Federal Court of Australia

Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent’s amended notice of contention be dismissed.

3.    The orders dated 8 November 2019 by the Federal Circuit Court be set aside.

4.    The decisions of the Administrative Appeals Tribunal dated 8 February 2018 and 9 March 2018 respectively be set aside.

5.    The appellants’ applications for review be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

6.    Subject to either active party asking to have the matter relisted within 7 days hereof, the first respondent pay the appellants’ costs of the proceeding below as well as of the appeal, as agreed or taxed.

REASONS FOR JUDGMENT

GRIFFITHS AND ABRAHAM JJ:

1    This appeal is from orders and a judgment of the Federal Circuit Court (Chou v Minister for Immigration [2019] FCCA 2709 (the primary judgment)), which dismissed an application for judicial review of two decisions of the Administrative Appeals Tribunal (AAT). On 8 February 2018, the AAT affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the first respondent) to cancel the first appellant’s (Ms Chou) subclass 801 partner visa pursuant to s 109 of the Migration Act 1958 (Cth). As a consequence of this decision, the subclass 820 partner visa held by Ms Chou’s son, Sebastian (the second appellant), was cancelled pursuant to s 140 of the Migration Act. This cancellation decision was affirmed in a separate decision of the AAT on 9 March 2018.

2    The hearing of this appeal was conducted on 6 May 2021. Due to unforeseen circumstances which emerged during the hearing, and it becoming apparent to the Court that particular issues with respect to the appropriate relief sought in the proceedings would require further consideration, the parties did not conclude their respective oral submissions. With the parties’ consent, orders were made providing for further written submissions and that the appeal would otherwise be determined on the papers without a further oral hearing unless otherwise ordered. No party sought a further oral hearing.

Summary of background facts

History of appellants’ visa status

3    The history of Ms Chou’s and Sebastian’s visa status in Australia can be summarised briefly. It will be necessary later to return in more detail to events surrounding the cancellation of Ms Chou’s visa and Sebastian’s paternity, which formed the primary basis for the AAT’s decisions to affirm the decision of the Minister’s delegate.

4    Ms Chou is a citizen of Cambodia. On 11 April 2012, Ms Chou was granted a subclass 300 prospective marriage visa, for which she was sponsored by her prospective husband, Mr Luis Alberton Munoz Benavides, who was an Australian citizen. Ms Chou entered Australia on 12 May 2012 and was married to Mr Benavides on 26 May 2012.

5    On 15 June 2012, Ms Chou applied for both a subclass 820 partner (provisional) visa and a subclass 801 partner (residence) visa sponsored by Mr Benavides. On 21 June 2012, Ms Chou was granted a subclass 820 visa.

6    On 29 August 2014, Sebastian was born in New South Wales. His biological father was not Mr Benavides, but rather a former Cambodian colleague of Ms Chou, Mr Phoumearith Ben, in circumstances which will be described below. By reason of the fact that Ms Chou held a subclass 820 visa at the time of his birth, Sebastian was taken to be granted a subclass 820 visa pursuant to s 78 of the Migration Act.

7    On 9 September 2014, Ms Chou was granted a subclass 801 visa after providing further information in support of her relationship with Mr Benavides on 28 May 2014 (see below).

8    According to Ms Chou, she and Mr Benavides separated in December 2014 after she told him that he was not Sebastian’s biological father. Ms Chou reunited with Mr Ben and on 21 January 2016 Ms Chou provided the Department of Immigration and Border Protection with a Notification of Change of Circumstances requesting that Sebastian be granted a visa. She provided a certified copy of his birth certificate which stated that Mr Ben was Sebastian’s father. On 4 April 2016, Ms Chou and Mr Benavides divorced and, shortly thereafter, Ms Chou married Mr Ben in Cambodia.

9    On 21 June 2016, Ms Chou and Mr Ben lodged an application for a subclass 309 partner (provisional) visa. Mr Ben stated that, from 14 December 2013, he and Ms Chou were committed to a shared life to the exclusion of all others. In contrast, Ms Chou declared that her relationship with Mr Ben did not develop until after Sebastian’s birth. As will shortly emerge, this triggered the Department considering the cancellation of Ms Chou’s existing subclass 801 visa and Sebastian’s existing subclass 820 visa. That process will be described in more detail below.

Sebastian’s parentage and Ms Chou’s spousal relationship

10    As will become apparent, grounds 2 and 3 of the appeal turn upon the AAT’s findings concerning Ms Chou’s actions relating to Sebastian’s paternity and Ms Chou’s relationship with Mr Benavides. It is therefore necessary to outline the factual background surrounding these matters in some detail, noting that the veracity of some of the matters was ultimately rejected by the AAT.

11    As set out in statutory declarations made on 8 June 2016, 31 May 2017 and 31 January 2018, Ms Chou claimed that during a visit to Cambodia in December 2013 to January 2014, she reunited with a former work colleague, Mr Ben. She and Mr Ben had sexual intercourse. Soon after returning to Australia on 18 January 2014, Ms Chou discovered that she was pregnant. Because of the timing of the pregnancy, Ms Chou believed that Mr Benavides was not Sebastian’s father. Ms Chou claimed that at the time of her return to Australia in January 2014 she did not intend to have an ongoing relationship with Mr Ben.

12    On 28 May 2014, Ms Chou provided the Department with further information concerning her ongoing relationship with Mr Benavides in support of her subclass 801 visa application. This included a statutory declaration by Ms Chou on 26 May 2014 that she had a “mutual commitment to a shared life as a husband and wife … to the exclusion of others” with Mr Benavides. At this time, Ms Chou was approximately five months pregnant. In her statutory declaration, Ms Chou stated that she and Mr Benavides were “both now preparing things for our new member is a baby boy comming in September” (sic). Ms Chou’s statutory declaration, and a statutory declaration by Mr Benavides, made no mention of the fact that the child may not be Mr Benavides’ biological child.

13    After Sebastian’s birth on 24 September 2014, Ms Chou stated that she allowed Mr Benavides to sign off on Sebastian’s birth certificate as his parent. Ms Chou alleged that, at this time, she had not told either Mr Benavides or Mr Ben about her suspicion that Mr Ben was Sebastian’s biological father.

14    When Sebastian was two or three months old, Ms Chou stated that she told Mr Benavides about her liaison with Mr Ben and that she believed that Mr Ben was the biological father. Ms Chou stated that Mr Benavides “got really upset” and that after December 2014 they no longer lived together. Ms Chou and Mr Benavides’ divorce was finalised on 4 April 2016.

15    Ms Chou declared that from December 2014 she reconnected with Mr Ben after informing him of her suspicions that he was Sebastian’s father. In November 2015, Ms Chou undertook a DNA test which confirmed that Mr Ben was the biological father. After returning to Cambodia in late 2015, Mr Ben and Ms Chou were married there in May 2016.

The visa cancellations

16    On 21 January 2016, Ms Chou submitted a ‘Form 1022 Notification of Change of Circumstances’ which requested that Sebastian be granted a visa. This form included a birth certificate indicating that Sebastian’s father was Mr Ben.

17    Ms Chou sponsored Mr Ben’s application for a subclass 309 partner (provisional) visa, which was lodged on 21 June 2016.

18    On 9 May 2017, the Department issued Ms Chou with a notice of intention to consider cancellation of her subclass 801 visa (the NOICC). The NOICC alleged that Ms Chou had failed to comply with ss 101(b) and 104 of the Migration Act, relevantly stating (without alteration):

…

Based on the evidence that you have a son with Ben Phoumearith and the evidence in the Partner visa application lodged on 21 June 2016, it appears that your relationship with your sponsor ceased in approximately December 2013.

It appears that you have not complied with section 104 of the Act as you have failed to notify the Department of relevant changes in circumstances:

•    At question 77 of the Form 40SP you stated that your relationship with Luis Alberto Munoz Benavides had not ceased however it appears that the relationship ceased in December 2013 prior to the grant of the subclass 801 Partner visa on 9 September 2014.

•    At question 13 of the Form 40SP you stated that you and Luis Alberto Munoz Benavides where in a relationship however it appears that you had a child with and committed to a shared life together to the exclusion of all others with Ben Phoumearith in December 2013.

As circumstances changed so that an answer to a question on the application form is incorrect in the new circumstances and you did not notify the Department of the change it appears that you have not complied with section 104 of the Act.

It appears that you have provided incorrect information in your application for a Partner visa as information provided in relation to your application for a visa is incorrect. In support of your application for a Partner visa you provided a Statutory Declaration dated 26 May 2014 in which you stated:

•    Your relationship with Luis Alberto Munoz Benavides was to the exclusion of all others however it appears that you had a child with and committed to a shared life together to the exclusion of all others with Ben Phoumearith in December 2013;

•    Your relationship with Luis Alberto Munoz Benavides was genuine and continuing however it appears that you had a child with and committed to a shared life together to the exclusion of all others with Ben Phoumearith in December 2013;

•    That you were 5 months pregnant and that you and Luis Alberto Munoz Benavides have not yet found a name for the baby however DNA evidence shows that he is not the father of your child. In addition you stated that you knew from the time that you found out about the pregnancy that it was not Luis Alberto Munoz Benavides’.

As you have provided incorrect information in your application for a Partner visa it appears that you have not complied with section 101(b) of the Act.

…

19    These allegations were based both on Mr Ben’s visa application lodged on 21 June 2016 and the notification of change of circumstances submitted by Ms Chou on 21 January 2016.

