Chan and Minister for Immigration and Border Protection (Citizenship)
[2019] AATA 21
•16 January 2019
Chan and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 21 (16 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0108
Re:Ka Him Clarence Chan
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 January 2019
Place:Sydney
The Tribunal sets aside the decision of the Minister’s Delegate dated 12 December 2017 refusing the Applicant’s application for citizenship by descent.
The Tribunal remits this application to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Mr Man-Chung Chan, was an Australian citizen at the time of the Applicant’s birth.
..............................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship refused – whether applicant had a parent who was an Australian citizen – decision under review set aside and remitted to the respondent
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Australian Citizenship Amendment Act 1984
CASES
ABCD v Minister for Immigration and Border Protection [2014] AATA 18
Ahamod v Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Briginshaw v Briginshaw [1938] 60 CLR 336
H v Minister for Immigration and Citizenship [2010] 272 ALR 605
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23
Kumar v Minister for Immigration and Citizenship [2009] AATA 124
McMullen v Minister for Immigration and Citizenship [2009] AATA 638
NWH v Minister for Immigration and Citizenship [2009] AATA 833
Oneyma and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3883
Re Beyan and Minister for Immigration and Border Protection [2015] AATA 256
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 January 2019
Mater semper certa est, pater semper incertus est[1]
[1] “The mother is always certain, the father is always uncertain.”
This is an appeal against a decision by the Minister’s Delegate to refuse citizenship to Ka Him Clarence Chan (a minor, born in 2015) (the Applicant) on the grounds that the Delegate was not satisfied that the Applicant had a parent who was an Australian citizen at the time of his birth. The appeal is brought by his putative father, Man-Chung Chan.
In short, the Minister contends that Man-Chung Chan, accepted as being an Australian citizen, who claims to be the Applicant’s biological father is, in fact, not the biological father or the parent of the Applicant and hence the Applicant does not have an Australian parent through whom he can assert his right to citizenship. It is agreed between the parties that the Applicant’s mother Dan Zhu is not an Australian citizen.[2]
[2] Respondent’s Statement of Facts, Issues and Contentions at [11] and [20].
RELEVANT FACTS
1.The Applicant was born in 2015 in Shenzhen, Peoples’ Republic of China (PRC).
2.The Applicant’s birth certificate lists his parents as being Dan Zhu (mother) and Man-Chung Chan (father).
3.On behalf of the Applicant, Mr Chan lodged an application for citizenship by descent on 21 March 2017. This application was accompanied by a number of documents, including a birth certificate (translated) and an identity card for the father showing him to be a permanent resident in Hong Kong (Special Administrative Region). Documents also demonstrated Mr Chan to be the holder of an Australian passport and an Australian citizen. The documents further indicated that, at the time of the Applicant’s birth his mother (Ms Zhu) was resident in Hong Hu City, Hebei Province, PRC and Mr Chan in Australia.[3]
[3] In oral evidence Mr Chan testified that, at the relevant time, he was living in PRC but insisted that “Australia” be listed as his place of residence because he was an Australian citizen then working as an ex-patriate in PRC.
4.On 20 April 2017 and again on 29 June 2017 requests were made to Mr Chan by the Australian Consulate General in Hong Kong to provide evidence that he and Ms Zhu were married or had been in a relationship prior to the birth of the Applicant. No response was received to these request within the time specified in the notification.
5.However on 12 July 2017 Mr Chan provided to the Consulate a number of documents, including some of those requested together with some photographs and copies of bank statements.
6.On 29 August 2017 and again on 25 October 2017 the Consulate requested Mr Chan to undertake a DNA test in order to prove paternity of the Applicant. No response was received to either request.
7.On 12 December 2017 the Minister’s Delegate advised Mr Chan that the application on behalf of the Applicant had been refused.[4] The reason given by the Delegate was that, in effect there was insufficient evidence before the Delegate to indicate that Mr Chan and Ms Zhu were in a relationship prior to the birth of the Applicant. The Delegate based this assessment on
[4] Section 37 – T Documents at [52]-[55].
a.Not being satisfied as to the weight to be given to the birth certificate tendered;
b.Noting that the financial records, which encompass details of a joint bank account demonstrate that these arrangements commenced only some time after the birth of the Applicant and did not precede it;
c.Mr Chan had not consented to undertake any form of DNA test to establish paternity.
