Minister for Immigration, Citizenship and Multicultural Affairs v Su

Decision of the tribunal 4 The Tribunal concluded that Ms Jagelman was Ms Su's parent at the time of Ms Su's birth. The reasoning of the Tribunal is found in TR [30]-[33], where the Tribunal said: [30] Critically, I am satisfied these facts show the circumstances of Ms Jagelman being Ms Su's parent only arose because she was born with substantial health issues and expected to have significant disabilities and, if this was not the situation, Ms Su would not have been abandoned by her biological parents. [31] Considering the policy guidance in CPI 23, I find that the sort of evidence listed to show a claimed parent-child relationship existed at or before the time of a child's birth, is not relevant to the factual circumstances of the birth of Ms Su. Therefore, I also weigh relevant social and/or legal factors to determine whether Ms Jagelman was the parent of Ms Su at the time of her birth. [32] Consistent with the Full Federal Court decision H v Minister, I accept that the meaning of 'at the time of the birth' should be given its ordinary meaning as evident in ordinary contemporary English usage, and I should not attribute some technical meaning to the word. In view of this, I simply cannot accept that 'at the time of the birth' is the precise moment in time on a particular day that a child is born. This interpretation would not allow for the various experiences of birth that occur in the ordinary sense of the word. [33] In the circumstances of Ms Jagelman and Ms Su, I find that Ms Jagelman became Ms Su's parent at the time she was born with substantial brain haemorrhaging and was expected to have significant disabilities. I accept the evidence of Ms Jagelman that a child born in the area with a physical 'defect' was either abandoned or killed at that time. I further consider that these social and cultural circumstances at the time of Ms Su's birth meant that, especially in the context of Ms Jagelman already raising two older boys she received in very similar circumstances, Ms Su would be abandoned by her biological parents when she was born with disabilities and she would be parented by Ms Jagelman.

GRounds of "Appeal" 5 By an amended notice of appeal, the Minister states two questions of law: (1) Whether the Tribunal's interpretation of the phrase "at the time of the birth" in s 16(2)(a) of the Act was correct as a matter of law. (2) Whether the facts as fully found by the Tribunal fall within s 16(2)(a) of the Act, properly construed.

COnsideration 6 The Minister contends that: (1) The Tribunal ought to have construed the phrase "at the time of the birth", in s 16(2)(a) of the Act, as meaning the precise moment in time on the particular day that a child is born; and (2) The facts as found by the Tribunal fell necessarily outside the description of "at the time of [Ms Su's] birth" in s 16(2)(a) of the Act, properly construed. 7 Ms Su contends that: (1) The Minister's appeal does not raise questions of law; and (2) The conclusions reached by the Tribunal were reasonably open on the facts as found and the Tribunal did not err in reaching its conclusion that Ms Jagelman was Ms Su's parent at the time of her birth. 8 The parties' contentions are to be understood against a background of decided cases, in particular, the decisions in H v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393 and Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82; (2021) 284 FCR 346. 9 In H, the Full Court (Moore, Kenny and Tracey JJ): (a) decided that: the word "parent" in s 16(2) was not limited to a biological parent and that a non-biological parent could be a "parent" depending on the circumstances (at [127]). The determination of whether an individual is a child's parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological (at [129]); (b) accepted that the words "at the time of the birth" in s 16(2)(a) qualify both the status of being a parent and the parent's citizenship (at [67]-[68]). In other words, the section requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen. 10 In Koka the second of these propositions was confirmed. The Full Court agreed with the primary judge that, except for express exceptions for which it provides, the provisions of the Act dealing with citizenship by descent focus on the factual situation as at the time of the physical birth of a person (at [31]-[32]). The ordinary meaning of the words used in s 16(2) was that the eligibility requirements needed to be established at the time of birth as a matter of fact. As the Full Court said (at [35]): [Section 16(2)(a)] is concerned with the factual question of whether, when a child is born, she or he has - at that particular point in time - a 'parent' (construed in accordance with H) who is an Australian citizen. 11 Against that background, it was accepted by both parties and the Tribunal, that the phrase "at the time of the birth" was to be given its ordinary meaning. 