FEDERAL COURT OF AUSTRALIA

Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23

THE COURT ORDERS THAT:

1.    Ms Xianhua Wang is appointed as the litigation representative of Neo Wang Hudson pursuant to r 9.63 of the Federal Court Rules 2011.

2.    The appeal is dismissed.

3.    Ms Xianhua Wang is to pay the costs of the First Respondent, including the costs of the proceeding before the primary Judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The court:

1    The present Appellant, Neo Wang Hudson, was born in September 2008. His case on the appeal was conducted by his mother, Ms Xianhua Wang, who remained in China. She conducted the case by means of a telephone link between the courtroom and China with the assistance of an interpreter present in the courtroom.

2    The Appellant claims that he falls within s 16(2)(a) of the Australian Citizenship Act 2007 (Cth). Section 16(2)(a) provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if, in addition to the other criteria listed, “a parent of the person was an Australian citizen at the time of the birth …”. Ms Wang is a Chinese citizen and the Appellant was born in China. She married an Australian citizen, Mr Hudson, in China prior to the birth of her son. Mr Hudson is not the biological father of the Appellant.

3    On 3 May 2011 the Administrative Appeals Tribunal affirmed a decision of the Minister’s delegate refusing the applicant’s claim for citizenship: Re NWH and Minister for Immigration and Citizenship [2011] AATA 286, 121 ALD 224. That decision followed earlier proceedings which culminated in a decision of the Full Court of this Court as to the meaning of the term “parent” in s 16(2)(a): H v Minister for Immigration and Citizenship [2010] FCAFC 119, 188 FCR 393.

4    The proceeding which is now before this Court is an appeal from a decision of a Judge of this Court which dismissed as incompetent an appeal from the Tribunal’s decision given on 3 May 2011: Hudson v Minister for Immigration and Citizenship [2011] FCA 1134.

5    The appeal resolved by the primary Judge was expressed to be an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Section 44(1) confines such an appeal to a “question of law”. There needs to be “strict compliance” with this requirement (Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453 at [2], 33 AAR 76 at 76 to 77 per Finn J) and any “question of law” must be expressed with “precision” and confined to a “pure question of law” (Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18], 76 ALD 321 at 325 per Branson and Stone JJ). The need for “precision” is further emphasised by r 33.12(2)(b) of the Federal Court Rules 2011 which requires a notice of appeal to state “the precise question or questions of law to be raised on the appeal”. There was no such express requirement previously imposed by O 53 r 3(2) of the now-repealed Federal Court Rules.

6    The “question of law” raised for resolution by the primary Judge was expressed as follows:

Whether, on a true construction of Paragraph 130 of H v Minister for Immigration and Citizenship [2010] FCAFC 119, a legal parent-child relationship can be destructed under the Tribunal’s discretion if an applicant child born in wedlock to a citizen parent is not the biological child of the citizen parent.

Notwithstanding difficulty in understanding the “question of law” so framed, the primary Judge concluded that

[15] … the applicant’s ‘question of law’ is not a question of law, but if it is, it is not a relevant question of law on which to found the appeal. It is not a relevant question of law on which to found the appeal because the Tribunal, correctly in my view, did not address and purport to answer that question; the Tribunal could therefore make no error in respect of the question. It follows, in my view, that the appeal is incompetent and must be dismissed.

The primary Judge went on to further conclude at [18] that “the Tribunal did not make any error of law”.

7    The Grounds of Appeal as set forth in the Notice of Appeal from the decision of the primary Judge provide as follows (without alteration):

His Honour failed in finding that the decision of The Administrative Appeal Tribunal (“the Tribunal”) dated 3 May 2011 was affected by the jurisdictional error on the grounds that:

1.    The Paragraph 130 of H v Minister for Immigration and Citizenship [2010] FCAFC 119 (“P130”) was irrelevant because the alleged reason for P130 on which the Tribunal relied that “[Mr. H] is not his [the appellant’s] biological father”, was never given by the Full Court.

2.    P130 was irrelevant because there had already been the legal parent-child relationship between Mr. Hudson and the appellant at the time of birth according to law.

3.    P130 was irrelevant because the power of the Tribunal to disqualify an existing legal parent-child relationship was never conferred by P130 or the citizenship act.

8    It is respectfully concluded that the primary Judge was clearly correct and that the appeal to this Court should be dismissed. None of the Grounds of Appeal has been made out.