8. On 8 January 2018 Mr Chan sought a review of the Delegate’s decision by this Tribunal. In his application for review he stated (inter alia):
“The applicant was born in China, he has undergone 9 months of mainland Chinese immigration investigation and 8 months of processing by Hong Kong immigration for him to become now a Hong Kong permanent resident. The enclosed immigration department of Hong Kong letter to me, and the later certificate of entitlement (residency), has proved that our father-son relationship has been rightly established and recognised by BOTH the mainland Chinese government and the Hong Kong government……Our properly issued birth certificate issued by the Hong Kong University Hospital of Shenzhen shows that I am Clarence father which was passed both CHINA and HONG KONG government investigation and Clarence is now living in Hong Kong permanently under my custody. He is now studying in the Gloria International Kindergarten in Sheung Shui of Hong Kong and living with me and his mother ZHU DAN.”[5]
9. On 25 June 2018 Mr Chan submitted further documents in support of this application which included:
a.A Hong Kong identity card in the name of the Applicant identifying Mr Chan as his father;
b.An explanation of the delays occasioned in providing documentation to the Consulate arising from the complexities of requiring documents from both the PRC government and the SAR Hong Kong government;
c.An assertion that under the PRC’s “tight social control and birth control policy of one child” it would be difficult for any child’s paternity to be called into question once relevant PRC documentation had been issued;
d.An indication the he was not “totally objecting to DNA test in the first place” but that “Since a common law Hong Kong immigration passes Clarence for not requiring DNA test, I have clear grounds to seek your pardon not to require Clarence to do so." He concludes “Should DNA be eventually needed, can I ask for your financial support to pay for this unnecessary test.”[6]
[5] Application for Review of Decision (Individual) dated 8 January 2018 section 3.
[6] Applicant’s Supplementary Documents (unpaginated).
RELEVANT LAW
Applications for citizenship by descent for applicants born outside Australia (after 26 January 1949) are dealt with under s 16(2) of the Australian Citizenship Act 2007 (the Act).
16 Application and eligibility for citizenship
A person may make an application to the Minister to become an Australian citizen.
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
(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.
Under s 17 of the Act if a person makes such an application, the Minister must either approve or refuse the application. If eligible under s 16(2) or 16(3) the Minister must approve the application (s 17(2)) but if not eligible the Minister must refuse the application (s 17(1A)).
17 Minister’s decision
(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).
(1) 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).
RELEVANT POLICY
Provisions of the Act are supplemented by the Government’s Citizenship Policy (effective 1 June 2016) which outlines how various sections of the Act are to be interpreted and implemented by decision-makers.
Conferral of citizenship on a child in the circumstances of this Applicant requires that the child have a “parent” who was “an Australian citizen at the time of the birth.”[7]
[7] Australian Citizenship Act 2007 section 16(2)(a)
There is no dispute that Mr Chan was, at the time of the Applicant’s birth, an Australian citizen. The issue in dispute whether he the Applicant’s “parent”?
Meaning of “parent”
It may be thought that the term “parent’ would be easy to define, but this is not the case. Specifically, the term “parent” is not defined in the Act itself.
Interestingly, until amendments were made to the Act in 1984 the term “parent” was not used in the context of children born outside Australia. Rather the reference was to either “father” or “mother”. The gender-neutral/equal term “parent” was substituted for the first time via passage of the Australian Citizenship Amendment Act 1984.
Until 2010 the courts gave the term “parent” a meaning which confined it to strictly a purely biological relationship. In Kumar, Deputy President Forgie said:
“it seems to me that the word “parent” should not be given a meaning that extends beyond the biological parents of the child.”[8]
[8] Kumar v Minister for Immigration and Citizenship [2009] AATA 124 at [82].
Deputy President Handley denied citizenship to an applicant who
“is not eligible for Australian citizenship under s 16(2)(a) because Mr H is not his biological parent and NWH did not have a biological parent who was an Australian citizen at the time of his birth.”[9]
[9] NWH v Minister for Immigration and Citizenship [2009] AATA 833 at [33].
This traditional interpretation of the term “parent” was set aside by the decision of the Full Federal Court in H v Minister for Immigration and Citizenship[10] in 2010.
[10] H v Minister for Immigration and Citizenship [2010] 272 ALR 605.
