Minister for Immigration and Border Protection v VDQS
[2018] FCA 574
•26 April 2018
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v VDQS [2018] FCA 574
Appeal from: VDQS and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1420 File number(s): NSD 1734 of 2017 Judge(s): THAWLEY J Date of judgment: 26 April 2018 Catchwords: ADMINISTRATIVE LAW – appeal from the decision of the Administrative Appeals Tribunal – whether the Tribunal denied the Minister procedural fairness – whether the Tribunal made a legally unreasonable decision
CITIZENSHIP - whether under s 16 of the Australian Citizenship Act 2007 (Cth) the respondent was eligible to become an Australian citizen – whether a person is a parent of a child under s 16 of the Australian Citizenship Act 2007 (Cth) – where a parent is an Australian citizen– where child born outside Australia
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Australian Citizenship Act 2007 (Cth), ss 16, 17, 52
Migration Act 1958 (Cth), s 430
Surrogacy Act 2010 (NSW), s 8
Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459
H v Minister for Immigration and Citizenship (2010) 188 FCR 393
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775
Date of hearing: 26 April 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the First Appellant: Ms R Francois Solicitor for the First Appellant: Minter Ellison Counsel for the First Respondent: VDQS Snr appeared on behalf of the applicant ORDERS
NSD 1734 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: VDQS
Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
26 APRIL 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THAWLEY J:
This is an appeal brought by the Minister for Immigration and Border Protection (Minister) under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal).
The respondent, VDQS, was born in Thailand on 22 June 2015. His mother is a Thai citizen. By an application signed 1 April 2016, VDQS Snr (who claimed to be the respondent’s biological father and parent) lodged the respondent’s “Application for Australian citizenship by descent” at the Australian Embassy in Bangkok.
On 20 July 2016, a delegate of the Minister refused VDQS’s application to become an Australian citizen by descent on the basis that, at the time of his birth, he did not have a “parent” who was an Australian citizen within the meaning of s 16 of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).
The respondent, by VDQS Snr, lodged an application for review in the Tribunal. The Tribunal had jurisdiction under s 52 of the Citizenship Act.
On 31 August 2017, the Tribunal remitted the matter to the Minister for reconsideration in accordance with a direction that VDQS was eligible to become an Australian citizen because VDQS Snr was a “parent” within the meaning of s 16 of the Citizenship Act and was an Australian citizen at the time of the respondent’s birth.
The Minister filed a notice of appeal in this Court on 28 September 2017. On 30 November 2017, he filed a “supplementary notice of appeal” which substantially amended the original notice of appeal. The amended notice of appeal identified three questions of law, one of which has since been abandoned. The remaining questions of law are as follows:
2. Did the Tribunal fail to accord the Minister procedural fairness by not identifying to the Minister the adverse conclusions it had reached which were not obviously open on the known material?
This question should be answered “yes”.
3. Is the Tribunal permitted to make a legally unreasonable decision under s 43(1) of the AAT Act in circumstances where a conclusion that Mr King was the respondent’s “parent” was not open on the proper construction of s.16 of the Citizenship Act 2007 (Cth) and the evidence before the Tribunal?
This question should be answered “no”.
LEGISLATIVE PROVISIONS, ADMINISTRATIVE POLICY AND LEGAL PRINCIPLES
Sections 16 and 17 of the Citizenship Act provide:
16 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
Note: Section 46 sets out application requirements (which may include the payment of a fee)
Persons born outside Australia on or after 26 January 1949
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
17 Minister’s decision
(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
Section 16 was considered by a Full Court of this Court (Moore, Kenny and Tracy JJ) in H v Minister for Immigration and Citizenship (2010) 188 FCR 393. Their Honours said at [128] to [131]:
128The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognises, not all parents become parents in the same way: see, eg, s 8 of the Citizenship Act; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
129Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
130The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.
131We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister’s construction (see [79]). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.
