Minister for Immigration v Abigail

[2014] FCCA 2532

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v ABIGAIL & ANOR [2014] FCCA 2532

Catchwords:
MIGRATION – Visa – refusal – dependent child visa.

Legislation:

Migration Act 1958, s.5CA

Migration Regulations 1994, regs.1.03, 1.04,1.14A,cls.445.211 and 445.222 of sch.2

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: RAYMOND JOHN ABIGAIL

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2332 of 2014

Judgment of: Judge Cameron

Hearing date: 31 October 2014

Date of Last Submission: 31 October 2014

Delivered at: Sydney

Delivered on: 6 November 2014

REPRESENTATION

Counsel for the Applicant: Mr J. Smith SC

Solicitors for the Applicant: Mills Oakley

Counsel for the First Respondent: Mr B. Zipser

ORDERS

1. A writ of certiorari issue bringing the second respondent’s decision of 16 July 2014 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent to re-determine according to law the first respondent’s application made to it on 13 February 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2332 of 2014

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

RAYMOND JOHN ABIGAIL

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 29 October 2012 Rui Liao, a Chinese citizen who at the time was sixteen years old, applied to what is now the Department of Immigration and Border Protection (“Department”) for a dependent child subclass 445 visa on the basis that she was the adopted child of Fengyan He, a New Zealand citizen.  Ms Liao’s application was sponsored by the first respondent, Mr Abigail, who is Ms He’s de facto partner and the sponsor of her partner visa.  On 3 January 2014 Ms Liao’s application was refused by a delegate of the applicant (“Minister”) because the delegate was not satisfied that she had been adopted by Ms He.  Mr Abigail, as Ms Liao’s sponsor, then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision.

2. On 16 July 2014 the Tribunal found that Ms Liao had been adopted by Ms He. The Tribunal remitted the matter to the Minister’s department for reconsideration with a direction that Ms Liao satisfied cls.445.211 and 445.222 of sch.2 to the Migration Regulations 1994 (“Regulations”).  The Minister has applied to this Court for judicial review of the Tribunal’s decision.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

Relevant legislation

1. The criteria for the grant of a subclass 445 visa are set out in pt.445 of sch.2 to the Regulations. One of the criteria which Ms Liao had to satisfy at the time she made her application was cl.445.211 which required her to be the dependent child of a visa-holding parent and to be sponsored by the nominator or sponsor of the visa-holding parent. At the time of decision Ms Liao had to still be the dependent child of the visa-holding parent: cl.445.222 of sch.2.

2. Regulation 1.03 of the Regulations relevantly provides:

   dependent child, of a person, means the child or step‑child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

   (a)     has not turned 18…

3. The definition of “child” in s.5CA of the Migration Act 1958 (“Act”) includes someone who is an adopted child within the meaning of the Act. Regulation 1.14A, which defines the term “parent and child”, relevantly provides:

   1.14A    Parent and child

   …

   (2)For subsection 5CA (2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04 (1) (a) or (b) by a person or persons (the adoptive parent or parents):

   (a)the child is taken to be the child of the adoptive parent or parents; and

   (b)the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption). 

4. Regulation 1.04 relevantly provides:

   1.04  Adoption

   (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:

   …

   (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.

5. According to a note on the Department’s file:

   According to Article 15 of Adoption Law of the PRC, “Adoption shall be registered at the department of civil affairs of the people’s government above county level.  The adoptive relationship comes into force on the date of its registration”.

   That note also recorded that the Adoption Law of China commenced on 1 April 1992, six years before Ms Liao was adopted.

Background facts

Visa application

1. In support of her application, Ms Liao provided:

   a)a statement from Ms He who stated that in May 2008 she had adopted Ms Liao when the latter was two years old.  Ms He stated that she had travelled to China from New Zealand and adopted Ms Liao in a “formal adoption ceremony according to the Chinese folk custom” which was attended by family and friends.  She stated that since then Ms Liao had lived with her mother and sister and she had provided for all of Ms Liao’s living expenses;

   b)a statement from Ms Liao’s biological parents stating that they had agreed to Ms He adopting their daughter; and

   c)a certificate from the Zhecun Villagers’ Committee of Dinghu District in China dated 18 April 2010 (“Village Certificate”) certifying that Ms He had adopted Ms Liao in May 1998 in a “formal adoption ceremony according to the Chinese folk custom”.  The certificate also stated that Ms Liao lived with Ms He’s mother and sister and was financially supported by Ms He.

