GXVX and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 829

GXVX and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 829 (27 October 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5656
Re	GXVX
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President F J Alpins
Date	27 October 2015
Place	Melbourne

The Tribunal:

1.    sets aside the decision under review;

2.    remits the matter to the respondent for reconsideration, for the determination of the applicant’s application to become an Australian citizen in accordance with the Tribunal’s reasons for its decision.

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

Deputy President F J Alpins

CITIZENSHIP – citizenship by descent – eligibility – whether a “parent” of the applicant was an Australian citizen at the time of her birth – claimed parent an Australian citizen but not biological parent of applicant – whether claimed parent in fact applicant’s parent – Australian Citizenship Act 2007 (Cth) s 16(2)(a)

Legislation

Australian Citizenship Act 2007 (Cth), ss 16, 17, 19, 19A

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

H v Minister for immigration and Citizenship and Another (2010) 188 FCR 393

Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40

Secondary Materials

Australian Citizenship Instructions Ch 19

REASONS FOR DECISION

Deputy President F J Alpins

27 October 2015

INTRODUCTION

1. This is an application for review of the decision of the respondent, the Minister for Immigration and Border Protection, to refuse to approve the applicant becoming an Australian citizen by descent pursuant to Subdivision A of Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (the “Act”).  The application for citizenship the subject of this proceeding was made on 10 October 2013 and refused on 2 October 2014.

2. The applicant was born in the Philippines in December 2004.  She is therefore 10 years of age.  Her mother, Ms C, is a citizen of the Philippines.

3. The applicant claims that she is eligible to become an Australian citizen under s 16(2)(a) of the Act, as Mr S, who is an Australian citizen by birth, was her “parent” for the purposes of that provision at the time of her birth.  It is not in dispute that Mr S is not the biological father of the applicant. 

4. Mr S completed the citizenship application form on behalf of the applicant, declaring that he is her responsible parent for the purposes of her application.  He also represented the applicant at the hearing of this proceeding.

   EVIDENCE

5. I consider it to be appropriate in view of the nature of the issue and evidence before the Tribunal to set out that evidence in some detail.

   The evidence of Mr S

6. Mr S gave oral evidence; he was cross-examined.  His evidence was to the following effect.  Mr S explained that in 2003 it became possible for him to spend time living in the Philippines, as a result of a lottery windfall.  Mr S manages tradespeople in the construction industry.  In 2003, he worked in that same industry and had returned to doing physical work a few years earlier, but was finding it difficult given long-standing back problems from which he suffered.  He therefore decided to take the opportunity to consider his future while spending time in the Philippines.  Mr S said that his plans were open-ended, in that the length of his stay in the Philippines would depend upon how long the money from his lottery win lasted.  He did not intend to remain there permanently.   

7. Mr S said that he first travelled to the Philippines in April 2003 and stayed for three months, although his original intention was to stay for two months.  He returned to Australia for seven weeks to work and attend to his taxation affairs.  In September 2003 he returned to the Philippines and rented an apartment in a tourist town, where he then met Ms C. 

8. For the sake of completeness, it is convenient to note at this point that computer records of Mr S’s departures from, and arrivals in, Australia before the Tribunal, ostensibly for the period 1 July 1990 to 10 October 2013 are of limited probative value.  That is so because those records appear from their form (as indicated by a “scroll bar”) to be incomplete, in that they only include his movements during the period 16 September 2003 to 29 December 2006; further, they do not indicate his destination in any meaningful way.  To the extent that those records do provide information, they do not contradict Mr S’s evidence concerning the frequency of his trips to the Philippines; nor did the respondent contend or suggest that Mr S’s evidence in that regard should not be accepted.  In any event, I accept Mr S’s evidence about the frequency of his trips to the Philippines over the relevant period.

9. The day after they met, Ms C told Mr S that she had a child – her son D was about four months old at that time.  Ms C told Mr S that her relationship with D’s father, Mr J, had ended recently.  Mr S said that he was somewhat apprehensive about that fact that Mr C’s last relationship had ended so recently.  Nevertheless, he commenced an intimate relationship with Ms C and, two or three weeks after they first met, Ms C moved into the apartment he was renting. 

10. Three days after Mr S met Ms C, he met Mr J, who “made it clear that he looks after his son”.  Mr S gave evidence that Mr J said in that regard that he was responsible for Ms C’s expenses relating to D.  Despite their relationship having ended, Mr J continued to visit Ms C almost daily (and sometimes twice a day), in order to see D, who was then living half the time with Ms C and half the time in another house with a nanny.  Mr S and Mr J soon became close friends and have remained so ever since, despite the fact that they live in different countries.