The Government has issued the Citizenship Policy which provides guidance to decision-makers on the interpretation of the Citizenship Act. Relevantly, Chapter 20 provides:
Whether a person is a parent of a child is a finding of fact, with parent having its meaning in ordinary contemporary English usage
…
Biological parent-child relationships
A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:
•the nature of the relationship between the claimed parents
•travel movements for the claimed parents around the date of conception
•the applicant’s birth, registration of birth and the chain of custody post-birth
•physical similarities between the applicant and claimed parent.
…
DNA testing
In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:
•an Australian citizen (for descent) or
•an Australian citizen or permanent resident (for birth onshore)
and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.
…
If the opportunity to provide DNA evidence in support of an application has been offered and not accepted, the decision maker should consider the applicant’s reason/s for not accepting the offer and whether any adverse inference may be drawn.
…
Non-biological parent-child relationships
Factors to be taken into account
For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth. The applicant (or, if applicable, their responsible parent) should be asked to provide evidence of the length and nature of the Australian citizen’s or permanent resident’s parental relationship with the child.
…
Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may include, but is not limited to:
•anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent
•evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care
•evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and
•when a child is born through a surrogacy arrangement - a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.
Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at time of birth, but would lend weight to evidence of the types already mentioned.
THE TRIBUNAL DECISION
The Tribunal’s reasons were relatively brief. It found that VDQS was born in a general hospital in Thailand in June 2015 (in fact, on 22 June 2015, by Caesarean section). It found that the respondent’s mother, Ms O, was a citizen of Thailand. It concluded that VDQS Snr had met the respondent’s mother in February 2013 and had, since then, travelled between Australia and Thailand on a regular basis. He was in Thailand between 9 October 2014 and 7 December 2014. He had sexual intercourse with Ms O on a number of occasions between 9 October 2014 and 4 November 2014. Ms O told VDQS Snr she was pregnant on 4 November 2014. At [6], the Tribunal stated:
[VDQS Snr] provided evidence to show that it is likely that [VDQS] was conceived between 9 October 2014 and 9 [sic] November 2014. I accept this evidence.
I interpolate that the significance of this finding was that the Minister had argued that it was not possible for VDQS Snr to be the biological father because the birth certificate nominated the “duration of pregnancy” as 39 weeks and other material established that the respondent was born at full-term and, accordingly, had to have been conceived before 9 October 2014. The birth certificate was in Thai, although it was made clear at the hearing that the reference to 39 weeks was a reference to the duration of pregnancy. It was translated into English after the hearing. On the other hand, VDQS Snr had argued that Asian women have, on average, slightly shorter pregnancies. He had tendered material to the Tribunal to the effect that the average gestational age at delivery was shorter (39 weeks) in Asian women compared to European women (40 weeks). Other material tendered by him indicated that “[m]ost babies arrive between 37 weeks and 41 weeks of pregnancy” and that “[t]he length of a normal pregnancy can be anything from 37 weeks to 42 weeks”. This material recorded that “[i]f you give birth before 37 weeks of pregnancy, your baby is defined as premature”. In his evidence to the Tribunal, VDQS Snr gave an account of a conversation with the treating obstetrician (Dr Anurak) who was said to have stated that the “rule of thumb” for Thai women was “38 weeks plus 8, take away 12 and then you get … your delivery date, which works out exactly spot on, and it tells you that [the respondent] is six days premature, which is 37.4 weeks”. He had explained that the 39 weeks in the birth certificate was calculated from the first day of the last menstrual period (rather than from the date of conception).
The Tribunal found that VDQS Snr supported Ms O financially from 1 January 2015 during the remainder of her pregnancy and for a considerable time after VDQS’s birth. He had assisted her financially before this. He had paid for expenses associated with the respondent’s birth. The Tribunal noted that VDQS Snr lodged VDQS’s application on 1 April 2016 and that an official at the Australian Embassy in Bangkok had requested VDQS Snr to provide a DNA report to confirm that he was the respondent’s father. VDQS Snr initiated this process on 17 June 2016, but – following an argument with the Embassy official – he cancelled the arrangements for the testing three days later. Since that time he has refused to undergo any such test. The Tribunal recorded that Ms O had told VDQS Snr that she did not want to take the respondent to the Embassy for DNA testing and VDQS Snr said that he did not know why she was reluctant to do this.