2. On 7 June 2013 an officer in the Minister’s department wrote to Ms Liao’s migration agent requesting an original official adoption certificate.  In a response dated 3 July 2012 [recte: 2013] the agent submitted that Ms He sought a waiver of the requirement for a formal or official adoption certificate, stating that she believed that the Village Certificate should be considered sufficient evidence of the adoption.

3. As already noted, on 3 January 2014 the delegate refused to grant Ms Liao a visa.  Relevantly, the delegate referred to art.15 of China’s Adoption Law, which requires adoptions to be registered “at the department of civil affairs of the people’s government above county level” and was not satisfied that the Village Certificate met the requirements of that law.

Tribunal proceeding

1. On 13 February 2014 Mr Abigail and Ms He provided to the Tribunal a joint statement in which they relevantly stated that Ms He had approached the Bureau of Civic Affairs of the Duanzhou District of Zhaoqing City in China (“District Bureau”) and had been advised that an official post-registration certificate in relation to Ms Liao’s adoption could not be issued because Ms Liao was over fourteen years of age.  However, the District Bureau did provide a certificate dated 13 January 2014 (“Bureau Certificate”) certifying that the adoption was a customary adoption.  The Bureau Certificate stated:

   This is to certify that Liao Rui was adopted by He Fengyan according to folk customs in May 1998.  He Fengyan always fully pays Liao Rui’s living and study expenses for a long time.  And Liao Rui’s household registration has been transferred to Duanzhou District.  Even though their relationship as mother and daughter has been recognised by the masses, their relatives and friends, they cannot make post-registration for the adoption because Liao Rui was not an abandoned baby and she didn’t come to the civic affairs department for registering adoption before fourteen years old according to relevant adoption laws and regulations.

2. In their joint statement Mr Abigail and Ms He stated that Ms He had been advised that the district government was equivalent to the county government. 

3. Mr Abigail and Ms He relevantly repeated their evidence at a Tribunal hearing on 25 June 2014.  Ms Liao also gave evidence.

4. According to a transcript of part of the Tribunal’s hearing, the following exchanges occurred at the hearing:

   [Mr Abigail]:    That’s alright. The first registration was at like District level, then she had to jump up to like a city level registration which made it a bit higher, that was mentioned in the uh last report of the review application.

   [Tribunal]:And what happened when you went to the city authorities?

   [Ms He]:Well I went to see them but they said um well we can’t make um any post-registrations um because um because the girl already over 14. That year, because she was born in 1996, so in 2010 she was just past.

   [Tribunal]:Did they give you anything in writing?

   [Ms He]:No, not at that time. No because after all I already got the certificate from the Zhecun committee already as the witness, I considered that would be the sufficient evidence as it was also government too, you know, government documents and um we got the translations and everything and um that’s why when I asked the other, uh the city uh, civil affairs but they said they couldn’t so I didn’t, I thought oh that one should be enough because as evidence. Yeah.

   [Tribunal]:That’s fine. I understand what you are saying. Now uh (cough), sorry, just one moment.

   [Mr Abigail]:    They did give you a certificate and said they have been registered, didn’t they? They did recognise it.

   [Ms He]:They did, after like this yeah I contact them again...

The Tribunal’s decision and reasons

1. At para.21 of its reasons, the Tribunal said:

   In the Department file there is a note that according to Article 15 of Adoption Law of PRC “Adoption shall be registered at the department of civil affairs of the people’s government above county level.”  The Tribunal considers the certificate from the Bureau of Civic Affairs of Duanzhou of Zhaoqing is a certificate provided above the county level and accordingly meets the requirements for adoption under China’s law.