12 Ms Su submitted that as the ordinary meaning of words is a question of fact, the first ground of appeal did not properly raise a question of law. The second ground of appeal could only engage a question of law if the Tribunal failed to conform to legal requirements as to the nature of the fact-finding task required to be undertaken. This condition was said to not be satisfied as none of the evidence taken into account by the Tribunal was irrelevant to the task it was required to perform. 13 Ms Su's contention is not accepted. When it is necessary to engage in a process of statutory construction, a question of law will be involved. However, that question may be a mixed one of fact and law. The right of appeal under s 44 of the AAT Act is not confined to "pure" questions of law but may extend to a mixed question of fact and law: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [192]. 14 Following the decision of the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; (2020) 270 CLR 494 (esp at [41]-[45]), the following principles are relevant: (1) Whether the words used in a statute bear their ordinary meaning is a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 397. (2) The question of whether the facts fully found fall within the provision of a statute properly construed will very frequently be exclusively a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7-8; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]-[25]. (3) Special considerations apply where a statute, on examination, is found to use words according to their common understanding and the question is whether the facts as found fall within those words. In such cases, the question raised is whether the conclusion drawn by the tribunal/decision-maker was unreasonable: Hope at 7; Vetter at [25]-[26]. If different conclusions are reasonably open, the determination of which is correct is a question of fact: Vetter at [26]. (4) A question exclusively of law arises if on the facts only one conclusion is open: Vetter at [27]; Hope at 9. 15 These principles were encapsulated by the High Court in Pharm-A-Care in a single sentence (at [41]): Within the bounds of reasonableness, the application or non-application of the common understanding of an expression used in a statute to facts that have been found is itself a question of fact. 16 A finding of fact can be erroneous in law if the finding is reached through the application of a wrong legal test: Pharm-A-Care at [44]. This may occur if the decision-maker has not applied the well understood ordinary meaning of a term but has given to it a meaning or qualification of his or her own: Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 707; (1995) 59 FCR 6 at 12. Sharp Corporation was cited with approval by the High Court in Pharm-A-Care. 17 The Minister does not contend that the Tribunal erred (at TR [32]) in concluding that the meaning of "at the time of the birth" in s 16(2) should be given its ordinary meaning. That conclusion is supported by the text and context of s 12(1)(a), the grammatical structure of which is similar to that of s 16(2)(a). A description of the statutory context is to be found in the reasons of the primary judge in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471 at [37]-[48]. There is nothing in the statutory context that suggests that the phrase "at the time of the birth" bears a meaning other than its ordinary meaning. 18 Accepting that the words "at the time of the birth" when used in s 16(2) bear their ordinary meaning, there will be an error of law if the facts as found admit of only one conclusion (that is contrary to that reached by the Tribunal) or if the Tribunal has failed to apply the well understood meaning of those words. 19 The Minister contended that, consistent with the decision of the Full Court in Koka, the ordinary meaning of the phrase "the time of the birth" means the time of the physical birth. That time was not a period of indefinite duration, but is the moment the child "physically emerges from the mother or gestational carrier". We pause to note that the term "gestational carrier", which derives from the context of surrogacy, serves to emphasise the broad range of experiences that fall within the ordinary meaning of the term "birth" in the phrase "at the time of the birth". We will use the phrase "birth mother" to refer to the person who gives birth to the relevant applicant for citizenship by descent. 20 Ms Su contended that just as determining for the purposes of s 16(2) of the Act whether an individual is a child's parent requires an evaluative exercise, so does the determination of "time of the birth". It was submitted that in ordinary parlance, "time of the birth" extended beyond the moment of delivery and may include "the first few days of a newborn baby's life" or at least extended to the whole of the day of the birth. 21 Ms Su's contentions are not accepted. The determination of "time of the birth", as that term is ordinarily understood, does not require an evaluative exercise of the kind required to be undertaken in determining whether the relationship of one individual to another is to be characterised as that of parent to child. It requires the identification of the time at which the child is born. The reference to "the time" in this context refers to a point in time at which an event, namely birth, might be said to occur. It does not refer to an entire day. 22 Support for this construction is found in the statutory context. The Act draws a distinction between the time the person is born and the day the person is born. Section 12(1) of the Act 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. 