Elaraby v Minister for Immigration
[2018] FCCA 1101
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELARABY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1101 |
| Catchwords: MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Remaining Relative visa – whether the Tribunal erred in proceeding on the basis that before the criteria for the grant of a Remaining Relative visa can be satisfied the Tribunal had to be satisfied the applicant’s biological father was dead – whether the Tribunal erred in relying on the common law presumption of death in determining whether the biological father was dead – whether the applicant’s step-father who lived in Australia was the “parent” of the applicant to the exclusion of the applicant’s biological father – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60E, 66D, 66M Migration Act 1958 (Cth), ss.5(1), 5CA Migration Regulations 1994 (Cth), regs.1.04, 1.14A, 1.15, Schedule 2, cl.835.323 |
| Cases cited: A v New South Wales [2007] HCA 10 Axon v Axon (1937) 59 CLR 395 Goth & Banks [2013] FamCA 430 |
| First Applicant: | SHERIN MOHAMED SALAHELDIN SOLIMAN ELARABY |
| Second Applicant: | ABDELRAHMAN MOHAMED ALI BAIOMY |
| Third Applicant: | ALIA MOHAMED ALI BAIOMY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3431 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Cohen |
| Solicitors for the Applicant: | Sun Legal |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3431 of 2015
| SHERIN MOHAMED SALAHELDIN SOLIMAN ELARABY |
First Applicant
| ABDELRAHMAN MOHAMED ALI BAIOMY |
Second Applicant
| ALIA MOHAMED ALI BAIOMY |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are nationals of Egypt, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants an Other Family (Residence) (Class BU) (Subclass 835) visa (Remaining Relative visa).
Background
The first applicant (applicant) and her dependent children applied for a Remaining Relative visa on 25 February 2014. The applicant’s mother (Mother), who is an Australian citizen, is the applicants’ sponsor.
In order to have been entitled to the grant of a Remaining Relative visa the applicant had to satisfy, among other things, cl.835.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which requires the applicant be “a remaining relative of an Australian relative”. The expression “remaining relative” is relevantly defined by reg.1.15(1) of the Regulations as follows:
An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a)the other person is a parent, brother, sister, step‑brother or step‑sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia; and
(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; . . .
The expression “near relative” is defined in reg.1.15(2) as follows:
near relative, in relation to an applicant, means a person who is:
(a) a parent, brother, sister, step‑brother or step‑sister of the applicant or of the applicant’s spouse or de facto partner (if any); or
(b) a child (including a step‑child) of the applicant or of the applicant’s spouse or de facto partner (if any), being a child who:
(i) has turned 18 and is not a dependent child of the applicant or the applicant’s spouse or de facto partner (if any); or
(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse or de facto partner (if any).
On 22 August 2014 a delegate of the Minister refused to grant the applicants a Remaining Relative visa. The delegate was unable to verify whether the applicant has no near relatives other than those usually resident in Australia, and, for that reason, found the applicant did not satisfy the meaning of “remaining relative” in reg.1.15(1)(c) of the Regulations.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 29 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the Mother, the applicant’s half-brother (Mr SA), and the Mother’s husband (Mr A).
The applicant said she has never met the biological father because the mother was pregnant with the applicant when she separated from the applicant’s biological father. The mother later married Mr A, who raised the applicant as his own child. The applicant said she considers Mr A to be her father.[1]
[1] CB580, [7]
According to the Tribunal’s reasons, [2] the Mother said she married the biological father when she was 17 years of age, and last saw him when she was 19 years of age when she was pregnant with the applicant. The Mother did not know the biological father well because it was a forced marriage that had been arranged by her father. When she was 19 years of age, and pregnant with the applicant, the Mother told her father she no longer wanted to stay married to the biological father. The Mother’s father took her to the United Arab Emirates. The Mother said she had little contact with the biological father’s family; and that her parents may have known the family, but both her parents are now deceased.[3]
[2] CB581, [10]. The Tribunal’s summary of the evidence that was given by the Mother at the hearing is not entirely consistent with the evidence the Mother gave in a statutory declaration (CB393-394). Nothing turns on this because no party before me has submitted the Tribunal incorrectly stated the effect of the Mother’s evidence; and the Tribunal accepted the Mother’s evidence, as it understood it, in any event.
