Ayoker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 5869

Ayoker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5869 (7 December 2020)

Division:GENERAL DIVISION

File Number:2019/4450          

Re:Mariyan Ayoker  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:7 December 2020

Date of written reasons:        11 January 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

.................[sgd].......................................................

Mr A Maryniak QC, Member

Catchwords

CITIZENSHIP – citizenship by descent – Applicant born outside of Australia – whether a parent of the Applicant was an Australian citizen at the time of the Applicant’s birth – meaning of parent – decision affirmed

Legislation
Australian Citizenship Act 2007

Cases
H v Minister for Immigration and Citizenship [2010] 188 FCR 393

Minister for Immigration, Multicultural Affairs v Dwager [2002] HCA 11

REASONS FOR DECISION

Mr A Maryniak QC, Member

11 January 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

4.       I certify that the following 20 (twenty) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

......[sgd]............................................................

Associate

Dated: 11 January 2021

Date of hearing:	7 December 2020
The Applicant:	By telephone
Advocate for the Respondent:	Thomas Creedon
Solicitors for the Respondent:	Australian Government Solicitor

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: Under review by the Tribunal is a decision made pursuant to section 16 of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse the applicant’s application to become an Australian citizen by descent.  The Minister’s delegate found that the applicant did not have a parent who was an Australian citizen at the time of her birth.  The applicant is represented by her claimed father, Mr Mano Ayoker, in this review proceeding.

2. The respondent provided the following background.  The applicant is a two year old Sydney citizen residing in Cairo, Egypt with her mother and was born on 9 August 2017 in Sudan.  Her claimed parents are Rita Aling, born in Sudan and Mr Ayoker, born in Sudan and a citizen of Australia pursuant to conferral granted on 21 April 2004.

3. The applicant’s claimed mother and father met in 2011 and were married on 20 January 2015. On 4 August 2018 the applicant by her claimed father applied for Australian citizenship by descent and on 16 April 2019 the Department invited the applicant’s claimed father to comment on adverse information being a DNA test conducted on 18 December 2018 which excluded the possibility that the claimed father was biologically related to the applicant.  There was no response to that request and the delegate of the Minister refused to approve the application on 16 June 2019. 

4. On 20 March 2020 this Tribunal held a hearing in this matter with a different Tribunal Member presiding.  The applicant was directed to provide any further material which she intended to rely upon by 1 May 2020 and the respondent was directed to provide a written response to such material by 15 May 2020.  On 13 May 2020 this Tribunal purported to make its decision prior to receiving the respondent’s written response.  Consistent with the principles in Minister for Immigration, Multicultural Affairs v Dwager [2002] HCA 11 the 13 May 2020 purported decision in null and void as it is undermined by jurisdictional error.

5. The applicant’s application has been reconstituted by the Tribunal and has subsequently been determined on the papers.[1] 

   [1] The papers comprised the T-documents, Supplementary T-documents, letters from Michael Pena dated 6 April 2020 and Frederick Borne dated 24 March 2020, printout from SunSuper and printout of money transfers provided by the Applicant and all written submissions lodged with the Tribunal.

6. Section 16 of the Act relates to applications for citizenship by descent and provides one, a person may make an application to the Minster to become an Australian citizen and two, a person outside Australia on or after 29 January 1949 is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

7. There is no dispute that the applicant was born outside of Australia or after 26 January 1949.  The issue before the Tribunal is whether the applicant has a parent who was an Australian citizen at the time of her birth.

8. ‘Parent’ is not defined in the Act however guidance is provided in the authority of H v Minister for Immigration and Citizenship [2010] 188 FCR 393. In that authority the point is made that it is not simply limited to a biological parent but can include someone capable of being considered a parent or some other reason. At paragraph 130 the Full Federal Court Held:

   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. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.

