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

[2020] AATA 5868

Ayoker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5868 (13 May 2020)

Division:GENERAL DIVISION

File Number:          2019/4450

Re:Miss Mariyan Ayoker

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:13 May 2020

Place:Melbourne

The Tribunal sets aside the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 16 June 2019, refusing the application of the Applicant for Australian citizenship.

The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as she had a parent, Mr Ayoker, who was an Australian citizen at the time of her birth pursuant to section 16(2)(a) of the Australian Citizenship Act 2007.

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

Ms Anna Burke AO, 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 – not limited to biological parent – ordinary meaning of parent – parent’s conduct before, at the time of and after the birth – decision set aside and remitted for reconsideration.

Legislation

Administrative Appeals Tribunal Act1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

H v Minister for Immigration and Citizenship [2010] FCAFC 119

Secondary Materials

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Ms Anna Burke, AO Member

13 May 2020

INTRODUCTION

1. Miss M (the Applicant) is a two year old Sudanese national born in Khartoum, Sudan in 2017. She applied to become an Australian citizen by descent on 4 August 2018 in accordance with section 16(1) of the Australian Citizenship Act 2007 (the Act).

2. In her application for Australian citizenship by descent, lodged by her father, her birth parents are recorded as:

   ·Mano Bukeje Ayoker, male, year of birth 1968, born Sudan; and

   ·Rita Joseph Kucbur Aleng, female, year of birth 1988, born Sudan.

3. Mr Ayoker migrated to Australia in 2001 and obtained his Australian citizenship by conferral on 21 April 2004.

4. Mr Ayoker and Ms Aleng met in Sudan in 2011 and married in 2015. Ms Aleng applied for a Partner (Provisional) (class UF) (subclass 309)/ Partner (Migrant) (class BC) (subclass 100) visa on 21 February 2018 (the Partner visa), that application is still being processed. In the course of reviewing that application the delegate determined that Ms Aleng had provided satisfactory evidence of a relationship with Mr Ayoker, but requested a DNA test of the relationship between Mr Ayoker and Miss M. Travel records indicated that              Mr Ayoker was in Australia at the time of conception.

5. On 24 January 2018, DNA Solutions reported on a parenting test involving Ms Aleng and Mano Ayoker. The test determined Ms Aleng was Miss M’s biological mother but that:

   Based on the results of the DNA parentage testing, it can be seen that Mano AYOKER is excluded from identification as the father of [Miss M].

6. On 28 March 2019, the Department invited Ms Aleng to comment on the adverse information that the Department had received in the process of reviewing her application for the Partner visa. The adverse information was the DNA information that Mr Ayoker was excluded from identification as the father of Miss M.

7. On 16 May 2019, Mr Ayoker responded to the delegate advising that Miss M was his daughter, that she even looked like him, that no matter what he loved his daughter and his wife and that he wanted to be united in Australia as a family under one roof.

8. On 16 June 2019, a delegate of the Minister for Home Affairs refused the Applicant’s application for citizenship by descent because at the time of her birth she did not have a parent who was an Australian citizen. In the delegate’s decision record, he found:

   I note Mr Mano Bukeje AYOKER, the claimed father of the applicant, acquired Australian citizenship on 21 April 2004. However, I am not satisfied that                Mr AYOKER is indeed the applicant’s father. I base my assessment on the following:

   To prove the applicant is the child of her claimed Australian citizen father, the applicant was offered the chance to undergo DNA testing. Both the father and the applicant have undergone DNA testing and the result was received by Cairo office as negative on 28 January 2019.

   In accordance with section 17(1) of the Act I must make a decision to approve or refuse to approve the child becoming an Australian citizen by descent.

   I have considered the application against the requirements set out in subsection 16 (2) of the Act. I have decided to refuse the child’s application to become an Australian citizen by descent because:

   at the time of Mariyan Mano Bukeje AYOKER’s birth they did not have a parent who was an Australian citizen.

