Federal Court of Australia

Lieu (by her litigation guardian Nguyen) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 758

ORDERS

THE COURT ORDERS THAT:

1.    The decision dated 29 May 2020 that Charlotte An Nguyen Lieu is not eligible to be given evidence that she is an Australian citizen pursuant to s 37 of the Australian Citizenship Act 2007 (Cth) is set aside;

2.    The application made by Charlotte An Nguyen Lieu for evidence of Australian citizenship be remitted to the Minister for determination according to law;

3.    Upon the remittal, no person who has been a decision-maker upon the application, or any prior version of it, is to act as the delegate of the Minister; and

4.    The respondent Minister is to pay the applicant’s costs of the proceeding to be assessed by a Registrar in a lump sum pursuant to rule 40.02 of the Federal Court Rules 2011 (Cth), which the Registrar is to determine in such manner as the Registrar thinks fit, who shall then make an order fixing the amount of those costs, which are to be payable within 21 days.

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

REASONS FOR JUDGMENT

MCELWAINE J

1    Charlotte An Nguyen Lieu (Charlotte) was born on 4 September 2015, in Victoria. Her mother is Oanh Thi Nguyen (Ms Nguyen) who acts as her litigation guardian in this proceeding. Ms Nguyen is a Vietnamese citizen who, at the time of giving birth to Charlotte, resided in Australia without a valid visa. Ms Nguyen claims that the father of Charlotte is Paul The Tran Lieu (Mr Lieu). It is not in dispute that Mr Lieu was an Australian citizen at the time of birth of Charlotte. Despite the fact that Charlotte’s birth certificate, as issued by the Registrar of Births Deaths and Marriages for the State of Victoria dated 8 December 2015, records Mr Lieu as the father of Charlotte, Ms Nguyen has not been able to convince a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to exercise the statutory power conferred by s 37 of the Australian Citizenship Act 2007 (Cth) ( the Citizenship Act) to give to her a notice stating that Charlotte is an Australian citizen at a particular time.

2    Ms Nguyen first made an application to the Department of Immigration and Border Protection (now Home Affairs) administered by the Minister on 17 August 2017 and on a form titled: Application for Evidence of Australian Citizenship. It is fair to observe that the progress of her application has been somewhat tortuous. What is presently before the Court is an application brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and/or s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) for judicial review of an internal review decision made by a delegate of the Minister on 29 May 2020 (the decision) whereby the delegate concluded, upon review of the material then before him, that Charlotte “is not eligible to be given evidence that she is an Australian citizen” pursuant to s 37 of the Citizenship Act.

3    Charlotte contends in her amended originating application dated 20 April 2022 that, in various ways, the delegate erred in law in making the decision. The Minister is named as the respondent. For the reasons that follow I have concluded that the delegate materially erred in law and that the decision should be quashed and the application remitted to the Minister for determination according to law.

The Statutory Scheme

4    Citizenship by birth is provided for at s 12 of the Citizenship Act which relevantly provides:

(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.

Enemy occupation

(2)    However, a person is not an Australian citizen under this section if, at the time the person is born:

(a)    a parent of the person is an enemy alien; and

(b)    the place of the birth is under occupation by the enemy;

unless, at that time, the other parent of the person:

(c)    is an Australian citizen or a permanent resident; and

(d)    is not an enemy alien.

5    Division 4 of the Citizenship Act is concerned with evidence of Australian citizenship and s 37 provides:

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.

6    Apart from the requirement to be satisfied of the identity of the person (which for Charlotte is not in issue), the Citizenship Act does not mandate or prohibit the consideration of any particular factors. In Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458, Foster J at [63] observed that: “given the form of the notice and the evidentiary significance of the notice, the Minister must be satisfied that the applicant is, in fact, an Australian citizen as at the date specified in the notice”. Clearly, Ms Nguyen acting on behalf of Charlotte was required to place before the Minister some probative material in order for the Minister to be satisfied that Mr Lieu is the father of Charlotte

Background Facts

7    I summarise the material facts, which I acknowledge and adopt from the Minister’s written submissions upon the application. The application first made to the Minister was accompanied by a copy of the birth certificate of Charlotte. That certificate was issued by the Registrar pursuant to s 46 of the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDM Act). According to it, Charlotte was born on 4 September 2015 at the Sunshine Hospital, St Albans. Ms Nguyen is recorded as the mother, aged 30 years with her place of birth being Quang Binh, Vietnam. The father is recorded as Mr Lieu, aged 36 years with his place of birth Sydney, New South Wales. . Ms Nguyen and Mr Lieu are both recorded as informants, with their current address stated as 134 Orchard Lee Street Old Guildford in the State of New South Wales. As required, the certificate contains a certification by the Registrar that it is “a true copy of particulars recorded in a Register in the State of Victoria, in the Commonwealth of Australia”.

