Minister for Immigration v Ryerson
[2008] FMCA 1398
•15 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v RYERSON & ANOR | [2008] FMCA 1398 |
| MIGRATION – VISA – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – application to sponsor a child – where review applicant agreed to be registered on the birth certificate of a child born to the daughter of her de facto spouse – where Minister’s delegate found that the child was not the natural child or step child of the review applicant – adoption – whether Tribunal misconstrued or misapplied Migration Regulations 1994 (Cth) reg 1.04(2)(a) or 1.04(2)(b) – usual or recognised arrangements – closeness of relationship – whether correct application of tests under reg 1.04(2)(a) and reg 1.04(2)(b) – Tribunal’s findings and reasons must be read fairly and in context – tests in reg 1.04(2) are cumulative – jurisdictional error – writs of certiorari and mandamus to issue. |
| Migration Act 1958 (Cth) s.65 Migration Regulations 1994 (Cth) regulation 1.04; cl 101.211, 102.211, 117.211 of Schedule 2 |
| SZIUO v Minister for Immigration and Citizenship [2008] FCA 500 followed |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | MARIA JESSICA HERRERO RYERSON |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 472 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 July 2008 |
| Date of Last Submission: | 18 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd |
| Solicitors for the Applicant: | Sparke Helmore |
| Solicitor for the First Respondent | Mr Dobbie appeared pro bono |
| Solicitors for the Respondents | Teleo Group Pty Ltd (pro bono) |
ORDERS
That a writ of certiorari is to issue directed to the Migration Review Tribunal quashing the decision of the Tribunal signed on 21 January 2008 and handed down on 30 January 2008.
That a writ of mandamus is to issue directed to the Migration Review Tribunal requiring it to re-determine the application made to it for review of the decision of a delegate of the Applicant dated 13 December 2006 according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 472 of 2008
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| MARIA JESSICA HERRERO RYERSON |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the Minister for Immigration and Citizenship. He asks the Court to review a decision of the Migration Review Tribunal made on 30th January 2008 remitting the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa Applicant met certain criteria for a Subclass 101 (Child) visa.
The Minister seeks the following orders:
a)A writ of certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal signed on 21 January 2008 and handed down on 30 January 2008.
b)A writ of mandamus issue directed to the Migration Review Tribunal requiring it to re-determine the application made to it for review of a decision of a delegate of the Applicant[1] dated 13 December 2006 according to law.
[1] The application refers to “a delegate of the First Respondent” but this is clearly a clerical error
The Minister claims that the Tribunal asked itself the wrong question, misunderstood its task or constructively failed to exercise jurisdiction in applying the requirements of regulation 1.04 of the Migration Regulations 1994 (Cth).
Background
The visa Applicant is a child called Virgilio Carlo Atienza, who was born on 5th February 1989. The First Respondent was the review Applicant in the proceedings before the Tribunal. The visa Applicant applied for a Child (Migrant) (Class AH) visa on 23rd November 2006. In his application he set out that his father was Virgilio Atienza, who was born on 10th February 1937. Virgilio Atienza is in fact the child’s grandfather. He gave the name of Maricar Atienza, born 18th April 1969, as his mother.
The review Applicant was, at the time of the visa Applicant’s birth in 1989, the de facto partner of Virgilio Atienza, the child’s grandfather. The child’s natural mother is Virgilio Atienza’s daughter. As she deposed in an affidavit[2] that accompanied the application, she conceived the child Virgilio out of wedlock in 1988, when she was 19 years of age. Her father and the review Applicant, then his de facto, agreed to adopt the child and raise him as their own. The review Applicant agreed to appear as the child’s biological mother on the child’s birth certificate. This was to avoid community disapproval of an unmarried mother in a strongly Catholic community.
[2] A copy of the affidavit appears on page 30 of the Court Book
The review Applicant completed a sponsorship form in which she stated that the visa Applicant was her stepson.
