Truong v Minister for Immigration

[2017] FCCA 2713

FEDERAL CIRCUIT Court OF AUSTRALIA

TRUONG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2713

Catchwords:
MIGRATION – Contributory Parent (Migrant) (Class CA) Subclass 143 visa – whether the applicant’s met the definition of parent in the Act – whether an annulment of adoption in a foreign Court was valid – no jurisdictional error identified – application dismissed.

Legislation:

Adoption Act 2000 (NSW), ss.93, 116

Domicile Act 1982 (Cth), s.9

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Schedule 2, cl.143.211

Applicant: VAN HAO TRUONG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 158 of 2016

Judgment of: Judge Street

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Sydney

Delivered on: 7 November 2017

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: My T Nguyen Solicitors

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 158 of 2016

VAN HAO TRUONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 22 December 2015, affirming the decision of the delegate not to grant the visa applicants Contributory Parent (Migrant) (Class CA) Subclass 143 visas.

2. The visa applicants applied for the visa on 21 June 2012. The delegate refused to grant the visa on 28 November 2014 on the basis that the first and second visa applicants’ biological child was not their child for the purpose of cl 143.211(1)(a) of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”).

The Tribunal’s Decision

1. An application for review was lodged on 9 December 2014. The review applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal, in its reasons, identified that the review applicant is the brother of the first visa applicant and an Australian citizen and that he has sponsored the application on behalf of his fifteen year old nephew who is the third visa applicant.

2. The biological child of the first and second named visa applicants is the older brother of the third named visa applicant. The biological child was adopted in Vietnam on 2 November 2007 by his aunt who is the sister of both the review applicant and the first visa applicant.

3. The biological child, following the making of that adoption order, migrated to Australia with his aunt, on 28 May 2010, at a time that he was a Vietnamese citizen and took up residency in Australia and has since become an Australian citizen.

4. On 16 April 2012, the People’s Court of Ho Chi Minh City purported to make an order terminating the adoption. It was following this termination that the visa applicant applied for the parent visa on the basis that he is the parent of the biological child adopted by the first visa applicant’s sister and aunt of the biological child.

5. The Tribunal summarised that the delegate found that it was a matter for an Australian Court to terminate the adoption once the adopted child is a permanent resident and domiciled in Australia. The delegate found there is no scope for a Vietnamese Court to terminate the adoption and that the adoption could only be terminated by an Australian Court acting under the Australian legislation considering the best interests of the adopted child.

6. The delegate found that the adoption order was not valid under Australian law for the purposes of the Act and the Regulations and that the adopted child is the child of the aunt to the exclusion of the biological parents for the purpose of the Act and Regulations.

7. The delegate found that the biological child is not the child of the visa applicant and that the visa applicant does not meet the criteria under cl 143.211(1)(a) of Schedule 2 to the Regulations.

8. The Tribunal accepted that the first and second named visa applicants are the biological parents of the child and that it was not disputed that the child was adopted by his paternal aunt in Vietnam on 2 November 2007. The child was listed as a dependent of the aunt in the application for a Parent visa subclass 103, which was lodged with the Department on 23 October 2008, in respect of which the subclass 103 visa was granted on 27 May 2010. The child arrived in Australia with his aunt on 28 May 2010.  

9. The Tribunal made reference to the order made by the People’s Court of Ho Chi Minh City terminating the adoption, being apparently due to a conflict between the aunt’s son and the biological child. Materially, the Tribunal identified that neither the aunt nor the biological child were present in Vietnam to give evidence to the Court.

10. The Tribunal identified a representative appearing for the aunt in the proceedings, and that there is no reference to the child being represented in the proceedings. The Tribunal noted that the order terminating the adoption gave custody to the biological parents and stated that the request of the solicitor, on behalf of the aunt, should be accepted and the adoption is terminated with immediate effect and that the biological child is to be delivered to his biological parents and all rights and obligations of his parents are restored. The Tribunal noted that, on 18 May 2012, the second and third named visa applicants nominated the review applicant as the guardian of the relevant child.

11. The Tribunal noted that the delegate concluded that the People’s Court of Ho Chi Minh City did not have jurisdiction to terminate the adoption as the child was a permanent resident and domiciled in Australia. The delegate found the adoption could only be terminated by an Australian Court acting under the Australian legislation considering the best interests of the child.