That case arose on appeal from two Tribunal decisions, the first of which was that cited above in NWH where it was held that a “parent” had to be in a biological relationship with the child. The other was McMullen[11] where the Tribunal had come to a contrary view.
[11] McMullen v Minister for Immigration and Citizenship [2009] AATA 638.
The facts in McMullen were to the effect that the child in question (Vanessa McMullen) had always regarded Mr Fred McMullen to be her “father”. At the age of 10 because of doubts about her biological relationship with Mr McMullen, DNA tests (not available at the time of her birth) were conducted which proved that she was in fact the child of another man. When Vanessa applied for Australian citizenship it was denied on the basis that while Mr McMullen was an Australian citizen, he was not her father, whereas her proven biological father was not an Australian citizen.
In setting aside the decision in Vanessa’s appeal the Tribunal stated:
“The facts in this case are very unusual. With the establishment of more certain outcomes with DNA testing than was the case at the time of Vanessa’s birth, the facts before the Tribunal are unlikely to arise again. The fact is that Mr McMullen has not just assumed the role of Vanessa’s father but has, from Vanessa’s point of view, as well as his own, become her father. That different and unusual facts present themselves does not of course mean that the meaning of words which are otherwise well understood, should be distorted in considering the interpretation of statutes. However, there is a difference between someone assuming the role of the father while knowing that he is not the father and someone accepting, on reasonable grounds, that he is the father and continuing to undertake that role. It was at least possible, and indeed likely that, Mr McMullen was Vanessa’s biological father. That, combined by with the re enforcing confirmation of the mother over a 19 year period, led to a strong father/daughter relationship developing. The relationship is so strongly established that neither Mr McMullen or Vanessa see it changing now it is known that Mr McMullen is not Vanessa’s biological father. With both Mr McMullen and Vanessa being in a father/daughter relationship for that extended period of time it would be unduly restrictive, unfair and unreasonable to determine in an administrative sense it was anything else other than a father/daughter relationship.”[12]
[12] McMullen v Minister for Immigration and Citizenship [2009] AATA 638 at [26].
The Full Federal Court[13] was required to resolve the difference between the interpretations of the word “parent” given in NWH and McMullen. In the event it preferred the interpretation in the latter. It is worth quoting several passages from the Court’s judgement:
“[I]t is clear that, over the ages and in different places, the status of being a parent has been socially defined in a great variety of ways that do not always reflect the biological facts. Certain socially recognised facts have come to define the social status of a “parent” in relation to another person. Modern ethnology and anthropology recognise as much. Historians have shown that family structures and notions of parent and child, marriage and descent have differed widely over time and within a range of demographic, economic and cultural frameworks distinctive for each society ……………….In essence, the status of being a parent may imply physical procreation, the social assumption of a specific relationship to another (as the child of the parent) or both. Comparatively recent developments in the biological sciences, especially in genetics, and the introduction of DNA testing, has highlighted the differences between understanding “parent” as a biologically defined status and as a socially defined one.”[14]
“Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.”[15]
“Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough …… Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, 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.”[16]
“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.”[17]
“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. If the minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen. As a practical matter, we do not consider that parliament would have intended the likely unfortunate results of the minister’s construction. The practical effect of this construction would be to accord the science of genetics a status that parliament has not given it.”[18]
[13] Moore, Kenny and Tracey JJ
[14] H v Minister for Immigration and Citizenship [2010] 272 ALR 605 at [47].
[15] Ibid at [48].
[16] Ibid at [129].
[17] Ibid at [130].
[18] Ibid at [131] citations omitted.
Since 2010 H has been accepted as the definitive statement of how to approach questions of parenthood under the Act.
“The decision in H v Minister for Immigration and Citizenship is authority for the proposition that a person may be the “parent” of a child for the purposes of the Australian Citizenship Act even though not the biological “parent”.”[19]
[19] Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [29] per Flick, Jagot and Barker JJ.
This Tribunal has, on several occasions, addressed issues where a parental relationship has been accepted where it is clear that there is no biological relationship.
In ABCD the Tribunal held:
“[4] By decision dated 21 May 2013, a delegate of the Minister refused the Application (reviewable decision). The delegate concluded that the Applicant had failed to establish that he “had a parent who was an Australian citizen at the time of (his) birth”, stating “based on the DNA testing report showing that the sponsor, (JM), is not the biological father of the applicant … ”.
