Rani v Minister for Immigration
[2012] FMCA 705
•20 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 705 |
| MIGRATION – Application for review of Migration Review Tribunal decision – was Tribunal entitled to consider whether Indian adoption law validly complied with? – Indian legislation providing presumption of compliance – whether Indian Court judgment conclusive – whether finding of non- compliance open to Tribunal. |
| Migration Act 1958 (Cth) Migration Regulations 1994, cl.102.213 Hindu Adoptions and Maintenance Act 1956, s.16 |
| Kumar v Minister for Immigration and Citizenship (2009) AATA 124 Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Tham v Minister for Immigration and Citizenship [2012] FCA 234 Irawan v Minister for Immigration and Anor [2009] FMCA 1165 |
| First Applicant: | GEETA RANI |
| Second Applicant: | RUDRA KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 156 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 29 June 2012 |
| Date of Last Submission: | 29 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr M. Gerkens |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the First Respondent: | Mr Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The First Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.
The First Applicant be granted a stay of 30 days in which to make payment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 156 of 2012
| GEETA RANI |
First Applicant
| RUDRA KUMAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 30 January 2012. The Tribunal affirmed a decision of the delegate not to grant a visa to the second applicant.
The basis of the application is set out in the three particulars to the ground in the application itself, being all concerned with the fact that the Tribunal did not accept as conclusive the decision of the Indian Court (Lok Adalat) approving the grant of the deed of adoption of the child.
For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error in this regard and the application must be dismissed accordingly.
The History of the Matter
It is appropriate in order to understand the arguments in this case to set out the relevant history and background. Rudra Kumar was born on 15 October 2007 and was the son of Ms Adarsh Rani who was herself born on 15 April 1962. The father’s identity was known, and he was registered on the child’s birth certificate.
The mother sought a grant of Australian citizenship for the child on the basis that she was a parent at the time of his birth, and was herself an Australian citizen. On 5 November 2008 a delegate of the Minister refused the application. On 25 February 2009, Deputy President Forgie upheld the delegate’s decision, see Kumar v Minister for Immigration and Citizenship (2009) AATA 124. The decision of the Deputy President records the alleged relationship between the mother and the father of Rudra Kumar. The Deputy President was strongly influenced in making his decision by the fact that Ms Adarsh Rani refused to take a DNA test.
Thereafter on 25 May 2009 a deed of adoption was registered in the office of the Sub-Registrar, Panchkula, Haryana India whereby the mother gave the child in adoption to the first named applicant who has the same surname, but is not related to the mother.
According to a letter from Suresh Kumar Sud, Advocate (see CB 125-126):
“2. That the Australian Immigration Department raised objection that Adarsh Rani is not the biological mother of minor Rudra Kumar. Upon this, a civil suit was filed at Panchkula Court and the Presiding Judge Lok Adalat/Samjhauta Sadan, Panchkula vida award dated 19.08.2009 passed in case No.289/CS dated 04.08.2009 declared that Master Rudra Kumar, the natural child of Ms. Adarsh Rani d/o Sh. Shiv Sharan Dass has been taken in adoption by Mr. Nirajkumar Rajnikant Naik and his wife Smt. Geeta Rani wife of Mr. Nirajkumar Rajnikant Naik with a specific order that Rudra Kumar will have a right to inherit the property of Mr. Nirajkumar Rajnikant Naik and Smt. Geeta Rani as their own natural child. It is also worth mentioning here that the said award was passed by the Permanent Lok Adalat/Samjhauta Sadan, Panchkula on the objections raised by the Australian Immigration Department otherwise there is a valid registered adoption deed regarding the adoption …”
The letter from Mr Sud goes on to acknowledge that Ms Geeta Rani already has another son, namely Karan Matilal, born on 11 January 2001 while she was unmarried. The child is not a child of her current marriage to Mr Naik.
What appears to be the judgment and order of the Lok Adalat is at
CB 62-63. It shows that when the matter came before the Lok Adalat only the adoptive parents were represented, but it seems clear that both parties cooperated in the application (see paragraph 3 of the Award).