8    On 14 September 2017, the Department corresponded with Ms Nguyen and advised that it did not have sufficient evidence to be satisfied that Mr Lieu is the father of Charlotte. It invited the submission of further information, including a DNA test. On 12 October 2017, additional information was provided to the Department including photographs depicting Mr Lieu shortly prior to and following the birth of Charlotte. On 16 November 2017, the application was refused. More information was then provided, but the refusal decision was affirmed on 24 April 2018.

9    On 5 June 2019, Ms Nguyen made a further application and enclosed with it a statutory declaration in which she stated that:

Paul The Tran 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.

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.

I therefore cannot provide evidence of Charlotte An Nguyen LIEU’s Australian citizenship.

10    Ms Nguyen made that declaration pursuant to s 11 of the Statutory Declarations Act 1959 (Cth) and stated: “I believe that the statements in this declaration are true in every particular”.

11    The application of 5 June 2019 was submitted on behalf of Ms Nguyen by the Asylum Seeker Resource Centre. It contained a detailed factual and reasoned analysis of the application. In particular, it confirmed that Ms Nguyen was unable to obtain a DNA test to confirm the biological link between Mr Lieu and Charlotte. The correspondence continued:

In order to be listed on the child’s birth certificate, Mr Lieu was required to acknowledge that he is the father of the applicant. Mr Lieu was required to provide consent in order for his name to be included on the applicant’s birth certificate. Paul is also listed as a parent on the information card issued by the Sunshine Hospital at the time of the applicant’s birth. This is clear evidence that at the time of the birth, Mr Lieu presented himself as the father of the applicant. Attached is a copy of both the original birth certificate issued shortly after the applicant was born, as well as an updated certificate reflecting a change in address details regarding the postcode included in the certificate.

Photos of Mr Lieu present with Ms Nguyen at the time of their daughter’s birth have been attached. These photos are clear, detailed and intimate and there is no ambiguity of the male’s identity in these photos. In being present at Miss Lieu’s birth, Mr Lieu held himself out as being Miss Lieu’s father, and this is also reflected in his daughter taking Mr Lieu’s family name as her own. There is no reason to question the authenticity of Mr Lieu’s presence at his daughter’s birth.

12    That correspondence also provided a copy of a New Born Child Declaration dated 21 November 2015, a Medicare card issued for Mr Lieu and Charlotte and a passport application pursuant to which Mr Lieu represented himself as the father.

13    That application was duly acknowledged, and answered with further requests for additional information by the Department. Once again, the Department stated that it did not have sufficient information to be satisfied that Mr Lieu was the father and restated the earlier advice that a DNA test should be provided. In doing so, the Department appears to have overlooked the repeated claims of Ms Nguyen to the effect that she was unaware of the whereabouts of Mr Lieu, and for that reason, could not provide biological evidence of parenthood.

14    On 4 July 2019, the applicant’s solicitor corresponded with the Department and provided evidence that Mr Lieu had commenced paying child support as a parent of Charlotte. Attached to that correspondence was evidence of a payment of $125 having been made on 23 June 2019, a requirement to pay an annual rate of $427 by monthly instalments of $38.58 and a statement that the assessment was current for the period 17 September 2018 to 16 December 2019.

15    On 30 July 2019, the Department corresponded with the applicant’s solicitor and, once again, stated that it did not have sufficient evidence to be satisfied that Mr Lieu is the father of Charlotte. The Department continued to insist that it be provided with a DNA test. On 28 August 2019, and in response, the applicant’s solicitor advised the Department that Mr Lieu’s whereabouts were not known and stated that Ms Nguyen had sent correspondence to several addresses where he may reside, but had not received a response. On 4 September 2019, the Department refused the application for evidence of citizenship.

16    On 19 September 2019, the applicant’s solicitor applied for internal review of that decision, which on 29 May 2020 resulted in the decision that is the subject of the application before the Court.