Two Preliminary Procedural Issues

9    Before resolving any of the Grounds of Appeal, Counsel for the Respondent Minister correctly identified two preliminary procedural issues.

10    First, the decision of the primary Judge dismissing the appeal from the decision of the Tribunal as incompetent is an interlocutory – and not a final – decision: SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6] per Lindgren J; NACN of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 299 at [20] per Sackville, Allsop and Jacobson JJ; MZWJA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 492 at [8] per Crennan J. Leave to appeal must first be obtained: Federal Court of Australia Act 1976 (Cth) s 24(1A).

11    Counsel for the Respondent Minister, however, maintained that the preferable course would be to proceed to hear the present appeal on its merits rather than upon the basis of a failure to obtain leave. Such was the approach of the Full Court in Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2009] FCAFC 124. A similar approach should now be adopted.

12    Second, the Appellant is about 4 years old. He is, accordingly, a “minor” and hence a person “under a legal incapacity”. The Respondent Minister sought an order that the Appellant’s mother, Ms Wang, be appointed as his “litigation representative”.

13    Provision is made in Division 9.6 of the Federal Court Rules 2011 for the appointment of a person as a “litigation representative”. The comparable rules were previously to be found in O 43 of the now-repealed Federal Court Rules.

14    Rule 9.61 of the current Rules provides as follows:

A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative.

This rule effects a change to that previously found in O 43 r 1(1) which provided that an “infant or minor may sue by his next friend”. The former rule, it was said, did not of itself impose a requirement on a minor to sue by a next friend. It existed to facilitate any such requirement for the appointment of a tutor that may exist pursuant to statute or at common law: X v Minister for Immigration and Multicultural Affairs [1999] FCA 995, 92 FCR 524. Rule 9.61 now provides, by way of contrast, that a person under a legal incapacity may start or defend a proceeding “only by the person’s litigation representative”.

15    Rule 9.62 identifies those persons who may be a “litigation representative” and r 9.62(1) provides as follows:

A person, other than the following persons, may consent to being appointed a litigation representative:

(a)    a person under a legal incapacity;

(b)    a person who has a different interest in the proceeding to the person under a legal incapacity;

(c)    a corporation or organisation.

Rule 9.63 provides for the making of an application to the Court for an order appointing a person as a “litigation representative”. Such an application may be made by “a party or an interested person …”: r 9.63(1). The Respondent Minister applies obviously enough as “a party”.

16    It is r 9.64, however, which potentially provides a practical impediment to the making of the order sought by the Respondent Minister. That rule provides as follows:

A litigation representative must not take a step in the proceeding unless the following documents have been filed:

(a)    the litigation representative’s consent;

(b)    a certificate, including a statement that the litigation representative has no interest in the proceeding that is adverse to the interest of the person under a legal incapacity, signed by:

(i)    if the person is a lawyer — the person; and

(ii)    if the person is not a lawyer — the person’s lawyer.

No consent has been filed with the Court and there is no certificate as required by r 9.64(b).

17    There is power, of course, to dispense with compliance with any of the rules, including the rules set forth in Division 9.6.

18    An order for the appointment of a person as the “litigation representative” of a person under a legal incapacity assumes more than formal significance. Such an order serves at least two purposes. First, it ensures that the resolution of the proceeding binds the person under the disability: SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 at [30] to [33], 126 FCR 552 at 558 to 559 per Emmett and Conti JJ. And, second, an order serves to secure to an opposing party the benefit of any order as to costs: Ex parte Davis (1901) 1 SR (NSW) 187 at 189 per Darley CJ (Cohen J concurring). See also: Catt v Wood [1908] 2 KB 458 at 473. In circumstances where proceedings are commenced without a next friend, the solicitors who commenced such proceedings may be held liable for the costs incurred: Geilinger v Gibbs [1897] 1 Ch 479 at 483.

19    The preferable course, in the present proceeding, is to appoint Ms Wang as the “litigation representative” of her son. During the course of the hearing, Ms Wang confirmed that she wished to represent her son for the purposes of the appeal. Compliance with the requirements imposed by rr 9.61, 9.63 and 9.64 are dispensed with.

20    Neither of these two preliminary procedural issues thus provides an impediment to the merits of the Grounds of Appeal being considered.