[5] On the evidence before the Tribunal, the Tribunal also finds that JM is not the biological father of the Applicant.
[6] The evidence does establish, however, that JM is the Applicant’s “parent” within the meaning of that word as it appears in section 16 of the Act and as construed by the Federal Court of Australia.”[20]
[20] ABCD v Minister for Immigration and Border Protection [2014] AATA 18.
In Onyema the Tribunal found that:
“[27] …. the Tribunal finds that it is highly implausible that Mr Onyema is the biological father of Master G.
[42] …. the Tribunal is satisfied that Mr Onyema genuinely believes he is the father of Master G, has fully accepted his responsibilities as the father of Master G since he was advised of (his partner’s) pregnancy in April 2014, and was the Australian parent of the child at the time of birth.”[21]
[21] Oneyma and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3883.
In this instance the Tribunal remitted the matter to the Minister to determine in accordance with its finding that, despite his not being the biological parent, Mr Onyema would be regarded as being the applicant child’s parent for the purposes of the citizenship application.
Chapter 20 of the Citizenship Policy recognises the definition of “parent” as determined by the Courts. It states:
“Whether a person is a parent of a child is a finding of fact, with parent having its meaning in ordinary contemporary English usage.
The Full Federal Court [H v Minister for Immigration and Citizenship (2010) FCAFC 119; (2010) 188 FCR 393 (15 September 2010)] ruled that ‘parent’, when used in the Act, takes its meaning from ordinary contemporary English usage. Whether a person is a parent of another person is a question of fact, having regard to the evidence. Parent is not limited to a biological parent.”[22]
“Until the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship [2010] FCAFC 119 (‘H’)) on 15 September 2010, the department interpreted parent in the Act as a biological parent, unless there was a contrary intention in a specific provision. For example, adoptive relationships are provided for in s13 and Subdivision AA of the Act. In ‘H’, the FFC held that in the absence of a definition of parent in the Act, the meaning of parent in section 16 (concerning citizenship by descent) is not limited to biological parents. The FFC held that it is sufficient that, at the time of birth, an Australian citizen is a parent as that word is understood in ordinary usage. Therefore citizenship by descent, until then available under the Act to children of Australian citizen biological parents, can also be accessed by children of Australian citizen non-biological parents.”[23]
[22] Citizenship Policy at [212]- [213]..
[23] Ibid at [213].
In order to protect the integrity of the citizenship system from fraudulent attempts to make citizenship claims, recognising that Australian citizenship is something of great legal and intrinsic value, the Policy sets out a series of tests to be applied where the claim for citizenship rests upon recognition of a non-biological parental relationship.
“Non-biological parent-child relationships
The citizenship applicant may have a non-biological parent-child relationship with their claimed parent. In other cases, although a biological parent-child relationship was claimed, there may be insufficient evidence to support the claim of biological parentage.
These cases may occur for a variety of reasons, such as:
·the applicant was born through a surrogacy arrangement that did not involve the contribution of genetic material by either commissioning parent
· the applicant and their parent held a genuine but mistaken belief that they were biologically parent and child
·the applicant acknowledges that there is no biological link to their claimed parent but contends that they nevertheless had a parent-child relationship at the relevant time (generally as of the date of the applicant’s birth).
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. The applicant (or, if applicable, their responsible parent) should be asked to provide evidence of the length and nature of the Australian citizen’s or permanent resident’s parental relationship with the child.
Note: Evidence of the length and nature of the relationship between the claimed parents may corroborate the evidence of the relationship between the applicant and the Australian citizen parent, but is not in itself evidence of the parent-child relationship.
It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship. The decision maker more likely will be required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.
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
·when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.
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.”[24]
[24] Ibid at [214]-[215].
RELEVANT ISSUE(S)
The question to be determined by this Tribunal may be simply put as follows:
·Is Mr Man-Chung Chan the biological father of Clarence Chan, or
·If he is not, should he be accepted as being Clarence Chan’s “parent” on a non-biological basis?
If the answer to either of these questions is in the affirmative, then Clarence Chan must be granted Australian citizenship on the basis of his proven/established eligibility.
