Liang v Minister for Immigration
[2007] FMCA 1288
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIANG v MINISTER FOR IMMIGRATION | [2007] FMCA 1288 |
| MIGRATION – Skilled Australian Sponsored Visa – meaning of ‘first cousin’ – effect of informal adoption of applicant’s mother. |
| Adoption Act1984 (Vic), ss.67, 53, Adoption Regulations 1984 (Vic), r.10B, Migration Regulations 1994, rr.1.03, 1.04, sch 2 cl.1128BA(3) Relation Act (PRC), s.1079 |
| Re K (an infant) [1953] 1 QB 117. Hodges, et al, Review of the independent and Skilled-Australian Linked Categories (Canberra: AGPS, 1999). |
| Applicant: | HONG LIANG |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 1541 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 23 April 2007 |
| Date of last submission: | 14 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Australian Government Solicitor |
| Solicitors for the Respondent: | Mr Mosely |
ORDERS
That a writ of certiorari issue quashing the decision of the Migration Review Tribunal of 27 October 2006 in MRT file number V05/06149.
That a writ of mandamus issue requiring the Migration Review Tribunal to hear and determine the application of HONG LIANG of 22 November 2005 according to law.
The respondent pay the applicant’s costs fixed at $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1541 of 2006
| HONG LIANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal refusing an application for a Class DE Visa (Skilled-Australian-Sponsored-Overseas Student Residence Visa). The applicant, who is from China, is sponsored by Mr Hai Baio Su. The applicant claims that Mr Su is her biological first cousin.
The real issue in this case is the meaning of the term ‘first cousin’ as it appears in item 1128BA(3)(l) which is a requirement of condition 882.221 for the visa category pursuant to which the applicant applied. Item 1128BA(3)(k) and (l) are the relevant clauses in this case and read as follows:
1128BA(3)(k) [Skilled - - Australian-sponsored Overseas Student (Residence Class DE)] Application must be accompanied by a property completed sponsorship for by a person who is the sponsor of the applicant.
(l)Application must be accompanied by satisfactory evidence that the sponsor:
(i) has turned 18; and
(ii) is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
(iii) is a person in respect of whom the applicant seeking to meet the primary criteria has one of the following relationships:
(A)a parent;
(B)a child, or adoptive child, or step-child who is not a dependent child of the sponsor;
(C)a brother or sister, an adoptive brother or sister or a step-brother or step-sister;
(D)a nephew or niece, an adoptive nephew or niece or a step-nephew or step-niece;
(E)if the applicant is seeking to satisfy the primary criteria for the grant of a Subclass 882 (Skilled – Designated Area-sponsored Overseas Student) visa – a grandchild or first cousin.
The term ‘parent’ referred to in that item must be read subject to the definition of parent that is provided for in r.1.03 which provides:
1.03 [Definitions] In these Regulations, unless the contrary intention appears:
parent includes an adoptive parent and a step‑parent.
Adoption, in the context of migration applications, is the subject of specific regulation:
1.04 [Adoption] 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 Tribunal finding
The Tribunal proceeded on the basis that the term ‘first cousin’ in Item 1128BA(3)(l)(iii)(E) referred to a relationship at law, and not to a biological relationship. The Tribunal found that the applicant’s mother was adopted as an infant in June 1949, and that the adoption met the requirements of r.1.04(b): see para [41].
The Tribunal briefly considered whether the applicant was a biological relation of the sponsor, saying:
47. … The Tribunal makes no finding on whether the visa applicant is a blood relation of the sponsor.
The applicant’s mother’s adoption
The applicant’s mother’s adoption was informal. Both families knew each other well. The only evidence with respect to adoption under Chinese Law that may have applied at the time was a very brief translation of part of s.1079 of the Relation Act (PRC) which the Tribunal member referred to in the decision:
[35] The visa applicant’s agent has given further evidence to the Tribunal for the purpose of this review about adoption in his submission dated 20 September 2006, in which he states that 5 Notarial Certificates had been provided to demonstrate the point. He also states that prior to the present government coming to power in October 1949, the law relating to adoption which applied in June 1949 was contained in s.1079 of the Relations Act (sic), which states (in translation):
…adopted son or daughter shall be in writing, but an infant adopted as son or daughter is not restricted by this rule.
