Phung, Nguyet Huong v Minister for Immigration & Ethnic Affairs
[1997] FCA 373
•13 MAY 1997
CATCHWORDS
APPLICATION FOR REVIEW - Part 8 Migration Act 1958 (‘the Act’) - application for class 102 (adoption) visa and class 104 (preferential family) visa - meaning of “orphan” - whether question of who is an “orphan” is confined to consideration of circumstance of natural person - whether a person over 18 years who is adopted can be an “orphan” for the purposes of the Act.
Migration Reform (Transitional Provisions) Regulations 1994 Regs 2A, 45, 46
NGUYET HUONG PHUNG v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 881 of 1995
SPENDER J
BRISBANE (heard in Melbourne)
13 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 881 of 1995
GENERAL DIVISION
BETWEEN:NGUYET HUONG PHUNG
Applicant
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Spender J
PLACE: Brisbane (heard in Melbourne)
DATE: 13 May 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Immigration Appeal Tribunal be set aside.
The matter is to be remitted to the Immigration Review Tribunal to be dealt with according to law.
The respondent pay the applicant’s costs of the application, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 881 of 1995
GENERAL DIVISION
BETWEEN: NGUYET HUONG PHUNG
Applicant
AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Spender J
PLACE: Brisbane (heard in Melbourne)
DATE: 13 May 1997
REASONS FOR JUDGMENT
This is an application for an order of review under Part 8 of the Migration Act 1958 (‘the Act’) from a decision of the Immigration Review Tribunal (‘the IRT’) made on 27 October 1995 to affirm the decision of the delegate of the Minister for Immigration and Ethnic Affairs (‘the Minister’) to refuse the applicant’s application for a Class 102 (adoption) visa to a child. The application also seeks review of the decision of the IRT that the child did not qualify for a Class 104 (preferential family) visa.
The submissions made on behalf of the applicant extended beyond the grounds of appeal set out in the application. Notwithstanding the disconformity between the contentions advanced on behalf of the applicant and the grounds of appeal set out in her application, leave was not sought to amend the grounds. However, since the application has been conducted on both sides by reference to the contentions of the applicant as to both fact and law, I will deal with each of the contentions argued by the applicant as if they were covered by the grounds of appeal set out in her application (cf Water Board v Moutsakas (1988) 180 CLR 491 at 497).
The IRT considered each of the three possible grounds of eligibility relied upon by the applicant and rejected each of the grounds. It is contended by the applicant that the IRT erred in law in respect of each of those rejections.
The applicant was born in Vietnam on 22 December 1955. The child the subject of the application for a Class 102 (Adoption) visa, made on 27 July 1992, is the natural child of the applicant’s brother, Ha To Phung, and her sister-in-law. The child was born on 2 May 1977. In her evidence before the IRT, the applicant said that she had looked after the child since he was about one month old. Her evidence was that her brother was (and still is) suffering from tuberculosis and other health problems at the time of the principal’s birth and that her sister-in-law suffered major health problems directly as a result of the birth. The applicant said that as the couple already had two children and were quite poor, it was agreed that she should look after the principal.
The applicant migrated to Australia in 1986 with the intention of “settling in” in Australia before having the child join her in Australia. She provided regular financial support to the child. The child has been cared for by a sister of the applicant since her departure from Vietnam in 1986.
The applicant became an Australian citizen on 26 January 1989. She made an earlier attempt to sponsor the principal to Australia after obtaining citizenship. She travelled to Vietnam in late 1989/early 1990 to arrange for the formal adoption of the principal, which was finalised on 8 August 1990.
On 22 February 1993, a delegate of the respondent rejected the application. The applicant sought review of the rejection from the Migration Internal Review Office on 30 April 1993. A delegate of the respondent, a Review Officer in the Migration Internal Review Office, affirmed the original decision in October 1993. The applicant then applied to the Internal Review Tribunal for review of that decision in November 1993. The IRT gave its decision on 26 October 1995.
The IRT found that at the time of the adoption the applicant had not been residing overseas for more than twelve months. At the time of lodging her application for a Class 102 (adoption) visa in respect of the child on 27 July 1992, the applicant had already adopted the child and did not have the approval of any relevant child care authority as referred to in the Migration Regulations 1989 (‘the Regulations’).
