FEDERAL COURT OF AUSTRALIA Nakad v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 810 Citation: Nakad v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 810 Appeal from: Nakad v Minister for Immigration & Anor [2013] FMCA 234 Parties: JULIANE ANTOINE NAKAD, MARIA NAKAD and JOSEPH ANTOINE NAKAD v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 735 of 2013 Judge: RARES J Date of judgment: 1 August 2013 Legislation: Family Law Act 1975 (Cth) Migration Act 1958 (Cth) s 5CA Migration Regulations 1994 (Cth) reg 1.03, Sch 2, cl 802.212(1) Cases cited: Nakad v Minister for Immigration & Anor [2013] FMCA 234 referred to Date of hearing: 1 August 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Appellants: Ms M Nakad as litigant representative Solicitor for the First Respondent: Ms Buchanan of the Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 735 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: JULIANE ANTOINE NAKAD First Appellant MARIA NAKAD Second Appellant JOSEPH ANTOINE NAKAD Third Appellant AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 1 AUGUST 2013 WHERE MADE: SYDNEY BY CONSENT THE COURT ORDERS THAT: 1. Mona Nakad be appointed as litigation representative of the appellants for the purposes of this appeal. THE COURT ORDERS THAT: 2. The application be dismissed. 3. The litigant representative of the appellants pay the first respondent's costs Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 735 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: JULIANE ANTOINE NAKAD First Appellant MARIA NAKAD Second Appellant JOSEPH ANTOINE NAKAD Third Appellant AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 1 AUGUST 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of the then-called Federal Magistrates Court, refusing Constitutional writ relief in respect of the decision by the Migration Review Tribunal given on 11 June 2012 to affirm the Minister's delegate's decision not to grant the appellants child residence visas: Nakad v Minister for Immigration & Anor [2013] FMCA 234. The appellants' mother has represented their interests today as their litigation representative. Background 2 The appellants applied to the Department for Child (Residence) (Class BT) visas on 7 March 2012 using the Migration form 40CH headed "Sponsorship for a child to migrate to Australia". Form 40CH provided in item 9 in part B for an indication of the child's relationship to the sponsor. In this case, their uncle was the appellants' sponsor. Item 9 noted that, for the purposes of the form, a "child" included a "natural child", being a biological child of an Australian parent, or, relevantly, a nephew or niece. That latter category was ticked by the uncle, who was then directed to proceed to part E of the form headed, "Part E – Orphan relative". Item 12 in the form below that heading enquired whether the child's parents were both either dead or of unknown whereabouts, or permanently incapacitated, to which the uncle responded "No". 3 The delegate refused to grant the visa on 16 March 2012 and the appellants applied shortly thereafter to the Tribunal for a review of that decision. The Tribunal found that the appellants' parents were not Australian citizens or capable of being their sponsors. It found that the parents had custody of the appellants and were responsible for them, and although there may have been some limited financial dependence on their uncle, they were not, for legal purposes, his children. Accordingly, the Tribunal determined that the person who sponsored the appellants was their uncle, and that they were not his children for the purposes of the Migration Regulations 1994 (Cth) and the Migration Act 1958 (Cth). 4 The grounds of the appellants' application to the Federal Magistrates Court were that the Tribunal had misapplied the law and that the Department had misled the appellants by indicating on form 40CH that the sponsor was not required to be the natural father or biological parent. The legislative Scheme 5 The criteria for the grant of the visa required the appellants to be dependent children "of a person who is an Australian citizen" for relevant purposes under cl 802.212(1) of Sch 2 of the Regulations. "Dependent child" was defined in reg 1.03, relevantly, as a child of the person who had not turned 18. And s 5CA of the Act provided that, without limiting who was a child of a person for the purposes of the Act, someone who was a child of the person within the meaning of the Family Law Act 1975 (Cth), other than an adopted child of that person within the meaning of that Act, was "the child of a person" for the purposes of the Act. The Family Law Act provided that a child was a child of a person or a child of a marriage or other relationship. The decision below 6 Her Honour comprehensively explained the legislative scheme applicable, and found that, in the circumstances, where both of the appellants' parents were living, it was open to the Tribunal to find that they were not dependent children of their uncle. Indeed, her Honour found that none of the appellants was a child of his at all for any legal purpose. In my opinion, her Honour's decision was correct for the reasons that she gave. 7 Her Honour held that, on the material in evidence adduced before it and for the reasons that the Tribunal had given, it was open for the Tribunal to conclude, as it did, that the appellants did not meet the requirements of cl 802.212(1), because they were not the dependent children of the uncle, who was an Australian citizen and their sponsor. 8 Similarly, her Honour found that, because the appellants' parents had custody of them and were responsible for them, there was no possibility that their uncle could fall within a situation that was contemplated in other circumstances in the Act under which they could be his children. Conclusion 9 I can see no conceivable error in what her Honour said. She was plainly correct. For those reasons, the appeal must be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 13 August 2013