Re John Lowe; Brenda Margaret Lowe and Indiana Lowe v the Minister of Immigration, Local Government and Ethnic Affairs and Attorney-General of New South Wales [1988] FCA 359 (14 October 1988)

FEDERAL COURT OF AUSTRALIA

Re: JOHN LOWE; BRENDA MARGARET LOWE and INDIANA LOWE
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and
ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES
No. NG 1290 of 1988
Immigration - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Immigration - Application for entry permit in respect of adopted child of Australian parents - Child adopted in China in accordance with Chinese law - No prior arrangements for adoption made with New South Wales authorities - Refusal by Minister of application - Proceeding for review of decision.

Practice and Procedure - Application for order declaring adoption made in China to be effective for purposes of New South Wales law - Jurisdiction vested in Supreme Court of New South Wales - Exercise of jurisdiction by Federal Court pursuant to cross-vesting legislation.

Administrative Decisions (Judicial Review) Act 1977 s.5.

Jurisdiction of Courts (Cross-Vesting) Act 1987 s.9.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ss.3, 4.

Adoption of Children Act 1965 (NSW) ss.46, 47.

HEARING

SYDNEY
14:10:1988

Counsel for the Applicants: Mr C. J. Stevens and Mrs P. Sharp

Solicitors for the Applicants: Dibbs Crowther and Osborne

Counsel for the First Respondent: Mr P. Hastings

Solicitor for the First Respondent: Australian Government Solicitor

Appearance for the Second Respondent: Mr S. Hogan (Solicitor)

Solicitor for the Second Respondent: Mr H. K. Roberts, Crown Solicitor for New South Wales

ORDER

It be declared that Indiana Lowe became the adopted child of John Lowe and Brenda Margaret Lowe under the laws of the Peoples Republic of China on 27 October 1987 and that this adoption is an adoption to which s.46 of the Adoption of Children Act 1965 (NSW) applies.

The applications made to the first respondent, the Minister for Immigration, Local Government and Ethnic Affairs, for the issue of a permanent entry permit and a temporary entry permit in respect of Indiana Lowe be remitted to him for further consideration.

The costs of today be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

An Application has been brought before the Court on short notice on behalf of John Lowe, Brenda Margaret Lowe and Indiana Lowe. The respondents to the Application, are the Minister for Immigration, Local Government and Ethnic Affairs and the Attorney-General for the State of New South Wales. Upon the return of the matter a solicitor employed by the Crown Solicitor for New South Wales appeared on behalf of the Attorney-General and indicated that the Attorney-General wished to submit to such order as the Court may make except in regard to costs. The solicitor informed the Court that he had made inquiries both from officers of the New South Wales Department of the Attorney-General and officers of the New South Wales Department of Family and Community Services and that his instructions were that neither Department wished to oppose the granting to the applicants of relief under s.47 of the Adoption of Children Act 1965 (NSW). Counsel for the applicants then informed the Court that they sought an order under that section and that, thereafter, the matter be remitted to the first respondent, the Minister for Immigration, Local Government and Ethnic Affairs, for reconsideration of the applications of the first two applicants for either a permanent entry permit or a temporary entry permit in respect of the third applicant.

2. The first and second applicants are husband and wife. They were married in Australia in 1971 but they have not been able to have children. Mr and Mrs Lowe decided that they would like to adopt a baby. Although he is a naturalized Australian, Mr Lowe is of Chinese origin, so Mr and Mrs Lowe made inquiries about the availability of a baby in China. These inquiries revealed that a baby girl living in Zhongshan in the province of Guangdong was available for adoption. This little girl, who was born on 28 June 1987, is called Indiana by Mr and Mrs Lowe and she is the third applicant in this proceeding.

3. Mr and Mrs Lowe travelled to China and the necessary arrangements were made with the Chinese authorities for the adoption of Indiana by Mr and Mrs Lowe. I need not go into the detail of all that was required; but it appears that, pursuant to the requirements of Chinese law, Mr and Mrs Lowe had to supply considerable information to the Social Welfare Department of the Zhongshan City Social Welfare Department. Information had also to be supplied by the Australian Embassy in Beijing.