9. On 21 July 2019, an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (AAT) claiming the decision is wrong because (quoted):

   i am sponsoring my (family), my wife and my daughter to come to australia, me and my family was ask to do a dna test but the dna test result was different, that is why I am applying for review. please, i love my daughter, i love my wife, i love my family no matter what.

   until now I didn’t discuss this issue with my wife, and I do not want to tell her about the results because i am worried about my wife safety, they are now in cairo-Egypt waiting for their processes.

   my daughter likens me and i love her so much, and i am in contact with my family on a daily basis, please i do not want to lose my family, my family means everything to me.

10. At the hearing, conducted on 20 March 2020, Miss M was represented by her father, Mr Ayoker. Mr Thomas Creedon, solicitor for the Australian Government Solicitor, appeared on behalf of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) (formerly the Department of Home Affairs). The Tribunal was provided with documentation under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Applicant submitted a statement and other documentation. Mr Ayoker gave evidence under affirmation at the hearing and Ms Aleng gave evidence under affirmation via telephone from Egypt.

    BACKGROUND

11. Mr Ayoker was born in Sudan and lived in Egypt prior to migrating to Australia in 2001.     In 2004 he was granted citizenship by conferral. Since coming to Australia, he has worked full time as a truck driver. He has a daughter from a previous relationship.

12. Movement records indicate that Mr Ayoker has travelled outside Australia on the following occasions:

    ·August – October 2004;

    ·December 2005 – January 2006;

    ·April – July 2007;

    ·December 2010 – January 2011 (Mr Ayoker advised the Tribunal he went to Sudan);

    ·December 2011 – January 2012 (Mr Ayoker advised the Tribunal he went to Sudan);

    ·December 2012 – January 2013 (Mr Ayoker advised the Tribunal he went to Sudan);

    ·December 2014 – February 2015 (Mr Ayoker advised the Tribunal he went to Sudan);

    ·December 2015 – January 2016 (Mr Ayoker advised the Tribunal he went to Sudan);

    ·December 2016 – January 2017 (Mr Ayoker advised the Tribunal he went to Sudan); and

    ·December 2019 – January 2020 (Mr Ayoker advised the Tribunal he went to Egypt).

13. Mr Ayoker advised the Tribunal of the following:

    ·That he had a previous relationship with his former girlfriend after meeting her in Egypt in 2000. In March 2001, he left Egypt for Australia and in 2003 his former girlfriend left Egypt to settle in America with family members. In December 2004, he travelled to America to meet his former girlfriend and in May 2005 they had a baby girl. He advised it was always his intention to marry her, but she would not commit and he ended the relationship in 2010 after realising she was in a relationship with another man, whom she has subsequently married. He stated that from that time he had no further communication with his former girlfriend or daughter;

    ·In 2011 he returned to Sudan to visit family and was introduced to Ms Aleng, his current wife. She was a friend of his brother and from the very start he decided he was interested in her and asked her if he could meet with her again. He said he told her that he loved her and that she was the woman he was going to marry.     Ms Aleng told him she couldn’t decide and she wanted to talk to her family, and he said that was not a problem;

    ·Ms Aleng came from a good family; he described her father as an officer and she had eight sisters and two brothers, all of whom were university educated. He said he had a good relationship with Ms Aleng’s family. At the time he met Ms Aleng, she had returned from university having completed her economics degree to live with her family and was not working;

    ·From the time they met until now they have communicated via telephone or over the Internet every day. He said they spoke about everything;

    ·Eventually Ms Aleng agreed to the proposal; and he has travelled to Sudan each year to continue their relationship; returning in 2014/2015 when they married in January 2015. There was a large traditional wedding lasting three days with lots of people, dancing and celebration. This was followed by a wedding in a church. All the family members were involved in the planning of this event;

    ·Following the wedding he and Ms Aleng spent some time alone together, then they returned to his family home. He subsequently returned to Australia and Rita went to live with his family;