20    Ms Chou made detailed written submissions and provided evidence in response to the NOICC on 1 and 2 June 2017. However, on 28 July 2017, the Minister’s delegate issued a notice cancelling Ms Chou’s subclass 801 visa under s 109 of the Migration Act. Pursuant to s 140 of the Migration Act, Sebastian’s subclass 820 visa was also cancelled. This cancellation decision gave rise to the two decisions of the AAT which were the subject of the judicial review application before the primary judge.

Relevant parts of the legislative schemes summarised

21    Before turning to the decisions of the AAT and the primary judge it is desirable first to summarise relevant aspects of the Migration Act and the legislative scheme in NSW with respect to the registration of details about a child’s birth.

Migration Act

22    Subdivision C of Div 3 of Pt 2 of the Migration Act sets out circumstances in which a visa granted based on incorrect information may be cancelled. This subdivision applies to all applications for visas made after 1 September 1994 (s 115 of the Migration Act).

23    Under s 101 of the Migration Act, a non-citizen is required to ensure that “no incorrect answers are given or provided” in an application form for a visa:

101    Visa applications to be correct

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions on it are answered; and

(b)    no incorrect answers are given or provided.

24    The Migration Act does not define the term “incorrect”. However, s 100 provides that an answer to a question is incorrect “even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect”.

25    Section 99 provides a broad definition of the term “answer” for the purpose of s 101:

99    Information is answer

Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

26    Having regard to the terms of s 99, it is evident that any information provided by Ms Chou to the Department before the grant of her subclass 801 visa on 9 September 2014 would fall within the definition of “answer”. This would therefore include her statutory declaration made on 26 May 2014.

27    Section 104 of the Migration Act imposes a duty on non-citizens to inform the Department if a relevant change in circumstances causes an answer in the non-citizen’s application form to be incorrect before a visa is granted. Section 104 provides:

104    Changes in circumstances to be notified

(1)    If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)    If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)    If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

  (4)    Subsection (1) applies despite the grant of any visa.

28    Under s 107, if the Minister considers the holder of a visa has not complied with s 104, the Minister may give the holder a notice that the Minister may consider cancelling their visa, and must provide the holder with an opportunity to provide a written response to the notice. Neither Ms Chou nor Sebastian contend that there was any non-compliance with the requirements of s 107.

29    Section 108 then provides that after providing notice under s 107, the Minister is required to “consider any response given by the visa holder in the way required by s 107(1)(b)” and “decide whether there was non-compliance by the visa holder in the way described in the notice”.

30    If the decision-maker decides there has been a non-compliance with a relevant provision of subdivision C, the Minister’s discretion to cancel the holder’s visa is enlivened under s 109(1) (except if s 109(2) applies, in which case the Minister must cancel the visa):

109    Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)      considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)      If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

31    It is apparent from the terms of s 109(1) that non-compliance with subdivision C is not the only relevant consideration guiding the exercise of the Minister’s discretion. The Minister is required also to have regard to “any prescribed circumstances” in s 109(1)(c). It is not in dispute between the parties that s 109(2) does not apply to Ms Chou (indeed there are no such circumstances declared by the Migration Regulations 1994 (Cth)).

32    For the purpose of s 109(1)(c), reg 2.41 of the Migration Regulations provides that the following circumstances are prescribed:

 (a)    the correct information;

 (b)    the content of the genuine document (if any);

(c)    whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

 (d)    the circumstances in which the non-compliance occurred;

 (e)    the present circumstances of the visa holder;

(f)    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g)    any other instances of non-compliance by the visa holder known to the Minister;

 (h)    the time that has elapsed since the non-compliance;

(j)    any breaches of the law since the non-compliance and the seriousness of those breaches;

 (k)    any contribution made by the holder to the community.

33    Under reg 2.42, if the Minister cancels a visa under s 109, the Minister must notify the former holder of the visa in writing that the visa has been cancelled and set out the ground/s for the cancellation.

34    It is also relevant to note that ss 107, 108 and 109 apply regardless of whether the non-compliance by the visa holder was “deliberate or inadvertent” (s 111 of the Migration Act).

35    Section 140 of the Migration Act is central to ground 4 of the notice of appeal and to Sebastian’s circumstances. It provides:

140    Cancellation of visa results in other cancellation

(1)    If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2)    If:

(a)    a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

(b)    another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person’s visa.

(3)    If:

(a)    a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and

    (b)    the person is a parent of another person; and

(c)    the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

      the other visa is also cancelled.

As will emerge, Sebastian contends that none of the provisions in s 140 empowered the Minister to cancel his visa.

36    Section 78(1) provides that where a child born in Australia is a non-citizen at the time of birth and one of the child’s parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted at birth the same kind and class of visa, and on the same terms and conditions, as the visa of that parent. It is common ground that Sebastian was deemed at the time of his birth to hold a subclass 820 visa by operation of s 78(1).

37    Finally, it is relevant to note reg 2.08 of the Migration Regulations, which provides that a child born to a visa applicant before their visa application is determined is taken to have applied for a visa of the same class at the time of their birth:

2.08    Application by newborn child

(1)     If:

    (a)    a non‑citizen applies for a visa; and

(b)    after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non‑citizen;

then:

(c)    the child is taken to have applied for a visa of the same class at the time he or she was born; and

(d)    the child’s application is taken to be combined with the non‑citizen’s application.

(2)     Despite any provision in Schedule 2, a child referred to in subregulation (1):

(a)    must satisfy the criteria to be satisfied at the time of decision; and

(b)    at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

Registration of birth details in NSW

38    It is necessary to also summarise relevant aspects of the legislative scheme in NSW for the registration of birth details, which are relevant to grounds 2 and 3 of the notice of appeal and the Minister’s amended notice of contention.

39    Under Div 2 of Pt 3 of the Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act), if a child is born in NSW, the birth is required to be registered (s 13). A person may have a child registered by giving notice to the Registrar of Births, Deaths and Marriages in the prescribed form and specifying the particulars required by the Births, Deaths and Marriages Registration Regulation 2017 (NSW) (the BDMR Regulations) (s 14). The required particulars for the purpose of ss 14 and 17 are provided for in reg 5(1) of the BDMR Regulations, which relevantly include:

…

(d)    the full name, maiden family name (if any), date of birth (or age), place of birth, occupation and (at the time of delivery) usual place of residence of each parent of the child,

…

40    Importantly, reg 5(3) also contains provision for a parent who is the “father” or “birth mother” of a child to be registered as such on the Register:

(3)    If the particulars supplied to the Registrar under section 14 of the Act specify that:

(a)    a parent who is the father of the child wishes to be identified in the register as the father, or

(b)    a parent who is the birth mother of the child wishes to be identified in the Register as the mother,

or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.

41    Evidently, this regulation draws a distinction between the concept of “parent”, and the concepts of “father”, “mother” and “birth mother” in the statutory scheme.

42    Section 15(1) obliges both parents of a child to have the child’s birth registered. It provides:

15    Responsibility to have birth registered

(1)    The parents of a child are jointly responsible for having the child’s birth registered under this Act (and must both sign the birth registration statement) but the Registrar may accept a birth registration statement from one of the parents if satisfied that it is not practicable to obtain the signatures of both parents on the birth registration statement.

…

43    It is also important to note s 15(3), which provides that the Registrar may only accept a birth registration statement from a person who is not responsible for having the child’s birth registered as a parent if the person has knowledge of the relevant facts and the child’s parents are unable or unlikely to lodge a birth registration statement.

44    Section 16(1) makes it an offence for a person responsible for having the birth of a child registered to fail to do so within 60 days after the date of birth.

45    Section 17(1) provides that the Registrar registers a birth by making an entry about the birth in the Register, including the particulars required by the BDMR Regulations.

46    Section 18 then provides that the Registrar must not include registrable information about the identity of a child’s parent in the Register unless:

(a)      both parents of the child make a joint application for the inclusion of the information, or

(b)      one parent of the child makes an application for the inclusion of the information and the other parent cannot join in the application because he or she is dead or cannot be found, or for some other reason, or

(c)      one parent of the child makes an application for the inclusion of the information and the Registrar is satisfied that the other parent does not dispute the correctness of that information, or

 (d)      a court orders the inclusion of the information in the Register, or

 (e)      a court makes a finding that a particular person is a parent of the child, or

(f)     the Registrar is entitled under any law (including a law of another State or the Commonwealth) to make a presumption as to the identity of the child’s parent, or

 (g)     the regulations authorise the Registrar to include the information.

47    Finally, and critically, s 57 of the BDMR Act makes it an offence to make a false or misleading representation in a notice under the Act:

57    False representation

A person who makes a representation in an application, notice or document under this Act or in response to a notice under section 44 of this Act (Registrar’s powers of inquiry), knowing the representation to be false or misleading in a material particular, is guilty of an offence.

Maximum penalty—100 penalty units or 2 years imprisonment, or both.

48    Reference should also be made to s 9 of the Status of Children Act 1996 (NSW), which provides that “a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her spouse”. This presumption is rebuttable by proof on the balance of probabilities (s 15(1) of the Status of Children Act).

Relevant parts of the decisions below summarised

The AAT decisions

49    As previously noted, two AAT decisions were judicially reviewed by the primary judge. Those decisions are dated 8 February 2018 (the first decision) and 9 March 2018 (the second decision) respectively.

The first decision

50    In the first decision, the AAT affirmed the delegate’s decision dated 28 July 2017 to cancel Ms Chou’s visa pursuant to s 109 of the Migration Act.

51    After finding that the delegate had complied with the notice requirements in s 107 of the Migration Act, the AAT went on to consider whether there had been a “non-compliance” with ss 101(b) or 104 as alleged in the s 107 notice (see [18] above).