After setting out the above matters by way of background, the Tribunal identified the relevant provisions of the Citizenship Act and relevant parts of the Citizenship Policy. It set out relevant aspects of the decision in H. The Tribunal noted that the Minister had conceded there was no issue as to the respondent’s identity and that VDQS Snr was an Australian citizen as at the date of the respondent’s birth. It identified the only issue as whether VDQS Snr was the respondent’s “parent”.
The Tribunal stated that it was not satisfied that VDQS Snr was the respondent’s biological father and made it clear this was not to be understood as a finding that VDQS Snr was not the biological father.
It stated that “several factors” caused the Tribunal not to be satisfied of the biological relationship. It then referred to the refusal by VDQS Snr to undergo DNA testing and to Ms O’s unexplained reluctance to take the respondent to the Embassy for DNA testing.
The Tribunal then turned to the question whether, notwithstanding it was not satisfied of the biological relationship, VDQS Snr was nevertheless a “parent” within the ordinary meaning of that word as used in s 16 of the Citizenship Act at the time of the respondent’s birth in June 2015. It concluded that it was so satisfied on the basis of its findings of fact which it set out in eight paragraphs, as follows (footnotes omitted):
24.[VDQS Snr] has supported Ms O emotionally and financially since she told him that she was pregnant with his child. Ms O was totally financially dependent on [VDQS Snr] from January 2015 until a considerable time after she gave birth to the Applicant. As at 2 March 2017 [VDQS Snr] was continuing to support Ms O and the Applicant.
25.From 9 October 2014 until 7 December 2014 [VDQS Snr] stayed in a hotel in Thailand. He and Ms O spent almost every day together.
26.[VDQS Snr] was in Thailand from 1 March 2015 for a period of 30 days. During that time he and Ms O shared rented accommodation. He returned to Thailand on 7 June 2015 and remained there until 5 August 2015. From 7 June 2015 until 28 June 2015 he and Ms O again shared rental accommodation. [VDQS Snr] paid for their joint living expenses.
27.During Ms O’s pregnancy [VDQS Snr] accompanied Ms O on her visits to her obstetrician and for pre-natal scans. He accompanied her to the Hospital and was at the Hospital when the Applicant was born. Photographs taken by [VDQS Snr] show the Applicant on the day he was born.
28.[VDQS Snr] paid all the expenses associated with Ms O’s pregnancy, her medical assistance, her hospitalisation and post-natal care. He also paid for all of the Applicant’s immunisations. He purchased the Applicant’s clothing, nappies, cot, bedding, bath, towels, pram, toys and milk powder.
29.The Applicant’s birth certificate, dated the same day as his birth, records [VDQS Snr] as his father. Details of the birth were provided by a Hospital staff member as is the normal practice. [VDQS Snr] provided his consent to his name being provided as the Applicant’s father and details of his passport being included on the birth certificate.
30.Since the Applicant’s birth [VDQS Snr] has represented himself to Ms O’s family as the Applicant’s father. He took part in a marriage ceremony with Ms O in the presence of her family to allay their concerns of her being an unmarried mother. However [VDQS Snr] does not regard himself as married.
31.[VDQS Snr] provided photographs which depict him with the Applicant. Some photographs were taken in the apartment he shared with Ms O shortly after the Applicant’s birth. Others were taken in an apartment they shared when the Applicant was about six months old and others when he was about 12 months old.
CONSIDERATION OF THE MINISTER’S ARGUMENTS
By its written submissions, the Minister characterises the questions of law as follows:
(1)whether the Tribunal denied the Minister procedural fairness by not identifying to the Minister the adverse conclusions it had reached which were not obviously open on the known material;
(2)whether the Tribunal was permitted to make a legally unreasonable decision under s 43(1) of the AAT Act in circumstances where a conclusion that VDQS Snr was the VDQS’s father was not open on the proper construction of s 16 of the Citizenship Act.