[36] The agent states that this rule was effective until 1985 and may be interpreted to mean “any adoption shall be in writing except where a person is adoption as an infant”. The agent submits that the adoption was never recorded in writing and because “it took place in a small village of low sophistication between close relatives as opposed to complete strangers” and at a time when there was a great deal of civil unrest.
[37] The evidence against the adoption is that claim made by the visa applicant’s agent that despite the documents, claims and evidence previously made by the visa applicant and the agent on her behalf, the visa applicant is the ‘blood cousin’ of the sponsor “because the stated adoption is not an adoption in the legal sense…”.
[38] It is difficult to see how the claim, made for the first time on 20 September 2006 that the adoption is not a legal adoption, can be sustained. The evidence before the Tribunal shows that the visa applicant’s mother was adopted in June 1949, aged about 20 months, and lived with her adoptive parents. There is no evidence of a written agreement, but on the evidence of the visa applicant’s agent, that does not appear to be necessary under the circumstances of the relevant law in June 1949.
On the material before the Tribunal there appears to have been nothing to indicate that the adoption was formalised. There is no notification at a registry office, religious record keeper or notary at or about the time. There are no birth certificates issued at the time. There were no Court orders or permissions obtained from officials or government bodies.
In this situation it is difficult to see how the adoption could be categorised as a ‘formal adoption arrangement’ as referred to in r.1.04(1)(b). As there is no evidence of any formalities being fulfilled the tribunal has erred in concluding that the adoption was a ‘formal’ adoption within the meaning of the regulation (at para [41]).
The applicant’s mother may none the less be taken to have been adopted under r.1.04(1)(c) if r.1.04(2) is fulfilled. As no findings were made by the tribunal in this regard, the tribunal has failed to exercise its jurisdiction.
The effect of adoption is governed by the Adoption Act1984 (Vic), given that the relevant parties are in Victoria. Section 67 of the Adoption Act provides for the recognition of foreign adoptions, recognising adoptions that were effective according to the law of the foreign country if that country was the usual place of abode of the adoptive parent for the 12 months immediately preceding.
The adoption was found to be effective according to law of The People’s Republic of China, on the evidence before the tribunal member. It appears that The People’s Republic of China is an overseas jurisdiction recognised for the purpose of this section: see r.10B of the Adoption Regulations 1984 (Vic).
It appears from the findings of fact that the case would be likely to fall within r.1.04(2) of the Migration Regulations. However, on judicial review proceedings it is not open to me to make any findings of fact which have not been made by the Tribunal member. There do not appear to be sufficient specific findings of fact on the face of the decision to fulfil reg1.04(2). For this reason the matter must be returned to the Tribunal to be heard and determined according to law even though there appears to be a strong likelihood that the Tribunal member would conclude that the case falls within r.1.04(2).
The effect of the recognition of the adoption under the Adoption Act, is set out in s.53 which provides as follows:
53. [General effect of adoption orders] (1) Subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order—
(a)the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents, and the adoptive parent or adoptive parents shall be treated in law as the parent or parents of the child, as if the child had been born—
(i) to the adoptive parent; or
(ii) to the adoptive parents in lawful wedlock;
(b)the adopted child shall be treated in law as if the adopted child were not a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the child;
(c)the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this sub-section so far as they are relevant.
If the facts and circumstances satisfy the recognition requirements in s.67 of the Adoption Act, the legal relationship between the applicant’s mother and the sponsor’s father was terminated by the adoption and therefore as a matter of law the applicant’s mother is not treated as having been a child of the same parents as the sponsor’s father.