52    In [11] of its reasons for the first decision, the AAT described as “utterly unconvincing” the explanation provided by Ms Chou in her written response to the NOICC regarding her failure to notify the Department of a relevant change in circumstances:

The applicant submits in her written response to the NOICC and her submissions to the Tribunal that the child was conceived after a drunken one night stand with Mr Ben, and that she did not intend to have a relationship with Mr Ben, and there was no mutual commitment at the time. The applicant claims that after she realised she was pregnant, she wanted to keep the marriage but did not want to have an abortion, so she decided not to tell anyone and hoped that the sponsor would raise the child as his. (The Tribunal considers that evidence unconvincing, given the applicant's earlier statement that she knew straight away the sponsor was not the father of the child because they did not have sexual relations. That should have been equally obvious to the sponsor.) The applicant states she told the sponsor when the child was two or three months old. She separated from the sponsor in December 2014 and they were divorced in April 2016.

53    The AAT made several adverse credibility findings against Ms Chou and Mr Ben and ultimately did not accept their evidence. Particular importance is placed by Ms Chou in this appeal on the AAT’s reasons at [20], where the Member stated (emphasis added):

Further, if the applicant’s evidence concerning her relationship with Mr Ben was true, the applicant told the Tribunal that she never informed the Department about these changes in the relationship while sponsoring Mr Ben for the partner visa. Such an application implies the existence of a mutually committed relationship and the applicant suggests that neither she nor Mr Ben have any commitment to each other. That would be highly relevant to the processing of Mr Ben’s visa. The applicant said that she hoped he would change his relationship but she also claims that did not happen before his visa was refused in July 2017. That is, the applicant now claims her relationship with Mr Ben deteriorated by the end of 2016 yet she failed to inform the Department about the changes in the circumstances and continued to rely on the existence of a genuine and mutually committed relationship with Mr Ben in order to obtain the visa for him. Now when dealing with the cancellation of her own visa, and when the applicant determined that having no relationship with Mr Ben was of benefit to her, the applicant revealed for the first time that the relationship deteriorated in 2016. When the Tribunal questioned the veracity of the applicant’s evidence, she said that their relationship did not end, but her own evidence is that by the end of 2016 her relationship with Mr Ben was no longer of the nature she previously described to the Department. The Tribunal finds that on the applicant’s own evidence, she was willing to provide false or misleading information to the Department, and not inform the Department about significant changes in the circumstances, when she believed it better suited her circumstances.

54    This paragraph provided part of the AAT’s explanation for concluding that “the Tribunal [had] formed the view that the applicant is not a person of credibility” (see at [18]-[20]).

55    At [22] of its reasons, the AAT expanded upon why it found that Ms Chou was not “a person of credibility and that she is willing to provide untruthful information when she considers it more useful to her case”:

The applicant also told the Tribunal that she obtained the first birth certificate for her child around September 2014 when her son was one month old, and that birth certificate identified the sponsor as the father of the child. That is, even the applicant knew that the sponsor was not the father of the child, she gave false or misleading information to register the child as the biological child of her and the sponsor. The applicant said that she wanted to maintain the family and could not disclose the parentage to the sponsor, but the Tribunal does not consider that the applicant's claimed desire to maintain family peace justifies the provision of false information to the Registry of Births, Deaths and Marriages. The applicant's willingness to provide false information to the Registry supports the Tribunal's view that the applicant is not a person of credibility and that she is willing to provide untruthful information when she considers it more useful to her case.

56    After making several other findings regarding Ms Chou’s and Mr Ben’s evidence, at [36]-[37] of its reasons for decision, the AAT stated its conclusions for affirming the delegate’s decision that there was non-compliance with ss 101(b) and 104 of the Migration Act:

36.    For all the reasons outlined above, the Tribunal has formed the view that the applicant ceased to be in a spousal relationship with the sponsor before she was granted the permanent visa. The Tribunal finds that before she was granted the permanent visa, the applicant was no longer the spouse of the sponsor and her relationship with the sponsor ceased to be genuine, mutually committed and to the exclusion of all others. The Tribunal finds that the applicant failed to inform the Department about these changes in her circumstances. The Tribunal finds that the applicant did not comply with s.104 of the Act.

37.    The Tribunal further finds that the applicant's spousal relationship with the sponsor ended by the time the applicant provided her declaration in May 2014. The Tribunal finds that the applicant claimed to be in a spousal relationship with the sponsor when completing the declaration and the information she gave in that declaration was incorrect. The Tribunal finds the applicant gave incorrect answers in her application form and had not complied with s.101 of the Act. The Tribunal further finds that by referring to 'our child', the applicant did indicate that the child was the child of her relationship with the sponsor and for that reason also, the Tribunal finds that the applicant gave incorrect answers and did not comply with s.101 of the Act. The Tribunal finds that there was non-compliance with s.101 and s.104 by the applicant in the way described in the s.107 notice.

57    As is evident from these two paragraphs, the findings of the AAT supporting the conclusion of non-compliance with s 104 and s 101(b) fall into three distinct categories, namely:

(a)    a finding that Ms Chou ceased to be in a spousal relationship with Mr Benavides before she was granted her permanent visa, and that Ms Chou failed to inform the Department of this change of circumstances as required by s 104;

(b)    a finding that Ms Chou’s spousal relationship with Mr Benavides had ended by the time she provided the statutory declaration on 26 May 2014, and therefore the information provided in that statutory declaration was an incorrect answer in breach of s 101(b); and

(c)    by referring to “our child”, Ms Chou indicated that her unborn child was the child of her relationship with Mr Benavides, and therefore also provided an incorrect answer in the statutory declaration in breach of s 101(b).

58    The AAT then considered whether Ms Chou’s visa should have been cancelled in the exercise of the delegate’s discretion under s 109(1), with regard to the prescribed circumstances in reg 2.41 of the Regulations. Of relevance to this appeal, in considering whether Ms Chou had committed “any breaches of the law since the non-compliance and the seriousness of those breaches” (as prescribed in reg 2.41(j)), the AAT’s reasons unambiguously disclose at [57] that it found that Ms Chou had breached the BDMR Act, stating:

The applicant told the Tribunal that she obtained the initial birth certificate for the child which identified the sponsor as the father of that child. She knew that information was incorrect. The Tribunal finds that the applicant has given false or misleading information to the Registry of Births, Deaths and Marriages. It is an offence under s.53 of the Births, Deaths and Marriages Registration Act 1996. The applicant explained to the Tribunal that she could not disclose the paternity information to her husband but the Tribunal does not consider that the applicant's marital concerns justify the breach of the law.

(It should be noted that it is agreed between the parties that the reference to s 53 is a typographical error, and should refer to s 57 of the BDMR Act.)

59    Ultimately, the AAT concluded at [76]-[77] that Ms Chou’s visa should be cancelled:

76.    The Tribunal acknowledges that there are a number of factors that are against the cancellation of the visa, as well as those that may justify the cancellation. The Tribunal has formed the view that the applicant's mutually committed and exclusive relationship with the sponsor ended before she was granted the visa and if that information was known, the applicant would not have been granted the visa. Information about the child’s paternity was also relevant to the decision to grant the visa, even if it was not determinative. The applicant’s decision to withhold that information from the decision-maker was, in the Tribunal’s view, a significant instance of fraud. In the Tribunal's view, such matters outweigh other considerations.

77.    The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

The second decision

60    In the second decision, the AAT affirmed the delegate’s decision to cancel Sebastian’s visa under s 140(2) of the Migration Act, as a consequence of the cancellation of Ms Chou’s visa. The AAT relevantly found at [6] of its reasons for decision:

The Tribunal finds that the applicant is a person to whom s.140(1) does not apply because he was not granted a visa on the basis of being a member of the family unit of his mother. The Tribunal finds that the applicant is a person who held a visa only because Ms Chou held a visa. As Ms Chou’s visa was cancelled, the Tribunal finds there are grounds for cancelling the applicant’s visa under s 140(2) of the Act.

The primary judgment

61    As noted above, the primary judge dismissed the appellants’ amended application for judicial review. The grounds of review relevant to the present appeal can be summarised as follows:

(a)    Ground 2: The AAT fell into jurisdictional error by forming an adverse finding regarding Ms Chou’s credibility on the basis that she had failed to advise the Minister of changes in her relationship with Mr Ben, because Ms Chou was under no obligation to advise the Minister of the deterioration of her relationship with Mr Ben in late 2016. Ms Chou argued that obligation is limited to a “visa applicant” under s 104, which was Mr Ben.

(b)    Ground 3A(a): The AAT breached ss 359A or 360(1) of the Migration Act or otherwise denied Ms Chou procedural fairness to present arguments concerning a potential breach of the BDMR Act, and the seriousness of such a breach.

(c)    Ground 3A(b): The AAT committed a material error of law in finding that it was an offence against the BDMR Act for Ms Chou to have identified Mr Benavides as a parent of her child upon the registration (referring to [57], and also [22] and [73] of the AAT’s reasons for its first decision). The appellants contended that on the proper construction of the BDMR Act, Ms Chou was not required to register Sebastian’s biological father as the parent and was entitled to register her husband as the parent.

(d)    Ground 4: The AAT in its second decision fell into jurisdictional error by affirming the delegate’s decision to cancel Sebastian’s visa under s 140(2), because:

(i)    s 140(2) had no application to Sebastian as his subclass 820 partner (provisional) visa was not held “only because” Ms Chou held a subclass 801 partner (permanent) visa, being the cancelled visa; or

(ii)    s 140(3) created a specific mechanism for the cancellation of visas granted by operation of s 78 of the Migration Act, and therefore it was not open to the AAT to rely on the general power in s 140(2). Ms Chou further contended that s 140(3) did not apply in this case because the “cancelled visa” (Ms Chou’s subclass 801 visa), was not the visa which was held at the time of Sebastian’s birth.