[3] CB581, [10]
Mr SA said he was born in 1986 and is an Australian citizen by descent. He arrived in Australia when he was 16 years of age and attended school and university in Australia. After he completed university Mr SA worked as a marketing manager for an Abu Dhabi based company until 2015 when he returned to Australia. While he was overseas Mr SA lived in accommodation provided by his employer. He said he owns no property in Australia, and he does not pay any tax in Australia. Mr SA also said that it was always his intention to live in Australia permanently.[4]
[4] CB580, [9]
The applicant’s step father, Mr A, said he is the only father the applicant has ever known.[5]
[5] CB581, [11]
In addition to receiving oral evidence, the applicant provided documents that were relevant to whether the biological father was dead. The documents included a letter to Mr A from an Egyptian lawyer he had engaged reporting on the results of investigations the lawyer had undertaken in relation to the whereabouts of the biological father.[6] The lawyer reported that:
a)a search in the Civil Register revealed there are 1,851 persons who have the same name as the biological father;
b)a search of the Register of Marriages and Divorces revealed the biological father divorced the Mother in 1981, and that he was an officer of the armed forces;
c)the results of a search of the Register of Deaths were such that the lawyers were unable “to reach a concrete conclusion about whether he is dead or alive since this kind of information is restricted and unattainable for all officers of the Egyptian army”;
d)a search of the register of missing persons revealed no missing person who bore the name of the biological father; and
e)a property search of the biological father’s last known address found that a new building had been erected on the property in 1996.
[6] CB476-479
The lawyer also reported on inquiries that were made of residents of the newly erected building at the biological father’s last known address, where one person said he remembered a person by the name of the biological father, that he remembered that man to have been a lieutenant in the Egyptian Army, and that the last time he saw him was before the assassination of President Sadat on 6 October 1981.
Tribunal’s reasons
The Tribunal was satisfied paragraphs (a) and (b) of reg.1.15(1) of the Regulations were met because the Tribunal was satisfied the Mother is usually a resident of Australia and is the parent of the applicant. The Tribunal, however, was not satisfied the applicant met reg.1.15(1)(c), namely, that the applicant has no near relative other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The Tribunal accepted, or made findings, to the following effect:
a)Whether or not the biological father has remarried and had other children is speculative and, for that reason, there is no evidence the applicant has half siblings outside Australia.[7]
b)The biological father has played no role in being a father-figure to the applicant, the applicant has never met the biological father or been contacted by the biological father, and she considers Mr A to be her father.[8]
c)The Regulations “make no distinction as to the quality of the relationship between any near relatives”; nor do the Regulations require that near relatives need to be in communication with each other. The Regulations only take into account whether or not a person has near relatives as defined in reg.1.15(2).[9]
d)There was no evidence that the applicant’s biological father has ever lived in Australia.[10]
[7] CB582, [21]
[8] CB582, [23]
[9] CB582, [24]
[10] CB582, [24]
The Tribunal then considered “the fate of” the biological father. The Tribunal referred to having “received a large amount of material essentially suggesting that [the biological father] be presumed dead”. The Tribunal also referred to the Mother having had no contact with the biological father after their divorce in the early 1980s, that the biological father made no attempt to contact the applicant, and that the only clear facts about the biological father were that in the early 1980s he was an army officer, and that he would now be in his mid-60s.[11] The Tribunal referred to the applicant’s having engaged a lawyer in Egypt to search for the biological father, but “to no avail”, and set out the results of the lawyer’s enquiries.[12]
[11] CB582, [26]
[12] CB682, [27]
Having identified the material that was before it in relation to the biological father, the Tribunal turned to the common law presumption of death. The Tribunal noted that, although it was not bound by technicalities or rules of evidence, and, therefore, is not “bound by the common law presumption of death”, that presumption, nevertheless, “is a useful guide”. The Tribunal said the presumption of death may be expressed as follows:[13]
If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead.
The rebuttable presumption of death increases the probative value of the basic fact of a person being missing for seven years where there is no evidence contradicting such inferences as might be drawn from it. While a person who has been missing for six and a half years may be as likely to be dead as someone missing in the same circumstances for seven years, seven years gives rise to a rebuttable presumption of law while a period less than this may give rise to a cogent presumption of fact that the person in question is dead. The amount and strength of evidence required to rebut the presumption is unclear. Once evidence is called the presumption has no inherent superadded weight and the presumption cannot be weighed against evidence, but the evidence should be weighed against any other evidence which counterbalances it. The presumption only becomes relevant if the evidence is so evenly balanced that the Court is unable to reach a decision on it.
[13] CB582, 583
The first paragraph of the Tribunal’s statement of the common law presumption of death appears to be taken from the judgment of Dixon J in Axon v Axon.[14] Counsel for the Minister suggested that the second paragraph has been taken from the seventh Australian edition of Cross on Evidence.[15]
[14] (1937) 59 CLR 395 at page 405
[15] That appears to be correct. The same passage is quoted in the decision of the Migration Review Tribunal in 0902425 [2011] MRTA 299 at [30] which cites Heydon JD (2004) Cross on Evidence: Seventh Australian Edition, Butterworths Australia at [7290] and [7280].
Although the Tribunal recognised it could not apply the presumption “as it is a matter of judicial interpretation”, it was nevertheless of the view it was “not prevented from making a finding of fact that a person is dead in circumstances where the presumption would arise”.[16] The Tribunal then noted the following: [17]
a)There is a distinction between missing and not being in communication.
b)In the circumstances before the Tribunal, it could not be said the biological father has been missing since the early 1980 because no one had been looking for him until recently.
c)There is no suggestion that, at the time the Mother was taken to the United Arab Emirates in the late 1970s when she was pregnant with the applicant, the biological father disappeared. The Mother left the biological father and made no attempt to keep in touch with him.
d)According to the lawyers’ report the building at the last known address of the biological father was demolished in 1996.