The adoption legislation creates a legal fiction: that a child is the child of parents with whom there is no biological relationship. This legal fiction is given effect by extinguishing the legal rights and responsibilities of the biological parents and creating commensurate rights and responsibilities for the adoptive parents: see generally Re K (an infant) [1953] 1 QB 117. This fiction remains effective under other acts: see for example Roche v Douglas (as Administrator of the Estate of Rowan, decd) [2000] WASC 146. However, this does not stop the legislature passing laws referring to or relying upon the biological relationships of the parties. It is a matter for careful interpretation of the particular provision to determine the precise nature of the relationship that a particular provision covers.
It is in this context that an interpretation must be given to the term, ‘first cousin’ under item 1128BA.
Meaning of ‘first cousin’ in Item 1128AB
It is significant that the term ‘parent’ as used in the item, has a broad definition that includes adoptive parents and step-parents. It is also significant that sub-cls.1128BA(3)(l)(iii)(B) to (D) each refer to a biological relationship, the adoptive version of the relationship, and then the relationship generated by a marriage.
If the regulation was to be interpreted such that ‘child’ was to refer only to a child at law then the addition of the term, ‘adoptive child’ would be mere surplusage. I therefore conclude that in sub-cl.1128AB(3)(iii)(A) to (D) the context of the provisions mean that the relationship first referred to must be a biological relationship, followed by a reference to the adoptive relationship, followed by a reference to the form of the relationship generated by marriage (the step-relationship).
Curiously, in the last category the terms ‘grandchild’ and ‘first cousin’ do not have after them references to adoptive or step-relationships. I must determine whether these terms refer to only biological relationships, only relationships at law, or more generally to relationships which encompass all three categories.
Item 1128AB(3)(l)(E) was inserted as a result of the Hodges Report Review of the independent and Skilled-Australian Linked Categories (Canberra: AGPS, 1999). The relationship of sponsors to applicants in this particular visa category was considered in the report, where the authors stated:
[4.69] The Regional Linked Category is a subclass of the SAL category. It allows SAL applicants who meet threshold skill, age and English language requirements, but who may not meet the prevailing pass mark, to be eligible for migration if they are sponsored by relatives living in a designated area. With the exception of the proposed work experience requirements, these threshold requirements are consistent with those recommended by the Review for the SAL category. SAL applicants who do not receive points above the threshold level are, however, highly unlikely to meet the pass mark for that category.
[4.70] To provide greater opportunities for regional migration, the Review suggests that, in addition to parents, non-dependent children, siblings and nephews and nieces, first cousins and grandchildren be able to be sponsored under the Regional Linked category.
[4.71] Strengthening the integrity of the Regional Linked category, through the introduction of stricter threshold criteria, the mandatory Assurance of Support bond and the minimum income test for sponsors, could enable the Government to look at a wider range of potential sponsors. For example, consideration could be given to state or community organisation sponsorship or to sponsorship by individuals with no family link to an applicant. The Review recommends that the Commonwealth – State Working Party on Skilled Migration examine options for the further extension of sponsorship eligibility.
The report sets out the background to this visa category:
[2.1] In May 1997 the Government announced the Review of the Independent and Skilled-Australian Linked (SAL) visa categories. These categories are the largest components of the skilled stream of Australian’s Migration Program and will make up approximately one-third of the 1998-99 Migration Program. They provide for the migration of individuals who do not necessarily have close to ties to Australia but who are recognised as being able to make a positive contribution to the Australian economy. More than any other migration categories, they distinguish countries such as Australia, Canada and New Zealand as ‘migration countries’.
[2.2] The Independent and SAL (formerly Concessional Family) visa categories, and the points test they utilise, were introduced in 1989 in response to the recommendations made in the report of the Committee to Advise on Australia’s Immigration Policies (the Fitzgerald report) (an historical overview of the categories is included in this report at attachment A). The Committee was strongly of the view that the skill levels of the Migration Program were critical if immigration was to contribute to enhanced economic performance and improvements in living standards in the longer term. The Committee considered, therefore, that the objective of the categories should be to select young, highly skilled and readily employable migrants who would make a positive contribution to Australia’s economic development. Successive immigration Ministers have reaffirmed this objective.