The review Applicant, the First Respondent, separated from Virgilio Atienza (senior) in 1992. She has since married an Australian citizen, Mr Ryerson, and she emigrated to Australia in 1994 with her daughter.
A delegate of the Minister refused the application for a visa on 13th December 2006, on the basis that the visa Applicant did not satisfy clauses 101.211, 102.211 or 117.211 of Schedule 2 to the Migration Regulations. The delegate found that the visa Applicant was not the First Respondent’s natural child or step child, nor had the child been adopted by the First Respondent within the meaning of regulation 1.04 of the Migration Regulations.
Application to the Migration Review Tribunal
The First Respondent applied to the Migration Review Tribunal on 20th April 2007 for review of the delegate’s decision. The Tribunal invited the First Respondent to attend a hearing on 9th January 2008. The First Respondent’s migration agent faxed a submission to the Tribunal on 9th January, saying, relevantly:
Mr Atienza is Ms Ryerson’s biological grand child. His biological mother is Ms Ryerson’s step-daughter from her ex-husband’s first marriage.
Ms Ryerson undertook responsibility for the child from birth. His biological mother nor his biological father have ever cared for the child and their whereabouts is currently unknown.
As Ms Ryerson raised Mr Atienza from birth and because they are related through marriage, she did not think it was necessary or required to adopt him considering that Mr Atienza considers Ms Ryerson as his mother without question.[3]
[3] Court Book 64
The First Respondent attended the hearing and gave evidence. The First Respondent’s former de facto partner, Virgilio Atienza (senior), presumably by telephone. He told the Tribunal he had formerly opposed the proposal for the child to go to Australia but he no longer did. He confirmed that the First Respondent had been the principal financial provider for all the child’s needs since his birth.
The First Respondent’s husband, Mr Ryerson, gave evidence. He told the Tribunal that he and his wife had tried to sponsor the child as a visitor and as the First Respondent’s child.
The Tribunal signed its decision on 21st January 2008 and handed the decision down on 30th January. The Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant met the following criteria for a Subclass 101 (Child ) visa:
·Cl. 101.211 of Schedule 2 to the Regulations; and
·Cl. 101.221 of Schedule 2 to the Regulations.
The Tribunal found that the First Respondent is an Australian citizen by grant. The visa Applicant was born on 5th February 1989 and had not turned 25 years of age. The Tribunal also found that the First Respondent is not the child’s biological or natural mother as he is the child of her former de-facto spouse. She does not have a biological relationship to the child and he has not been formally adopted by her. The child cannot be considered a step child within the meaning of the regulations because the First Respondent did not have a spousal relationship with the child’s biological father.
The Tribunal then referred to the fact that regulation 1.04 envisages that formal adoption is not the only process by which children can be adopted and referred to reg.1.04(1)(c) (which refers to “other arrangements entered into outside Australia that, under Sub-regulation (2), are to be taken to be in the nature of adoption”).
The Tribunal then set out a summary of the requirements in reg.1.04(2).