(e)    Ground 5: The AAT in its second decision fell into jurisdictional error by proceeding on the basis that Ms Chou’s visa had been cancelled as that cancellation decision was made on a legally erroneous basis (with reference to the grounds of review advanced by Ms Chou).

62    With respect to Ground 2, the primary judge accepted that Ms Chou, as the holder of a permanent partner visa, was not under “an obligation to inform the Minister’s Department of changes in her relationship with Mr Benavides” in 2016, nor did an obligation arise from being “the sponsor of Mr Ben” for his visa application (at [35]). Despite this, however, the primary judge held at [35]-[36]:

… The material point here, however, is not the failure to notify changes to circumstances but, rather, the changeability of Ms Chou’s claims about her relationships, depending on her assessments of what best suited her interests. This impacted adversely on her credibility. I accept the Minister’s submissions in that regard.

36.    The reality appears to be that Ms Chou acted too quickly in sponsoring the visa application by Mr Ben. In my view the Tribunal was entitled to reason as it did at [20] of its decision. Read fairly, and in the context of the varying statements made by Ms Chou, the Tribunal did not err in making that adverse credibility finding.

63    With respect to Grounds 3A(a) and (b), the primary judge found at [56] that it was “unnecessary and inappropriate for the Tribunal to accuse Ms Chou of committing an offence under the [BDMR Act]” and at [57] that “it was not for the Tribunal to brand Ms Chou as a criminal. It should not have done so”. The primary judge added at [56] (emphasis added):

… It may be accepted that Ms Chou had a better idea that either Mr Benavides or Mr Ben about the parentage of Sebastian. When Sebastian was born, however, Ms Chou was still married to Mr Benavides and it is unremarkable that Ms Chou chose not to raise the issue of parentage with him at that time. The issue was likely to impact upon their relationship, as indeed it did when it was raised. The suspicions of a mother, however well informed, remain just that in the absence of DNA evidence. Once the results of the DNA test were known, Ms Chou acted promptly to correct the register. If circumstances had been different, and Mr Benavides (rather than Mr Ben) had been willing to accept Sebastian as his son, then it may not have been necessary to alter the register, given the broad legal concept of parentage.

64    However, the primary judge then explained why the AAT’s branding of Ms Chou as a criminal was insufficient to uphold her judicial review challenge. The primary judged reasoned at [57] of his reasons for judgment that the issue for the AAT “was whether Ms Chou had misled the Minister’s Department”, and that “[o]n Ms Chou’s own evidence, the Tribunal was entitled to find” that she had in fact misled the Department in her statutory declaration dated 26 May 2014. In substance, the primary judge found the AAT’s erroneous finding that Ms Chou had committed an offence under s 57 of the BDMR Act as immaterial. Ground 2 of the notice of appeal is directed to the primary judge’s analysis of this matter.

65    The primary judge further concluded at [58] that Ms Chou was not denied procedural fairness, stating (emphasis added):

I accept the Minister’s submissions that Ms Chou was not denied procedural fairness by the Tribunal in relation to this issue. Ms Chou was plainly on notice that the genuineness of her relationship with Mr Benavides was an issue in the review, as was the parentage of Sebastian, and Ms Chou’s own statements concerning that parentage. Ms Chou was given a fair opportunity to deal with that issue. Paragraph [57] of the Tribunal’s reasons is an unfortunate diversion but does not, of itself, invalidate the Tribunal’s decision.

66    It may be interpolated at this stage that, as noted above, [57] of the AAT’s reasons in its first decision did not go to whether Ms Chou had misled the Department. It appears that the primary judge did not consider what effect, if any, the AAT’s finding at [57] that Ms Chou had breached s 57 (and see also [22] and [73]) had on its conclusion (in considering the prescribed circumstances in reg 2.41 of the Migration Regulations as required by s 109(1)(c)), that Ms Chou’s visa should be cancelled in the exercise of the delegate’s discretion under s 109.

67    As to Ground 4, the primary judge noted that it was not in dispute that by operation of s 78(1) of the Migration Act, Sebastian was taken to have been granted a subclass 820 visa because Ms Chou held that type of visa at the time of his birth (at [76]). The primary judge also noted the appellants’ submissions that by reason of reg 2.08 of the Migration Regulations, Sebastian was deemed to have been included in Ms Chou’s pending application for a subclass 801 visa. But for some unexplained reason Sebastian was not granted such a visa when his mother was granted that visa (at [77]).

68    As to the first of the appellants’ two alternative contentions (see [61](d)(i) above), the primary judge applied Jagot J’s statement in Ara v Minister for Immigration and Border Protection [2017] FCA 130 at [7] that “only because” should be “understood to mean that the person holds a visa by reason of another person having held a visa, in the sense that another person holding a visa was, ‘a condition precedent to the grant of the visa’”. The primary judge therefore concluded at [86]:

… The fact that Sebastian only held his subclass 820 visa by operation of s.78, which deemed him to be granted a visa because Ms Chou held a visa, results in a conclusion that Ms Chou’s holding a visa was a “condition precedent” to the grant of Sebastian’s visa. It matters not that Ms Chou was subsequently granted a permanent visa.

69    As to the second proposition (see [61](d)(ii) above), the primary judge found at [87]:

… By reference to the scope and purpose of [s 140(2)], there is not to be read into the provision any qualification or limitation that would prevent the engagement of the power in circumstances where the “first person” held a different visa from the “second person”. As is made clear by the express language in s.140(3), had the Parliament wished to constrain the availability of s.140(2) in the manner contended for by Ms Chou, it could have, and would have, used express language to achieve that end. No error is established.

70    Finally, as to ground 5, the primary judge accepted the Minister’s contention that, if the AAT’s decision with respect to Ms Chou was affected by jurisdictional error, Ms Chou would be entitled to an order remitting the matter to the AAT for reconsideration, but her visa would remain cancelled because the delegate’s cancellation decision remained intact (at [89]). Nevertheless, the primary judge found that “no jurisdictional error having been established in the decision of the Tribunal, the point is moot” (at [90]).

Notice of appeal

71    The appellants advanced the following five grounds of appeal (without alteration):

Grounds of appeal

1.    The Court below erred in failing to find that the Second Respondent (the Tribunal) made a jurisdictional error by:

a.    assessing the First Appellant's credibility on the basis of a material misunderstanding of the applicable law, being an incorrect assumption that the First Appellant had an obligation under the Migration Act 1958 (Cth) (the Act) as a visa sponsor to notify the First Respondent’s department of any change in circumstances concerning her relationship with a visa applicant; or

b.    denying the First Appellant procedural fairness by making a finding based on her failure to notify the First Respondent’s department of a change in circumstances despite informing the First Appellant at the hearing before the Tribunal that it did not take an adverse view of the First Appellant’s compliance with the Act in the period after the grant of her visa [cf Ground 2 in the Court below].

2.    Having correctly found that the Tribunal:

a.    erred in finding that the First Appellant had misled the Registrar of Births, Deaths and Marriages for New South Wales; and

b.    erred in finding that the First Appellant had committed an offence under the Births, Deaths and Marriages Registration Act 1996 (NSW), the Court below erred in failing to find that either or both of these errors caused the Tribunal to make a jurisdictional error [cf Ground 3A in the Court below].

3.    In the alternative to ground 2 above, the Court below erred in failing to give adequate reasons for the rejection of Ground 3A of the Amended Application.

4.    The Court below erred in holding that the Tribunal had power to cancel the Second Appellant’s visa under s 140(2) of the Migration Act 1958 (Cth) [cf Ground 4 in the Court below.]

5.    The Court below erred in failing to hold that, when cancelling the Second Appellant’s visa, the Tribunal fell into jurisdictional error by proceeding on the basis that its earlier decision to affirm the cancellation of the First Appellant’s visa had been made lawfully circumstances where, by reason of grounds 1 and 2 above, that was not the case. [cf Ground 5 in the Court below.]

In both written and oral submissions, the appellants’ counsel, Mr Knowles, acknowledged that Ground 3 “doesn’t really require separate determination because this court is in the same position as the court below to determine the merit of the legal argument [on ground 2]” and had no utility as a separate ground.

72    The appellants sought that the orders below be set aside and also that:

(a)    the application be allowed;

(b)    a writ of certiorari issue to quash the AAT’s decisions;

(c)    a writ of mandamus issue requiring the AAT to reconsider whether Ms Chou’s visa should be cancelled according to law;

(d)    a declaration that Sebastian remains the holder of a visa;

(e)    a writ of mandamus requiring the AAT to reconsider whether Sebastian’s visa should be cancelled according to law; and

(f)    costs of the appeal and of the hearing below.

73    During the course of the oral hearing, the appellants further submitted that if the Court quashed the AAT’s decision with respect to Ms Chou, both appellants were entitled to declaratory relief that they continued to hold their visas. This submission was premised on s 114(1) of the Migration Act, which relevantly provides:

114      Effect of setting aside decision to cancel visa

(1)    If the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.

74    However, in further written submissions filed on 4 June 2021, the appellants conceded that their submission was contrary to previous authority, namely that the AAT, ‘standing in the shoes’ of the delegate in affirming the visa cancellation decision, was not deemed to have made a determination under s 109 of the Migration Act to cancel Ms Chou’s visa. The effect of those authorities was that the AAT’s decisions did not in fact re-exercise the power of the delegate, but rather are “properly characterized as a decision under s 349(2)(a) of the [Migration Act] to affirm the decision of the delegate” (see Szajntop v Gerber (1992) 28 ALD 187 per Hill J; Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587-589 per North J; Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 12 per French J and Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [68] per French, O’Loughlin and Whitlam JJ).

