BCNQ and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 359
•31 May 2016
BCNQ and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 359 (31 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3336
Re
BCNQ
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr. S Webb, Member
Date 31 May 2016 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
Mr. S Webb, Member
CATCHWORDS
CITIZENSHIP – application for grant of Australian citizenship by descent – meaning of ‘parent’ – requirement for evidence to establish parental relationship with child at time of birth – unreliable evidence – DNA testing declined – inference – parent child relationship at time of birth not established – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 16, 17
CASES
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Mr. S Webb, Member
31 May 2016
Richard Basford applied for the grant of Australian citizenship by descent to a child, the Applicant. A delegate of the Minister decided to reject the application. Mr Basford applied for review.
The issue to be decided is whether the Applicant satisfies the tests for grant of Australian citizenship by descent under s 16 of the Australian Citizenship Act 2007 (the Citizenship Act), relevantly –
16(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
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The key issue in dispute in these proceedings is the parent test set out in s 16(2)(a).
THE FACTS
The Applicant was born on 5 December 2011.[1]
[1] T4 folio 89.
Mr Basford is an Australian citizen by birth. He was born at Newcastle in New South Wales on 6 July 1936.[2] He married Angelina Basford (nee Cabilin) on 14 June 1994.[3]
[2] T4 folios 85 and 88.
[3] T4 folio 83.
Mrs Basford was born in the Republic of the Philippines on 2 March 1964.[4] She is a citizen of the Philippines who was granted Australian citizenship on 26 May 1997.[5]
[4] T4 folios 78 and 81.
[5] T4 folio 76.
On 2 March 2012, Mr Basford lodged an incorrect application for the grant of Australian citizenship to the Applicant.[6] The application form was replaced with a revised version on 23 March 2012,[7] with supporting documents – an ‘Early Childhood Care and Development Card’ setting out information about the Applicant’s birth and subsequent care,[8] a copy of a ‘Mother and Child Book’ that includes information about alleged antenatal care,[9] and an ultrasound report from MD Plus Diagnostics at the Ng Kabataan Hospital in Dipolog City, signed by Dr Rosemary Dublin and dated 4 November 2011.[10]
[6] ST5.
[7] ST8.
[8] ST1.
[9] ST2.
[10] ST3.
On 1 and 2 April 2012, an officer of the Minister’s Department informed Mrs Basford that “when I called to verify the ultrasound records you’ve submitted, I was informed that such record does not exist nor do you have any record with them”.[11] The officer made a negative assessment of the Applicant’s application for the grant of Australian citizenship and allowed 28 days for Mr and Mrs Basford to provide additional information or to undergo DNA testing to establish a parental relationship with the Applicant.[12]
[11] ST10 folios 28 and 35.
[12] ST10 folio 31.
On 4 April 2012, Mr Basford informed the Departmental officer that he and Mrs Basford were booked on a flight to Australia on 16 April 2012.[13] He stated, furthermore –
Your email dated April 1st regarding the ultrasound records is just as much a mystery to us as you and we must look into this as soon as possible, this will have to be when we return from Sydney and Canberra. Holy week this week and that makes things harder and next week we prepare to leave for Sydney & Canberra. It may be possible that your inquiry was for the wrong name because you have the wrong spelling in your email. So, any explanation will have to wait until we investigate. We still believe that you have all the necessary information except a D.N.A. test we have not altogether thought would be necessary but never counted it out as an obligation. In fact we did ask would it help to have it when we made our application and were told not necessary. We were then quite in favour of a D.N.A. test then but now we know the procedure will take so long and we do not have that time, now we must give it more consideration…
[13] ST11 folio 34.
Mr Basford explained that he was concerned about “the possibility of finding out that I was not the father of our baby…”.[14]
[14] Ibid.
On 16 April 2012, Mr Basford wrote to the Department and said in respect of a DNA test –
My wife and I have given much consideration to your request. Now that we cannot get the authority to take our child…with us on this trip to Australia we no longer have a need to continue with the original application and now would like to cancel that application.
If the D.N.A. test that we offered while in Manila had been done then the overall costs would have been much less. We were unaware of the complications at the time for this procedure and the relative cost. We live over one hour by plane from Manilla and the costs of and organising such tests will be beyond our means. I am only a pensioner on a single pension income to support myself, my wife and child and that does not allow for such unbudgeted costs that would seem now to be unnecessary at this time.[15]
[15] T1 folio 37.