[16] CB582-583, [28]
[17] CB583, [30]
The Tribunal concluded as follows:[18]
Given that steps have only been taken recently to locate [the biological father], the tribunal is not prepared to presume he is dead.
[18] CB583, [30]
Given the Tribunal did not accept the biological father was deceased, it decided it was unnecessary to consider the circumstances of Mr SA. The Tribunal, therefore, concluded that reg.1.15(1)(c) was not met, and affirmed the delegate’s decision.
Ground 1 - failure to make finding that biological father is dead
The application for review contains three grounds. The first is:
The Tribunal failed to exercise jurisdiction in not making a finding of fact in relation to whether the first Applicant’s biological father was still alive.
Counsel for the applicant submitted the Tribunal made a jurisdictional error because it placed the onus on the applicant to prove that her near relative, the biological father, is deceased when the Tribunal should have asked itself whether it was satisfied that the biological father was still alive. Counsel relies on the judgment of McInnis FMA in Kim v Minister for Immigration & Anor.[19]
[19] [2007] FMCA 798
In Kim the Migration Review Tribunal (MRT) found it was not satisfied that three of the applicant’s near relatives were deceased and, for that reason, concluded it was not satisfied the requirement stated in reg.1.15(1)(c) of the Regulations was satisfied. The applicant in that case submitted the MRT asked itself the wrong question, namely, whether or not it was satisfied that three of the applicant’s siblings were deceased; whereas the question the MRT should have asked, but did not ask, itself was whether the applicant had a near relative in Cambodia.[20]
[20] [2007] FMCA 798 [23], [24]
McInnis FMA concluded the MRT erred by asking the wrong question, namely, whether or not the relevant siblings were dead.[21] His Honour further said:[22]
I otherwise accept that it is essential for the operation of reg.1.15(1)(c) for the [MRT] to make a finding of fact that the visa Applicant has an overseas near relative. In the present case it did not make that finding but rather incorrectly in my view simply reached a view that it was not satisfied that the siblings were dead. It did not, as submitted by the First Respondent, however proceed to make a finding and nor could it make the finding that the siblings were “still alive”.
[21] [2007] FMCA 798, [35]
[22] [2007] FMCA 798, [37]
Counsel for the Minister accepted that this part of the judgment of McInnis FMA could be read as holding that the MRT was required in that case to make a positive finding that the applicant had an overseas near relative before it could conclude the applicant had a near relative outside Australia. Counsel submitted, however, that if that is what his Honour intended to hold, his Honour was plainly wrong. In any event, counsel submitted that, when one reads the judgment of McInnis FMA as a whole, “it’s more nuanced than that”.[23] Counsel submitted that the jurisdictional error McInnis FMA found the MRT made in that case was that it failed to understand the claims the applicant advanced in that case.
[23] T19.35
In my opinion McInnis FMA was of the view that it “is essential for the operation of reg.1.15(1)(c) for the Tribunal to make a finding of fact that the visa Applicant has an overseas near relative”. If that view is correct it follows the Tribunal in the case before me will have made a jurisdictional error because the Tribunal affirmed the delegate’s decision without finding that the biological father was alive. The question that arises is whether the view McInnis FMA expressed in Kim is clearly wrong.
That question is to be answered after construing the text of reg.1.15(1) according to the principles stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[24]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[24] [2009] HCA 41; (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.
There are two relevant points to note about reg.1.15(1) of the Regulations. The first is that whether or not an applicant has a “remaining relative” depends on the Minister and, on review, the Tribunal, being satisfied of the matters set out in paragraphs (a), (b), (c), and (d) of that regulation. That is, reg.1.15 “is framed in a ‘subjective’ form”.[25] For reg.1.15(1) to apply, therefore, the mind of the Minister or of the Tribunal must be moved to believe in the existence of the matters set out in paragraphs (a), (b), (c), and (d) of that regulation.
[25] Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1047 (Lord Wilberforce)
The second point is that the matter stated in reg.1.15(1)(c) of the Regulations of which the Minister or Tribunal must be satisfied is denoted in terms of a negative proposition: the applicant or the applicant’s spouse or de facto partner have no “near relatives” (as that expression is defined in reg.1.15(2) of the Regulations) other than relatives who are usually resident in Australia and Australian citizens, Australian permanent residents, or eligible New Zealand citizens. On first impression it may appear that it is not logically or psychologically possible for a decision-maker to assess or believe in the truth of a negative proposition; and that, for this reason, the requirement provided by reg.1.15(1)(c) of the Regulations that the Minister be satisfied an applicant does not have a near relative outside of Australia can only be met by construing reg.1.15(1)(c) as being met unless the Minister is satisfied the applicant does have a near relative outside Australia. And it may be that it is for these reasons that McInnis FMA expressed the view that “it is essential for the operation of reg.1.15(1)(c) for Tribunal to make a finding of fact that the visa Applicant has an overseas near relative”.
