Ghalzai and Minister for Home Affairs (Citizenship)
[2019] AATA 74
•31 January 2019
Ghalzai and Minister for Home Affairs (Citizenship) [2019] AATA 74 (31 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3041
Re:Muhammad Ghalzai
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:31 January 2019
Place:Sydney
The Tribunal sets aside the decision of the Minister’s Delegate dated 29 May 2018 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 Mohammed Ibrahim Ghalzai, 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 – polygamous marriage - decision under review set aside and remitted to the Respondent
LEGISLATION
Australian Citizenship Act 2007
Australian Citizenship Amendment Act 1984
Family Law Act 1975
Law on Citizenship of the Islamic Emirate of Afghanistan [Afghanistan], 24 June 2000
Pakistan Citizenship Act 1951
CASES
ABCD v Minister for Immigration and Border Protection [2014] AATA 18
Commonwealth v Australian Capital Territory [2013] HCA 55
H v Minister for Immigration and Citizenship [2010] 272 ALR 605
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23
Hyde v Hyde and Woodmansee [1866] LR 1 P & D
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 Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy (effective 1 June 2016)
Jamila Hussain: Islamic Law and Society (Federation Press, Sydney, 1999)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
31 January 2019
APPLICATION OUTLINE
This is an appeal against a decision by the Minister’s Delegate to refuse citizenship by descent to Muhammed Azan Ghalzai (a minor, born in 2013) (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 Mohammed Ibrahim Ghalzai who claims that he has a father-son relationship with the Applicant.
In short, the Minister contends that Mohammed Ibrahim Ghalzai, accepted as being an Australian citizen, is not the biological or social father of the Applicant and hence the Applicant does not have an Australian parent through whom he can assert his right to citizenship.
Mr Ghalzai was originally a citizen of Afghanistan who was naturalised and became an Australian citizen on 26 July 2004. His original family resides primarily in Peshawar, Pakistan, which is home to a substantial ex-patriate Afghan community.
Mr Ghalzai met the Applicant’s mother (Nadia) on a visit to Peshawar in April 2012 and they were married on 29 May 2012. The copy of the Marriage Certificate provided was issued by the Afghani Consulate in that city on 18 April 2017 but there is no reason to doubt its validity or call it into question.
The marriage is the second for Mr Ghalzai, contracted under provisions of Islamic law (shar’ia).[1] His first wife, originally from Afghanistan, is a naturalised Australian citizen and there are seven children from this marriage. This family lives in Sydney but various members of the family have made regular visits back to Pakistan with Mr Ghalzai.
[1] See Jamila Hussain: Islamic Law and Society (Federation Press, Sydney, 1999) chapter 5.
It is agreed between the parties that the following facts are established:
(a)The Applicant (Muhammed Azan Ghalzai) was born in August 2013 in Pakistan.
(b)The Applicant’s mother (Nadia) is not an Australian citizen.
(c)Mohammed Ibrahim Ghalzai is not the biological father of the Applicant as has been demonstrated by two separate and independent DNA tests which have excluded him from possible biological parenthood.[2]
[2] Supplementary Tribunal Documents at [6]-[20].
Mr Mohammed Ibrahim Ghalzai has always believed that he was the biological father of Muhammed Azan Ghalzai and has made statutory declarations to that effect.[3] He expressed a sense of shock to learn that. As a result of the DNA tests, this was not the case. Regardless of the outcome of those tests, he continues to profess his love for “his son” and wife[4] and asserts that they are in a genuine “father and child relationship.”[5]
[3] Supplementary Tribunal Documents at [1].
[4] Applicant’s Documents page [1].
[5] Respondent’s Statement of Facts, Issues and Contentions at [21].
On 20 November 2016 Mohammed Ibrahim Ghalzai lodged an application for citizenship by descent (offshore) at the Australian High Commission in Islamabad, Pakistan on behalf of Muhammed Azan Ghalzai.
On 19 January 2017 the Minister’s Delegate requested further information in support of the applications. This led to two separate and independent DNA tests (12 July 2017 and 2 March 2018) being performed, each of which excluded Mohammed Ibrahim Ghalzai from the possibility of fatherhood.
On 26 April 2018 the Department invited Mohammed Ibrahim Ghalzai to provide any further comment upon these findings, which he failed to provide. As a result of this, the Delegate formally refused the application on 29 May 2018 and on 1 June 2018 Mohammed Ibrahim Ghalzai lodged an appeal against that decision with this Tribunal.
