Chien v Minister for Immigration
[2016] FCCA 491
•10 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHIEN v MINISTER FOR IMMIGRATION & ORS | [2016] FCCA 491 |
| Catchwords: ADMINISTRATIVE LAW – CITIZENSHIP – Application for citizenship for child – application by one parent – where parent divested of parental responsibility by overseas divorce agreement – where application tainted by fraud – where applicant had no interest in the outcome of the proceedings. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977, ss.5(1)(a), 5(1)(c), 5(1)(d), 5(1)(e), 5(1)(g) Australian Citizenship Act 2007 (Cth), ss.6(1)(a), 6(1)(b), 6(1)(c), 6(1)(d), 21(5), 33(1), 46(2A)(b) Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.60B, 61C, 65D, 65DAC(2), 70G, 70H, 111CS(2), 111CS(4) Foreign Judgments Act 1991 (Cth) |
| Barratt v Howard (2000) 96 FCR 428 R (on the application of Rusbridger) v Attorney-General [2003] UKHL 38 Cheng v Minister for Immigration [2011] FMCA 461 Chamberlain v Banks and Others (1985) 69 ALR 381 Doyle v Chief of General Staff (1982) 42 ALR 283 Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 Kioa v West (1985) 159 CLR 550 Lazarus Estates Ltd v Beasley [1956] 1QB 702 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Perkins v Cuthill (No 2) [1981] FCA 44 R (on the application of Rusbridger) v Attorney-General [2003] UKHL 38 R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Everett [1989] QB 811 R v Senate of the University of Aston; Ex parte Roffey [1969] 2 QB 538 Saraceni v ASIC (2013) 211 FCR 298 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Singh v Secretary, Department of Families Housing, Community Services and Indigenous Affairs (2011) 122 ALD 114 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 |
| Applicant: | HO-YUAN CHIEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SHENG-YEN CHIEN (BY HIS LITIGATION GUARDIAN, DEBORAH AWYZIO) |
| Third Respondent: | HSIAO-YUN HUANG |
| File Number: | BRG 150 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 July 2014 |
| Date of Last Submission: | 10 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 10 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamlyn-Harris |
| Solicitors for the Applicant: | Queensland Family Law Practice |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent appeared by his litigation, Ms Awyzio. |
| Counsel for the Third Respondent: | Mr Somers |
| Solicitors for the Third Respondent: | Rice Legal |
ORDERS
The amended application filed on 5 June, 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application to be agreed and failing agreement to be taxed according to schedule 1 of the Federal Circuit Court Rules 2001.
The applicant pay the second respondent’s costs of and incidental to the application to be agreed and failing agreement to be taxed according to schedule 1 of the Federal Circuit Court Rules 2001.
The applicant pay the third respondent’s costs of and incidental to the application to be agreed and failing agreement to be taxed according to schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG150 of 2012
| HO-YUAN CHIEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| SHENG-YEN CHIEN (BY HIS LITIGATION GUARDIAN, DEBORAH AWYZIO) |
Second Respondent
And
| HSIAO-YUN HUANG |
Third Respondent
REASONS FOR JUDGMENT
On 5 August, 2010 the first respondent conferred Australian citizenship on Sheng-Yen Chien, the second respondent in these proceedings. Sheng-Yen Chien is referred to by the parties to these proceedings as “Joseph”. I will refer to him by that name as well.
By these proceedings the applicant, who is Joseph’s father, asks for the decision to confer Australian Citizenship upon Joseph to be quashed. He also seeks his costs of the proceedings. His application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977.
The application is opposed by the third respondent, Joseph’s mother. The first respondent also opposes the application, except to say that if the Court is satisfied of certain factual matters dealt with more fully below, the Minister suggests that Mr Chien’s application may have merit.
There are some legal issues and some factual issues involved in the resolution of the application. Insofar as the legal issues are concerned, the questions are:
a)whether Joseph’s mother was properly authorised to make an application for Australian Citizenship for Joseph; and
b)whether, having made that application without the consent or knowledge of Joseph’s father, the first respondent was bound by the rules of procedural fairness or natural justice to seek out Joseph’s father’s view of the application.
Mr Chien’s application rests on the following essential propositions of fact, law and mixed law and fact:
a)that he, and only he, could exercise decision making for Joseph;
b)in particular he, and only he, could make the decision to apply for Australian citizenship for Joseph;
c)that Ms Huang had no authority to make the application for Australian citizenship on Joseph’s behalf;
d)that Ms Huang knew, but did not tell the Minister when she made the relevant application for citizenship, that there was an agreement, described as a Divorce Settlement Agreement, which bound she and Mr Chien and which relevantly reposed in Mr Chien parental responsibility for Joseph to the exclusion of Ms Huang; and
e)that, having regard to the Divorce Settlement Agreement Ms Huang knew, but did not tell the first respondent, that she was without authority to apply for Australian Citizenship for Joseph.
Assuming that those propositions are answered in the way in which Mr Chien seeks that they be answered, he says that he is entitled to relief pursuant to s.5(1) of the ADJR Act on the basis that:
a)he was denied natural justice when the first respondent made the relevant decision (s.5(1)(a) of the ADJR Act);
b)the first respondent had no jurisdiction to make the relevant decision because Ms Huang was not qualified, as a matter of law, to make a citizenship application for Joseph (ss.5(1)(c) and 5(1)(d) of the ADJR Act);
c)the first respondent’s decision was induced by Ms Huang’s fraud because she did not inform the first respondent that she had no parental responsibility for Joseph (s.5(1)(g) of the ADJR Act); and
d)the first respondent failed to take into account certain relevant considerations (s.5(1)(e) of the ADJR Act).
Background and some findings of fact
On 17 November, 1997 Mr Chien and Ms Huang married in Taiwan. Joseph is their only child. He was born on 7 February, 2004.
In or about 2005, Mr Chien, Ms Huang and Joseph were living in China where Mr Chien managed an aspect of his family’s business. Joseph experienced a number of serious asthma episodes which resulted in him being admitted to hospital.Doctors advised Mr Chien and Ms Huang that the weather and overall living conditions in Australia may significantly improve Joseph’s condition.
Accordingly, in 2005 Ms Huang and Joseph moved to live in Brisbane. They continued to live in Brisbane until around mid-2010. Mr Chien remained in China. During that time:
a)Joseph lived and was educated in Brisbane under the care of Ms Huang;
b)Mr Chien predominantly worked overseas, but visited Ms Huang and Joseph around 35 days per year; and
c)Ms Huang and Joseph would return to Taiwan to visit family and Mr Chien if he was there.
In November, 2008 Mr Chien, Ms Huang and Joseph became permanent Australian residents.
In 2009 the relationship between Mr Chien and Ms Huang broke down. In about September, 2009 the parties resolved to divorce.
On 21 September, 2009 Mr Chien and Ms Huang executed a document entitled “Divorce Settlement Agreement” in Taiwan. It is in the Chinese language but there are translations of the agreement in the evidence before me. However, Mr Chien and Ms Huang proffer differing translations for what Mr Chien contends is the critical clause in the Agreement. According to Mr Chien’s proffered translation, the material terms of the Divorce Settlement Agreement are as follows:
Divorce Settlement Agreement
The undersigned, namely Ho-Yuan CHIEN and Hsiao-Yun HUANG, have mutually agreed to divorce because of their disparate personality and to stipulate as follows:
1. Having signed this Divorce Settlement Agreement, both of the undersigned shall transact the divorce registration in the Household Registration Office together. Only after they transact the divorce registration would their marriage relationship terminate and may they remarry at will without being interfered with by the other party.
…
5. It is the Male Party that shall be responsible for exercising the rights and assuming the duty in regard to their minor child Sheng-Yen Chien (ID. Num. F131862518). Should the Female Party bring Sheng-Yen Chien to Australia for attending the school there after their having registered the divorce in the registry, the Male Party will temporarily authorize the Female Party to perform the functions in exercising the rights and assuming the duty in regard to their minor child Sheng-Yen Chien until the Male Party arrives in Australia in which case the Male Party may allow the Female party to meet and communicate with Sheng-Yen Chien and live with Sheng-Yen Chien to the maximum extent of 146 days a year. The specific time is negotiated and decided by both Parties.