Ground one – procedural fairness
In support of ground one, the Minister referred to the decision of the Full Court (Northrop, Miles and French JJ) in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and specifically, the following passage (Minister’s emphasis):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question
The Minister submitted:
The AAT’s conclusion that it was likely that VDQS was conceived between 9 October 2014 and 9 November 2014 was not obviously open on the known material. On the contrary, it is entirely inconsistent with the known material. In making this finding, the AAT did not discuss which evidence it considered supported this conclusion and gave no reasons as to why it ignored the Minister’s submissions. The question of date of conception was critical because VDQS Snr made clear that he would only accept responsibility for VDQS if he was his biological child. Accordingly, in the circumstances, the AAT denied the Minister procedural fairness.
The precise content of what the rules of procedural fairness require depends upon the circumstances of the particular case. The passage from Alphaone referred to by the Minister and the Minister’s submission direct attention to what was “obviously open on the known material”. It was clearly VDQS Snr’s contention that VDQS was conceived between 9 October 2014 and 4 November 2014. He gave quite precise evidence that he had intercourse with Ms O on 9 October 2014 and 11 October 2014. He had put before the Tribunal material which was clearly intended to support his case that he was the biological father. He tendered material which indicated that the length of a normal or typical pregnancy varied between 37 and 42 weeks and material which supported his contention that Asian women have, on average, slightly shorter pregnancies than European women. He gave an account of his conversation with Dr Anurak, the obstetrician involved with Ms O’s care (who also signed the birth certificate), which also obviously went to his contention that he was the biological father and that Thai women have shorter pregnancies than certain other women. He also stated, in a written document before the Tribunal, that Ms O was “very small” and that the respondent was “too big to go full term”; he stated he was at the last of four antenatal check-ups and the ultrasound revealed that the baby was under stress and that Dr Anurak said that the baby had to come out. He gave oral evidence to similar effect when asked questions by the Tribunal. He gave evidence in cross-examination that the 39 weeks referred to in the Thai version of the birth certificate was the number of weeks from the first day of the last menstrual period. Although it is not entirely clear, it appears that VDQS Snr had discussed this with Dr Anurak. The Minister was aware of all of this material, had the opportunity to address this material and availed himself of that opportunity in written submissions sent to the Tribunal after the hearing. Those written submissions specifically addressed the significance of the birth certificate which had been translated after the hearing. There was no denial of procedural fairness.
The Tribunal’s conclusion was “obviously open on the known material” within the general statement of principle in Alphaone as it applies to this particular case. The Minister referred to medical certificates dated 14 and 25 May 2017 (signed by Dr Anurak) which refer to VDQS being full term when delivered by Caesarean section on 22 June 2015. One of those certificates referred to an expected date of full term pregnancy between 22 and 29 June 2015. If this were correct and VDQS was conceived on 9 October 2014, then Ms O’s pregnancy would have lasted between 36.5 and 37.5 weeks. The Minister contended that the “only medical evidence” as to the duration of Ms O’s pregnancy (as opposed to pregnancies generally) was the birth certificate which recorded 39 weeks as the duration of pregnancy. The birth certificate was capable of supporting a conclusion that VDQS was conceived earlier than 9 October 2014 (whether or not an entry in a birth certificate is appropriately classified as “medical evidence”). On the other hand, other material, including the two medical certificates, VDQS Snr’s oral evidence and the material dealing more generally with the duration of pregnancies referred to above was capable of supporting the factual finding the Tribunal made. Both conclusions were “obviously open on the known material”; it is what is “obviously open” that is important, not whether the finding is considered to be the more likely one. It is not to the point that the conclusion might have been different if the case had been decided by a different decision-maker.
Accordingly, this ground fails.
Ground two
In support of ground two, the Minister referred to the sentence in H v Minister for Immigration and Citizenship (2010) 188 FCR 393 at [129] that “parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.
The Minister submitted:
None of the evidence before the AAT was capable of indicating any “intense commitment” to VDQS by VDQS Snr; rather the evidence demonstrated a contingent commitment to VDQS by VDQS Snr primarily based upon his incorrect belief that VDQS is his biological son. VDQS Snr’s evidence made clear that he saw no duty beyond that established by a biological connection (and even that was tenuous if VDQS was not granted citizenship) and the medical evidence before the Tribunal established there was no biological connection.