12. The Tribunal made reference to the order purporting to be made on the basis of Article 13(3) of the Vietnamese adoption law and that Article 25 states that “Violation of Article 13 is a ground for terminating an adoption”.

13. The Tribunal found that, in Australia, adoption is regulated by legislation enacted by the states and territories. The Tribunal found the aunt and child were residing in Sydney at the relevant time, and, accordingly, the Tribunal identified New South Wales as being the relevant state for the application of state legislation.

14. The Tribunal referred to the provisions of s 116 of the Adoption Act 2000 (NSW) (“the Adoption Act”) referring to a foreign adoption being recognised where the adoptive parent or parents have been resident in a country that is not a Convention country for 12 months or more, or where domiciled in that country. The Tribunal noted that Vietnam is not a Convention country for the purpose of that provision. The Tribunal accepted, on the basis of the evidence, that the aunt was domiciled in Vietnam when the adoption order was made in November 2007 and has been a resident in that country for 12 months or more.

15. Consequently, the Tribunal accepted, on the basis of the evidence available, that the child’s adoption came within the provisions of s 116(1) of the Adoption Act. The Tribunal made reference to the power to discharge an adoption order under s 93 of the Adoption Act, which relevantly provides as follows:

    Discharge of adoption orders

    (1) In this section:

    “concerned person” means the Attorney General, or any party to an adoption.

    (2) A concerned person may apply to the Court for an order discharging an adoption order (a “discharge order” ).

    (3) The Court is to give each concerned person (other than the applicant for the discharge order) notice of the application.

    (4) The Court may make a discharge order if it is satisfied that:

    (a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or

    (b) there is some other exceptional reason why the adoption order should be discharged.

    (5) The Court must not make a discharge order if it appears to the Court that:

    (a) the making of the order would be prejudicial to the best interests of the child, or

    (b) if the application for the order is made by the child--the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information or contact with a person under Chapter 8 (Adoption information).

    (6) If the Court makes a discharge order respecting a general consent, that consent remains effective for the purpose of a further application for an adoption order in relation to the same child, unless the Court orders otherwise.

    (7) If the Court makes a discharge order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following:

    (a) the name of the child,

    (b) the ownership of property,

    (c) the parental responsibility for the child,

    (d) the domicile of the child.

    (8) On the making of a discharge order, but subject to any order made under subsection (6) and to section 95 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to:

    (a) anything lawfully done, or

    (b) the consequences of anything unlawfully done, or

    (c) any proprietary right or interest that became vested in any person, while the adoption order was in force.

16. The Tribunal made reference to s 93(5) and that, at the time of the order, both the aunt and the child were residents of Australia and living in New South Wales when the adoption was purportedly terminated.

17. The Tribunal found that the adoption order met the requirements of s 116, so that it would be recognised in New South Wales. The Tribunal accepted that the Supreme Court of New South Wales had jurisdiction to discharge the adoption order under s 93 if the aunt made an application and the Court was satisfied of the requirements under that legislation.

18. The Tribunal found that it was significant that an order could not be made under s 93(5) if the order would be prejudicial to the best interests of the child. The Tribunal rejected the proposition that an adoption order can only be terminated if the order was made in New South Wales. The Tribunal was correct to do so.

19. The Tribunal noted that there had been no application made to the Supreme Court of New South Wales to discharge the adoption order. The Tribunal took into account that the aunt and child were Vietnamese citizens at the relevant time and identified that there may be a number of benefits to the aunt in bringing the action in Vietnam.

20. The Tribunal noted that the aunt and the child were not present at the time the order was made to terminate the adoption and that the matter was heard and determined by proxy. The Tribunal noted that there was no information to indicate that the aunt and child were required to be physically present at the Court’s hearing. The Tribunal also noted that the decision referred to the child and aunt residing in Australia at the time of hearing.

21. The Tribunal then referred to the question, which was thereby raised, as to whether the Court of Ho Chi Minh City had jurisdiction to terminate the adoption given that the child was an Australian permanent resident residing in Australia at the relevant time. The Tribunal identified that if the Vietnamese Court did not have jurisdiction the biological child is still the child of the aunt and cannot be the child of the biological parents, being the first and second named visa applicants, for the purpose of the Act.