    ·From their marriage he has been responsible for Ms Aleng financially and has been sending her money monthly. He stated that from 2012 to 2014, he randomly sent her money as she was not his responsibility, but since their marriage he has provided for her in every way;

    ·He again visited Sudan in 2016/2017 and it was during this visit that Ms Aleng found out she was pregnant;

    ·He continued to support Ms Aleng throughout her pregnancy financially and emotionally. She had a normal pregnancy with morning sickness in the beginning and in the middle everything settled down and she was okay. She returned to her family home two or three months before the birth, advising it was normal within Sudanese custom for the lady to go back to a family house to give birth. Additionally, the medical care she could receive living with her family was greater than that available where his family resided. She stayed with her family for about a year as she felt happy and safe there;

    ·He was not present at the birth of his daughter but both his mother and mother-in-law were. His mother-in-law rang straight after the birth advising him that Ms Aleng and the baby were both fine. Ms Aleng spent two days in hospital and since that time he has been involved in all aspects of his daughter’s life: choosing her name, sending gifts, speaking to her via video messaging and visiting as often as he can;

    ·After some time Ms Aleng returned to his family home and he has subsequently rented her an apartment in Cairo, Egypt where she is now living, as it is safer and easier to access the Australian Embassy to progress her Partner visa application so they can be united as a family in Australia. He did not visit his family in 2018, as he had hoped they would be in Australia by then not realising the length of time it would take to finalise Ms Aleng’s Partner visa;

    ·That his entire family, Ms Aleng’s family and the wider community in Sudan recognise him as the only father of Miss M and he has not discussed the DNA testing with anyone other than Ms Aleng;

    ·That when he spoke to Ms Aleng about the DNA test he told her there was a little bit of difference, but he was not sure as he believes Miss M likens him. Ms Aleng is adamant that she has known no one else and that he is the father of their daughter; and

    ·In Australia all his friends, work colleagues and members of the church congregation he attends know that he is married with a daughter, and that his life is dedicated to being re-united with his wife and child in Australia.

14. Ms Aleng in a written statement dated 2 October 2019 stated:

    I Rita Aleng would like to confirm that Mr Mano Ayoker is the father of my daughter Mariyan Ayoker, and he is the only man I know in my life since I met him in Renk – South Sudan in Jan./ 2011.

    Mano love his daughter so much and his daughter love him so much, me and Mariyan are in contact on daily bases through messenger calls with her father.

    Mariyan whenever she wakes up will asked me to call her father so that she can talk to him and she feel happy when she talk to him.

    Mano and his daughter are in excellent relationship.

15. Ms Aleng advised the Tribunal the following:

    ·That she was born in Sudan and was currently living in Cairo; that she had first met her husband in her family home in South Sudan; as Mr Ayoker had come to visit with his brother; she had known his brother at university; that her parents and his parents were known to each other as they had grown up in the same area;

    ·That after the first meeting in 2011 they had started chatting and Mr Ayoker said he wanted to marry her, but she advised that she did not know what to say as she did not know him very well and they were living in different places. Mr Ayoker then returned to Australia but they kept talking by telephone every day. By 2012 she had started planning their marriage when he had come back to South Sudan on another visit and between 2012 and 2014 they had spoken every day over the telephone as they continue to do until this day;

    ·They had married in January 2015 first with a traditional ceremony, attended by lots of people and then they had a religious church wedding. Both families were involved in organising the wedding;

    ·Following the wedding they had stayed in her husband’s apartment; when he returned to Australia she went and lived in his parents’ home;

    ·Her husband then came back in 2016 and that is when she fell pregnant with their daughter, she told Mr Ayoker she was pregnant in January 2017 before he returned to Australia;

    ·That she was aware of the DNA results: her husband said there was a little difference in the results but she could not explain this stating “maybe the issue is from you”;

    ·That she was adamant Mr Ayoker was the father of her child and it could not be anyone else;