11. On 16 March 2004, Mr S temporarily returned to Australia for three weeks; he returned to the Philippines on 10 April 2004.  About two or three weeks after his return, Ms C told Mr S that she was pregnant.  Mr S gave evidence that he never doubted that he was the father of Ms C’s child at any time until several years later, in 2008, when a DNA test established that in fact he was not the applicant’s biological father.  I return to this aspect of his evidence later.  It suffices to say at this point that Mr S said that he was confident of his paternity at the time Ms C told him of her pregnancy, despite circumstances which might suggest otherwise to which I refer shortly and also later in these reasons, because Ms C had been in his company at all relevant times “24 hours a day”, save for a two-hour period each evening when he would have dinner with friends.  He also explained that Ms C’s friends had told him by telephone during his return to Australia in March 2004 that Ms C, who remained in their apartment during that period, was spending all her time “crying in her room”, apparently distraught by his absence.

12. Under cross-examination, Mr S said that he did not entertain any doubt that he was the father of Ms C’s child until he was informed of the results of the DNA test despite the fact that she was the mother of an infant when they met and had been “in trouble”.  In answer to a question posed by the Tribunal, Mr S said that neither the fact that Ms C had recently been in a relationship with Mr J nor the fact that he understood her to have taken illegal drugs, particularly crystal methamphetamine, had raised any such doubt in his mind.  Mr S gave evidence that Ms C has a criminal record related to her drug use and was in jail for ten weeks in 2008.  He referred in that regard to an affidavit before the Tribunal made by Ms C in 2008 by which she undertook to abstain from various activities for the applicant’s protection, including drug use; Mr S said that Ms C was required to make that affidavit as a condition of her release from jail. 

13. Mr S also explained that one of the reasons for his lack of doubt concerning his paternity was that he had been concerned that he had had “unprotected” sexual intercourse with Ms C prior to his return to Australia in March 2004.  Mr S said further that “only one person” had expressed doubts about the applicant’s paternity to him, which had occurred after her birth and said that “I almost punched him”.  Mr S also adverted to the results from a “pregnancy calculator”, by which the applicant’s conception date was calculated as being 10 March 2004, which was shortly prior to his relevant departure from the Philippines.  However, it is unclear when that calculator was used and therefore the date at which it could bear upon Mr S’s holding of his belief as to his paternity.  

14. Mr S gave evidence that, despite Ms C’s announcement of her pregnancy, “life went on as normal” as, although he knew he was to become a father, it “hadn’t really hit home what it meant”.  He said that he did take on more responsibility for looking after D at that point.  Under cross-examination, Mr S said that he had “mixed emotions” at that point about the “burden of fatherhood” because he was in a foreign country in a relationship with a woman he had not known for long and had previously “avoided responsibility in my life”.

15. However, according to Mr S, his perspective changed considerably in August 2004, when he and Ms C visited a nearby city, where she attended a women’s clinic for a prenatal check-up.  By that stage, Ms C had been pregnant for about five months.  Mr S stated that the moment when he saw Ms C’s pregnancy ultrasound scan was a pivotal one in his life – for him, it then “hit home that I was going to be a father” and from that moment on, “everything I’ve done has always revolved around [the applicant]”.  He explained that, while in the past he had only worked when he needed to, moving from job to job and from city to city, and travelling in between, he now realised that he now had responsibilities, to provide for what he described as “his new family”.

16. However, Mr S qualified that evidence by explaining that Ms C’s pregnancy did not alter his intentions with respect to his relationship with her.  His real focus was on the expected baby.  He explained that he was “not convinced” that their relationship would be a long-term one; it is relevant to the issue before the Tribunal, particularly in the context of the evidence bearing on the question of whether Mr S believed that he was the applicant’s biological father at the time of her birth, to note that Mr S said that “without trying to sound bad, there are girls you marry and girls you enjoy life with, she wasn’t a marrying type of girl”.  Mr S said that he had not “discounted” the idea of a long-term relationship with Ms C but that he “was not ready to bring her out to Australia”.  Furthermore, he said that there was “no prospect” of Ms C coming to Australia and that she had no interest in doing so, given that she had a child with Mr J, who still lives in the Philippines.  He explained that Mr J would never have permitted D leave the Philippines.  However, Mr S said that Ms C’s pregnancy did affect his relationship with her, in the sense he does not believe that he would have remained in a relationship with Ms C for as long as he did if it were not for the fact that she became pregnant.  

17. Under cross-examination, Mr S said that during the period of Ms C’s pregnancy when he was with her, he was concerned about her wellbeing and health, particularly about “the people she was seeing” and ensuring that she limited her alcohol intake to one drink per day.  He said that he “had to be quite strict” with her “to make sure she did behave” but that “in general there were no issues”. 

18. Mr S gave evidence that, given his new-found sense of responsibility, he realised that he needed to find work, as his funds remaining from his windfall were now low.  He proceeded to call people he knew in Australia for that purpose, including Mr Y and Mr B.  He said that Mr Y told him that he could give him work on a new project and Mr S decided to accept the job, as he “thought it was the right thing to do” in the circumstances. 

19. In September 2004, Mr S returned to Australia. As the doctor at the clinic where the ultrasound was performed had told Mr S that Ms C was five months pregnant, he returned to Australia understanding that Ms C’s baby was due in December, although he did not know the due date.