At the time of the application for the Class 102 (adoption) visa on 27 July 1992, the Minister had power to grant a visa pursuant to s 24 of the Act. The principal’s eligibility for a visa is, by virtue of reg 34A of the Regulations, to be considered as at 27 July 1992, the date of the application.
The relevant prescribed classes of visas are to be found in Schedule 2 of the Regulations. By virtue of reg 22(1) of the Migration Reform (Transitional Provisions) Regulations 1994, the regulations applied to the applicant because her application for a visa was made after 19 December 1989 and before 1 September 1994.
On 27 July 1992, the Act permitted a decision maker such as the IRT to consider eligibility for a class of visa other than the class applied for. In Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647, Einfeld J said at 658-9:
“ The tribunal [said]: ‘...... in our view, where the law allows a decision-maker to consider the grant of a visa outside the ‘category’ applied for, such consideration should take place as a matter of good administration. To do otherwise would be to force many applicants to make serial applications at considerable cost in time and money, with a constant burden on decision-makers to process extra applications from the same individual. This cannot be reasonable or just.’
The tribunal held that there was a discretion to consider granting temporary entry permits of different categories from those applied for, as well as other possibilities, and to do so outside relevant time limits.
In my opinion, the tribunal’s comments are equally applicable to temporary entry permits and s 34. Its approach was wise in fact, sensible in administrative terms, and correct in law. I respectfully agree with it entirely.”
Schedule 2 of the Regulations (as they then were) prescribed the criteria for the grant of the three classes of visa relevant in the present application.
Regulation 45 specifies the additional criteria for a Class 101 (child) visa as follows:
“ The additional criteria in relation to a child visa are the following criteria:
(a)the child:
(i) is:
(A)a natural child of a person who is the sponsor of the child in relation to the relevant application; or
(B)a child adopted overseas by a person, who, at the time of the adoption, was not an Australian citizen or an Australian permanent resident; or
Reg. 45(a)(B): effective from 15/1/90 [was] amended to read as follows (SR 1 of 1990).
(B)a child adopted overseas by a person, who, at the time of the adoption, was not an Australian citizen or an Australian permanent resident; and
(ii) a dependent child of that person;
(b)the Minister is satisfied that the rights and interests of any person who has custody of the child, or access to the child, or is a guardian of the child, would not be prejudiced if the visa was granted.”
Regulation 46 specifies the criteria for a Class 102 (adoption) visa as follows:
“ The additional criteria in relation to an adoption visa are the following criteria:
(a)the applicant:
(i) is a child for adoption; or
(ii) is a child who has not turned 18 adopted by an Australian citizen or an Australian permanent resident while overseas (in this subparagraph called “the adoptive parent”) where:
(A)the adoptive parent has been residing overseas for more than 12 months at the time of the application; and
(B)the Minister is satisfied that that residence overseas has not been contrived to circumvent the requirements for entry to Australia of children for adoption; and
(C)the adoptive parent has lawfully acquired full and permanent parental rights by the adoption; and
(D)the relevant authorities of the relevant overseas country have approved the departure of the child to Australia;
(b)the laws relating to adoption of the country in which the child is normally resident have been complied with.”
The criteria for a Class 104 (preferential family) visa is specified in Item 2 in Part 3 of Schedule 2 to the Regulations. The prescribed criteria for the preferential family class of visa includes the criterion that the principal be an “orphan relative”.
Regulation 2(1) contains a number of relevant definitions, as follows:“adopted”, in relation to a person, means adopted:
(a)before the person adopted turned 18; and
(b)under formal arrangements by which another person assumed the custody or guardianship of the person;
under the law of any place (whether in Australia or overseas) relating to the adoption of children;
“child for adoption” means a person resident in an overseas country who has not turned 18 in the case where:
(a)an unmarried person who is an Australian citizen or an Australian permanent resident, or spouses at least one of whom is an Australian citizen or an Australian permanent resident, have undertaken in writing to adopt the child; and
(b)the child welfare authorities of the relevant State or Territory in Australia have approved that person or those spouses as suitable adoptive parents for that child; and
(c)the relevant authorities of the overseas country have approved the departure of the child for adoption in Australia or in the custody of the adoptive parents;
“orphan” means a child where:
(a)both parents are dead or their whereabouts are unknown; or
(b)one parent is dead and the whereabouts of the other parent are unknown; or
(c)one parent is dead and the other is permanently incapacitated and therefore incapable of caring for the child; or
(d)both parents are alive but incapable of caring for the child;
and it is in the best interests of the child to settle with relatives or a guardian in Australia;
“orphan relative”, in relation to an Australian citizen or an Australian permanent resident usually resident in Australia, means an unmarried orphan who has not turned 18 and who is a relative of that citizen or resident;
“parent”, includes an adoptive parent and a step-parent;
“relative”, in relation to a person, means, for present purposes, a nephew.