In the context of forensic proof it has been observed that the “difficulty of proving a negative is well known”;[26] and courts have sought to address these difficulties by rules governing the allocation of the legal burden of proof[27] or, more usually, at least in Australia, by rules governing the shifting of the evidentiary burden of proof.[28] Notwithstanding these perceived difficulties, however, there are a number of circumstances in which a court must positively be satisfied that a fact does not exist;[29] and in these circumstances it has been said that if “the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff”.[30] These matters necessarily imply that, at least in the eyes of the law, there is no principle of logic, and there is no aspect of the psychology of decision-making, that prevents a decision-maker from having the capacity to be satisfied of the truth of a negative proposition or, which amounts to the same thing, to be satisfied as to the non-existence of a fact or a state of affairs.
[26] A v New South Wales [2007] HCA 10 at [60]
[27] See, for example, R. J. Faulkner “The Pearl and the Golden Thread: The Proof of Negative Averments – I”, H.K.L.J (1972), 169
[28] See, for example, Apollo Shower Screens Pty Ltd v Building and Construction Industry Ling Service (1985) 1 NSWLR 561 (Hunt J)
[29] See Cross on Evidence Tenth Australian Edition, LexisNexis Butterworths, [7070]
[30] Abrath v North Eastern Railway Company (1883) 11 QBD 440, at page 453 (Bowen LJ)
This attitude to the nature and provability of negative propositions is supported by broader considerations. First, as Jeremy Bentham observed, although it is the case that “the only really existing facts are positive facts”, and that a “negative fact is the non-existence of a positive one, and nothing more”, “everything is a fact which is susceptible of being announced in a proposition”.[31] Second, on the basis of some elementary principles of predicate logic, it has been said with some force that, at least where the negative proposition in question does not assert a universal proposition, “there is no difficulty inherent in proof of negative propositions, despite persistent claims to the contrary”.[32]
[31] Quoted in J R Gulson The Philosophy of Proof in its Relation to the English Law of Judicial Evidence, London, 1905 at page 69
[32] K W Saunders “The Mythic Difficulty in Proving a Negative”, Seton Hall Law Review, Vol 15, 171 (1985)
The result of this discussion is that, on the plain meaning of the text of reg.1.15(1)(c) of the Regulations, before the Minister or Tribunal can be satisfied that an applicant is a “remaining relative”, the Minister or Tribunal must be satisfied of the existence of a negative proposition, namely, that the applicant does not have a near relative outside of Australia; and there is nothing about the nature of negative propositions in general or of the negative proposition expressed in reg.1.15(1)(c) of the Regulations in particular, that should lead a court to depart from the plain meaning of the text of reg.1.15(1)(c). It therefore follows, with respect, that McInnis FMA was clearly wrong in his view that “it is essential for the operation of reg.1.15(1)(c) for the Tribunal to make a finding of fact that the visa Applicant has an overseas near relative”. That, in turn, means the Tribunal in the case before me made no jurisdictional error by concluding that reg.1.15(1)(c) of the Regulations was not met without making a positive finding that the biological father was alive.
Ground 1, therefore, fails.
Ground 2 – misconstruing presumption of death
The second ground is:
The Tribunal misconstrued the common law presumption of death.
This ground is not particularised; and at the hearing before me counsel for the applicant made no submissions in support of it, stating that he relied on his written submissions. Counsel’s written submissions, however, make no submissions that can reasonably be said to refer to ground 2.
In his written submissions counsel for the Minister submits the Tribunal’s statement correctly stated the effect of the common law presumption of death; and, in any event, the Tribunal identified the presumption not as a rule to be strictly applied, but rather as a useful guide for the Tribunal to take into account when considering its decision.
During the hearing I asked counsel for the Minister whether the Tribunal considered the question of whether the biological father was still alive solely by reference to the common law presumption of death; and, if it did, whether the Tribunal would have made a jurisdictional error. Counsel submitted the Tribunal did not rely, or at least solely rely, on the common law presumption of death, but it applied common sense reasoning. Counsel said that that submission could be tested by deleting that portion of the Tribunal’s reasons which sets out what the Tribunal said was the common law presumption of death and then assess what the Tribunal did; and if that were done, “you just have a good common sense of reasoning about why the fact no one has heard from this gentleman [that is, the biological father] for a long time, isn’t a reason for inclining the mind towards his death”.[33]
[33] T28
I am conscious that the questions I asked counsel are not matters that are expressly raised in ground 2. On its face ground 2 is restricted to claiming that the Tribunal misconstrued the common law presumption of death. In my opinion, however, the questions I asked are relevant to ground 2, and I propose to consider them. Before I do so it will be necessary to say something about the meaning of “presumption” in general, the nature and scope of the common law presumption of death in particular, and the manner in which the Tribunal used the common law presumption of death in deciding to affirm the delegate’s decision.
