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

[2021] AATA 2885

Encarnacion and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2885 (17 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3536

Re:Angela Marie Encarnacion

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:17 August 2021  

Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant meets the requirements in subsection 16(2) of the Australian Citizenship Act 2007 (Cth).

..................................[SGD]......................................

Mr S Evans, Member

Catchwords

CITIZENSHIP – by descent – issue to determine: whether the Applicant is eligible to become an Australian citizen by descent in accordance with subsection 16(2) of the Australian Citizenship Act 2007 (Cth) – whether a parent of the person was an Australian citizen at the time of the birth – sibship testing inconclusive – decision under review set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

H v Minister for Immigration and Citizenship [2010] FCAFC 119

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Revised Citizenship Procedural Instructions – CPI 21 and CPI 23

REASONS FOR DECISION

Mr S Evans, Member

17 August 2021 

1. Angela Encarnacion (“the Applicant”) was born in the Philippines in January 1992.  Her mother, Marina Encarnacion, is a citizen of the Philippines. The Applicant contends her late father was an Australian citizen and she applied for Australian citizenship by descent. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) did not accept that the Applicant had a parent that was an Australian citizen at the time of her birth and refused her application. The Applicant seeks review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”).

   BACKGROUND

2. On 5 June 2019 the Applicant lodged an application for Australian citizenship by descent on the basis that her father was an Australian citizen, Gerald Norman Richardson (“Mr Richardson”). On 18 June 2019 the Department requested further information from the Applicant including pre-natal reports of her mother, medical records or receipts from the hospital where she was born, certified copies of both her parents’ passport travel stamps showing their whereabouts at the time of the Applicant’s conception and photographs of the Applicant with her parents from the time of her birth. 

3. On 15 July 2019 the Applicant responded providing copies of a police clearance from the UAE, a photograph of her mother and Mr Richardson together, other photographs of her mother, a Malaysian identity card for Mr Richardson and passport pages showing stamped Malaysian immigration employment passes issued in June and August 1992, correspondence from Mr Richardson to Marina Encarnacion and a statement. 

4. Having considered the additional information, a delegate of the Minister determined that that there was insufficient evidence that the Applicant’s mother and putative father were together at the time of her conception. The delegate also found there was a lack of evidence that the Applicant’s mother, Marina Encarnacion, gave birth to the Applicant. The delegate also considered that there was limited evidence Mr Ricardson was involved in providing care or emotional, domestic or financial support during Marina Encarnacion’s pregnancy.

5. Having found that there was insufficient evidence to indicate a biological link between the Applicant and Mr Richardson, or that there was a parent-child relationship between the Applicant and Mr Richardson at the time of the Applicant’s birth, the delegate refused to grant the Applicant Australian citizenship on 14 May 2020. 

   LEGISLATION AND POLICY FRAMEWORK

6. The relevant legislation is the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). Subsection 17(1) of the Citizenship Act provides that if a person makes an application for Australian citizenship under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Subsection 16(2) of the Citizenship Act provides that a person born outside Australia on or after 26 January 1949 is eligible to become and 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.

8. While the Tribunal is not bound by departmental policy, it will usually be taken into account and followed unless there are cogent reasons not to do so. 

9. The policy relevant to this application is contained in the Australian Citizenship [Policy Statement] and the Revised Citizenship Procedural Instructions (“CPI”). CPI 21 – Australian Citizenship by Descent provides instructions for decision makers when assessing applications for Australian citizenship by descent. 

10. CPI 23 – Determining Parent-Child Relationship for the Purposes of the Citizenship Act provides guidance when considering a parent-child relationship where it is relevant to an application for Australian citizenship. 

11. Relevantly, CPI 23 provides that when determining if a parent-child relationship is biological, the Tribunal should have regard to factors including: 

    ·the nature of the claimed relationship between the claimed parents at the time of the applicant’s conception and birth;

    ·the travel movements for the claimed parents around the date of conception to verify they were together; and

    ·the circumstances of the applicant’s birth, registration of birth and custody of the applicant post-birth.

    ISSUE FOR DETERMINATION

12. I must determine whether Ms Encarnacion is eligible to become an Australian citizen by descent in accordance with subsection 16(2) of the Citizenship Act.