The Content of the Decision

17    The delegate, identified in the decision only as “Paul”, commenced by reciting the relevant history, listed all of the documentation that had been provided in support of the application, set out the relevant legislative provisions and then sequentially reasoned as follows. Firstly, he accepted that Mr Lieu was an Australian citizen at the time of birth of Charlotte. Secondly, he stated that he was satisfied of the identity of Charlotte and that she was born on 4 September 2015. Thirdly, of the birth certificate he said:

I am satisfied that Miss Lieu’s birth certificate is a legitimately issued evidence of her birth in Australia, and that Mr Lieu appears to have consented to his inclusion on Miss Lieu’s birth certificate. However, as birth certificates are completed with information that is self-declared by the informants, the birth certificate in itself is not evidence of parentage, and must be considered in the context of other available information. I therefore place little weight on this document as evidence that Miss Lieu acquired Australian citizenship at the time of her birth by virtue of having a parent who is either an Australian permanent resident or an Australian citizen.

18    Fourthly, he reasoned as follows:

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 Mr 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.

19    In the analysis which then follows, and in summary, the delegate:

(1)    placed little weight upon the statutory declaration made on 27 September 2017 by Mr Loc Duc Le as contradicting the statutory declaration made by Ms Nguyen on 5 June 2019;

(2)    placed little weight upon the ANZ bank statement as not providing evidence to support a parent-child relationship;

(3)    considered the application for a child passport for Charlotte signed by Ms Nguyen and Mr Lieu on 10 November 2016, but placed little weight upon it as “full of self-declared information”;

(4)    acknowledged each of the statements made by Ms Nguyen in her statutory declaration of 5 June 2019 but did “not place much weight on the claims because of the lack of any separate and verifiable evidence” and an asserted inconsistency between Ms Nguyen stating she last had contact with Mr Lieu in October and November 2016, when able to provide a copy of his Medicare card to the Department on 12 October 2017;

(5)    placed some weight on a photocopy of a Medicare card valid to November 2020 which listed both Mr Lieu and Charlotte, but stated that “it has not been explained how a copy of Mr Lieu’s Medicare card was provided to the Department on 12 October 2017 when Ms Nguyen stated in her 5 June 2019 statutory declaration that she last had contact with Mr Lieu between October and November 2016;

(6)    considered the photographs taken shortly prior to and immediately after the birth of Charlotte which depicted Mr Lieu with Ms Nguyen and then Charlotte, but considered those photographs “contrived for the purposes of obtaining citizenship for Miss Lieu” and stated as “significant” that the time in which the photographs were taken reflected “an extremely narrow period of time”;

(7)    reasoned that whilst the evidence from the Child Support Agency “does indicate some level of parental responsibility” concluded that “the low rate of payment, and the lack of other independent and verifiable supporting documents” did not support a “finding that a relationship existed” at the time of birth of Charlotte.

20    The delegate then concluded his reasoning as follows:

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.

Having considered the information provided as a whole, I have placed significant weight on the inconsistencies, which support a finding that no parent-child relationship existed between Mr Nguyen and Miss Lieu at the time of her birth.

21    Accordingly, the delegate concluded that Charlotte “is not eligible to be given evidence that she is an Australian citizen” and for that reason affirmed the decision under review.

The Application to this Court

22    By her amended originating application, Charlotte contends that the delegate erred in law in making the decision on the following grounds:

(1)    The delegate misunderstood the law in asserting that a birth certificate “in itself is not evidence of parentage”;

(2)    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;

(3)    The delegate misunderstood the evidence and/or the law in reasoning that the Medicare card was not evidence of Mr Lieu’s parentage of Charlotte;

(4)    Further or in the alternative to ground 3, the delegate failed to consider the evidence in the form of the Newborn Child Declaration;

(5)    The delegate:

(a)    illogically concluded that there was an ‘inconsistency’ between the Ms Nguyen providing a copy of the father’s Medicare card in October 2017, and the delegate’s finding that October 2017 was after Ms Nguyen had last had contact with Mr Lieu; and/or

(b)    discounted the Medicare card on the above basis despite such basis not having any logical bearing on what weight to afford to the card;

(6)    The decision was legally unreasonable in that it failed to consider the special circumstance that Ms Nguyen was unable to contact Mr Lieu to obtain any direct evidence from him because he had ceased contact with Charlotte and Ms Nguyen some time after the Applicant’s birth, and that the best evidence she could provide was limited to the material that the decision-maker dismissed as ‘self-declared’.

Ground 1

23    The delegate accepted the authenticity of the birth certificate and accepted it as “evidence of Miss Lieu’s birth in Australia, and that Mr Lieu appears to have consented to his inclusion” on the Register that is required to be maintained pursuant to part 7 of the BDM Act. Section 41 obliges the Registrar to maintain a register of registrable events, which includes a birth in Victoria. By s 46 the Registrar may issue a certificate that certifies the particulars contained in an entry in the register. Section 46(2) provides:

A certificate under subsection (1)(a) is admissible in legal proceedings as evidence of—

(a)    the entry to which the certificate relates; and

(b)     the facts recorded in the entry.

