Irawan v Minister for Immigration
[2009] FMCA 1165
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IRAWAN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1165 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether Tribunal based its decision on “no evidence” – whether country information provided evidence for Tribunal’s findings – consideration of Indonesian adoption laws – sufficient evidence in country information to support Tribunal’s findings – no failure to comply with s.360 – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.360, 368 Migration Regulations 1994 (Cth) r.1.04, Schedule 2 |
| SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| Applicant: | INA IRAWAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1552 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 September 2009 |
| Date of Last Submission: | 17 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 30 June 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1552 of 2009
| INA IRAWAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 30 June 2009, and ultimately further amended on 17 September 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), which on 27 May 2009 affirmed the decision of a delegate of the first respondent to refuse the grant of a Child (Migrant) (Class AH) visa to a child, Emilia Irawan (“the visa applicant”).
Background
The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following is relevant as background.
The applicant before the Court is Ina Irawan, an Indonesian citizen and a permanent resident of Australia (CB 42 to CB 44) who is married to an Australian citizen. In 2007 the applicant pursued adoption of an Indonesian child in Indonesia. Subsequently, an application for the relevant visa was made on behalf of the child so that she could come to Australia (CB 1). This was refused on 30 June 2008 (CB 83 to CB 86).
The applicant sought review by the Tribunal on 15 August 2008 (CB 87 to CB 95). The applicant was represented by a registered migration agent.
The Tribunal
The Tribunal:
1)Wrote to the applicant by letter dated 21 October 2008, inviting her to comment on certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. She was also invited to provide certain additional information (CB 102 to CB 103).
2)Wrote to the applicant by letter dated 13 January 2009 (described as a “natural justice letter”), providing independent country research information on adoption laws in Indonesia (CB 108 to CB 109).
3)Conducted a hearing on 16 March 2009. The applicant was overseas, and participated by telephone. Present at the hearing were the applicant’s husband in Australia, who gave evidence, and the applicant’s representative (CB 117).
4)Again wrote to the applicant by letter dated 16 March 2009, also described as a “natural justice letter”, giving the applicant the opportunity to comment on independent country information on adoption laws in Indonesia. It appears that this had been requested at the hearing (CB 121 to CB 140).
Relevant Law
There is no dispute between the parties that the Tribunal’s setting out of relevant law, were the relevant parts of the Migration Regulations 1994 (Cth) (“the Regulations”) applicable to the application before it (CB 165 to CB 167):
“6. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative): Item 1108 of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 102 (Adoption).
7. The criteria for a Subclass 102 visa are set out in Part 102 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.
102.211
(1) The applicant meets the requirements of subclause (2), (3), (4) or (5).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant has not turned 18; and
(b) the applicant was adopted overseas by a person who:
(i) was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(ii) had been residing overseas for more than 12 months at the time of the application; and
(c) the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and
(d) the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.
102.213
The laws relating to adoption of the country in which the child is normally resident have been complied with.
102.22 Criteria to be satisfied at time of decision
102.221
The applicant continues to satisfy the criteria in clauses 102.211 and 102.213.
Reg 1.04 Adoption
1.04 (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.
The other primary criteria to be satisfied at the time of application for this Subclass, are that:
the visa applicant is sponsored by the parent who is an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen who has turned 18 or their cohabiting spouse:
Part 102 of Schedule 2 also contains secondary criteria that must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.”
The Tribunal identified the relevant issue as being: “… whether the visa applicant has been adopted by the review applicant in accordance with the law of Indonesia.” (See [10] at CB 167, [19] at CB 168, and [31] at CB 174.)
The Tribunal ultimately found that, on the evidence before it, it could not be satisfied that the applicant had complied with the relevant law in Indonesia in relation to the adoption process. (See generally [35] to [39] at CB 175.) The Tribunal therefore found that:
1)The visa applicant did not meet the criteria set out in clause 102.211(2)(d) ([42] at CB 176).
2)The laws, as they were at the relevant time, relating to adoption in Indonesia had not been complied with, and that the visa applicant therefore did not meet the criteria set out in clause 102.213 ([43] at CB 176).
3)The visa applicant did not satisfy the definition of “adoption” in reg.1.04 for the purposes of satisfying clause 102.211(2)(b) ([44] at CB 176).
In all, therefore, the Tribunal was not satisfied that: “… the adoption was in accordance with the Migration Act” ([45]). Given that the applicant did not satisfy the relevant regulatory requirements, the Tribunal proceeded to affirm the decision under review ([46] to [50]).
Before the Court
At the hearing before the Court Mr L J Karp of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the first respondent.
At the first Court date in this matter on 22 July 2009 the applicant was represented by a solicitor, as was the first respondent. On that day orders were made, by consent, setting out the timetable by which this matter was to proceed before the Court, including the times by which any amended application, or any affidavit containing additional evidence, was to be filed by the applicant.
Subsequently, an amended application was filed, out of time, on 14 September 2009, as was an affidavit of Mr Robert Liu, a solicitor for the applicant.
At the hearing before the Court Mr Karp sought leave to file a further amended application. Leave was, ultimately, granted. The further amended application is in the following terms:
“The Second Respondent (the Tribunal) based its decision on findings of fact wholly unsupported by evidence.
Particulars
(a) That Indonesian laws known as or contained in documents entitled SEMA (Supreme Court’s Letter of Instruction) No. 6 of 1983, as amended by SEMA No. 4 of 1989 and SEMA No. 3 of 2005 provided that an Indonesian national married to a foreign citizen must apply for an Inter Country adoption, rather than a domestic adoption.
(b) That any or all of SEMA No. 6 of 1983, as amended by SEMA No. 4 of 1989 and SEMA No. 3 of 2005 prevented an Indonesian citizen married to a foreign national from adopting a child
2. The Tribunal breached s 360(1) of the Migration Act, 1958.
Particulars
(a) Failure to inform the applicant that the question of whether her marriage to an Australian citizen was registered in Indonesia was an issue in the proceedings.
(b) Failure to inform the applicant of the possibility of the Tribunal making a finding that the applicant’s marriage to an Australian citizen was registered in Indonesia.”
Also taken into evidence was the affidavit of Robert Liu subsequently made on 17 September 2009, annexing a transcript of the hearing before the Tribunal. (No objection was taken.)
The Court also has the applicant’s written submissions of 4 September 2009, and the applicant’s supplementary submissions of 14 September 2009. The supplementary submissions were filed outside the time provided for in the timetable, which was agreed to at the first Court date.
Written submissions were also filed on behalf of the first respondent on 9 September 2009 (within time). Clearly, these did not address the applicant’s subsequent supplementary submissions.
Ground One: The Applicant’s Case
The thrust of the applicant’s complaint in ground one is that the Tribunal made findings of fact which were unsupported by evidence, and that these findings of fact formed the basis for its ultimate conclusion that the application for the visa, and more particularly, the adoption in Indonesia, did not comply with Indonesia’s laws, as required by the relevant regulatory scheme relating to this class of visa.
