aisha remains in Australia there will be many opportunities for them to meet and for the bonding between them as father and son to be strengthened and developed. If Aisha leaves Australia his father will lose all opportunity to have any share in the rearing of his son as he has no means financially of travelling to France to be with Aisha except perhaps on rare occasions in future years."
The application for review was considered on 29 August 1986 by an Immigration Review Panel. The Panel recommended that the departmental decision be maintained and explained. This recommendation was adopted by Mr C P Mules, Chief Migration Officer, who was a Delegate of the Minister. On 8 September 1986 Mr Mules wrote to Miss Brelin advising her of the decision which had been made. She was asked to inform the Department's Regional Office in Sydney of her plans to depart from Australia.
In its report, which was seen by Mr Mules at the time he made his decision, the Panel referred to the relationship between Mr Matthews and Aisha:
"2 ... Although there is no intention of marriage or of a continuing de facto relationship as the father is involved with another person, he has acknowledged he is the father of the child, as evidenced by the birth certificate, and has maintained contact both with the applicant and their son. He admits he has provided little financial support because of the commitments to a farm he is developing but he has provided emotional support by visiting his son as often as possible. He has written in support of Miss Brelin's application for resident status as have a number of friends of both parties.
3 The main claim in the application is that if Miss Brelin is required to leave Australia she will feel obliged to take her son with her. The primitive conditions on the farm make it impossible for her and her son to live there for any length of time. Removing the child from Australia would deprive him of his rights and benefits as an Australian citizen and to be brought up in the country of his birth. It would also mean that the father would be deprived of access to his son and the emotional bonds which have been built up since the birth of the child would be destroyed.
4 The decision maker did not consider the compassionate grounds sufficiently strong to justify approval of the application. He considered the choice of where the child should be brought up was a decision which the applicant and the father must make.
...
8 The panel carefully weighed the following factors against the view of the Department that they did not constitute sufficiently strong compassionate or humanitarian grounds to justify the grant of resident status to Miss Brelin.
1. She has now been resident in Australia for 4 years 10 months albeit with formal approval for six months only of that period.
2. The support of her application by the father of her child and his claimed emotional attachment to the latter.
3. The emotional wrench which would inevitably be involved in separating a child, now 3 years and 2 months old, from one of his natural parents - in this case, almost certainly the father, mitigated to an extent by the fact that he sees his son, presumably, only infrequently.
9 The Panel concluded that, while compassionate circumstances were present, these were not sufficiently strong in terms of present policy to warrant change of status."
Evidence was given in this proceeding by Mr W.G. Kiddle, the Chairman of the Panel. Mr Kiddle said in his affidavit that, before considering the application, all members of the Panel read and considered, amongst other material, the supporting documents provided by the Macquarie Legal Centre. In his oral evidence he corrected this, saying that these documents were available to him but not to the other members of the Panel. However, he added that, as the letters supporting the appeal were "very relevant", they were read aloud by him to the other members. Under cross-examination it emerged that Mr Kiddle did not actually recall reading out the supporting documents; but that he assumed that he had done this because it was his normal practice in connection with relevant documents. He was adamant that, one way or the other, all members of the Panel had become aware of the content of the supporting letters before the decision was taken.
In his affidavit Mr Kiddle amplified the reasoning of the Panel:
"5. When considering the case of the Third Applicant, the IRP bore in mind that it is the policy of the Department of Immigration and Ethnic Affairs that the existence of a child born in Australia (whether or not that child is an Australian citizen) confers no automatic right of residence on the non-Australian parent.
6. The IRP recommended that the decision under review in the case of the Third Applicant should be upheld. The following considerations, which were discussed between IRP members, were the principal reasons for this recommendation:
(i) If the bond between the First and Second Applicants had been very strong, the First Applicant could have remained on the Second Applicant's property. While conditions there may not be ideal, many Australian children are adequately raised in such conditions.
(ii) The available evidence did not suggest that the First and Second Applicants saw each other frequently.