6. Both Parties understand this Divorce Settlement Agreement takes effect only when both Parties transact their divorce registry in the Household Registration Office without which this Divorce Settlement Agreement will not take effect. In this regard, the duty to register their divorce is not subject to forcible execution.
Ms Huang’s proffered interpretation of clause 5 is:
5. The rights and duties towards the minor son of both parties, Sheng-Yen Chien (I.D No: F131862518) shall be exercised by the Husband. Subsequent to registration of divorce, should the Wife take Sheng-Yen Chien to Australia for education, the Husband is willing to temporarily entrust the Wife to exercise the rights and assume the duties towards the said minor child. However if the Husband comes to Australia, the entrustment shall immediately be at an end. Should this occur, the Husband shall allow the Wife to have the right to visit and make contact with Sheng-Yen Chien. Sheng-Yen Chien shall reside with the Wife for a maximum of 146 days in any one year period. The specific date and time shall be determined by both parties following negotiation.
It is unnecessary to decide which translation is the more accurate.
It is not contentious that notwithstanding the entry into the Divorce Settlement Agreement, the parties were not bound by it and it was of no effect under Taiwanese law until it was registered in the Taiwanese Household Administration Authority. It was not so registered at the time of execution. However, the parties agree that upon registration, the terms of clause 5 of the Divorce Settlement Agreement were sufficient to vest in Mr Chien the equivalent of sole parental responsibility for Joseph for the purposes of the laws of Taiwan.
Following the making of the Divorce Settlement Agreement, but before its registration with the Taiwanese Household Administration Authority Ms Huang and Joseph returned to Australia for the start of the next school term.
Mr Chien asserts that Joseph living with Ms Huang in Australia was a temporary arrangement. Ms Huang says that her agreement with Mr Chien was for Joseph to live with her in Australia and to attend school here. Joseph would spend his school holidays with Mr Chien, hence the reference in the agreement to Joseph spending up to 146 days with her. I accept Ms Huang’s evidence that she and Mr Chien had agreed that Joseph would continue his schooling in Australia and would live with her here while he did that. He would spend his school holiday times with Mr Chien.
Ms Huang says that while she was in Taiwan during the period that she signed the Divorce Settlement Agreement she raised with Mr Chien the prospect of Mr Chien obtaining Australian citizenship. Although Mr Chien denied that matter was raised with him, I accept her evidence that she said words to the effect: “Do you want to come to Australia and stay for some time, so you can be eligible to apply for citizenship with us?” and in response Mr Chien said words to the effect “I want to think about it.”
Consistently with his parents’ arrangement that Joseph should live in Australia with his mother and spend some holiday time with his father Ms Huang and Joseph returned to Australia. In December, 2009 Mr Chien travelled to Australia to collect Joseph. Mr Chien and Joseph travelled to Taiwan for Joseph’s end of year school holidays. Ms Huang travelled to Taiwan in January, 2010 to collect Joseph and bring him back to Australia for school. At the commencement of the 2010 school year Joseph recommenced school in Brisbane.
In about mid-January 2010, Mr Chien came to Australia. He stayed with Ms Huang and Joseph. Mr Chien organised for a lawyer in Brisbane to prepare a Financial Agreement pursuant to the Family Law Act 1975 (Cth) that mirrored the financial provisions of the parties’ Divorce Settlement Agreement. It was signed by the parties on or about 22 January, 2010. Significantly, no steps were taken by either party to have the arrangements concerning Joseph formalised in a binding way according to Australian law.
At this point, the claims by Mr Chien and Ms Huang begin to diverge.
Ms Huang gave evidence that while Mr Chien was in Australia in January 2010, they had a conversation about Australian citizenship. Ms Huang says that she said words to the effect: “I have now printed and prepared the Australian citizenship application for Joseph and myself We should be okay to file the application in a few months, in June. Have you decided about whether you want to stay for the next few months, so you can be eligible to apply? I can make arrangements for you. For example, do you want me to enroll you in English classes, given you have already paid the fees as part of your permanent residency application?” To that, Ms Huang swears that Mr Chien said: “I'm still thinking over about it.”
Although Mr Chien denied the conversation, I accept Ms Huang’s evidence that it occurred in the manner in which she alleges. It is clear from that conversation that Mr Chien knew of Ms Huang’s intention to apply for citizenship for Joseph.
I also accept that during that conversation, Ms Huang showed Mr Chien a printed copy of the citizenship application, with passport photos for she and Joseph stapled to the front of the application.
Mr Chien stayed in Brisbane for about 7 days and then returned to Taiwan. Joseph remained in Australia with Ms Huang and continued his schooling.
On 12 June, 2010 Mr Chien travelled to Australia to collect Joseph for the mid-year holidays. Mr Chien booked a return ticket for Joseph to return to Australia in time for the commencement of the second semester of school.
While he was in Brisbane, Ms Huang raised the question of Australian citizenship with Mr Chien again. I accept that she said words to the effect “Eric, as I told you last time, I have now done the Australian citizenship application for Joseph and myself. Because you have not stayed long enough to be eligible to apply, I cannot include you in the application. So I will file our application first very soon. But when you are ready and eligible, I will be able to help you with yours.”
According to Ms Huang’s evidence Mr Chien made no responsive reply to her.
Mr Chien took Joseph back to Taiwan. While in Taiwan, however, Mr Chien unilaterally decided that Joseph would reside in Taiwan permanently with him. Consequently, he did not return Joseph to Australia to live with Ms Huang.
Ms Huang says that what transpired thereafter was that:
a)Ms Huang needed to wait for the elapse for a certain period of time before she could lodge her and Joseph’s citizenship applications. She thought that period expired on 16 June, 2010, but when she attempted to lodge the applications she was told that she was one day early;
b)on 17 June, 2010 she travelled to Taiwan to pick up Joseph to bring him back to school in Brisbane as previously arranged between the parties;
c)Ms Huang could not find Joseph, but eventually found him staying with his paternal grandparents. They would not let Joseph go with her;
d)shortly prior to 30 June, 2010 Mr Chien told Ms Huang that he would let her see Joseph again and things would be “back to normal” if the Divorce Settlement Agreement was registered in the Taiwanese Household Register (making it binding under Taiwanese law).
Ms Huang agreed and on 30 June, 2010 Mr Chien and Ms Huang registered the Divorce Settlement Agreement in the Taiwan Household Administration Authority.
Ms Huang says that she was induced to do this based on Mr Chien’s promise that things would be “back to normal” if the Divorce Settlement Agreement was registered in the Taiwanese Household Register. Ms Huang also says that, prior to 30 June, 2010 she had received legal advice which suggested that under the Divorce Settlement Agreement she had a right to have Joseph with her for 146 days a year and that, legally, she could take Joseph back to Australia with her to live for that period.
Following the registration of the Divorce Settlement Agreement in the Household Register, Mr Chien refused to let Ms Huang take Joseph back to Australia.
For his part, Mr Chien denies that there was ever any suggestion by him that he would permit Joseph to return to Australia with Ms Huang, even if the Divorce Settlement Agreement was registered. His evidence was that he collected Joseph from Australia with no intention that he should return.
I prefer Ms Huang’s evidence that it was after registration of the Divorce Settlement Agreement that Mr Huang said that Joseph could not return to Australia. I reject Mr Chien’s evidence that he told Ms Huang that Joseph would not be returning to Australia. His actions in procuring return air fares for Joseph to return to Australia at the end of the mid-year holidays are more consistent with him making a decision to retain Joseph in his care after he returned to Taiwan with Joseph, or hiding his true intentions from Ms Huang. It was necessary for the Divorce Settlement Agreement to be registered for it to have legal effect in Taiwan. I am satisfied that Mr Chien used the prospect of Joseph returning to Australia as an inducement to have Ms Huang have the Divorce Settlement Agreement registered. I am satisfied that it was not until after registration of the agreement that he told her that Joseph would not be returning to Australia.
