Confidential v Minister for Immigration and Citizenship
[2013] AATA 144
[2013] AATA 144
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2723
Re
CONFIDENTIAL
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 18 March 2013 Place Brisbane The Tribunal affirms the decision under review.
.....................[Sgd]...................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Refusal to register applicant as Australian citizen by descent – Insufficient evidence regarding identity of the applicant – Application deficient – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 6, 16, 17, 46
Administrative Appeals Tribunal Act 1975 (Cth) s 34E
CASES
Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
The applicant is a child who was alleged to be born on in 2006[1] in Guigang, China. The applicant has applied for a grant of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act) on the basis that her advocate, Mr H, an Australian citizen, was her parent at the time of her birth. There is no evidence placed before the Tribunal that Mr H has custody of the child under the law of China. On 6 June 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) refused the application. I consider that decision was correct and I give my reasons.
[1] The name of the applicant, who is a minor, her advocate and actual date on which the applicant was born need not be disclosed in these reasons which are a matter of public record.
RELEVANT LEGISLATION
Part 2 of the Act provides for the acquisition of Australian citizenship. Division 2 of that Part provides for when a person can acquire Australian citizenship by making an application.
Section 16 of the Act enables a person to make an application to the Minister to become an Australian citizen. Relevantly, sub 16(2) provides:
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; …
Once an application has been made under s 16 of the Act, the Minister must approve or refuse the application. The Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen: sub 17(1). Subsection 17(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible under subs 16(2) or (3) of the Act. The Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person: sub 17(3).
There is no issue concerning the application of s 46 of the Act which requires that an applicant make an application on a form which is approved by the Minister: sub 46(1)(a). The relevant form is Form 118 (“Application for Australian citizenship by descent”).
As the applicant is under the age of 16 years, Form 118 has to be completed by a responsible parent. The expression “responsible parent” is defined in s 6 of the Act and a summary of that definition appears on the front page of Form 118. Mr H has signed Form 118. The application claims that the applicant was born in China in 2006.
Form 118 sets out the documents that are required to give proof of identity and also additional documents that provide “[e]vidence that at least one parent was an Australian citizen at the time of your birth” as well as “[p]roof of identification documents for the responsible parent applying on behalf for the child”.
Form 118 also sets out what documents are required in a case where the applicant is a child under 16 years of age. They include “[a] full birth certificate or family register containing parent’s details”: there is a comment that “[i]n some circumstances the department may request DNA testing”. Another document that is required is “[e]vidence of links between birth name and current name, if applicable”.
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Introduction to the Australian Citizenship Instructions (ACI) states that:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision-makers should be mindful that policy must not be applied inflexibly. Policy cannot restrain the exercise of delegated powers under the Act.
The respondent has submitted that this Tribunal should apply the ACI “unless there are cogent reasons to the contrary”: see Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake). Drake is a decision which has been consistently adopted by this Tribunal. Having regard to the considerations which were outlined in Drake it is important to mention that the extracts from the ACI below are consistent with the Act. The ACI do not require that a decision-maker should be required to have regard to irrelevant considerations.
In Drake, Brennan J pointed out the utility of a policy:[2]
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Consistency of decision making is important when the Minister has a number of delegates who consider an application.
[2] (1979) 2 ALD 634 at 640.
Chapter 3 of the ACI is entitled “Citizenship by Descent”. In the Overview to Chapter 3 the ACI directs:
An application must be refused if the decision maker is not satisfied of the person’s identity … All evidentiary documentation must be closely examined.
The ACI directs in Chapter 3 (12.1):
The application must be made in the current legal name of the applicant. The following documents should support the application:
▪ the applicant’s full birth certificate
▪ official evidence of any change of name by the applicant …
The ACI directs (13.1):
There are a number of situations where an application for citizenship must not be approved. These relate to:
▪ Identity
…
Identity (s17(3))
No further guidance is necessary.
CONSIDERATION
At the outset of the hearing the Mr H sought to tender affidavit evidence of what transpired during an alternative dispute resolution process that was conducted by this Tribunal. I ruled that evidence in the affidavit of what was said at the conference was inadmissible having regard to sub 34E(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The respondent declined to grant consent to the admission of such evidence under sub 34E(2) of that Act. I also later ruled that I would not grant the application of Mr H who had prior to the hearing indicated that he wanted to call a conference registrar to give evidence of what was said by the representative of the respondent during an alternative dispute resolution process that was conducted by this Tribunal. I also ruled that such evidence would be inadmissible under sub 34E(1) of that Act.