The Decision of the Full Court and the Tribunal’s Decision

21    Just as the primary Judge experienced “difficulty” in understanding the “question of law” advanced before him for resolution, this Court expresses comparable difficulty in understanding the “Grounds of Appeal”.

22    In one form or another, however, the Grounds of Appeal focus attention upon whether the Administrative Appeals Tribunal correctly applied the decision of the Full Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119, 188 FCR 393.

23    In that decision the Full Court, constituted by Moore, Kenny and Tracey JJ, entertained extensive submissions as to the meaning of the term “parent”. Those submissions extended from the history of legislative amendments, the use of the term “parent” in other provisions of the Australian Citizenship Act, to the common law and overseas authorities. Having canvassed that material, their Honours relevantly concluded:

Bringing the threads together

[127] There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

[128] The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: … This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.

[129] Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough … Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one's own and treating him or her as one’s own.

[130] The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.

24    In applying this decision, the Tribunal relevantly set forth its reasoning and findings in part as follows:

[26] In coming to a decision we accept the Full Court’s comment that parent today can indicate a social relationship to another person, and that the parent need in some circumstances, not be a biological parent. We note that the Full Court also urged upon us not to attribute some technical meaning to the word parent, but rather to give it its ordinary meaning as evident in ordinary contemporary English usage, and of course we must do that.

[27] We are satisfied from Ms W’s evidence that Mr H is not NWH’s biological parent. In order to establish to our satisfaction whether Mr H satisfies being a parent to NWH in the terms of the Act, and whether NWH can therefore be conferred citizenship by descent, we have considered various indicia.

[28] Ms W’s evidence was that she and Mr H met on the internet, and that she had known him on the internet for 5 months before they met. Ms W says she is able to write in English but cannot speak it, while Mr H does not speak Mandarin. She said that Mr H came to China and, 2 days after he arrived on 8 June 2008, they married. She said that he is a good man, and wanted to marry her in spite of the fact she was pregnant at the time. Ms W also told us that Mr H was not in China when NWH was born in September 2008. In fact Mr H only spent approximately 2 weeks in China in 2008. We noted from the evidence that the first time Mr H met NWH was on a return trip to China in May 2010, when Mr H, Ms W and NWH spent a week together.

[29] When we asked her about Mr H’s occupation, Ms W said that she does not know what work he does in Sydney. She added that he had been a security guard at one time. Ms W also told us that Mr H has not given, and does not give her any money to support her, or the child, but that she has sufficient money as she has a good job with a telecommunications company in China.

[30] Ms W told us that distance does not stop a relationship forming, and that she and NWH see Mr H when they communicate via internet video calls. We are not convinced to the requisite standard that a parental relationship can be formed between NWH and Mr H, partly because NWH and Ms W speak Mandarin, whereas Mr H speaks English, and no Mandarin.

[31] When we questioned Ms W about Mr H’s role in relation to NWH, she insisted that he has a good relationship with the child, and brought him toys when he visited. She also tendered photographs of “Australian” souvenirs which are in a bundle of photographs before us as Ex A2. We asked Ms W about Mr H’s role in bringing up NWH. She said that the child is too young for any major decisions to be made about him. Notwithstanding Ms W’s evidence that she and Mr H speak on the telephone, we are satisfied from the evidence that he was not, and is not actually involved in bringing up NWH.

The Tribunal thereafter went on to set out the steps it had taken – unsuccessfully – to secure Mr Hudson’s appearance at the hearing before it. The Tribunal also set forth what it accurately described as a statement “formal in nature” that had been provided by Mr Hudson. The Tribunal stated at [37] that Mr Hudson had “…offered no financial support, and plays no role in making decisions about the boy’s life”. It ultimately concluded as follows:

[38] Accordingly our conclusion is that we are not satisfied that Mr H has established the requisite degree of connection as a parent with NWH, and accordingly, NWH is not eligible for Australian citizenship by descent pursuant to s 16(2)(a) of the Act.

25    The Tribunal reached its conclusion based upon its factual findings. It accepted that a person may be a “parent” even though not the biological father of a child ([2011] AATA 286 at [20] and [26]) and went on to consider the relationship that existed in fact between Mr Hudson and Ms Wang’s son. Although it is no part of the function of this Court to trespass into the factual merits of the manner in which the Tribunal resolves a claim before it, it is not considered inappropriate in the present proceeding to note that the factual conclusion of the Tribunal that Mr Hudson is not the “parent” of the son is clearly correct. Indeed, a “question of law” may well have arisen had the Tribunal reached any contrary conclusion on the evidence before it.