In developing his argument, Mr Karp relied on the following.
To comply with the relevant requirement that there had been compliance with Indonesian adoption laws, the applicant provided to the Minister’s delegate (who was at the Australian Embassy in Jakarta) the document reproduced at CB 69 to CB 82. This is said to be an Indonesian Court document that states that the applicant’s application to the Indonesian Court for the adoption of the child was approved.
The Minister’s delegate at the Australian Embassy in Jakarta did not accept this court document at face value, but made an enquiry of the Indonesian Department of Social Affairs (“the Indonesian Ministry”). (See CB 58 to CB and 59.) (The response, with translation, is reproduced at CB 60 to CB 61.)
Mr Karp, in particular, referred the Court to (CB 61):
“14. letter from the Indonesian Dept of Social Affairs (Depsos) (#13) stated as below:
* based on State Court Class IA Bandung no: 135/Pdt.P/2007/PN/BDG dated 070607, it has been decided an adoption of a girl namely Emilia Irawan (born in Bandung on 21 December 02) by Ina Irawan
* based on marriage certificate no. 15110/2000, Ms Ina Irawan has married an Australian national namely Stephen Arkwright Thorpe in Sydney on 24 May 2000.
* based on the government regulation no. 54 year 2007 regarding adoption undertaking, foreign national husband and Indonesian wife is classified in future adoptive parents category as Inter Country adoption
* the child adoption stated in the Court order above is a domestic adoption which is a private adoption. The adoption should have been an adoption of an Indonesian child by foreign national because the private adoption was undertaken AFTER the marriage
* in relation to above matters, it is suggested to the relevant parties to arrange for adoption of an Indonesian child by foreign national in accordance with the prevailing law.”
He submitted that the delegate relied on this and, in effect, found that because the applicant was married to an Australian citizen, she should have sought adoption as an “inter country” adoption, rather than as a “domestic” adoption. That the adoption order provided through the Indonesian Court had followed the process applicable to domestic adoptions. (See CB 85.) On this basis, the application was said not to meet the relevant regulatory requirement for the visa that the adoption must take place in accordance with, relevantly, Indonesian law. The application, therefore, failed to meet clauses 102.213 and 102.221 of the relevant regulation (CB 85).
Mr Karp emphasised that before the Tribunal, the applicant’s position, as expressed by her representative to the Tribunal, was that the adoption was approved by an Indonesian Court, and that the Tribunal therefore should have recognized the order of that Court for the current purposes. (See CB 104 to CB 105.)
Mr Karp also referred the Court to the Tribunal’s letter to the applicant’s representative dated 13 January 2009 (CB 108 to CB 109). This letter was clearly sent by the Tribunal to put the applicant on notice (the “natural justice letter”) of independent country information available to it on adoption laws in Indonesia. Relevant and key parts of this letter refer to information for Australian citizens or residents wanting to adopt an Indonesian child being provided on the website of the Australian Embassy in Jakarta.
In particular, the Court was referred to: “The embassy website states that ‘Australian permanent residents who are travelling on Indonesian passports wishing to adopt a child in Indonesia are generally regarded as Indonesian citizens and the procedures for adoption are somewhat different’.” (CB 108.6). (See also CB 108.9: “Information sourced from the US Department of State (USDOS) website on inter-country adoption. According to the USDOS, ‘cases where one prospective adoptive parent is a foreign national and the other is an Indonesian citizen … are necessarily more complicated, and different courts may interpret the law differently’.”)
The Court was also taken to parts of this document where reference was made to circumstances where one prospective adoptive parent was a foreign national, and the other was an Indonesian citizen. I note further the reference to the Sayap Ibu Foundation (“the Foundation”): “an organisation which the Indonesian Ministry of Social Affairs has ‘approved … to make arrangements and give assistance for adoption by foreigners’” (CB 109.8).
Mr Karp’s submission was that, in key aspects, the information referred to in this letter did not apply to the applicant. She had applied as a sole adopter of the child and, therefore, those parts of the document relating to the different nationalities of the prospective adoptive parents did not apply. Second, that the applicant was not a foreigner in Indonesia, given that she is an Indonesian citizen.
Mr Karp also referred the Court to what he said were relevant parts of the transcript (“T”) of the Tribunal hearing.
At T5 the Tribunal put to the applicant what it considered to be the central issue in the case, which was that the adoption did not take place in accordance with Indonesian laws and regulations because, as the applicant was married to an Australian citizen, the adoption should have proceeded according to the Indonesian law relevant to inter country adoption, and not as a domestic adoption.
Further, at T11 (from Q71) the applicant’s adviser at the hearing handed to the Tribunal what appeared to be a document from her solicitors in Indonesia concerning the adoption. The Tribunal’s preliminary view was that the opinion appears to be: “… going against their own law” (T12.1). The Tribunal then makes reference to what it said was “substantial country research”, which set out the “difficulties” for the applicant.
At T13 (Q74) it appears that the Tribunal and the adviser agreed on what was a threshold issue. That is, compliance with the relevant law. However, the Tribunal appeared to be saying that the relevant law which it had before it appeared to transcend what was said by the Indonesian Court in the applicant’s particular case.
At T16 and T17 (Q84 and following) the Tribunal agreed to provide the adviser with the relevant information on which it was seeking to rely, and gave the applicant, through her adviser, the opportunity to comment on this information. By facsimile transmission on 16 March 2009 the Tribunal sent this information under cover of a second “natural justice letter” (CB 119).
The contents of this letter are reproduced at CB 121 to CB 129.
In particular, Mr Karp drew the Court’s attention to the following parts of this document:
1)Under the heading of “Adoption Laws of Indonesia” the Tribunal repeated what had been placed on the Australian Embassy website.
2)Reference to a US State Department report which states that an adoptive child (for the purposes of Indonesian adoption laws) must be of the same religion as the adoptive parents (with the emphasis here being on the plural “parents”, in Mr Karp’s submission).
3)There is a reference to the information from the Indonesian Sayap Ibu Foundation as being the organisation which the relevant Indonesian Ministry had: “‘approved … to make arrangements and give assistance for adoption by foreigners’”. Mr Karp’s submission was that, for relevant purposes, the applicant is not a foreigner.
4)What follows in the Tribunal’s letter is relevant to adoption by foreigners, and by a couple. In Mr Karp’s submission, neither of those two elements applied to the applicant.
5)At CB 123.9 there is a reference to “Sriro’s Desk Reference of Indonesian Law, published in 2005”, which is said to provide information about Indonesian adoption law. Mr Karp submitted that the information regarding the process of adoption is “largely the same” as the information provided by the Foundation. That is, adoption by foreign citizens, and that the applicant is not a foreign citizen for relevant purposes.
