Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    The primary judge’s orders and reasons concern a decision made by a delegate under s 37 of the Australian Citizenship Act 2007 (Cth) that a young child, Charlotte An Nguyen Lieu, is not eligible to be given evidence that she is an Australian citizen. In substance, if not in legal effect, that means that Charlotte was not considered by the delegate of the appellant to be an Australian citizen under s 12 of the Act, and was and remains denied the ability to enjoy any of the benefits of Australian citizenship.

2    Charlotte’s mother, Ms Oanh Thi Nguyen, brought a judicial review application on her behalf under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or s 39B of the Judiciary Act 1903 (Cth). Although no order was made under r 9.61 of the Federal Court Rules 2011 (Cth) appointing Ms Nguyen as Charlotte’s litigation guardian, that position was remedied by consent orders proposed at the commencement of the hearing of the appeal. The Court also made an order by consent allowing the relevant executive policy concerning decisions about Australian citizenship to be tendered on the appeal.

3    The primary judge made orders upholding the judicial review application and setting aside the decision of the delegate, together with consequential orders.

4    For the reasons that follow, the Minister’s appeal from those orders should be dismissed. My conclusion on the appeal means I do not need to consider the notice of contention filed by Ms Nguyen.

Background to the appeal

5    Without repeating entirely the matters in the primary judge’s reasons, at the time of the delegate’s decision, s 12 of the Act relevantly provided:

Citizenship by birth

(1)    A person born in Australia is an Australian citizen if and only if:

(a)    a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b)    the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

6    At the hearing of the appeal, the Court had requested the parties deal with some matters it considered arose on the appeal as a result of the Full Court’s decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393. Senior counsel for the Minister informed the Court that the Minister accepted the word “parent” in s 12 of the Act was to be construed in the same way as the Full Court construed the word in s 16 of the Act in H.

7    In other words, quoting from H at [128] and [129]:

The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. …

Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.

8    That concession was properly made. Just as the Full Court held in relation to s 16 of the Act, there is no justification for construing s 12 of the Act as meaning that “a person can only be a ‘parent’ within the meaning of [s 12] where it can be established that he or she has a relevant genetic link to the applicant”: H at [131].

9    Charlotte was born on 4 September 2015, at a hospital in the State of Victoria. Ms Nguyen applied to the Department of Immigration and Border Protection (now the Department of Home Affairs) on 17 August 2017 for evidence that Charlotte is an Australian citizen. The basis for her application was that Mr Paul The Tran Lieu was her father. There is no dispute that Mr Lieu is an Australian citizen. However at no stage has the Department, the Minister or most critically the Minister’s delegates accepted that Mr Lieu is a “parent” of Charlotte for the purposes of s 12 of the Act.

10    From around a month after the application was lodged there began a course of correspondence between Ms Nguyen and the Department, including the provision of further information, the refusal of Ms Nguyen’s application on behalf of Charlotte, and then the making of another application by Ms Nguyen on behalf of Charlotte in June 2019, with the assistance of the Asylum Seeker Resource Centre.

11    At [11] of his Honour’s reasons, the primary judge described this 2019 application as containing a “detailed factual and reasoned analysis” by the ASRC. I agree with that description.

12    Whether Mr Lieu is a parent of Charlotte for the purposes of s 12 of the Act is a question of fact: see H at [130].

13    At the time of the delegate’s decision, s 37 of the Act relevantly provided:

Evidence of Australian citizenship

(1)    A person may make an application to the Minister for evidence of the person’s Australian citizenship.

Note:    Section 46 sets out application requirements (which may include the payment of a fee).

Notice

(2)    The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

(3)    The notice must:

(a)    be in a form prescribed by the regulations; and

(b)    contain any other matter prescribed by the regulations.

Identity

(4)    The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person.

Note:    Division 5 contains the identity provisions.

Evidentiary status

(5)    A notice is prima facie evidence of the matters in the notice.

Cancellation

(6)    The Minister may, by writing, cancel a notice given to a person under this section.

14    I shall set out later in these reasons the accumulated material which was before the delegate when the s 37 decision was made. That material did not include a DNA test. Ms Nguyen had explained why she was unable to provide a DNA test. Nevertheless, the Department continued to insist she provide one: see primary judge’s reasons at [8], [13] and [15].

15    The Department refused the s 37 application on 4 September 2019, and Ms Nguyen’s solicitor applied for internal review of that decision. On 29 May 2020, a delegate of the Minister confirmed the refusal. That is the decision which was the subject of the judicial review application.

16    Relevantly to the grounds of appeal, before the delegate was the following material:

(a)    A copy of Charlotte’s birth certificate, issued pursuant to s 46 of the Births, Deaths and Marriages Registration Act 1996 (Vic). This birth certificate records Ms Nguyen as Charlotte’s mother, and Mr Lieu as her father, with both of them as informants. In this document, Charlotte’s surname is given as “Lieu”.

(b)    A copy of an Australian passport issued to Charlotte on 21 November 2016, which information from the Victorian branch of the Red Cross suggested Mr Lieu had applied for on Charlotte’s behalf. In this document, Charlotte’s surname is given as “Lieu”.