    ·That she had a normal pregnancy with morning sickness; that her husband treated her well and phoned every day to find out how she was going during her pregnancy; that he paid for all the expenses related to the pregnancy including hospital bills and other medical expenses;

    ·That she had prepared everything before the birth of her daughter such as buying cots, nappies and prams. Mr Ayoker had given her money to do so and provided her money every month; and

    ·That Mr Ayoker had chosen the name of the child; that he is an excellent father and that he interacts with his daughter every day by video and when they are together they love to play and talk with one another. She said her daughter is asking every day where her ‘”daddy” is; that she hopes to have more children and she looks forward to coming to Australia to live with her husband. She said “one day, God willing, she will work” and it is important for her daughter to become an Australian citizen because her father is Australian.

16. Mr Ayoker provided statements from his employer, a statement from his superannuation fund indicating that he has nominated Ms Aleng as his beneficiary, a statement from a friend who attested that  Mr Ayoker is working for the day he can be united with his family in Australia ,and his pastor Rev. Paulo Kwajakwan, dated 11 April 2020. Rev Kwajakwan stated:

    this to certify that Mr. Mano Ayoker is a well-known person to our church as active member who takes responsibility so seriously; for that reason he has been given the role of leadership for Chollo Community Christian Fellowship as a lay leader at Noble Park.

    Chollo Christian Fellowship collaborates with the Uniting Church in Australia for reaching out in supporting the South Sudanese communities who struggle with their young people.

    On the other hand, Mr Ayoker is working hard to be together with his family and wants to bring them from Cairo- Egypt to Melbourne as soon as possible.

    I am here to support him for this purpose, so please do not hesitate to contact me if any enquiry arises.

    Thank you for your understanding.

    Rev. Paulo Kwajakwan

    Minister of Mount Martha Uniting Church.

    ISSUE

17. The issue in contention is whether Mr Ayoker was a parent of the Applicant at the time of her birth in accordance with section 16(2)(a) of the Act.

    LEGISLATION

18. Section 16 of the Act outlines the provision for application and eligibility for citizenship:

    (1)       A person may make an application to the Minister to become an Australian           citizen.

    Note:   Section 46 sets out application requirements (which may include    the payment of a fee).

    Persons born outside Australia on or after 26 January 1949

    (2)       A person born outside Australia on or after 26 January 1949 is eligible to               become an Australian citizen if:

    (a)        a parent of the person was an Australian citizen at the time of the    birth; and

    (b)       if the parent was an Australian citizen under this Subdivision or    Subdivision AA, or section 10B, 10C or 11 of the old Act (about   citizenship by descent), at the time of the birth:

    (i)         the parent has been present in Australia (except as an   unlawful non-citizen) for a total period of at least 2 years at   any time before the person made the application; or

    (ii)       the person is not a national or a citizen of any country at the   time the person made the application and the person has    never been such a national or citizen; and

19. Section 17 provides, in part:

    (1)       If a person makes an application under section 16, the Minister must, by                writing, approve or refuse to approve the person becoming an Australian   citizen.

    (1A)     The Minister must not approve the person becoming an Australian citizen              unless the person is eligible to become an Australian citizen under   subsection 16(2) or (3).

    (2)       Subject to this section, the Minister must approve the person becoming an            Australian citizen if the person is eligible to become an Australian citizen   under subsection 16(2) or (3).

20. In 2016, the Australian Government issued the Citizenship Policy (the Policy) to support the Act and to assist decision-makers with decisions as to citizenship. Whilst it is not binding on decision-makers it should be followed unless there is good reason not to do so.[1]

    [1] Drakes case No 2 (?).

21. Chapter 20 of the Policy relevantly provides:

    Biological parent-child relationships

    A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:

    ·the nature of the relationship between the claimed parents

    ·travel movements for the claimed parents around the date of conception

    ·the applicant’s birth, registration of birth and the chain of custody post-birth

    ·physical similarities between the applicant and claimed parent.