The Tribunal first discussed the requirement under reg.1.04(2)(a), that the arrangements were made in accordance with the usual practice, or a recognised custom, in the relevant culture, and found:
With the consent of the visa applicant’s birth mother, an agreement was reached whereby the visa applicant was registered as the child of the review applicant and her then partner. This is reflected in the visa applicant’s birth certificate and his baptismal certificate. There is no evidence before the Tribunal that these arrangements reflect “usual practice” or a “recognised custom” in the Philippines. However, it appears that, as the Philippines authorities did not question the information it was provided by the parties involved and proceeded to issue a legal document (the visa applicant’s birth certificate), it seems to the Tribunal that it is not in a position that in this particular case, the practice is not “usual” or “recognised”.[4]
[4] Court Book 79
The Tribunal then referred to the second requirement, under reg.1.04(2)(b), that 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. The Tribunal found:
The Tribunal received evidence from the review applicant, her previous partner and her present husband of thirteen years, that the child-parent relationship between the review applicant and the visa applicant is significantly closer than any such relationship between the adoptee and any other person, not withstanding her physical absence over many years. The review applicant has been the primary provider for the visa applicant and she has dedicated her life to ensuring that he has been given every necessity in life. The reasons for their long separation have more to do with the recalcitrance of her ex-partner and immigration authorities than it has to do with her personal choice. Whilst the review applicant’s ex-partner provided them[5] with day to day care, there is no evidence before the Tribunal to suggest that his relationship with the visa applicant was closer than that of the relationship between the visa applicant and the review applicant.[6]
[5] referring to the visa applicant and another child who is the subject of a separate application
[6] ibid
The Tribunal then referred to the third requirement, under reg.1.04(2)(c), summarised as that the Minister is satisfied that formal adoption was either not available or not reasonably practicable in the circumstances and that the arrangements were not contrived to circumvent Australian migration requirements. The Tribunal found that formal adoption procedures are available in the Philippines, although complex, and, after reviewing the Applicant’s evidence, found:
In such circumstances the Tribunal is prepared to accept that formal adoption was not reasonably practicable in the circumstances.
At the time of the registration of the visa applicant’s birth, the visa applicant[7]did not have in mind that she enter into such an agreement with the visa applicant’s biological parents in order to facilitate his migration to Australia at a later date. There has been no attempt to defraud the Australian immigration authorities and there is no evidence that either the visa applicant or the review applicant is attempting to do so now.[8]
[7] (sic) - The Tribunal is clearly referring to the review applicant
[8] Ibid
The Tribunal found that the visa Applicant was the dependent child of the First Respondent and met the requirements of cl. 101.211 and cl. 101.221 and remitted the application for reconsideration.
Application for Judicial Review
The Minister filed an application for judicial review on 27th February 2008, seeking writs of certiorari and mandamus.
The ground of the application is that the Tribunal asked itself the wrong question, misunderstood its task or constructively failed to exercise its jurisdiction in applying the requirements of regulation 1.04 of the Migration Regulations 1994.
The particulars of that ground are that, first, the Tribunal erred in finding that it was not in a position to make a finding that the requirements of regulation 1.04(2)(a) had not been met in circumstances where it was required to be satisfied that the visa criteria had been satisfied.
Second, the Tribunal erred in finding that there was no evidence to suggest that the relationship between the visa Applicant and his father was closer than that of the relationship between the visa Applicant and the review Applicant when regulation 1.04(2)(b) required it to be satisfied that the child-parent relationship between the adoptee (the visa applicant) and the adopter (the review Applicant) “is significantly closer than any such relationship between the adoptee and any other person or persons”.
Submissions
Counsel for the Minister, Mr Lloyd, submitted that the Tribunal made two jurisdictional errors:
a)It misconstrued or misapplied reg 1.04(2)(a); and
b)It misconstrued or misapplied reg. 1.04(2)(b).
Under regulation 1.04(2)(a) the Minister must be satisfied that the arrangements that had been made in respect of the child were in accordance with the usual practice or a recognised custom in the culture or cultures of the adoptee and the adopter. To reach this state of satisfaction, the Tribunal must have some evidence as to the content of the “usual practices” and “recognised customs”. The Tribunal had no such evidence.
The Tribunal applied a different test and said that it was not in a position to say that the arrangements were not usual or recognised. However, this is not the test stated by the legislation, because the Tribunal needed to be positively satisfied that the arrangements were usual or recognised (Migration Act 1958, s 65).
Mr Lloyd further submitted that under regulation 1.04(1)(c) the Minister must be satisfied that 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. The Tribunal’s finding did not address this test, because it did not conclude that the relationship was closer than the relationship between the visa applicant and any other person. It only said that there was no evidence that the relationship between the visa Applicant and his grandfather was closer than that between the sponsor and the visa Applicant.