The documents reveal a number of communications between Mr Basford and Departmental officials in the latter part of 2013. In an undated letter responding to a Departmental email dated 20 November 2013, Mr Basford again addressed the issue of DNA testing –
My wife and I confirm that we do not wish to take a DNA test (even though we did offer when in Manila to complete the baby’s citizenship papers) we were told it was not necessary. It is against our principles to do so.
… the financial costs of a DNA and associated occurring costs would also be out of our reach financially even if we agreed.[16]
[16] T1 folio 33.
On 24 February 2014, Mr Basford signed another application for grant of Australian citizenship to the Applicant.[17] This application was lodged on 6 March 2014.[18]
[17] T4 folio 73.
[18] T5.
On 24 March 2014, a further offer of DNA testing was made by a Departmental officer.[19] It appears that this email was sent to an incorrect address, and it was not received by Mr or Mrs Basford. The offer of DNA testing was made again on 11 September 2014.[20]
[19] T6.
[20] T7.
On 2 November 2014, Mr Basford wrote to the Australian Ambassador in Manila, confirming that “We have declined the request for a DNA test and have given our reasons for that” and “we have given some detail as to the mitigating circumstances at the [ultrasound] clinic at the time the embassy approached them”. He asserted that “records in the country are not always to be relied on” and stated –
“My wife and I have now reached the conclusion that we will have to take the matter up with our friend Mr Morrison and the tribunal in Australia. To do this we must have in writing from you a conclusion to our application…”.[21]
[21] T8.
On 10 February 2015, A Departmental officer made a further written offer for Mr and Mrs Basford to undergo DNA testing to establish the parental relationship with the Applicant necessary for the grant of Australian citizenship.[22] This offer was sent to the same email address that was used on 24 March 2014, but this time it appears that the email was received by Mr and Mrs Basford.
[22] T9.
On 29 March 2015 Mr Basford responded to this offer and said –
“My wife and i have been given a great deal of consideration for you again asking for a DNA test. Our conclusion still remains the same. Firstly, it is against our principles. Secondly, the recent hospitalization of myself and ongoing medical care along with falling income due to dramatic dollar value our finances are severely strained and we could not afford the costs even if we wished.”[23]
[23] T1 folio 14.
On 29 April 2015, a delegate of the Minister decided to reject the application for grant of citizenship to the Applicant.[24]
[24] T1 folios 8 to 19.
On 6 July 2015, Mr Basford applied for review.
PARENT TEST
The Minister maintains that positive proof of a parental relationship between Mr or Mrs Basford and the child the Applicant is necessary to satisfy the parent test set out in s 16(2)(a) of the Citizenship Act. In the Minister’s submission, the oral and documentary evidence before the Tribunal is not sufficient for this purpose.
Mr Basford presented the case for the Applicant. He argued that the present evidence is compelling of only one conclusion – he and Mrs Basford are the biological parents of the Applicant. Even though there may be some doubt about whether he is the biological father of the child, he argues that this is not proved and, in any event, Mrs Basford is the child’s biological mother – as she was an Australian citizen at the date of the child’s birth, the grant of citizenship should be made.
Mr Basford relies on oral evidence given by Mrs Basford and supporting evidence from:
(a)Hernando Cabilin, Mrs Basford’s brother, who stated that he was present when she gave birth;[25]
(b)Pacita Gerodias, a rural health worker, who certified that she provided pre-natal care to Mrs Basford;[26]
(c)Dr Rosemarie Dublin, an obstetrician and gynaecologist, who signed an ultrasound report dated 4 November 2011 and provided certification of the scan;[27]
(d)Dr Therese Lopez, a paediatrician, who provided antenatal care to the Applicant;[28] and
(e)Mervyn Penny, a friend and neighbour of Mr and Mrs Basford in the Philippines and godparent to the Applicant, who provided a statement about Mrs Basford’s pregnancy and birth.[29]
[25] T1 folio 20.
[26] Exhibit 2.
[27] Exhibit 1.
[28] T1 folio 22.