6)The Tribunal made reference to a number of documents including “Supreme Court Circular Letter No. 6 of 1983” dated 30 September 1983, and “Supreme Court Circular Letter No. 2 of 1979”. In particular, Mr Karp noted the information that “three categories of adoptions are recognized in Indonesia”: adoption of Indonesian citizens by Indonesian citizens (Mr Karp says that this is the category that the current case should fall into), adoptions of Indonesian citizens by non-Indonesian citizens (Mr Karp suggested that that is what the Tribunal said was the relevant category), and the adoption of foreign citizens by Indonesian citizens (which is not relevant).
7)The remainder of the documentation available to the Tribunal according to its letter is that relevant to foreign adoptive parents (CB 124 .9), information from the United Nations Committee on the Rights of the Child (CB 125), information relating to ethnic Chinese families, and old Dutch colonial law (CB 128 to CB 129).
As an attachment to its letter the Tribunal also provided the applicant’s adviser with a copy of the: “Indonesian Government Regulation No. 54 of 2007” (“Regulation No. 54 of 2007”). (CB 129: “Attachments: Copy of Regulation 54.)
This document is reproduced at CB 130 to CB 140. Mr Karp submitted that, while the document is not in English, given the Tribunal’s reference at the bottom of its letter to the attachment, and the reference at the beginning of the attached document to: “NO MOR 54 TAHUN 2007”, this is the regulation, or rule, No. 54 of 2007 to which the Tribunal directed the applicant’s adviser.
Mr Karp submitted that the Indonesian Court document submitted by the applicant attesting to the adoption (see in particular CB 77 and [19] above) is dated 9 July 2007. Yet Regulation No. 54 of 2007 is said to be dated 3 October 2007 (see CB 137).
Mr Karp submitted that the adviser’s reply to the Tribunal dated 4 May 2009 (CB 146), attaching advice from the Indonesian lawyers, dated 2 May 2009, must be read in light of the date of the actual adoption stipulated by the Indonesian Court.
In particular, Mr Karp referred the Court to that part of the Indonesian lawyer’s advice at CB 151:
“Therefore, based on the Guidelines Procedures on Child Adoption issued by the Department of Social Affairs, based on the evidences submitted to the district court of Bandung and based on the legal considerations of the judges in the adoption order, where:
· the applicant Ina Irawan, her status is single because in her ID card (…) assuming the marital status is stated as single, if her status stated as married then the court would have mentioned in the adoption order as ‘the applicant is Mrs. Ina Irawan and Mr. Stephen Arkwright Thorpe’.
· the adoption process was taken place directly between the biological parents and the applicant in front of the judges, this condition is only allowed it if it is a domestic private adoption.
· Regulation of SEMA no.6/1983, … stated that ‘adoption that takes place between biological parents and adoptive parents (private adoption) is allowed’.
· Regulation of SEMA no.6/1983, … stated that ‘adoption made by someone who is not married (single parent adoption) is allowed’ …”
The submission was that the conclusion reached by the Indonesian lawyers was that the legal standing of the adoption order of the Indonesian Court was legally competent (CB 153.2).
The Court was also referred to the lawyer’s view of the opinion provided by the Indonesian Ministry of Social Affairs to the delegate. In particular (CB 156):
“The Department of Social affairs’s opinion may not effect the legality of the adoption order:
· As the Court of Bandung falls under the jurisdiction of the department of the Supreme Court, which has the same level of hierarchy as the Department of Social Affair
· As … the judges are appointed by the President …
· As there is mention in the Letter dated 28th April 2008 of a Government’s Regulation (…) no.54/2007 being advised to arrange the implementation of the Adoption according to such Regulation, according to my reading, the implementation of the adoption can not follow the regulation mentioned as it comes into effect in Oktober 2007, which is after the adoption order takes place.”
[Errors in the original.]
Mr Karp said that he understood, relevantly, the Tribunal’s reasoning to be as follows. The applicant was married to an Australian citizen ([35] at CB 175). The Indonesian Court order referred to the applicant as: “Mrs Ina Irawan, a housewife”. The Tribunal said that she had not presented any evidence that the marriage had not been registered in Indonesia. The Tribunal found that it was: “… not satisfied on the evidence presented that the marriage is not recognized as a valid marriage in Indonesia for the purposes of adoption” ([35] at CB 175). That, because of the marriage to an Australian citizen, the particular adoption process (“domestic adoption”), which she entered into, did not comply with Indonesian law ([36] at CB 175). The Tribunal preferred the advice given by the Indonesian Ministry of Social Affairs, to that of the lawyers retained by the applicant ([37] to [39] at CB 175).
Mr Karp emphasised the following from the Tribunal’s decision record (at CB 175):
“40. The review applicant has submitted that Regulation No 54/2007 came into effect after her adoption and that the Court is not bound by the regulation.
41. Regulation No 54/2007 came into effect after the adoption. However, previously there was relevant legislation known as SEMA (Supreme Court’s Letter of Instruction) No. 6 of 1983, as amended by SEMA No. 4 of 1989 and SEMA No. 3 of 2005. The previous legislation was the same in substance as the new Regulation No. 54/2007.”
In all, the essence of Mr Karp’s submission was that the Tribunal relied on advice provided by the Indonesian Ministry of Social Affairs (CB 61), which was based on the provisions of Regulation No. 54 of 2007. This required a foreign national husband and an Indonesian wife to proceed through the avenue of an inter country adoption, and not through domestic adoption. That this regulation came into force after the Indonesian Court’s order, relied on by the applicant. That the Tribunal, in its reasoning, appeared to concede that Regulation No. 54 of 2007 came into effect after the adoption order, but relied on a finding that the various Supreme Court Letters of Instruction (no. 6 of 1983, no. 4 of 1989, and no. 3 of 2005) (“SEMA”) were the previous relevant legislation and: “were the same in substance as the new regulation no 54/2007”.
Mr Karp’s submission was that there was nothing in any of the documents before the Court to indicate that any of these three SEMA documents required that an Indonesian national, married to a foreign citizen, must apply for inter country adoption, rather than domestic adoption. In the alternative, that prevented an Indonesian citizen, married to a foreign national, from adopting a child, other than through an inter country adoption. This is said to be the basis for the complaint in ground one, described as the “no evidence ground”.
The applicant relies on SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 (“SZJRU”) (at [51] to [53] per Besanko J) for the proposition that a finding of fact, for which there is no evidence, may amount to jurisdictional error. Mr Karp submitted that what the Tribunal found at paragraph 41 (see [43] above) was integral to its decision. It was a critical step in the Tribunal’s ultimate conclusion. The Tribunal’s chain of reasoning was “broken” because there was no evidence to suggest that the law to which it made reference was the “same in substance” as the “new” Regulation No. 54 of 2007.
Ground One: The Response
Mr Reilly submitted, in short, that the Minister’s response was that far from having no evidence before it, the Tribunal had a large body of evidence relating to the issue of the relevant Indonesian law. That is, as to whether the adoption that was entered into complied with Indonesian law.
