Grounds 2 (and 3) and the amended notice of contention
89 Before explaining why the AAT's finding that Ms Chou had breached s 57 of the BDMR Act and committed an offence involved a legal error, it is first appropriate to deal with why we reject the Minister's contention that even if such an error was established, it is not material and therefore could not amount to jurisdictional error.
90 This contention must be rejected having regard to the fact that s 109(1)(c) of the Migration Act mandates that the AAT, in deciding whether or not to affirm the delegate's cancellation decision, must have regard to "any prescribed circumstances". Pursuant to reg 2.41(j) of the Migration Regulations, one of those prescribed circumstances is whether Ms Chou had committed "any breaches of the law since the non-compliance and the seriousness of those breaches". It was in the context of considering this prescribed circumstance, which may aptly be described as a mandatory relevant consideration (see Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [57] per Stone, Foster and Nicholas JJ), in which the AAT found that Ms Chou had breached s 57 of the BDMR Act.
91 Furthermore, this finding was also expressly relied upon by the AAT explaining why it exercised the discretion to cancel Ms Chou's visa. After stating that it had "considered the totality of the applicant's circumstances", the AAT noted at [73] that it had "formed the view that the applicant breached the law by providing false information in relation to the child's birth certificate".
92 Finally, this finding also evidently influenced the AAT's adverse credibility findings against Ms Chou. As the AAT's reasons at [22] reveal (see [55] above), the finding that Ms Chou had provided "false information" to the Registrar was another factor which led to a finding she was not a person of credibility. This finding provided part of the basis for the AAT's adverse conclusion regarding Ms Chou's credibility. A different conclusion could have been made in the absence of such a finding. This is sufficient to demonstrate the materiality of the AAT's error and constitute a jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [48]-[49] per Bell, Gageler and Keane JJ and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [3] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ).
93 For the following reasons, we find that the primary judge erred in not finding that the AAT committed a jurisdictional error in concluding that Ms Chou had breached s 57 of the BDMR Act and committed an offence. Accordingly, ground 2 of the notice of appeal should be upheld and ground 1 of the amended notice of contention dismissed.
94 First, the AAT erred in finding that the meaning of "parent" in s 15 of the BDMR Act was confined to "biological parent". The meaning of "parent" is obviously critical to any consideration of whether a person breached s 57 of the BDMR Act. The Minister conceded before the primary judge that the AAT's assumption that the meaning of "parent" in the BDMR Act was limited to "biological parent" was incorrect. However, as discussed below, the Minister on appeal seeks to advance that in the circumstances of this case, Mr Benavides was not Sebastian's "parent" at law at the time of the registration of his birth.
95 The concept of "parent" is undefined in the BDMR Act. As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term "parent" are not ordinarily limited to a biological parent (Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [47]-[49] per Moore, Kenny and Tracey JJ; In re G (Children) [2006] UKHL 43; 4 All ER 241at [33]-[37] per Hale LJ). Referring to Baroness Hale of Richmond's observations In re G (Children), the plurality in Masson stated at [29] as to the meaning of "parent" under Div 2 of Pt VII of the Family Law Act 1975 (Cth):
… according to English contemporary conceptions of parenthood, "[t]here are at least three ways in which a person may be or become a natural parent of a child" depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of "parent" in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship's analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of "parent" is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of "parent" and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
96 Similar remarks were made by the Full Court in H v Minister, which concerned two appeals which raised the issue of whether "parent" in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to "biological parent". As to the ordinary meaning of the word "parent", the Full Court remarked at [48]:
While often a person's parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word "parent" is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.
97 At [130], the Full Court made the following observations concerning the AAT's statutory task under the Australian Citizenship Act:
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 within that ordinary meaning. 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 (emphasis added).
98 With these observations in mind (while also being mindful of the dangers of transposing the construction given to a particular term in different statutory contexts), it is apt to note immediately that there is nothing in the terms, context or purpose of the BDMR Act which suggests that the meaning of parent is confined to "biological parent". No definition of "parent" is provided in either the BDMR Act or BDMR Regulations. It can therefore be assumed that the NSW Parliament intended for "parent" to be given its ordinary meaning (see Masson at [26] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ and the cases cited therein). As the above-mentioned caselaw demonstrates, in other statutory contexts, the ordinary meaning of "parent" is not limited to "biological parent". The relevant issue is whether there is anything in the terms, context or purpose of the BDMR Act or BDMR Regulations which justify a different construction.
99 The construction of "parent" as not being confined to "biological parent" is supported by the legislative history of the BDMR Act and BDMR Regulations. In 2008, the NSW Parliament introduced the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) (SSR Act). The long title to the SSR Act provided that it was "[a]n Act to amend various Acts and instruments to make further provision in relation to same sex and other de facto relationships".
