FEDERAL COURT OF AUSTRALIA

Hudson v Minister for Immigration & Citizenship [2011] FCA 1134

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs, fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

Introduction AND BACKGROUND

1    This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) (2011) 121 ALD 224), affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse the applicant citizenship by descent under the Australian Citizenship Act 2007 (Cth) (‘the Act’).

2    The applicant is a male child, represented by his mother (‘Ms Wang’). Both are located and resident in the People’s Republic of China. The applicant applied for citizenship by descent under s 16(2) of the Act, on the basis that a male Australian citizen, who is, and was at the time of the applicant’s birth, married to Ms Wang, but who is not his biological father, was a ‘parent’ of the applicant at the time of his birth.

3    The delegate refused the application on the ground that the applicant ‘is not descended from an Australian citizen parent and has no genetic link to an Australian citizen’. The applicant applied to the Tribunal for review. The Tribunal affirmed the decision on the basis that s 16(2) of the Act required a biological parent: NWH v Minister for Immigration and Citizenship [2009] AATA 833.

4    The applicant appealed from that Tribunal decision to this Court and it was determined that the appeal should be heard by a full court, together with an appeal between different parties involving the same question of law (Re McMullen and Minister for Immigration and Citizenship (2009) 111 ALD 475). The Full Court allowed the appeal: H v Minister for Immigration and Citizenship (2010) 188 FCR 393. At [131] of its reasons, the Court said:

‘We can discern no relevant justification for holding … that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant.’

5    The Full Court remitted the matter to the Tribunal. The Tribunal again affirmed the decision to refuse the application for citizenship by descent: Re NWH and Minister for Immigration and Citizenship (2011) 121 ALD 224. It referred to the construction of s 16(2) of the Act provided by the Full Court. However, the Tribunal decided that it was ‘not satisfied that [the male Australian citizen] has established the requisite degree of connection as a parent’ with the applicant. It is from this decision that the applicant appeals to this Court.

Competence of the Appeal to this Court

6    The applicant’s appeal is brought in reliance on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), which limits an appeal to an appeal ‘on a question of law’. As was said by Gummow J in TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178:

‘The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967.’

7    In his notice of appeal, the applicant identifies the following ‘question of law’ as founding the appeal:

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

8    In his notice of appeal, the applicant articulates the following grounds of appeal:

‘(1)    That the Tribunal failed in finding that the statement regarding the special evidences at Paragraph 130 of [2010] FCAFC 119 is not the guidance applicable in this case. [Ground 1]

(2)    That the Tribunal failed in finding that the applicant is as equal as those applicants born to citizen parents in wedlock with genetic links.’ [Ground 2]

(3)    That the Tribunal failed in finding that there were distinct contrasts between the supposed parent-child relationship in [2009] AATA 638 and the legal parent-child relationship in this case. [Ground 3]

(4)    That the Tribunal failed in finding that the applicant is eligible for Australian citizenship by descent pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth) [Ground 4].’

9    The Minister submitted that the ‘question of law’ is difficult to follow. I agree. Doing as best I can, the question seems to be premised on the basis that, whatever else one might draw out of [130] of the Full Court’s reasons in H v Minister for Immigration and Citizenship, one thing that can be drawn is that where a child is born during the marriage of the biological mother to a person who is not the biological father, that latter person will, ipso facto, be the ‘parent’ of the child for the purposes of citizenship by descent under the Act. So predicated, the question then asks, can that ‘legal parent-child relationship’ be ‘destructed’ at the Tribunal’s discretion?

10    In my view, the premise is totally unfounded and the Tribunal did not approach the issue before it on the basis that it had a discretion to ‘destruct’ some unfounded ‘legal parent-child relationship’. The Tribunal approached the issue before it precisely in accordance with the mandate of the Full Court.

11    At [129] of its reasons, the Full Court said:

‘Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.’

12    The Court went on at [130], the paragraph relied on in the applicant’s question of law, to say:

‘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 with that ordinary meaning.’

This makes clear that the Full Court saw the task of the Tribunal as being to answer a question of fact, not a question of law. And that is precisely what the Tribunal did.

13    The Tribunal was not satisfied that the male Australian citizen was a parent of the applicant, not by exercising its discretion to ‘destruct’ some unfounded ‘legal parent-child relationship’ said to arise by virtue of the fact that the male Australian citizen was married to the applicant’s biological mother at the time of the applicant’s birth, but as a matter of fact.

14    The Court’s mandate to the Tribunal, which the Tribunal meticulously followed, is contained in the following words of [130] of its reasons:

‘Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.’

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

16    Even if, as the Minister suggested in his written outline of submissions, the applicant’s ‘question of law’ was to be read as asking: whether the sole fact that a child is born during the marriage of a biological parent to another person necessarily means that the other person is the parent of the child for the purposes of citizenship by descent under the Act, it is clear from the passages from the Full Court’s reasons reproduced above that this question must be answered in the negative. This is not a case where the Tribunal did not take that marriage relationship into account; it took it into account, but was not satisfied, on the evidence before it, that the male Australian citizen had established the requisite degree of connection to be the applicant’s parent.

17    Nor is this a case where the factual material before the Tribunal reasonably admits of different conclusions in relation to the statutory test: Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 8; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 288 – 289; Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450 – 451. That would be a question of law. But the factual material before the Tribunal reasonably admitted of the conclusion it reached, namely, that the applicant and the male Australian citizen did not, at any relevant time, have a sufficient connection for the purposes of citizenship by descent under the Act. The Tribunal relied upon the fact that the male Australian citizen had only spent one week in the company of the applicant, the fact that there was a linguistic barrier between the male Australian citizen and the applicant and the statement by Ms Wang that the male Australian citizen offered no financial support.

18    The Tribunal further found from the evidence, including a statement by Ms Wang, that the male Australian citizen was not actually involved in bringing up the applicant. It did not find convincing or complete a statement supposedly made by the male Australian citizen. Despite steps by the Tribunal to this end, the male Australian citizen did not appear before the Tribunal. It follows, in my view, that the Tribunal did not make any error of law.

Conclusion

19    The application must be dismissed with costs.

Associate:

Dated:    7 October 2011