26    More relevantly, the primary Judge was clearly correct when he concluded that the Tribunal understood its “task … as being to answer a question of fact, not a question of law”: [2011] FCA 1134 at [12]. His Honour was clearly correct in further concluding that the Appellant’s “‘question of law’ is not a question of law, but if it is, it is not a relevant question of law on which to found the appeal”: [2011] FCA 1134 at [15].

27    Before this Court the argument for the Appellant seemed to change emphasis. Although it was not understood that Ms Wang wished to abandon her argument that Mr Hudson was properly to be regarded as a “parent” of her son by reason of their relationship, she seemed to also advance a further and discrete argument. This alternative argument was that Mr Hudson was the “parent” of her son simply by reason of the fact that she and Mr Hudson had married prior to his birth. Even though Mr Hudson was not the biological father or a person who had a sufficiently close personal relationship such that he could be regarded as a “parent” within the approach of H v Minister for Immigration and Citizenship, the fact of marriage alone (Ms Wang submitted) was sufficient to satisfy the requirements of s 16(2)(a) of the Australian Citizenship Act.

28    However the Grounds of Appeal are to be construed, and whatever may be the argument advanced by Ms Wang, the appeal is without merit.

29    The approach to be taken when resolving whether a person is a “parent” for the purposes of s 16(2)(a) of the Australian Citizenship Act is that set forth in H v Minister for Immigration and Citizenship. When that approach is applied to the present facts, it is apparent that there never has been a “legal parent-child relationship” between the Appellant and Mr Hudson. Contrary to the submission advanced on behalf of the Appellant, the mere fact that a mother has married prior to the birth of a child does not of itself make the husband the “parent” of the child in circumstances where it is not contradicted that the husband is not the biological father. The decision in H v Minister for Immigration and Citizenship is authority for the proposition that a person may be the “parent” of a child for the purposes of the Australian Citizenship Act even though not the biological “parent”. That decision is no authority for the proposition that a person necessarily becomes the “parent” of a child merely by reason of having married the biological parent prior to the birth of the child. Nor is there any support for Ms Wang’s proposition to be found in the terms of the Australian Citizenship Act.

30    The findings of fact as made by the Tribunal necessarily dictate a conclusion that Mr Hudson could not on any view be regarded as the “parent” of the Appellant for the purposes of s 16(2)(a) of the Australian Citizenship Act.

Conclusions

31    The appeal before the primary Judge, and the appeal to this Court, are misconceived and without substance.

32    The appeal is to be dismissed. There is no reason why Ms Wang, as the “litigation representative” of the Appellant, should not be ordered to pay the costs of the Respondent Minister. An order for costs fixed pursuant to r 40.02 of the Federal Court Rules 2011 was sought by the Respondent Minister. Perhaps understandably, a copy of the affidavit verifying the amount of such costs had not been provided to Ms Wang prior to the hearing.

33    The Court may, of course, permit submissions to be made by way of “video link, audio link or other appropriate means”: Federal Court of Australia Act s 47B. Submissions presented in such a manner may, as in the present case, nevertheless present difficulties if the entirety of the factual basis upon which submissions are to be advanced is not provided in advance of a hearing. Especially in circumstances where an Appellant is unrepresented, it may have occasioned Ms Wang prejudice had the Respondent Minister been able to rely upon an affidavit in circumstances where a copy of the affidavit had not previously been forwarded to her in China, and where she was confronted with its contents for the first time when translated by an interpreter during the course of the hearing. Leave to file the affidavit in Court was thus refused. Even in the absence of an order appointing her as the “litigation representative” of the Appellant, an order for costs to be payable by her would in any event have been made.

ORDERS

The Orders of the Court are:

1.    Ms Xianhua Wang is appointed as the litigation representative of Neo Wang Hudson pursuant to r 9.63 of the Federal Court Rules 2011.

2.    The appeal is dismissed.

3.    Ms Xianhua Wang is to pay the costs of the First Respondent, including the costs of the proceeding before the primary Judge.

Associate:

Dated:    13 March 2012