20. Under cross-examination, Mr S said that he intended to return to Australia in any event, as it was necessary to renew his visa after six months.  He said that at that stage he had not made any decision about whether he would return to the Philippines, as that would depend on his available funds; they had depleted faster than he expected given that he was also paying Ms C’s expenses.  He said that the fact that he “had to get back to work” was nevertheless the overriding reason why he had returned to Australia.

21. Mr S gave evidence that he supported Ms C financially, both before and after her pregnancy.  Prior to returning to Australia, he told Ms C that he would support her and their child, in that he would send her a budgeted amount of money regularly and she would have to live within that budget.  He continued to pay rent for Ms C’s accommodation and her general and additional expenses, as Mr J merely paid D’s expenses.  Mr S did not discuss this arrangement with Mr J, nor did he factor in Mr J’ contributions, as Mr J merely paid D’s expenses as they arose.  Initially Mr S found it difficult to send money to Ms C, so he instead wired it to another person’s bank account and Ms C would collect the money as cash from that person.  I note that a document setting out Western Union transfers of funds made by Mr S sets out regular transfers made by him to Ms C and Mr J, but only during the period 5 January 2009 to 6 November 2013.  I note that copies of other recent funds transfers were lodged after the hearing with the applicant’s written submissions and therefore were not in evidence, but in any event they would not have had any material effect on the Tribunal’s decision.

22. Mr S gave evidence that he also paid Ms C’s expenses that were specifically related to her pregnancy.  In particular, after he returned to Australia in September 2004, he was informed that Ms C’s midwife considered that Ms C should have her baby in a hospital, as she was unusually “large”.  Mr S said that he then sent money for that purpose, as he wanted her to have the baby in hospital, although in fact Ms C had her baby at home with the assistance of her midwife. 

23. Mr S maintained a long-distance relationship with Ms C upon his return to Australia – they “kept in touch” by telephone.  As Ms C moved house and sometimes did not have a phone, Mr S sometimes contacted Mr J instead, to receive information about the progression of Ms C’s pregnancy.  Mr S was in contact with either Ms C or Mr J “every couple of days”.

24. Mr S said that Mr J “kept an eye on things for me” and gave him frank accounts of Ms C’s activities, as Ms C “has led a troubled life” and Mr S was therefore concerned about people who might be visiting her residence and also about whether the money he sent to her was being used for its stated purpose.  Mr S said that he came to understand that, although Ms C had asked for money in order to have her baby in hospital, she was in fact “extracting” that money for other purposes.   

25. Under cross-examination, Mr S said that he told his parents about his relationship with Ms C on the day he arrived back in Australia in September 2004.  He said that he told them in person as he did not want to tell them his news by telephone.  He said that he “walked in” and told them “I’m going to be a father”.  I return to this exchange when I recount the evidence of Mr S’s father.

26. Under cross-examination, Mr S said that “all my close family and friends would have found out straight away” about Ms C’s pregnancy as he was “proud” of it and “would have told anyone who mattered’ immediately, although he cannot recall individual conversations, apart from that with his parents to which I have just referred.

27. Mr S explained that he was not present for the applicant’s birth for the following reasons.  Although he had thoughts of returning to the Philippines that Christmas, he was uncertain of the applicant’s expected birth date, which made it difficult to plan any trip, given that he was now working.  He was also mindful of the travel expenses involved.  He understood that there was a network of Filipino women available to assist women who were giving birth and that that network would be available to Ms C.  Furthermore, his father had a heart attack followed by open heart surgery, and as Mr S recalls he was in hospital at the time of the applicant’s birth. 

28. As the applicant’s birth approached, Mr S said that he asked each day by telephone whether Ms C had given birth yet.  He then received a telephone call from Mr J, who told him that Ms C had given birth.  As I have said, the applicant was born in December 2004.  Mr S said that he immediately telephoned his parents, brothers, housemate, friends and friends’ wives to announce the applicant’s birth.  Under cross-examination, Mr S said that he told his parents of the applicant’s birth “within five minutes” of receiving the news.  He explained that it “was a big deal to people because most people thought they would never see the day” that he was a father.  Under cross-examination, Mr S said that “everyone was waiting for the news”.

29. Mr S received photos of the applicant by email from Mr J about seven or eight weeks later.  Mr S forwarded the photos to his family and friends.  Mr S gave evidence that a copy of a chain of emails before the Tribunal, with the subject heading “some pics dad” and an original message stating “[t]rying again to send you some pics of your little one” was Mr J’s covering email message for the photos, copies of which were also before the Tribunal.

30. Under cross-examination, Mr S said that the applicant came to be given her first name because he suggested that name to Ms C as one of three or four alternatives in the weeks leading up to the applicant’s birth.  He said that Ms C liked that name and chose it two days after the applicant’s birth, even though it is not a Filipino name.  Mr S said that the applicant shares his surname because it is customary in the Philippines for an infant to take their father’s surname and for their mother’s surname to be their middle name.  Mr S said that the applicant “has always been known” by her current name; for reasons I explain below, the applicant’s birth certificate was not obtained until about a year after her birth.  Mr S relied upon a handwritten copy of the applicant’s vaccination records in order to demonstrate that the applicant was known by her current name prior to her first birthday; however, that document was dated July 2015; Mr S said that the medical clinic had not been willing to provide a copy of the original records.