On 9 July, 2010 Ms Huang returned to Brisbane without Joseph.
On 19 July, 2010 Ms Huang commenced proceedings in the Taiwan Taipei District Court seeking orders to vary the parental rights between Ms Huang and Mr Chien as they existed pursuant to the Divorce Settlement Agreement so that it was consistent with Ms Huang’s understanding of what the parties had agreed, namely that Joseph would live with her in Australia.
On 29 July, 2010 she lodged her application for Australian citizenship. One of the documents that she lodged with the application was a Taiwan Household Register Transcript. It recorded, amongst other things, the status of Mr Chien’s and Ms Huang’s relationship. The document she lodged with her application had been produced by the relevant Taiwanese Department before the registration of the Divorce Settlement Agreement. It recorded that Mr Chien and Ms Huang were still married. However, that was not the case. By reason of the registration of the Divorce Settlement Agreement on 30 June, 2010 they were divorced. A Household Register transcript produced after that date would show that they were divorced and would include details for the custodial arrangements for Joseph. A transcript procured by Mr Chien after 30 June, 2010 demonstrates that Mr Chien and Ms Huang are recorded as divorced and that Joseph is in Mr Chien’s custody.
The provision of the inaccurate Household Register transcript with her application for citizenship attracted much attention during the cross-examination of Ms Huang. It was ultimately suggested to her by counsel for Mr Chien that she had deliberately given the outdated transcript with her application so as to mislead the first respondent or at the very least conceal the true position from the first respondent.
I found some of Ms Huang’s evidence about the outdated transcript a little difficult to follow. In the end, she seemed to suggest that she used the outdated transcript because that was the one with the application that she had prepared before she went to Taiwan in June, 2010. The documents had been checked when she attended to lodge her application one day early and they had been found to be in order. Further, she had left Taiwan so soon after the registration of the Divorce Settlement Agreement that a fresh transcript would not have been available. Additionally, she said that she did not agree with the notations made in the Household Register about the custody of Joseph and she had instructed a lawyer in Taiwan to commence proceedings to change those arrangements.
I am not satisfied that Ms Huang deliberately provided the outdated transcript to the first respondent’s department in an effort to mislead the first respondent about Joseph’s arrangements. The provision of the outdated transcript was careless, but in the circumstances that had developed in Taiwan, it is understandable that Ms Huang’s attention to the details of her application – an application which had already been checked and found to be in order – was less than what it could have been. I do not think that she fraudulently concealed information from the first respondent. That is all the more likely given that Mr Chien knew of Ms Huang’s intention to apply for citizenship on Joseph’s behalf and he did not demur to that course.
Soon after, on 5 August, 2010 Ms Huang attended her citizenship test and paid the requisite fees. At the time the citizenship application was lodged, Joseph was living in Taiwan with Mr Chien and was six years of age. Ms Huang gave evidence that she was asked where Joseph was and she said that he was in Taiwan with family. Her answer was accurate although did not indicate that there was now a dispute with Mr Chien about Joseph’s living arrangements.
Mr Chien’s case was, in part, that Ms Huang made her application for citizenship and included Joseph in it, in an attempt to improve her prospects of success in her Taiwanese proceedings and in some proceedings that she planned to commence in the Federal Magistrates Court of Australia. However, I reject that suggestion because:
a)Ms Huang had discussed the application with Mr Chien as I have found above;
b)Mr Chien voiced no objection to the application for Joseph; and
c)the application form lodged by Ms Huang was signed and dated by her on 20 April, 2010, well before there was any suggestion that Mr Chien planned to retain Joseph in Taiwan.
Ms Huang included Joseph in her own application for Australian Citizenship in accordance with s.46(2A)(b) of the Australian Citizenship Act 2007 (Cth).
On 5 August, 2010 a decision was made by a delegate of the first respondent to grant Australian citizenship to both Ms Huang and Joseph.
On 9 August, 2010 Ms Huang applied to the Family Court of Australia for parenting orders under the Family Law Act 1975 (Cth) that would permit Joseph to live with her in Australia. She also applied for orders for parental responsibility under the Family Law Act for Joseph.
On 28 June, 2011 the Taiwan Taipei District Court delivered judgment in the Taiwan proceeding commenced by Ms Huang. The final orders made in that Court altered the parental responsibility of Ms Huang and Mr Chien in relation to Joseph from that which existed under the Divorce Settlement Agreement, but not in any way material to this proceeding.
On 30 November, 2011 Mr Chien brought an application in the Federal Court of Australia seeking a review of the delegate’s decision to confer Australian citizenship on Joseph. The proceedings were subsequently transferred to this Court.
On 23 May, 2012 a judge of the Family Court of Australia permanently stayed Ms Huang’s Family Court application for parenting orders.
Australian Citizenship – The Statutory Framework
The Australian Citizenship Act 2007 (Cth), as the name suggests, deals with Australian citizenship. Division 2 of Part 2 of that Act deals with the acquisition of Australian citizenship by application to the first respondent. Subdivision B of Division 2, Part 2 of the Citizenship Act deals with conferral of citizenship by the first respondent upon application for that purpose.
Section 21 of the Citizenship Act provides the application and eligibility criteria for the conferral of citizenship upon application to the Minister for such a grant. That section expressly contemplates an application by a person who is under the age of 18 years. Subsection 21(5) of the Citizenship Act deals with applications for citizenship by a person under 18 years of age. Its terms are as follows:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
The form of application for the conferral of citizenship is prescribed by the Citizenship Act. In particular s.46 of that Act relevantly provides:
46 Application requirements
(1) An application under a provision of this Act must:
(a) be on the relevant form approved by the Minister for the purposes of that provision; and
(b) contain the information required by the form; and
(c) be accompanied by any other information or documents prescribed by the regulations; and
(d) be accompanied by the fee (if any) prescribed by the regulations.
…
Children aged under 16
(2A) An application under a provision of this Act by a child aged under 16 must be set out:
(a) on a form that contains no other application; or
(b) on a form that also contains an application by 1 responsible parent of the child.
Apart from the sections that I have just reproduced, all parties agree that there is no other provision in the Citizenship Act that deals with the way in which a person under 18 years of age might make an application to the first respondent for the conferral of Australian citizenship.
In combination, ss.21(5) and 46(2A) make it clear that the Citizenship Act does not require that a person under 18 years of age make his or her application for citizenship though the agency of, or with the assistance of an adult, or his or her parents, or one of them.
However, in this case, the application made for the conferral of citizenship upon Joseph was made by Ms Huang including Joseph’s application on the form used by her for her own application for the conferral of citizenship. That was a method of application expressly provided for by s.46(2A) of the Act, provided that Ms Huang was a responsible parent for the purposes of that subsection.
Unarguably she was. Section 6 of the Citizenship Act defines responsible parent in the following way:
6 Responsible parent
(1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or
(b) under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c) under a parenting order the person has parental responsibility for the child’s long‑term or day‑to‑day care, welfare and development (whether or not the person is a parent of the child); or
(d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
(1A) In paragraph (1)(a):
parental responsibility has the same meaning as in Part VII of the Family Law Act 1975.
(2) Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975.
It will be noticed that ss.6(1)(a) – 6(1)(d) are all alternatives. Ms Huang needed to satisfy only one of those subsections to fall within the definition of responsible parent. Mr Chien concedes that Ms Huang was a responsible parent for the purposes of s.46(2A)(b) of the Citizenship Act. Apart from anything else, Mr Chien states in the particulars to paragraph 2 of the grounds of his amended application filed on 5 June, 2014:
(e) The third respondent is, and was at the time of the application, a “responsible parent” in relation to the child within the meaning of section 46(2)(a) of the Act, as defined in section 6 of the Act.