The common law presumption of death
The word “presumption” carries a number of meanings depending on the context in which it is used. One meaning equates “presumption” with an “inference” or a “conclusion” that is drawn as a matter of probability on the basis of evidence that is accepted. That is the meaning of “presumption” given by Best in 1844:[34]
And when the conclusion of the existence of the principal fact does not necessarily follow from the facts proved, but is deduced from them by probable inference, the evidence is said to be presumptive, and the inference drawn a presumption; which, therefore, in this restricted legal sense, may be defined as “an inference, affirmative or disaffirmative of the existence of a disputed fact, drawn by a judicial tribunal by a process of probable reasoning, from some one or more matters of fact, either admitted in the cause or otherwise satisfactorily established”. . . .
[34] Best, W. M. A Treatise on Presumptions of Law and fact: with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases. London, 1844, page 12 (reference omitted)
Another meaning of “presumption” is a conclusion of fact (presumed fact) that, as a matter of law, must be drawn when certain facts are proved (basic facts), unless there is evidence that, if accepted, proves the non-existence of the presumed fact or the existence of a fact that is inconsistent with the presumed fact. Such presumptions are often, and for many years have been, referred to as presumptions of law.[35] The distinction between presumptions based on probable inference (presumptions of fact) and presumptions based on a rule of law (presumptions of law) was identified by Best:[36]
It is clear, that presumptive evidence, and the presumptions or proofs to which it gives rise, are not indebted for their probative force to any rules of positive law. When inferring the existence of a fact from others that have been already established, courts of justice (assuming the inference properly drawn) do nothing more than apply, under the sanction of the law, a process of reasoning which the mind of any intelligent reflecting being would have applied for itself under similar circumstances; and the force of which, when the inference is not of a conclusive kind, rests altogether on the experience and observation of the ordinary course of nature, the constitution of the human mind, the usual springs of human action, the usages and habits of society, &c. All such inferences are called by jurists, presumptions of fact, or natural presumptions; and also by the civilians, praesumptiones hominis in order to distinguish them from others of a technical kind . . . known as . . . presumption of law.
[35] J F Stephen in his Digest of Evidence defined presumption of law as follows: “‘A presumption’ means a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.”, quoted in J B Thayer, A Preliminary Treatise on Evidence at the Common Law, Rothman Reprint, 1969, pages 313-314, n.1
[36] Best, W. M. A Treatise on Presumptions of Law and fact: with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases. London, 1844, pages 15-16 (reference omitted)
The so-called presumption of death is a presumption of law. It is a conclusion a court is required to make on the proof of a number of basic facts, provided there is no evidence that is contrary to the conclusion. The presumption, and the basic facts that must be found to exist before it can be drawn, were identified by Dixon J (as his Honour then was) in Axon v Axon:[37]
If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date.
[37] (1937) 59 CLR 395 at page 405. This is the passage quoted by the Tribunal although the Tribunal does not identify its source.
There are two matters to note about the common law presumption of death. First, although the presumption is based on the proof of basic facts that are capable of supporting a finding of death, the presumption is not a principle of common-sense reasoning that may be applied to fact-finding. It is a rule of law the common law courts formulated, largely in the course of the nineteenth century, to overcome difficulties that arose when the death of a person was in issue and there was no direct evidence about the person’s being dead or alive.[38]
[38] The development of the rule, and of the basic facts that, under the rule, must be proved before the presumption arises, have been traced in Stone, D., “The Presumption of Death: A Redundant Concept”, (1981) 44 Mod L. R 516 at pages 516-518
The second matter to note is that the common law presumption of death does not preclude a court from finding that a person has died where one or more of the basic facts are not proved. In other words, the presumption of death is not the only means by which the death of a person whose fate or whereabouts are not known may be proved. That is illustrated by a number of cases.[39] In In Re Beasney’s Trusts, for example, the question was whether a person who was last heard of in 1860 died by November 1860.[40] The common law presumption of death applied because the proceeding in which the question arose was commenced more than seven years after 1860. The presumption, however, only permitted the conclusion that the person was dead at the time the proceeding was commenced. Sir R Mallins VC, however, concluded on the basis of the evidence before him that the person had died by November 1860. In other cases the courts found a person was deceased even though enquiries as to the existence or death of the person in question had been undertaken.[41]
[39] The cases are identified and discussed by Stone, D., “The Presumption of Death: A Redundant Concept”, (1981) 44 Mod L. R 516 at pages 518-519
[40] Re Beasney’s Trusts (1869) L.R. 7 Eq. 499
[41] Watkins v Watkins [1953] 1 WLR 1323; Bullock v Bullock [1960] 1 WLR 975
That the presumption of death does not prevent the court from finding that a person has died where one or more of the basic facts that are necessary to give rise to the presumption are not proved was recently affirmed by Atkins J in Maynard v The Estate of Maynard:[42]
The jurisdiction in section 6 [of the Succession Act 1981 (Qld)] is very wide, but depends on the Court being satisfied that the person for whom probate or the administration of the estate is sought is, in fact, deceased. This usually requires the presentation of a death certificate. In some circumstances, however, as Dal Pont and Mackie set out in The Law of Succession, “it may be difficult to conclusively determine whether or not the person has in fact died”. The common law, in dealing with that issue, has recognised what is termed a “presumption of death”; that is, following a person’s disappearance for at least seven years, the person may be presumed to be deceased. However, whether or not a person is deceased is a question of fact and as such, it is not always necessary to wait seven years for a person to be held to be deceased, even where that person’s body has not been found.