This finding does not meet the test in the regulation. Mr Lloyd submitted that while the Tribunal had extracted and stated the correct test it had not applied it. As it a result, the Tribunal failed to exercise its jurisdiction.
In respect of the Minister’s first point, Mr Dobbie, who appeared pro bono for the First Respondent, conceded that on a fair reading of its reasons the Tribunal had made a finding that there was no evidence that the arrangements for registering the visa applicant as the child of the First Respondent and Mr Atienza senior were either the “usual practice” or “recognised custom”. He submitted that the Tribunal had found that the Philippines authorities had issued a legal document, the child’s birth certificate that recognised the First Respondents as the child’s parents. The Tribunal did not need to make a finding that the practice was usual or recognised because of its finding of fact that legal recognition was accorded by the Philippines authorities in issuing the certificate.
Alternatively, Mr Dobbie submitted that the Tribunal was merely stating, “by the unfortunate use of a double negative”, that it was satisfied that the adoption was usual or recognised.
As to the claim the Tribunal misconstrued or misapplied regulation 1.04(2)(b), Mr Dobbie submitted that the Tribunal had stated the correct test and applied it. In circumstances where the Tribunal had twice cited the correct test in the same paragraph, the mere omission of the word “significantly” should not be construed as a failure to apply that test. To do so would be to engage in construing the reasons for decisions minutely and finely, with an eye keenly attuned to the perception of error.
Mr Dobbie referred the Court to the decision of Lander J in SZIUO v Minister for Immigration and Citizenship[9] at [26] and [27], a decision on appeal from the Federal Magistrates Court. His honour in that decision held that “The Tribunal’s reasons must be read fairly and in their context” (at [26]) and “I agree with the Federal Magistrate that the Tribunal’s reasons, considered as a whole, show that the Tribunal posed for itself the correct test” (at [27]).
[9] [2008] FCA 500
Conclusions
Subregulation 1.04(2) defines arrangements entered into outside Australia that are taken to be in the nature of adoption for the purposes of Subregulation 1.04(1):
(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.
Dealing first with regulation 1.04(2)(a), the Tribunal was required to decide whether the arrangements were made in accordance with the usual practice or a recognised custom in the Philippines.
The Tribunal considered the visa Applicant’s birth certificate and the circumstances which led to the names of the grandfather and the First Respondent being recorded as the parents. What the Tribunal found was:
There is no evidence before the Tribunal that these arrangements reflect “usual practice” or a “recognised custom” in the Philippines. However…it seems to the Tribunal that it is not in a position to make a finding that in this particular case, the practice is not “usual” or “recognised”.[10]
[10] Court Book 79
This “unfortunate use of the double negative”, as Mr Dobbie so aptly put it, was not a positive finding that the arrangements were made in accordance with usual practice or recognised custom. It was a non-finding that the arrangements were not usual or not recognised.
Section 65 (1) of the Migration Act requires that the Minister, or the Tribunal, must make a positive finding when making a decision to grant or to refuse to grant a visa:
Section 65 - Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
In this case, the Tribunal clearly did not accept the First Respondent’s evidence about how the circumstances arose or the birth certificate issued by the Philippines authorities as evidence of either usual practice or recognised custom in the Philippines. Minds may differ on that point, but this finding was a matter of fact for the Tribunal. Mr Dobbie’s submission that the Tribunal did not need to make a finding that the practice was “usual” or “recognised” because it had found as a fact that the authorities in the Philippines had given legal recognition to the arrangement by issuing a birth certificate appears to have be trespassing in to the area of “second-guessing” the Tribunal. It is clear that the Tribunal found that there was “no evidence” before it that the arrangements reflected usual practice or a recognised custom.
In order to comply with s.65, the Tribunal was required to reach a positive finding that it was satisfied that the arrangements were made in accordance with the usual practice or a recognised custom. If it did was satisfied (and the other requirements were met), it was required to grant the visa.