When addressing the income support function that a sponsor performs, the authors say:
[4.106] The level of points available under the relationship factor is currently determined by the degree of relationship between the applicant and the sponsor. Fifteen points are available where the sponsor is an adult child of the applicant, 10 points where the sponsor is a brother, a sister or a parent and 5 points where the sponsor is an aunt or uncle. The differentiation in points is intended to reflect the closeness of the various relationships and there fore the level of support that could be expected from the sponsor. However, these different family relationships do not necessarily reflect the level of support or assistance that might be provided to the applicant. A better measure of this may be the preparedness of the sponsor or assurer to provide support.
[4.107] The Review proposes that greater measures be taken to ensure that all sponsors (or assurers, where necessary) are able to provide effective support to newly arrived migrants, including a minimum income requirement and a mandatory assurance of support (see paragraph 4.120). If this approach is accepted, it should be possible to allocate the full 15 points for all acceptable types of family relationship.
To the extent that this issue was significant in the overall report it is summarised in the executive summary as:
[1.23] Independent and SAL migrants are normally subject to a two year waiting period before being able to access social security benefits. For most, this does not cause any difficulty-the categories are intended to select migrants who are highly employable and most Independent and SAL migrants gain employment quickly. Many also bring a high level of savings with them to Australia. However, those who do not must be able to support themselves or rely on their sponsor for assistance.
[1.24] To ensure that SAL (and Regional Linked) migrants are able to rely on their assurers for support, assurers should be required to have a minimum level of income which would allow them to provide adequate financial assistance to the new migrant and their family. In addition, an Assurance of Support bond should be required in relation to all SAL applicants to ensure that those who do receive social security benefits do not do so at a cost to Australian taxpayers.
I am of the view that it is clear from cl.1128AB(3)(iii)(A) to (D) that the drafter intended a fulsome definition to be given to the relationship, encompassing the relationship both biologically, as a result of adoptions, and as a result of marriages. In the last sub-clause the draftsperson has simply referred to the relationship generally and has not sought to describe the relationship by reference to any of the three possible categories referred to in the preceding sub-clauses.
The term must be read in the context of the clause. If the context demonstrates that the reference to the relationship, such as ‘child’ only refers to the biological relationship this would arguably lead to a logical conclusion that the simple form of the relationship reference must be read as referring only to a biological relationship. This would lead to an anomalous result with respect to cases involving adoptions in the style traditionally undertaken in Australia.
The argument against a general reading of the terms in cl.1128AB(3)(iii)(E) is that the drafter has defined each of the possible sub-categories of the relationship in the preceding clauses. However, if the form of the relationship that is referred to is that created by law, it is a use of the term in a way that differs from the preceding sub-sections. It would also make the reference to ‘grandparent’ difficult to apply: for example, if one’s grandparents divorced and re-married would a person then have up to eight grandparents within the meaning of the clause.
As a result, on a textual analysis, I find that the term ‘first cousin’ is to be given a broad reading, such that it includes first cousins whether by biology, adoption, or marriage. Having regard to the context in which the regulations operate, as discussed in the Hodges report, it appears to me that this is the preferred definition for that term in the regulations. I also note that a broad reading of terms relating to familial relationships was adopted in Mercado v Minister for Immigration [2007] FMCA 1216.
In the circumstances of this case I find that the delegate has erred in the interpretation of cl.1128AB(3)(iii)(E). The term, ‘first cousin’ as it appears in this sub-clause should be interpreted to include a biological first cousin, whether or not there has been an adoption.
It is therefore appropriate that the application be allowed and orders be made for the issue of writs for the decision to be quashed and the matter to be remitted to be determined in accordance with law.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: A.Tan
Date: 8 August 2007
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