    DNA testing

    In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

    ·an Australian citizen (for descent) or

    ·an Australian citizen or permanent resident (for birth onshore)

    and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

    Non-biological parent-child relationships

    Factors to be taken into account

    For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth.

    Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may include, but is not limited to:

    ·anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent

    ·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 prenatal and postnatal care

    ·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 and

    …

    Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at time of birth, but would lend weight to evidence of the types already mentioned.

    In the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent.

    CONSIDERATION

    The meaning of the word parent

1. The word parent is not defined in the Act. However, the Full Court of the Federal Court of Australia has determined that whether or not a person is in fact a parent, within the ordinary meaning of the word, is a question of fact to be determined by the decision-maker based on the facts and circumstances of each individual case.

2. In H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [8] the Full Court decided that the meaning of the word "parent" in the Act is not limited to biological parents and that a non-biological parent may be held to be a parent in certain circumstances. Being a parent depends on various factors, including social, legal and biological.

3. The Court said in part:

   There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the court to conclude that, in the specific context of s 16(2), the word "parent" only can mean biological parent. Indeed, these considerations indicate that the better view is that the word "parent" in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

   ...

   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...

   We can discern no relevant justification for holding, as the Tribunal did in NWH's case, that a person can only be a "parent" within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant...

   Is Mr Ayoker the biological father of the Applicant?

4. The Minister’s representative contended that Mr Ayoker is not the biological parent of Miss M, as DNA testing excluded him from identification as the biological father.

5. Mr Ayoker did not dispute the finding of the DNA test but argued he was Miss M’s only father, and that his wife was adamant that he was the father of their child. He contended that regardless of the finding he loved his wife and daughter and he wanted them to be in Australia as a family together.

6. Based upon the DNA results, the Tribunal determined that Mr Ayoker was not the biological father of Miss M.

   Was Mr Ayoker the parent of the Applicant at the time of her birth?

7. The Minister’s representative contended that the Tribunal, having regard to social and legal aspects, should not be satisfied that Mr Ayoker was Miss M’s parent at the time of her birth for the purposes of the Act as there was insufficient evidence before, on, and around 9 August 2017 to indicate that he was providing emotional, domestic and financial support to Ms Aleng.

8. The Minister’s representative argued that Mr Ayoker was not present at Miss M’s birth, nor was there any evidence that he provided practical support to Ms Aleng during the late stages of pregnancy and birth. It was highlighted that since Miss M’s birth, he had only visited on one occasion, for 13 days.

9. Mr Ayoker contended that he loved his family and that now that his daughter was growing up and nearing school-age it was important to have his family here in Australia with him. He stated that he was married to Miss M’s mother prior to the birth of their child and prior to the DNA test result he had no reason to doubt that he was her biological father. Regardless he argued that Miss M had no other father, she only knows him in this role; that he loved his wife and did not want to lose her; that he had accepted her assurances she had known no other man; and that he wished to have his family settled in Australia.

10. The Minister’s representative did acknowledge there were extensive screenshots of video calls and telephone records between Mr Ayoker, Ms Aleng and Miss M but argued these electronic communications were insufficient to demonstrate an intense commitment as envisaged by the Full Court in H v Minister for Immigration and Citizenship.

11. Mr Ayoker argued he was in constant daily contact with his wife and daughter and had not been able to be present at the birth of his child because he could not get annual leave. Ms Aleng testified that it was not Sudanese culture for the father to be present at the birth. Mr Ayoker argued that he had not been back as often to see his family as he had expected, and he thought that his wife’s visa process would have been resolved by now and they would all be in Australia together. It was expensive to travel, and he was trying to save so that he could find appropriate accommodation to support his wife and child when they eventually arrived in Australia.