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).
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.”[6]
[6] Australian Citizenship Act 2007 section 16(2)(a)
There is no dispute that Mohammed Ibrahim Ghalzai was, at the time of the Applicant’s birth, an Australian citizen.[7] The issue in dispute whether he is the Applicant’s “parent” and was so “at the time of the birth” of the Applicant.
[7] Section 37 T Documents at [55]. Date of citizenship: 26 July 2004.
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 McMullen’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]
“There is nothing in the legislative object, the legislative text or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s 16(2), the word ‘parent’ only can mean biological parent.”[16]
“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.”[17]
“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.”[18]
“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.”[19]
[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 [127].
[17] Ibid at [129].
[18] Ibid at [130].
[19] 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”.”[20]
[20] 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.”[21]
[21] 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.”[22]
[22] 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.”[23]
“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.”[24]
[23] Citizenship Policy at [212]- [213]..
[24] Ibid at [212] - [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.”[25]
[25] Ibid at [214]-[215].
THE CENTRAL ISSUE
The issue to be determined by the Tribunal has two elements:
1.Should Mohammed Ibrahim Ghalzai be accepted as being the “parent” of Muhammed Azan Ghalzai as defined by the Federal Court and as recognised under the Citizenship Policy, and
2.If so, was this relationship on foot at the time of Muhammed Azan Ghalzai’s birth?
The contentions between the parties are that Mohammed Ibrahim Ghalzai claims that he has always had a father-son relationship with Muhammed Azan Ghalzai and has done so since the child’s birth. The Respondent believes that there is little evidence of this relationship as a significant one and that, in any event, if it does exist now, it did not exist at the time of the child’s birth as required by what it characterises as the “inflexible” requirements of section 16(2)(a) of the Act.[26]
[26] Respondent’s Statement of Facts, Issus and Contentions at [21].
THE RESPONDENT’S POSITION
The Minister draws attention to the following factors[27] in reaching his negative conclusions about the nature of the father-son relationship:
(a)Mohammed Ibrahim Ghalzai was not present at the birth of the child;
(b)There appears to be little evidence of Mohammed Ibrahim Ghalzai’s connection with the Applicant during the period immediately after his birth and such evidence as is submitted (primarily photographic) shows the two parties together when the Applicant appears to be much older (school age);
(c)There is limited evidence that Mohammed Ibrahim Ghalzai has provided serious financial support to the mother prior to or immediately after the Applicant’s birth;
(d)Mohammed Ibrahim Ghalzai’s travel records indicate that he only spent a limited amount of time in Pakistan at the time of the Applicant’s birth; and
(e)There is no evidence that the Applicant is known, regarded or acknowledged as the child of Mohammed Ibrahim Ghalzai by the latter’s family members or social networks and connections.
[27] Ibid at [22].
Moreover the Respondent while being prepared to accept that this “parent” relationship is now possibly established, it was not on foot at the time of the Applicant’s birth and hence cannot be taken to meet the requirements of section 16(2)(a) of the Act.[28]
[28] Ibid at [23].
MOHAMMED IBRAHIM GHALZAI’S POSITION
Mr Ghalzai gave evidence under oath taken on the Holy Qu’ran. He was assisted in some of his evidence by an interpreter, although the interpreter, very properly, drew to the attention of the Tribunal that some of the translation required a rephrasing of the original questions and answers to clarify use of a particular dialect of the Farsi language.
The Tribunal accepts that Mr Ghalzai’s evidence was truthful and that he was genuine in telling the Tribunal of his commitment to being truthful given his reverence for the Qu’ran and his commitment as a Muslim.
In answer to the matters raised by the Minister:
(a)Mr Ghalzai admitted that he had not been present at the birth of Muhammed but provided clear evidence that, within a few days of the birth he had arranged a visa and travelled to Pakistan arriving on 17 August 2013 and remaining there for approximately two months. This was not challenged by the Respondent.
It should also be noted that in ABCD the Minister raised similar problems about the absence of the putative father at the birth of the applicant child but the Tribunal in that instance had no difficulty in accepting that there were valid reasons for this being the case.[29] The Tribunal in this instance takes exactly the same position.
[29] ABCD v Minister for Immigration and Border Protection [2014] AATA 18 at [24]-[25].