9. The Tribunal notes that the Department has issued a citizenship policy that provides guidance on the interpretation of and exercise of powers under the Act and that policy states:

   Evidence should be provided of the length and nature of the Australian citizen’s parental relationship with the child and that the decision maker - (the Tribunal in this case) should weigh up any relevant factors including social and legal to reach a finding of fact as to whether the claimed parent was a parent of the applicant at the relevant time.

10. The guidance includes relevant factors such as evidence that the Australian citizen was involved in providing care for the unborn child and or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and pre-natal and post-natal care and further, evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child.

11. The question for the Tribunal is whether it is satisfied that a parent of the applicant was an Australian citizen at the time of her birth.  A relevant consideration for the Tribunal as just mentioned is whether the child was presented within the Australian citizen’s family and social groups, et cetera, is one of the considerations under the policy and the Tribunal is informed that at the hearing on 20 March 2020 the claimed father was given another opportunity to provide additional evidence and that is clear from the direction that was made by the former constituted Tribunal.

12. The claimed father has subsequently provided two reference letters, one from Mr Frederick Borne and another from Reverend Pol Kual Jal Wan, a minister of the Uniting Church that the claimed father attends.  Neither letter adds any substantive evidence which assists the applicant’s case.  Further, there is no evidence from either the applicant’s mother’s family or the applicant’s claimed father’s family nor evidence from friends to confirm the relationship between the claimed father and the applicant as well as the relationship between the claimed father and the applicant’s mother. Such evidence would have been of far greater weight than the two letters just referred to.

13. The Tribunal notes the SunSuper beneficiary printout provided by the applicant and acknowledges that this does demonstrate a link between the claimed father and the applicant’s mother but this does not add any substantive weight to establishing the support provided to the applicant’s mother leading up to or at the time of the applicant’s birth.

14. The Tribunal also notes the letter from the claimed father’s employer and whilst it speaks highly of the claimed father, and this decision of course is not a reflection of the claimed father or the claimed mother it is just a decision based on the facts before the Tribunal at this time, that letter from the father’s employer is not really probative evidence of the claimed father’s parental relationship with the applicant at the time of the birth.

15. In respect of biological parentage, despite some evidence to the contrary, on balance the Tribunal finds that the claimed father was excluded from identification at the biological father by way of DNA test performed by DNA Solutions Pty Ltd and that that evidence has to prevail in this case as against any other evidence that is before the Tribunal at this time.  The Tribunal notes that this DNA test evidence essentially is left unchallenged.

16. The Tribunal is also to look at the claimed father’s conduct on and around 9 August 2017, the date of birth of the applicant.  On the current evidence before the Tribunal the applicant’s claimed father was not present at the applicant’s birth and there is no evidence that he provided practical support to the applicant’s mother during the late stages of pregnancy and at birth.  Since the applicant was born, the applicant’s claimed father has only visited the applicant once for 13 days between 24 December 2019 and 5 January 2020.

17. The claimed father has provided screenshots of video phone calls and telephone records.  Those records appear to be for a period between February and October of an unknown year and this evidence is insufficient to demonstrate the intense commitment as required and as set out in the judgement of the Full Court in H. 

18. There is some evidence of financial support provided by the applicant’s claimed father to the mother, being payments made in 2012, but then no further payments made until 2017 and then only in March and April of that year; no payments were made around the month of birth being August 2017. The current evidence of financial support shows that payments resumed in February 2018, that is about five months after the applicant’s birth and in all the circumstances there is insufficient evidence in this regard to establish a parental relationship.

19. The birth certificate was issued in December of 2017, approximately four months after the birth of the applicant and was duly issued based on information provided by the applicant’s mother.  Without more, this provides little substantive evidence to establish the parental relationship.

20. On balance on the evidence before the Tribunal the correct or preferable decision is that the Tribunal cannot be satisfied that the claimed father is the parent of the applicant at the time of the birth as required by section 16(2)(a) of the the Act and hence the decision under review is affirmed.