EC v MIMIA

Case [2004] FCA 978

FEDERAL COURT OF AUSTRALIA

EC v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 978

MIGRATION — review of decision of the Migration Review Tribunal — Child (Migrant) (Class AH) visa — intercountry adoption — proper construction of requirements of subclass 117 (Orphan Relative) visa

STATUTORY CONSTRUCTION — “top‑down” approach — whether temporal order read into legislative requirement

WORDS AND PHRASES — “relative”, “Australian relative”, “orphan relative”

Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 46, 65, 475A

Migration Regulations 1994 (Cth), regs 1.03, 1.14, 2.01; Sch 1, item 1108; sch 2 clauses 101.211; 102.211; 117.211, 117.212
Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998 (Cth), reg 5
Migration Amendment Regulations 2002 (No.2) (Cth)
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB and 46
Adoption Act 1984 (Vic), s 67
Migration Amendment Regulations 1998 (No. 7) (1998) (Cth)

Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
United Nations Convention on the Rights of the Child

New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW): Report 81, 1997

EC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 485 of 2004

KENNY J
29 JULY 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 485 OF 2004

BETWEEN:

EC
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

30 JULY 2004

WHERE MADE:

MELBOURNE

MINUTE OF ORDER

THE COURT ORDERS THAT:

  1. The applicant pay the respondent’s costs of the application.
  2. (a)       The name of the applicant in this proceeding and any other matter

reasonably capable of identifying him as the applicant in the proceeding be kept confidential and not be further disclosed other than to the parties, their legal advisers, Court staff, the Migration Review Tribunal and officers of the Commonwealth Department of Immigration and Multicultural and Indigenous Affairs and the State Department of Human Services.

(b)The matter be referred to henceforth as “EC v Minister for Immigration and Multicultural and Indigenous Affairs” and any further distribution or dissemination of the reasons for judgment published yesterday be under this name.

(c)No person, other than a party to these proceedings or their legal advisers, Court staff, the Migration Review Tribunal and officers of the Commonwealth  Department of Immigration and Multicultural and Indigenous Affairs and the State Department of Human Services, be given access to any document filed in the proceeding without leave from a Judge of this Court.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 485 OF 2004

BETWEEN:

EC
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

29 JULY 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 485 OF 2004

BETWEEN:

EC
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL…

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AGLC
EC v MIMIA [2004] FCA 978
Case
[2004] FCA 978
Decision Date

CaseChat Overview and Summary

In the case of EC v MIMIA, the applicant sought to challenge a decision made by the Tribunal that she did not meet the criteria for a subclass 117 (Orphan Relative) visa. The primary issue before the Court was the interpretation of the term “orphan relative” as defined in regulation 1.14, and specifically, how it interacts with clause 117.211 in the context of an adoption by an Australian relative. The Court had to determine whether the adoption of the applicant by her Australian relatives precluded her from being considered an orphan relative under the relevant regulations.

The Court examined the definition of "orphan relative" which requires, among other things, that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. It was argued that since the applicant was adopted by her Australian relatives, she could not satisfy the condition that neither of her parents could care for her. However, the Court held that clause 117.211(b) was intended to ensure that an orphan relative would not lose their status solely due to adoption by an Australian relative. The Court found that the applicant did not fit the definition of "orphan relative" because of her adoption, not in spite of it, as she would have no relevant relationship with her adoptive parents but for the adoption. The Court concluded that clause 117.211(b) applies where the applicant would be an orphan relative if they had not been adopted by the Australian relative.

In light of the Court's interpretation, it was determined that the Tribunal's decision was correct and the application was dismissed. The Court's decision hinged on the precise wording of the regulations and the intention behind the legislative changes, ensuring that the adopted child could still be considered for the orphan relative visa under the specific circumstances outlined in clause 117.211(b).