It is important in relation to the second question (the non-biological relationship), to bear in mind that, for the purposes of the Act (section 16(2)(a)) the relationship in question must be one that was on foot “at the time of the birth” of the child. It cannot be one which was established at some later stage, no matter how genuine that later relationship might have become. The clear provisions of the Act allow for no flexibility or discretion on this point, hence the importance of evidence that goes to this specific time in the relationship between Man-Chung Chan and Clarence Chan.
RELEVANT EVIDENCE
In support of his claim to be the biological father of the Applicant, Mr Chan has provided documentation and/or given oral evidence (under affirmation) as follows:
1.That he first met Ms Zhu Dan some time in 2010 in her home town in China and that they established a relationship within approximately six months of that meeting
2.That they started to live together as a couple in the early part of 2014. Ms Zhu Dan became pregnant around May 2014 and the couple were married in November 2014.
3.He was unable to produce a copy of the marriage certificate which he says was lost “since September 2017” but told the Tribunal that, if required, he would undertake steps to obtain a copy from the PRC provincial authorities.
4.He was present (together with his parents and parents-in-law) at the birth of Clarence and that he and Ms Zhu Dan completed details of their parenthood on the birth certificate prepared at the hospital for registration with the government authorities.
5.In applying for Clarence to be granted both permanent residence and an identity card in Hong Kong he had to satisfy both the authorities in the PRC and the authorities in the Hong Kong SAR of his parenthood and legal responsibility for Clarence.
6.He had lived in PRC for a period of about six years and had now successfully arranged for himself, Zhu Dan and Clarence to live in Hong Kong.
7.He informed the Tribunal that, were it necessary, he would undertake a DNA test to establish paternity and that he could produce supportive evidence from Ms Zhu Dan and his parents to corroborate any of the claims which he had advanced.
The Tribunal has no reason to call into question the evidence given by Mr Chan. He is a person of some status and reputation who, having completed studies in Hong Kong (as a mathematical logician) had been granted a scholarship at La Trobe University in Melbourne and then a lecturer’s position, while undertaking doctoral studies, at the University of New South Wales. He was able to become an Australian citizen within a few years (effective date of citizenship being 19 September 1990).
The Tribunal also accepts the argument advanced by Mr Chan that the nature of China’s notorious “one child policy” was such that government authorities would be careful to record details of the parenthood of any child to ensure that this mandated policy was capable of enforcement. The “one child” policy, introduced in 1979 was modified in November 2013 to allow for a “two child” policy and this restriction was not lifted until January 2016. The child in question was born in February 2015 when there was still a formal restriction on family sizes – in this case to two children. The Tribunal accepts that Chinese authorities would have been likely to maintain appropriate records to monitor this policy and this would necessarily have involved accurate record-keeping as to the parentage of any child born at the time.
The Minister however is not satisfied as to the strength (or in some instances the validity) of Mr Chan’s claims.
In particular, the Minister notes the lack of supporting or corroborative material from Ms Zhu Dan or any other members of Mr Chan’s family, or from other colleagues or acquaintances. It takes this as meaning that the Tribunal has to rely exclusively upon the self-reporting of an interested party.
The Minister asserts that when the Tribunal comes to consider the “Factors to be taken into account” as set out in Chapter 20 of the Citizenship Policy Mr Chan’s claims are not of sufficient weight to be accepted as being determinative.
The Minister, very correctly, points out that
“… a Certificate of Australian citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where …. the identity of the Applicant is far from clear.”[25]
[25] Re Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
In this instance it is not a matter of identity at stake but rather the question of whether the Applicant had a qualifying parent at the time of birth – nevertheless the stricture urged upon the Tribunal is exactly the same and has the same degree of gravity.
The Minister further urges that given the significance of citizenship, where proof is required in order to qualify for its grant, that level of proof should be of the highest order and that “inexact proofs, indefinite testimony, or indirect inferences[26]” are insufficient. The Tribunal needs to “feel an actual persuasion of (the) occurrence” of a material fact in order to accept it as proof.
[26] Briginshaw v Briginshaw [1938] 60 CLR 336 at [361]-[362].
With great respect to the Minister’s submission, it must be remembered that the Tribunal is not bound by the formal rules of evidence “but may inform itself on any matter in such manner as it thinks appropriate.”[27]
[27] Administrative Appeals Tribunal Act 1975 section 33(1)(c).