4. In due course an adoption certificate was issued by the Zhongshan City Social Welfare Department. An authenticated translation of this certificate is in evidence. The certificate reads as follows:

"Aoloptive (sic) parents:Liu Yizhang (Lowe John),
male, born in 1935, now
residing in Australia.
Brenda Margaret Lowe,
female, born in 1939, now
residing in Australia.
Adopted person: Liu Liya, female, born in
1987, now residing at 503
Dormitory of Bulb Factory,
Doufu Lane, Shiqi, Zhongshan
City, Guangdong Province.
This is to certify that Liu Liya was born on
June 28, 1987 in Zhonghsan City, Guangdong Province,
and lived at the Department of Sosial (sic) Welfare,
Zhongshan City. Liu Yizhang and Brenda Margaret Lowe
adopted her (named Liu Liya, Indiana Olivia Lowe) on
Oct. 27, 1987 after consulting with the Department of
Social Welfare, Zhongshan City."

The certificate is signed by a Notary at the Zhongshan Notary Public Office, Guangdong Province and dated 28 October 1987. The authenticity of this certificate, and its effectiveness under Chinese Law, are accepted by officers of the Australian Embassy in Beijing.

5. Mr and Mrs Lowe then sought to bring the child back to Australia. At that stage they ran into difficulties. Their problem apparently was that they had not approached the relevant State authorities before making the arrangements in China. They say that they did not appreciate that this was necessary. When the matter was taken up with the New South Wales Minister for Family and Community Services, she advised that approval would be given by her Department only in a case where the adopting parents have been assessed and approved by the Department and they are adopting in accordance with an approved program in an overseas country. There is apparently no approved program operating in respect of China. The Minister for Immigration, Local Government and Ethnic Affairs has felt a difficulty in issuing an entry permit, unless and until the adoption was recognized by the State authorities. Consequently, there has been an impasse which, despite the best efforts of Mr and Mrs Lowe, has gone on now for nearly 12 months.

6. The attitude which has been taken by the Minister for Immigration, Local Government and Ethnic Affairs, is that he has refused the applications made to him, in the alternative, for a permanent or a temporary entry permit. However, he has done so on the basis that the adoption is not recognized under New South Wales law. The Minister has reserved his position in the event that the adoption does become recognized under New South Wales law. Although the Minister has not committed himself in any way, it is a fair reading of the decision made by the Minister that he would be prepared sympathetically to re-examine the applications for a permit if and when such recognition occurred.

7. This proceeding is brought to the Court in an endeavour to resolve the problem which has occurred. The Application, which was filed yesterday morning, is brought under the Administrative Decisions (Judicial Review) Act 1977. It seeks review of the various decisions made by the Minister in connection with the matter; including particularly the decision to refuse the entry permits. A number of grounds are set out in that Application. They need not be stated at this stage. The relief which is sought includes orders quashing those various decisions and various declarations, and orders to the Minister, in respect of the issue of either a visa or an entry permit. Ancilliary to that application -- and this is the reason why the Attorney-General of New South Wales has been added as a respondent -- is a prayer for a declaration that the adoption of Indiana Lowe is one to which s.46 of the Adoption of Children Act (NSW) applies. As I have said, it is this relief which is pressed at this stage. Despite the fact that the solicitor appearing on behalf of the Attorney-General has indicated that there is no opposition to the making of such an order, it is necessary for me to satisfy myself as to the ingredients in making such an order before exercising the power of the Court in regard thereto.

8. I should say in regard to jurisdiction that, but for the enactment of the Jurisdiction of Courts (Cross-Vesting) Act 1987, there may have been real difficulty in this Court exercising the power given by s.47 of the State Act. That section, in terms, confers jurisdiction upon the Supreme Court of New South Wales. It may have been arguable that, prior to the cross-vesting legislation, this Court had jurisdiction under s.32 of the Federal Court of Australia Act 1977. I think that this would have been a difficult argument to sustain but, in view of the enactment of the cross-vesting legislation, I need not pause to consider its likely fate. It is sufficient to note that s.4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) confers upon the Federal Court, insofar as a State legislature can do so, original and appellate jurisdiction with respect to "State matters". The term "State matter" is defined in s.3 of that Act as including a matter "in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State". Plainly, jurisdiction conferred by s.46 is a "State matter". Consequently, s.4 of the State Act purports to confer upon the Federal Court jurisdiction under that section. Section 9(2) of the Commonwealth Jurisdiction of Courts (Cross-Vesting) Act 1987 picks up that conferral in the present case. Section 9(2) relevantly says: "The Federal Court ... may --

(a) exercise jurisdiction (whether original
or appellate) conferred on that Court by
a provision ... of a law of a State
relating to cross-vesting of
jurisdiction; and
(b) hear and determine a proceeding
transferred to that court under such a
provision."