(c)    The newborn child declaration made by Mr Lieu to Centrelink, and acknowledgement of receipt from Centrelink.

(d)    The hospital card from the hospital where Charlotte was born, naming Charlotte as the baby of Ms Nguyen and Mr Lieu.

(e)    A Medicare card in the name of Mr Lieu as the principal holder, with Charlotte as his dependent.

(f)    Photographs of Mr Lieu with Ms Nguyen during her pregnancy in hospital and private settings, with Ms Nguyen shortly before Charlotte’s birth, shortly after Charlotte’s birth and photographs of Mr Lieu holding Charlotte as a newborn in hospital.

(g)    Statutory declarations from a friend of Ms Nguyen’s deposing to Ms Nguyen and Mr Lieu “ha[ving] a baby girl together”, and living together.

(h)    a redacted copy (issued pursuant to a freedom of information request) of the passport application submitted by Mr Lieu, which nevertheless shows the application as being filled out with Mr Lieu as Charlotte’s father, and signed by Mr Lieu.

(i)    A statutory declaration from Ms Nguyen, deposing:

1.    Paul The Tan LIEU, is the father of my child, Charlotte An Nguyen LIEU. Our relationship broke down and ended in late December 2015 about three months after the birth of Charlotte An Nguyen LIEU.

2.    I am no longer in contact with Paul The Tan LIEU. The last time I was in direct contact with Paul The Tan LIEU was sometime between October and November 2016. I have tried to contact Paul The Tan LIEU since this time but have not heard from him.

(j)    Confirmation secured by the ASRC from the federal Department of Health and Human Services that Mr Lieu is required to and has commenced paying child support for Charlotte, as her parent. The attached documentation named Ms Nguyen and Mr Lieu as the parents, with Charlotte residing 100% of the time with Ms Nguyen.

The delegate’s reasoning

17    As I explain below, I do not take quite the same perspective on the errors in the delegate’s reasoning as the perspective adopted by the primary judge. Therefore, it is necessary for me to set out my reading of the delegate’s reasons, before turning to the reasoning of the primary judge.

18    It is plain from the delegate’s reasoning that he formed an adverse view of Ms Nguyen’s honesty, and by inference, that of Mr Lieu. The delegate described the photographs that Ms Nguyen submitted of Mr Lieu with Charlotte and her as having been “contrived for the purposes of obtaining citizenship for Miss Lieu”. The use of that language gives rise to a clear inference that the delegate considered the pair were lying about Mr Lieu being Charlotte’s parent.

19    The delegate accorded little or no weight to the documentary material I have set out above. His reasoning about why he did so in respect of some particular documents comprised some of the successful grounds of judicial review before the primary judge.

20    Instead, the delegate accorded “significant weight” to two inconsistencies he found existed by reason of the material provided. One was said to be:

I have considered the 27 September 2017 statutory declaration from Mr Loc Due Le. I place little weight on this document as it contradicts information provided in the 5 June 2019 statutory declaration signed by Ms Nguyen. Ms Nguyen advised that her relationship with Mr Lieu ended three months after the birth of Miss Lieu, yet Mr Le states both Mr Lieu and Ms Nguyen were living together in Victoria for a significantly longer period than that claimed by Ms Nguyen.

21    Mr Loc Duc Le’s 2017 declaration is at one point apparently expressed in the present tense – “They live together”. At another point he declares “They lived togethe[r] since 7/2015”. The inference from the two statements might be that the two lived together continuously since 2015 until 2017. But Mr Le makes no declaration about when the relationship ended. The inference I have suggested might not be correct, especially given it is clear Mr Le’s first language is not English and his use of the word “live” might not be the same as a native English speaker. It is impossible to tell. Mr Le then deposes to Charlotte’s birthday on 4 September 2015.

22    The second inconsistency was said to be the following:

There is also the inconsistency between Ms Nguyen stating she last had contact with Mr Lieu between October and November 2016, yet submitting a copy of his Medicare card to the Department on 12 October 2017.

23    It is not immediately apparent to me why the facts identified by the delegate are necessarily inconsistent, rather than calling for further explanation or detail, but that was the delegate’s finding. The delegate’s reasons appear to suggest these “inconsistencies” reflected poorly on the credibility of Ms Nguyen, although as I have observed, that is without seeking any further explanation from her.

24    The delegate made three findings which are of critical relevance to the resolution of the appeal, and were of critical relevance to the primary judge’s reasoning:

In the absence of evidence of a biological link between Mr Lieu and Miss Lieu, I have turned my mind to relevant factors, including social and legal, to establish whether there was any parent-child relationship between the two at the time of Miss Lieu’s birth. As part of this consideration, I have examined the relationship between Mr Lieu and Ms Nguyen, both before and at the time of Miss Lieu’s birth.

…

I have considered the screen shot from the Child Support Agency website providing evidence of child support payments from Mr Lieu. While it does indicate some level of parental responsibility, the low rate of payment, and the lack of other independent and verifiable supporting documents, does not support a finding that a relationship existed between Mr Lieu and Ms Nguyen prior to and at the time of Miss Lieu’s birth.

I have considered the 4 September 2015 and 21 November 2015 Department of Human Services correspondence. I place little weight on these documents as the information provided to the Department of Human Services is information that is self-declared.