On 5 November 2009 Messrs Clothier Anderson and Associates applied to the Australian High Commission in New Delhi for an adoption visa and thereafter, the High Commission sought legal advice from a Dr Agarwal who provided advice in three tranches. Mr Sud, already referred to, and Tribhuran Dahiya provided countervailing legal opinions on behalf of the applicants.
In due course, a delegate rejected the application, and the matter proceeded to the Migration Review Tribunal. For these purposes, it is sufficient to note that on 9 November 2011, the Tribunal wrote to the adoptive mother inviting comment or response to information the Tribunal considered might be relevant (CB 186-189). The letter raised amongst other things the proposition that:
“The evidence before the Tribunal is that the natural father is alive, whilst his whereabouts may be unknown. Whilst the HAMA makes provision for a mother to give a child up for adoption this is only possible if the father is deceased, finally renounced the world, ceased to be a Hindu or has been declared incompetent. There is no evidence before the Tribunal that any of these conditions are met.”
The letter also referred to the fact that the adoptive mother had a Hindu son already living, and that:
“Accordingly this information is relevant to the review because it may support a conclusion that the adoption of Rudra Kumar is not valid and that cl.102.213 is not met.”
Finally, but relevantly, the Tribunal referred to the fact that:
“… it has not been demonstrated that the person giving up the child for adoption, Adarsh Rani, is the natural mother of the child, Rudra Kumar.”
The Tribunal went on to refer to the inference of the AAT about the failure to take the DNA test to which I have already referred (CB 187).
The applicants’ legal advisers responded by a letter dated 7 December 2011. The facts asserted by the Tribunal were not the subject of a response. Rather, the response appended a report from Dr Bruno Zeller which (and I summarise) essentially asserted that the Indian Court’s judgment must be accepted.
The Issue that Arises
The relevant consideration for these purposes arises out of cl.102.213 of the Migration Regulations 1994 which requires that in order for a visa to issue, one of the criteria to be satisfied at the time of application is that:
“The laws relating to adoption of the country in which the child is normally resident have been complied with.”
Put shortly, the applicants submitted that the Indian Court having made the adoption order, that was the end of the matter. Put equally shortly, the position of the first respondent was that the question as to whether or not the laws of India had been complied with was a matter of fact to be determined by the Tribunal, that the Tribunal was not inhibited by the decision of the Indian Court from investigating the matter itself, and that the decision the Tribunal made was open to it on the facts as they stood.
The Hindu Adoptions and Maintenance Act 1956 (“HAMA”)
Relevantly for these purposes s.9 of the HAMA provides that:
“9. Persons capable of giving in adoption.—
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of [1] subsection (3) and subsection (4), the father, if alive, shall alone have the right to give in adoption, but such rights shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.”
Section 11 of the HAMA relevantly provides that:
“11. Other conditions for a valid adoption.
In every adoption, the following conditions must be complied with:
(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption.”
It is the first respondent’s contention that the materials show that the father of the adoptive child is still alive, and further that the adoptive mother has a son still living. Accordingly in no event, leaving aside the question as to whether or not the putative mother was indeed so, could the adoption possibly comply with the requirements of the HAMA.
The countervailing position adopted by the first applicant is that s.16 of the HAMA disposes of the matter finally. Section 16 reads as follows:
“Whenever any document registered under any law for the time being in force is produced for any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act until and unless it is disproved.”
According to an advice from Associate Professor Zeller (see CB 196-199), the caveat about the presumption in s.16 being disproved can only apply to the proceedings in India and therefore, according to
Dr Zeller, there is no competence in either the Minister or indeed this Court, as it were, going behind the Lok Adalat order.
By way of contrast, the first respondent submits that the Regulations are to be construed as they stand and the question of whether or not the laws of India have been complied with is a matter of fact for the Tribunal.
Although that puts the matter shortly, it is the essential difference between the parties.