24    The birth of a child is first notified to the Registrar by a “responsible person” pursuant to s 12. A responsible person, in the case of a child who is born in a hospital, means the Chief Executive Officer of the hospital. Section 13 requires that the birth of every child born in Victoria must be registered under the BDM Act. The registration process requires a person to lodge a birth registration statement with the Registrar in a form and manner required by the Registrar specifying any prescribed particulars: s 14. The responsibility to lodge that statement falls upon the parents pursuant to s 15(1) which relevantly 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.

25    It is an offence for a person to knowingly make a false or misleading representation in an application or document under the BDM Act: s 53. The Registrar must not include information about the identity of the child’s parent in the register unless, inter alia, the parents of the child make a joint application for the inclusion of that information: s 16(1).

26    These are not the only provisions that are concerned with the identification of a person as the parent of a child on a birth certificate. Section 8 of the Status of Children Act 1974 (Vic) is concerned with evidence of parentage. It relevantly provides:

Where the name of a parent of a child is entered in the register of births in the Register maintained under the Births, Deaths and Marriages Registration Act 1996 in relation to the child a certified copy of the entry purporting to be made or given under section 46 of that Act shall be prima facie evidence that the person named as a parent is a parent of the child.

27    It was submitted on behalf of the Minister that caution should be exercised before the Minister gives a notice which states that a person is an Australian citizen at a particular time pursuant to s 37 of the Citizenship Act for the reason that important consequences attach to, and obligations flow from ,being an Australian citizen. That is certainly correct, as recently observed by Kiefel CJ, Keane and Gleeson JJ in Alexander v Minister for Home Affairs [2022] HCA 19 at [31]. But that broad statement does not support how the delegate reasoned that an authentic “legitimately issued” certificate, was not “in itself evidence of parentage” with the consequence that only “little weight” could be placed upon it. The material error of law in that reasoning of the delegate is his misunderstanding of the status of the birth certificate as a matter of law and pursuant to Acts made by the Parliament of Victoria. What is indisputable is that a certified entry made by the Registrar of the particulars required to be maintained in the register is prima facie evidence of the facts stated therein. J D Heydon, Cross on Evidence (12 th ed, 2020) at [41040] states:

There are four methods of proving birth. Far and away the most usual at the present day is the production of the certified copy of an entry in the register of births, which may be received as evidence of the facts stated under the exception to the rule against hearsay relating to public documents. The court will require some evidence identifying the person whose birth is in question with the person referred to in the birth certificate.

28    In this case, the delegate accepted the authenticity of the birth certificate and must therefore be taken to have accepted that it is a certificate which evidences the birth of Charlotte.

29    It is, of course, somewhat misleading to speak of evidence in the context of material that is put before a decision-maker upon an application for a certificate pursuant to s 37 of the Citizenship Act. Rather, material that is probative of the issue, whether relevantly admissible as evidence or not, may be placed before and considered by the decision-maker. But, what this excursion into the law of evidence demonstrates is that even in a proceeding that is subject to the rules of evidence, production of a certified extract from a register of births is evidence of the fact of the birth and of each of the facts stated therein. Indeed, as observed by the Full Court of this Court in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 459; [2021] FCAFC 130 at [109] statutory provisions of this type give rise to a “statutory presumption of parentage”, Griffiths, Lee and Abraham JJ.

30    It is clear in my view that the delegate misunderstood the statutory effect of the birth certificate of Charlotte and thereby misdirected himself in the exercise of the statutory discretion that fell to be exercised, which is a well understood error of law: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [123]- [125] and [164] and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Davies J.

31    There are several compounding errors. The delegate proceeded on the wrong assumption that Mr Lieu “consented to his inclusion” on the birth certificate. Putting aside the obvious error that the delegate misunderstood the difference between the content of the register and the certificate issued by the Registrar, no question of parental consent arises. As the statutory scheme that I have summarised makes clear, s 15 of the BDM Act casts upon the parents of a child the responsibility for having the fact of birth registered together with each of the particulars that are required by the Registrar. Those particulars extend to identification of the parents.

32    For the same reason, the delegate erroneously understood that a birth certificate is “completed with information that is self-declared by the informants”. That pejorative language overlooks that it is the statutory obligation of the parents of a child to have a birth registered.