I am satisfied that, having regard to the enactment of the cross-vesting legislation, there is no jurisdictional difficulty about my exercising the power conferred on the Supreme Court under s.46.

9. This brings me to a consideration of that section. Section 46, as it stood at the date of the adoption by the first two applicants of the third applicant, namely 27 October 1987, read as follows:

"46 (1) For the purposes of the laws of New
South Wales, the adoption of a person (whether
before or after the commencement of this Act) in a
country outside the Commonwealth and the
Territories of the Commonwealth, being an adoption
to which this section applies, has, so long as it
has not been rescinded under the law of that
country, the same effect as if it were an order for
adoption under this Act or the former Acts, as the
case may be, made in New South Wales on the date on
which it was effected and has no other effect.
(2) This section applies to an adoption in a
country if --
(a) the adoption was effective according to
the law of that country;
(b) ...
(c) in consequence of the adoption, the
adopter or adopters had, or would (if the
adopted person had been a young child)
have had, immediately following the
adoption, according to the law of that
country, a right superior to that of any
natural parent of the adopted person in
respect of the custody of the adopted
person; and
(d) under the law of that country the adopter
or adopters were, by virtue of the
adoption, placed generally in relation to
the adopted person in the position of a
parent or parents.
(3) Notwithstanding the foregoing provisions
of this section, a court (including a court dealing
with an application under section 47) may refuse to
recognize an adoption as being an adoption to which
this section applies if it appears to the court
that the procedure followed, or the law applied, in
connection with the adoption involved a denial of
natural justice or did not comply with the
requirements of substantial justice.
(4) Where, in any proceedings before a court
(including proceedings under section 47), the
question arises whether an adoption is one to which
this section applies, it shall be presumed, unless
the contrary appears from the evidence, that the
adoption complies with the requirements of
subsection (2) and has not been rescinded.
(5) Except as provided in this section, the
adoption of a person (whether before or after the
commencement of this Act) in a country outside the
Commonwealth and the Territories of the
Commonwealth does not have effect for the purposes
of the laws of New South Wales.
(6) Nothing in this section affects any right
that was acquired by, or became vested in, a person
before the commencement of this Act."

10. There has been an amendment to s.46 since that date; by the Adoption of Children (Amendment) Act 1987. Schedule 1 to that amending Act adds to s.46(2) a new para.(b) which requires that:

"(b) at the time at which the legal steps that
resulted in the adoption were commenced,
the adopter, or each of the adopters --
(i) had been resident in that country
for 12 months or more; or
(ii) was domiciled in that country;"

11. The addition of this requirement would have occasioned some problems for the present applicants, but for the simultaneous amendment of s.46 so as to add a new sub-s.(7). That sub-section provides that the section, as in force immediately before the amendment, applies in relation to the adoption of a person, in a country outside the Commonwealth and the Territories of the Commonwealth, effected before that amendment. In other words, the additional requirement of 12 months residency, or alternatively domicile, is not made retrospective. It applies only to adoptions made after the commencement of the amending Act. As the amending Act commenced after the date when the third applicant was adopted by the first two applicants, the new para.(b) has no application.

12. The requirements for recognition of a foreign adoption are set out in s.46(2)(c)and (d) of the Adoption of Children Act: namely that the adoption was effective according to the law of that country, in this case China, that in consequence of the adoption, Mr and Mrs Lowe had immediately following the adoption, according to Chinese law, a right superior to that of any natural parent of Indiana in respect of the custody of Indiana and, under Chinese law, Mr and Mrs Lowe were, by virtue of the adoption, placed generally in relation to Indiana in the position of a parent or parents. Under some circumstances, there might be problems in a person satisfying the Court of each of these elements. I bear in mind that notions of adoption vary from one country to another. However, the Court is relieved from requiring evidence of these matters by sub-s.(4), which creates a rebuttable presumption that the adoption complies with the requirements of sub-s.(2) and that the adoption has not been rescinded.