(iii) The available evidence did not suggest that the Second Applicant was financially supporting the First Applicant, consistently with his means, to the extent that a father normally supports his son where there is a close emotional bond.
(iv) The Second Applicant was involved in a relationship with another person which would hinder him from giving full commitment to the First Applicant.
(v) The First Applicant had been registered by the Third Applicant as a French national, indicating that she wished to raise him as a French national rather than an Australian citizen. This raised doubts as to the significance of any ties the First Applicant might have to the Australian community.
(vi) The Third Applicant had proposed that, if she returned to France, she would work there and the First Applicant would be cared for by his grandparents. However, she also wished to work if she remained in Australia. The IRP considered that if the Third Applicant would be working in any event, it was preferable that the First Applicant should be cared for by his grandparents."
The present proceeding was commenced by an Application filed on 22 September 1986 seeking review of the decision made by Mr Mules on behalf of the Minister. Five grounds were specified in the Application but, in the end, only one ground is pressed: that the Panel and, therefore, Mr Mules, as the delegate of the Minister, failed to take into account a relevant consideration: see s.5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977. The particular matter said not to have been taken into account is the effect upon the relationship between Aisha and his father of the forced departure from Australia of Miss Brelin. It is accepted on all sides -- as it was assumed by the Panel -- that, if Miss Brelin is required to leave Australia, she will return to France, taking Aisha with her.
Counsel for the applicants concedes that the Panel did not ignore the effect on the emotional bond between father and son of Aisha being taken to France. But he submits that the Panel looked at the matter only from the viewpoint of Mr Matthews. Thus, he says that, in para.3, reference is made to the deprivation of the father; and that, although in para.8.3 there is a reference to the "emotional wrench" of separation, the concluding words of the sub-paragraph again refer to the position of the father.
I think that there is substance in counsel's criticism of the Panel's decision, although my reasons depart from the submission. It may be that para.8.3 is capable of being read in such a manner as to include the emotional wrench which would be suffered by Aisha. But several criticisms may nonetheless be made of the Panel's consideration of Aisha's position. These criticisms do not go to the weight of the various factors to be taken into account. Weight was for the Panel and, ultimately, for the Minister to determine. Rather they concern the question whether the Panel gave to the application proper and adequate consideration: see Padfield v Minister of Agriculture, Fisheries and Food (1968) AC 997 at p.1053; or, expressing the question another way, whether there was "a real exercise of discretion": see Associated Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 at p.228.
First, any adequate consideration of the effect of taking Aisha to France had to extend beyond the matter of "emotional wrench". The effect of Miss Brelin's forced departure would be to separate Aisha from his father indefinitely; possibly for the whole of his formative years. Given the financial circumstances of the parties, visits between Australia and France would be likely to be few and far between. The probable result would be permanently to deprive Aisha of any meaningful relationship with his father.
Although Mr Matthews and Miss Brelin had chosen neither to marry nor to co-habit and -- as they each frankly stated -- they had no intention of doing either of these things, the information before the Panel was that there was an existing emotional relationship between father and son. According to para.6 of Mr Kiddle's affidavit the Panel discounted the significance of this relationship for four reasons.
The first reason, noted in para.6(i), was that Aisha was not living on his father's farm. But the reason for that fact was not only the primitive living conditions on the farm. The parties were agreed that Aisha was better off with his mother. Miss Brelin had her own life in Sydney and did not wish to reside permanently on the farm. Nor did Mr Matthews wish her to do so. He had a continuing relationship with another woman. But this did not necessarily preclude Mr Matthews establishing and maintaining a supportive and rewarding relationship with Aisha. Whether he could do so depended upon the frequency and the quality of the contacts between them.