[29] T1 folio 21.
In Mr Basford’s submission, this evidence proves that Mrs Basford gave birth to the Applicant.
The test of a parental relationship at the time of birth does not depend, solely, on establishment of a biological or genetic relationship between the putative parent and child. As the Full Federal Court said in H v Minister for Immigration and Citizenship[30] circumstances may arise in which a non-biological relationship between may meet the parent test for the purposes of s 16 of the Citizenship Act. The word ‘parent’ carries its meaning in ordinary usage – “parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.[31]
[30] [2010] FCAFC 119.
[31] Ibid, at [129]
The possibility that Mr or Mrs Basford was the non-biological parent of the Applicant was not argued in this case, however. Mr Basford informed me that issues of biological parentage, alone, arise and that no issue of non-biological parentage is pressed.
Despite that concession, I am satisfied that the present evidence does not establish that a non-biological parental relationship existed between Mr or Mrs Basford and the Applicant at the time of her birth. There is evidence that points to the existence of a parental relationship between Mr and Mrs Basford and the Applicant after her birth. But that is not determinative of the parent test at the time of her birth.
In order to determine whether a biological parental relationship existed between Mr or Mrs Basford and the Applicant at the time of her birth it is necessary to consider the circumstances of Mrs Basford’s alleged pregnancy and birth, and related evidence.
At this point I note that the Minister relies on the framework set out in the Australian Citizenship Instructions (ACIs) and submits that these Instructions should be followed. It is perhaps trite to observe that Departmental policy of this kind should be followed by the Tribunal unless there is a good reason not to do so. But this does not mean that the ACIs are binding on the Tribunal to the extent that the indicators of a parental relationship are confined to those contemplated by the policy, or that the scope of issues to be decided and the relevance of evidence that may be considered is in some way constrained by policy – those are functions of the legislation under which a grant of citizenship may be made and the legislation governing the review powers of the Tribunal.
As was said in Re Kumar and Minister for Immigration and Citizenship[32], the Tribunal must consider all of the material before it when determining issues of parentage for the purposes of s 16(2)(a) of the Citizenship Act.
[32] [2009] AATA 124.
Mrs Basford was 47 years old when she says she fell pregnant with the Applicant. By her account she had miscarried two previous pregnancies. She says that she missed her period and, in or about July 2011, Ms Gerodias examined her and informed her that she was pregnant. She told me that Ms Gerodias attended her house to provide antenatal check-ups regularly thereafter, and her understanding was that the baby was due around the first week of January 2012. On Mrs Basford’s evidence, Mr Basford was often not in attendance at the house when Ms Gerodias visited as he was out playing tennis a lot of the time. She told me that she attended Dr Dublin’s clinic with her cousin, who was also pregnant and, on the second visit, she decided to obtain an ultrasound while she was there. Her evidence is that Dr Dublin and an assistant took the scan and she was given a copy on the day.
Mr Basford’s evidence is that he was not aware of Ms Basford’s pregnancy until later. He told me that he was unwell with stomach and heart problems and he was largely housebound – his wife would leave the house and she must have obtained antenatal check-ups while she was out. He did not accompany her to any antenatal check-ups or to attend any antenatal clinic or to obtain an ultrasound scan from Dr Dublin. His evidence is that a local woman, a “local witch doctor”, attended his wife two or three times each week, but he did not know her name.
Ms Gerodias gave evidence that she is a midwife and she is a long-term friend of Mrs Basford and her husband, for at least 10 years. She told me that she provided antenatal check-ups to Mrs Basford in the house where she lived with Mr Basford. By her account, Mr Basford was sometimes present at the house when she did so. Ms Gerodias explained that she was employed by the Rural Health Unit to work in Polanco and this may explain why Dipolog City Heath has no record of her employment. When asked to explain why she issued certification using Dipolog City Health forms, she told me that she would sometimes work in Dipolog City Health Clinic and use their forms for home visits – this is what she must have done in Mrs Basford’s case. She was unable to explain why the certificate she signed states that Mrs Basford “had her complete pre-natal and check-up in this clinic”, when by her own account that did not occur.
