FORSTER and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 468

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3175

GENERAL ADMINISTRATIVE DIVISION		)
Re		ARIEL GLADYS FORSTER

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal The Hon Brian Tamberlin QC, Deputy President

Date6 July 2011

PlaceSydney

Decision The decision under review is set aside and in substitution it is decided that the Applicant is eligible for Australian citizenship by descent.

.....................[sgd].......................

The Hon. Brian Tamberlin QC
  Deputy President

CATCHWORDS

CITIZENSHIP – requirements for citizenship by descent – Applicant born outside Australia – putative biological father failed to support application – weight given to evidence of paternity – weight given to sworn evidence of witnesses – decision under review set aside and substituted.

Australian Citizenship Act 2007 s 16

Family Law Act 1975 s 69VA, 69W, 69Y

Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178

McK and K v O [2001] FamCA 990; (2001) FLC 93-089

McMullen and Minister for Immigration and Citizenship [2009] AATA 638; (2009) 111 ALD 475

REASONS FOR DECISION

6 July 2011 The Hon. Brian Tamberlin QC, Deputy President

1.This is an application for review of a decision of the Minister’s delegate that the Applicant had not met the requirements for Australian citizenship by descent set out in section 16 of the Australian Citizenship Act 2007 (the Act) as a result of which the application for Australian citizenship was refused. Section 16 provides that a person born outside Australia is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

2.In this case the Applicant, Ariel, was born on 5 June 2008, and the birth certificate shows that her father was Shane Bradley Forster aged 34 years who is an Australian citizen. The mother listed on the Applicant’s birth certificate is Jing Ye aged 34 years whose nationality is Chinese. 

3.On 4 March 2008 Ms Ye made enquiries about applying for citizenship by descent for Ariel, claiming that her biological father was an Australian citizen. She stated that she had no contact with Mr Forster at the time of application, because after she became pregnant Mr Forster said that he did not want a baby and wanted nothing more to do with her. She says that she first met Mr Forster in July 2005 and that they started dating in May 2006. In July 2006 Ms Ye and Mr Forster began to cohabit in Zhuhai, China.

4.Between 25 November 2006 and 30 December 2006 Ms Ye came to Australia with Mr Forster for a holiday and stayed with him and his family in Queensland. At the end of September 2007 she discovered she was pregnant and informed Mr Forster. He told her he was not ready to become a father and did not want the baby. According to Ms Ye, Mr Forster requested that she terminate the pregnancy, and said that if Ms Ye kept the baby he wanted nothing to do with the baby or her. They ended their relationship and Ms Ye moved in with her parents in China.

5.Ms Ye said that after they ended their relationship, Mr Forster contacted her and asked her to go to a concert and she went with him. Mr Forster had tried to convince her that she should terminate the pregnancy because he did not want to be a father. She refused and did not have any further contact with Mr Forster during the rest of her pregnancy.

6.After the birth, Ms Ye sent Mr Forster photographs of her daughter from her phone, but he did not respond to that communication and refused to acknowledge that he had any responsibility for Ariel.

7.In January 2009 Ms Ye met Mr Andrew Watson, an Australian citizen, and they married on 26 January 2010. Mr Watson lives in Australia but visits China regularly where Ms Ye is resident with Ariel and another child of hers.

8.Mr Forster was contacted by the Department of Immigration and Citizenship on 21 April 2010 and he said that he moved in with Ms Ye in April 2006 but says that they separated in January 2007. They dated for about a month during March 2007, when they again separated. He claims that Ms Ye advised him around June or July 2007 that she was dating other people. He said that Ariel had never been proven to be his child. He said that he had no face-to-face personal contact with Ms Ye, after they separated for the second time in March 2007, until early October 2007 when Ms Ye told him that she was pregnant. He refused to be called to give evidence to rebut the claims of Ms Ye.

9.At this point I note that in his later statements he said that he did have one further contact with Ms Ye in the period between July and October 2007, but he does not specify the date. 

10.He confirmed that at the present time he does not have any contact with Ms Ye and did not wish to have any kind of relationship with her or the child. He claims to have separated from Ms Ye six months before knowing of her pregnancy and does not accept the child is his. He says that he was not consulted regarding the inclusion of his name on the birth certificate.

11.In these circumstances the delegate was not satisfied that the birth certificate was sufficient evidence of a biological relationship between Mr Forster and the Applicant to establish he was the parent.

12.On 29 April 2010 Mr Forster was invited to participate in DNA testing to establish that he and Ariel Forster were biologically related. On 1 May 2010 he declined to participate in DNA testing.

13.In subsequent correspondence by way of email on 16 April 2011 Mr Forster, although notified of the hearing before me, stated that he was not in a financial position to attend the hearing or seek legal representation. He did not appear at the hearing. He said that if it turns out that he was the father of the child he would like it known he was not a consenting participant in the conception of the child. This was a somewhat curious claim and indicates his understanding that he may be found to be the biological father. He claims that she was using the pregnancy as a vehicle to force him back into a relationship with her or to obtain Australian citizenship. He confirmed that he would not be subjecting himself to a DNA test prior to the hearing.

14.In his email of 16 April 2011 he admits that he gave Ms Ye a considerable amount of money to terminate the pregnancy if the child was his on the day that she first told him she was pregnant. This also indicates that he does not categorically deny that he is the parent. He refers to an “8 hour block” in which he had no recollection. This indicates that he is not certain as to whether he is the father. Indeed he says that he cannot say with any certainty if “I am or if I am not the father of the child”.