The reference in that particular is clearly a reference to s.46(2A) of the Citizenship Act.
The authority to apply for the conferral of Australian Citizenship begins and ends with the terms of the Citizenship Act itself. Ms Huang was clearly a parent for the purposes of the definition of responsible parent in the Act. Her authority to make such an application for Joseph might have been wanting if there was an order made under the Family Law Act which provided that she no longer had any parental responsibility for Joseph, but there was not.
There was the agreement between the parties, that bound the parties and otherwise had the force of law in Taiwan, that provided for Mr Chien to exercise the “rights and duties towards” Joseph. Although it was not the subject of express argument, the parties proceeded on the footing that Ms Huang had no authority to exercise any parental “rights and duties towards” Joseph, except in accordance with the Divorce Settlement Agreement, at least in Taiwan.
Subsection 6(1)(d) of the Citizenship Act expressly recognises that there might be circumstances where a person has guardianship or custody of the child under a foreign law, whether because of adoption, operation of law, an order of a court or otherwise. That provision is significant because it expressly draws attention to the incidence of guardianship conferred by a foreign law, howsoever that might occur. It authorises a person to make the relevant application where a person has guardianship or custody of the child under a foreign law.
But, in my view, that subsection does not do the opposite. It does not withdraw authority from an otherwise qualified person such as Ms Huang (who was qualified pursuant to s.6(1)(a) of the Citizenship Act) to make an application for citizenship for a relevant child. The withdrawal of the authority to make the relevant application from a parent can only occur pursuant to s.6(1)(a) of the Citizenship Act where, because of orders made under the Family Law Act, the person no longer has any parental responsibility for the child. The absence of an express reference to the withdrawal of parental responsibility by the operation of a foreign law demonstrates that Parliament did not intend that a person who is otherwise a parent would be devoid of authority to make the necessary application by reason of the operation of a foreign law.
The conclusion to be drawn from ss.6(1)(a) and 6(1)(d) is that a foreign law might operate to confer authority upon a parent to make an application for Australian citizenship for a child under 16, but only an order under the Family Law Act can operate to divest a parent of that authority.
Parental responsibility, the Divorce Settlement Agreement and foreign law
Mr Chien argues that the Divorce Settlement Agreement has the force of law in Australia and ought to be seen, in practical terms, as an order of the type contemplated by s.6(1)(a) or 6(1)(d) of the Citizenship Act. The consequence, he argues, is that Ms Huang was without authority to make the relevant application.
He argues that the binding legal effect of the Divorce Settlement Agreement as between he and Ms Huang was confirmed by the Taiwan Taipei District Court when it disposed of Ms Huang’s application. He argues that the decision of that court should be recognised and given effect to under Australian law by reason of:
a)s.111CS of the Family Law Act;
b)the application of the principles for the recognition of foreign judgments in Australia; or
c)an issue estoppel that he argues operates between he and Ms Huang.
As to the first matter, s.111CS is found in Part XIIIAA Division 4 - International Protection of Children of the Family Law Act. It provides:
111CS Applicable law concerning parental responsibility
(1) The principles set out in this section apply despite anything in this Act.
(2)The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence.
(3)The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by an agreement or a unilateral act (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence when the agreement or act takes effect.
(4)The exercise of parental responsibility for a child is governed by the law applying in the country of the child’s habitual residence.
(5)If a child’s country of habitual residence changes to another country:
(a) parental responsibility for the child that exists under the law applying in the country in which the child was habitually resident continues to exist; and
(b) the circumstances in which parental responsibility for the child is attributed by operation of law to a person who does not already have such responsibility are governed by the law applying in the country of the new habitual residence; and
(c) the exercise of parental responsibility for the child is governed by the law applying in the country of the new habitual residence.
(6)Despite subsections (2) to (5), if:
(a) the law that applies because of this section is the law of a non-Convention country; and
(b) the choice of law rules of that non-Convention country designate that the law of another non-Convention country applies; and
(c) the other non-Convention country would apply its own law;
the law of that other non-Convention country applies instead.
(7)The parental responsibility referred to in subsection (2), (3), (4) or (5) may be ended, or the conditions of its exercise changed, by a measure taken in accordance with section 111CD or 111CK.
(8)A court need not apply a principle set out in subsection (2), (3), (4) or (5) if, on the application of an interested person, the court considers that doing so would be manifestly contrary to public policy having regard to the best interests of the child concerned.
Mr Chien submits that pursuant to ss.111CS(2) and 111CS(4), if the Court were to find that Taiwan was Joseph’s habitual residence at the time of the citizenship application, then the issue of parental responsibility would be governed by the Divorce Settlement Agreement and the Taiwan Taipei District Court judgment. I accept that interpretation. But for the reasons that follow, it does not assist Mr Chien’s case.
I find that at the time of Joseph’s citizenship application, his habitual residence was Australia. I reach that conclusion because:
a)until Joseph was collected for school holidays by Mr Chien in June, 2010 his habitual residence was Australia. He had permanent residence in Australia, he lived here with his mother and he went to school in Australia. He had been living in Australia since 2005, with the consent of Mr Chien, and continued to do so after the Divorce Settlement Agreement was signed in 2009;
b)when Joseph went to Taiwan with Mr Chien in June, 2010, it was for his school holidays. It was a temporary visit to Taiwan. Mr Chien had purchased a return airfare to Brisbane for Joseph. In cross-examination he said that when he took Joseph back to Taiwan he had not decided to retain Joseph in Taiwan at that point.
Further, there is a factual dispute between the parties about the circumstances in which the Divorce Settlement Agreement came to be registered in the Taiwan Household Administration Authority. Ms Huang says that she agreed to registration on Mr Chien’s promise that “things would be back to normal” if it was registered. That is to say, Joseph would return to Brisbane with her if the Divorce Settlement Agreement was registered. Mr Chien denies there was such a promise by him, but I find that there was. In the circumstances that presented to Ms Huang in Taiwan after Mr Chien had told her that he intended to retain Joseph, it would be very curious indeed for Ms Huang to join in registration of the Divorce Settlement Agreement and thereby confirm Mr Chien’s decision regarding Joseph. It is most likely, in my view, that there was the inducement of the promise alleged by Ms Huang to encourage her to join in registration of the Divorce Settlement Agreement. The terms of the promise that Joseph would return to Australia – “things would be back to normal” – confirmed that Joseph’s habitual residence was Australia.
Moreover, even after Mr Chien changed his mind and retained Joseph in Taiwan, I do not consider that Joseph’s habitual residence was thereupon changed from Australia to Taiwan. The circumstances in which the Divorce Settlement Agreement came to be registered based upon Mr Chien’s promise suggested that his residence was far from settled, especially given that the agreement provided for Joseph to spend at least 146 days in any one year period with Ms Huang.
Accordingly, Mr Chien’s argument based upon s.111CS of the Family Law Act must fail. The factual basis which I have just discussed – Joseph’s habitual residence at the time of the citizenship application was Australia, not Taiwan, and so the circumstances in which parental responsibility for Joseph is attributed to his parents is governed by Australian law, and in particular, the Family Law Act. By s.61C of the Family Law Act, in the absence of any other order of a court made under the Family Law Act, each of a child’s parents has parental responsibility for that child. Thus, Ms Huang had parental responsibility for Joseph. So too, did Mr Chien. But nothing in s.61C required them to exercise that parental responsibility jointly. The only obligation on parents to make decisions concerning children jointly appears in s.65DAC(2) of the Family Law Act. That section only has application when a court has made an order for shared parental responsibility in respect of the relevant child pursuant to s.65D of the Family Law Act.
In any event, even if that analysis is incorrect, there is another reason why Mr Chien’s argument cannot succeed. The Citizenship Act confers authority to make an application for citizenship for a child by including the name of that child on another adult’s application. Provided the adult doing so is a responsible parent for the purposes of the Citizenship Act, the application is validly made. Ms Huang was a responsible parent for the purposes of s.6(1) of the Citizenship Act. Had Mr Chien wished to give effect to the relevant provisions of the Divorce Settlement Agreement concerning parental responsibility, or decision making for Joseph in Australia, it was necessary for there to be a parenting order that divested Ms Huang of parental responsibility for Joseph. There was not. It was the Citizenship Act which authorised her to make the application for Joseph.