In many instances where documentation has been lost, where meaning may be lost in translation or where it may be difficult to obtain from foreign sources, the Tribunal must take a flexible approach to evidentiary questions, dealing with them as best it can in all the circumstances. Obviously where major inconsistencies or contradictions are apparent the Tribunal will exercise due caution and be hard to persuade,[28] but in other instances it must bring its own best judgement to bear. This includes the sworn/affirmed testimony of witnesses.
[28] Ahamod v Minister for Immigration and Border Protection(Citizenship) [2019] AATA 7.
The Tribunal notes that, in relation to each of the defects alleged by the Minister in terms of documentary proof or DNA evidence, Mr Chan indicated that he would take the necessary steps to produce such evidence which might satisfy the Minister who otherwise urged that the Tribunal, in its absence, should not set aside the current refusal decision but rather propose that this application be resubmitted, at a later date, with this material accompanying.
That is not the course of action the Tribunal is persuaded to take.
RELEVANT CONSIDERATIONS
As the opening Latin epigraph demonstrates, questions of paternity have been matters before the courts/tribunals for centuries and indeed in many times and places were the principal matters for the courts to resolve.
Interestingly the Roman-law principle of mater semper certa est, pater semper incertus est was resolved by the law of pater est, quem nuptiae demonstrant (“the father is he who is demonstrated by marriage”). On this basis Mr Chan would have succeeded in the Roman courts before the urban praetor hearing his case.
The Tribunal accepts that there are some lacunae in the material before it, although it believes these are capable of remediation. It would have been desirable were both original birth and marriage certificates to have been to hand, but they are not, and it may be for good reason. It would have strengthened Mr Chan’s case had he provided DNA evidence of paternity but again, he has indicated a willingness to do so if required – his reservations appear to be financial rather than any other.
Nevertheless the Tribunal finds it persuasive that both the government of the PRC and of the Hong Kong SAR have provided documentation which supports Mr Chan’s claim of parenthood.
It also finds no reason to doubt Mr Chan’s evidence about his physical relationship with Ms Zhu Dan. It accepts that he is a person of integrity and truthfulness and that his affirmed testimony is to be accorded respect. There is no reason to take a contrary view.
It accepts that Mr Chan was married to Ms Zhu Dan at the time of Clarence’s birth (recognising that there is no documentary evidence on this matter, although an offer to attempt to provide it has been made); that he was present at the child’s birth and that members of his own family (also there present) have accepted Clarence as his child.
In this respect that Tribunal is satisfied that Mr Chan is the biological father of Clarence.
In the event that the Tribunal is in error on this point, it is also satisfied on the evidence before it, that Mr Chan is, and at all relevant times since the Applicant’s birth, has been in a parental relationship with the Applicant as characterised by the Federal Court and as accepted in the Citizenship Policy.
As noted above (paragraph 26), the non-biological relationship must be one that was on foot “at the time of the birth” of the child in question. The Tribunal is satisfied that Mr Man-Chung Chan’s relationship both with the mother and child was indeed of foot at this time. He was both cohabiting with the mother during this period and he was present at the birth of the child. He satisfies the temporal requirements of section 16(2)(a) of the Act.
Mr Chan has provided material, financial, emotional and physical support for Clarence (and for Ms Zhu Dan) and has been solicitous to arrange for Clarence to obtain the status of a permanent resident of Hong Kong. He has arranged for the physical relocation of his family from the PRC to the Hong Kong SAR.
Photographs submitted by Mr Chan (although of limited value in some respects) do show active engagement between him and the child in question. Mr Chan claims that earlier photographs which would have demonstrated his relationship with Ms Zhu Dan and the chid as a baby were lost as a result of mobile phone camera malfunction.
Mr Chan is an Australian citizen and the Tribunal accepts that he is committed to this country and to bringing his wife and child here – in terms of the latter with a special degree of consideration for his educational opportunities.
The Tribunal recognises its responsibility to be active in maintaining the integrity and status of Australian citizenship and not to be party to any unjustified grants of citizenship.
DECISION
The Tribunal sets aside the decision of the Minister’s Delegate dated 12 December 2017 refusing the Applicant’s application for citizenship by descent.
The Tribunal remits this application to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Mr Man-Chung Chan, was an Australian citizen at the time of the Applicant’s birth.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 16 January 2019
Date(s) of hearing: 11 January 2019 Applicant: By phone Solicitors for the Respondent: Mr D McLaren, Minter Ellison
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