31. Mr S did not return to the Philippines until March 2005; he stayed for about four weeks.  He said that he felt anxious upon his return to the Philippines as he would be meeting the child he understood to be his biological daughter for the first time.   He described the experience as being as if he had “been away working and just come home”.  His relationship with Ms C continued during that visit.  In evidence before the Tribunal was a copy of an email sent by Mr S in early April 2005 in which he recounted having returned to the Philippines “to see how the little girl was doing” and that he “[h]adn’t seen her till now so naturally [Ms C] wanted me playing daddy all the time”.  

32. Mr S continued to support Ms C and now supported the applicant financially, but because of his work commitments was not able to return to the Philippines to visit until December 2005.  In the interim, Mr S again maintained a long-distance relationship with Ms C, although it was “a little bit more lax” as they “were away from each other”, but he intended that their relationship continued, “especially when he was in the Philippines”.

1. Mr S gave evidence that Ms C arranged for the applicant’s baptism to take place during his return visit to the Philippines in December 2005.  Mr S said that it was in that context that he and Ms C first discussed obtaining a birth certificate for the applicant, as it was required for that purpose – he said that Ms C “would have brought it up”.  Mr S understands that in the Philippines there is no automatic registration of births which do not occur in hospital – in such circumstances the birth must be registered locally in order to obtain a birth certificate “at national level”.  Mr S said that upon his return to the Philippines, he immediately “signed paperwork” so that the applicant could obtain a birth certificate.  Under cross-examination, Mr S explained the delay in obtaining a birth certificate for the applicant by saying that the issue was not raised until the applicant was three months old and that his first opportunity to attend to the matter did not arise until the applicant was twelve months old, at which time her birth certificate was obtained. 

2. In evidence before the Tribunal was a copy of the applicant’s birth certificate, which was prepared in mid-December 2005.  The applicant’s birth certificate notes her current name, including Mr S’s surname as her surname, and states that Mr S is her father and Ms C is her mother.  As it was noted in the applicant’s birth certificate that her parents were not married, an “affidavit of acknowledgment/admission of paternity” was required.

3. Also before the Tribunal were two affidavits sworn by Mr S on the same day in December 2005, being such an affidavit by which Mr S acknowledged his paternity and also an affidavit for the delayed registration of the applicant’s birth.  In the latter document, Mr S ascribed the reason for the delay to negligence.  In that document, Mr S failed to specify his relationship to the applicant, although it appears that it may have been attached to the other affidavit, in which he was named as a parent of the applicant, with Ms C.  Under cross-examination, Mr S said that he could not say why he did not fill in that information and that he probably did not read the form clearly.  However, he said in effect that he understood the document to be a legally binding declaration of paternity when he signed it.

4. Also before the Tribunal was a copy of the applicant’s baptismal certificate, which states that the applicant is the child of Mr S and Ms C and that she was baptised on a specified date in December 2005.  However, the baptismal certificate was issued in late December 2007, almost two years after the applicant’s baptism.  Mr S said that he believes that he applied for the applicant’s baptismal birth certificate at the time, and in support of, the applicant’s previous application for citizenship by descent, which was made in or about 2007.

5. Mr S’s relationship with Ms C ended when he visited the Philippines April 2006 for Easter (and therefore about 16 months after the applicant’s birth), in the following circumstances.  Prior to his visit, Ms C said that she would be returning to her province at the time when he planned to visit and that she would be taking the applicant with her.  Mr S said that that would defeat the purpose of his visit, which was to see the applicant.  In evidence before the Tribunal was a copy of an email message sent by Mr S to Mr J in March 2006 in which raised his concern about Ms C’s plans and her failure to explain them and says “[b]oyfriend maybe, i dont really care but i’m coming back to see [the applicant] and its a waste of a trip if she’s not going to be there [sic]”.  Mr S gave evidence that at that time he expected that the relationship between him and Ms C was coming to an end, as she “had been out and about” and “had been getting herself into a bit more trouble”.

6. More specifically, Mr S said that, although he had believed that Ms C was in their rented apartment taking care of the applicant, she had not paid the rent or other bills from money had had sent to her.  He had been contacted by a hotel in respect of a sizeable bill it claimed that Ms C was responsible for incurring.

7. Furthermore, in between his visits at Christmas 2005 and Easter 2006, Mr S said that he discovered that Ms C was pregnant again, to another man.  Accordingly, their intimate relationship ended when he visited at Easter.  Mr S gave evidence that he knew that that child could not be his biological child.  Ms C’s third child died at birth.

8. Under cross-examination Mr S said that he did not apply for citizenship on behalf of the applicant until 2007 despite having obtained a birth certificate for her in 2005 because he had not planned to have the applicant visit Australia when she was very young and also because he was not aware that the applicant might eligible for Australian citizenship.  He believes that he first became aware that the applicant might obtain citizenship by descent and considered that possibility when he became aware that Mr J was making such an application (for Belgian citizenship) on D’s behalf.