23 The time of birth of a child is not a period of indefinite duration. In its ordinary meaning the phrase denotes the point in time from which a baby exists or starts life outside of his or her birth mother's body. It is not necessary for the purposes of this case to define the precise moment a child is born as a matter of fact, whether that be, for example, the moment the baby completely exits the birth mother's body, takes his or her first breath, or is finally separated by the cutting of the umbilical cord. The precise moment of birth as a matter of fact may vary depending on the particular circumstances in a given case. However, irrespective of the identification of the precise moment at which a baby might be said to have been born, the phrase "the time of the birth" denotes a narrow window of time. It does not extend to a period of hours after any one or all of the events we have identified has occurred. 24 The Tribunal made an error of law in failing to "accept that 'at the time of the birth' is the precise moment in time on a particular day that a child is born". In so doing, the Tribunal failed to apply the well understood meaning of those words. The time of physical birth is not affected by wider social and cultural circumstances existing at that time. 25 The facts, as found by the Tribunal, admit only of the conclusion that Ms Jagelman was not Ms Su's parent at the time of birth. Ms Jagelman assumed parental responsibility for Ms Su after Ms Su's birth. Whilst it is correct to recognise, as the Full Court in H did, that conduct after birth can support an inference as to whether a parental relationship existed at the time of birth, it does so where the conduct after birth forms part of a course of conduct commencing prior to birth. That is not this case. 26 On the basis of the facts as found by the Tribunal, although Ms Jagelman had undertaken a prenatal check of Ms Su's biological mother when she was five months pregnant, Ms Jagelman did not at the time of that check, or any time prior to being informed of Ms Su's birth, acknowledge, represent or assume any parental responsibility for Ms Su. After being informed in the street by a colleague that Ms Su had been born with substantial brain haemorrhaging, Ms Jagelman stated that she would raise Ms Su as her own child if she found that there were signs of brain damage. Ms Jagelman went to the hospital and spoke with the birth parents. Upon being informed by Ms Jagelman that the paediatrician had confirmed that it was very likely that the baby had brain damage, the birth parents immediately walked out of the hospital. Ms Jagelman became Ms Su's parent thereafter. 27 The requirements of s 16(2) extend beyond a requirement that a person have a parent who is an Australian citizen. It contains a timing requirement that qualifies both the status of being a parent and the parent's citizenship. As the Full Court observed in H (at [122]): …s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. 28 The application of that narrow time requirement to the facts of the present case is heartbreaking. Ms Jagelman's dedication and devotion to her daughter is unquestionable. The effect of that dedication and devotion on Ms Su was aptly described in submissions as miraculous. A child abandoned at birth because of diagnosed brain damage now lives as a healthy young woman. However, the pathways to Australian citizenship chosen by Parliament are circumscribed by arbitrary lines. The fairness of those lines reflect the legislative policy choices made by Parliament. 29 As the facts have been fully found by the Tribunal and there is only one conclusion open on the facts as found by the Tribunal, it is appropriate for this Court in exercising the power under s 44(4) of the AAT Act, to set aside the Tribunal's decision and make a decision in substitution for that made by the Tribunal, thereby relieving the Tribunal and the parties of the burden of a further hearing: see McKenzie v Repatriation Commission [2014] FCA 777 at [78] and the authorities cited therein. 30 The Minister did not seek costs of the proceeding. On the other hand, counsel for Ms Su sought an order for costs, even in the event that the Minister was successful, submitting that this was a "test case". An award of costs is discretionary, and usually in the exercise of this discretion the order for costs should follow the event: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [241]. While the issue raised in this proceeding was an important question involving the construction of s 16(2) of the Act, a question involving the construction of a governing statute is a common feature of an appeal on a question of law from the Tribunal under s 44 of the AAT Act. We are not persuaded that there are any features of this case that warrant an order more favourable to Ms Su than that sought by the Minister. Therefore, there will be no order as to costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wheelahan, Cheeseman and Hespe.