75    As such, s 114 would therefore not be triggered by the quashing of the AAT’s decision with respect to Ms Chou. The appellants conceded that the Court should not make a declaration that Ms Chou continues to hold a visa if it were to find jurisdictional error in the AAT’s first decision.

76    However, the appellants maintained their position that Sebastian was entitled to mandamus or declaratory relief if the Court were to uphold ground 4 of the appeal. This is because if the AAT did not have the power to cancel Sebastian’s visa under s 140(2), in circumstances where it is was agreed that neither s 140(1) nor s 140(3) applied, the AAT could have only lawfully arrived at one conclusion: the delegate’s cancellation decision must be set aside. In those circumstances, it was open to the Court to grant declaratory relief, or alternatively to frame an order for mandamus directing the AAT to arrive at a specific result (citing Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [77] per Gaudron, Gummow and Callinan JJ; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 187-188 per Kitto J; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 536-537 per Sheppard J and Comptroller-General of Customs v ACI PET Operations Pty Ltd (1994) 49 FCR 56 at 81-82 per Beaumont, French and Drummond JJ).

Minister’s pleading objections

77    In his further submissions dated 4 June 2021 and further submissions in reply dated 28 June 2021, the Minister claimed that the appellants required leave to rely on grounds 1 and 2 of the notice of appeal on the basis that those grounds were new. For the following reasons, we do not consider that leave is required. In any event, if it is required, it should be granted.

78    First, as to ground 1, we consider that it reflects ground 2 of the amended application run below. This is reflected at [20] of the appellant’s written submissions below, where it was contended that the AAT had misunderstood the first appellant’s legal obligations and that the error was material because it supported the AAT’s overall adverse credit finding.

79    Furthermore, if contrary to the above, leave is required, it should be granted because:

(a)    the issues raised by ground 1 are questions of law;

(b)    no prejudice is claimed by the Minister; and

(c)    the issues raised are reasonably arguable.

80    Secondly, as to ground 2, the Minister’s procedural objection appears to relate to the following three propositions advanced by the appellants, which the Minister contends depart from how the case was run below:

(a)    the AAT effectively found that it was likely that Mr Benavides knew that he was not the biological parent of Sebastian at the time his birth was registered;

(b)    the AAT misconstrued the BDMR Act because it understood “parent” to mean only a biological parent and excluded the possibility that Mr Benavides may have been a non-biological parent; and

(c)    even if Mr Benavides did not know that he was not the biological father at the time Sebastian’s birth was registered, he was still the parent at that time.

81    Addressing the objection relating to (b) first, it has no substance when regard is had to the particulars to ground 3A of the amended application below, which stated that Ms Chou was denied the opportunity to present arguments to the effect that “parent” within the BDMR Act did not mean biological parent.

82    As to the objections to (a) and (c), having regard to extracts from the transcript below (at T12.4-13.4 and T29.19-41), we are satisfied that the issues in both (a) and (c) were agitated below. The transcript extracts, which relate to exchanges between the primary judge and the appellants’ counsel, reveal that the appellants were contending that the AAT had erred because it had made a finding that Mr Benavides would have been aware that he was not Sebastian’s biological parent but that a husband could still be a non-biological parent in the event of a child being born as the result of an undisclosed extra-marital affair by the child’s mother.

83    As the appellants point out, it appears that, strictly speaking, the Minister did not expressly contend that leave was required for ground 2. Assuming, however, that that is the Minister’s position, we would grant leave for similar reasons to those expressed above in relation to ground 1.

Amended notice of contention

84    Shortly before the hearing, the Minister filed a notice of contention. This was followed by a proposed amended notice of contention which was handed up to the Court at the start of the hearing on 6 May 2021. The appellants initially opposed the filing of the proposed amended notice of contention, noting that the Minister had provided no explanation for why the original notice of contention had been served nearly 18 months out of time, and that the appellants had had no opportunity to reply with written submissions. Noting this concern, the Court granted leave for the Minister to rely upon the amended notice of contention, but reserved the appellants’ right to seek an opportunity to provide any brief supplementary submissions.

85    The amended notice of contention advanced two additional grounds upon which the AAT’s reasons in its first decision concerning Ms Chou’s breach of s 57 of the BDMR Act should have been upheld by the primary judge, namely (without alteration):

1.    The primary judge should have held that the Tribunal did not err in finding that the First Appellant had breached of section 57 of the Births, Deaths and Marriages Registration Act 1996 (NSW) (BDMR Act).

2.    The primary judge ought to have found that the evidence before the Tribunal was that:

(a)    the Registrar acted pursuant to section 18(a) of the BDMR Act and and not on the basis of any (rebuttable) presumption under subsection 18(f) such as that arising under section 9 of the Status of Children Act 1996 (NSW); and

(b)     the First Appellant had conceded her wrong doing and she knew that it was false to assert to the Registrar that her Australian husband was the father of her child because she knew he was neither the biological father nor a man who had agreed to become a father to a non-biological child.

86    These grounds evidently relate to ground 2 and 3 of the appellants’ notice of appeal and they are all addressed together in these reasons for judgment.

Consideration and determination

87    We will now explain why ground 2 of the notice of appeal should be upheld (which makes it unnecessary to determine ground 3) and why the balance of the notice of appeal (apart from ground 5) should be dismissed, as also should be the Minister’s amended notice of contention.

88    It is convenient to first address ground 2 of the notice of appeal and the Minister’s amended notice of contention.

Grounds 2 (and 3) and the amended notice of contention

89    Before explaining why the AAT’s finding that Ms Chou had breached s 57 of the BDMR Act and committed an offence involved a legal error, it is first appropriate to deal with why we reject the Minister’s contention that even if such an error was established, it is not material and therefore could not amount to jurisdictional error.

90    This contention must be rejected having regard to the fact that s 109(1)(c) of the Migration Act mandates that the AAT, in deciding whether or not to affirm the delegate’s cancellation decision, must have regard to “any prescribed circumstances”. Pursuant to reg 2.41(j) of the Migration Regulations, one of those prescribed circumstances is whether Ms Chou had committed “any breaches of the law since the non-compliance and the seriousness of those breaches”. It was in the context of considering this prescribed circumstance, which may aptly be described as a mandatory relevant consideration (see Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [57] per Stone, Foster and Nicholas JJ), in which the AAT found that Ms Chou had breached s 57 of the BDMR Act.

91    Furthermore, this finding was also expressly relied upon by the AAT explaining why it exercised the discretion to cancel Ms Chou’s visa. After stating that it had “considered the totality of the applicant’s circumstances”, the AAT noted at [73] that it had “formed the view that the applicant breached the law by providing false information in relation to the child’s birth certificate”.

92    Finally, this finding also evidently influenced the AAT’s adverse credibility findings against Ms Chou. As the AAT’s reasons at [22] reveal (see [55] above), the finding that Ms Chou had provided “false information” to the Registrar was another factor which led to a finding she was not a person of credibility. This finding provided part of the basis for the AAT’s adverse conclusion regarding Ms Chou’s credibility. A different conclusion could have been made in the absence of such a finding. This is sufficient to demonstrate the materiality of the AAT’s error and constitute a jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [48]-[49] per Bell, Gageler and Keane JJ and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [3] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ).

93    For the following reasons, we find that the primary judge erred in not finding that the AAT committed a jurisdictional error in concluding that Ms Chou had breached s 57 of the BDMR Act and committed an offence. Accordingly, ground 2 of the notice of appeal should be upheld and ground 1 of the amended notice of contention dismissed.

94    First, the AAT erred in finding that the meaning of “parent” in s 15 of the BDMR Act was confined to “biological parent”. The meaning of “parent” is obviously critical to any consideration of whether a person breached s 57 of the BDMR Act. The Minister conceded before the primary judge that the AAT’s assumption that the meaning of “parent” in the BDMR Act was limited to “biological parent” was incorrect. However, as discussed below, the Minister on appeal seeks to advance that in the circumstances of this case, Mr Benavides was not Sebastian’s “parent” at law at the time of the registration of his birth.

95    The concept of “parent” is undefined in the BDMR Act. As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term “parent” are not ordinarily limited to a biological parent (Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [47]-[49] per Moore, Kenny and Tracey JJ; In re G (Children) [2006] UKHL 43; 4 All ER 241at [33]-[37] per Hale LJ). Referring to Baroness Hale of Richmond’s observations In re G (Children), the plurality in Masson stated at [29] as to the meaning of “parent” under Div 2 of Pt VII of the Family Law Act 1975 (Cth):

… according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.

96    Similar remarks were made by the Full Court in H v Minister, which concerned two appeals which raised the issue of whether “parent” in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to “biological parent”. As to the ordinary meaning of the word “parent”, the Full Court remarked at [48]:

While often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.

97    At [130], the Full Court made the following observations concerning the AAT’s statutory task under the Australian Citizenship Act:

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 (emphasis added).

98    With these observations in mind (while also being mindful of the dangers of transposing the construction given to a particular term in different statutory contexts), it is apt to note immediately that there is nothing in the terms, context or purpose of the BDMR Act which suggests that the meaning of parent is confined to “biological parent”. No definition of “parent” is provided in either the BDMR Act or BDMR Regulations. It can therefore be assumed that the NSW Parliament intended for “parent” to be given its ordinary meaning (see Masson at [26] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ and the cases cited therein). As the above-mentioned caselaw demonstrates, in other statutory contexts, the ordinary meaning of “parent” is not limited to “biological parent”. The relevant issue is whether there is anything in the terms, context or purpose of the BDMR Act or BDMR Regulations which justify a different construction.