13. There is no issue that Ms Encarnacion was born outside Australia on or after 26 January 1949 in terms of subsection 16(2) of the Citizenship Act.

14. The sole issue for determination is whether a parent of the Applicant was an Australian citizen at the time of her birth as required by subsection 16(2) of the Citizenship Act. Specifically, I must determine if the evidence supports the Applicant’s contention that she is the daughter of Mr Richardson.

    EVIDENCE  

15. The Tribunal heard evidence from the Applicant, the Applicant’s mother Marina Encarnacion and Emily Richardson, who is Mr Richardson’s daughter and the Applicant submits is her half-sister. 

16. The Applicant was born in January 1992 and her Filipino birth certificate, which was issued in June 1992, approximately five months after the Applicant’s birth, confirms this to be so. The certificate lists her mother as “Marina Torillas Encarnacion” and her father as “Gerry Richardson”. 

17. The Applicant has written two separate accounts of her parentage. The first appears to have been written in June 2020. She submits that the statement contains some errors as she wrote it from memory without consulting her mother. Having consulted with her mother, the Applicant submitted a further statement in May 2021, in which she provided further evidence and clarified some details which she concedes were incorrect. The Applicant stated the May 2021 statement was an accurate account and I have considered the evidence on that basis.  

    The Applicant’s contentions

18. In 1989 Marina Encarnacion was a 20 year-old waitress working at a bar in Manila.  At that time Mr Richardson was living in Australia and travelled regularly to the Philippines.  As he frequently attended the bar, he was well known to Marina Encarnacion and her colleagues when he began to court Marina Encarnacion. In her May 2021 submission the Applicant describes the circumstances of her mother beginning a relationship with Mr Richardson: 

    My mother didn’t think the relationship was that serious for my father until he actually did take her to Australia in 1991. She wasn’t really interested in him at first because everyone warned her about him having “many girlfriends” but he was very persistent and they started seeing each other after 2 weeks. Soon after spending a night together, he accompanied her to work one day to tell the [bar] manager that she won’t be working anymore and that he will support her and take her to Australia. 

19. Shortly after meeting Marina Encarnacion, Mr Richardson took her to Puerto Galera in the Philippines for two weeks and before returning to Perth. They maintained contact for three months and before Mr Richardson returned to the Philippines where he stayed for two months. This arrangement continued for a time, with Mr Richardson dividing his time between his home in Perth and Manila, where he would stay with Marina Encarnacion. 

20. In September 1990 Marina Encarnacion applied for a tourist visa to visit Australia with Mr Richardson. In November 1990 she was granted a visa and she and Mr Richardson booked tickets to travel to Australia together on 17 November that year. However, according to the Applicant, Marina Encarnacion found out that Mr Richardson had been talking to his ex-girlfriend so she refused to travel with him and instead returned home to Leyte. They subsequently “reconciled through letters and phone calls” and in late February 1991 Mr Richardson and Marina Encarnacion travelled to Australia together. Relevant to the chronology of events, they were in Australia together on Marina Encarnacion’s birthday in early March.

21. In April 1991 Marina Encarnacion was in Australia with Mr Richardson and “found out” she was pregnant with the Applicant. The following month Marina Encarnacion decided to leave Australia and return to the Philippines. The Applicant writes in part: 

    … my mom decided to fly back to the Philippines since she couldn’t bear being in a foreign country all the while struggling with her pregnancy. She felt very alone not having any friends or family in Australia. She was having a really hard time being pregnant so she considered terminating it. Dad [Mr Richardson] was initially okay with whatever she wanted to do. When she was in Leyte, she tried to get an abortion… but it did not work, she received a letter from my dad pleading her not to go through with it and to keep the baby and he will take responsibility for it. He believed that her pregnancy was good luck because he was assigned a major project in Langkawi, Malaysia where he immediately flew to wherein he worked as an Architect. 

    Marina Encarnacion’s evidence

22. Marina Encarnacion provided oral evidence to the Tribunal which supports the Applicant’s account of her meeting Mr Richardson and becoming pregnant whilst in Australia, as detailed above. 