I have placed weight on the lack of evidence to indicate that Mr Lieu and Ms Nguyen were in a genuine and continuing relationship prior to and at the time of Miss Lieu’s birth. I have also placed weight on the lack of evidence to indicate that Mr Lieu was involved in providing care for the unborn child and/or the mother during the pregnancy.

25    In these passages, as elsewhere in the delegate’s reasons, I consider it is clear there is a focus on:

(a)    whether there was a biological link between Charlotte and Mr Lieu;

(b)    whether there was a genuine relationship between Ms Nguyen and Mr Lieu, rather than the existence of a parental relationship between Mr Lieu and Charlotte; and

(c)    the asserted lack of probative value in formal documents and other informal material comprising information volunteered or provided by Ms Nguyen and Mr Lieu (which the delegate describes as “self-declared”).

26    There are many findings where this focus is apparent. The focus on whether the delegate is satisfied of a biological link is apparent from the start of the delegate’s reasoning process on p 7, in the passage I have extracted above.

27    For example, almost every time when the delegate makes a finding that certain material does not show a parent/child relationship between Mr Lieu and Charlotte, the delegate also finds the same material does not establish that “Ms Nguyen and Mr Lieu had a relationship prior to and at the time of birth”: see for example at p 8 of the delegate’s reasons. To state the obvious, a person can be a parent of a child without being in a relationship with the other parent. Or, the parents of the child may have a volatile, temporary or ‘on again off again’ relationship as between themselves, a feature which again says nothing in terms of inherent probative value towards the factual issue whether they are the parents of a child.

28    The continued focus on the relationship between Ms Nguyen and Mr Lieu, if not explicable by impermissible pre-judgment, demonstrated a misunderstanding of what the delegate was required to be satisfied about. It is most apparent at the end of the delegate’s reasoning, where the delegate finds:

I have placed weight on the lack of evidence to indicate that Mr Lieu and Ms Nguyen were in a genuine and continuing relationship prior to and at the time of Miss Lieu’s birth.

29    This finding demonstrates the error in the focus in the delegate’s reasoning. Neither Ms Nguyen nor Mr Lieu had any burden to prove they were in a continuing relationship at the time of Charlotte’s birth, let alone a “genuine” one, whatever that meant. The status of their relationship at the time of Charlotte’s birth had no necessary probative or rational connection to whether Mr Lieu was Charlotte’s parent.

30    The delegate does not explain why there is an assumption that “self-declared” information is less probative. As the primary judge explained, some of that “self-declared” information, such as the birth certificate, is given on pain of prosecution for false statements.

31    Further, the self-declaration itself is in my opinion capable of having independent probative value. If a person declares, effectively to the world, and certainly to various responsible government authorities or agencies (including the hospital where the child is born) that they are the parent, then taking into account what was said in H, this self-declaration is capable of independently tending to prove the person has assumed the role of a parent, and considers themselves a parent. While not conclusive, it may be probative. Unless the delegate had pre-judged the whole review by immediately attributing a dishonest motive to Ms Nguyen (and by extension to Mr Lieu) – which itself would be evidence of other legal errors – then I do not consider there is any rational basis for the delegate to have wholly discounted the “self-declared” information in the way he did.

The judicial review application and the primary judge’s findings

32    Ms Nguyen relied on six grounds of review before the primary judge. The primary judge upheld four of them. Since I consider the appeal must be dismissed and there is no need to deal with the notice of contention, it is only necessary to set out here the grounds upheld by the primary judge. These were grounds 1,2, 3 and 6.

33    Ground 1 contended the delegate had misunderstood the law in asserting that a birth certificate “in itself is not evidence of parentage”. The applicant (as she then was) contended that “at law”, by reason of s 16 of the Births, Deaths and Marriages Registration Act and s 8 of the Status of Children Act 1974 (Vic), a birth certificate is evidence of a person’s parentage. The primary judge upheld this ground at [23]-[35] of his Honour’s reasons.

34    Ground 2 contended the delegate misunderstood the law in concluding that the evidence of Mr Lieu’s liability for child support payments went only to the existence of a relationship between Charlotte’s parents when instead it was relevant to demonstrating parentage. That is because, the applicant contended, under the Child Support (Assessment) Act 1989 (Cth) liability for child support may only be imposed on a parent. The primary judge upheld this ground at [36]-[39] of his Honour’s reasons.

35    Ground 3 contended the delegate had misunderstood the evidence “and/or the law” in reasoning that a Medicare card was not evidence of Mr Lieu’s parentage. The applicant contended that Charlotte’s inclusion on Mr Lieu’s Medicare card occurred pursuant to s 10AA of the Health Insurance Act 1974 (Cth), after Mr Lieu had completed the “newborn child declaration”. That declaration included Mr Lieu accepting parental responsibility for Charlotte from the day she was born. The primary judge upheld this ground at [40]-[44] of his Honour’s reasons.

36    Ground 6 contended the delegate’s decision was legally unreasonable because it failed to consider the “special circumstance” that Ms Nguyen could not contact Mr Lieu and therefore the best evidence she could produce was the “self-declared” evidence in her possession. The primary judge upheld this ground at [54]-[66] of his Honour’s reasons.