33    Finally, the delegate failed to notice and understand the effect of a certificate once issued by the Registrar pursuant to s 46(2) of the BDM Act and s 8(1) of the Status of Children Act. The delegate was plainly wrong to reason that the certificate, and the information contained therein, is not evidence of parentage. It is prima facie evidence of that fact.

34    In argument, counsel for the Minister pressed two points about this aspect of the delegate’s reasoning. One, the Minister is not subject to, nor bound by, the provisions of Victorian legislation as a matter of law. In the exercise of the statutory power, s 79 of the Judiciary Act is not engaged. That is so, but it fails to address why in the context of an administrative application, the Minister is entitled to dismiss as “not evidence of parentage” a statutory certificate which is prima facie evidence in a legal proceeding. The other, is that properly understood the delegate did give evidentiary weight to the birth certificate albeit “little weight”. That reasoning is inconsistent with the delegate’s finding that the certificate is not evidence of parentage and the attribution of “little weight” is the delegate’s conclusion which flows from his erroneous understanding that Mr Lieu somehow consented to his inclusion as the father on the register and that the certificate is not evidence of parentage. Even if one accepts that the delegate did place weight upon the certificate, what is clear is that the he failed to treat it as prima facie evidence that Mr Lieu is the father of Charlotte. The delegate materially erred in placing ‘little weight” on it.

35    For these reasons, the delegate erred in law in misunderstanding the legal effect of the birth certificate and the decision is infected with an error of law, that was plainly material, within the meaning of s 5(1)(f) of the ADJR Act. Ground 1 succeeds.

Ground 2

36    The complaint under this ground concerns the reasoning of the delegate who, whilst accepting that the material produced from the child support agency was “evidence of child support payments for Mr Lieu”, nonetheless reasoned as follows:

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.

37    It is difficult to understand what the delegate meant in this paragraph. He at least accepted that this material was probative that Mr Lieu is the father of Charlotte. Accepting that as so, it does not at all matter (and it is not to the point) that the payments that are required to be made by Mr Lieu are, in the view of the delegate, “low”. The delegate did not reference any provision of the Child Support (Assessment) Act 1989. Section 3 provides that “the parents of the child have the primary duty to maintain the child”. Child support is defined as “means financial support under this Act, including financial support under this Act by way of a lump sum payment or by way of transfer or settlement of property”: s 5. The Act applies to all eligible children, which relevantly means a child born after the commencement day: ss 18 and 19. A liability for financial support for a child may be imposed administratively under Parts 4 and 5, by consent under Part 6 or by court order under Part 7. In each case it is, and can only be, a liability of a parent. For example, under Part 4, the Registrar must be satisfied that a person is the parent of a child as a jurisdictional prerequisite to the making of an administrative assessment: s 29. One of the ways in which the Registrar may be so satisfied is if the person’s name is entered on a register of births kept pursuant to the laws of a State or Territory, as a parent of the child: s 29(2)(b).

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.

39    For these reasons the delegate erred in law in misunderstanding this statutory scheme, which error was material, with the consequence that the decision involved an error of law within the meaning of s 5(1)(f) of the ADJR Act and this ground is made out.

Ground 3

40    The contention is that the delegate misunderstood the material before him in concluding that the Medicare card was not evidence of parentage. The delegate reasoned as follows:

I have considered the photocopy of a Medicare card (valid to 11/2020) listing both Mr Lieu and Miss Lieu. I place some weight on this as an indication that he has taken some responsibility for Miss Lieu’s well-being since her birth. However, it has not been explained how a copy of Mr Lieu’s Medicare card was provided to the Department on 12 October 2017 when Ms Nguyen stated in her 5 June 2019 statutory declaration that she last had contact with Mr Lieu between October and November 2016. I also note, however, the Services Australia website indicates that Medicare cards are valid for 5 years. This indicates that the Medicare card was obtained in November 2015, approximately 2 months after Ms Lieu was born. I therefore consider that this document, in and of itself, does not provide evidence to support a finding that a parent-child relationship existed between Mr Lieu and Miss Lieu at the time of her birth and that Ms Nguyen and Mr Lieu had a relationship prior to and at the time of birth.