9. Mr S was asked in cross-examination how, prior to her first application for citizenship in 2007, he expected to maintain his relationship with the applicant.   Mr S responded that he intended to do so by spending as much time “there” in the Philippines as possible.  He explained that he has six weeks’ annual leave from work, including an extra two weeks which he usually takes without pay, which he spends visiting the applicant in the Philippines.  He said that he “stays in contact” as much as he can and these are “circumstances I have to deal with” as “she can’t live here and I can’t live there”.  He said further that before the application for citizenship was made in 2007, he had constant concerns about Ms C’s fulfilment of her role as the applicant’s mother, which were “nothing alarming, but she could do better than what she was doing”.

10. As I have indicated, a DNA test undertaken in 2008, following the applicant’s first application for citizenship, established that Ms S is not the applicant’s biological father.  Mr S recalled that the DNA test was undertaken at the suggestion of departmental officers.  I observe in passing that that evidence accords with the policy set out in the Australian Citizenship Instructions referred to later in these reasons with respect to DNA testing in circumstances where an applicant for citizenship by descent claims to be the biological child of an Australian citizen.

11. As I have said, Mr S gave evidence that he only became aware that the applicant was not his biological child when he received the results of the DNA test.  In that regard, Mr S said further that “you don’t get a DNA test for $1000 and get a child to give blood if you don’t think she is your daughter”.  Furthermore, Mr S gave evidence that he underwent a vasectomy prior to the DNA test because he believed that he was the applicant’s biological father. Mr S does not have any biological children.  He said that he is nevertheless “still her father” despite the results of the DNA test, so that “nothing has changed in the last eleven years”. 

12. Mr S gave evidence that his financial support has continued on the same basis as described above to this day and that his arrangement with Mr J remains the same in that regard, despite his relationship with Ms C having ended some time ago.  Since the beginning of his relationship with Ms C, he has paid her rent and her expenses, save for those relating to D, which as I have said are paid by Mr J.  He has been wholly responsible for the applicant’s financial support since her birth.  It remains the case that Mr J does not contribute to Ms C’s rent, even though D lived with her until recently.  Mr S explained that Mr J earns his income in Filipino currency and therefore earns much less than him and that Mr J also receives financial support from his parents.  Mr S said that he sends money to Ms C in instalments to avoid it being all spent by her at once.   

13. Mr S understands that Ms C has had other intimate relationships since theirs ended.  He said that he has a “rule” that “if she has a boyfriend, they need to have a job” as he does not want to provide financial support to any of them.  However, he understands that none of Ms C’s subsequent partners have had jobs.  He also understands that none of them have lived with her.

14. Furthermore, Mr S said that he has continued to travel to the Philippines in order to visit the applicant every six months, albeit for short visits, and has therefore returned to visit 21 times.  He said that for his arrivals and departures, Ms C and the applicant “are standing there” at the jetty of the town where they live, waiting for him.  He said that he visits twice yearly, including in December, for the applicant’s birthday and for Christmas.

15. Mr S said that when he visits, the applicant spends every day with him, but only every alternate night, as he “is on holiday”.  He does not stay with Ms C when he visits. 

16. Mr S explained why the applicant has not yet visited Australia, as follows.  Neither the applicant nor D has a Filipino passport (although D holds a Belgian passport, as Mr J applied for Belgian citizenship on his behalf).  In order for the applicant to obtain a Filipino passport, Ms C would need to visit Manila with both children for a few days; to date, Ms C has not done so.  He believes that either he or Mr J will need to take Ms C and the two children to Manila in order to ensure that a Filipino passport is obtained for the applicant. 

17. Mr S said that, in any event he understood that a further impediment to the applicant visiting Australia lay in the fact that Ms C was unlikely to be able to obtain a visa to visit Australia because she has a criminal record and, if he were to travel to Australia with the applicant travelling on a Filipino passport without her mother, the situation would be “heavily scrutinised”.  Mr S said that now that the applicant is older, the idea of her visiting Australia was becoming more feasible, although the interest she has expressed in doing so has varied.  He explained later in his evidence in that regard that the issue of bringing the applicant to Australia even for a holiday had not really arisen until the applicant was about seven years old and that even the applicant was reluctant to visit.  He said that as a single father he would find it “a challenge to look after her” now, when she is ten years old; it would have been too much of a burden for him and his parents when she was five years old. 

18. Under cross-examination, Mr S said that he has not in fact considered seeking permission for Ms C to travel to Australia because she is “still tied” to D, who for the last 12 months has lived with Mr J at his insistence following an incident involving Ms C; furthermore, as I have said, Mr S does not believe that Ms C has any interest in visiting Australia. 

19. Mr S said that his parents have travelled to the Philippines to meet the applicant once, in May 2012.  He explained that the applicant’s town is difficult to reach, particularly if one is elderly, given the lack of transport and roads.