Mr Ghalzai was questioned at some length about matters surrounding the birth of Muhammed. It was established, to the Tribunal’s satisfaction that:
(i) The Islamic ritual of adhan (whereby the name of Allah and the Profession of Faith are whispered in the ear of a new-born) was undertaken by a male relative on behalf of the father,
(ii) Members of Mr Ghalzai’s family including his mother, brothers and cousins were present at the baby’s circumcision, and
(iii) The Islamic ritual of aqiqah (the sacrifice of an animal in gratitude to Allah) was undertaken by members of the family.
(b)Mr Ghalzai spent some time in Pakistan immediately after his marriage and established a proper husband/wife relationship with Nadia. She was accepted into his family and he into hers. He also informed his Australian family of his marriage. This information was supported by written statements provide by two of his daughters from his first marriage (Zarlasht Ghalzai and Freshta Ghalzai) both of whom have met his second wife and her child. In evidence he stated that he had regular (he claimed “daily”) contact with Nadia by telephone using some sort of “call-free” plan offered by Optus.
(c)Mr Ghalzai was able to provide copious evidence of his provision of financial support to Nadia during the period of 2016 to date, such transfers being made through RIA Financial Services Australia Pty Ltd.
However, for the purposes of this application it is necessary to show that financial support was being provided at the time of Muhammed’s birth, that is around 2012/2013.
In relation to this Mr Ghalzai explained that he had made arrangements to transfer money to Pakistan via an agency called “Sohail” in Merrylands, NSW. He explained that money was sent from there to an agent in Peshawar at which stage (after payment of commission) it was collected either by his brother (in 2012/2013) or his mother-in-law (2014/2015) and used to pay his wife’s rent, utilities and living expenses. He was invited by the Minister to provide documentary evidence to support these claims.
On 29 January 2019 the Applicant provided details of various transactions which he had obtained from AUSTRAC under a Freedom of Information (FOI) request. The material establishes clearly that the Applicant made numerous transfers of money from Australia to Pakistan between at least January 2012 and December 2013. (This being the period specified by the Applicant in his FOI request.) The Tribunal is well satisfied that this information meets, in full, the request or challenge which was put to the Applicant by the Minister.
(d)The Tribunal was provided with copies of Mr Ghalzai’s travel records copies of pages from three Australian passports. These show at least 16 separate visas issued for travel to Pakistan and there is clear evidence in the travel records of numerous trips taken by Mr Ghalzai in accordance with these visas. In the period immediately around the date of Muhammed’s birth, visas were issued in April 2012 and August 2012 and return travel documents from Australian sources indicate returns in April 2012 and October 2012. Travel and passport records indicate that Mr Ghalzai made regular trips to Pakistan in the period 2012-2014 and on most occasions remained in Pakistan for a period of around two months. This is confirmed by statements from his daughters
(e)Members of Mr Ghalzai’s family in Australia and his family in Pakistan have clear knowledge of his second wife and her child. The Australian family, according to Mr Ghalzai’s testimony, sent gifts to the child and his mother to mark his birth and celebrated with a family dinner in Auburn. Members of his family in Pakistan are in close contact with his wife and child and his mother (the child’s grandmother) spends considerable time with the child, often residing in their family home for weekends or longer. His wife and child live in a home together with his wife’s younger brother. He also stated that his mother and sisters in Peshawar provided support and assistance to his wife during her pregnancy and delivery.
Although there is a lack of documentary evidence to support some of Mr Ghalzai’s claims, there is also considerable support evidenced by the travel records and by some of the later financial records.
The Tribunal accepts the Minister’s concerns that most of the supporting material is either self-reported on behalf of Mr Ghalzai or else generated by him. It is at this point that the Tribunal needs to have regard to his credibility as a witness. The Respondent admitted that, during the oral hearing Mr Ghalzai had provided clarification on a number of matters which were either not known, or would not have been apparent, to the original decision-maker. As pointed out by Fisher J in Re Georges:
“I have had the opportunity of observing the applicant …. during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.”[30]
[30] Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63.
The Tribunal, as already noted, found Mr Ghalzai a person of credibility and it is prepared to accept the truth of what he said in sworn evidence much of which was tested by questions from the Respondent and the Tribunal which were answered in a clear and forthright fashion.