Regulation 2A defines the circumstances in which, for the purposes of the applicant’s application for a visa, a person is taken to have been adopted by another person.
Regulation 2A provides:
“ (1) For the purposes of these regulations, a person (in this regulation called “the adoptee”) is taken to have been adopted by a person or persons (in this regulation called “the adopter or adopters”) if, before the adoptee attained the age of 18 years, the adopter or adopters assumed a parental role in relation to the adoptee under:
(a)formal adoption arrangements:
(i) made in accordance with; or
(ii) recognised under;
the law of a State or Territory of Australia relating to the adoption of children; or
(b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect have ceased to be so recognised and the adopter or adopters became so recognised; or
Reg. 2A(1)(b): effective from 12/10/90 amended to read as follows (SR 320 of 1990):
(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 or adopters 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 or adopters; and
(b)the child-parent relationship between the adoptee and the adopter or adopters 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.”
Concerning the decision of the IRT in relation to the Class 101 (child) visa, it was contended on behalf of the applicant that the IRT erred in failing to have regard to the concept of “adoption” provided in reg 2A(1)(c) and (2) of the Regulations. The IRT found that the applicant was an Australian citizen at the time she adopted the principal. This finding involves a conclusion that the adoption occurred subsequent to her becoming an Australian citizen on 26 January 1989. Implicit in this finding is the view that the child was adopted within reg 2A(1)(b) on 8 August 1990. At the time of the adoption the applicant was an Australian citizen, so that the child could not meet the criterion specified in reg 45(a)(i)(B) of the Regulations.
The contention on behalf of the applicant that the adoption was some informal procedure which occurred during the period from 1977 to 1986, and was only formalised by the decision of the Peoples’ Committee of Song-Be Province on 8 August 1990, is inconsistent with the findings of fact that I accept were made by the IRT and are implicit in its reasons, which findings were open to it.
The contention advanced before this court that the applicant had adopted the child within reg 2A(1)(c) and (2) was not advanced before the IRT, and it follows the IRT was not asked to consider this basis of entitlement to a visa. I reject the contention that the IRT was obliged to be prescient as to the possible existence of this basis in the absence of any submission on behalf of the applicant, and that its failure to consider these bases involved an error of law. Further, in my opinion, the concept of adoption as provided in reg 2A(1)(c) and (2) of the Regulations does not apply to the applicant or the child.
The case as argued on the applicant’s behalf throughout the whole decision-making and review process in respect of the application for a Class 102 (adoption) visa was on the basis that the child was either a “child for adoption” as defined in reg 2(1) or a “child...adopted” within reg 2A(1)(b).
There was no material placed before the IRT or any of the other decision-makers which could have supported a finding that arrangements in the nature of adoption had been made by the applicant in respect of the child of the type described in reg 2A(2)(a).
Moreover, there was no basis on which the IRT could have been satisfied that formal adoption of the kind referred to in reg 2A(1)(b) was either not available on the law of Vietnam or was not reasonably practicable in the circumstances. Regulation 2A(2)(c) precluded the child from being taken to have been adopted within reg 2A(1)(c) and 2A(2).
For these reasons, in my opinion, the IRT did not err in law in deciding that the criteria for the grant of a Class 101 (child) visa was not satisfied.
Concerning the decision of the IRT rejecting eligibility for a Class 102 (adoption) visa, the child the subject of the present application could not be regarded as a “child for adoption” within reg 46(a)(i) of the Regulations, having regard to the definition of “child for adoption” in reg 2(1). That definition is prospective. In my opinion, it does not include a child that has already been adopted. The evidence, it seems to me, is uncontradicted that the applicant had already adopted the child at the time of her application for a visa.
As regards the position where the relevant child is an adopted child, reg 46(a)(ii)(A) limits the grant of this class of visa to a child adopted overseas by a person who, at the time of the application, had been residing overseas for more than twelve months.