100 Prior to the Same Sex Relationships Act, critical provisions of the BDMR Act and BDMR Regulations (then the Birth, Deaths and Marriages Regulation 2006 (NSW)) which are to be construed in this proceeding made reference to "father" and "mother". For example, s 18(a) of the BDMR Act provided that registrable information about the identity of a child's parent could only be included in the Register upon "the father and mother of the child making a joint application". Regulation 5(d)-(g) of the BDMR Regulations also provided for the registration of details concerning the "father" and "mother" of the child. Schedule 3 of the SSR Act amended such provisions to make reference instead to "parent" (see current s 18(a) and reg 5(d)). This indicates that the term was intended to have a broader operation than 'biological father' and 'biological mother'.
101 Furthermore, the SSR Act inserted s 17 of Sch 1 of the BDMR Act and reg 5(3) of the BDMR Regulations (which is extracted at [40] above). Section 17 of Sch 1 makes provision for a woman who is the non-biological parent of a child born before the SSR Act was enacted, who is presumed to be a parent under the Status of Children Act, to make an application for the addition of registrable information as to their identity as a parent on the Register. Regulation 5(3) makes provision for a parent who is the "father" of a child, or a parent who is the "birth mother" of the child, to be identified as the "father" or "mother" upon the Register. The inclusion of these provisions serves to emphasise that the meaning of "parent" within this particular legislative scheme is not intended to be synonymous with "father" or "mother", nor 'biological father' or 'biological mother'.
102 Indeed, with reference to the presumptions of parentage in the Status of Children Act, it is not difficult to conceive of circumstances in which a non-biological parent of a child could be held to be responsible under s 15 for the registration of their birth as a "parent", and therefore would also be included as a "parent" in the particulars provided to the Registrar under reg 5(1)(d) of the Migration Regulations. For example, a couple may use donor sperm through artificial insemination to conceive a child. On the birth of that child, a partner who was not pregnant with the child could, under s 15, be held jointly responsible as a "parent" to register the birth of that child (and indeed an irrebuttable presumption arises against the sperm donor being the father of that child (s 14(3) and (4) of the Status of Children Act)).
103 While this example is far removed from the circumstances here, it is apt to demonstrate that even though Mr Benavides was not the "biological parent" of the child, he nevertheless could have been responsible for registering the child's birth as a "parent" under s 15. As the primary judge noted at [56], the AAT failed to have regard to this "broad legal concept of parentage" in reaching its conclusion that Ms Chou had breached s 57 of the BDMR Act by nominating Mr Benavides as the father of Sebastian on their joint application for a birth certificate. The AAT did not engage in a process of reasoning as to whether Mr Benavides was a "parent" of Sebastian at the time Ms Chou gave notice to the Registrar of his birth as a "question of fact and degree … determined according to the ordinary, contemporary Australia understanding of "parent" and the relevant circumstances of the case at hand" (Masson at [29]).
104 Secondly, we reject the Minister's contention that the concept of parentage, as a matter of law, can never extend to a situation where a person is misled as to their status as a biological parent. As the authorities make clear, both the meaning of the ordinary meaning of the word "parent", and whether a person qualifies as a "parent" are questions which fall to be determined in the "circumstances of the particular case" (Masson at [29]; In re G (Children) at [33] per Hale LJ; H v Minister at [130] per Moore, Kenny and Tracey JJ). The categories of cases in which a person may be held to be a parent are not closed, nor could they be, given the continuing evolution of the concepts of parents and families in Australia's modern society.
105 The Minister's reliance on Magill v Magill [2006] HCA 51; 226 CLR 551 and s 66X of the Family Law Act in support of his preferred construction cannot be sustained.
106 In Magill, the High Court considered whether the common law tort of deceit could be maintained by a husband who had been deceived as to being the biological father of two children born to his wife during the period of their marriage. In holding that the elements of the tort of deceit were not made out, the High Court made a number of observations about the operation of certain legislative schemes concerning parental and family obligations.
107 None of the passages relied upon by the Minister (see [5], [23]-[24] per Gleeson CJ and [66]-[67], [106]-[110] per Gummow, Kirby and Crennan JJ) supports the proposition that a non-biological parent of a child could never be a "parent" in the ordinary meaning of the word. At most, they confirm that under particular legislative schemes, such as 143(1) of the Child Support (Assessment) Act 1989 (Cth) or s 66X of the Family Law Act, a parent may recover amounts paid under maintenance orders or child support arrangements where no liability for such payments existed.
108 Particular emphasis was made by the Minister to references in Magill to s 66X of the Family Law Act. As the Explanatory Memorandum to the Family Law Amendment Bill 2005 (Cth) (which inserted s 66X with effect from 3 August 2005) explained, s 66X intended to enable recovery of payments "where a court determines that a party to a child maintenance order is found not to have been a parent". It can be accepted this included, as the second reading speech to the Family Law Amendment Bill 2005 (Cth) stated, "a right for persons who are determined not to be a parent of a child, through DNA testing or by others means, to recover any monies paid or property transferred for the benefit of that child under maintenance orders" (Commonwealth, Parliamentary Debates, Senate, 16 March 2005, 3 (Christopher Ellison, Minister for Justice and Customs)). However, the fact that a person may recover in such a circumstance does not stand for the proposition that, under an entirely different legislative scheme in the BDMR Act, a "parent" mistaken as to being the biological parent of their child can never be their parent.