20. Mr S said that he “tries” to talk to the applicant each day and that he talks to Ms C two to three times per week.

21. Under cross-examination, Mr S said that, in addition to his parents, five of his nieces and nephews maintain contact with the applicant – they speak over the Internet using the software application “Skype”, particularly during family events, although the applicant has not had Internet access for the last couple of years.  Family and friends also share messages with the applicant on the online social networking service “Facebook”.  The wife of one of Mr S’s friends, who previously lived in Australia but now lives in France, maintains a relationship of a sororal nature with the applicant.

22. Mr S said that the applicant has always been and remains unaware that he is not her biological father and that she calls him “Daddy”.  He said further that about one month ago the applicant asked about her conception and that Ms C “told her a story” about when she was conceived.  He said that D calls him “Uncle [Mr S’s first name]” while the applicant calls Mr J “Uncy [Mr J’s first name]”.

23. Mr S concluded his evidence by showing a selection of photographs and video recordings of the applicant and of his interactions with her and also, in some cases, with Ms C.  They included videos of the applicant at the age of 12 months and 16 months.  The former videos were filmed in December 2005, particularly at her baptism (attended by Mr J and her godfather, Mr G) and also on another occasion when the applicant was in the company of Mr S and Ms C; in that latter video, Ms C refers to him when speaking to the applicant as “Daddy”.  Mr S also showed videos and photos taken at various subsequent stages in the applicant’s childhood. 

    Evidence of Ms C

24. A sworn statement made by Ms C was in evidence before the Tribunal.  In that statement, Ms C said, amongst other things, that she “always thought that [Mr S] was the father of [the applicant]”.  She said further that Ms S had supported the applicant from birth and “has always been a very good father” to her. Furthermore, she said that Ms S and the applicant speak daily when he is in Australia; when he visits the Philippines, they “spend as much time together as they can”.  She acknowledged that “[I] know that [I] have to help my daughter to get her Filipino passport so she can meet her cousins and all her father [sic] family” in Australia.  I note that as Ms C recalled, she first met Mr S in August 2003; although Mr S recalled that they had met in September 2003, I do not consider that that discrepancy materially affects the conclusions I have reached.

25. Ms C also gave oral evidence, by telephone from the Philippines.  She confirmed the financial arrangement described by Mr S – particularly that he had paid her rent and other expenses for the last 12 years, save for D’s expenses, which have been paid by Mr J.  She confirmed that she had asked Mr S to send her money so that she could give birth to the applicant in hospital, which he had done, but that she had in fact given birth at home and that she had had a midwife.  She said that the applicant’s first name “came from” Mr S, in that he had asked her and she had said “up to you”.  In answer to a question posed by Mr S, she said that the applicant’s surname is “S” because “you are the father”.  Ms C also said that Mr S had paid for her surgery following her motorbike accident in 2009 or 2010.

26. Under cross-examination, Ms C confirmed that she had started to live with Mr S a few weeks after they met; in answer to a question posed by the Tribunal, she agreed that he was her “boyfriend”, and said that was the case until about June 2006.  Again, although Mr S recalled their relationship to have ended in April 2006, I do not consider that discrepancy to be material.  Under cross-examination, Ms C said that while she was pregnant, she kept in contact with Mr S by email.  She said that Mr S sent her money from the time of the applicant’s birth by Western Union transfers, which were sent at first to Mr J.

27. Ms C confirmed that Mr S visits the applicant in the Philippines for three-week periods and that the applicant stays with Mr S at his hotel for a proportion of his visit.  Although Ms C had some difficulty explaining the basis of the arrangements, in substance she said that the applicant spends half of Mr S’s visit with him.  Ms C said that the applicant “wants to be with him all the time” but that she explains to the applicant that “he needs to be alone”.     

    Evidence of Mr S’s father

28. Mr S’s father also gave oral evidence and was cross-examined.  He gave more detail about the circumstances in which his son had told him and his wife about his relationship with Ms C.  As he recalled, it happened in August 2004; he could not recall whether his son had just returned from the Philippines at the time.  I prefer Mr S’s evidence that he told his parents in September 2004, as it accords with the record of his arrival in Australia and his other evidence.  Again, in my view nothing turns on that discrepancy.  Mr S’s father said that he and his wife were standing in their kitchen and described his son as having “a stupid look on his face” when he announced that his parents were “about to become grandparents again, number nine is on the way”, adverting to the fact that at that stage Mr S senior and his wife had eight grandchildren.  Mr S senior said that they were surprised as they had not been aware that their son was in a relationship and he “didn’t look like producing any grandchildren”.

29. Mr S senior said that his son said that Ms C was “just someone I’ve been seeing when I go over there”, from which he assumed, based on his understanding that “only bar girls are available in that area”, that, to use his vernacular, she was a “lady of the night”.  However, Mr S senior said that he did not ask his son about Ms C.