There are a number of emails in evidence before me which bear an email address as being “From: Steven Jacks”. Mr H confirmed at a telephone directions hearing that they are his emails.
A DNA test is in evidence which contains the statement that there is a high probability that Mr H is the biological father of the applicant. The respondent did not request that Mr H provide the DNA test; the test was conducted at the insistence of Mr H. Although there is no documentary evidence before me that relates to the manner on which DNA samples were taken, I accept for the purpose of this hearing that Mr H is the biological father of the applicant. Mr H is also an Australian citizen. I accordingly find that sub 16(2) of the Act is satisfied in that Mr H, who is an Australian citizen, was a parent of the applicant at the time of her birth.
At one stage during the hearing, Mr H made a submission that the requirement that the identity of the applicant be proved was a matter of “policy”. I informed Mr H that the requirement of the Minister to be satisfied as to identity was a requirement of sub 17(3) of the Act which provides that the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. The Explanatory Memorandum for the Bill to the Act states:
Subclause 17(3) provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person.[3]
The main issue in this case is not whether Mr H is the parent of the applicant but rather is whether the Minister can be satisfied of the identity of the applicant.
[3] Explanatory Memorandum to the Australian Citizenship Bill 2005, p 19.
The form of application for Australian citizenship by descent (Form 118), which has been approved by the Minister, requires the production of a number of documents which are relevant to establishing the identity of an applicant. Form 118 contains the statement: “If you are an applicant under 16 years of age, you must provide the following: 1. Proof of identity documents that show a birth name and date of birth …”. The form contains a statement that a parent provide “identification documents” in support of an application. The form requires that there be a full birth certificate as well as “[e]vidence of links between present and previous names”.
Mr H claims to not have any birth certificate of the applicant. He states that ever since the applicant was born in 2006 he has supported the mother of the applicant. In giving evidence he stated that he did not ask the mother for a birth certificate. He claims that the mother had abandoned the child by leaving the child with him in September 2011. He has not reported the abandonment of the child to any government authority in China. Mr H has not sought any Chinese court order in relation to his custody of the applicant. Despite the lack of any documentation Mr H asserts that the applicant has been able to attend school as well as travel in China.
The delegate of the Minister has on a number of occasions requested Mr H to provide documentation from a number of Chinese government offices. As early as 29 January 2012, Mr H sent an email to the delegate in which he acknowledged that the delegate had advised him that he may be able to seek assistance from the local police station of the residential catchment area where the applicant was born as well as two exit and entry administration offices. He remarked:
You would like me to approach the listed Chinese authorities to try and ascertain if there are any identity documents for [the applicant]. Please inform me how approaching any of these authorities would in any way assist in establishing that she is my daughter?
Mr H informed the delegate that his request was unreasonable.[4]
[4] Exhibit A, T-document 11, pp. 114-115.
On 3 February 2012, the delegate advised Mr H:[5]
If you are able to obtain supporting documentation to establish [the applicant’s] name at birth, date of birth and any changes of name since birth, then I would encourage you to provide them.
[5] Exhibit A, T-document 11, p. 110.
On 23 May 2012, the delegate had informed Mr H that he required some assurance from him that he had approached the various Chinese government offices for assistance; the delegate quite properly recognised it may take some time to obtain the documentation. The delegate also offered, on a number of occasions, to give Mr H an extension of time to obtain those documents.[6]
[6] Exhibit A, T-document 11, pp. 93, 94, 96, 110 and 114.
Mr H did not at any time provide the delegate with any government documentation or evidence of his contact with Chinese government offices. He also did not request an extension of time to obtain such documentation.
In an email from “Steven Jacks” dated 24 May 2012, the delegate was informed as follows:[7]
I have not submitted any request to the Chinese authorities. I have simply rang (sic) a few people asking if they can find out what this document is and where do I go to apply for one. I am waiting on their reply. Since you refuse to provide me with even the minimum of direction as to what you want that’s as good as it’s going to get until I hear from them.
[7] Exhibit A, T-document 11, p. 93.
I do not accept that the delegate did not provide Mr H with a “minimum of direction”. On 29 January 2012, the delegate advised Mr H of what government offices he should contact; Mr H then indicated that he would not go to those government offices. On 25 May 2012, the delegate promptly replied to the email of 24 May 2012 by providing Mr H with a list of relevant government offices as well as again giving him the opportunity to apply for an extension of time. After this email was sent Mr H did not contact the delegate before he made the decision. Mr H had previously pressed for a decision to be made by the delegate and had indicated that he would complain to the Minister because of what he regarded as the delay in considering the application.