[42] [2015] QSC 144 at [2] (references omitted)
The Tribunal’s use of the common law presumption of death
Given the nature of the common law presumption of death, and in particular, its not being an exclusive means by which a court may determine whether a person whose whereabouts are unknown is dead or alive, the Tribunal may well have made a jurisdictional error if it considered the question of whether the biological father was alive or dead solely by considering whether the evidence before it established the basic facts that were necessary to give rise to the presumption of death. The question I must consider, therefore, is: did the Tribunal consider the question of whether the biological father was alive or dead solely by reference to the common law presumption of death?
On an initial reading of the Tribunal’s reasons, and as perhaps is reflected in the questions I asked of counsel for the Minister, I gained the impression that it could with some force be said that the Tribunal did consider whether it was satisfied the applicant’s father was alive or dead solely by reference to the common law presumption of death. That impression, however, is removed when regard is had to the structure of the Tribunal’s reasons. As I set out earlier in these reasons, the Tribunal described the material the applicant had provided concerning the fate of the biological father, and noted the absence of contact between the biological father and the applicant and the Mother and the results of the Egyptian lawyer’s enquiries. On a fair reading of its reasons, the Tribunal formed the view it was not satisfied on the basis of these materials that the biological father was dead. That is particularly apparent from the Tribunal’s having referred to the lawyer’s searches for the biological father as being “to no avail”. It was only after it had formed this view that the Tribunal considered whether, on the basis of the common law presumption of death, it could nevertheless presume the biological father was dead. In these circumstances, therefore, I am satisfied the Tribunal considered the application of the common law presumption of death only after it concluded it could not, on the evidence before it, be satisfied that the biological father was dead.
I finally turn to ground 2 itself. The Tribunal concluded the common law presumption of death did not apply because, although there was no communication from the biological father, the absence of communication did not support a finding that the biological father was missing; and that a person’s missing for at least seven years is an essential basic fact that must be established before the presumption of death may be drawn.
These findings might suggest the Tribunal misunderstood the principles that give rise to the common law presumption of death. The basic facts that give rise to the presumption of death of a person as stated by Dixon J in Axon do not in terms include the person’s being missing for seven years. The basic facts are that “at least seven years have elapsed since [the person] was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him”. In my opinion, however, the Tribunal used the word “missing” to denote the state of affairs that would arise if these basic facts were established. The Tribunal was not satisfied these basic facts were present in the case of the biological father because, given the circumstances in which the Mother parted company with the biological father, neither the Mother nor the applicant are persons who would be likely to have received communications from the biological father. The Tribunal expressed that conclusion by stating it was not satisfied the biological father was missing at any time.
For these reasons I am not satisfied the Tribunal misunderstood the common law presumption of death, or that it made any error by relying on it when it was otherwise not satisfied on the evidence before it that the biological father had passed away.
Ground 2, therefore, also fails.
Ground 3 – biological father not parent
The third ground stated in the application for review is:
The Tribunal made a jurisdictional error in that the decision-maker did not consider the possibility that the relationship between the applicant and the step-father may have had the character of an “adoption” for the purposes of the Migration Act and Regulations as a “customary adoption” that would have had a result in that the biological father no longer being taken to be the first applicant’s parent for the purpose of the visa application.
The applicant submits the Tribunal ought to have considered whether, because of s.5CA(1)(a) of the Migration Act 1958 (Cth) (Act), the biological father was not a “parent” of the applicant, and that the biological father, therefore, was not a “near relative” of the applicant within the meaning of reg.1.15(2) of the Regulations. The applicant submits that the requirement of the Tribunal to consider that question arose from two matters. The first is the Tribunal’s accepting that the biological father “has played no role in being a father figure to” the applicant, and that the applicant “has never met him and that for all intents and purposes she considered her step father [Mr A] to be her father”.[43] The second matter is the following passage from the Mother’s statement:[44]
I can recollect that when [Mr A] and I, were newly wedded in 1983 [Mr A] approached my father and a number of Islamic scholars asking about the question of adopting [the applicant] legally but was sadly informed that according to the Sharee’ah Islamic Law, there is no legal adoption. And that it was prohibited for a person to legally adopt a son or daughter. But can foster the child in the same capacity without formal or legal considerations if he accepts the child as his own and the mother gives permission to such parenting relationship and the child accepts him as her father figure.