23. She confirmed that she fell pregnant when she and Mr Richardson travelled to Australia.  She realised that she was pregnant because she began to feel unwell. Consistent with the Applicant’s account, she had decided to return to the Philippines to terminate the pregnancy. After she returned to the Philippines and had an unsuccessful abortion, Mr Richardson called her and advised her to proceed with the pregnancy because he had secured another job. Marina Encarnacion gave evidence that it was a significant project which would enable him to support their child financially.

24. Marina Encarnacion confirmed that Mr Richardson was having an affair with another woman approximately three months after she had given birth to the Applicant. In cross-examination she confirmed that she had lost faith in Mr Richardson at that time. However, she and Mr Richardson maintained contact and their relationship continued to develop such that they were able to maintain joint care of the Applicant. 

    Birth and birth certificate

25. The Applicant claims to satisfy subsection 16(2) of the Citizenship Act on the basis of her biological relationship with Mr Richardson. The Applicant’s birth certificate records Mr Richardson as her father but her birth is recorded as a “late registration”, as the Applicant was born in January 1992 but was not registered until June 1992, some five months later.

26. Accompanying the birth certificate is an affidavit for delayed registration of birth made by Marina Encarnacion on 4 June 1992. The Applicant’s birth certificate is difficult to read in parts but in the section which states “[t]he reason for the delay in registering… her birth” it appears to be handwritten “her father is out of the country”. 

27. In her own submission from June 2020 the Applicant writes that Mr Richardson was present at her birth and remained in the Philippines for three days after. 

28. As to whether Mr Richardson was present at the time of the Applicant’s birth, Marina Encarnacion gave evidence that he was. She told the Tribunal that Mr Richardson stayed in the Philippines for three days after she gave birth to the Applicant, after which he was required to return to Malaysia for work. 

29. Marina Encarnacion recalled it would be another eight months before she saw Mr Richardson again, when she travelled to Malaysia. Whilst visiting Mr Richardson in Malaysia she discovered that he was not only being unfaithful but also supporting another woman. 

30. Regarding the delay in registering the Applicant’s birth, Marina Encarnacion explained that as she had been asked questions at the hospital she understood that the Applicant’s birth had already been registered. It was not until June 1992, when applying for her daughter’s passport, that she came to realise that the Applicant’s birth had not been registered. In her updated written statement the Applicant writes: 

    My mom said that the census at the hospital took their names and mine and said that they will register me. When she asked what it was for, they said it was for the municipality. It was her understanding that all she needed to do was pick up the birth certificate. I was initially to be registered as Angela Marie Richardson but when my mom was about to apply for my passport to visit my dad in Malaysia, she found out that I wasn’t registered yet. So she had to do it all on her own and that’s why my father had to sign a separate document claiming me as his daughter at the consul while he was in Malaysia which he mentioned in one of his letters. I couldn’t carry his last name anymore because the rules changed between the time I was born and when she actually registered me. 

    Correspondence from Mr Richardson to Marina Encarnacion:

31. In evidence are a series of handwritten letters from Mr Richardson to both the Applicant and Marina Encarnacion. The Minister did not question the authenticity of the correspondence or that it was sent by Mr Richardson, and I accept the correspondence is genuine.  

32. Mr Richardson appears to have passed away in 2005. He worked at as an architect and soon after meeting Marina Encarnacion was based in Malaysia and later Singapore. On 28 February 1992 he wrote to Marina Encarnacion from Malaysia: 

    Did you get the ₱10,000 I had transferred to your bank account

    …

    I can’t understand you, you write 3 letters in 3 weeks – [t]hen I don’t hear from you for 3 weeks. So I start to worry, whether you and my little baby are O.K. 

    …

    Have you asked the Doctor how old Angela should be before she can travel by airoplane [sic]?

33. On 22 April 1992 Mr Richardson wrote confirming that he had sent Marina Encarnacion money and details plans to fly the Applicant and her mother to Malaysia to visit him: 

    I sent ₱12,000 to your bank account about a week ago

    …

    I’m going to K.L. in a weeks time and I will try again to get the Philippine Embassy to witness my signature for Angels [sic] birth certificate. I told you before… that I was in K.L. about 3 weeks ago, and I waited around at the Philippine Embassy for about 3 hours but no one with the authority to witness my signature was around. This time, I’m just not coming back until it is signed. Then I’ll send it to you by express mail…

    …

    I still don’t have a work permit here – so I can’t bring you and Angel out here yet.  Anyhow I’m sure you haven’t had her name put onto your passport yet. 