The delegate has informed Mr H that he would accept what he has referred to as “lower level” documentation from Government sources that will establish the identity of the applicant. In my view the delegate has been flexible in endeavouring to fairly assist Mr H. However, after considering the evidence before me I consider that there is substance in the submission of Mr Kikkert, for the respondent, that Mr H has not exhausted his avenues of search for such documentation. I do not consider that this is a case in which lower level documentation should be called for as an officer of the Chinese Public Security Bureau, who is aware of the circumstances of this case, has confirmed that a birth certificate of the applicant would be available or that the Bureau would provide an identity document.
Mr H called Officer Luo to give evidence by telephone. Officer Luo, after being affirmed, confirmed that he is an officer from the Chinese Public Security Bureau. Officer Luo stated that he saw Mr H who had informed the Bureau that he has a daughter to a Chinese mother and that he sought the help of the Bureau in obtaining a notarial certificate relating to the birth of the applicant. Officer Luo informed Mr H that the Bureau did not issue notarial certificates and that he had to go to another department for that purpose. Officer Luo confirmed that the birth of the applicant would be registered in a hospital or by a rural committee. He also stated that the Bureau would issue an identity document to a person who did not have such a document.
I do not consider that Mr H has exhausted all avenues of enquiry to find identification documentation relating to the applicant. There is no evidence of his search for a birth certificate by his making enquiries at hospitals or at a rural committee.
Mr H had been advised by the delegate that he should endeavour to obtain identity documentation from the Exit and Entry Administration Bureau. In the reasons for review of the decision of the delegate, which he filed in this Tribunal, Mr H stated:
I have been able to meet some middle ranking officials in the Exit and Entry Administration Bureau.
He also remarked that:
the Chinese government is unable to provide any such Notarial Certificate. However, they are willing to provide an official letter stating as such with their reasons. I have not received the letter yet and since the deadline for putting in this application for review to the Tribunal has come, I am unfortunately unable to include it with the application. I expect to have within the next few days and will forward it to the Tribunal as soon as I do receive it.
Mr H has not filed or tendered any letter from the Exit and Entry Administration Bureau.
Mr H stated that he was asked to provide documentary evidence of the applicant as a participating member of the Chinese community. There is a statement from the kindergarten and her kindergarten teacher which confirmed the attendance of the applicant. There is a statement from his employer which confirms that the applicant resides with Mr H in an apartment provided by the employer. There is a statement from a friend of Mr H who states that she looks after the applicant on occasions. There is also a statement from a former school principal which details how she met Mr H and the applicant. There is also a statement from Mr H’s dentist which confirms how long he has known the applicant. There is evidence that Mr H and the applicant live together in China.
Mr H relies upon this documentary evidence of the applicant being a participating member of the Chinese community. This evidence certainly goes towards establishing that the applicant uses her “Western” name in the local community but, in my view, is insufficient to enable the Minister to properly form an opinion as to the identity of the applicant.
I consider that the delegate was correct in not requesting that a DNA test be undertaken in a case where Mr H has not provided any government documentation to establish the identity of the applicant. The type of case where a DNA test is typically required is where there is some doubt as to whether authentic documentation has been provided. In this case the delegate, as well as this Tribunal, has not been provided with any government documentation to consider. I also mention that a DNA test is not a “personal identifier” for the purposes of s 10 of the Act.
I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant.[8] For this reason the application was, in my view, correctly rejected by the delegate.
[8] This is a statutory requirement under s 46(2A)(6) of the Act.
The application is not in the birth name of the applicant but in a name that has been chosen by Mr H. In my opinion the application is deficient because there is no documentary evidence of any “links” between the birth name of the applicant and the current name of the applicant. The delegate had earlier advised Mr H that he required evidence of “changes of name” and such evidence has not been provided by the applicant. In my opinion the application is deficient because there is no birth certificate of the applicant or any documentary evidence of the change of name of the applicant.
DECISION
I affirm the decision under review.
I make an order under sub 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that the identities of the applicant and her advocate as well as any documents and any transcript of the proceedings in regard to this application not be published to any person other than the respondent and his legal advisors and the applicant and her advocate and any of their legal advisors. This order is made to safeguard the privacy of the applicant.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. .....................[Sgd].................................
Associate
Dated 18 March 2013
Date of hearing 24 January 2013 Advocate for the Applicant Confidential Solicitors for the Respondent Mr Sean Kikkert
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