The question is not whether the evidence was capable of supporting a finding of “intense commitment” on the part of VDQS Snr, but whether the evidence was capable of supporting the conclusion that VDQS Snr was a “parent” within the meaning of s 16 of the Citizenship Act. The Minister’s focus on one particular sentence in the Full Court’s decision to the exclusion of the Full Court’s other comments distracts attention from the real issue. The Tribunal set out its findings of fact (in eight paragraphs) which led it to the conclusion that VDQS Snr was a “parent” at the time of VDQS’s birth. The “question whether a particular person qualifies as a parent within [the] ordinary meaning” of the word “parent” in s 16 is a question of fact: H at [130]. The question of whether evidence should or should not have led to the particular finding of fact is not a question of law for the purposes of s 44 of the AAT Act: Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775 at [83], per Jagot J. As her Honour explained, “evidence” in this context means the whole of the material before the Tribunal. It is not to the point that other evidence before the Tribunal supported the making of a different finding of fact or that a different decision-maker may not have reached the same conclusion. The Tribunal’s decision was open on the proper construction of s 16 of the Citizenship Act and is not shown to be legally unreasonable for the purposes of a s 44 AAT Act appeal .
The Tribunal was not satisfied that VDQS Snr was the biological father, but concluded he was a “parent” within the meaning of s 16 whether or not he was the biological father. The Minister submitted the “date of conception was critical because VDQS Snr made clear that he would only accept responsibility for VDQS if he was his biological child”. In my view, it is inaccurate to describe the evidence as demonstrating a “contingent commitment” on the part of VDQS Snr based primarily on his belief that VDQS was his biological son. The picture was more complicated.
It is correct, as was submitted, that VDQS Snr at one point in his evidence or argument stated: “I assure you I wouldn’t be putting money into [VDQS] if I wasn’t his father … So I’m sure that I’m the biological father”. This needs to be understood in the context of his other evidence. Regard should also be had to the fact that VDQS Snr was self-represented and both arguing his own case and giving evidence.
VDQS Snr was cross-examined about whether he regarded Ms O as his girlfriend. In that context, he gave this evidence:
Do you mean you don’t regard her to be your girlfriend? Is that what you mean by that? – Well, I did, and I’m more or less there now for [VDQS]. If [VDQS] wasn’t in this equation I probably wouldn’t be there, but because [VDQS]’s there I’m going to see it out. I get on well with [Ms O]. You could say that we were boyfriend and girlfriend.
Later, he gave the following evidence:
…you’re [VDQS]’s father, parent rather, either biologically or through your conduct. That’s what it’s about, about the facts of the matter? – That’s right. I’d probably support [VDQS] in some way, shape or form. I think [Ms O] would be very upset if I didn’t – well, you know, she thinks we’re boyfriend and girlfriend, and I feel that way, you know, in a way.
…
You said that if [VDQS] is recognised as an Australian citizen you’ll continue to support him, but if he’s not recognised as an Australian citizen, the support you’ve been providing to [Ms O] up till now will cease? --- Yes, but I’d probably still support [VDQS].
The Minister submitted that VDQS Snr was not directly dealing in these answers with what he would do if he later found out he was not the biological father or with the question of whether his commitment was contingent on him in fact being the biological father. That is correct. However, the evidence taken as a whole was to the effect that VDQS Snr considered he was the biological father and that he would support VDQS even if VDQS remained in Thailand. I also note that the test in s 16 directs attention to whether a person was a “parent” at the time of birth. The answer to that question might be informed by past or future events (relative to the time of birth) or predictions, but it is important to note that the statutory question turns on whether a person is a “parent” at a particular time, namely at birth.
Returning to the Minister’s submission recorded in [23] above, I reject the submission that “the medical evidence before the Tribunal established there was no biological connection”. The “medical evidence” referred to in that submission was said to be the birth certificate, which was said to be the only medical evidence as to the length of the actual pregnancy. The birth certificate constituted one piece of evidence which might support a conclusion that there was no biological connection between VDQS and VDQS Snr. However, it did not establish there was no biological connection.