[43] CB582, [23]
[44] CB395, [38]
Whether or not the applicant’s submission is correct turns, at least in the first instance, on the proper construction of the words “parent . . . of the applicant” that appear in the definition of “remaining relative” in reg.1.15(2) of the Regulations.
The Regulations do not include a definition of the word “parent” other than to provide, in reg.1.14A(1), that a reference in the Regulations to a parent includes a “step parent”. Subsection 5(1) of the Act, however, defines “parent” as follows:[45]
without limiting who is a parent of a person for the purpose of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
[45] The definitions contained in s.5(1) of the Act apply to the Regulations because of s.13(1)(c) of the Legislation Act 2003 (Cth), which provides: “If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears . . . any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.”
This directs attention to s.5CA of the Act which provides as follows:[46]
[46]
(1)Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b)someone who is an adopted child of the person within the meaning of this Act.
(2)The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
The expression “adopted child of the person” in s.5CA(1)(a) of the Act is not defined in the Family Law Act 1975 (Cth) (FL Act). The word “adopted”, however, is defined “in relation to a child” in s.4 of the FL Act as “adopted under the law of any place (whether in or out of Australia) relating to the adoption of children”; and “parent” is defined in s.4 of the FL Act “in relation to a child that has been adopted” to mean “an adoptive parent of the child”.
Although the Act does not define the expression “an adopted child of the person within the meaning of this Act” contained in s.5CA(1)(b), s.5(1) of the Act provides that “adoption” “has the same meaning as in the regulations”. That directs attention to reg.1.04 of the Regulations which provides:
(1)A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a)formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
(c)other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2)For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a)the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b)the child‑parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c)the Minister is satisfied that:
(i)formal adoption of the kind referred to in paragraph (1)(b):
(A)was not available under the law of the place where the arrangements were made; or
(B)was not reasonably practicable in the circumstances; and
(ii)the arrangements have not been contrived to circumvent Australian migration requirements.
Finally there is reg.1.14A(2) of the Regulations which provides as follows:
For subsection 5CA(2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04(1)(a) or (b) by a person or persons (the adoptive parent or parents):
(a)the child is taken to be the child of the adoptive parent or parents; and
(b)the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).
The effect of these provisions may be stated as follows:
a)Subject to (b), for the purposes of the Act a person is a child of another if he or she is a child within the meaning of the FL Act.
b)A person who is “an adopted child of another person within the meaning of the” FL Act – that is, is a person adopted under the law of any place (whether in or out of Australia) relating to the adoption of children - is not someone who is an adopted child of a person within the meaning of the Act unless the person is an adopted child of the person within the meaning of reg.1.04 of the Regulations.
c)Where formal adoption arrangements have been made either in accordance with or recognised under the law of a State or Territory (reg.1.04(1)(a)), or in accordance with the law of another country (being arrangements the effect of which is that the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised), the child is not to be taken to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).
It will be seen, therefore, that the Regulations include within the definition of “child” a person who has been adopted in the circumstances identified by reg.1.04, which are narrower than the circumstances specified by s.4 of the FL Act. Further, under the Regulations, the only circumstances in which a child that has been adopted can have no more than two parents are those specified in reg.1.04(1)(a) and (b), namely, where the child has been adopted under formal arrangements under the law of a State or Territory, or under the law of another country; and, in relation to formal arrangements undertaken under the law of a foreign county, they must include arrangements the effect of which is that the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised.
In his written submissions counsel for the applicant submitted that reg.1.04 of the Regulations treats as parents persons who have adopted children abroad, or persons who are “de facto” parents where formal adoption abroad is not possible; that Mr A was the de facto parent of the applicant; and that the Tribunal made a jurisdictional error by failing to consider whether Mr A was in fact the applicant’s father.
In his oral submissions counsel for the applicant submitted that, for the purposes of the Act and the Regulations, the notion of “parent” incorporates a fundamental premise of the FL Act, namely, that a child can have no more than two parents; that, although not defined in the FL Act, “parent”, as it is employed in the FL Act, is broad enough to include a person who is not the biological parent of a child but who has acted as the child’s parent; that “parent” in reg.1.15(2) of the Regulations, therefore, may include a person who is not the biological parent of an applicant but who nevertheless acted as a parent of the applicant; that, given the fundamental premise that a child can have no more than two parents, where it is the case that a person who is not the biological parent of the applicant has acted as the parent of an applicant, it is that person who is the “parent” for the purposes of reg.1.15(2) of the Regulations. Counsel for the applicant relied on Goth & Banks.[47]
[47] [2013] FamCA 430
The issue in Goth & Banks was whether the provider of genetic material that led to the conception of a child through assisted reproductive technology was a “parent” for the purposes of the FL Act. Cronin J held the provider was a parent. After noting that “the interpretation of “parent” in the Act allows each case to be determined on its particular facts”,[48] his Honour said:[49]
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.