As to the second matter, Mr Chien argues that the Divorce Settlement Agreement and the Taiwan Taipei District Court judgment would nevertheless apply because Australian law would recognise and enforce each of them. The effect of that recognition would be to divest Ms Huang of authority to make the citizenship application for Joseph.
However, I do not accept his argument. There is no dispute between the parties that the proper law of the Divorce Settlement Agreement is the law of Taiwan. Mr Chien led extensive evidence about the effect of the Divorce Settlement Agreement in Taiwan. On no view of that evidence is it suggested that the proper operation of the Divorce Settlement Agreement according to the law of Taiwan, or the proper operation of the judgment according to the laws of Taiwan, would divest Ms Huang of her status of a parent of Joseph. Even if the Divorce Settlement Agreement and the judgment of the Taiwan Taipei District Court are given full effect, as Mr Chien urges me to do, the authority of Ms Huang to apply for citizenship for Joseph is not diminished because that authority is granted by s.46(2A) and s.6(1) of the Citizenship Act provided she continues to be a parent and there are no orders made under the Family Law Act whereby she no longer has any parental responsibility for Joseph.
The third matter relied upon by Mr Chien to demonstrate that Ms Huang was without authority to make the citizenship application for Joseph was what was described as an issue estoppel that arose from the decision of the Taiwan Taipei District Court judgment. Mr Chien argued that this Court should recognise the foreign judgment as deciding that only Mr Chien had parental responsibility for Joseph.
There is no statutory basis for recognising the judgment of the Taiwan Taipei District Court. A foreign parenting judgment cannot be recognised by the Foreign Judgments Act 1991 (Cth). A foreign parenting judgment needs to be registered pursuant to s.70G of the Family Law Act before it has any force and effect as an order made by that court under Part VII of the Family Law Act: s.70H of the Family Law Act. The judgment of the Taiwan Taipei District Court was not so registered.
As for the common law basis for the recognition of foreign judgments, the first respondent directed me to ample authority that Australian courts do not, in the absence of statutory recognition, recognise non-monetary foreign judgments.
Notwithstanding the inability to recognise the judgment of the Taiwan Taipei District Court, there is no doubt that in certain circumstances, the judgment of a foreign court will give rise to an issue estoppel that will be recognised by an Australian court: Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592; Castillon v P&O Ports Ltd [2007] QCA 364 per Holmes JA (as her Honour then was) where the relevant authorities are discussed.
However, as the first respondent submits, the Taiwan Taipei District Court judgment did not determine the issue that is before this Court—it merely determined that Mr Chien had full parental responsibility under Taiwanese law. In other words, all Australian law might recognise is Mr Chien’s parental responsibility under Taiwanese law. That says nothing of Ms Huang’s ability to make a citizenship application for Joseph having regard to s.46(2A) and s.6(1) of the Citizenship Act. In my view, no relevant issue estoppel arises.
Mr Chien refers to the Family Court proceedings between these parties that were permanently stayed by a decision of Bell J given on 23 May, 2012. Mr Chien relies upon that decision to strengthen his claim that an issue estoppel applies as between he and Ms Huang about parental responsibility for Joseph in Australia. Mr Chien argues that Bell J determined that the Taiwanese Court orders determine “the issue between the parties as to parental responsibility”. Thus, the applicant argues the present Court is estopped from again deciding that issue.
The Taiwan judgment decided a different issue. Having regard to the issue so decided, Bell J stayed the proceedings because the issue before his Honour was substantially the same. However, the issue before me is not the same as I have already outlined.
Was Ms Huang able to make a valid application for citizenship for Joseph?
For the above reasons, I am not persuaded that either the Divorce Settlement Agreement or the judgment of the Taiwan Taipei District Court operate so as to prevent Ms Huang from making a valid application for citizenship for Joseph.
The source of her authority to make such an application was her status as a parent of Joseph. She was not a person in respect of whom there had been orders made under the Family Law Act the effect of which was that she no longer had any parental responsibility for Joseph. She was plainly a responsible parent in respect of Joseph for the purposes of s.6(1) of the Citizenship Act. She was authorised to include his name in her citizenship application: s.46(2A) of the Citizenship Act.
I am not persuaded that because Mr Chien had, in effect sole parental responsibility for Joseph according to Taiwanese law at the time of Joseph’s citizenship application, the application was made contrary to Australian law. Had Mr Chien wished to have the parental responsibility arrangements that were in place in Taiwan put in place in Australia, he needed to take steps to have those arrangements recognised here either by parenting orders that reflected the Taiwanese position or registration of the Taiwanese court’s order. He did neither.
Judicial Review
Against those findings, I must now consider the grounds advanced by Mr Chien as giving a right to relief pursuant to the ADJR Act.
Ground 1: Breach of the rules of natural justice
Ground 1 of the amended originating application provides as follows:
1. A breach of the rules of natural justice occurred in connection with the making of the decision, within the meaning of section 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977.
Particulars
(a) The decision to confer Australian citizenship on the second respondent (“the child”) was a decision that affected the rights, interests and legitimate expectations of the applicant as the father of the child and the person who had parental responsibility for the child at the time of the application and the decision;
(b) The first respondent made the decision without informing the applicant of the application, without seeking his consent, and without providing him with an opportunity to make submissions to the respondent in relation to the making of the decision.
By this ground, Mr Chien contends that the first respondent (by his delegate) should have sought Mr Chien’s consent with respect to Joseph’s citizenship application and provided him with an opportunity to make submissions in connection with Joseph’s citizenship application. By not doing so, the first respondent is said to have breached the natural justice hearing rule.
Mr Chien argues that this ground goes “hand in hand” with ground 3 of his application because it was the failure of Ms Huang to disclose the effect of the Divorce Settlement Agreement upon the incidence of parental responsibility that resulted in the first respondent’s delegate making the decision without first obtaining the views of Mr Chien.
Mr Chien develops his argument concerning natural justice upon the following propositions:
a)Mr Chien had parental responsibility, if not sole parental responsibility, for Joseph when the application for citizenship was made;
b)as a person with parental responsibility, he undoubtedly had “rights, interest and legitimate expectations” with respect to Joseph’s citizenship;
c)he ought to have been consulted about the citizenship application made for Joseph.
As Mr Chien points out in his submissions, the Citizenship Act did not expressly impose an obligation on the Minister to provide natural justice to any person. However, Mr Chien relies upon what was stated by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11] – [13]:
In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
[citations omitted]
In Kioa v West (1985) 159 CLR 550 at 584, Mason J identified the obligation to provide procedural fairness as “a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”
Mr Chien points out that for the purposes of the common law rules relating to natural justice the concept of what is a relevant right or interest is very wide. In that respect, Mr Chien referred me to a passage from a judgment of North J in Saraceni v ASIC (2013) 211 FCR 298 where, after referring to the first sentence in the passage extracted above said at [12]:
The notion of rights and interests in this context is wide. For instance, in Kioa v West (1985) 159 CLR 550 (Kioa) Mason J said at 582; [28], that ‘[t]he reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests’.”
The first respondent points out, however, that the appropriate enquiry is not so much about the existence of rights or interests vested in the relevant person, but about the content of the requirement to afford natural justice depending upon the circumstances of the case at hand: Kioa v West (above) at 585.
In Kioa v West (above) at 584 Mason J explained there are no fixed rules about what is appropriate in terms of natural justice. What is required to satisfy a natural justice obligation depends on the circumstances of the case - including the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting. Most importantly, where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute: Kioa v West (above) at 584.
In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Brennan J explained the position in the following way, at 326:
The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice.