The Minister’s grounds of appeal

37    The Minister accepted they must succeed on every ground of appeal in order to have the primary judge’s orders set aside.

38    As to ground 1 on review and ground 1 on the appeal, the Minister contended the primary judge was correct to find that the delegate was not bound by the Victorian legislation, but then erred in the remainder of his approach. Since the Victorian provisions are dealing with facilitating proof in curial proceedings, they are of no relevance to the power in s 37 of the Act, and they cannot and do not bind a delegate. Further, there was no evidence that the delegate based his decision on any understanding of the operation of the Victorian legislation. The Minister sought to distinguish the Full Court decision in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; 286 FCR 459, and contended it was an error for the primary judge to apply that decision. Finally, the Minister submitted (at [23]):

Thirdly, and in any event, the primary judge was wrong to find that the delegate did not give evidentiary weight to the birth certificate as some evidence of parentage (J: [34]). The delegate gave it “little” (but therefore some) “weight” [AB 175]. The delegate’s observation that the certificate “in itself is not evidence of parentage”, must be read in the context of the preceding statement that “birth certificates are completed with information that is self-declared by the informants”. Thus, the delegate should be understood as conveying that the birth certificate did not provide independent evidence of parentage (i.e., independent of the reliability of the evidence of the Mother or emanating from Mr Lieu).

(Original emphasis, footnote omitted.)

39    As to ground 2 on review and ground 2 on the appeal, the Minister advanced similar submissions. The statutory scheme established under the Child Support (Assessment) Act 1989 (Cth) does not “govern or direct” the delegate’s decision-making. In any event, the Minister submitted the delegate’s reasons disclose he gave the child support payments some weight, and the amount of weight was a matter for the delegate.

40    As to ground 3 on review and ground 3 on the appeal, the Minister’s submissions were again along similar lines about the Medicare card. As for ground 1, the Minister submitted the considerations now advanced on judicial review were not advanced to the delegate – s 10AA of the Health Insurance Act was “neither identified nor relied upon”. The Minister further submitted (at [31]):

In any event, the primary judge erred in not holding that any error was immaterial. The Medicare card was the automatic product of the information supplied in the Newborn Child Declaration – which, was the better and more direct of evidence of parentage. The primary judge held that that document had been lawfully considered (J: [45]-[49]: see further par 38 below). In the circumstances, the issuing of the Medicare card did not add any further probative weight to the matters in the Newborn Child Declaration, and so any error that occurred in its consideration was immaterial.

(Original emphasis, footnote omitted.)

41    Finally, as to ground 6 on review and grounds 4 and 5 on the appeal, the Minister contended the “‘outcome’ unreasonableness” (original emphasis) conclusion of the primary judge was flawed because the applicant had made no such contention, and had acknowledged (correctly, the Minister submitted) that on the material, it was open to a delegate not to be satisfied of the required matters under s 37. The Minister further submitted the primary judge had gone too far in his unreasonableness conclusions, by in substance requiring the delegate to accept the facts and narrative put forward by Ms Nguyen as true, in order for the decision not to fail for legal unreasonableness. This was an incorrect approach, the Minister submitted.

Resolution of the appeal

The overarching point of H, and its relevance to the delegate’s decision

42    It is clear that the delegate did not understand and apply the law as set out in H, even if there are passages in his reasons which refer to non-biological parentage, and even if, as the Minister contended, the delegate had the Australian Citizenship Instructions before him, which do set out in relatively clear terms that a person does not have to establish a biological link to a child to be a “parent” for the purposes of s 12 of the Act.

43    The delegate’s misunderstanding is most apparent from his inappropriate focus on whether there was a “genuine” relationship between Ms Nguyen and Mr Lieu, as I have described above, and by his use of the description “self-declared” as a basis for diminishing the weight to be given to certain evidence.

44    In reality, the self-declaratory character of these documents is the very feature which gives them significance, as the Full Court explained in H at [130]:

In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.

(Emphasis added.)

45    The parts highlighted in bold can only be described as ‘self-declaratory’ conduct.

46    As to the focus on the wrong relationship, this is what also underlines the misunderstanding about the significance of the documents underlying grounds 1-3. The question for the delegate was whether Mr Lieu was a parent of Charlotte at the time of her birth. The key relationship for the purposes of s 37 was between Mr Lieu and Charlotte, not Mr Lieu and Ms Nguyen. Yet the delegate’s findings are full of stereotypical assumptions about what kind of relationship between Mr Lieu and Ms Nguyen could suffice to persuade him about the relationship between Charlotte and Mr Lieu. Again, that miscarriage of the statutory task is evidenced in the treatment of the birth certificate, the child support payments and the Medicare card.

47    That is most obvious in the delegate’s conclusions where he requires there to be evidence of a “genuine and continuing” relationship between Ms Nguyen and Mr Lieu, and evidence that Mr Lieu was involved in “providing care” to Charlotte and Ms Nguyen, both before Charlotte was born and afterwards.