Dr Dublin told me that Mrs Basford was not a patient of hers and that she had no recollection of consulting her and taking an ultrasound scan on 4 November 2011. The doctor’s evidence is that she did not have any record of any such consultation, but the electronic records were destroyed when the hospital’s computer systems were replaced in 2013. Dr Dublin was very clear that the records would have been accessible in April 2012 (when Departmental verification checks were undertaken in respect of Mr Basford’s first citizenship application for the Applicant). She told me that Mrs Basford provided her with a copy of the 4 November 2011 ultrasound report and asked her to certify it. She conducted a search of the available records but found nothing to verify the report. She told me that, nevertheless, she issued the certificate Mrs Basford wanted because the signature was her own and the report looked real.
As can be seen, there are stark inconsistencies in the evidence concerning the circumstances of Mrs Basford’s alleged pregnancy with the Applicant. There are serious questions about the reliability and probative value of the evidence given by Mr Basford, Mrs Basford and Ms Gerodias.
I note, too, that there are serious questions about the reliability of certification provided by Ms Gerodias and the ‘Mother and Child Book’ entries in respect of ‘visits’ or check-ups she says she conducted for Mrs Basford. The check-ups are said to have occurred on 13 July 2011, 10 August 2011, 14 September 2011, 11 October 2011 and 9 November 2011. The information in the certificate signed by Ms Gerodias and the entries in the Mother and Child Book contain the same information. But the Mother and Child Book entries (ST2 folio 5) do not have the appearance of contemporaneous notes, they are very carefully, neatly written with what appears to be the same pen in the same hand, all at once. Whether or not that appearance is right I cannot determine on the present evidence. Notes of visits after the birth (ST1 folio 2) are in a different hand and these appear to have been made contemporaneously. To my mind, it is probable that the Mother and Child Book entries were not made contemporaneously and these are not reliable evidence of the information they contain.
Whether these records are drawn from records Ms Gerodias asserts she retains and certified, I cannot determine. But there are two other difficulties with Ms Gerodias’ evidence. Her account of retaining records of the antenatal care she provided to Mrs Basford is not supported by other reliable evidence. Verification checks conducted by Departmental officers reveal that Dipolog City Health has no record of Ms Gerodias’ alleged employment and the certificate she provided is printed on ‘Office of the City Health’ letterhead, when the actual letterhead contains the words ‘Office of the City Health Officer’.[33] Why and in what circumstances the word ‘Officer’ was removed has not been explained by Ms Gerodias.
[33] Exhibit 3.
Evidence given in respect of the alleged birth of the Applicant on 5 December 2011 is also of questionable probative value.
Mrs Basford told me that she went into labour around midnight on 4 December 2011, although she did not realise it at the time. At around 7am the following morning, she travelled with her brother, Hernando, to her father’s house at Lebagnon, in the country outside Dipolog City, as there were concerns about his health at the time. This journey involved travelling some distance, using sealed and unsealed roads. By her own account, she gave birth at around 8am, not long after arriving at her father’s house. Mrs Basford’s evidence is that the child weighed 1.7 kilograms at birth – she was very small. She told me that Ms Gerodias attended her during the birth, but she did not obtain other care that day. She returned home at around 4pm and attended Dr Lopez sometime later that week.
Hernando Capilin’s evidence is that he drove Mrs Basford to their father’s house at around 7am on 5 December 2011. He says that when Mrs Basford was giving birth he was in the living room of the house - he did not witness the birth. He departed to collect Ms Gerodias and returned a short while later. He told me that his father, brother and other sister were also in attendance at the house. No evidence has been adduced from these people.
Dr Lopez reported that Mrs Basford attended her clinic on 12 December 2011 “accompanied by a midwife from a local health centre who had seen her initially a few days after she was home delivered”.[34]
[34] T1 folio 22.
A birth certificate issued on 26 December 2011 records the place of the Applicant’s birth to be Balicon, Tourne, Dipolog City, and her birth weight to be 2580 grams. Mrs Basford explained that there was some dispute between herself and Ms Gerodias about the correct birth weight. Mrs Basford asserts that Ms Gerodias wanted to increase the birth weight and that is what she did.
As can be seen, there are significant inconsistencies in the evidence such that it is not possible to reliably determine the circumstances of the Applicant’s birth.