34. On 14 May 1992 Mr Richardson wrote to Marina Encarnacion confirming that he had deposited ₱50,000 in her bank account and would be sending her more money in six months’ time.  In relation to the Applicant he writes: 

    I think it is a good idea to get Angela a passport of her own – even though the Philippine Gov’t will charge an extra U.S.$90 everytime she leaves the country. But make sure that it state MOTHERS NAME and FATHERS NAME, so that we don’t have problems getting in and out of different countries. 

35. A copy of part of Marina Encarnacion’s bank passbook is in evidence. Consistent with the correspondence from Mr Richardson, a deposit is recorded for ₱49,925 dated 25 May 1992. 

36. On 25 May 1992 Mr Richardson writes once again from Malaysia. After detailing the circumstances of his divorce settlement in Australia, he writes “I want to see you and Angel”.  He continues: 

    There is enough money in your bank account to buy a OPEN RETURN airfare for you and Angel you have to show the Immigration Department that you have money in the bank. Also have about ₱5,000 in your purse and tell them that you are coming over here to see your Australian husband who is living in Langkawi. 

    …

    Have you got Angel registered with me as dad? I hope that form from the consul was O.K. It took me a lot of time to get it. Now I don’t want you fucking around with this sweetheart. 

37. On 27 June 1992 he wrote confirming that he received Marina Encarnacion’s letter and photos of her and the Applicant. In the letter Mr Richardson provides instructions to Marina Encarnacion directing her to buy a flight with Philippine Airlines and to fly to Kuala Lumpur where he would meet her at the airport before they travel to Langkawi together. He writes that he will arrange with his employer for her to obtain a three-month visa. 

38. In a letter dated 24 January 1993 Mr Richardson writes that he is annoyed at Marina Encarnacion on account of her using his work address to write to him. He states that he has not sent Marina any money because she wrote to him at the wrong address and “because you couldn’t manage to bring Angel to see me when I was in Manila”. He continues:

    [Y]ou treat me like shit – except when you want money. 

    …

    However, I don’t want Angel to grow up the way you did. So I will send you $1,000 to your bank account and if you can convince me that you know what you are doing about buying this I will send the $1,000 to your Ermita Bank N.B.P. account. 

    …

    Always remember that I am willing to take Angel and give her the best in life – and I would always let you have access to her. 

    Financial support

39. The Applicant submits that in addition to writing, Mr Richardson would send money to support her and her mother, which was estimated to be from ₱20,000 to ₱50,000 per month. According to the Applicant’s statement, when she was growing up Mr Richardson provided enough money for her and her mother to “live a comfortable life in the beginning”. The Applicant was able to attend private school and Mr Richardson bought her and her mother a house to live in.    

1. Evidence before the Tribunal indicates that Mr Richardson continued to provide financial support to the Applicant and Marina Encarnacion through until 2004, shortly before he passed away. Copies of Marina Encarnacion’s passbook are in evidence, and whilst they show deposits were made regularly into her bank account, they do not indicate their source.

2. Supporting the Applicant’s contention that Mr Richardson provided money to Marina Encarnacion is a receipt from BTI Pesos Express (Orchard Road, Singapore) which confirms a transfer of $SGD250 to Marina Encarnacion from G.N. Richardson on 6 August 2004.

3. Also in evidence is a hand-written receipt dated July 1993 for the partial payment of a house which it is submitted was purchased by Marina Encarnacion with Mr Richardson’s support. 

4. In a handwritten letter dated September 1994 to Citibank (Makati, Philippines), Mr Richardson requests that a joint account be opened for he and Marina Encarnacion. 

5. A copy of Mr Richardson’s will indicates that he did not intend to leave anything to the Applicant following his death. 

   Evidence of Emily Richardson

6. Emily Richardson is Mr Richardson’s daughter. She was born in June 1994 and moved to Australia when she was 10 years of age. Prior to living in Australia, she and her mother resided in Singapore with Mr Richardson. 