The submission was that the Tribunal had before it conflicting opinions, one from the relevant Indonesian Department, another submitted by the applicant’s lawyers on behalf of the applicant, and further, country information before it, which could “go one way or the other”. Therefore, this is not a case of “no evidence”, as submitted by the applicant, but a case where there was much evidence, and in some parts, conflicting evidence, where the Tribunal was required to come to view, and to come to a conclusion in light of that view.
In this regard, therefore, the Tribunal’s relevant findings should be seen as findings of fact, and regardless of whether these findings were right or wrong, does not produce jurisdictional error on review in this Court.
In particular, Mr Reilly referred to what he said were such authorities as VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 at [11] per Moore J, for the proposition that the content and the effect of foreign law is a question of fact for the relevant decision maker.
Mr Reilly addressed a number matters raised by the applicant’s submissions.
First, in relation to whether the applicant’s marriage was registered in Indonesia or not, the relevance being that the adoption procedure utilised by the applicant that is the avenue available to a single unmarried woman, when it appeared that she was, in fact, married.
Mr Reilly submitted that this matter was first raised in the covering letter of 4 May 2009 from the applicant’s advisers (CB 146):
“1. The adoption in question is clearly not an ‘inter-country’ adoption. It is classified as a private single parent adoption. The NSW marriage between Ina Irawan and Stephen Thorpe is not registered with the Indonesian authorities as the couple has not returned to reside in Indonesia.”
With reference to the letter from the Indonesian Department (CB 61), and the country information contained, in particular, in the Tribunal’s “natural justice letter” of 16 March 2009 (CB 121), while the situation as to whether the applicant could have proceeded as she did in relation to the adoption, that is, as a single person, can be described as equivocal, it cannot be said that there was no evidence to support the relevant findings made by the Tribunal.
Second, in relation to whether Regulation No. 54 of 2007 was the same in substance as the previous law, that there was no direct evidence one way or the other. But with reference to the evidence before the Tribunal, there was no suggestion that Regulation No. 54 of 2007 changed the preceding law. That it was open to view the situation that as from some time before the adoption took place, and as from 2000, when the applicant’s marriage took place, it was necessary to view this adoption as being of an Indonesian child by a foreign national (the Australian citizen husband) and that therefore inter country, and not domestic adoption proceedings, were required.
Specifically, Mr Reilly pointed to the evidence from the Indonesian Department of Social Affairs (CB 61). His submission was that while there is a reference in that document to Regulation No. 54 of 2007, and the opinion about what is contained relevantly in that regulation, there is nothing to say that it also does not represent the relevant law as embodied in any previous law.
Mr Reilly’s submission was that what the Tribunal was doing at paragraph 41 (the part of the decision record about which the applicant specifically complains) was to respond to the submission that was made to it, that Regulation No. 54 of 2007 was not the “correct law” because of its date of operation.
The respondent takes issue with the applicant’s submission that what the Tribunal said at paragraph 41 was to agree that the information from the Indonesian Department of Social Affairs was wrong. His submission was that such a submission goes further than what had actually been said or, presumably, what could be inferred from what the Tribunal had said.
Mr Reilly’s submission was that the Court is not in a position to know what, indeed, was the relevant Indonesian law applicable to the circumstances of the applicant’s adoption. But the point is that there was much relevant evidence before the Tribunal, and whether the Tribunal was right or wrong in the factual findings that it made, this cannot give rise to jurisdictional error.
The submission was also that the applicant’s case as put before the Court at the hearing had some difference with what was put in the further amended application. The ground as pleaded is that the Tribunal based its decision on findings of fact wholly unsupported by evidence. But what was submitted at the hearing was that there was no evidence that the laws that preceded Regulation No. 54 of 2007 stipulated that an Indonesian woman married to an Australian man had to use the inter country adoption procedures, as opposed to the domestic procedures, which the applicant appears to have utilised.
More particularly, the submission was that there was no direct evidence as to the “correct” outcome of that question. The letter from the Department of Social Affairs (CB 61), in referring to Regulation No. 54 of 2007, makes no suggestion that the regulation changed the preceding law, such that following that regulation, a person married to a foreign national had to comply with inter country adoption procedures, whereas such a law did not apply previously. The submission was that, given that it is clear in that document that reference is made to the applicant having married in May 2000, the advice, therefore, could equally be said to mean that in this case as from (at least) 2000 (which is after the marriage) it is necessary to view the adoption as that of an Indonesian child by a foreign national. That, in Mr Reilly’s submission, is evidence in favour of the conclusion that inter country adoption procedures were required, not domestic adoption procedures.
Country information in relation to this subject was again said to be equivocal. For example, at CB 121, the advice from the Australian Embassy website, in addition to stating those parts relied on by the applicant, also said:
“…There have been a number of instances in which Australians have been poorly advised (including by legal practitioners) and have entered into fostering/adoption arrangements which, even though endorsed by local courts, do not meet the requirements of Indonesian adoption law.”
Mr Reilly’s submission was that, on one view, that is the current case. The answer to the applicant’s argument that she had a Court order in her favour, is that that does not necessarily mean that the adoption was legal. Added to this, is the information from the Indonesian Department of Social Affairs stating, specifically, that the adoption was not legal.
In relation to the issue of whether an Indonesian National married to a foreign national leads to domestic or inter country adoption procedures is, again, not clear on the material before the Court. The material reproduced in the Tribunal’s letter of 16 March 2001 (CB 121) refers to information from the US State Department, and amongst other things, makes reference to the Ministry of Social Affairs, the very Ministry that provided the advice to the Australian Embassy that the adoption was not legal.
Included in that advice is that (CB 122):
“… Recent legislation also stipulates that an adoptive child must be of the same religion as the adoptive parents.”
Further, what follows (at CB 122) leaves the situation of an Indonesian citizen, married to a foreign national as, at best, being unclear. But this also needs to be read in context with the information from the Foundation (see [26] above), which is also reproduced in the Tribunal’s letter (beginning at CB 122.6). This suggests that there are requirements which the applicant in the current case did not appear to meet. That is, her husband was over forty-five years of age, and the applicant was over forty years of age. (See the relevant dates of birth in the marriage certificate as reproduced at CB 41.) Further, that both parents must appear in Court. The applicant husband stated at the hearing before the Tribunal that he did not do so. (See CB 168 at [21] and T15.5.)
Mr Reilly’s submission was that the relevant information had elements of uncertainty. But what is clear is that the Tribunal is required to come to a view and that, based on the information before it, it was open to the Tribunal to conclude that inter country adoption procedures, rather than domestic procedures, were required in the circumstances of this case. This was particularly the case given the information from the Indonesian Department of Social Affairs (CB 61).
The answer, therefore, by the respondent to the applicant’s complaint is that it cannot be said that there was no evidence. It may be that this is a case of conflicting, or unclear, evidence in some aspects, but it is ultimately the task of the Tribunal to make findings on the material before it, and to come to some conclusion based on the those findings.