Mr Penny’s unsworn statement[35] does not assist in this regard. Mr Penny was not available to give oral evidence so aspects of his statement could not be tested. For these reasons, Mr Penny’s statement carries little weight.
[35] T1 folio 21.
In sum, the present evidence is tainted by inconsistency and apparent contrivance. Where truth lies in all of this I am unable to determine. Truth may be stranger than fiction in some cases, but it must be proved to be so by relevant evidence, on the balance of probabilities. It is not sufficient to raise possibilities, even a strong possibility, if the possibility is not established as a fact, on the balance of probabilities, on assessment of the available evidence. Unfortunately, much of the evidence in this case is not consistent or probative. The available evidence is not sufficient to establish that Mrs Basford gave birth to the Applicant on 5 December 2011 in the circumstances she and Mr Basford (and others) allege.
On the present materials, I am cannot be reasonably satisfied that Mr Basford or Mrs Basford was a parent of the Applicant at the time of her birth.
DNA TEST
The one remaining matter I should deal with concerns DNA testing. The Minister urges me to draw an adverse inference as Mr and Mrs Basford have declined to undergo testing of this kind, the results of which would be expected to put the question of biological parentage beyond doubt.
Mr Basford has given a variety of reasons for not undergoing the testing procedure – it is against his principles – he does not believe in DNA; he does not want to know if he is not the father of the Applicant; and he cannot afford the time or the money to undertake the test. Despite these objections, he has repeatedly pointed to his willingness to undergo the test in the past, when the first application for citizenship was made on the Applicant’s behalf in Manila in 2012, but he was told that it was not necessary. There is no reliable evidence to corroborate this and even though I accept that he may not believe in DNA on religious grounds, his explanations for refusing the test are far from compelling.
In the course of giving evidence, Mrs Basford told me that she wanted to undergo a DNA test. She explained that she could raise the money to cover the cost of doing so. I allowed her time to discuss this with Mr Basford. Ms De Jong, representing the Minister, helpfully agreed to holding the matter over to allow for this discussion to take place and, if necessary, for the DNA testing to be undertaken.
In the result, Mr Basford informed me that neither he nor Mrs Basford would be undertaking a DNA test as the cost of doing so is beyond their means. So be it.
To my mind, in a case such as this, DNA testing may prove an otherwise flawed claim of parentage. Presently, the available evidence does not establish that Mrs Basford is the biological mother of the Applicant or that Mr Basford is the biological father of the Applicant, although each remains open as a possibility. But possibility is not sufficient. The ‘reasonable satisfaction’ civil standard of proof applies and the issue of parentage must be established on the balance of probabilities. This is not simply a matter of choosing between possibilities that lie open on the evidence. More is required to positively establish the required parental relationship as a probability, being a relationship that more likely than not existed at the time of the child’s birth. A positive DNA test result would be expected to establish a biological parental relationship with the Applicant beyond possibility, as a fact. The converse holds – a negative result would establish that no biological relationship exists.
The purpose of DNA testing is an evidentiary option in a case of this kind. It is a matter of choice for Mr and Mrs Basford. They have been under no obligation in that regard. Mr Basford is well aware that this matter will be decided on the present evidence, with or without DNA evidence. Their reasons for deciding not to undertake a DNA test must be considered when deciding whether an inference of the kind pressed by the Minister should be drawn.
Presently, as I have said, the available evidence is not sufficient to establish that Mr Basford or Mrs Basford was a parent of the Applicant at the time of her birth. In these circumstances, it is not necessary for me to draw any inference from their refusal to undertake a DNA test.
CONCLUSION
Carefully considering and weighing the evidence, I am not satisfied that when the Applicant was born, she had a parent who was an Australian citizen. No such relationship is established on the balance of probabilities between the Applicant and Mr Basford or Mrs Basford at the time of her birth.
The test under s 16(2)(a) is not satisfied and the grant of Australian citizenship by descent cannot be approved under s 17(1) and (1A).
It follows that the application for grant of Australian citizenship made on her behalf cannot succeed and the decision under review must be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Mr. S Webb, Member ...........................[sgd].............................................
Associate
Dated 31 May 2016
Date(s) of hearing 19, 28 and 26 April 2016 Date final submissions received 2 May 2016 Advocate for the Applicant Mr R Basford Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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