30. Mr S senior said that when he and his wife heard that they would soon have another grandchild, they knew, to use his vernacular, that the child would be born “on the wrong side of the blanket”.  Noting their Catholic upbringing, he said that that made no difference” as “she was our granddaughter”.  He said that they boasted to their family and friends that they would now have nine grandchildren.

31. Under cross-examination, when Mr S senior was asked whether his son ever expressed any doubt about whether Ms C’s expected child was his own, he replied “none whatsoever”.   He said further that his son told them, albeit “indelicately” that “I know when it happened - it was the last night before I left”. 

32. In answer to a question posed by the Tribunal, Mr S senior admitted that, given his assumption about Ms C’s occupation, he had doubts about the child’s paternity soon after his son told him his news, as did his other sons.  However, neither he, nor his wife, expressed those doubts to Mr S.  He said that he would not be surprised if his son’s brothers did so and that they then suggested a DNA test; however, he did not know whether they had done so.

33. Mr S senior said that he learned of Ms C’s criminal history and drug use at some stage, although he could not recall when.  In answer to a question posed in cross-examination about whether his son expressed concern about Mr C’s ability to care for the child, Mr S said that he understood that for the first two years “everything was rosy” as “he was a dad” but then “the demands started coming in”, which in context of his evidence appears to have been a reference to demands for money.  He confirmed that his son gave financial support to Ms C in relation to her medical expenses relating to her pregnancy and that he had supported the applicant since birth.

34. Mr S senior said that he was informed of the results of the DNA test “almost immediately”.

35. He said that he has been speaking to the applicant on the telephone since she had been able to converse.  When he discovered that the applicant would not be visiting Australia, he decided to travel to Manila, as he was concerned that he might not otherwise see her.  He noted that he was 73 years old at the time and also that “it took a while to get up the guts to go there”.  He also said that there is “no way I will go over there again”, given the serious medical condition from which he suffers.

36. Mr S senior said that several years ago he and his wife made specific provision for the applicant in their wills as a consequence of the results of the DNA test; while all their grandchildren are provided for “as a group”, the applicant is named specifically, given the “ambiguity” arising from the fact that their son is not the applicant’s biological father.

37. I note that the evidence before the Tribunal included a joint statement made by Ms S senior and his wife.  No objection to the admissibility of that statement was made by the respondent, despite the fact that it was purportedly made by more than one person and also contained statements amounting to submissions.  In any event, the content of that statement was largely replicated by Mr S’s oral evidence, save for a reference made to the “DNA [t]est and the distress it caused when coming back negative” and to Ms C having “hampered” the obtaining of a Filipino passport for the applicant.  As my reasoning does not turn on that aspect of the evidence, particularly given similar statements made by other witnesses, it has sufficed for me to have regard to Mr S senior’s oral evidence.

    Evidence of Mr J

1. In evidence before the Tribunal was a statutory declaration made by Mr J on 20 June 2014.  In that document, Mr J confirmed that he first met Mr S at the time Mr S commenced his relationship with Ms C, although he recalled it as being in October 2003; to the extent that that recollection might differ from that of Mr S, I do not consider it to be material.  He also confirmed his prior relationship with Ms C, which had resulted in the birth of D.

2. Furthermore, he confirmed that Mr S had, since the commencement of his relationship with Ms C, been wholly responsible for her financial support, paying her rent and all other expenses, including in respect of the expenses related to her pregnancy.  Furthermore, he said that Mr S was responsible for the applicant’s financial support since her birth and also continued to support Ms C (paying expenses including school fees and medical expenses), and that he regularly sent money to him for that purpose. 

3. Lastly he said that “I can confirm that [Mr S] has always been known as [the applicant’s] father from before her birth until today by myself and everyone in our social circle” in the Philippines.

4. Mr J also gave oral evidence by telephone from the Philippines; he was cross-examined. Mr J said that he had delayed obtaining a birth certificate for his son D until just before his first birthday, when he obtained one for the purposes of D’s application for Belgian citizenship.  He, like Mr S, understands that it is common for Filipinos to either have no birth certificate or to delay obtaining one.

5. Mr J confirmed in his oral evidence the financial arrangements as between him and Mr S with respect to the living expenses of Ms C and her children which I have described above; in particular, he confirmed that Mr S covers all expenses save for those relating specifically to D.  He confirmed that Mr S had commenced his relationship with Ms C in late 2003 and said that in 2004 he saw him “pretty much every day”.  He could not recall when Mr S told him that Ms C was pregnant but said that he remembered Mr S telling him that he was the father and never expressing any doubt about that.

6. He reiterated in his oral evidence that their mutual friends know Mr S as the applicant’s father, both people in the Philippines and people now living elsewhere.  He said that as far as he knows Ms C has had no steady partner since Mr S, although he conceded that she might have one without him being aware of it.  In his oral evidence, he reiterated that Ms C has been entirely reliant on Mr S’s financial support since it commenced.

7. On re-examination, Mr J said that he recalled that Mr S was “not happy” when he found out the results of the DNA test but added that “by the same token she is basically [his] daughter for all practical purposes and there is no reason to change that now”.