The Minister relied upon the decision of the Full Court (Bennett, Nicholas and Griffiths JJ) in Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459 at [70] to [72]:
70.In support of that contention, Mr Ekinci relied upon the High Court’s decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and House v The King (1936) 55 CLR 499 (House). Li deals with the legal sense of “unreasonableness” as a ground of review for jurisdictional error. It may be accepted, however, that the High Court’s discussion of that concept also broadly applies to the concept of unreasonableness in the context of a s 44 AAT Act appeal.
71.The following propositions are established in that case by the joint judgment of Hayne, Kiefel and Bell JJ:
(a)the standard of legal unreasonableness does not involve the Court substituting its view as to how a discretion should be exercised for that of the primary decision-maker (at [66]);
(b)the legal standard of reasonableness is the standard indicated by the proper construction of the statute (at [67]);
(c)by reference to the scope and purpose of the statute, legal unreasonableness may be established where a decision-maker is shown to have committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally (notwithstanding that, ordinarily, the weight to be accorded to relevant matters is for the decision-maker to determine) (at [72]); and
(d)where the decision-maker provides reasons, the review court may not be able to comprehend how the decision was arrived at. In those circumstances, legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (at [76]).
72.There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] that it is not the Court’s function to substitute its own decision for that of the primary decision-maker:
‘… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …’
The Minister submitted that the Tribunal’s conclusions were “illogical and unreasonable”. The Minister submitted at [28] that “nowhere in the Tribunal’s reasons does it discuss”:
(a)why it considered VDQS Snr’s evidence supported a finding that it was “likely that [VDQS] was conceived between 9 October 2014 and 9 November 2014” when the medical evidence adduced by VDQS Snr was contrary to that finding;
(b)why it did not consider the oral evidence given by VDQS Snr regarding the relationship between himself and [Ms O] to be relevant to the issues that it was required to consider;
(c)why it did not consider the fact that VDQS Snr has not physically present in VDQS’s life for the vast majority of his life to be relevant to the issues that it was required to consider;
(d)why it did not consider the fact that there was no evidence that VDQS Snr’s family in Australia accepted that he was the father of VDQS to be relevant to the issues that it was required to consider;
(e)why it did not consider the fact that VDQS Snr gave evidence that his acceptance as being VDQS’s father and his willingness to continue to support VDQS was based upon his being the biological father and VDQS gaining Australian citizenship to be relevant to the issues that it was required to consider; and
(f)why it did not consider the evidence of significant monetary payments beyond those reasonably related to the birth of VDQS in circumstances where the alleged parent was not the biological parent and did not live with the mother needed to be treated with caution in so far as they were said to be probative of a parental relationship in light of section 8 of the Surrogacy Act 2010 (NSW).
These complaints are in substantial part little more than complaints concerning the adequacy or content of the Tribunal’s reasons for decision. In this regard, the “supplementary” notice of appeal initially contained the following ground:
1. By s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal, in giving its decision, is required to provide reasons and, pursuant to s 43(2B), that includes setting out “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.
In providing such reasons, is the Tribunal required to explain why it rejected evidence that was adduced by one or other of the parties or, alternatively, why it considered such evidence to be irrelevant to the issues that it was required to determine?
This question should be answered “yes”.
This ground was abandoned. Section 43(2B) of the AAT Act requires the Tribunal, where it gives reasons in writing, to include “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. The Minister explained his abandoning of this ground by reference to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, where the High Court considered the scope of the obligation to provide reasons under s 430 of the Migration Act 1958 (Cth). The plurality (McHugh, Gummow and Hayne JJ) noted that s 430(1)(c) required the Tribunal to set out its findings of fact which it made and posed for itself at [67] two questions which it proceeded to answer at [68](emphasis in original):
67…s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
68Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word “material” in s 430(1)(c). It was said [footnote omitted] that “material” in the expression “material questions of fact” must mean “objectively material”. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read “material”' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
Those comments are equally applicable to the requirement under s 43(2B) to include, in the Tribunal’s reasons for decision, the findings on material questions of fact. The absence in the Tribunal’s reasons of the matters identified by the Minister are, however, relevant to the Minister’s second ground in so far as they throw light on whether the Tribunal’s decision was legally unreasonable. I do not accept that they in fact establish relevant unreasonableness.