41    Section 10AA of the Health Insurance Act 1973 (Cth) enables a family member to apply for the registration of the family to be a registered family for the purposes of the Act. The members of a person’s family include any dependent child. There was before the delegate a New Born Child Declaration dated 4 September 2015, signed by Mr Lieu and Ms Nguyen and it states that Charlotte is their newborn child. In response to the question: “do you want to add your newborn child to your Medicare safety net?”, the box marked “yes” was completed. At the end of the form Mr Lieu and Ms Nguyen were required to declare that the information in the form “is complete and correct” and to record their understanding that giving false or misleading information is a serious offence. Each did so. The delegate stated that he placed “little weight” on this document for the reason that it is “self-declared” information. He also considered the Medicare card, issued in consequence of the completion and submission of the New Born Child Declaration. He placed “some weight” on the Medicare card as an indication of acceptance of parental responsibility by Mr Lieu, but concluded that the document did not “in and of itself” amount to evidence that Mr Lieu is the father of Charlotte. The reasoning process to that conclusion turns upon the delegate doubting how the Medicare card issued in November 2015, could have been provided to the Department on 12 October 2017, when Ms Nguyen declared in her statutory declaration of 5 June 2019 that she last had contact with Mr Lieu in either October or November 2016.

42    It is difficult to understand what the delegate meant by this pathway in his reasoning which is internally inconsistent. The delegate did not reveal how he reconciled the fact that he placed “some weight” on the Medicare card but concluded that it does not “in and of itself” provide evidence that Mr Lieu is the father of Charlotte. It is plainly evidence that was open to be considered by the delegate in order to be satisfied of that fact. It might not be conclusive or compelling evidence, but that is not how the delegate reasoned. In my view, the objective conclusion which flows from the reasoning of the delegate is that use of the phrase “in and of itself” demonstrates that the delegate considered the Medicare card in isolation from the New Born Child Declaration, and indeed in isolation from all of the other material that was before him. However, this ground of appeal does not contend error of that character. Rather, the focus of the ground is that the delegate misunderstood that only a dependent child may be enrolled as a member of a registered family pursuant to s 10AA of the Health Insurance Act.

43    In my view, this ground is made out for the reason that the delegate must have misunderstood the scheme that is provided for at s 10AA of the Health Insurance Act, which then led him to the erroneous conclusion that the Medicare card is not evidence “in and of itself” that Mr Lieu is the father of Charlotte. The delegate does not mention this provision. Properly directed, the delegate should have understood that 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. The delegate should have concluded that the Medicare card is evidence that Mr Lieu is the father of Charlotte.

44    For these reasons ground 3 is made out.

Ground 4

45    This ground contends that the delegate failed to consider the evidence set out in the New Born Child Declaration. The applicant argues that, although the delegate mentioned the declaration as part of the material that was before him, he did not actively engage intellectually with its content with the consequence that the delegate erred in law in failing to appreciate its significance.

46    The difficulty with this argument is that consideration of the declaration was not mandatory in the exercise of the delegate’s discretion and, as correctly submitted by the Minister, the document was considered: the delegate reasoned that he would place “little weight” on it as the information contained therein was self-declared. The applicant submits that the delegate nonetheless erred in law in failing to appreciate the significance of the declaration and relies upon the decision of Morling J in Donnelly v Australian Telecommunications Commission (1984) 6 ALD 134 at 143 (Donnelly). That case does not support the submission. It concerned an application for judicial review of a decision to the effect that the applicant, who suffered personal injury during the course of her employment, was nonetheless fit to resume duties and was directed to do so. It was argued on behalf of the applicant that the decision reached by her employer was erroneous in law because the decision-maker failed to appreciate the effect of an earlier decision made by a delegate of the Commissioner for Employee Compensation that the applicant was totally incapacitated for work. The employer submitted that any failure to take account of the incapacity determination did not amount to an error of law by reference to the well-known decision of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375:

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

47    Morling J in Donnelly did not consider that to be an answer to the case before him reasoning that, at 143:

I do not think this argument answers this part of the applicant’s case. Whatever view be taken of the ambit of the matters which were relevant for consideration, it is impossible to say that the Delegate’s finding that the applicant was totally incapacitated for work was irrelevant. Further, this is not a case in which the decision-maker merely failed to take into account a particular consideration or to give it particular weight. Mr Butler’s failure to appreciate that the delegate had made a finding that the applicant was unfit for her duties was a misapprehension which, in itself, was an error of law or [sic] the kind referred to in s 6(1)(f) of the Judicial Review Act.

48    That reasoning must be understood in the context of what occurred in that case. Mr Butler, the relevant decision-maker of the employer, had regard to but failed to appreciate the significance of the total incapacity determination, treating it as “being no more than an order that a continuing payment of compensation be made to the applicant” which Morling J found to be erroneous because it ignored “the statutory basis” upon which the determination was made: 142. And the authority that is now binding where error is framed by reference to a failure to take into account a relevant consideration is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; at 39, Mason J:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(Original emphasis.)