48    The delegate concluded the lack of such evidence to be fatal to satisfaction Mr Lieu was Charlotte’s parent at the time of her birth. Yet the quality of the relationship between two parents is not necessarily probative at all of the existence of a parent/child relationship. The relationship between two parents may be broken, it may be volatile, and it may be virtually non-existent, even if they are living together. Parents may lead virtually separate lives, even if living – or giving the impression of living – under one roof. None of that is necessarily probative of whether one of them is a parent of the child, as that term is now to be understood.

49    As the ASRC submissions stated:

While it can be supportive, it is not necessary to establish that the parents were in a relationship prior to or at the time of birth of an applicant. To expect or require such a relationship would reflect a distorted and restricted understanding of the fluidity of relationships and the situations that can result in the conception of a child.

50    This submission was correct, but the delegate failed to take an approach that was consistent with it.

51    In a task such as the one under s 37 of the Act, forming a lawful state of satisfaction about parentage will necessarily require a decision-maker to engage with material produced by, or arising from, formal processes under Australian law that bear a relationship to parentage. The primary judge was correct to describe the real question as whether, having regard to all of the material, it was established that Mr Lieu is the father of Charlotte, if it is accepted that Ms Nguyen cannot produce biological proof of that fact. In the circumstances, the Tribunal’s task under s 37 was to determine that question, paying due regard to the principles in H.

52    Asking whether a statutory regime sitting behind government records produced by an applicant on a s 37 application “binds” a decision-maker is asking the wrong question. State or federal material produced under or responsively to government and legislative processes relating to parentage is material produced as part of a normative process governed by Australian law. Decision-makers such as the delegate are not making their decisions in some law-free zone, or in a vacuum. They are required to understand the significance of material produced to them by, amongst other matters, understanding the context in which it has been produced. Such a requirement does not affect the decision-maker’s ability to evaluate the material, and to do so against other considerations such as the decision-maker’s rational and reasonable assessment of the genuineness of those individuals involved in any application. But statutory tasks such as the one under s 37 are not conducted outside the normative system of Australian law as a whole.

53    With those general observations, I turn to the grounds of appeal.

Grounds 1-3 of the appeal

54    I reject each ground of appeal advanced by the Minister. While I accept that aspects of the primary judge’s reasons might suggest his Honour was imposing on the delegate a requirement to apply other legislative provisions which the delegate was not bound to apply, I consider that would not be a fair reading of his Honour’s reasoning overall. In my opinion, the primary judge was correct to find, as to grounds 1, 2 and 3 (each dealing with a particular aspect of the documentary material before him) that the delegate misunderstood, or failed to appreciate, the significance of the documents in question in terms of the delegate’s statutory task under s 37.

55    Regardless of the legislative schemes, and regardless of the evidentiary provisions in each scheme, each of the birth certificate, the child support payment documents and the Medicare card (and the newborn declaration that generated it) were the products of government processes dependent on the existence of a relationship of parent and child. They are government records. Inherent in this fact was the need for the delegate to understand what each of those government records represented, before deciding what weight to accord them, and what status (if any) they had in the question under s 37. The legislative schemes underpinning those documents were relevant to a correct appreciation of the significance of the documents in the assessment of whether Mr Lieu was a parent of Charlotte. The Minister may be correct at least one of the processes (regarding the Medicare card through the Health Insurance Act) did not involve any independent assessment of, or formation of satisfaction about, the factual existence of a parent/child relationship. I accept the primary judge’s reasons may have over-emphasised the formalities of the legislative schemes. Nevertheless, he was correct to appreciate the importance of the existence of the schemes, and the government records produced pursuant to those schemes, to the delegate’s task.

56    Each of the application and decision-making processes which underpinned the official recognition in those documents of a parent/child relationship between Mr Lieu and Charlotte involved, in the words of the Full Court in H, Mr Lieu acknowledging Charlotte as his own at the time of birth, and treating Charlotte as his own.

Ground 1 of the appeal: the birth certificate

57    The primary judge’s reasons set out in detail the legislative scheme under the Births, Deaths and Marriages Registration Act, and also the Status of Children Act. I consider there were two main points his Honour drew from the legislative schemes:

(a)    Both pieces of legislation, principally the Births, Deaths and Marriages Registration Act, gave a birth certificate issued in accordance with the Births, Deaths and Marriages Registration Act a prima facie probative value. The primary judge contrasted this with the delegate’s finding that “the birth certificate in itself is not evidence of parentage” at p 7 of the delegate’s reasons.

(b)    The statutory obligation in s 15 of the Births, Deaths and Marriages Registration Act, imposed on the parents of a child, to have a birth registered. Section 15(1) provides:

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.

58    As the Minister’s submissions recognise, the primary judge was not finding that the delegate was “bound” by the terms of the Victorian legislation. The primary judge was explaining why the delegate’s finding that “the birth certificate in itself is not evidence of parentage” involved a legal error. The primary judge was clearly correct that the delegate’s conclusion did involve a legal error. The delegate’s finding is inconsistent with the law as declared in both the Births, Deaths and Marriages Registration Act and the Status of Children Act.