7. Ms Richardson provided oral evidence to the Tribunal and I found her to be a credible witness. 

8. Ms Richardson told the Tribunal that Mr Richardson passed away in Australia in 2005. He had been diagnosed with his condition in Singapore where he had received medical treatment which he decided to discontinue. 

9. Ms Richardson spoke to her mother prior to giving evidence and gave evidence based in part on information obtained from her mother. Ms Richardson confirmed that it was her understanding that her father was present at the Applicant’s birth and that he regularly sent money to Marina Encarnacion and the Applicant. Ms Richardson said that as a child she was aware that she had a half-sister in the Applicant and had sought to contact her previously but was prevented from maintaining contact with her. She and the Applicant reconnected through social media later in life. 

   DNA testing

10. As Mr Richardson has passed away, the Applicant is unable to provide DNA evidence which would establish that she is Mr Richardson’s biological daughter. However, Emily Richardson agreed to undertake a DNA Sibship test. The testing was carried out in October 2020 and the results are graded “inconclusive” of a half sibship relationship between the Applicant and her putative half-sister.  The results indicate a Relationship Index of 2.42 where a result of less than one argues against a relationship and between 9 and 19 indicates a relationship is likely. 

    CONSIDERATION

11. In considering the evidence in relation to the Applicant’s claims to satisfy subsection 16(2) of the Citizenship Act on the basis of her biological relationship with Mr Richardson, I take into account the considerations detailed in CPI 23.

12. By Marina Encarnacion’s account, her relationship with Mr Richardson was, particularly in the first few years, turbulent and its status opaque. Mr Richardson had a reputation for infidelity, and Marina Encarnacion’s suspicions that he was unfaithful to her would prove well founded. Having cancelled one trip to Australia with Mr Richardson, Marina Encarnacion travelled with him to Australia in February 1991. 

13. Whilst on holiday in Australia she fell pregnant. It was April 1991 that she discovered she was pregnant with the Applicant, who was born in January the following year. Based on Marina Encarnacion’s account, and the Applicant’s date of birth, I am satisfied that Marina Encarnacion fell pregnant when she was in Australia. This finding strongly supports Mr Richardson being the biological father of the Applicant. 

14. Mr Richardson is listed as the Applicant’s father on her birth certificate. However, the Minister contends that the late registration of the birth means the information recorded is based on self-reporting by Marina Encarnacion and the information has not been verified by the registration authority. 

15. It is the case that the Applicant’s birth was not registered until June 1992, some five months after she was born. Marina Encarnacion was questioned about this and I found her explanation, that she thought she had already registered the child’s birth and did not find out until she sought to travel to Malaysia with the Applicant that she had not, to be plausible. The explanation is supported by Mr Richardson’s correspondence regarding the registration of the Applicant’s birth and Marina Encarnacion’s planned visit to Malaysia with the Applicant. 

16. Whether Mr Richardson was present at the Applicant’s birth is not entirely clear. The birth certificate indicates that he was not, but Marina Encarnacion now recalls that he was. Her account is supported by a statement from her friend Violeta Igloria, who claims she was present at the birth and that Mr Richardson was also in attendance. Ms Richardson also claims to have been told by her mother that Mr Richardson was present. I place limited weight on the second-hand report of Ms Richardson and note that Ms Igloria was not called to give evidence by the Applicant.   

17. The Applicant’s birth was brought forward for medical reasons and Mr Richardson is reported to have been required to leave the Philippines three days after her birth. If Mr Richardson was present at the birth, it appears to have been through good fortune rather than design. 

18. The Minister contends that there is no evidence before the Tribunal to positively demonstrate that Mr Richardson is the biological father of Ms Encarnacion, notably DNA test results. As Mr Richardson has passed away, DNA testing was not possible. The DNA testing which is in evidence consists of a sibship test which was undertaken by Ms Encarnacion with her putative half-sister Emily Richardson. The sibship test results reveal a half sibship relationship index of 2.42 and indicate that the profiles are inconclusive of a half sibling relationship between Ms Encarnacion and Emily Richardson. The Minister contends that the sibship test is particularly low in the inconclusive range and significantly undermines Ms Encarnacion’s claimed biological relationship with Mr Richardson. I am satisfied that the results are inconclusive and consider they weigh neither in favour nor against a finding of a biological relationship existing between the Applicant and Mr Richardson.   