49    The delegate in this case was not so bound and in any event did take the declaration into account. For these reasons, ground 4 is not made out.

Ground 5

50    This ground contends that the delegate’s reasoning in relation to the Medicare card is illogical in that there is no inconsistency between provision of a copy of the Medicare card in October 2017, which was some time after Ms Nguyen last had contact with Mr Lieu. In support of this ground, the applicant argues that the conclusion of inconsistency “lacks any logic” as objectively there are many plausible explanations that may be offered as to why Ms Nguyen was able to produce a copy of the Medicare card, despite the ending of her contact with Mr Lieu.

51    As the Minister correctly submits, a high bar is set before an applicant can succeed on judicial review for illogical decision-making: Minister for Immigration and Border protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 at [23] – [25], Murphy, O’Callaghan and Anastassiou JJ; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (Djokovic) at [29] – [35], Allsop CJ, Besanko and O’Callaghan JJ.).

52    I am not satisfied that this ground is made out. Whilst there may be plausible and objectively rational explanations as to why Ms Nguyen was able to produce a copy of the Medicare card long after her relationship with Mr Lieu had ended, it does not follow that the delegate’s conclusion is one that no rational or logical decision maker could have arrived at on the material that was before him. A reasonable decision-maker having regard to all of the material that was adduced on behalf of the applicant may well have reached a different conclusion, but that is not the test. I am not persuaded that the applicant has demonstrated that the conclusion of the delegate “is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question”: Djokovic at [34].

53    Accordingly, ground 5 is not made out.

Ground 6

54    The gravamen of the complaint made is that the decision was legally unreasonable because the delegate refused to accept the best evidence that Ms Nguyen was able to provide, if it is accepted that she cannot contact Mr Lieu in order to provide biological evidence that he is the father of Charlotte.

55    Ms Nguyen in her statutory declaration of 5 June 2019, provided direct evidence that Mr Lieu is the father of Charlotte, that her relationship with him ended approximately three months after the birth of Charlotte and that her last contact with him was either in October or November 2016. She made each of those statements declaring her understanding that the making of an intentionally false statement is an offence contrary to s 11 of the Statutory Declarations Act and that she believed those statements to be true in every particular.

56    The delegate recorded that he had considered the content of that declaration, he acknowledged the making of the statements therein, but reasoned that he did not “place much weight on the claims because of the lack of any separate and verifiable evidence”. And, as I have noted, he further reasoned that there is an inconsistency between the date of last contact and submission of the Medicare card to the Department in October 2017.

57    A person may make a statutory declaration in relation to any matter which may be used “for the purposes of a law of the Commonwealth”, “in connexion with any matter arising under a law of the Commonwealth” or “in connexion with the administration of any Department of State of the Commonwealth”: s 6 of the Statutory Declarations Act. The making of an intentionally false statement in a statutory declaration is a relatively serious offence which carries a maximum penalty of imprisonment of 4 years: s 11. In Grech v Bird (1936) 56 CLR 228 at 243-244, McTiernan J explained the history and purpose of statutory declarations as follows:

The statutory declaration was introduced into New South Wales by the Act 9 Vict. No. 9, passed in 1845. This Act followed 5 & 6 Will. IV. c. 62, and was passed to suppress the practice of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial inquiry or in any pending case. This Act, 9 Vict. No. 9, contained a provision empowering a justice of the peace or other person authorized by law to administer an oath to take and receive the declaration of any person voluntarily appearing before him in cases where it might be necessary to require confirmation of written instruments or allegations or proof of debts or of the execution of other matters. 

58    In Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287 at 308, Sheppard J described the purpose s 6 of the Statutory Declarations Act as:

…if a person is dealing with government and the government official wishes to be assured of some aspect, for instance, of the affairs of the individual, he or she may ask the person seeking it to make a statutory declaration about the matter.

59    In this case, the delegate acknowledged the statement made by Ms Nguyen in her statutory declaration that she last had contact with Mr Lieu in October or November 2016 and since then had made unsuccessful attempts to contact him. The delegate did not say that he disbelieved these statements. Rather, he reasoned that he would not place “much weight” on them absent “separate and verifiable evidence”. The applicant accepts in her submissions that the delegate was not obliged to accept the statements made in her declaration. Her counsel submits that:

To reject all of that evidence out-of-hand on the basis that it was derived from “self-declared information”, and also reject the photographs of Mr Lieu literally in the birthing suite as “contrived” without offering any rational basis for doing so, is to deny the reality that there was nothing more that Charlotte could have practically done. As submitted above, quite what the motive would have been for Mr Lieu to present himself as the father if he was not is entirely unexplained by the delegate; it was and [sic] against his interests to have represented himself as the father if he was not (the most obvious and direct example being his liability to pay child support).