12. The Minister’s representative did acknowledge there was evidence of financial support provided by Mr Ayoker to Ms Aleng, but claimed there were gaps in the payments indicating that there was no evidence of financial support around the time of Miss M’s birth, and payments had only resumed in February 2018, some five months after her birth.

13. Mr Ayoker contended that he had been providing for his wife monthly since their marriage in 2015 and had not provided all records of money transfers as he did not believe they were necessary. He believed the records he had provided were indicative enough. Subsequent to the hearing, Mr Ayoker provided additional records of money transfers to his wife.

    CONCLUSION

14. There is no dispute that Mr Ayoker was an Australian citizen at the time of Miss M’s birth. There is some dispute about the biological parentage of Miss M. The Tribunal, based on the DNA evidence, finds that Mr Ayoker was not the biological parent of Miss M. As such, the Tribunal must consider the facts outlined above to determine if Mr Ayoker had a parent–child relationship with Miss M at the time of her birth, for her to be considered a child of an Australian citizen at birth.

15. The Tribunal worked from the premise that establishing a parental relationship between Mr Ayoker and Miss M should be more onerous and not seen as an easier option for non-biological parents. The Tribunal referred to the Full Court in H v Minister for Immigration and Citizenship, which said at [129] that : “parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person is one’s own and treating him or her as one’s own”.

16. The Tribunal finds that Mr Ayoker has been providing an intense commitment by his emotional and financial support to Ms Aleng from before the birth of Miss M until the present day. The Tribunal accepts Mr Ayoker’s and Ms Aleng’s evidence of this, supported by documentary evidence of money transfers. These transfers show that he has been financially supporting his wife since their marriage in 2015; that he has provided accommodation for her in his family home and now rental premises in Egypt and that he has been contributing financially to all of his daughter’s financial needs during gestation, at the birth and subsequently.

17. The Tribunal finds that Mr Ayoker has played a parental role in Miss M’s life, sharing in the decision-making of her upbringing from the start. Up until the DNA tests were undertaken, he accepted completely – as he still does believe – that he is her biological father. Examples of this role include: choosing his daughter’s name; supporting Ms Aleng financially; arranging accommodation and medical care before, during and after the birth; his name on his daughter’s birth certificate; acceptance by his family and the wider community both in Sudan and in Australia that he is Miss M’s father; and a knowledge, care and involvement in Miss M’s day to day development.

18. The Tribunal considers the fact that Mr Ayoker and Ms Aleng have been in a committed relationship since 2012 and married in 2015 sometime before the birth of Miss M to be a significant factor to be considered in accordance with the Policy. The Policy in respect of non-biological parents requires consideration of whether financial and emotional support has been provided to the mother and child before and at the time of birth. As outlined above, the Tribunal accepts Mr Ayoker’s evidence that this has been the case. Mr Ayoker has travelled to Sudan and Egypt on numerous occasions to visit his family, he is in daily contact with them as evidenced by material before the Tribunal, and he has an intimate knowledge of his wife and child.

19. On the basis of the above, the Tribunal is satisfied that Mr Ayoker genuinely believes Miss M is his daughter, having been married to her mother prior to her birth; accepting his wife’s assurances that he is Miss M’s father. The Tribunal finds Mr Ayoker had an intense commitment to Miss M, as demonstrated by his strong financial, emotional and social support provided to her prior, during and after her birth.  Therefore, the Tribunal finds that Mr Ayoker was the Australian parent of the child at the time of birth.

    DECISION

20. The Tribunal sets aside the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 16 June 2019, refusing the application of the Applicant for Australian citizenship.

21. The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as she had a parent, Mr Ayoker, who was an Australian citizen at the time of her birth pursuant to section 16(2)(a) of the Act.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

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

Associate

Dated: 13 May 2020

Date of hearing:	20 March 2020
Date of final submission:	14 April 2020
Advocate for the Applicant:	Mr Mano Bukeje Ayoker
Advocate for the Respondent:	Mr Thomas Creedon
Solicitors for the Respondent:	Australian Government Solicitor