That the legislative framework is significant in determining the content of a natural justice obligation that might otherwise exist is demonstrated by Barratt v Howard (2000) 96 FCR 428. In that case, their Honours Beaumont, French and Merkel JJ remarked, at 444:
As a general proposition it is not lightly to be supposed, absent express provision, that legislators have conferred a power affecting rights, privileges or liabilities, which is able to be exercised in a way that is unfair. Whether they have will depend upon the attributes of the power concerned. These will include its width, purpose and subject matter and the consequences of its exercise.
The first and third respondents argue that in this case, assuming Mr Chien was to be afforded natural justice when the first respondent made a decision on Ms Huang’s application for Joseph, the content of any natural justice obligation did not extend to requiring the first respondent’s delegate to consult with Mr Chien with respect to the application. Nor did it require the decision-maker to provide Mr Chien with an opportunity to make submissions with respect to the application.
In my view, those contentions are correct for the following reasons.
No right impinged/no entitlement at law
The nature of the rights said to be potentially affected by the administrative decision is relevant. I prefer the view that Mr Chien had no right which potentially might have been infringed by the administrative action taken by the first defendant. Leaving aside the position under Taiwanese law, the position under the Family Law Act is that parents have no rights in respect of their children, but rather responsibilities and obligations. So much appears from the objects and the principles of Part VII of that Act as set out in s.60B of that Act.
Whilst the Family Law Act gives to parents, and others who are not parents but who come within s. 65C of the Act, the ability to apply to a court exercising jurisdiction under that Act for the making of a parenting order, the Act itself grants no “rights” in favour of parents over their children. I incline to the view that at best, the devolution of parental responsibility upon parents by s.61C of the Family Law Act is, if not the devolution of obligations and responsibilities upon them, at best a privilege to make decisions, both of a long term and short term nature about their children.
As I have reasoned above, Ms Huang had as much parental responsibility for Joseph as did Mr Chien under the Family Law Act. That parental responsibility did not need to be exercised jointly. It could be exercised severally or independently one of the other.
In my view, the making of a decision on the application for citizenship for Joseph made by Ms Huang did not impinge upon or infringe any right enjoyed in Australia by Mr Chien.
No adverse decision proposed to be made
There are no adverse consequences for Mr Chien arising from the first respondent’s decision. At best, Mr Chien complains that the privilege to make decisions concerning Joseph’s citizenship that he enjoys, severally with Ms Huang in Australia, was negated by her decision to include Joseph on her application for citizenship.
No adverse decision contrary to Joseph’s interests
Although it was suggested that there were adverse consequences for Joseph by reason of the grant of Australian citizenship, for the reasons I have discussed below, I am not satisfied that there are any adverse consequences for him.
Statutory structure against Mr Chien’s interpretation
The first respondent argues that statutory context in which a citizenship application is made strongly dictates against a conclusion that a decision-maker is required to consult with both parents of a child with respect to a proposed citizenship decision. I accept that submission.
The Citizenship Act expressly contemplates that a child’s citizenship application may be made by one responsible parent (s 46(2A)(b)). That might be contrasted with other statutes that, subject to some exceptions, require an application by both parents, or at least the consent of all persons who have parental responsibility for a child before the relevant administrative action is taken. The issue of an Australian passport for a child is an example: s.11 of the Australian Passports Act 2005 (Cth). There is no similar scheme in the Citizenship Act.
The Citizenship Act provides that a child’s application for citizenship can be made on the same form as that of a responsible parent who is also applying for citizenship. The questions set out on the form relating to the child’s application are relevant. They are to be found on page 8 of the Bundle of Relevant documents (exhibit 1) tendered on the hearing of this application.
It can be seen from the application form that there is no provision for the giving of information about any other parent of the relevant child or any other person who might have parental responsibility for the child who is the subject of the application.
As the first respondent submits, in the case of a child under 16 years the citizenship application process contemplated by the Citizenship Act appears to be relatively straightforward. It involves the first respondent determining whether the child meets the eligibility criteria set out in s.21(5) of the Citizenship Act. That subsection requires satisfaction of the following matters:
a)whether the child is under 18; and
b)whether the child is a permanent resident of Australia.
However, the first respondent might refuse an application even though the eligibility criteria are fulfilled: s.24(2).
The grant of citizenship to a child falls to be determined on two straightforward questions of fact. Nothing in the Citizenship Act or the regulations made thereunder (Australian Citizenship Regulations 2007) requires, or envisages, consultation with people who are not applicants but who might otherwise have parental responsibility for the relevant child.
There seems to be no basis in the Citizenship Act to suggest, and the applicant did not seek to suggest, that the Citizenship Act contemplates that the decision-maker would or should seek out the views of those who are not applicants to ascertain whether there is any basis to refuse to grant Australian citizenship to a child the subject of the application.
The Citizenship Act does not, by its terms, contemplate consent from, or consultation with, each of a child’s parents when the first respondent is considering an application brought on the child’s behalf by a parent pursuant to s 46(2A)(b) of the Act. That might be contrasted to the position under the Australian Passports Act.
Facts unknown to decision maker
In Kioa v West (above) at 627, Brennan J observed:
What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right, but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised.
When the question for the court is whether the condition satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.
Here the first respondent’s delegate did not know that Mr Chien had for the purposes of Taiwanese law at least, sole parental responsibility for Joseph. The Citizenship Act did not require an applicant making an application on behalf of a child to demonstrate any consent or other signified acquiescence by the parent who was not making the application. In those circumstances, and in the absence of any knowledge on the part of the decision maker of the claims to sole parental responsibility made by Mr Chien, the content of the natural justice obligations required to be afforded by the first respondent did not require the first respondent to seek out Mr Chien’s views about the application.
In my view, Mr Chien does not make out his claim that a breach of the rules of natural justice occurred in connection with the making of the decision, within the meaning of s.5(1)(a) of the ADJR Act. In effect his claim, were it to succeed, would require the first respondent, in every case of an application for citizenship by one parent of a child, to seek out the views of the child’s other parent. The Citizenship Act simply does not provide for that to occur.
Ground 2: No jurisdiction or, alternatively, decision not authorised
Mr Chien’s argues that either the delegate for the first respondent did not have jurisdiction to confer Joseph with citizenship upon the application, or in the alternative, that the decision to do so was not authorised by the Citizenship Act. He submits that this is because Ms Huang’s application on behalf of Joseph was not valid. It was not valid, he submits, because Ms Huang did not have lawful authority to make the application for Joseph. He argues that she did not have lawful authority because, where such an application is made on behalf of a child, it can only be made a person with parental responsibility for the child. He argues that she did not have that authority.
However, for the reasons I have already given, the proposition that the Divorce Settlement Agreement circumscribed Ms Huang’s ability to make a citizenship application on Joseph’s behalf must be rejected. Ms Huang was a parent of Joseph for the purposes of both the Citizenship Act and the Family Law Act. Her parental responsibility under the Family Law Act had not been affected by an order under that Act.
Mr Chien also suggests that the application was not valid because Joseph was resident in Taiwan at the time the application for citizenship was made. Section 21(5) provided that to be eligible for the conferral of citizenship, the first respondent needed to be satisfied that Joseph was a permanent resident both at the time the application was made and at the time of the first respondent’s decision on the application. Relevantly, the phrase permanent resident is defined in s.5 of the Citizenship Act as follows:
5Permanent resident
(1)For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a)the person is present in Australia at that time and holds a permanent visa at that time; or
(b)both:
(i) the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c)the person is covered by a determination in force under subsection (2) at that time.
Joseph plainly satisfied s.5(1)(b) and was a permanent resident for the purposes of the Citizenship Act even though, on Mr Chien’s case, he was then living permanently in Taiwan.
In my view, Mr Chien does not establish that the first respondent was without jurisdiction to make the relevant decision or that the grant of citizenship to Joseph was not authorised by the Citizenship Act.
Ground 3: Decision induced or affected by fraud
By this ground Mr Chien argues that the first respondent’s decision to grant Joseph citizenship was induced by fraud within the meaning of s.5(1)(g) of the ADJR Act.