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J
The expression “orphan relative” is defined in reg 1.14. Regulation 1.14 provides:“An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if: (a) the applicant: (i) has not turned 18; and (ii) does not have a spouse; and (iii) is a relative of that other person; and (b) the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and (c) there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.”Pursuant to reg 1.03, “parent” includes an adoptive parent and a step-parent. The concept of adoption is defined in reg 1.04.the tribunal’s decision Before the Tribunal, the adoptive parents contended that the visa applicant met the criteria for a subclass 102 (Adoption) visa and a subclass 117 (Orphan Relative) visa. They submitted documentary material and gave oral evidence. The Tribunal summarised this evidence as follows:“In the hearing the review applicant said that he was born in Australia and his wife said that she came to Australia when she was about 3 years of age and became an Australian citizen when she was about 16 years of age. He said that the adoption arose out of his wife meeting up with Jennifer La’au at a pharmacy in Australia where his wife worked. He said that Jennifer La’au worked for a law firm in Vanuatu. He said that later they received a phone call from Jennifer who said that there was a mother who was going to give up her child for adoption. He confirmed that the visa applicant was born on 25 November 2001. He said that in April 2003 they went to Vanuatu which was the first time he had been out of Australia. The review applicant said that he [had] been in Vanuatu for the 17 days. He said that his wife had only been out of Australia on short cruises when she was younger. He agreed that they had not met the requirement of having resided overseas for more than 12 months at the time of application. In respect to the requirement of approval by a competent authority in Australia the review applicant confirmed that there was no such approval in Australia and that the adoption all took place in Vanuatu. It was also pointed out Vanuatu was not an Adoption Convention country. The review applicant said that they have not had contact with the natural mother of the visa applicant and neither of them has met the natural mother or father of the visa applicant. He also confirmed that the only relationship they have to the visa applicant is as a result of the adoption order. He also confirmed that, to his knowledge, the natural mother and father of the visa applicant are citizens of Vanuatu and not citizens or permanent residents of Australia or New Zealand. He said that he was unaware of any attempts to contact the natural father of the visa applicant.The review applicant’s wife said that she first met Jennifer La’au in August 1999, who was a barrister in Vanuatu, and that in August 2001 Jennifer rang her and told her that the baby was available for adoption. She said that earlier back she had gone to the Catholic Adoption Centre to inquire about adoption and they were offered a family of three and agreed but could not go ahead because they did not have their home at that time. She said that they had since had a home built. She said that in respect to the adoption of the visa applicant, after agreeing to adopt, she decided to wait a year to give the natural mother time to consider her position but Jennifer said that the mother was very happy for the couple to adopt her child.”

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

It follows that, on the interpretation contended for by the respondent, the Tribunal correctly held that the visa applicant did not fall within paragraph (b) of clause 117.211. Her adoption enabled her to satisfy an aspect of the definition of “orphan relative”, whereas paragraph (b) of clause 117.211 provides for the situation where an adoption prevents a person satisfying the definition, and I agree for the reasons stated below.consideration The question for determination by this Court is a narrow one, concerning the proper construction of a criterion for a subclass 117 (Orphan Relative) visa, which is contained in clause 117.211. As counsel for the applicant acknowledged, the adopted child in this case cannot satisfy clause 117.211(a) because she cannot satisfy the definition of “orphan relative” in reg 1.14. As already noted, it was her contention that the adopted child satisfies clause 117.211 (b) since she was not an orphan relative “only because” the sponsoring Australian relative had adopted her. The submission was that the adopted child could not satisfy the definition of “orphan relative” in reg 1.14 “only because”, following her adoption, she could not satisfy paragraph (b) of this definition since her adoptive parents, who were within the definition of “parent” in reg 1.03, were not dead, permanently incapacitated or of unknown whereabouts. I reject this submission. It is not correct to say that the adopted child is not an orphan relative “only because” she has been adopted. If the applicant and his wife had not adopted her, then she would have no relevant relationship with them. When clause 117.211(b) is read with clause 117.211(a), the meaning of clause 117.211(b) is patent. Clause 117.211(b) applies where the visa applicant would be “an orphan relative of an Australian relative of the applicant” if he or she had not been adopted by that Australian relative. The adopted child would not have been an “orphan relative” of either the adoptive parent but for her adoption, because, but for her adoption, she would not be “a relative” of either of them and could not satisfy reg 1.14(a)(iii). As the respondent’s counsel submitted, the Explanatory Statement, which accompanied the Migration Amendment Regulations2002 (No. 2) (Cth) that introduced subclause 117.211 (b), confirms that this subclause was intended to prevent “an orphan relative” from losing this status upon his or her adoption by a sponsoring Australian relative: see Acts Interpretation Act 1901 (Cth), ss 15AB and 46. The Explanatory Statement said:“The Regulations effect changes to the Migration Regulations 1994 to:- correct anomalies in the Subclass 117 (Orphan Relative) offshore visa …; and allow an applicant for an orphan relative visa to satisfy the criterion that they must be an orphan relative, despite the fact that they have been adopted by a specific relative; … The main change to clause 117.211 is contained in paragraph 117.211(b). The new paragraph enables an applicant to satisfy clause 117.211 where he or she is not an orphan relative only because he or she has been adopted by the Australian relative mentioned in paragraph 117.211(a). In some situations where a child has become an orphan, an Australian relative of the orphan may adopt the child, feeling that this would be best for the child. However, to do so means that the child (the applicant) no longer fits within paragraph (b) of the meaning of “orphan relative” in regulation 1.14.Under paragraph 1.14(b) of the Migration Regulations, an applicant for a visa is an “orphan relative” where he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. As the definition of “parent” in regulation 1.03 includes an adoptive parent, an applicant who has been adopted by his or her Australian relative has been unable to be granted a Subclass 117 (Orphan Relative) visa, and in most cases has also been unable to satisfy the criteria for any other visa subclass.However, as a result of new paragraph 117.211(b), the applicant is able to satisfy clause 117.211.The new provision is not intended to provide for the adoption of children overseas by Australian relatives in ordinary circumstances.” [Emphasis added]