Specifically, in relation to the particulars to this ground as pleaded, Mr Reilly submitted that there was nothing in the information presented by the Indonesian lawyer on behalf of the applicant (arranged through her adviser in Australia), or in the country information that the Tribunal itself cited, or indeed in the material from the Indonesian Department of Social Affairs, to suggest that there had been any particular change by Regulation No. 54 of 2007, which meant that the law was different with regard to adoption by parents, one of whom is an Indonesian citizen, and one of whom is a foreign national.
Mr Reilly submitted that an inference could be drawn from the information that is set out at length in the Tribunal’s letter. That, indeed, there had not been any particular change, given that no such change was noted, and that it could be expected that if Regulation No. 54 of 2007 had brought in changes, such changes would have been noted.
He submitted that the circumstances in the current case are distinguishable from the cases relied on by the applicant (SZJRU, and the reference there at [53] to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402).
In both those cases the situation was not only that there was no evidence in favour of the relevant Tribunal’s conclusions, but what evidence was actually against the conclusion reached by that Tribunal. (See SZJRU. The part to which Mr Reilly referred, I assume, is at [60].)
Consideration
A number of matters require consideration. Regard must be had to the relevant factual findings made by the Tribunal, which were the building blocks on which its ultimate conclusion relied.
First, it was plainly open to the Tribunal to find that the applicant was, at all relevant times, married to an Australian citizen and that they had been married since 2000. In fact, that was her own evidence. Further, it was open to it to find that at the time that the applicant obtained the adoption order from the Court in Indonesia, she was married. Indeed, such is the implication arising from the Court order itself which referred to her as: “Mrs Ina Irawan, a housewife.”
Mr Karp submitted that there was some indication that the applicant’s marriage may not have been registered, or recognised, in some way in Indonesia and that it was therefore open to the applicant to proceed down the path of seeking adoption as a single Indonesian national. That is, by using the domestic route.
Whatever the suggestion may be, what is clear is that the Tribunal squarely addressed the submission of 4 May 2009 made by the applicant’s adviser (see item 1 at CB 146) that the “NSW marriage between Ina Irawan and Stephen Thorpe is not registered with the Indonesian authorities as the couple has not returned to reside in Indonesia”.
The Tribunal’s reasoning was that the order from the Indonesian Court referred to the applicant as “Mrs” and “a housewife”, and that the applicant had not presented any evidence that her marriage to an Australian citizen had not been registered in Indonesia, and that therefore it could not be satisfied “on the evidence presented” that the marriage was not recognized as a valid marriage in Indonesia for the purposes of adoption.
What must immediately be noted is that the reference in the adviser’s letter to the marriage having not been registered was, at best, said to be “from my reading of the opinion”. The reference there being to the attached opinion from the Indonesian lawyer who gave advice on her behalf (CB 147 to CB 156 and, in particular, CB 148.8 and CB 151.4).
With respect, in my view, the applicant’s adviser made far more of what was said in the lawyer’s advice, and has presented the “opinion” as an assertion of fact. Further, it should be noted that in that opinion, the reference to the marriage, and the marriage certificate not having been registered, is plainly under the heading of “assumptions” followed by: “… for the purposes of giving this opinion we have assumed without further inquiry …” (CB 148).
In these circumstances it was plainly open, if not “correct”, for the Tribunal to say that the applicant “had not presented any evidence” that the marriage had not been registered in Indonesia. The finding that it could not be satisfied on the evidence presented that the marriage was not recognized (again, particularly in view of the fact that the Court order relating to the adoption appeared to refer to her as a married woman) was open to the Tribunal to make on what was before it.
The Tribunal’s subsequent reasoning, therefore, at paragraphs 37 and 38 of its decision record is, in my view, based on the material before the Tribunal, and contains findings that were open to the Tribunal to make. There was no error in the Tribunal noting that the “major assumption” in the lawyer’s advice “is that the review applicant presented herself as a single unmarried woman to the State Court when she filed the adoption application.”
Further, it was open to the Tribunal to consider that this legal advice was then based on that assumption, and consider the validity of the State adoption in relation to a single Indonesian women. In those circumstances, it was entirely open to the Tribunal to find that it preferred the evidence and legal opinion presented by the Ministry of Social Affairs, rather than the opinion, based on an assumption, from the Indonesian lawyers. On the material before it, the above reasoning was clear, and the Tribunal’s findings were clearly open to it to make, in light of that material.
What is perhaps somewhat more problematic is the matter relating to Regulation No. 54 of 2007.
The applicant’s position is that, given that Regulation No. 54 of 2007 did not come into effect until after the Indonesian Court’s adoption order, to the extent that the advice from the Indonesian Ministry may be said to have relied on that Regulation as the relevant law, it was not open to the Tribunal to have relied on the conclusion reached by the Ministry.
There is no dispute that Regulation No. 54 of 2007 came into effect after the date of the Indonesian Court’s adoption order. What is important to note is that the Tribunal itself accepted the applicant’s submission ([40]) in this regard ([41]).
The applicant’s complaint is that there was no evidence before the Tribunal that the previous relevant law (as expressed in various SEMA letters of instruction) provided that an Indonesian national married to a foreign citizen must apply for inter country adoption, rather than a domestic adoption, or that they prevented an Indonesian citizen married to a foreign national from adopting a child.
First, the Tribunal accepted that Regulation No. 54 of 2007 came into effect after the adoption. However, I agree with Mr Reilly that, to the extent that it was therefore implicit in the applicant’s position that this was some acceptance by the Tribunal that the information from the Indonesian Department of Social Affairs was otherwise incorrect, including its conclusion, then that must be rejected. When read properly, particularly as it comes immediately after the Tribunal’s reference to the applicant’s submission in this regard, the Tribunal simply acknowledged that Regulation No. 54 of 2007 came into effect after the adoption. The Tribunal made no finding nor, in my view, can any such a finding be inferred, that it had rejected the advice provided by the Indonesian Ministry.
Second, the Tribunal plainly proceeded on the assumption that the previous relevant legislation, as embodied in the various SEMA documents, was that the law was the same in “substance”.
In resolving this matter, what is important to note is that the Tribunal did not just rely on what was stated by the Indonesian Ministry. I would have some difficulty in accepting a submission from the respondent that the reasoning of the Ministry, as expressed in its letter, was not based on Government Regulation No. 54 of 2007. Clearly, the logic of that letter from the Ministry is that there was a Court order in relation to the adoption of the child in this matter by the applicant, that the applicant had married an Australian national in 2000, that based on Regulation No. 54 of 2007, an adoption involving a foreign national husband and an Indonesian wife is classified as an inter country adoption, the child adoption in the Court order is a domestic adoption, it should have been classed as an adoption of an Indonesian child by a foreign national, and therefore it was not made in accordance with prevailing law.
In my view, a plain reading of the Tribunal’s decision record reveals that it well understood, and accepted, the applicant’s submission that Regulation No. 54 of 2007 came into effect after the adoption, but that the conclusion stated by the Indonesian Ministry still remained the correct expression of relevant Indonesian law because the previous relevant legislation was the same “in substance” as the “new” Regulation No. 54 of 2007.