As the first respondent usefully summarises, the applicant’s reasons are that Ms Huang mislead the delegate of the first-respondent to believe that she had parental responsibility of Joseph and that Joseph was living in Australia with her at the time of the application.
The first respondent referred me to the decision of Bromberg J in Singh v Secretary, Department of Families Housing, Community Services and Indigenous Affairs (2011) 122 ALD 114 which sets out the pre-conditions for review on the ground of fraud. First, the Court must make a finding of fraud. Second, the decision must have been actually induced or affected by the fraud in the sense that it had a material effect on the decision. As the first respondent further submits, “fraud” has not been precisely defined by the courts in the administrative law context (see, e.g., SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189).
The third respondent referred me to s.50 of the Citizenship Act however this section merely makes it an offence to make false statements or representations in relation to applications under that Act. It does not define “fraud” for the purposes of judicial review.
The applicant referred me to SZIVK v Minister for Immigration and Citizenship [2008] FCA 334 where Finkelstein J made the observation at [31] that the High Court in SZFDE (above) concluded “that to amount to fraud, in the field of public law, the impropriety may not have to be as serious as in other civil suits”.
To be engaged, s.5(1)(g) of the ADJR Act requires that “the decision was induced or affected by fraud”. Fraud requires someone to have acted in an intentional way to mislead or deceive. It also encompasses wilful recklessness. In Cheng v Minister for Immigration [2011] FMCA 461, Barnes FM (as her Honour then was) said at [63] in the context of a migration appeal that:
As the first respondent contended, the overwhelming inference is that Mr Lee simply made a mistake . . . Even if this may be negligence, without more it is not fraud.
(my emphasis)
I am not satisfied that Ms Huang provided any information in the application form that she used for her citizenship application and Joseph’s citizenship application that was false. All of her answers were accurate and true. In particular, in answer to the question: “21 Is there a parenting order giving responsibility for any children named in this application to another person?” Ms Huang gave an accurate answer by ticking the “No” box. There was no such order under the Family Law Act, or otherwise. The Divorce Settlement Agreement registered in Taiwan was not an order for the purposes of the Citizenship Act or the Family Law Act.
The delegate of the first respondent who made the decision on Joseph’s application gave reasons for the decision. The following appears in those reasons:
The Australian Citizenship Instructions give further guidance in respect of considering the applications for Australian citizenship by dependent children under the age of 16
Australian Citizenship Instructions - Applicants under the age of 16
Children under the age of 16 applying on the same form and at the same time as a responsible parent would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:
· the child was living in Australia with the relevant responsible parent; and
· the relevant responsible parent consented to the inclusion of the child in their application.
…
As the client's history shows, Ms HUANG lodged an application for a permanent residence visa (Onshore Business Skills Subclass 893) on 21-07-2007 at the Brisbane office of DIAC. The application included her spouse, Mr CHIEN Ho-Yuan (d.o.b. 03.08.1970) and her child, Master CHIEN Sheng-yen (d.o.b. 07.02.2004). All three persons were granted Subclass 893 permanent residence visas on 10.11.2008 at the Brisbane office of DIAC.
At the time of his application for citizenship on 29.07.2010, Master CHIEN was considered to be a resident of Brisbane and living with his mother, Ms HUANG. Master CHIEN had departed Australia on 12.06.2010. There is a client note in ICSE (Departmental Processing System) made on the 29.07.2010 (the day of application) advising that Master CHIEN was visiting family in Taiwan. I considered Master CHIEN to have his usual address in Australia and to be usually residing in Brisbane with his mother, notwithstanding that at the time of his application and decision he was with family in Taiwan.
I considered Ms HUANG to be a responsible parent of Master CHIEN. Ms HUANG presented a Taiwanese Family Register showing her as the mother of the child, Master CHIEN. The child CHIEN was on his mother's Medicare card. Master CHIEN was included in Ms HUANG's application for permanent residence.
From those reasons, it appears that Ms Huang informed an officer from the first respondent’s department when she lodged the relevant application, that Joseph was visiting Taiwan. There is nothing to suggest that she told the first respondent’s department that Joseph was, on his father’s view, now living permanently in Taiwan with him. But Ms Huang’s view was that she had an agreement with Mr Chien that Joseph could reside with her in Brisbane for 146 days per year so that he could go to school here. She gave evidence, which I accept, that she had legal advice to that effect. In those circumstances, I am not satisfied that Ms Huang was fraudulent when she did not mention the dispute about Joseph’s living arrangements to the first respondent’s department. She was giving her view of the arrangements. To do so was not, in my view, fraudulent. What she said was not knowingly false.
Further, for the reasons I have given earlier I am not satisfied that the failure to include an up-to-date transcript of the Household Register by Ms Huang was fraud for the purposes of s.5(1)(g) of the ADJR Act.
In those circumstances I am not satisfied that the delegate for the first respondent was induced into believing an incorrect state of affairs by Ms Huang. In my view the decision was not affected by Ms Huang’s fraud.
In any event, even if those findings are wrong, there is no evidence to suggest that had Ms Huang provided a more up-to-date transcript of the Household Register that showed the parties’ divorce and Mr Chien’s custody of Joseph, the first respondent’s delegate’s decision would have been any different. That is to say, I am not satisfied that the decision was actually induced or affected by the fraud for which Mr Chien contends because it did not have a material effect on the decision. At page 4 of the delegate’s statement of reasons, the delegate says:
I found that Master CHIEN was a permanent resident at time of application and at time of decision and met the legislative requirement set out in subsection 21(5) of the Act. Furthermore, I found that Master CHIEN met the policy guidelines because he had a responsible parent as defined in section 6 of the Act who was, or would become, an Australian citizen.
The finding that Joseph was a permanent resident was plainly correct having regard to the definition of that term in the Citizenship Act. It is clear from the balance of the paragraph that the actual living arrangements for Joseph played no part in the decision made by the delegate.
Ground 4: Failure to take relevant considerations into account
This ground is in the following terms:
4. The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, within the meaning of section 5(1 )(e) of the Administrative Decisions (Judicial Review) Act 1977, because in making the decision the first respondent failed to take relevant considerations into account in the exercise of the respondent's power, within the meaning of section 5(2)(b) of the Act.
Particulars
(a) The first respondent approved Australian citizenship by conferral for the child in the exercise of the his power section 21 (5) of the Australian Citizenship Act 2007;
(b) The first respondent failed to take into account a relevant consideration. namely his power under section 24(2) of the Act to refuse an application despite the applicant being eligible for Australian citizenship under subsection 21(2);
(c) The rights, interests and legitimate expectations of the applicant as the father of the child were relevant considerations in the exercise of the power;
(d) The respondent failed to take into account the rights, interests and legitimate expectations of the applicant as father of the child.
Section 24(2) of the Citizenship Act provides:
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
This section becomes relevant once the first respondent (or his delegate) has decided that the applicant for citizenship is eligible to become an Australian citizen.
I accept the first respondent’s submissions that the language of s.24(2) of the Act does not suggest that the decision-maker is obliged to consider refusing to approve the relevant person becoming a citizen. Whether to consider refusing the application is entirely discretionary. Nothing to which I was taken by Mr Chien suggested that a consideration of the discretion to refuse an application provided in s.24(2) of the Act was a mandatory consideration. In the absence of an obligation to consider that discretion, it cannot be said that a consideration of the discretion was a “relevant consideration”, the failure to consider which would lead to relief under the ADJR Act.
Further, I accept the first respondent’s submissions that the delegate’s statement of reasons reveal that the delegate did, in fact, consider whether or not the discretion under s.24(2) of the ACA should be exercised, but found that it should not.
To the extent that Mr Chien argues that the first respondent failed to take into consideration a relevant matter, namely the rights, interests and legitimate expectations of Mr Chien as Joseph’s father, I have dealt with this argument above in connection with Mr Chien’s claim that he was denied natural justice. The present argument is simply another way of putting his argument concerning his entitlement to be heard on Joseph’s application. For the reasons I have given above, this ground cannot be made out. The first respondent was not required to take into account Mr Chien’s views about Joseph’s application (as made by Ms Huang).