   The Tribunal accepted that Ms He had assumed a parental role under the adoption arrangements she had made when Ms Liao was two years old and had continued to act in that role.  It accepted that the arrangements made were in accordance with Chinese law and that they were such that Ms Liao’s biological parents ceased being recognised by the law as her parents and that Ms He became so recognised.  It went on to say at para.32 of its reasons:

   On the basis of the evidence submitted to it the Tribunal is satisfied that formal adoption arrangements were made in accordance with the law of China (r.1.04(1)(b)).

2. The Tribunal was therefore satisfied that Ms Liao met the requirements of cls.445.211 and 445.222 of sch.2 to the Regulations. 

Proceeding in this Court

1. In his application commencing this proceeding the Minister alleged:

   1.The Migration Review Tribunal (the Tribunal) asked itself the wrong question, misunderstood its task or constructively failed to exercise jurisdiction in applying the requirements of regulation 1.04(1)(b) of the Migration Regulations 1994.

   Particulars

   a.Regulation 1.04(1)(b) required the Tribunal to ask itself whether the adopter assumed a parental role in relation to the adoptee under 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.

   b.The evidence before the Tribunal established that the formal arrangements for an adoption in accordance with the law of China were that the adoption “shall be registered at the Department of Civil Affairs of the people’s government above county level”.  On the date of registration, the adoptive relationship comes into force.

   c.The Tribunal’s reasons demonstrate that it did not ask itself whether the adoption arrangements were such that the adoption had been registered at the Department of Civil Affairs of the people’s government above county level.  Instead, the Tribunal misdirected itself by asking only if the certificate from the Bureau of Civic Affairs dated 13 January 2014 was provided “at above the county level”.

   2.In the alternative, the Tribunal’s finding that formal adoption arrangements were made in accordance with the law of China was:

   a.Irrational, illogical and/or not based on findings or inferences of fact supported by logical grounds, and/or

   b.A finding for which there was no evidence.

2. In his response, Mr Abigail said:

   1.The Migration Review Tribunal (“the Tribunal”) found (at paragraph 21 of its decision) that the certificate from the Bureau of Civic Affairs of Duanzhou District of Zhaoquing City (“the Bureau”) (“the Certificate”) met the requirements for adoption under Chinese Law.  There is no jurisdictional error in this finding. One reason is that the Tribunal made a finding of fact that, in circumstances where the first respondent approached the Bureau for approval or certification of the adoption and the Bureau issued the Certificate, this involved the adoption being  “registered” within the meaning of Article 15 of the Adoption Law of the PRC.  The word “registered” in the English translation of Article 15 has a variety of possible meanings.  One possible meaning involves a situation in which an adopter asks the Bureau to issue a certificate attesting that a child was adopted by the adopter and the Bureau issues the certificate.  It was open to the Tribunal to find that, on the facts before it, the adoption was “registered”.

   2.In any event, it was not necessary for the Tribunal to find that the adoption was “registered” within the meaning of Article 15.  It was only necessary for the Tribunal to find, for the purpose of reg 1.04(b) of the Migration Regulations, that there were “formal adoption arrangements made in accordance with the law of” China.  The Tribunal, after:

   a)considering Article 15 and the facts before it, including the issue of the Certificate by the Bureau; and

   b)finding that “the visa applicant’s biological parents ceased being recognised by law as [the visa applicant’s] parents and Ms He became so recognised” (see paragraph 30 of the Tribunal’s decision),

   found in paragraph 30 of its decision, for the purpose of reg 1.04(b), that there were “formal adoption arrangements made in accordance with the law of” China.  In summary, the Tribunal asked itself the correct questions and answered the questions based on the evidence before it.  The Tribunal’s approach does not involve jurisdictional error.

