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

The Administrative Appeals Tribunal (AATA) considered an application for Australian citizenship by descent made by a two-year-old applicant born in Sudan. The applicant's claimed father, Mr. Ayoker, who is an Australian citizen, applied on her behalf. The Minister's delegate had refused the application, finding that the applicant did not have a parent who was an Australian citizen at the time of her birth. The core of the dispute revolved around whether Mr. Ayoker could be considered the applicant's parent for the purposes of the *Australian Citizenship Act 2007* (Cth).

The legal issue before the Tribunal was to determine whether the applicant had a parent who was an Australian citizen at the time of her birth, as required by section 16(2)(a) of the *Australian Citizenship Act 2007*. This involved interpreting the meaning of "parent" in the context of citizenship by descent, particularly when biological parentage is disputed. The Tribunal was required to assess the evidence presented to establish a parental relationship, considering both biological and non-biological factors as outlined in relevant case law and departmental policy.

The Tribunal reasoned that while the term "parent" is not defined in the Act, guidance from *H v Minister for Immigration and Citizenship* [2010] 188 FCR 393 indicated that it is not limited to biological parentage but can include someone capable of being considered a parent based on their conduct before, at, and after the birth. The Tribunal noted that a DNA test had excluded Mr. Ayoker as the biological father, and this evidence was largely unchallenged. Furthermore, the Tribunal found insufficient evidence of Mr. Ayoker's involvement in the applicant's mother's pregnancy, his presence at the birth, or his consistent practical support and acknowledgement of the applicant as his child around the time of her birth. While some financial support and communication records were presented, they were deemed insufficient to establish the required parental relationship. Consequently, the Tribunal affirmed the delegate's decision to refuse the application.