Chan and Minister for Immigration and Border Protection (Citizenship)

The Administrative Appeals Tribunal considered an application for citizenship by descent made on behalf of the Applicant, a child born in China in 2015. The Applicant's mother, Dan Zhu, was not an Australian citizen. The dispute centred on whether the Applicant's father, Man-Chung Chan, was an Australian citizen at the time of the Applicant's birth and whether he was the Applicant's biological father or otherwise in a parental relationship with the Applicant at that time. The Minister's Delegate had refused the application, finding insufficient evidence of a relationship between Mr Chan and Ms Zhu prior to the Applicant's birth, and Mr Chan's refusal to undertake a DNA test.

The Tribunal was required to determine whether Mr Chan was the biological father of the Applicant and, if not, whether he was in a parental relationship with the Applicant at the time of the Applicant's birth, as required by section 16(2)(a) of the relevant Act. The Act stipulated that any such relationship must have been "on foot" at the time of the child's birth, not established at a later stage. The Tribunal also considered the weight to be given to various documents, including the Applicant's birth certificate and Hong Kong identity documents, as well as Mr Chan's oral evidence and his willingness to provide further evidence, including a DNA test.

The Tribunal found Mr Chan's evidence persuasive, noting his integrity and the corroboration provided by documentation from both the People's Republic of China and the Hong Kong Special Administrative Region governments, which recognised his parenthood. It accepted that Mr Chan was married to Ms Zhu at the time of the Applicant's birth, was present at the birth, and that his family accepted the child as his. The Tribunal was satisfied that Mr Chan was the biological father of the Applicant and, alternatively, that he was in a parental relationship with the Applicant at the time of birth, having cohabited with the mother and been present at the birth, and having provided material, financial, emotional, and physical support.

Consequently, the Tribunal set aside the Minister's Delegate's decision and remitted the application for reconsideration. The Tribunal directed that the Applicant was eligible to become an Australian citizen by descent, as his father, Mr Man-Chung Chan, was an Australian citizen at the time of the Applicant's birth.