59    It was the delegate himself who used the word “evidence”, and that is why the primary judge fastened on it, in my opinion correctly. Where there is a statutory obligation to give reasons, the way an administrative decision-maker expresses their findings demonstrates what they considered important or material, and what they did not: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]; quoted with approval in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [14] (Bell, Gageler and Keane JJ); [106] (Nettle and Gordon JJ). The way the delegate expressed himself indicates that what is meant by giving the birth certificate “little weight”, having found it is “not evidence” of parentage, is to render it insignificant to the formation of the delegate’s state of satisfaction.

60    As the primary judge observed in his Honour’s reasons at [34], that approach is inconsistent with the legal effect of a birth certificate. That the document is given that legal effect by State legislation reflects no more than the division of legislative power under the Constitution, and does not detract from the position that the certificate is given a legal effect. That was what the delegate failed to understand. As the Full Court said in Chou at [114], this is a legal error affecting the validity of the decision, referring there to Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [68] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.

61    While the Minister seeks to diminish the significance of the delegate’s finding by linking it to other findings about “self-declared” information, I have explained why that makes the gravity of the error greater.

62    The primary judge was also correct to focus on the obligation imposed by s 15 of the Births, Deaths and Marriages Registration Act, read with the terms of s 16(1) which provide that the identity of a child’s parent can only be included if the parents make a joint application for that inclusion. Again, as his Honour recognised, the joint parental responsibility for applying for a birth certificate, and the circumstances in which a person’s identity may be entered as a parent, were critical factors in the task under s 37. While it is unclear whether the parties referred the primary judge to the decision in H, or placed much emphasis on it, the ASRC certainly did in its submissions to the delegate. The primary judge’s references to s 15 and s 16 of the Births, Deaths and Marriages Registration Act, far from being erroneous, are compatible with the importance of self-identification as a parent, being a critical aspect of the decision in H.

63    Ground 1 fails. To the extent it is necessary to determine “materiality”, not in relation to jurisdictional error, but in relation to the AD(JR) Act, being the jurisdiction invoked to review the delegate’s decision, I consider it is plain that the delegate’s misunderstanding that a birth certificate is “not evidence” of parentage “contributed” to the outcome of the decision, and the delegate’s decision may well have been different if he had correctly understood the legal effect of a birth certificate: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353 (Mason CJ), 365 (Brennan J), 369 (Deane J), 384 (Toohey and Gaudron JJ); Riseley v Suncorp Portfolio Services Ltd [2022] FCAFC 8; 290 FCR 75 at [87]-[88]. The birth certificate was a critical government record, material to Ms Nguyen’s application, and rightly so given the legal effect it has, and given the acknowledgment of parentage that it represents.

64    That conclusion is sufficient to dismiss the appeal, but since the other grounds of appeal were fully argued, I have decided them.

Ground 2 of the appeal: the child support payments

65    The delegate’s finding about the unequivocal evidence that Mr Lieu was making child support payments for Charlotte was in the following terms:

While it does indicate some level of parental responsibility, the low rate of payment, and the lack of other independent and verifiable supporting documents, does not support a finding that a relationship existed between Mr Lieu and Ms Nguyen prior to and at the time of Miss Lieu’s birth.

66    The first point to emphasise about this finding is the legally incorrect focus of the delegate on the relationship between Ms Nguyen and Mr Lieu.

67    Contrary to the Minister’s submissions, the primary judge did not “criticise” the delegate for not referring to any of the provisions in the Child Support (Assessment) Act. Rather, the primary judge made a statement of fact that the delegate did not refer to them, and then explained the relevance of those provisions to the question the delegate needed to decide. Their relevance was not because anything in the Child Support (Assessment) Act “bound” the delegate, but rather because the provisions informed a correct understanding of what having a liability for child support payments said about parentage.

68    His Honour’s finding of error was not based on the failure by the delegate to refer to the provisions. It was based on his finding, correct in my opinion, that having embarked on a consideration of the weight to be given to the fact Mr Lieu was making child support payments for Charlotte (a critical aspect of forming a lawful state of satisfaction in the circumstances of this application and the material before the delegate), in order to understand how to weigh that factor, the delegate needed correctly to understand the significance of child support payments to the question of parentage, which was likely to involve at some level an understanding of how responsibility for child support arose, in law.

69    In his reasons, after setting out the legislative scheme of the Child Support (Assessment) Act in some detail, the primary judge found at [38]:

There cannot be “some level of parental responsibility” before a person is the subject of an assessment of, and the imposition of a liability for, financial support for a child. A person is either the parent of a child for the purposes of this legislation or he or she is not. Moreover, whether the amount of the financial imposition is “low” is simply irrelevant to the fact of parentage. An objectively assessed low level of liability is reflective of the financial capacity of the parent to make payments, when assessed in accordance with each of the other criteria in the legislation.

70    I share the uncertainty of the primary judge about what the delegate meant in his finding by “some level of parental responsibility”. The primary judge’s finding in this paragraph is not erroneous and indeed it is, with respect, correct. The delegate’s finding reveals his failure to understand the legal context in which a person is liable to pay child support. Again, although apparently not a matter the primary judge was invited to concentrate on, this approach is also consistent with the Full Court decision in H.