Conclusion
In my view Mr Chien does not make out any of his grounds of review. His application must be dismissed with costs.
However, if I am wrong about that, in my view there are good discretionary reasons to refuse relief to Mr Chien. In Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248 at [87] per Emmett, Allsop and Graham JJ said:
The grant of relief under the ADJR Act is discretionary. That is consistent with the principles concerning the grant of relief under the prerogative writs. There was a discretion for a court to refuse prerogative relief where an alternative remedy was available. That principle is also the origin of the express discretion conferred by s 10(2)(b). Nevertheless, that express discretion does not derogate from the general discretion arising under s 16. Section 16 undoubtedly reserves a discretion to the Court as to whether to grant relief in a particular case. While s 10(2)(b) is directed to the specific circumstance where adequate provision is made by another law for an applicant to seek review of a decision and giving rise to an express discretion to refuse relief, the absence of engagement of that provision does not preclude the exercise of the residual discretion conferred on the Court by s 16.
The exercise of the discretion to grant relief is unfettered. In the present case, in my view, the exercise of the discretion is informed by four matters, namely:
a)Mr Chien will sustain no real injustice if relief were refused;
b)the grant of relief would be futile;
c)the relief sought would occasion a detriment to Joseph; and
d)Joseph wishes to retain his Australian citizenship.
At the conclusion of the trial I sought additional submissions from each of the parties about whether I should decline to grant relief on the basis that there was an alternative remedy available to Mr Chien, namely to apply for a renunciation of Joseph’s citizenship pursuant to s.33(1) of the Citizenship Act.
Having regard to those submissions, and in particular those made for Mr Chien, I am satisfied that an application for renunciation could not be made by Mr Chien on Joseph’s behalf. Section 33(1) provides for applications for renunciation by a person of their own citizenship. Unlike applications for the conferral of citizenship, an application for renunciation cannot be included in an application that is also made by a responsible parent. Only Joseph can make an application for renunciation of his citizenship.
No real injustice to applicant if relief refused
The Court can exercise its discretion to refuse to grant relief where there will be no real injustice if the relief is refused. Blain J makes this clear in R v Senate of the University of Aston; Ex parte Roffey [1969] 2 QB 538 at 559, where his Honour states that “real injustice [is] a necessary ingredient before any such application is granted.”
In R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Everett [1989] QB 811 at 819, considering the exercise of a prerogative power, O’Connor, Nicholls and Taylor LJJ found that where “the applicant has suffered no injustice and that to grant the remedy would produce a barren result there are no grounds for granting relief.” Similarly, in Perkins v Cuthill (No 2) [1981] FCA 44, Keely J found that a court should not exercise the discretion to refuse relief against an applicant where it was “demonstrated that a substantial injustice was done to the applicant.”
In this case, there is no injustice to the applicant made out. No right or entitlement of Mr Chien has been affected by the first respondent’s decision. Whilst Mr Chien might have made an application for citizenship on behalf of Joseph, but did not do so, that Ms Huang did so successfully cannot be said to have caused any injustice, substantial or otherwise, to Mr Chien. That is especially so give that they each retained parental responsibility in Australia for Joseph.
Futility of grant of remedy
Another ground upon which a court might exercise its discretion against granting relief is where the relief would be futile: Doyle v Chief of General Staff (1982) 42 ALR 283. That is to say, if relief were granted, it would not occasion any useful outcome for the applicant. In Duncan v Chief Executive Officer, Centrelink [2008] FCA 56, when considering granting declaratory relief under the ADJR Act, Finn J declined to do so on the basis that he was not satisfied that there would be any utility in granting the relief sought.
It is difficult to see what utility there is in granting the relief that Mr Chien seeks other than that it would assuage his concerns that Ms Huang has been able to achieve something for their son with which he does not agree.
In my view, there is no real need for the relief sought to be granted. There is nothing that would suggest that it makes any substantial difference to Mr Chien whether or not Joseph is an Australian citizen.
Relief would occasion hardship to Joseph
The Court might exercise its discretion to refuse to grant relief where the relief sought would occasion hardship to a third party or a respondent.
The High Court considered hardship in relation to a grant of certiorari in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16. In that case, the Court exercised its discretion to refuse relief in the nature of a writ of certiorari quashing the order of a Federal Court judge. The order had the effect of allowing single women to access IVF and one of the main factors to which the Court had regard when reaching its decision was the effect that such relief would have upon those who had accessed or provided such services. The effects included the possibility of imprisonment for up to four years for those who had acted in reliance upon the Federal Court order. In that case McHugh J noted that the applicant bore an evidentiary burden, namely to show that the relief sought would not occasion hardship to a third party. His Honour said, at [118] that:
At the very least, the Conference would need to show, so far as it was reasonably possible to do so, that in fact no single women in Victoria had received IVF treatment since his Honour made the order in question. The Conference made no attempt to discharge this evidentiary burden.
So too in Chamberlain v Banks and Others (1985) 69 ALR 381 the Full Court of the Federal Court refused relief on the basis of the detriment that might be suffered by others not directly connected to the proceedings. In that case, the applicant, an unsuccessful interviewee for a public service position, sought review of the decision of the central promotions appeal committee to affirm the appointment of other officers to the relevant positions. In reaching their conclusion, Woodward, Davies and Beaumont JJ found (at 384) that even if grounds had been established to allow the appeal (and they had not), to do so would occasion hardship to the successful applicants. In that case, much was made of the reliance of the successful applicants upon their appointments.
Of all of the parties in this case, it is Joseph who is most directly affected by the first respondent’s decision. Indeed, in my view, he is the only party affected by the first respondent’s decision. The first respondent’s decision has cast upon Joseph all of the benefits and entitlements that comes with citizenship of this country. There is no evidence that it has brought with it any particular burdens for Joseph, either as an Australian citizen, or as a Chinese citizen of Taiwan.
The evidence of Joseph’s litigation guardian, which was not objected to, nor challenged at the trial of this application, but which Mr Chien sought to challenge in his last delivered written submissions, makes it clear that Joseph wishes to retain his citizenship. Her evidence makes it clear that Joseph has identified tangible benefits to retaining his citizenship, not the least of which is access to Australian universities and tertiary education as an Australian citizen. No party suggested that was not a tangible benefit that Joseph might in due course avail himself.
Mr Chien did seek to file some evidence after the hearing in this matter and made a further submission which sought to re-agitate the issues that had been dealt with at the hearing and in subsequent written submissions. I have paid regard to those submissions. In them, Mr Chien suggests that there is a detriment to Joseph remaining an Australian citizen in that he will be subjected to ongoing litigation and in that regard “Applicant and Joseph have to spend costs heaped up indefinitely”. However, apart from the present proceedings, there are no ongoing proceedings and the proceedings that Ms Huang commenced in the Family Court of Australia have been permanently stayed. I do not understand the argument.
I am satisfied that granting the relief sought by Mr Chien would occasion hardship to Joseph as he would lose the rights associated with his Australian citizenship. In particular, he would lose the right to travel freely between Australia and Taiwan without applying for a visa, he would also lose the right to work in Australia without a visa, should he wish to do so in the future and most importantly, he would lose the right to access HECS and other such schemes as a domestic student at Australian universities and other tertiary institutions. These are matters that Joseph has thought about and identified. He wishes to retain his citizenship.
Accordingly, for those three broad reasons, it seems to me that it would be inappropriate to grant the relief sought by Mr Chien in any event.
Costs
Mr Chien has been unsuccessful in obtaining the relief that he sought in the proceedings. Costs should follow the event. Costs should be agreed between the parties and if not agreed, taxed according to schedule 1 of the Federal Circuit Court Rules 2001.
Accordingly I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 March, 2016.
Date: 10 March, 2016
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