99    The construction of “parent” as not being confined to “biological parent” is supported by the legislative history of the BDMR Act and BDMR Regulations. In 2008, the NSW Parliament introduced the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) (SSR Act). The long title to the SSR Act provided that it was “[a]n Act to amend various Acts and instruments to make further provision in relation to same sex and other de facto relationships”.

100    Prior to the Same Sex Relationships Act, critical provisions of the BDMR Act and BDMR Regulations (then the Birth, Deaths and Marriages Regulation 2006 (NSW)) which are to be construed in this proceeding made reference to “father” and “mother”. For example, s 18(a) of the BDMR Act provided that registrable information about the identity of a child’s parent could only be included in the Register upon “the father and mother of the child making a joint application”. Regulation 5(d)-(g) of the BDMR Regulations also provided for the registration of details concerning the “father” and “mother” of the child. Schedule 3 of the SSR Act amended such provisions to make reference instead to “parent” (see current s 18(a) and reg 5(d)). This indicates that the term was intended to have a broader operation than ‘biological father’ and ‘biological mother’.

101    Furthermore, the SSR Act inserted s 17 of Sch 1 of the BDMR Act and reg 5(3) of the BDMR Regulations (which is extracted at [40] above). Section 17 of Sch 1 makes provision for a woman who is the non-biological parent of a child born before the SSR Act was enacted, who is presumed to be a parent under the Status of Children Act, to make an application for the addition of registrable information as to their identity as a parent on the Register. Regulation 5(3) makes provision for a parent who is the “father” of a child, or a parent who is the “birth mother” of the child, to be identified as the “father” or “mother” upon the Register. The inclusion of these provisions serves to emphasise that the meaning of “parent” within this particular legislative scheme is not intended to be synonymous with “father” or “mother”, nor ‘biological father’ or ‘biological mother’.

102    Indeed, with reference to the presumptions of parentage in the Status of Children Act, it is not difficult to conceive of circumstances in which a non-biological parent of a child could be held to be responsible under s 15 for the registration of their birth as a “parent”, and therefore would also be included as a “parent” in the particulars provided to the Registrar under reg 5(1)(d) of the Migration Regulations. For example, a couple may use donor sperm through artificial insemination to conceive a child. On the birth of that child, a partner who was not pregnant with the child could, under s 15, be held jointly responsible as a “parent” to register the birth of that child (and indeed an irrebuttable presumption arises against the sperm donor being the father of that child (s 14(3) and (4) of the Status of Children Act)).

103    While this example is far removed from the circumstances here, it is apt to demonstrate that even though Mr Benavides was not the “biological parent” of the child, he nevertheless could have been responsible for registering the child’s birth as a “parent” under s 15. As the primary judge noted at [56], the AAT failed to have regard to this “broad legal concept of parentage” in reaching its conclusion that Ms Chou had breached s 57 of the BDMR Act by nominating Mr Benavides as the father of Sebastian on their joint application for a birth certificate. The AAT did not engage in a process of reasoning as to whether Mr Benavides was a “parent” of Sebastian at the time Ms Chou gave notice to the Registrar of his birth as a “question of fact and degree … determined according to the ordinary, contemporary Australia understanding of “parent” and the relevant circumstances of the case at hand” (Masson at [29]).

104    Secondly, we reject the Minister’s contention that the concept of parentage, as a matter of law, can never extend to a situation where a person is misled as to their status as a biological parent. As the authorities make clear, both the meaning of the ordinary meaning of the word “parent”, and whether a person qualifies as a “parent” are questions which fall to be determined in the “circumstances of the particular case” (Masson at [29]; In re G (Children) at [33] per Hale LJ; H v Minister at [130] per Moore, Kenny and Tracey JJ). The categories of cases in which a person may be held to be a parent are not closed, nor could they be, given the continuing evolution of the concepts of parents and families in Australia’s modern society.

105    The Minister’s reliance on Magill v Magill [2006] HCA 51; 226 CLR 551 and s 66X of the Family Law Act in support of his preferred construction cannot be sustained.

106    In Magill, the High Court considered whether the common law tort of deceit could be maintained by a husband who had been deceived as to being the biological father of two children born to his wife during the period of their marriage. In holding that the elements of the tort of deceit were not made out, the High Court made a number of observations about the operation of certain legislative schemes concerning parental and family obligations.

107    None of the passages relied upon by the Minister (see [5], [23]-[24] per Gleeson CJ and [66]-[67], [106]-[110] per Gummow, Kirby and Crennan JJ) supports the proposition that a non-biological parent of a child could never be a “parent” in the ordinary meaning of the word. At most, they confirm that under particular legislative schemes, such as 143(1) of the Child Support (Assessment) Act 1989 (Cth) or s 66X of the Family Law Act, a parent may recover amounts paid under maintenance orders or child support arrangements where no liability for such payments existed.

108    Particular emphasis was made by the Minister to references in Magill to s 66X of the Family Law Act. As the Explanatory Memorandum to the Family Law Amendment Bill 2005 (Cth) (which inserted s 66X with effect from 3 August 2005) explained, s 66X intended to enable recovery of payments “where a court determines that a party to a child maintenance order is found not to have been a parent”. It can be accepted this included, as the second reading speech to the Family Law Amendment Bill 2005 (Cth) stated, “a right for persons who are determined not to be a parent of a child, through DNA testing or by others means, to recover any monies paid or property transferred for the benefit of that child under maintenance orders” (Commonwealth, Parliamentary Debates, Senate, 16 March 2005, 3 (Christopher Ellison, Minister for Justice and Customs)). However, the fact that a person may recover in such a circumstance does not stand for the proposition that, under an entirely different legislative scheme in the BDMR Act, a “parent” mistaken as to being the biological parent of their child can never be their parent.

109    Thirdly, we agree with the primary judge’s conclusion at [56] that in different circumstances, namely that Mr Benavides had been willing to accept Sebastian as his son, then it may not have been necessary to alter the Register as to the Sebastian’s parentage. If this had occurred, and Ms Chou had never informed Mr Ben of her suspicions as to Sebastian’s biological parentage nor taken a DNA test, then it is at least arguable that Mr Benavides would have been Sebastian’s parent at law until or unless proven otherwise, regardless of Mr Benavides’ attitude to being the parent of a non-biological child. In this respect, the AAT failed to have regard to statutory presumption of parentage arising from s 9 of the Status of Children Act, which presumed Mr Benavides to be the father of Sebastian at the time of his birth (see also Magill at [105]-[108] per Gummow, Kirby and Crennan JJ).

110    A corollary of this conclusion is that even if it was proved Ms Chou did know for certain, through a DNA test or otherwise, that Mr Ben was the biological parent of her unborn child, unless the evidence also established with certainty that Mr Benavides would not accept the child as his own if he knew it was not his biological child, then Ms Chou cannot be said to have provided a false or misleading representation to the Registrar.

111    Indeed, with reference to the policy objectives of the Family Law Act, Gleeson CJ in Magill recognised that in Australian law, there is no general legal duty to disclose infidelity, including the biological parentage of children resulting from infidelity (at [35], see also at [130] per Gummow, Kirby and Crennan JJ):

One of the obvious difficulties about the topic of paternity, or the wider topic of sexual infidelity (a difficulty that is not peculiar to those topics) is the danger of creating something very close to a legal duty to disclose facts in circumstances where there could be a serious question about the existence of a corresponding ethical obligation. With hindsight, we know that the marriage of the parties to the present proceedings later broke down. Suppose it had not broken down. Suppose that, partly in consequence of the respondent’s failure to disclose her infidelity, the marriage had remained intact. Would the respondent at some point have been under an obligation to reveal the truth? It may be one thing to say that, when the respondent claimed that the appellant was legally bound to make child support payments, she ought to have told him that he was not the father of two of her three children. Yet the appellant’s case implies that, when she handed him the notification of birth forms to sign, at a time when the marriage was intact, she had a duty to tell him. The Family Law Act declares the need to preserve and protect the institution of marriage. That is a legislative expression of public policy. The imposition of a legal duty of disclosure of infidelity would, in the practical circumstances of many cases, be contrary to that policy. There is no foundation, either in principle or authority, for the recognition of a general duty of that kind. That, however, is not to deny that such a duty could exist in particular circumstances.

Without a legal duty to inform Mr Benavides of her infidelity, nor her suspicions about the biological parentage of Sebastian, it is very difficult to see how Ms Chou could have provided a false or misleading representation to the Registrar unless and until Mr Benavides was aware of such suspicions and decided he did not want to be Sebastian’s parent.

112    Fourthly, and related to the third point, the AAT did not make a finding as to whether Mr Benavides was actually misled when he consented to being named as a parent on the information provided to the Registrar. As Ms Chou submits, without first considering this issue, it was not open to the AAT to find that she had committed an offence by misleading the Registrar.

113    At the highest, the AAT found at [11], in dismissing Ms Chou’s version of events, that given Ms Chou’s earlier statements that she knew Mr Benavides was not the father because they did not have sexual relations at the relevant time, this “should have been equally obvious to the sponsor”. On one view, this could be seen as a finding that Mr Benavides knew or suspected the true position as to Sebastian’s biological parentage. If this view is taken, then Ms Chou cannot be said to have misled the Registrar, as Mr Benavides knew, or at least suspected, he was not the biological father, but signed the registration application anyway as a “parent” of Sebastian. On the other view, this finding was confined to addressing the counterfactual that claims made by Ms Chou’s statutory declaration in support of Mr Ben’s visa application were true (which the AAT rejected). If this view is taken, than the AAT failed to make a finding as to whether Mr Benavides was misled or not.

