Federal Court of Australia Edmonds v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1341 Appeal from: Edmonds v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3191 File number(s): NSD 394 of 2023 Judgment of: GOODMAN J Date of judgment: 26 October 2023 Date of publication of reasons: 2 November 2023 Catchwords: MIGRATION – application for extension of time in which to seek judicial review of a decision of the Tribunal concerning a visa cancellation decision – Minister conceded jurisdictional error – proposed consent orders – jurisdictional error established to the satisfaction of the Court – relief granted Legislation: Family Law Act 1975 (Cth), ss 4, 4AA, 60EA, 60H Migration Act 1958 (Cth), ss 499, 501(3A) Cases cited: Edmonds v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3191 Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: Determined on the papers Counsel for the Applicant: Mr P Reynolds Solicitor for the Applicant: Varess Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice Table of Corrections 9 November 2023 The orders are varied to include Order 1A. ORDERS NSD 394 of 2023 BETWEEN: KELLY RUTH EDMONDS Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: GOODMAN J DATE OF ORDER: 26 OCTOBER 2023 BY CONSENT, THE COURT ORDERS THAT: 1. The hearing listed before Justice Goodman at 10:15am on 2 November 2023 be vacated. 1A. Pursuant to s 477A(2) of the Migration Act 1958 (Cth) the application for an extension of time be granted. 2. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 28 September 2022. 3. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 11 July 2022 according to law. 4. The first respondent pay the applicant's costs as agreed or assessed. THE COURT NOTES THAT: 1. In reviewing an application made to it pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth), the second respondent (Tribunal) was required to have regard to the considerations arising in Ministerial Direction no.90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, made under s 499 of the Migration Act 1958 (Cth) (Direction 90). One of those considerations concerned the "best interests of minor children in Australia", under paragraph 8.3 of Direction 90, and in that regard, the Tribunal was required by virtue of subparagraph 8.3(4)(b) of Direction 90 to consider "the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account…any Court orders relating to parental access and care arrangements". 2. In so doing, at [71] of its decision, the Tribunal found that it was not clear that even if the applicant were to remain in Australia, she would be able to play a role, particularly a significant role, in the lives of the children. In support of this finding, the Tribunal placed particular reliance on the fact that the applicant was not the biological mother of the children. It noted its understanding that for the purposes of the Family Law Act 1975 (Cth) (FLA), the biological mother was the 'parent' of the children. It referred to the evidence that the biological mother did not want the applicant to have any role in the lives of her children and that absent any agreement, the applicant would need to seek Parenting Orders through the family law system. The Tribunal considered that there was not enough evidence to ground any view as to whether the applicant would be successful in obtaining such orders. 3. The first respondent concedes that the Tribunal's reasoning at [71] was illogical. Specifically, there was no logical basis for the Tribunal's apparent finding that in respect of custody for or access to the children identified as "R" and "O" in the family law system, the applicant had a disadvantageous position compared to the biological parent identified as "H". In this regard, it is noted: (a) There was evidence before the Tribunal that "R" and "O" were born via a sperm donor arrangement (Transcript page 24 lines 33-35 and para 10 of the Applicant's statutory declaration: CB 671. See also the decision of the first respondent's delegate at CB 19 [64]); (b) It follows from this evidence, which the Tribunal noted and did not reject (at [40]), that "R" and "O" were taken to be the children of both the applicant and the biological mother, "H", for the purposes of the FLA and any custody and access arrangements in the family law system (see s 60H of the FLA, and the definition of "artificial conception procedure" in s 4 thereof). 4. The first respondent concedes that the Tribunal's illogical reasoning at [71] was material as it likely infected its assessment of the role that the applicant might play in the lives of "R" and "O", and ultimately the weight it gave to the best interests of the children: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [46]. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J A. Introduction 1 This proceeding was scheduled for hearing today. On 26 October 2023, I made orders by consent for the issue of: (1) a writ of certiorari directed to the Administrative Appeals Tribunal quashing its decision dated 28 September 2022 concerning the applicant; and (2) a writ of mandamus directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent Minister dated 11 July 2022 according to law. 2 Before making those orders I satisfied myself by reference to the materials filed on this application that the Tribunal had made a jurisdictional error. It is appropriate, despite the Minister's consent to the orders made, that I set out my reasons for reaching that conclusion: see Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at 327 [12] (French J, as his Honour then was); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3] to [6] (Colvin J). B. Background 3 The applicant is a female citizen of New Zealand. From 2006, the applicant was in a relationship with a woman "H" and it appears to be common ground that the applicant and "H" were de facto partners within the meaning of s 60EA of the Family Law Act 1975 (Cth), when read with s 4AA of that Act. During that relationship (which has now ended) "H" gave birth to "R" and "O". "R" and "O" were conceived via a sperm donor arrangement. 