22. The Tribunal found the decision made by the People’s Court of Ho Chi Minh City to terminate the adoption on 16 April 2012 is not valid for the purpose of the Act and Regulations. The Tribunal made reference to the fact that the child was not separately represented in the proceedings or any identification of his interests were considered and made reference to the provisions of s 9(2) of the Domicile Act1982 (Cth) (“the Domicile Act”). Section 9 is as follows:

    Domicile of certain children

    (1)  Where, at any time:

    (a)  a child has his or her principal home with one of his or her parents; and

    (b)  his or her parents are living separately and apart or the child does not have another living parent;

    the domicile of the child at that time is the domicile that the parent with whom the child has his or her principal home has as at that time and thereafter the child has the domicile that that parent has from time to time or, if that parent dies, the domicile that that parent has at the time of death.

    (2)  Where a child is adopted, his or her domicile:

    (a)  if, upon his or her adoption, he or she has 2 adoptive parents--is, at the time of the adoption and thereafter, the domicile he or she would have if he or she were a child born in wedlock to those parents; and

    (b)  if, upon his or her adoption, he or she has one adoptive parent only--is, at the time of the adoption, the domicile of that parent and thereafter is the domicile that that parent has from time to time or, if that parent dies, the domicile that that parent has at the time of death.

    (3)  A child ceases to have, by virtue of subsection (1), the domicile or last domicile of one of his or her parents if:

    (a)  he or she commences to have his or her principal home with his or her other parent; or

    (b)  his or her parents resume or commence living together.

    (4)  Where a child has a domicile by virtue of subsection (1) or (2) immediately before he or she ceases to be a child, he or she retains that domicile until he or she acquires a domicile of choice.

    (5)  Where the adoption of a child is rescinded, the domicile of the child shall thereafter be determined in accordance with any provisions with respect to that domicile that are included in the order rescinding the adoption and, so far as no provision is applicable, as if the adoption had not taken place.

23. The Tribunal found that the adoption is still in effect, and that the biological child continues to be the child of the aunt for the purpose of the Regulations. The Tribunal found that the visa applicant is not the parent of the child and does not satisfy cl 143.211(1)(a) of Schedule 2 to the Regulations.

24. The Tribunal found that there was no evidence to indicate that the visa applicant met the alternative criteria under cl 143.211 and found that the applicant failed to meet the criteria for the grant of a visa and that the second and third named applicants were included as members of the family unit and, accordingly, affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The ground in the application is as follows:

   1. The Tribunal erred in finding that the first and second visa applicants were not the “parents” of Gai Huy for the purposes of the Migration Act and Migration Regulations.

   Particulars

   (a) Error in finding that the annulment of the adoption of Gai Huy by his aunt, by order of a Vietnamese Court in 2014, was not effective for the purposes of the Migration Act and Migration Regulations.

Applicant’s submissions

1. Mr Karp took the Court to the provisions of s 116 of the Adoption Act. Section 116 is in Division 4 of Part 2 of Chapter 5 of the Adoption Act and, relevantly, ss 116 and 117 provide as follows:

   116 RECOGNITION OF FOREIGN ADOPTIONS IN COUNTRIES OTHER THAN CONVENTION COUNTRIES AND PRESCRIBED OVERSEAS JURISDICTIONS

   (1) This section applies to an order for the adoption of a person:

   (a) that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and

   (b) if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents:

   (i) had been resident in that country for 12 months or more, or

   (ii) were domiciled in that country.

   (2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:

   (a) the adoption is in accordance with and has not been rescinded under the law of that country, and

   (b) in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person's birth parents in relation to the custody of the adopted person, and

   (c) under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.

   (3) Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.

   (4) A court that refuses to recognise an adoption may, at the time of refusing or at a later time, give leave to the applicant to seek an order for the adoption of the child concerned.

   Note : See section 31.

   (5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).

   (6) Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.

   117 DECLARATIONS OF VALIDITY OF FOREIGN ADOPTIONS

   (1) Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 116.

   (2) On an application under this section, the Court may:

   (a) direct that notice of the application be given to such persons (including the Attorney General) as the Court thinks fit, or

   (b) direct that a person be made a party to the application, or

   (c) permit a person having an interest in the matter to intervene in, and become a party to, the proceedings.