13. In this case there is in evidence an authenticated certificate of adoption. There is a considerable amount of detailed evidence as to the finding of Indiana by the first and second applicants, as to the steps taken by them to adopt her and as to her subsequent care. There is no reason for me to doubt that there is an effective adoption according to Chinese law.

14. I think that it follows, in the absence of any evidence to the contrary, that the presumption as to the superior right of the adopting parents to the natural parents, referred to in para.(c), and as to the fact that, under the law of China, the first and second applicants were, by virtue of the adoption, placed generally in the position of parents of Indiana, as referred to in para.(d), is applicable. Section 46 applies in the present case.

15. Section 47 deals with the making of declarations of validity of foreign adoptions. Section 47(1) provides that:

"(1) A person specified in subsection (2) may
apply to the Court for an order declaring that an
adoption of a person was effected (whether before
or after the commencement of this Act) under the
law of a country outside the Commonwealth and the
Territories of the Commonwealth, and that the
adoption is one to which section 46 applies, and
the Court may hear and determine the application
and, if it thinks fit, make an order accordingly."

Sub-section (2) enables an application under sub-s.(1) to be made by either or both of the adopting parents. Plainly, the present first and second applicants, are in this category. An application may also be made by the adopted child, who is the third applicant. Consequently, there is no question about the standing of the present applicants to make an application under s.47. Section 47(3) empowers the Court to direct that notice of the application be given to such parties as it thinks fit. These parties include the Attorney-General. As I have said, this course has been taken in the present case. The effect of an order is specified in sub-s.(5). If an order is made, it binds the Crown in right of New South Wales, and any person who is a party to the proceedings for the order or a party claiming through such a party. In the present case, any order would bind the respondent Minister for Immigration, Local Government and Ethnic Affairs.

16. Nothing has been put in opposition to the making of a declaration under s.47. Through his counsel, the Minister takes the position that he does not wish to become involved in the question of the recognition under New South Wales law of the adoption in China of Indiana; but that he will exercise his powers under the Migration Act in the light of the situation as it may evolve.

17. I think that it is appropriate for me to make a declaration under s.47 and I propose to do so. The formal order that I make is that it be declared that Indiana Lowe became the adopted child of John Lowe and Brenda Margaret Lowe under the laws of the Peoples Republic of China on 27 October 1987 and that this adoption is an adoption to which s.46 of the Adoption of Children Act 1965 (NSW) applies.

18. Having regard to the position taken by the Minister, I think that the next step, as suggested by counsel for the applicants, is also appropriate. The Minister has very fairly indicated that the situation would require reconsideration if an order were made under s.47. That stage having been reached, I think that it is appropriate that the matter be remitted to him for further consideration.

19. There is a measure of urgency about the matter. Mr and Mrs Lowe are not able to bring the child back to Australia at the present time. They have maintained contact with her under circumstances of difficulty and, no doubt, of considerable expense. I think that it is in everybody's interests for the matter to be resolved at the earliest possible moment. I am inclined to think that the appropriate course is to adjourn the matter for a period of about one week and to remit the matter to the Minister for further consideration in the meantime. Without prejudging the Minister's consideration, it is conceivable that the matter will not occupy the Court for a lengthy time upon the next occasion. If this turns out to be wrong, then I will have to consider the most appropriate course; but subject to the convenience of counsel, I propose that the matter be adjourned until 9.30 am next Friday, 21 October.

20. I make the declaration to which I have referred. I remit to the Minister for Immigration, Local Government and Ethnic Affairs, for further consideration, the application made to him by the first and second applicants for the issue of a permanent entry permit, or alternatively for a temporary entry permit, in respect of the third applicant. I adjourn the further hearing of the matter until 9.30 am on Friday, 21 October. I direct that, by 4.00 pm on Thursday, 20 October, the Minister or his representative communicate to the applicants' solicitors the nature of any decision made by or on behalf of the Minister in connection with the remitted application. Costs reserved.