4 On 20 January 2021, the applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The applicant's application for revocation of the cancellation decision was refused by a delegate of the Minister and the applicant then sought review of the delegate's decision by the Tribunal. 5 The Tribunal undertook a review of that decision. In undertaking that review, the Tribunal was required to have regard to the considerations arising in "Ministerial Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA", made under s 499 of the Migration Act (Direction 90) including, under paragraph 8.3 of Direction 90, the "best interests of minor children in Australia". Paragraph 8.3(4)(b) of Direction 90 required the Tribunal to consider "the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account…any Court orders relating to parental access and care arrangements". 6 On 28 September 2022, the Tribunal affirmed the delegate's decision and published its Reasons for doing so: Edmonds v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3191. Relevant to the consideration described in paragraph 8.3(4)(b) of Direction 90, the Tribunal in its Reasons stated: 40. When questioned about her children, the applicant said she had three children. They were the biological children of her partner H and a sperm donor Mr M. It would appear that Mr M played some limited role in the children's lives, although they appear to have been cared for, at least for a period prior to each of them being convicted and sentenced to jail, by the applicant and her partner. ... 71. I accept that the applicant wants to play a role in her children's lives. However, it is not clear that even if the applicant were to remain in Australia that she would be able to play a role, particularly a significant role, in the children's lives. She is not the biological mother of the children, and her evidence was that the biological mother, H, did not want the applicant to have any role in the lives of her children. I note that for the purposes of the Family Law Act 1975 (Cth), the biological mother is the 'parent' of the children, and in the absence of any agreement, the applicant would need to seek Parenting Orders through the family law system. There is simply not enough evidence to come to any view as to whether or not she would succeed. ... 80. In weighing the evidence as a whole, although it is clearly in the best interest of the minor children to have a relationship with the applicant given that she has played some role in their lives, there is no certainty as to the role she may be able to play in their lives in the future. Indeed, there is significant uncertainty as to her current and future relationships with the three children she shares with her partner H. There was also no evidence as to the views of Mr M, the biological father of the children, who was said to have some role in their lives although this was not clearly enunciated. 7 On 1 May 2023, the applicant applied to this Court for an extension of time in which to lodge an application for judicial review of the Tribunal's decision. The Tribunal filed a submitting appearance. C. Consideration 8 Paragraph [71] of the Reasons proceeded on the assumption that only "H" (as the biological parent) – and not the applicant – was a parent of "R" and "O", and thus that the applicant was at a disadvantage in any application for custody or access to those children. 9 The Minister conceded that the Tribunal's reasoning at [71] was illogical. That concession was appropriate when regard is had to the operation of s 60H of the Family Law Act, which provided in so far as is presently relevant: 60H Children born as a result of artificial conception procedures (1) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or ... then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act: (c) the child is the child of the woman and of the other intended parent; and (d) if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person. ... (5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent. ... 10 "Artificial conception procedure" was defined in s 4 of the Family Law Act as including artificial insemination; and the implantation of an embryo in the body of a woman. It is common ground that it is broad enough to include the procedure used to conceive "R" and "O". 11 The effect of s 60H, in the present case, is that: (1) s 60H(1)(a) is satisfied with respect to each of "R" and "O" because each of them was a child born to a woman ("H") as a result of the carrying out of an "artificial conception procedure" while she was a de facto partner of the applicant (i.e. the other intended parent); (2) s 60H(1)(b) is satisfied because "H" and the applicant consented to the carrying out of the artificial conception procedure, as did the sperm donor (such consents being presumed by dint of s 60H(5) absent proof of the contrary); and (3) as a result, each of "R" and "O" is, for the purposes of the Family Law Act, a child of both the applicant and "H" (s 60H(1)(c)) but not a child of the sperm donor (s 60H(1)(d)). 12 The Minister also conceded that the Tribunal's reasoning at paragraph [71] of the Reasons was material as it likely infected the Tribunal's assessment of the role that the applicant might play in the lives of "R" and "O", and ultimately the weight the Tribunal gave to the best interests of the children. That concession was also appropriately made. The materiality of the reasoning in paragraph [71] of the Reasons is evident from (at least) paragraph [80] of the Reasons. D. Conclusion 13 For the above reasons, I concluded that the Tribunal had made a jurisdictional error, and I made the orders sought by the applicant and the Minister. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 2 November 2023