71    Ground 2 of the notice of appeal fails.

Ground 3 of the appeal: the Medicare card

72    Again, contrary to the Minister’s submissions, the primary judge did not “criticise” the delegate for not mentioning s 10AA of the Health Insurance Act; he simply observed the delegate had not referred to the legislation, which is correct. The Minister’s submissions again miss the point – the point was not that the Health Insurance Act had any binding effect on the delegate; nor that it had been raised expressly in the submissions put to the delegate.

73    The point was that the process for obtaining a Medicare card under the Health Insurance Act (including completion of the newborn child declaration) plainly informed the delegate’s consideration of what a Medicare card in Mr Lieu’s name, listing Charlotte as a dependent, might say about Charlotte’s parentage. Not just the bare fact of the existence of a copy of a Medicare card in the material before the delegate, but rather an understanding of what the legal process was to obtain such a card, including completion of the newborn child declaration and what was required to be declared to the Australian Government to obtain the card.

74    The material before the delegate revealed on its face that Mr Lieu had filled out the newborn child declaration on the day Charlotte was born. That was the date of the document. In it, Mr Lieu declared himself to be Charlotte’s biological father. The primary judge described the process at [41] of his Honour’s reasons.

75    The ASRC had submitted:

Miss Lieu was originally listed as a child on Mr Lieu’s Medicare Card. In order to add his daughter to the card, Mr Lieu had to submit a Newborn Child Declaration form, or a Medicare enrolment form with supporting documentation, including proof of Miss Lieu’s birth. My Lieu was required to make representations to the DHHS that he was the father of the applicant. The fact that the applicant was in fact included on Mr Lieu’s Medicare card supports a finding that there was a parent child relationship between the applicant and Mr Lieu.

76    There is no error in the analysis of the primary judge on ground 3. His Honour was correct to identify and describe the legal processes required to obtain a Medicare card showing Charlotte as Mr Lieu’s dependent, including the fact and contents of the newborn child declaration. His Honour was correct to identify the delegate’s error as being the finding that the Medicare card was not “in and of itself” evidence that Mr Lieu is the father of Charlotte, without having properly understood that the legislative context of having a Medicare card issued meant it was:

not open to apply for the registration of Charlotte as a dependent child of Mr Lieu and Ms Nguyen, unless that was the fact.

77    I reiterate that the other clear omission from the delegate’s findings about the Medicare card, as with the birth certificate and the child support payments, was the failure to appreciate that each of those documents were evidence of Mr Lieu acknowledging to a branch of the Australian Government he was Charlotte’s parent, and the failure to appreciate, in the context of the decision in H, why this was significant.

78    The failure to recognise and understand the legislative context for the government records provided by Ms Nguyen led to the misunderstanding in the delegate’s findings about the Medicare card. The Medicare card (and the newborn child declaration made to satisfy the legislative requirements to obtain the Medicare card) was capable of being “in and of itself” evidence that Mr Lieu was the father of Charlotte. As the primary judge observed, the delegate was not compelled to find that it was such proof. However, by failing to understand what the law required Mr Lieu to do, and to declare, to obtain the Medicare card, the delegate’s finding about the Medicare card was incorrect. As the primary judge also pointed out at [42], it was internally inconsistent for the delegate to give the Medicare card “some weight”, but then to make the finding he did.

79    Ground 3 of the appeal was the second ground for which that the Minister submitted even if there was an error it was not material to the exercise of power and therefore not jurisdictional in nature. I reject that submission. The government record constituted by the Medicare card needed to be considered together with the newborn child declaration which preceded it. While the primary judge found the delegate “considered” the newborn child declaration, as I have explained, the contents of the declaration, taken with the issuing of the Medicare card, were not only a formal acknowledgement by Mr Lieu to the Australian government that he was the parent of Charlotte, they were a formal recognition by the Australian government of that position, which was declared by Mr Lieu on pain of penalty. The way the delegate discounted these matters was a grave misunderstanding of the task under s 37, read with s 12 and the applicable principles on the circumstances in which a person is, under Australia law, the parent of a child. There is no qualitative difference between the gravity of this error and the errors arising under grounds 1 and 3. Taking the approach of the present majority opinion in the High Court, I am satisfied that, as a matter of “reasonable conjecture”, the decision could have been different: Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 at [33], [39] (Kiefel CJ, Keane and Gleeson JJ), [46], [55] (Gageler J). The error was material to the exercise of power and caused it to miscarry.

80    Ground 3 of the notice of appeal fails.

Grounds 4-5 of the appeal

81    To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.

82    Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.

83    In the circumstances and on the evidence before the primary judge, I consider his Honour was correct to determine that stringent threshold had been met.

84    The primary judge correctly observed that the starting point on the facts of the situation before the delegate was that Ms Nguyen could not provide biological evidence that Mr Lieu is Charlotte’s father. As I have sought to explain, satisfaction that a person is a biological parent of a child is not required to engage s 12 of the Act, and therefore also not required to engage s 37. In my view, as the primary judge found, the delegate never totally let go of an underlying assumption that if there was no DNA evidence, the citizenship claim should be treated with suspicion. That was certainly the impression that emerges from the departmental material in evidence, including correspondence insisting that a DNA test was “required” be provided. In my view it carried through to the delegate’s decision.