Consideration
I have come to the conclusion that the first respondent’s submission is to be preferred. Regulation 102.213 reads, and I repeat:
“The laws relating to adoption of the country in which the child is normally resident have been complied with.”
In my opinion that sub-regulation means what it says. While the Indian legislation clearly contemplates a prima facie presumption of regularity, so to speak, by s.16 of the HAMA, that presumption does not apply to displace the force of Australian law in my view. In many ways this conclusion is a matter of first principles, and does not turn on any authority and indeed there is no authority directly on the point.
I note, however, that in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Branson J, in dealing with the provisions of the legislation enabling deportation of persons who have committed a criminal offence, concluded, to quote the authorised head-note:
“The Act should be construed as requiring the decision maker under s200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.”
That decision was expressly approved by Bennett J in Tham v Minister for Immigration and Citizenship [2012] FCA 234. Her Honour set out under the heading “the relevant authorities” at [22]-[25], a detailed analysis of Branson J’s decision. Although her Honour did not say so in terms, it seems to me that her Honour applied Branson J’s reasoning to the facts of the case before her. Bennett J noted, without adverse comment, the finding of Branson J that:
“There was “no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based”.”
It should be noted that both those decisions were concerned with a different facet of the legislative scheme, but the principle seems to me to have some application. In Tham, while Mr Tham’s application was ultimately successful, there was no issue between the parties that:
“The Tribunal was entitled to look behind the Canadian conviction to the circumstances leading to that conviction.” (Tham at [28])
The decision of Nicholls FM in Irawan v Minister for Immigration and Anor [2009] FMCA 1165 was concerned with whether the visa applicant had been adopted by the review applicant in accordance with the law of Indonesia (see Irawan at [7]). In that case the Tribunal was not satisfied that this was the case. While the circumstances of the case were clearly different to those here, I note that the Tribunal had considered the validity of the adoption in circumstances where there was at least some evidence before it supporting a conclusion that there had been a lawful adoption in Indonesia (see Irawan at [21]).
Nonetheless the circumstances of that case are different to those here, and there was certainly no suggestion in that case of a provision in identical terms to s.16 of the HAMA. What one can say, however, is that the approach of Nicholls FM seems to me to accord more with the general proposition I have already stated as a matter of first principles.
Was the Tribunal’s Decision Affected by Jurisdictional Error?
There was clear evidence before the Tribunal on any view that the adopting mother has a son still living, both at the time of application, and indeed as far as one can see, still. In these circumstances, it seems clear beyond doubt to me that the laws of India have not been complied with in relation to the adoption of the child in this case. The legal advice from the applicants’ lawyers in India which seeks to suggest that the HAMA only applies to children of the particular union, and not to children conceived with others, puts a gloss on the terms of the legislation which the legislation clearly does not permit.
Further, there is no evidence that the father of the child is dead or has otherwise met the requirements of the Act such that the mother is entitled alone to give the child in adoption. Although it would be more accurate in my view to say that there is simply no evidence one way or the other, the fact is that the Tribunal had adverted to the fact that the father was alive in the correspondence requiring comment, and was met with no challenge by the first applicant.
Insofar as there are asserted to be difficulties in proof of the mother giving the child in adoption being in fact the true mother of the child, in my view the materials are opaque.
Since the materials on their face, at least in relation to the issue of a living son of the adoptive mother, are so startling clear, it necessarily follows that the Tribunal cannot have fallen into jurisdictional error in coming to the conclusion that the laws of India had not been complied with.
I am afraid I reject the thrust of Associate Professor Zeller’s article to the effect that the Tribunal was obliged as a matter of law to give full effect to the Indian judgment. The Tribunal is required, in exercising de novo the discretion given to the Minister, to consider the terms and application of the relevant Australian law in relation to this matter, and it did so.
Although once again it must be said, this puts the matter in a rather summary way, that conclusion necessarily disposes of the central basis upon which the application was pressed.
Conclusion
In my view, the Tribunal did not fall into jurisdictional error in the fashion asserted by the applicants, and it follows that the application must be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 20 August 2012
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