Submissions

1. The Minister submitted that:

   a)the Tribunal made a mistake in that

   i)Mr Abigail and Ms He had never claimed that Ms Liao’s adoption met the requirements of China’s Adoption Law but had, instead, claimed that the adoption had been of a traditional and customary nature; and

   ii)there was no evidence that Ms Liao’s adoption met the requirements of China’s Adoption Law;

   b)there was therefore no evidence to support, and no rational basis for, the Tribunal’s finding that Ms Liao’s adoption met the requirements of China’s Adoption Law; and

   c)the Tribunal’s satisfaction that Ms Liao met the criteria for the grant of a subclass 445 visa was therefore not sanctioned by the Act.

2. Mr Abigail’s position was that the Tribunal had not made a mistake and he submitted that:

   a)the Tribunal’s satisfaction that formal adoption arrangements had been made in accordance with Chinese law concerned the Tribunal’s state of mind and therefore was not a mistake;

   b)accepting for the sake of argument that the Tribunal’s finding that Ms Liao’s adoption arrangements complied with Chinese law was a finding of fact, that was not a mistake or a finding based on a wrong finding of fact in that:

   i)the Bureau Certificate certified Ms Liao’s adoption according to customary practice;

   ii)the District Bureau was an agency which met the description of “the department of civil affairs of the people’s government above county level” referred to in art.15 of China’s Adoption Law;

   iii)even if minds might differ on the question, it was open to the Tribunal to find that the District Bureau’s issuance of the Bureau Certificate “involved, evidenced or included” the adoption being registered at the District Bureau; and

   iv)the evidence given by Mr Abigail and Ms He at the Tribunal hearing supported the Tribunal’s view, expressed at para.21 of its reasons, that the Bureau Certificate was “a certificate provided above the county level and accordingly [met] the requirements for adoption under China’s law”;

   c)before the Minister’s allegation of mistake on the part of the Tribunal could be made out, it would have to be shown that the issuance of the Bureau Certificate did not involve or include the adoption being registered at the District Bureau within the meaning of art.15 of China’s Adoption Law.  In this regard he submitted that:

   i)the word “registered” may be an imperfect translation of the original Chinese word or expression; and

   ii)the Court would have to consider whether, under Chinese law, the adoption met the requirements of art.15;

   d)a simple mistake of fact is not a jurisdictional error; and

   e)there was evidence before the Tribunal to support its findings.

Consideration

1. Notwithstanding Mr Abigail’s submissions concerning the proper interpretation of art.15 of China’s Adoption Law, the fact is that only one version of that provision was before the Tribunal, the version quoted above at [8], and so that was the version which the Tribunal had to consider.  I note in this connection that that translation was quoted in the delegate’s decision record and that it was not suggested in the present proceeding that Mr Abigail had sought to provide to the Tribunal a different translation of it.  Indeed he and Ms He quoted it in their written submissions to the Tribunal dated 12 February 2014.

2. I am not persuaded that it was open to the Tribunal to conclude on the evidence submitted to it that it was satisfied, i.e. to find as a fact, that formal adoption arrangements had been made in accordance with the law of China.  Although Mr Abigail relied on the evidence he and Ms He had given at the Tribunal hearing quoted above at [15], the “evidence” in question was no more than their interpretation of or commentary on a document which the Tribunal had in its possession and thus was not probative of any fact and of no weight when balanced against the document itself. 

1. In the circumstances, it is not surprising that the Tribunal made its decision by reference to the Bureau Certificate.  However, contrary to the Tribunal’s ultimate finding of fact, the Bureau Certificate made it plain, on its face, that Ms Liao’s adoption had not been registered.  There was no other evidence which suggested that the adoption had been registered and there was no discussion by the Tribunal of any interpretation of art.15 of China’s Adoption Law which would support a reasoned conclusion that the issuance of the Bureau Certificate certifying the relevant history was anything more than that and, in particular, was evidence of a registration which the certificate itself certified had not occurred.

2. As there was no evidence to support the Tribunal’s conclusion that Ms Liao’s adoption satisfied the requirements of reg.1.04(1)(b) of the Regulations, the Tribunal erred.

Conclusion

1. Jurisdictional error on the part of the Tribunal has been demonstrated.

2. Consequently, the Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal to be determined according to law.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 6 November 2014