A STATUS ISSUE
An issue was raised in the Tribunal as to the current citizenship status of the child Muhammed. This is unclear as Mr Ghalzai says that his attempts to register the child for Pakistani citizenship were unsuccessful on the basis that he himself is not (and never was) a Pakistani citizen.
However the Pakistan Citizenship Act 1951 in section 4 appears to grant this citizenship on the basis of jus soli principles and in section 5 implies that the mother’s citizenship would allow conferral by descent. However the Tribunal does not have evidence before it as to whether Nadia is a Pakistani or Afghan citizen, although the Marriage Certificate[31] seems to imply the latter.
[31] Section 37 T Documents at [39].
Under the Law on Citizenship of the Islamic Emirate of Afghanistan 2000 it is unclear if the child would be eligible for Afghan citizenship. That Law prohibits dual citizenship (Article 7) but implies that having an Afghan parent might qualify, although it is unclear as to whether only one or both parents are required to be Afghan citizens (Article 9(2) and 10(3)).
It is thus a moot point as to whether, should Muhammed not be granted Australian citizenship, he would be deemed to be a citizen of Pakistan or would in fact have no recognised citizenship.
CONSIDERATIONS
In order for this application to succeed Mr Ghalzai needs to satisfy the Tribunal that, given he is not the biological father of the child in question he was, nevertheless in a genuine “parental” relationship with him “at the time of his birth.”
In order to do this, he has to show that he provided financial, emotional and physical support for the child; that he provided support and care for the mother during her pregnancy[32] and that the child was recognised or accepted as being his by members of his family or community.
[32] This includes making arrangements for support when not providing it personally or directly.
Although the DNA tests eventually produced an uncomfortable and unexpected result for Mr Ghalzai it remains the fact that he was prepared to undertake them and that he did so in the sincere belief that he was the child’s biological father. It is also clear that once it became apparent that his was not the case, he nevertheless continued to evidence his love, commitment and financial support for the child and his mother.
It is of course, unusual for the Tribunal to be dealing with a case where the wife is a second wife and where there are, at the moment, two separate families consisting of wife and children, one in Australia and one in Pakistan. As father to both, Mr Ghalzai naturally cannot be in two places at once and he can only effectively work in one place at a time to generate the income needed to support two families.
Lest any objection be raised on the basis that acceptance of the citizenship of the child would be giving recognition, within Australia, to a polygamous marriage, the Tribunal points out that this matter was commented upon by the High Court itself in the following terms[33]:
“(32) … statements made in cases like Hyde v Hyde, suggesting that a potentially polygamous marriage could never be recognised in English law, were later qualified both by judge-made law and statute to the point where in both England and Australia the law now recognises polygamous marriage for many purposes.
(33) Once it is accepted that ‘marriage’ can include polygamous marriages, it becomes evident that the juristic concept of ‘marriage’ cannot be confined to a union having the characteristics described in Hyde v Hyde[34] and other nineteenth century cases.”
[33] Commonwealth v Australian Capital Territory [2013] HCA 55.
[34] In Hyde v Hyde and Woodmansee [1866] LR 1 P & D, 130, Lord Penzance established the classic formulation of marriage in the following terms: “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
There are also clear provisions in the Family Law Act 1975 which provide:
“6 Polygamous marriages
For the purposes of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.”
The Tribunal is satisfied on the evidence before it and on the basis of Mr Ghalzai’s oral evidence that he satisfies the criteria which are set out in the relevant section of the Citizenship Policy to bring him into the ambit of s 16(2)(a) of the Act.
The Tribunal is particularly conscious of the warning which was given by an earlier Tribunal member in ABCD where the Member stated that the Tribunal must
“…. treat the assertion that [JM] is a “parent” of the Applicant with great caution and to rigorously scrutinise the evidence to ensure that this Application is not in fact an attempt to obtain citizenship by fraud.”[35]
[35] ABCD v Minister for Immigration and Border Protection [2014] AATA 18 at [34].
Very correctly, it has been pointed 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.”[36]
[36] Re Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
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 29 May 2018 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 Mohammed Ibrahim Ghalzai, was an Australian citizen at the time of the Applicant’s birth.
I certify that the preceding 57 (fifty - seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 31 January 2019
Date(s) of hearing: 15 January 2019 Date final submissions received: 29 January 2019 Representative for the Applicant: Mr Mohammad Ibrahim Ghalzai Solicitors for the Respondent: Ms Laura Crick, Clayton Utz
3
8
0