[48] [2013] FamCA 430, [13]
[49] 2013] FamCA 430, [14]
In his written submissions counsel for the Minister submitted that reg.1.04(1) of the Regulations distinguishes between formal adoptions and adoptions that are not formal adoptions (informal adoptions); and that the Regulations do not provide, as they do for formal adoptions, that the persons who were recognised as the parents of the (informal) adoptee before those arrangements took effect ceased to be so recognised and the (informal) adopter became so recognised. In his oral submissions, counsel for the Minister submitted that “parent”, as used in the Act bears its ordinary meaning, namely, “biological parent”, and that s.5CA of the Act does not detract from that meaning because the definition in that section is given “[w]ithout limiting who is a child of a person for the purposes of” the Act. Counsel further submitted that even if under the FL Act a child can only have two parents, that fact does not mean the biological father is no longer the parent within the meaning of the Act and regulations. In other words, counsel submits that “parent” has its ordinary meaning but, because of the definition of “child” in s.5CA(1) of the Act, the notion of “parent” includes or potentially includes a larger class of persons than is included in the ordinary meaning of “parent”.
I do not accept the submission made in the applicant’s written submissions that reg.1.04 of the Regulations treats as parents “de facto” parents where formal adoption abroad is not possible. Reg.1.04 does recognise that a person may be an adopted parent even in the absence of any formal adoption procedure; but the only circumstances in which this may occur are those provided for by reg.1.04(2) of the Regulations. It has not been suggested, and, on the material that was before the Tribunal, it cannot be suggested, that reg.1.04(2) applies to the circumstances of Mr A’s relationship with the applicant. The applicant, therefore, is not a person who has been adopted by Mr A within the meaning of reg.1.04 of the Regulations.
As for the oral submission counsel for the applicant made, there are at least three difficulties. First, they assume that under the FL Act a person in the circumstances of Mr A and the applicant result in Mr A being a “parent” of the applicant for the purposes of the FL Act. In particular, counsel’s submissions assume that a person who is not the biological parent of a child, and who has not adopted the child, can nevertheless become the parent of a child simply by acting as if that person were the parent of the child.
It is certainly possible for the purposes of the FL Act that a person who is not a biological or an adopted person may nevertheless be a step parent of a child, and for such step parent to be made liable to maintain a child as a result of a child maintenance order being made under s.66M of the FL Act. That a person may be a step parent of a child, however, does not by itself have the consequence that the biological parent of the child ceases to be a parent. That is evident from a number of provisions of the FL Act. The most obvious is s.60E of the FL Act which provides that a person’s parental responsibility ends on the adoption of the child by another person, but says nothing about a person’s parental responsibility ending when another person assumes the position of step parent. Also relevant is s.66D of the FL Act which provides that the duty that accrues when a child maintenance order is made against a step parent under s.66M of the FL Act is a secondary duty that is subject to the primary duty of the parents to maintain the child, and such duty does not derogate from the primary duties of the parents to maintain the child. This indicates, at least in the context of child maintenance orders, that a child’s having a step parent is not incompatible with the child having two parents, either by biology or adoption. That Mr A, therefore, may have become the step parent of the applicant does not by itself mean the applicant’s biological father ceased to be the parent of the applicant.
The second difficulty with counsel’s oral submissions is that, as I have already noted, reg.1.04(1)(c) of the Regulations recognises the possibility of informal adoptions arising out of the circumstances identified in reg.1.04(2) of the Regulations. It is not suggested, however, that the circumstances of Mr A in relation to the applicant ever engaged reg.1.04(2) of the Regulations, assuming that the regulation applied when the applicant was a child.
The third difficulty with counsel’s submissions is that they ignore reg.1.14A(2) of the Regulations. That subregulation provides that, in the circumstances in which it applies, the biological parent of an adoptee ceases to be recognised as a parent and the adopter becomes recognised as a parent. Those circumstances, however, are limited to formal adoptions either under the laws of, or under laws recognised by the laws of, a State or Territory (reg.1.04(1)(a)), or under the laws of another country (reg.1.04(1)(b)). Paragraph (c) of reg.1.04 of the Regulations recognises other arrangements entered into outside Australia that, under reg.1.04(2), are taken to be in the nature of adoption; but the Regulations do not provide that, as a consequence of those arrangements, the biological parent of an adoptee ceases to be recognised as a parent and the adopter becomes recognised as a parent. There is, therefore, no room to imply that, outside the formal adoptions referred to in reg.1.04(1)(a) and (b) of the Regulations, any informal adoption will have the consequence that persons who are recognised as the parents of the (informal) adoptee before those arrangements took effect ceased to be so recognised, and the (informal) adopter became so recognised.
Given these difficulties, the applicant’s having considered Mr A to be her father, and Mr A’s having treated the applicant as his daughter, were not matters that ought reasonably to have led the Tribunal to consider whether Mr A, rather than the biological father, was the “parent” of the applicant within the meaning of reg.1.15(2) of the Regulations. The Tribunal, therefore, made no jurisdictional error by not considering that question. Ground 3, therefore, fails.
Conclusions and disposition
The applicant has failed to establish any of the grounds stated in her application. I propose, therefore, to order that the application be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 May 2018
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