   (3) If the Court makes a declaration under this section, it may include in the declaration such particulars in relation to the adoption, the adopted child and the adoptive parent or parents as the Court finds to be established.

   (4) For the purposes of the law of New South Wales, a declaration under this section binds the Crown in right of New South Wales, whether or not notice was given to the Attorney General, and any person who was:

   (a) a party to the proceedings for the declaration or a person claiming through such a party, or

   (b) a person to whom notice of the application for the declaration was given or a person claiming through such a person,

   but does not affect:

   (c) the rights of any other person, or

   (d) an earlier judgment, order or decree of a court or other body of competent jurisdiction.

   (5) In proceedings in a court of New South Wales, the production of a copy of a declaration under this section, certified by the nominated officer to be a true copy:

   (a) if the proceedings relate to a person referred to in paragraph (a) or (b) of subsection (4), is conclusive evidence, and

   (b) if the proceedings relate to the rights of any other person, is evidence, that an adoption was effected in accordance with the particulars contained in the declaration and that it complies with section 116.

1. Mr Karp argued that there had been a rescission under the law of Vietnam within s 116(2)(a). Mr Karp submitted that the foreign Court had identified considering its jurisdiction and found it had jurisdiction, made an order in respect of a person who was then a Vietnamese citizen. By reason of which, Mr Karp submitted the Tribunal’s finding, that the order was not valid, is flawed.

2. Mr Karp also sought to argue that there had been a rescission of the adoption under s 9(5) of the Domicile Act, which is referred to above. Section 3 of that Act is as follows:

   Object and application

   (1)  The object of this Act is to abolish the rule of law whereby a married woman has at all times the domicile of her husband, and to make certain other reforms to the law relating to domicile, for the purposes of:

   (a)  the laws of the Commonwealth; and

   (b)  the laws of (including the common law in force in) each of the Territories to which this Act applies; and this Act has effect, and shall be construed, accordingly.

   (2)  For the purposes of the application of this Act in relation to the laws of the Commonwealth, this Act has effect to the exclusion of the laws of any State, any Territory or any other country relating to any matters dealt with by this Act.

   (3)  For the purposes of the application of this Act in relation to the laws of a Territory to which this Act applies, this Act has effect to the exclusion of the laws of any State, any other Territory or any other country relating to any matters dealt with by this Act.

   (4)  For the purposes of the application of this Act in relation to a law of the Commonwealth that extends to an external Territory, this Act shall be deemed to extend to that Territory.

   (5)  Where a provision of a law of the Commonwealth refers to domicile in, or to domicile outside, Australia, the provision shall, for the purposes of the application of this Act, be taken to refer to domicile in, or to domicile outside, as the case may be, the area that constitutes Australia, within the meaning of that provision, considered as a single country.

   (6)  The Territories to which this Act applies are the Australian Capital Territory, the Jervis Bay Territory and the external Territories (if any) that are declared by the regulations to be Territories to which this Act extends.

3. Mr Karp took the Court to an opinion on foreign law purportedly opining in relation to two questions.

   1. Mrs Truong Thi Truc Linh and child, Truong Gia Huy, both resided in Australia and were not present in Vietnam at the time, so was it right for the People’s Court of Ho Chi Minh City to issue Decision No.460/2012/QDST-VDS on 16/02/2012 to terminate the child adoption at the request of Mrs Truong Thi Truc Linh?; and

   2. Can Decision No.460/2012/QDST-VDS by the People’s Court of Ho Chi Minh City, issued on 16/04/2012, be effectively carried out?

4. The opinion, translated by a lawyer, does not specifically answer either of the questions asked. The author opines:

   Due to the fact that the adoption took place in Vietnam territory and Mrs Truong Thi Truc Linh has requested for the return of her adopted son to Mr Truong Ngoc Tot and Mrs Nguyen Thi Anh Tuyet who are the biological parents of child Truong  Gia Huy and Mrs Truong Thi Truc Linh and child Truong Gia Huy are both living in Australia and so the request by Mrs Truong Thi Truc Linh is under the jurisdiction of the People’s Court of Ho Chi Minh City Vietnam pursuant to Clause 28 Chapter 5, Clause 33 of the Civil Law Code of the Socialist Republic of Vietnam.