15.At the hearing Ms Ye gave evidence confirming her earlier statements that she had sexual relations with Mr Forster in 2007 and that she had not had any relationships with any other person in the period from March 2007 to October 2007. 

16.She was cross-examined as to her contact and relationships with persons and Mr Forster in the relevant period and her evidence was not diminished in any material respect. I accept her evidence. In addition, evidence was given by Ms Hai Ying Wei, a resident of China, and she was also cross-examined. She said that Mr Forster had been a friend of her ex-boyfriend, that she had befriended both Ms Ye and Mr Forster. She testified as to the close relationship between Mr Forster and Ms Ye. She says that in January 2007 she was working in the same company as Mr Forster until December 2007, and she remembers the couple having some fights during this time, but says that there was a pattern of them breaking up and getting together again. She recalled that in the summer of 2007 around the period July through September she went to their home for a meal, and during one weekend in that period went swimming and to restaurants with Mr Forster. She considered that Mr Forster and Ms Ye still had a very close relationship from her observations during April to September 2007. Ms Wei was questioned but her evidence was not diminished or shaken in the course of the cross-examination.

17.Also, and more importantly, the Applicant led evidence from Mr Hans Wabl who was a friend of both Ms Ye and Mr Forster from early July 2007 through April 2008. He says that Mr Forster and Ms Ye lived in a de-facto relationship in Mr Forster’s apartment up until July 2007 when Mr Forster informed Mr Wabl that he had asked her to leave the premises and he said he was looking to break up with her. He says that in August 2007 he went to dinner with Ms Ye and she received a text message from Mr Forster. In October 2007 he met with Mr Forster at a bar restaurant called Cohiba in Zhuhai when Mr Forster told him that she was pregnant and that they had slept together in the weeks before. He said that Mr Forster believed that he was the father and wanted to keep the matter quiet, and that if she were to divulge the information to others Mr Forster would deny the fact outright. Mr Forster indicated to Mr Wabl that he wanted her to terminate the pregnancy, but that he might be unable to persuade her to do this. He said that he had been successful in persuading her on a previous occasion to terminate her pregnancy. Mr Forster said that if she elected to continue with the pregnancy he would deny fatherhood and any responsibilities or contact with the child. Mr Wabl says that as far as he was aware, from his observation, she had not dated another person between July and October 2007 and that he did not consider she was the type of person who would be likely to have dated other persons in that period. 

18.Mr Wabl said that in April 2008, by way of phone conversation and SMS text messages, Mr Forster informed him that he was disappointed that Mr Wabl was maintaining a friendship with Ms Ye and he said that his friendship with Mr Wabl was terminated.

SUBMISSIONS

19.The Minister contends that the available evidence is insufficient to establish that the Applicant had a parent who was an Australian citizen. The Minister relies on the denial in correspondence and communications with Mr Forster that he is the father of child. The Minister also submits that it was open to Ms Ye to seek an order under the Family Law Act 1975 requiring Mr Forster to submit to a parentage testing procedure to obtain a declaration of parentage based on any refusal to undertake this (see sections 69VA, 69W and 69Y of that Act).

20.The Minister refers to two authorities Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178 and McMullen and Minister for Immigration and Citizenship (2009) 111 ALD 475 and seeks to distinguish those cases.

21.I accept that the circumstances in those cases were dissimilar to the present in some respects but I note that in McMullen the Tribunal was satisfied that the mother was an Australian citizen based on the mother’s evidence alone. 

22.In Kumar’s case the Tribunal found that in the circumstances it was possible to infer that the child, whom the mother claimed was hers, was not in fact her child and the Tribunal took into account the fact that she was unwilling to take a DNA test to support her claim.

23.The Applicant’s case is simply that she relies on the evidence before me given by her mother and that of Ms Wei together with the further independent evidence of Mr Wabl, none of which was shaken in cross-examination. In addition, there was no oral evidence adduced by Mr Forster and he elected not only to refuse to undertake the DNA test, but even to appear to give evidence on oath or affirmation as to the circumstances which he asserted in his correspondence. As a result, he was unable to be cross-examined and tested as to the consistency and accuracy of his correspondence with the Department. In view of this, therefore, the assertions made by him must be given lesser weight than the sworn evidence of Ms Ye and her two supporting witnesses who appeared and were subjected to cross-examination.

24.In the present case it is not necessary to examine the question whether any inference can be strengthened on the basis that Mr Forster has consistently refused to undertake a DNA test.

25.I do not think any adverse inference should be drawn from the fact that Ms Ye did not seek an order under the Family Law Act 1975 as to parentage. There is no power to make a declaration as to parentage under that Act except in proceedings in which the parentage is already in issue. The power under section 69VA is not a free-standing power (see McK and K v O [2001] FamCA 990 at [28] to [30]). In the present circumstances she could not reasonably have been expected to commence such proceedings.

26.Accordingly, since I accept without reservation the sworn testimony of Ms Ye and the witnesses who support her claim, I find that Mr Forster was in fact the biological father of Ariel and that he was at the time of birth an Australian citizen.

27.It follows that the decision of the Minister’s delegate in this matter be set aside and that the correct and preferable decision I make is that the Applicant is eligible for Australian citizenship as a consequence of finding that Mr Forster, an Australian citizen, was her parent within s 16(2)(a) of the Australian Citizenship Act 2007.

28.The decision under review is set aside and the above decision is substituted for that of the Minister’s delegate.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President.

Signed: ........[sgd]......................................................................
           C. Taylor, Associate

Dates of Hearing  5 May 2011
Date of Decision  6 July 2011
Appearance for the Applicant   Mr A. Watson
Solicitor for the Respondent     Ms J. Cumming, Clayton Utz