If the Tribunal:
a)made a finding that the arrangements were not made in accordance with usual practice or a recognised custom; or
b)did not make a finding that the arrangements were made in accordance with usual practice or a recognised custom; or
c)did not make a finding that the arrangements were not made in accordance with usual practice or a recognised custom;
then, in each case, the Tribunal was required under s.65(1)(b) to refuse the visa.
In this case, by making its finding in the double negative, that it was “not in a position to make a finding that in this particular case, the practice is not ‘usual’ or ‘recognised’”[11], the Tribunal applied the wrong test and fell into jurisdictional error.
[11] Court Book 79
This is sufficient to grant the application, because the tests in Sub-regulation 1.04(2) are cumulative, as the use of the word “and” between reg 1.04(2)(a) and reg 1.04(2)(b), and between reg 1.04(2)(b) and reg 1.04(2)(c) makes clear.
However, I propose to deal with the applicant’s second ground, that the Tribunal misconstrued or misapplied reg 1.04(2)(b). Again, the Tribunal has made its finding in the negative:
Whilst the review applicant’s ex-partner provided them[12] with day to day care, there is no evidence before the Tribunal to suggest that his relationship with the visa applicant was closer than that of the relationship between the visa applicant and the review applicant.[13]
[12] the visa applicant and another child
[13] Court Book 79
The test set out in reg 1.04(2)(b) requires the Tribunal to be satisfied that the child-parent relationship between the visa Applicant and the First Respondent to be “significantly closer than any such relationship between the adoptee and any other person or persons…”.
What Mr Lloyd, who appeared for the Minister, submits that the Tribunal found was that there was no evidence that the relationship between Mr Atienza (senior) and the child was closer than the relationship between the child and the First Respondent. This is not the positive finding that the subregulation requires. The Tribunal’s finding allows three possible situations:
i)that the relationship between the visa Applicant and the First Respondent was as close as the relationship between the visa Applicant and his grandfather;
ii)that the relationship between the visa Applicant and the First Respondent was slightly closer, but not significantly closer, than the relationship between the visa applicant and his grandfather; or
iii)that the relationship between the visa Applicant and the First Respondent was significantly closer than the relationship between the visa Applicant and his grandfather.
Only the third of these situations meets the test in reg 1.04(2)(b). However, I am of the view, following the decision of Lander J in SZIUO, that the Tribunal’s reasons must be read in context and considered as a whole. The entire paragraph on page 79 of the Court Book begins with the statement that the Tribunal received evidence from all three of the relevant parties:
…that the child-parent relationship between the review applicant and the visa applicant is significantly closer than any such relationship between the adoptee and any other person, not withstanding her physical absence over many years.[14]
[14] Court Book 79
The sentence later in that same paragraph that “that there is no evidence before the Tribunal to suggest that his[15] relationship with the visa applicant was closer than that of the relationship between the visa applicant and the review applicant.”[16]
[15] i.e. Mr Atienza (senior)
[16] Ibid
In my view, the entire paragraph, appearing as it does in the Tribunal’s findings and Reasons, must be considered as a whole. The Tribunal is clearly referring to evidence that the relationship between the First Respondent and the child was significantly closer than any such relationship between the child and any other person, which is the test in reg 1.04(2)(b). The statement later in that same paragraph that there was no evidence to show that the ex-partner’s relationship with the child was closer than that between the First Respondent and the child does not in any way mean that the Tribunal was resiling from its earlier finding. It is merely a statement that there is no evidence to the contrary.
When the paragraph is read as a whole, it is clear that the Tribunal did apply the correct test under reg 1.04(2)(b) and did not fall into jurisdictional error in that regard.
Unfortunately for the First Respondent, the tests in reg 1.04(2) are cumulative, and all three must be met. Two out of three will not suffice. As the Tribunal fell into jurisdictional error in dealing with the test in reg 1.04(2)(a), it follows that the application must be granted and writs of certiorari and mandamus must issue.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 8 October 2008
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