85    The primary judge’s findings on the legal unreasonableness ground were careful and detailed. His Honour stepped through each aspect of the delegate’s reasoning before concluding it was legally unreasonable. His Honour understood that the principles could apply to both outcome and process: primary judge’s reasons at [63]. By process, his Honour correctly included the reasoning of the delegate, which he had already found to involve “several misunderstandings and irrational reasoning”, a characterisation of the delegate’s reasoning which I have found to be correct. It was at this point the primary judge again relied upon the irrationality of the delegate viewing material as lacking in probative value because it was “self-declared”; an approach I have emphasised is also inconsistent with the applicable principles from H.

86    At [64], the primary judge disclosed an understanding of the need to look at all the evidence and the actual circumstances before reaching a conclusion of legal unreasonableness.

87    The primary judge placed considerable emphasis on the gravity attached to the making of a statutory declaration, and the purposes of a statutory declaration. In the circumstances of this application, that emphasis was not misplaced, because this was the best evidence Ms Nguyen could provide.

88    On the delegate’s contrivance finding, his Honour found (at [61]):

The delegate does not address why Ms Nguyen, shortly before the birth of Charlotte, would have the presence of mind to put in place an elaborate and utterly false plan by conspiring with another actor to have that person present at the birth of her child, so that staged photographs may be taken with that person whilst she was pregnant, and shortly after the birth, so that at some future point in time, those photographs would be components of a rather elaborate attempt to defraud the Minister by falsely claiming Australian citizenship for Charlotte. It also assumes that Ms Nguyen was aware of the provisions of the Act, in particular that in order for her child to be an Australian citizen, she would need to prove that Mr Lieu, being an Australian citizen, is the father. In my opinion, that reasoning lacks an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76], Hayne, Kiefel and Bell JJ). Self-evidently, Ms Nguyen would have had other matters on her mind in preparing for the birth of her child and there is simply no basis in the material that was submitted to the Minister, which rationally supports the delegate’s conclusion.

(Original emphasis.)

89    I agree with his conclusion. One of the photographs is so close after Charlotte’s birth that blood can be seen. Birth is the most intimate of processes. Without significantly probative evidence of dishonesty, and thorough reasoning, it is irrational to assume (as I infer the delegate did) that Ms Nguyen would have been party to fraudulent conduct at the time she was giving birth. Time of birth is also the statutory criterion under s 12 so the provision of photographs from that time is not only rational, but the provision of the best evidence. The absence of photos from other times does not, without more, suggest contrivance at all – especially when it is understood (as the delegate failed to) that the existence of a “genuine” or “continuing” relationship between the child’s parents is not central, and perhaps not even relevant, to the question of parentage. Without significantly probative evidence and thorough reasoning, no decision-maker acting reasonably could have found contrivance. And it was this finding, I infer, that infected the whole of the delegate’s approach to the task under s 37.

90    Grounds 4 and 5 fail.

Conclusion

91    The appeal must be dismissed. In those circumstances, it is unnecessary to consider the notice of contention.

92    The Minister must pay the respondent’s costs of the appeal, to be fixed by way of a lump sum. If the parties cannot agree a lump sum, the matter will be referred to a Registrar for determination.

Associate:

Dated: 13 April 2023

REASONS FOR JUDGMENT

ANDERSON AND HESPE JJ:

93    We have had the benefit of reading, in draft, the judgment of Mortimer CJ and gratefully adopt the Chief Justice’s summary of the background to the appeal. We agree with the Chief Justice’s conclusion that the appeal must be dismissed and that it is unnecessary to consider the notice of contention. We also agree with the Chief Justice’s proposed orders as to costs.

94    We consider that the appeal must be dismissed because in the circumstances, the primary judge was correct in his conclusion that the delegate’s decision was legally unreasonable. As the Full Court observed in H at [129], parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging the other as one’s own and treating him or her as one’s own. As Mortimer CJ explains in her reasons, it is clear that the delegate did not understand and apply the law as set out in H. This resulted in the delegate incorrectly focusing on the relationship between Ms Nguyen and Mr Lieu and relying upon the “self-declared” nature of statements made in the documents before him as a basis for diminishing the weight to be given to that evidence. Once the test for parentage is properly understood, as Mortimer CJ observes, it is the self-declared character of these documents which is the very feature which gives them significance. We agree entirely with Mortimer CJ’s reasoning on this issue.

95    Once it is understood that a parental relationship need not be biological, the nature of the relationship between Ms Nguyen and Mr Lieu is not necessarily probative of the existence of a parent/child relationship. Nor are the circumstances in which Charlotte may have been conceived. The focus of the inquiry must be the nature of the relationship between Mr Lieu and Charlotte. Whether the relationship between Ms Nguyen and Mr Lieu was “genuine and continuing” at the time of Charlotte’s birth or whether Ms Nguyen may have made misrepresentations concerning the extent of her relationship with Mr Lieu is of limited relevance to, much less determinative of, the statutory question.

96    The delegate’s reasoning so departed from the underlying premise of the statutory task he was required to perform in exercising his power to give a notice under s 37 of the Act so as to constitute legal unreasonableness. This conclusion is sufficient to be dispositive of the appeal: Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at [7], [8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ).

Associate:

Dated:    13 April 2023