60    The reference to the apparently contrived photographs requires further analysis. The applicant submitted to the Department several photographs which she said depicted Mr Lieu shortly before and shortly after the birth of Charlotte. He is, for example, depicted as holding Charlotte shortly after the birth. Of this material the delegate reasoned as follows:

I have considered the photos provided to demonstrate Mr Lieu’s involvement in the care of Miss Lieu prior to and at the time of her birth. While the photos do show Mr Lieu and Ms Nguyen immediately prior to, and after, the birth of Miss Lieu, I think they have been contrived for the purposes of obtaining citizenship for Miss Lieu. I find it significant that the time in which the photos were taken reflect an extremely narrow period of time and that there are no photos of Mr Lieu with Ms Nguyen prior to the pregnancy and during the pregnancy other than the photos taken immediately prior to, and immediately after, the birth of Miss Lieu.

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.

62     Discretionary statutory power must be exercised in accordance with legal reasonableness: Djokovic at [29], referencing Li at [26] - [29], [63] and [88]. Although the “concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, at [10], Allsop CJ), Gordon J recently and succinctly summarised the principles in Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464; [2022] HCA 15 at [31];

The principles are well established and may be stated shortly. "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker" (emphasis in original). That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process.

(Citations omitted)

63    In my view, the delegate’s decision in this matter was legally unreasonable both in outcome and process, which flows from the several misunderstandings and irrational reasoning that I have identified, compounded by the failure to accept the factual matters that were declared as truthful in the statutory declaration of Ms Nguyen of 5 June 2019. The purpose of the statutory declaration was to provide a mechanism whereby Ms Nguyen could verify the essential facts in the knowledge that an intentionally false statement may subject her to the imposition of a significant criminal penalty. Of course, the statutory declaration was “self-declared”: it could not have been anything else.

64     My conclusion is necessarily fact dependent and rests upon my evaluation of all of the probative material that was before the delegate which I have undertaken guided by the analysis of Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84]:

Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

(Original emphasis.)

65    In my view, no reasonable decision-maker pursuant to the Citizenship Act could have arrived at the same conclusion as the delegate if that person properly understood and gave appropriate weight to all of the material that was submitted. Further, the piecemeal reasoning of the delegate whereby the probative material was individually dissected, put aside or given little or no weight was one that in my opinion no reasonable decision-maker, when assessing all of the material that was relied upon in support of the application, would have engaged in because it deflects attention from the essential question: having regard to all of the material, is it established that Mr Lieu is the father of Charlotte, if it is accepted that Ms Nguyen cannot produce biological proof of that fact? Put another way, the essential error is correctly described in the written submissions of counsel for the applicant in two passages:

The factual quagmire in which Charlotte finds herself, with the inability to contact her father to provide the evidence that the Department insists on (DNA evidence – despite there not being any statutory foundation for such a requirement), is well within human contemplation. But the decision reads as lacking in acknowledging this human side of the matter, and has the practical effect of rendering a 6-year-old Charlotte stateless. What more could she have done?

This is obviously not to say that the decision-maker was required to uncritically accept the evidence that was put forward. But the reasons read as that the decision-maker was determined to apply a reflexive disbelief of every piece of evidence that was put forward; a circular dismissal of “self-declaration”. It was bootstrap logic designed to justify a refusal, paying no regard to the special circumstances of this case. It was legally unreasonable.

66    I agree. This ground is made out.

Conclusion

67    I uphold grounds 1, 2, 3 and 6 of the originating application with the result that I set aside the decision of the delegate made on 29 May 2020.

68    The applicant seeks a further order that the matter be remitted to a person other than the delegate who made the decision, or any other delegate who has made a prior decision in this matter, for determination according to law. In my view, it is appropriate to remit the matter on that basis: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43, Davies and Foster JJ. Many individual delegates have considered the application, or earlier iterations of it, and have reasoned similarly in rejecting the merit of the application. The applicant in my view is entitled to have the discretion exercised by a new and independently minded delegate who is uninfluenced by the course of prior decision-making. Accordingly, this is an appropriate case to make that direction.

69    As to costs, each counsel accepted they should follow the event.

70    I therefore make the following orders:

Associate:

Dated:    4 July 2022