In connection with frequency Mr Kiddle said in para.6(ii) of his affidavit that the available evidence did not suggest that the father and son "saw each other frequently". He was unable in evidence to explain the basis of this conclusion, other than by referring to Mr Matthews' limited financial support. Mr Kiddle's conclusion was consistent with the statement in para.8.3 of the Panel's report that the emotional wrench would be "mitigated to an extent" by the fact that Mr Matthews saw Aisha "presumably, only infrequently". What Mr Kiddle meant by "frequently" and what the Panel meant by "only infrequently" does not appear. Asked about the matter in evidence, Mr Kiddle said that the Panel made no inquiries in order to quantify the frequency of contact. The Panel had before it a letter from the two people with whom Miss Brelin resided which, as it happened, said precisely the opposite; namely that Mr Matthews visited Aisha "frequently". It is true that the writers did not explain what they meant by "frequently" either. But they had offered to supply any further information required by the Department. If the Panel was not content to accept their word as an adequate description of the extent of contact, the demands of proper consideration required them to make further inquiry in an attempt to quantify that extent; not to assume the opposite.
In para.6(iii) Mr Kiddle said that the available evidence did not suggest that Mr Matthews was financially supporting Aisha, consistently with his means, to the extent that a father normally supports a son to whom he has a close emotional bond. But the Panel had no information about either the extent of Mr Matthews' financial support -- except that it was "small" -- or his means. They did have a statement in his letter of 22 March 1985 that he gave "what emotional and financial support I can".
Mr Kiddle referred in para.6(iv) to Mr Matthew's other relationship. But, as he conceded in his evidence, the existence of a relationship between a father and a woman who is not the mother of his child does not necessarily preclude a "full commitment" as a father to the child.
The matters referred to in paras.6(v) and (vi) of Mr Kiddle's affidavit were not mentioned in the Panel's report. Mr Kiddle said in evidence that he made no investigation as to the holding of dual Australian/French nationality. But it is not difficult to see that, whether or not Aisha was raised in Australia, it might be an advantage to him also to hold French nationality. Miss Brelin's action in registering him as a French national does not affect his ties to the Australian community. In any event, if this matter was to be used to cast doubt on Miss Brelin's bona fides, she should have been asked for an explanation before it was taken into account against her.
As to para.6(vi) it is enough to say that the Panel had no information as to the circumstances of Miss Brelin's parents other than their place of residence, the fact that they were still caring for two of their own children and that they could provide what Miss Brelin called "temporary support". Their ability and willingness to care indefinitely for Aisha, whilst his mother worked, was a subject about which the Panel knew nothing.
Finally, the Panel failed to take into account the effluxion of time since Miss Brelin had lodged her application for permanent residence. In particular, a period of more than 12 months had elapsed between the date of the application for review and the date of the Panel's decision. In some cases even such a delay may not alter the material circumstances. But twelve months is a long time in the life of a two year old boy; especially in respect of the development of emotional attachments. The reason for the delay does not appear. It was probably not the fault of the Panel. But, the delay having occurred, proper consideration of the application made it essential that the information regarding Aisha be brought up to date. No attempt was made to do this. On the uncontested evidence before me, the Panel would have found upon enquiry that, after the date of the application for permanent resident status, Mr Matthews had continued to visit Aisha regularly; he being in Sydney for a total of about one and a half months each year, spending time with Aisha. In addition, Miss Brelin and Aisha had visited him at the farm about twice a year for a couple of weeks at a time.
I do not mean to suggest that the decision which fell to be made by the Panel was clear cut. Miss Brelin had deliberately over-stayed her temporary entry permit. The Panel was entitled to take fully into account the Departmental policy against granting permanent residence to people who take that course. But it had to weigh against that general policy the interests of an innocent party, Aisha, whose life would be profoundly affected by the decision to be made. The recommendation to be made was a matter requiring anxious consideration, after a detailed evaluation of the facts relating to Aisha. This did not occur, with the result that the Panel -- and therefore Mr Mules -- failed to take into account a most material matter. It follows that Mr Mules' decision is invalid. That decision must be set aside and the application for resident status in Australia be referred back to the Minister for further consideration.
The respondent must pay the costs of the applicants.
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