It is important to note that the Tribunal saw fit to put to the applicant for comment a wide range of other country information, which was set out in its two “natural justice letters”. It is not necessary to again canvass what has been put in submissions and recorded above in this regard. However, I note in particular that in relation to the first “natural justice letter” (CB 108 to CB 109) the Tribunal put to the applicant information directly relevant to the applicant’s circumstances, namely, that she was an Australian permanent resident, travelling on an Indonesian passport, wishing to adopt a child in Indonesia, that she would generally be regarded as an Indonesian citizen, and that procedures for adoption in relation to Indonesian citizens (in context, as opposed to non Indonesian citizens) are “somewhat different”.
Further, again relevant to the applicant’s circumstances, that where one prospective adoptive parent is a foreign national, and the other is an Indonesian citizen, the procedures are “more complicated”, and “different courts may interpret the law differently”.
The resolution of this application requires penetration of the layers of submissions made on behalf of the applicant.
In my view, Mr Reilly correctly submitted that the “no evidence” point was argued “a little bit differently” to what was put in the further amended application. The ground as pleaded in the further amended application makes no reference to Regulation No. 54 of 2007 or any change in the law by this regulation. Yet this matter was the subject of some emphasis in oral submissions. This is surprising, given that the further amended application was filed in Court at the beginning of the hearing and immediately before oral submissions.
The ground as pleaded is that, with reference to the various SEMA, the Tribunal’s decision was based on findings of fact wholly unsupported by evidence.
When the oral submissions and written submissions filed on 4 September 2009 are factored in, I understand the applicant’s complaint to be that there was no evidence before the Tribunal to support its conclusion that at the relevant time the applicant’s adoption of the young child in Indonesia did not comply with relevant Indonesian law, whether regard is had to the various SEMA or to Regulation No. 54 of 2007. Further, that there was no evidence to support the finding that the former was “in substance the same as” the latter.
A plain reading of the Tribunal’s decision record reveals that it relied on two sources to conclude that the adoption did not comply with the laws relating to adoption in Indonesia. The first was country information, which it said at paragraph 36 of its decision record was: “… outlined above in the Independent Country Information…” The second was to the consideration provided by the Indonesian Ministry of Social Affairs.
In relation to the advice from the Ministry (CB 61), in my view, a plain reading of that advice reveals that the Ministry based its conclusions on Regulation No. 54 of 2007. I do not agree with submissions by Mr Reilly that it cannot be said that the Ministry’s opinion was necessarily based on Regulation No. 54 of 2007, as opposed to any previous law. The placement of this statement (the third asterisk point as reproduced at CB 61), in my view, makes it clear, given what precedes it, and what follows it, that the Ministry based its opinion on the regulation.
In light of that, there are two matters, therefore, that require consideration.
The first is whether the other basis on which the Tribunal said it relied, that is what was outlined in the: “Independent Country Information”, contains evidence (as opposed to no evidence) to provide the basis for the Tribunal’s finding that the adoption did not comply with the laws relating to adoption in Indonesia.
Further, in relation to the relevant law at the material time (that is, the law as at the time of the making of the adoption order by the Indonesian Court), notwithstanding any other country information, whether Regulation No. 54 of 2007 was: “the same in substance”, as the law that preceded it.
The Tribunal’s analysis (at [36]) makes reference to the independent country information “outlined above”. A large slab of this appears to have been inserted between paragraphs 27 and 28 of its decision record (at CB 169 to CB 174 – without paragraph numbering).
On examination, however, what is revealed is that what is set out under the heading of “Independent Country Information” in its decision record differs in three respects from what is set out as being: “Independent Country Information on Adoption Laws in Indonesia” in the Tribunal’s “natural justice letter” dated 16 March 2009 and sent to the applicant (CB 121 to CB 129). This is quite separate to minor differences in layout and presentation.
First, that part of the country information set out in the letter at CB 124.5, beginning with the words: “Three categories of adoptions are recognized in Indonesia” to CB 126.1, ending with the words: “intercountry adoption must be legalised through a court ruling” are not reproduced in the corresponding part of the decision record.
Second, at CB 126.5, the words beginning at: “… – Accessed 6 June 2007 – Attachment 11. In a 2007 chapter from a book titled …”, to CB 127.6, words ending at: “… Institute of Southeast Asian Studies, Singapore …” are also omitted.
Third, also omitted is the sentence at CB in 127.9: “Two earlier MRT research responses provide information relating to adoption in Indonesia.”
Importantly, what is present, however, in the decision record under the heading of “Independent Country Information” are the following words found at the end of that section (at CB 174):
“Indonesian Government Regulation No. 54 of 2007 was enacted and came into force on 3 October 2007. Prior to that, the relevant legislation was known as SEMA (Supreme Court’s Letter of Instruction) No. 6 of 1983, as amended by SEMA No. 4 of 1989 and SEMA No. 3 of 2005.”
This is not present in the letter to the applicant.
No point was taken during the hearing before the Court as to the differences between these two documents. The applicant’s submissions, in this regard, focused on what was contained in the Tribunal’s letter to the applicant.
But the question remains, however, what was the information to which the Tribunal said it had regard, and which it described as: “outlined above in Independent Country Information” (at [36])? Further, if this was only the information as reproduced in the decision record, as opposed to what was reproduced in the letter, was there information in what was reproduced that: “… indicates that because the review applicant was married to an Australian citizen at the time she entered into the adoption in June 2007 then the adoption did not comply with the laws relating to adoption in Indonesia”?
The omission of the sentence at CB 127.9 ([104] above) is not material. Plainly, what follows are two earlier “MRT research” responses that provide information relating to adoption in Indonesia.
The omission of what is set out in the letter at CB 126 to CB 127 ([103] above) again, does not appear to be critical. It appears to deal with the issue of what is in the best interests of the child, and how (in part) this can be implemented through adoption laws and procedures. It does not appear to relate to the matter of adoption by someone who is married to an Australian citizen at the time of entering into the adoption. To the extent that that material makes reference to: “… adoptive parents must be of the same religion as the child to be adopted”, this does not appear to have been a matter that affected the Tribunal’s reasoning. Nor is there any reference in that material to Regulation No. 54 of 2007, or the law that appears to have preceded it, as embodied in the various SEMA documents.
The material at CB 124 to CB 126 (“the natural justice letter”), however, makes repeated references to SEMA documents. In particular, to SEMA No. 6 of 1983 and SEMA No. 4 of 1989, both of which are said, by the Tribunal, to be part of the relevant legislation in existence prior to Regulation No. 54 of 2007. (See CB 174.7.) Further, that information also makes reference to the three categories of adoption recognized in Indonesia, including adoptions by Indonesian citizens, and adoptions by non Indonesian citizens.