As noted above, the Tribunal set out its findings which led it to the conclusion that VDQS Snr was a “parent” at the time of the respondent’s birth. The “question whether a particular person qualifies as a parent within that ordinary meaning” is a question of fact: H at [130]. The findings of fact made by the Tribunal, set out at paragraph [16] above, were open on the material before the Tribunal and supported the conclusion it reached. Undoubtedly, the Tribunal could have made findings of fact directed to the matters identified by the Minister set out in paragraphs (a) to (f) quoted in paragraph [33] above or explained why it considered those matters not to be of determinative, or any, significance. It was not an error of law not to have done so (as the Minister accepted). The absence of those matters from the reasons does not demonstrate irrationality or unreasonableness in the circumstances of this case.
As to (a), whether or not the “medical evidence” (explained by the Minister to be a reference to the birth certificate) adduced by VDQS Snr was “contrary to that finding”, there was material before the Tribunal from which it could legally conclude that VDQS was conceived when VDQS was in Thailand from 9 October 2014. In any event, that finding was not critical to the ultimate conclusion because the Tribunal concluded VDQS Snr was a “parent” at the time of the birth of VDQS whether or not he was the biological father. Nor, for the reasons given above, was the finding otherwise of such significance in the fact finding or reasoning process that an error in respect of it would lead to sufficient unreasonableness or irrationality for the purposes of an appeal under s 44 of the AAT Act – see: Ekinci.
As to (b), the Tribunal evidently did consider the relationship between VDQS Snr and Ms O to be relevant to the issues that it was required to consider. A number of the eight paragraphs of findings of fact which the Tribunal identified as those from which it drew the conclusion that VDQS Snr was VDQS’s parent dealt with the relationship between VDQS Snr and Ms O. To the extent VDQS Snr gave specific oral evidence about his relationship, the Minister has not pointed to any aspect of that evidence which it says should have been referred to in the reasons for decision or which support a conclusion that the Tribunal’s decision is “illogical” or “unreasonable”.
As to (c), there was no requirement for the Tribunal specifically to address the fact that VDQS Snr was in Australia for substantial parts or “the vast majority” of VDQS’s life. The failure to refer to this in the reasons for decision does not establish the Tribunal’s decision was either illogical or unreasonable.
As to (d), there was no requirement on the Tribunal to identify the fact that there was no evidence that VDQS Snr’s family in Australia accepted that he was the father of VDQS. The failure to refer to this in the reasons does not establish irrationality or unreasonableness.
As to (e), for the reasons outlined above, I do not regard it as accurate to state that the evidence of VDQS Snr was that his willingness to continue to support VDQS was based solely upon his being the biological father and VDQS gaining Australian citizenship.
As to (f), section 8 of the Surrogacy Act 2010 (NSW), provides:
8 Commercial surrogacy arrangements prohibited
A person must not enter into, or offer to enter into, a commercial surrogacy arrangement.
Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.
VDQS Snr gave evidence to the effect that he met Ms O in January 2013 in Thailand. From early in their relationship VDQS Snr began paying Ms O a sum of 30,000 baht per month (approximately AU$1200). These were the “significant monetary payments” to which the Minister referred in his written submissions. The level of them did not change after VDQS Snr became aware Ms O was pregnant or after VDQS was born. VDQS Snr also paid certain expenses associated with the pregnancy and for necessary and desirable items for looking after VDQS immediately after birth.
The relevance of s 8 of the Surrogacy Act was said to be that it reflected a part of the “legal” environment (see H at [129]) in which the assessment of whether a person is a “parent” must take place. In my view, the Tribunal’s failure to explain “why it did not consider the evidence of significant monetary payments … needed to be treated with caution in so far as they were said to be probative of a parental relationship in light of section 8 of the Surrogacy Act 2010 (NSW)” is not indicative of irrationality or unreasonableness.
Conclusion
The appeal is dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 26 April 2018
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