It was submitted on behalf of the applicant that this requirement is satisfied where the “adoptive parent” has resided overseas for more than twelve months at “any time before” the application. This construction of reg 46(a)(ii)(A) is rejected. On its proper construction, it is necessary that for at least the twelve months prior to the time of the application, the applicant be residing overseas. It is not sufficient if the applicant has had, at some earlier time, a period of more than twelve months overseas residence.
In my opinion, the child could not meet the criterion specified in reg 46(a)(ii)(A) of the Regulations. No error has been demonstrated in respect of the IRT’s decision in respect of the class 102 (adoption) visa.
The decision of the IRT in respect of the Class 104 (preferential family) visa,
was based on the following reasons:“ The Tribunal finds that the principal is unable to satisfy the definition of orphan relative in the Regulations. This is because from the time of adoption the review applicant is now the parent of the principal for all legal purposes.”
The question is whether the IRT erred in law in concluding that because the applicant was the adoptive parent of the child, the child would not be regarded as an orphan from the time of adoption, (that is, from 8 August 1990), and consequently did not qualify for a Class 104 (preferential family) visa on the ground that he was an “orphan relative”.
The definition of “orphan” in the Regulations on its face in terms contemplates that an orphan has or had two, and only two, parents. It is useful to repeat the definition of the term “orphan” in reg 2(1):
“ ‘orphan’ means a child where:
(a)both parents are dead or their whereabouts are unknown; or
(b)one parent is dead and the whereabouts of the other parent are unknown; or
(c)one parent is dead and the other is permanently incapacitated and therefore incapable of caring for the child; or
(d)both parents are alive but incapable of caring for the child;
and it is in the best interests of the child to settle with relatives or a guardian in Australia.”
Sub-paragraph (a) of the definition speaks of “both” parents; (b) speaks of one parent being dead and the whereabouts of the “other” parent being unknown. (c) speaks of one parent being dead and the “other” being permanently incapacitated and therefore incapable of caring for the child, and (d) refers to “both” parents being alive but incapable of caring for the child.
Notwithstanding the terms of this definition, it was contended on behalf of the Minister that regard has to be given to the definition of “parent” in reg 2(1), which definition is simply: ‘parent’ includes an adoptive parent...”
This expansive definition of “parent” means that a child might, for example, have four parents, being the child’s two natural parents and two adoptive parents.
The definition of “parent”, it was submitted, not only permits but requires the definition of “orphan” to be read as if the word “both” meant all; that category (b) is required to be read as “one or more parent is dead and the whereabouts of the other parents are unknown”; (c) to be read as if instead of “one”, one reads “one or more parent is dead” and as if “the other” were to be read as “the others are”; (d) is to be read as if “both parents” meant “each one of however many parents there are”.
The contention on behalf of the Minister as to the interpretation of “orphan” in reg 2 requires the language of the definition to be tortured beyond endurance. Lord Mersey said in Thompson v Goold & Co [1910] AC 409 at 410: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do:” See also BP Refinery (Westernport) Pty Ltd v Hastings Shire (1977) 16 ALR 363 at 374 and Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 337.
In my judgment, “orphan” in reg 2 is defined by reference to the circumstances of the natural parents of the child.
This conclusion does not lead to any absurd result. If it be the case that a child in Vietnam had both natural parents alive but incapable of caring for the child, and that there were two adoptive parents who were not only capable but in fact were caring for the child, it is probable that the further requirement of the definition of “orphan” for the purpose of the Regulations, (namely, that it be “in the best interests of the child to settle with relatives or a guardian in Australia”), would not be met.
The conclusion by the IRT that the principal is unable to satisfy the definition of “orphan relative” in the Regulations, having regard to the consideration that the applicant is the principal’s adoptive parent is, in my opinion, erroneous. The proceedings should be remitted to the IRT to be considered according to law. There are factual questions to be resolved, including the question of incapacity of the parents of the child in caring for it and whether it is in the best interests of the child to settle with relatives or a guardian in Australia.
The appeal will be allowed and the matter is to be remitted to the IRT to be dealt with according to law. The applicant should have her costs of the application, to be taxed if not agreed.
I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 13 May 1997
Appearances : Mr T Hurley (instructed by Erskine Rodan & Associates) appeared for the applicant
Mr P J Hanks (instructed by the Australian Government Solicitor) appeared for the respondent
Date of hearing : 23 April 1997
3
0