114    Regardless of which view is taken of [11], it merely highlights that the AAT approached its consideration of whether Ms Chou breached s 57 of the BDMR Act on an incorrect understanding of the law, which error was material in the relevant sense described in the caselaw above, and amounted to jurisdictional error (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [68] per Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288; 159 ALD 199 at [69] per Griffiths J). Accordingly, ground 2 of the notice of appeal should be upheld (which renders it unnecessary to determine ground 3, which focuses upon the adequacy of the AAT’s reasons but that falls away where those reasons are directed to a legally erroneous matter). Another necessary consequence of upholding ground 2 of the notice of appeal is that ground 1 of the amended notice of contention must be dismissed.

Ground 2 of the amended notice of contention

115    It is now appropriate to address ground 2 of the Minister’s amended notice of contention, extracted at [85] above. This ground has two parts. The first relates to the question whether, in registering Sebastian’s birth, the Registrar acted under s 18(a) of the BDMR Act and not under s 18(f). The second part relates to the issue whether Ms Chou conceded her wrongdoing in falsely asserting that Mr Benavides was Sebastian’s father.

116    The first limb of ground 2 of the amended notice of contention should be accepted (as was conceded at [23] of Ms Chou’s further written submissions in reply dated 21 June 2021). While no application form or otherwise through which Sebastian’s birth was registered was in evidence before the AAT, the overwhelming inference to be drawn from the statutory declarations made by Ms Chou, which were in evidence, was that Ms Chou and Mr Benavides prepared and signed a joint application for the registration of Sebastian’s birth. Therefore, the primary judge should have concluded that the evidence before the AAT was that the registrable information on the Register underlying Sebastian’s birth certificate derived from a joint application for the inclusion of that information under s 18(a) of the BDMR Act, not any presumption as to the identity of the child’s parents. That does not mean, however, that the amended notice of contention succeeds. For that to occur, the Minister must also establish the second limb of ground 2 which, for reasons we will now provide, he failed to do.

117    It cannot fairly be stated that Ms Chou “conceded” that she breached s 57 of the BDMR Act. In her statutory declaration dated 31 January 2018, Ms Chou stated at [42]:

I also know that I had let [Mr Benavides] sign off on Sebastian’s birth certificate as his biological father. I know this was wrong but I felt like I could not tell [Mr Benavides] the truth like this …

This statement demonstrates that Ms Chou was under a misapprehension that the concept of parent for the purposes of registration of the child’s birth was limited to “biological parent”. This misapprehension must have been influenced, at least in part, by statements made by the AAT during the course of the oral hearing on 18 January 2018. The following extract from the hearing for the AAT is instructive (emphasis added):

MS RAIF: So your son was born I think in August 2014. When did you register the birth? When did you get his birth certificate?

INTERPRETER: The first was when I left the hospital they give some paper and then my husband apply or do all the paperwork for me to give the first birth certificate about one month later.

MS RAIF: So by September the father fortunately had a birth certificate. What father did it identify?

MS CHOU: It said my first husband (indistinct)

MS RAIF: So you would have known though that he wasn’t the father of the child. Why would you not specify the correct father on the birth certificate?

MS CHOU: Because we wanted to stay together and we want him or want other people to know that this child is our child.

MS RAIF: So you have given false information to an Australian government agency, whichever agency registers the birth of your child, because you thought was better for your family circumstances.

INTERPRETER: I didn't feel like this is a lie at all because I feel like by doing this it’s so that we are staying together.

MS RAIF: Ms Chou, it's not about how you're feeling, it's about the truthful information you are giving to a government agency and the information that you gave you knew wasn’t the truth.

INTERPRETER: Because at that time my husband not even know that the child is not his and, you know, we are still very happily living together. How can I tell him that this child is not his?

MS RAIF: Ms Chou, I’m not at the moment concerned about you being untruthful with your husband. I am concerned though about you being untruthful with the agency registering the birth of the child.

INTERPRETER: I didn’t know that I happen to do that because so far I’m living with my husband so the child has to be the name of my husband.

MS RAIF: I don’t think you didn’t know that you have to provide truthful information. So if you have deliberately provided false information to that agency, how can I be satisfied that any information you are giving in relation to this process is truthful?

INTERPRETER: I never didn't (indistinct) telling the truth. Because my husband did all the paperwork by himself and my husband didn’t know that the child is not his child.

MS RAIF: I presume you had to sign some paperwork as well. It's not just about your husband. It's about your information as well as your husband's information.

INTERPRETER: Yes, I know. Because even though we have been together, everything, and you will think that, I never thought that we will separate together. We always think that we will continue our relationship as a family, as a husband and wife, as a father and mother.

118    The question by the AAT Member “[s]o you would have known though that he wasn’t the father of the child. Why would you not specify the correct father on the birth certificate?” clearly put to Ms Chou that the only correct “father” on the birth certificate could have been Mr Ben, the biological father. This is the proper context which to assess whether Ms Chou made a “concession” in her statutory declaration dated 31 January 2018, which post-dated the AAT hearing.

119    Finally, we accept Ms Chou’s submission that it is not to the point as to whether she felt she was subjectively making a false representation, nor that she had not disclosed her suspicions to Mr Ben. Section 57 of the BDMR Act imposes an objective test: did Ms Chou knowingly make an objectively false or misleading representation in providing the required particulars under s 15?

120    That question is not for this Court to answer on a judicial review application.

The Minister’s broader claims of immateriality

121    We have explained above why we consider that the primary judge erred in not finding that the AAT fell into jurisdictional error in finding that Ms Chou had breached s 57 of the BDMR Act and committed a criminal offence.

122    We shall now explain why we reject the Minister’s broader submission, which was to the effect that any of the alleged errors by the AAT were not material because of the so-called “irrefutable facts” which the Minister claimed demonstrated that Ms Chou had not complied with ss 101(b) and 104 of the Migration Act.

123    These so-called “irrefutable facts” can be summarised as follows:

(a)    Ms Chou was unfaithful to Mr Benavides in December 2013.

(b)    Mr Benavides did not wish to be in a relationship with an unfaithful wife and did not wish to be the father of a non-biological son.

(c)    By reason of (b), the only reason Ms Chou’s marriage to Mr Benavides did not end in December 2013 or February 2014 when she realised she was pregnant was because she had “deceived” her husband.

(d)    Ms Chou’s statutory declaration on 26 May 2014 was false and Ms Chou knew that it was false.

(e)    Ms Chou put Mr Benavides’ name on the birth certificate of Sebastian “as part of her ongoing deception”.

(f)    Two or three months after obtaining a permanent visa, Ms Chou told Mr Benavides “the truth” and shortly after their marriage ended.

124    Even assuming all of these “irrefutable facts” to be true, this contention misconceives the delegate’s power to cancel a visa based on incorrect information under s 109. As the terms of ss 107, 108 and 109(1) make clear, a cancellation decision involves a two-step process, namely:

(a)    after issuing the visaholder with a notice and receiving any written response, the delegate must decide whether the visaholder did not comply with ss 101, 102, 103, 104 or 105 of the Migration Act (see s 107(1) and s 108(b)); and

(b)    having so decided, the delegate is then vested with a discretion to cancel a visa, after considering any response to the notice about the non-compliance and importantly, having regard to “any prescribed circumstances” as set out in reg 2.41 of the Migration Regulations.

125    Thus, the contention that the above “irrefutable facts” make all the alleged errors in the grounds of appeal immaterial cannot be accepted. The AAT, ‘standing in the shoes’ of the delegate, was vested with a discretion whether or not to affirm the cancellation of Ms Chou’s visa, even if it found there had been a non-compliance with ss 101(b) or 104. Furthermore, in exercising that discretion, it was under a duty to consider the prescribed circumstances in reg 2.41, including with regard to the submissions and evidence provided by Ms Chou in response to the NOICC.

126    For these reasons, ground 2 of the notice of appeal should be upheld, and the Minister’s amended notice of contention should be dismissed.

127    As previously explained, having regard to the success of ground 2, it is unnecessary to determine ground 3 of the notice of appeal.

128    We will now explain why the remaining grounds of appeal, apart from ground 5, are rejected.

Ground 1(a)

129    It is common ground that as the primary judge held, Ms Chou was not under a legal obligation to inform the Department about a change in circumstances concerning her relationship with Mr Ben. Therefore, for Ms Chou to be successful on ground 1(a) of the notice of appeal, it is necessary for her to show that:

(a)    the concluding sentence of [20] of the AAT’s reasons for its first decision should be read as disclosing a legal error, namely that it found that Ms Chou was under an obligation to notify the Department of her deteriorating relationship with Mr Ben in late 2016; and

(b)    if that error is established, it was “material” to the AAT’s adverse credibility findings against Ms Chou, give rising to jurisdictional error.

130    The AAT’s reasons at [20] are extracted at [53] above. The critical sentence reads:

The Tribunal finds that on the applicant’s own evidence, she was willing to provide false or misleading information to the Department, and not inform the Department about significant changes in the circumstances, when she believed it better suited her circumstances.

131    As previously noted, [20] formed part of the AAT’s third reason for rejecting Ms Chou’s version of events as “utterly unconvincing”, namely that she was “not a person of credibility” (at [18]). As [18]-[20] of the AAT’s reasons make clear, this finding was based partly on Ms Chou’s changing evidence to both the Department and the AAT concerning her relationship with Mr Ben. The AAT’s reasons at [20] in particular sought to highlight that Ms Chou had never “informed the Department about these changes”.