Although it was not argued before the Court, I note that s.368 of the Act requires the Tribunal to set out its findings of fact in its decision record, and the evidence and material on which those findings of fact are based. (See sub-ss.368(1)(c) and (d).) However, it is the case that a failure to comply with s.368 is not jurisdictional error, in any event (Applicant 1507/2003 v Minister for Immigration and Multicultural Affairs [2007] FCA 290).
While there is room for some speculation as to the reason for the omission of this material from the relevant part of the decision record, in the circumstances, and on a fair reading of the material before the Court, I am satisfied that where in its decision record (at [36]) the Tribunal made reference to independent country information, it meant to include the information as more fully set out in its letter to the applicant. I am reinforced in this view by what the Tribunal itself says: “The information before the Tribunal and …” The information as contained in the letter was certainly before the Tribunal, and indeed was given to the applicant for comment.
The question, therefore, now is, did that information, as more fully set out in the Tribunal’s letter, support the Tribunal’s finding that because the review applicant was married to an Australian citizen at the time at which she entered into the adoption (in June 2007), the adoption did not comply with the laws relating to adoption in Indonesia? Or more particularly, provide an evidentiary basis for the relevant findings?
In my view, there is enough in the country information before the Tribunal to support its reasoning that the applicant as a person (notwithstanding that she is an Indonesian national) who is married to an Australian citizen, and in circumstances where the Tribunal found that it could not be satisfied that the marriage was not recognized as a valid marriage in Indonesia for the purposes of adoption (a finding that was open to it on what was before it) then, based on the country information available to it, which provided for a number of different circumstances by which adoption could be implemented in Indonesia of an Indonesian child, it was open to the Tribunal to find that (based on those different categories of adoption) it was not open to the applicant, as a married woman, to have proceeded using the avenue of domestic adoption as a single woman.
Plainly, the Tribunal considered that, as a married woman, the existence of the applicant’s husband was important in the process of adoption. While a different Tribunal member may indeed have come to a different conclusion, the complaint made by the applicant in this case is that there was no evidence before the Tribunal. In fact, the complaint is that the whole of its finding was wholly unsupported by evidence. That no regard was had to those provisions of the relevant law dealing with adoption by adoptive parents, one of whom was a foreign prospective adoptive parent. Any plain reading of the Tribunal’s decision record reveals that the applicant’s marital status was critical to the view that it took as to how the adoption should have proceeded, or more properly, as to which avenue should have been employed.
In my view, as Mr Reilly correctly submitted, the matter could have gone either way. There is sufficient evidence, as set out above, by way of country information before the Tribunal to indicate that the avenue available to an Indonesian national married to a non Indonesian national did not comply with the relevant Indonesian law at the material time.
That, in itself, is sufficient to find that the applicant’s ground, which asserts that the Tribunal’s decision was wholly unsupported by evidence, is not made out.
Quite properly (given what was said in the Indonesian Ministry document), in submissions on behalf of the applicant much was made of the fact that Regulation No. 54 of 2007 came into effect after the adoption, and therefore should not have been relied upon by whoever drafted the advice on behalf of the relevant Indonesian Ministry. To that extent, as already set out above, I agree with the applicant that the advice is deficient in that sense.
The issue remains, however, as to whether the country information, on which the Tribunal said it also relied, was information about Regulation No. 54 of 2007, or the law that applied previously, which is the law variously set out in the Supreme Court Letters of Instruction.
In this regard, the country information set out in the letter to the applicant is liberally sprinkled with references to Supreme Court Circular Letters, and in particular, and relevantly, No. 6 of 1983, and No. 4 of 1989. (See CB 124.4, CB 125.3, CB 125.5, CB 128.5, CB 129.2.)
Far more importantly, there is nothing in the body of the “natural justice letter”, putting forward country information on adoption laws in Indonesia, to say that any of that information is relevant to, or is derived from, Regulation No. 54 of 2007.
In fact, to the contrary, in addition to the references set out above, the material makes it clear that it was the case that: “SEMA now regulates all adoptions …” (See in particular CB 128.3 and CB 128.5.) While both these references are contained in “MRT research responses”, relating to adoption in Indonesia, which focused on adoption by, or involving, ethnic Chinese in Indonesia, it is clear that the references were universal in scope in that SEMA regulated all adoptions because the material then goes on to say: “… including those concerning ethnic Chinese families”. The clear meaning conveyed is that all adoptions (at the relevant time) were regulated by SEMA.
To the extent, therefore, that the applicant’s complaint is that the Tribunal itself, as opposed to the Ministry of Social Affairs, relied on country information relevant to a situation after the date of the adoption order, then this must be rejected.
When the relevant material is viewed as set out above, the Tribunal’s finding that there was previously relevant legislation known as “SEMA”, and that it was the “same in substance as the new regulation” becomes irrelevant because whether it was the same or not, it makes no difference to the fact that the Tribunal also relied on country information that was derived from the SEMA legal regime, and not from the subsequent regime governed by Regulation No. 54 of 2007. This is what was put to the applicant for comment.
I should note that that particular finding (that the two laws were in substance the same) by the Tribunal is, in my view, unsupported by any evidence before it. Had the situation been different to that described above, then in my view, a complaint that the Tribunal’s finding that the old law was the same in substance as the new subsequent law may indeed have provided a far greater degree of difficulty for the Minister to explain satisfactorily before the Court.
While at the end of the section headed “Independent Country Information” in its decision record the Tribunal presents the statement as already referred to above (see [105] above), what is immediately apparent is that there is no attribution whatsoever as to the source of this statement, and from the material in the Court Book, it is not apparent on what basis the Tribunal made this statement.
It may be that putting this statement at the end of the section dealing with “Independent Country Information” was intended to give the statement the status of such information, rather than what it appears to be subsequently, in light of the absence of any relevant source or provenance, and that is an unsubstantiated statement wholly unsupported by the evidence before it.
It may be that the Tribunal felt compelled to create some basis for its finding that the laws were substantially the same in light of what was said by the Indonesian Ministry.
Whatever the situation, as already set out above, the Tribunal’s finding that the adoption did not comply with relevant Indonesian law was not dependent on any finding relating to the similarity, or otherwise, of the law subsequently enacted with what was the relevant law at the time of the Court’s adoption stipulation.
The Tribunal’s analysis clearly included a reference to the Indonesian Ministry’s letter, including the reference to Regulation No. 54 of 2007. But its conclusion was supported by a separate line of reasoning that independent country information before it showed that the adoption did not comply with Indonesian law. Such a requirement being a condition relevant to the grant of the visa.
The grounds, as pleaded, and as subsequently submitted, are not made out. While minds may differ, it cannot be said that there was no evidence before the Tribunal to support its relevant findings and conclusions.
Finally, I should just note, specifically, that the issue as presented in the particulars to the ground in the further amended application is not, as suggested, that there was no evidence that an Indonesian national married to a foreign citizen must apply for inter country adoption, rather than domestic adoption, or that there was no evidence that prevented an Indonesian citizen married to a foreign national from adopting a child in Indonesia, to the point.