19. The Minister did not take issue with the legitimacy of the correspondence purportedly from Mr Richardson, some of which is reproduced in these reasons, and I accept the documentation is genuine. Most of what is before the Tribunal is personal correspondence between Mr Richardson and Marina Encarnacion, but it is clear that Mr Richardson sought to maintain a relationship with Marina Encarnacion and her daughter, the Applicant. 

20. Critically, the correspondence ties together important aspects of the Applicant’s account of the relationship between her, Marina Encarnacion and Mr Richardson. It confirms that Mr Richardson provided Marina Encarnacion with financial support, from the time of the Applicant’s birth through until 2004, shortly before he passed away. It confirms also that he viewed the Applicant as his daughter, and that he sought to see her, build a connection with her and maintain a relationship with her. 

21. The Minister’s representative draws the Tribunal’s attention to the requirement within CPI 23 that the Tribunal consider the nature of the claimed relationship between Mr Richardson and Marina Encarnacion at the time of the Applicant’s birth. The Minister submits that the evidence is that the Applicant’s mother met Mr Richardson whilst he was going through a divorce and the Applicant was conceived while Mr Richardson was going through property settlements following that divorce. For most of the time Marina Encarnacion was pregnant, Mr Richardson was not present. When the Applicant was born, he spent just three days with her and her mother and did not see either of them until they travelled to Malaysia when the Applicant was approximately eight months of age. 

22. Based on the evidence, including that of Marina Encarnacion, the Minister’s observations in relation to the nature of the relationship between the Applicant’s mother and Mr Richardson are accepted. Without the benefit of Mr Richardson’s testimony, it would appear that on balance these imperfect outcomes reflect the reality of life in trying circumstances, rather than a lack of commitment on Mr Richardson’s part. 

23. Mr Richardson’s correspondence indicates that following the property settlement with his former wife he needed to work for financial reasons. Obtaining employment in Malaysia enabled him to have confidence he could afford to support the Applicant financially, so he asked Marina Encarnacion to keep the child. The possibly unforeseen trade-off was that they would be separated, she living in the Philippines whilst he was required to work out of Malaysia. Life is messy, and it appears Mr Richardson started a new family in Malaysia whilst seeking to fulfill the commitment he made to the Applicant and her mother.

24. To be granted Australian citizenship, the Citizenship Act requires that the Applicant have a parent who was an Australian citizen at the time of birth. The Full Federal Court in H v Minister for Immigration & Citizenship [2010] FCAFC 119 (“H”) considered the meaning of the term “parent” and held that:

    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.

    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.

25. As Mr Richardson has passed away, it cannot be determined unequivocally that Mr Richardson was the biological father of the Applicant. However, I am satisfied that on the balance of probabilities he was the Applicant’s biological father.  I make this finding based on the evidence of Marina Encarnacion, Mr Richardson’s correspondence and the sequence of events strongly indicating that the Applicant was conceived whilst Marina Encarnacion was travelling to Australia with Mr Richardson. 

26. As well as being the Applicant’s biological father, Mr Richardson’s conduct was in substantial respects consistent with the definition of a parent outlined in H. He treated the Applicant as his own, he supported her financially through her mother and maintained contact with her despite the distance between them. When his life took another turn and he began a new relationship and another family, he maintained his commitment to the Applicant and visited her and Marina Encarnacion regularly. The evidence of the Applicant’s half-sister Ms Richardson confirms that he acknowledged the Applicant as his own daughter. 

    CONCLUSION

27. For the reasons outlined above I am satisfied that the Applicant had an Australian citizen parent at the time of birth and therefore meets the requirements for Australian citizenship by descent in subsection 16(2) of the Citizenship Act.

    DECISION

28. The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the Applicant meets the requirements in subsection 16(2) of the Citizenship Act.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 17 August 2021

Date(s) of hearing:	31 May 2021
Date final submissions received:	16 June 2021
Advocate for the Applicant:	Mr Y Marshall, VisaOne Pty Ltd
Solicitor for the Respondent:	Ms A Zinn, Mills Oakley