109 Thirdly, we agree with the primary judge's conclusion at [56] that in different circumstances, namely that Mr Benavides had been willing to accept Sebastian as his son, then it may not have been necessary to alter the Register as to the Sebastian's parentage. If this had occurred, and Ms Chou had never informed Mr Ben of her suspicions as to Sebastian's biological parentage nor taken a DNA test, then it is at least arguable that Mr Benavides would have been Sebastian's parent at law until or unless proven otherwise, regardless of Mr Benavides' attitude to being the parent of a non-biological child. In this respect, the AAT failed to have regard to statutory presumption of parentage arising from s 9 of the Status of Children Act, which presumed Mr Benavides to be the father of Sebastian at the time of his birth (see also Magill at [105]-[108] per Gummow, Kirby and Crennan JJ).
110 A corollary of this conclusion is that even if it was proved Ms Chou did know for certain, through a DNA test or otherwise, that Mr Ben was the biological parent of her unborn child, unless the evidence also established with certainty that Mr Benavides would not accept the child as his own if he knew it was not his biological child, then Ms Chou cannot be said to have provided a false or misleading representation to the Registrar.
111 Indeed, with reference to the policy objectives of the Family Law Act, Gleeson CJ in Magill recognised that in Australian law, there is no general legal duty to disclose infidelity, including the biological parentage of children resulting from infidelity (at [35], see also at [130] per Gummow, Kirby and Crennan JJ):
One of the obvious difficulties about the topic of paternity, or the wider topic of sexual infidelity (a difficulty that is not peculiar to those topics) is the danger of creating something very close to a legal duty to disclose facts in circumstances where there could be a serious question about the existence of a corresponding ethical obligation. With hindsight, we know that the marriage of the parties to the present proceedings later broke down. Suppose it had not broken down. Suppose that, partly in consequence of the respondent's failure to disclose her infidelity, the marriage had remained intact. Would the respondent at some point have been under an obligation to reveal the truth? It may be one thing to say that, when the respondent claimed that the appellant was legally bound to make child support payments, she ought to have told him that he was not the father of two of her three children. Yet the appellant's case implies that, when she handed him the notification of birth forms to sign, at a time when the marriage was intact, she had a duty to tell him. The Family Law Act declares the need to preserve and protect the institution of marriage. That is a legislative expression of public policy. The imposition of a legal duty of disclosure of infidelity would, in the practical circumstances of many cases, be contrary to that policy. There is no foundation, either in principle or authority, for the recognition of a general duty of that kind. That, however, is not to deny that such a duty could exist in particular circumstances.
Without a legal duty to inform Mr Benavides of her infidelity, nor her suspicions about the biological parentage of Sebastian, it is very difficult to see how Ms Chou could have provided a false or misleading representation to the Registrar unless and until Mr Benavides was aware of such suspicions and decided he did not want to be Sebastian's parent.
112 Fourthly, and related to the third point, the AAT did not make a finding as to whether Mr Benavides was actually misled when he consented to being named as a parent on the information provided to the Registrar. As Ms Chou submits, without first considering this issue, it was not open to the AAT to find that she had committed an offence by misleading the Registrar.
113 At the highest, the AAT found at [11], in dismissing Ms Chou's version of events, that given Ms Chou's earlier statements that she knew Mr Benavides was not the father because they did not have sexual relations at the relevant time, this "should have been equally obvious to the sponsor". On one view, this could be seen as a finding that Mr Benavides knew or suspected the true position as to Sebastian's biological parentage. If this view is taken, then Ms Chou cannot be said to have misled the Registrar, as Mr Benavides knew, or at least suspected, he was not the biological father, but signed the registration application anyway as a "parent" of Sebastian. On the other view, this finding was confined to addressing the counterfactual that claims made by Ms Chou's statutory declaration in support of Mr Ben's visa application were true (which the AAT rejected). If this view is taken, than the AAT failed to make a finding as to whether Mr Benavides was misled or not.
114 Regardless of which view is taken of [11], it merely highlights that the AAT approached its consideration of whether Ms Chou breached s 57 of the BDMR Act on an incorrect understanding of the law, which error was material in the relevant sense described in the caselaw above, and amounted to jurisdictional error (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [68] per Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288; 159 ALD 199 at [69] per Griffiths J). Accordingly, ground 2 of the notice of appeal should be upheld (which renders it unnecessary to determine ground 3, which focuses upon the adequacy of the AAT's reasons but that falls away where those reasons are directed to a legally erroneous matter). Another necessary consequence of upholding ground 2 of the notice of appeal is that ground 1 of the amended notice of contention must be dismissed.