   In your application for immigration visas, if the Australian authorities have any questions relation to the Decision in the Resolution of Civil Case 460/2012/QDST-VDS dated 16/02/2012, you need to write to request the Australian authorities to send an official letter to the Foreign Ministry so the Foreign Ministry can pass it on to the People’s Court of Ho Chi Minh City to verify the matter.

   The above are the answers to the Letter of Request that you have sent to me. I hope very much that you are pleased with our reply and wish you well in your endeavours.

5. The Court’s decision had a section headed “About Jurisdiction”. That section then referred to the child’s parents currently residing in Ho Chi Minh city and the aunt residing in Australia in respect of which the authority referred to Point B, Clause 1, Article 34 of the Code of Civil Procedure allegedly engaging the authority of deciding the civil settlement belonging to the People’s Court of Ho Chi Minh City.

Consideration

1. Jurisdiction can have a number of meanings, and ordinarily is concerned with the power of the Court over the subject matter. Jurisdiction can also involve the question of whether the Court has power over the particular persons in respect of that subject matter. In the present case, there is nothing to identify that the Court had jurisdiction over the child, who was not represented or present in Vietnam, at the time of the making of the purported order on 16 April 2012.

2. Domestic laws in any country operate ordinarily within the sovereignty of that country and have no extra-territorial effect except in circumstances of particular well-recognised areas of international law or the subject of international treaties and/or conventions. The power of a Court within its sovereignty over an individual is ordinarily based on the presence of that individual within that country. The biological child in the present case was not in Vietnam at the time of the purported order terminating the adoption.

3. There is a presumption in the absence of proof to the contrary that the law of a foreign country is the same as domestic law. In that regard, applying that presumption, an Australian Court would not ordinarily have jurisdiction to make an order terminating an adoption in respect of a child residing in Vietnam if that child was not present or represented. For that reason alone the Tribunal was correct in holding that the purported order was not valid. The Tribunal identified in its reasons the absence of representation of the child. The Tribunal also referred to s 9 of the Domicile Act. That Act identifies an intention through s 3(3) to be exhaustive in respect of the issue of domicile.

4. On the face of the material before the Court, the Tribunal was correct in understanding that the biological child was domiciled in Australia at the time of the purported order. Section 9(5) does not assist Mr Karp, as the reference to rescission assumes a valid rescission on the ordinary construction of that provision.

5. As the child in the present case was domiciled in Australia, the issue of termination of the adoption of the child was a matter within the exclusive jurisdiction of the Australian Courts. The purported order by the Court in Ho Chi Minh City, for that further reason, was invalid.

6. Further, in relation to s 116 of the Adoption Act upon which Mr Karp relied, that was a provision that has work to do in respect of applications brought under s 117 and does not have an ambulatory application to the child in the present case. Further, on its proper construction, s 116(2) referring to rescission means a valid rescission under the law of a foreign country. For the reasons already given there was no such valid rescission.

7. Further, even if s 116 were to have application, this is a case where, given the absence of representation and the absence of presence of the child before the Court in the foreign country, there has been an obvious denial of natural justice and non-compliance with the requirements of substantial justice by reason of which subsection (2) of s 116 could have no application and, accordingly, does not assist Mr Karp.

8. Whilst the Tribunal is not a Court of law in relation to the application of conflict of law principles, the Tribunal was nonetheless correct to find that the child in the present case was governed by the Domicile Act and that the purported rescission in the present case was invalid.

9. The Tribunal is not governed by the rules of evidence, and foreign law is ordinarily a question of fact. In Courts of law, ordinarily, foreign law must be proved strictly and opinions as to its application are not ordinarily admissible. The opinion in the present case, on one view, failed to answer the two questions that were asked. In the circumstances of the present case it was open to the Tribunal to find that the purported order was not valid and, accordingly, the proposition that the Tribunal erred in holding that the first and second visa applicants were not the parents of the biological child for the purpose of the Act and Regulations is not made out.

10. The Tribunal was correct to hold that the annulment of the adoption was invalid and of no effect for the purpose of the Act and the Regulations. No jurisdictional error alleged in Ground 1 is made out.

Conclusion

1. The application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 December 2017