132    The Minister’s contention that the AAT’s conclusion at [20] did not involve a finding that Ms Chou had a legal obligation to inform the Department about her deteriorating relationship with Mr Ben, but rather was a “broad evaluation” which “encompasses conduct discussed in earlier paragraphs where she had certain legal obligations”, should be accepted. It is supported by the transcript of the AAT hearing, where the AAT Member expressly stated that “after your visa has been granted, you no longer really have any obligations under this provision”, referring to s 104. It is evident from this statement that the Member correctly understood the nature and effect of the obligation imposed by s 104. Although it would be wrong to give primacy to what is recorded in the transcript over what is stated in the reasons for decision (see, for example, WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; 233 FCR 534), this transcript reference simply reinforces what otherwise would be a fair and reasonable reading of [20] of the AAT’s reasons for decision.

133    Fairly read, [20] of the AAT’s reasons for decision do not form part of its reasoning in relation to the issue of the exercise of discretion.

Ground 1(b)

134    Ms Chou’s alternative argument that she was denied procedural fairness in breach of s 360 of the Migration Act must necessarily fail having regard to our rejection of her preferred reading of [20] of the AAT’s reasons for decision.

Ground 4

135    Under ground 4 of the notice of appeal, Sebastian argued that the primary judge erred in finding that the AAT did have the power to cancel his visa under s 140(2) of the Migration Act. This argument is premised on the contention that as s 140(3) of the Migration Act provided a specific mechanism through which visas reliant upon the statutory presumption in s 78 were to be cancelled with certain express limitations, the more general power in s 140(2) was not available to the AAT, relying upon cases such as Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 at [7] per Gavan Duffy CJ and Dixon J and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [59] per Gaudron and Gummow JJ. For the following reasons, this ground of appeal is rejected.

136    First, there is nothing in the statutory scheme of s 140 of the Migration Act which would suggest that s 140(3) intended to limit the availability of s 140(2) in the way contended for by Sebastian. Sections 140(1), (2) and (3) provide three distinct circumstances in which the cancellation of a visa may result in the cancellation of another visa. Sections 140(1) and (3) are mandatory cancellation provisions, which deal with situations where a person’s visa is dependent on being a member of the family unit, or by the operation of s 78, on the cancelled visa. Section 140(2), in contrast, provides a discretionary power to the Minister to cancel a person’s visa if the statutory criteria that the “person holds a visa only because the person whose visa is cancelled held a visa”. Sebastian no longer contends that the statutory criteria for the exercise of power under s 140(2) were not met, as held to the contrary by the primary judge at [86].

137    It is evident that each of these provisions was intended to deal with different statutory circumstances. As such, it is inappropriate to describe s 140(2) as a “general provision”, while describing s 140(3) as a more “specific provision”. It is also incorrect to describe the requirement under s 140(3) that the cancelled visa must be the visa held by the parent at the time of birth as an “express limitation” on when the visa granted by operation of s 78 of the Migration Act may be cancelled. Rather, this is a defined circumstance in which that person’s visa must be cancelled, while s 140(2) provides the Minister with a discretion to cancel where the statutory criteria are met. As such, the primary judge was correct to hold at [87] that it was inappropriate to restrain the operation of s 140(2) by reference to s 140(3), and if the Parliament had intended such an outcome, it could have used “express language to achieve that end”.

138    Secondly, the Anthony Hordern principle relied upon by Sebastian is not applicable to the present circumstances. It can be accepted that both s 140(2) and 140(3) deal with the same subject-matter, namely the cancellation of one person’s visa subsequent to cancellation of another person’s visa. However, as stated by Gaudron and Gummow JJ in Nystrom at [59]:

… what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

139    The circumstances of this case do not fall within the scope of this statement for two reasons. First, s 140(3) is not a “power” in the relevant sense. The use of “must” demonstrates that the AAT was under an obligation to cancel Sebastian’s visa if s 140(3) applied, it did not have a “power” to do so. Second, and fatally to Sebastian’s argument, is that he accepts that a “statutory pre-condition” for s 140(3) to be engaged had not been established: namely Ms Chou’s cancelled visa was not the same visa held by Sebastian at birth by operation of s 78. As stated above, this statutory pre-condition is not adequately framed as a “restriction or condition” in the Anthony Hordern sense. Therefore, it is not “necessary” to confine s 140(2) by reference to s 140(3), as s 140(3) was not applicable to Sebastian’s circumstances in this case.

140    No appealable error has been established in the primary judge’s reasons for holding that, independently of the question of the validity of the AAT’s first decision, the AAT had the power to cancel Sebastian’s visa under s 140(2) of the Migration Act. Accordingly, issues regarding the grant of relief in the form of mandamus or a declaration arising from the determination of ground 4 need not be determined.

Ground 5

141    The substance of the argument concerning ground 5 relates to what is the appropriate relief with respect to the AAT’s second decision concerning Sebastian if the AAT’s first decision concerning Ms Chou is set aside on the basis of jurisdictional error. This ground raises a different argument to that raised by ground 4.

142    The Minister contended that the cancellation of Ms Chou’s visa by the delegate, which underpinned the decision in relation to Sebastian, remained in force unless and until set aside by the AAT. Therefore the AAT’s second decision concerning Sebastian should not be quashed if the AAT’s first decision concerning Ms Chou was set aside. This submission is not to be accepted.

143    As the appellants contended in their supplementary submissions in reply dated 29 June 2021, from 8 February 2018 (when the AAT affirmed the delegate’s cancellation decision in respect of Ms Chou), the delegate’s decision had no independent continuing operation, nor did the AAT’s order affirming that decision give the delegate’s decision continuing legal operation (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [70] per Gageler, Keane and Nettle JJ). Contrary to the Minister’s submission, the AAT’s second decision was not “underpinned” by the delegate’s earlier decision to cancel Ms Chou’s visa. The true position is that the AAT’s second decision depended for its validity upon the validity of its first decision (which affirmed the cancellation of Ms Chou’s visa). It necessarily follows that because that first decision was affected by jurisdictional error and is invalid (contrary to the primary judge’s conclusion), the AAT’s second decision is affected by the same error and must be set aside as invalid. Ground 5 is accordingly upheld.

Conclusion and appropriate relief

144    For these reasons, the appeal should be allowed, with costs. The orders of the Federal Circuit Court made on 8 November 2019 should be set aside. Subject to either party seeking to have the matter relisted, the Minister should pay the appellants’ costs of and incidental to the proceeding below, as well as the appeal. The AAT’s decisions dated 8 February 2018 and 9 March 2018 should be set aside. Ms Chou’s and Sebastian’s applications for review should be remitted to the AAT for reconsideration according to law. It is a matter for the President of the AAT, informed by these reasons for judgment, to determine whether the AAT should be constituted differently for the purposes of the reconsideration.

145    The Court would like to express its gratitude to Mr Knowles who nobly agreed to accept a referral under r 4.12 of the 2011 FCRs.

Associate:

Dated:    29 July 2021

REASONS FOR JUDGMENT

LEE J:

146    I have had the considerable benefit of reading the reasons of Griffiths and Abraham JJ in draft and I agree with the orders proposed and with their Honour’s reasons.

147    I would only add two observations (adopting their Honour’s abbreviations).

148    The first relates to what Griffiths and Abraham JJ have noted at [104]. Although authority requires the conclusion that the categories of cases in which a person may be considered to be a parent can “evolve” in line with societal changes, I would echo what was said by Lord Hope of Craighead in his speech in Re R (IVF: Paternity of Child) [2005] UKHL 33; [2005] 2 AC 621 (at 632 [6]) (notionally replacing the word “father” for “parent”):

The conferring of the status of father on a man who is not related to the child by blood or by marriage to the child’s mother is a very serious matter ... It affects not only the relationship between father and the child but also the relationships between the child and the whole of the father’s family. It has other important consequences. The law of succession confers entitlement to participate in the father’s estate, and there may be a dependent claim against the tortfeasor in the event of the father’s death due to negligence. The question whether a man is the child’s father has a special significance during the child’s minority, but the law of succession may require it to be answered much later in life. In keeping with other family relationships, it will have a vital and long lasting part to play throughout the child’s lifetime.

149    Law and society have always attached a special significance to a person’s status as a parent and although it appears the status can “evolve”, it cannot be a conception that is so elastic or lacking in limits that the significance of its conferral is diminished.

150    The second is that although the characterisation exercise to be undertaken according to contemporary understanding may not be attended by bright lines at the margins, this is not such a circumstance. As Griffiths and Abraham JJ point out, s 9(1) of the Status of Children Act provides that “a child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her spouse”. This presumption is a reflection of the accumulated experience of the common law. Indeed, at common law, the presumption of legitimacy was so strong that for the presumption to be displaced, rebuttal evidence was required meeting a standard of persuasion more fit for criminal than civil proceedings: Cocks v Juncken (1947) 74 CLR 277 (at 304 per Dixon J); see also Connolly v Connolly (No 2) [1967] 1 NSWR 8 (Taylor J); In the Marriage of J and P (1985) 80 FLR 126 (at 130 per Treyvaud J); P v T (1980) 23 SASR 289 (at 294 per Cox J); W v C (1981) 28 SASR 130 (at 132 per White J), affirmed on appeal in W v C (1982) 29 SASR 345 (at 347 per Sangster J, with whom King CJ and Mohr J agreed).

151    At the time of the representation said by the AAT to amount to criminal conduct, there was no legal duty to disclose infidelity, and the objective characterisation of the nature of the representation is required to take into account that the child was presumed at law to be that of Mr Benavides. Ms Chou may have later reflected and thought it was wrong to make the representation she did, but that did not render her earlier conduct in contravention of a criminal norm. Assessed objectively, the notion of “parent” clearly encompassed Mr Benavides, being a husband during a subsisting marriage (even if he was a husband misled by his wife as to the paternity of a child conceived and born during wedlock). This error has the legal consequences that Griffiths and Abraham JJ have explained.

Associate:

Dated:    29 July 2021