The issue, as already set out above, is whether there was any evidence before the Tribunal, such as to support the various findings that it made, and ultimately to support the conclusion to which it came. As set out above, in my view, there was such evidence that the adoption did not comply with Indonesian law at the relevant time, notwithstanding that a different Tribunal member may have come to a different conclusion on that evidence. The applicant’s first ground is not made out.
Ground Two
In ground two the applicant asserts that the Tribunal breached s.360(1) of the Act. This is particularised by the assertion that the Tribunal was said to have failed to inform the applicant at the hearing that the question of whether her marriage to an Australian citizen was registered in Indonesia was an issue in the proceedings. Secondly, that there was a failure to inform the applicant of the possibility that the Tribunal may make a finding that the applicant’s marriage to an Australian citizen was registered, or not registered, in Indonesia. That both of these were issues dispositive of the review.
The applicant relies on the transcript of the hearing to say that that there has been a breach of s.360 in light of the above particulars, and relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) in support of that complaint. That, given that the High Court in SZBEL did not explain what an “issue” is, or define the word “issue”, the two “issues” identified can be seen in the circumstances of the applicant’s case to be issues arising in relation to the review.
The Court was also referred to Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434; [2009] HCA 30 (“SZKTI”) at [49] to [51], which dealt with a situation where the various factors relevant to the Tribunal’s decision were found to be subsumed within a larger question. I understood Mr Karp to say that, whereas in SZKTI subsequent factors raised were found to be: “additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL” (SZKTI at [51]) that in the current case the two issues be identified were not so subsumed.
Mr Karp’s submission was that whether the applicant’s marriage had been registered in Indonesia or not was not subsumed within the question of the effect of the marriage, and was a distinct factual matter, which was part of a chain of reasoning that could be dispositive of the proceedings. Therefore, it was an issue in its own right.
Mr Karp also referred the Court to SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 per Flick J and in particular to paragraphs 21, 22, and 24 for the purpose of guidance and instruction about the “width of the word ‘issue’”.
In response, Mr Reilly submitted that the “factor”, relating to whether the applicant’s marriage was registered in Indonesia, was first raised by the applicant herself, after the hearing, in correspondence from her adviser, who enclosed the opinion from the Indonesian lawyer (CB 146.):
“The adoption in question is clearly not an ‘inter-country’ adoption. It is classified as a private single parent adoption. The NSW marriage between Ina Irawan and Stephen Thorpe is not registered with the Indonesian authorities as the couple has not returned to reside in Indonesia.”
Mr Reilly also stated, as already set out above, that this was not an accurate description of what the opinion from the Indonesian lawyer said, given that it was drawn from a paragraph clearly headed “assumptions” on which the opinion was based.
Mr Reilly’s submission, therefore, was that it could not be said to give rise to an obligation on the part of the Tribunal to have held another hearing (given that the matter was not raised previously by the applicant). That there was no obligation on the Tribunal, given that the matter came from his own client.
Mr Reilly also relied on SZKTI, and particularly at paragraphs 49 to 51, and in particular, to the following:
“51 Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China …”
Mr Reilly’s submissions, by way of question, was: does the “issue” used in the context as set out in SZBEL refer to “a fairly general matter”, or does it refer to particular items of evidence that may go to that matter? Mr Reilly relied on what was said in SZKTI to submit that it is the latter. That a matter of evidence that may go to such a “broad” issue does not, of itself, engage the Tribunal’s obligation as set out in SZBEL.
Consideration
I do not necessarily disagree with the main thrust of Mr Reilly’s submission, but to the extent that the submission infers that there was such a degree of doubt as to what constitutes an “issue” following SZBEL, such that it was described in submissions as “a dispute”, then I have difficulty in accepting that part of the submission.
In my view, while no one all-encompassing definition is provided as to what constitutes an “issue” for the purposes of s.425 (and therefore also s.360), there are two important guidelines provided by the High Court. The first is that whether an issue must be raised with an applicant for the purposes of a further hearing under s.360 “will depend on the circumstances of each case” (SZKTI at [51]). Secondly, it is not just any “issue” or factor, but it is: “the issues arising in relation to the decision under review” which are said to be dispositive or determinative of the review (see SZBEL at [33] to [35], and [38] in particular).
As was said at paragraph 35 of SZBEL, the point at which to begin the identification of the issues arising in relation to the decision under review will usually be the reasons given for that decision. That is, the delegate’s decision in the current case. If there is some additional issue, or issues, subsequently identified by the Tribunal that are “determinative against the applicant”, then that would need to be raised at a hearing before the Tribunal ([35] of SZBEL), such that the applicant is given a “sufficient opportunity to give evidence, or make submissions, about what turned out to be … determinative issues arising in relation to the decision under review” (SZBEL at [44]).
In the present case, the determinative issue arising as a result of the decision under review (that is, the delegate’s decision) was that the adoption that took place was not in accordance with Indonesian laws and regulations, which was said to be due to the: “… fact that the sponsor is married to an Australian citizen, which subsequently classifies the adoption as an Inter-Country one”. (See the delegate’s decision record at CB 85.2.)
Any plain reading of the Tribunal’s decision record, whether the Tribunal can be said to have relied on the advice from the Indonesian Ministry, or the independent country information available to it, was that the adoption did not comply with the laws of Indonesia because the applicant was a person married to an Australian citizen, and therefore needed to adopt a different avenue to the domestic route to effect the adoption according to Indonesian law.
I agree with Mr Reilly that the adviser’s statement as set out at CB 146 (putting aside as to whether this could be properly classed as evidence, or more properly, as a submission, one that in any event arose from an assumption), was put in support of “an extant issue”. I cannot see that it constitutes the raising of a new or additional issue. The issue, of course, being the effect of the marriage on determining the appropriate option of adoption under Indonesian law. This issue was identified as a result of the delegate’s decision.
The “submission” in the adviser’s letter goes to the issue of the marriage, that is, its validity according to Indonesian law, and therefore again, as to which relevant option was the appropriate option, or even the only option open to the applicant to pursue to effect the adoption in Indonesia.
I cannot see that this is a new issue. It is, in fact, a factor subsumed in the issue of the effect of the marriage on the applicable Indonesian adoption law. The status of that marriage, which is subsumed in the one and only overriding issue, and that is, that as a person married to an Australian citizen, the mode of adoption that the applicant employed did not comply with the relevant Indonesian law.
In any event, the Tribunal squarely raised this issue with the applicant at the hearing. (See Q28 at T5, Q56 at T9, Q62 to Q73 at T10 to T12, Q74 to Q76 at T13 to T14, in particular.)
In all, therefore, ground two is not made out.
Conclusion
The applicant, with legal assistance, has put forward two grounds by way of the further amended application. For the reasons set out above, neither of the two grounds are made out. As I cannot therefore discern jurisdictional error on what the applicant has put forward, the application is dismissed.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 27 November 2009