   Other evidence

8. Also before the Tribunal were a number of other statutory declarations.  In their respective statutory declarations, Mr S’s two brothers both recalled his anticipation of the applicant’s birth and the practical, financial and emotional adjustments he has made to his life since her birth as a consequence of his commitment to her.  One confirmed that Mr S had returned to Australia prior to the applicant’ birth in order to be in a position to support her financially, while the other noted that Mr S arranged extended annual leave in order to maximise his time available to visit the applicant.I note that one brother recalled their father being hospitalised “for” Christmas Day “but the impending addition to our family was being greeted with a lot of anticipation”, which on one reading would tend to suggest that the applicant was born later than she in fact was; but having regard to the evidence considered in its’ totality, I do not consider that (possible) discrepancy to be material.      

9. One statutory declaration was made by the applicant’s godfather, Mr G, to whom I have referred earlier in these reasons.  He stated that he first met Mr S in the Philippines in September 2003 and knew him and Ms C socially.  He recalled conversations with Mr S preceding the applicant’s birth; as he recalled, Mr S chose the applicant’s first name.  He also recalled discussing Mr S’s decision to undergo a vasectomy, on the basis that one biological child would be enough at his age.  Mr G recalled that Mr S was shocked when he discovered that he was not the applicant’s biological father, but that he said that “she is my daughter and I’m her father”; Mr G said that that news did not affect Mr S’s relationship to the applicant.  More to the point, he said that the applicant “is and has always been ... his main focus both financially and emotionally ever since her conception”.

10. Also before the Tribunal was a statutory declaration made by a former police officer who from 2004 lived in the same town in the Philippines where Mr S met Ms C.  He understood that Mr S was “the sole provider for the family” and said that he has always been known to him and to the local community as the applicant’s father, both before and after her birth.

11. The man who offered Mr S employment when he returned to Australia prior to the applicant’s birth also made a statutory declaration, in which he said that “I became aware of his impending fatherhood” when Mr S returned to Australia and that Mr S gave daily updates about the impending birth of the applicant.  The other man from whom Mr S sought employment prior to his return to Australia confirmed Mr S’s anticipation of the applicant’s birth and his imminent fatherhood and said further that such matters were “well known and accepted in his family and social circles”.

12. Lastly, I note that there was a document before the Tribunal dated 20 June 2014 and executed in the Philippines by which Mr S, describing himself as the applicant’s father stated that, in the event that Ms C “becomes incapacitated or unable to take care of [the applicant]”, he waives his rights in favour of Mr J (who is described in that document as her godfather) “to act as [the applicant’s] guardian as to her person and property”. 

    LEGISLATION

13. Division 2 of Part 2 of the Act provides for the acquisition of Australian citizenship by application; as I have indicated, Subdivision A of Division 2 (ss 16-19A) concerns applications and eligibility for citizenship by descent.

14. Section 16(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.  Section 16(2) relevantly provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if “a parent of the person was an Australian citizen at the time of the birth” (s 16(2)(a)). 

15. If a person makes an application under s 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen (s 17(1) of the Act).  The following provisions contain two mandatory and obverse requirements.  Section 17(2) relevantly provides that, subject to s 17, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under s 16(2).  However, the preceding provision, s 17(1A), relevantly provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 16(2).  The terms of that provision serve to make it clear that the Minister does not possess any residual discretion to approve a person who has made an application under s 16 becoming an Australian citizen in circumstances where they are not eligible, relevantly, under s 16(2). 

16. Section 19 of the Act provides that a person becomes an Australian citizen under Subdivision A on the day on which the Minister approves the person becoming an Australian citizen.  However, s 19A relevantly provides that, despite s 19, a person does not become an Australian citizen under Subdivision A, even if the Minister approves the person becoming an Australian citizen, unless, if the person was born on or after 26 January 1949, a parent of the person was an Australian citizen at the time of the person’s birth (s 19A(a)).  

    GENERAL PRINCIPLES

17. As I have said, it was not in dispute that Mr S is not the applicant’s biological parent.  However, that does not of itself preclude her eligibility for citizenship by descent pursuant to s 16(2)(a) of the Act.

18. In H v Minister for immigration and Citizenship and Another (2010) 188 FCR 393 at [127]-[129], the Full Federal Court concluded that:

    “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. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

    The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognises, not all parents become parents in the same way ... This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.

    Being a parent within the ordinary meaning of the word may depend up various factors, including social, legal and biological. ..... 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.”

19. The Full Federal Court then turned to address other aspects of the statutory question arising from the terms of s 16(2)(a), including the significance of the temporal requirement in para (a), and how its satisfaction ought properly to be determined (at [130]):

    “The ordinary meaning of the word ‘parent’ is, however, clearly a question of fact, as is the question of whether a 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 properly be 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.” (Emphasis added.)

20. The Full Federal Court’s construction of the term “parent” in s 16(2)(a) of the Act in H was endorsed by a differently constituted Full Court in Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40 (at [29]). It is apparent from the reasoning in that case that the requisite focus for the purpose of s 16(2)(a) must be on the relationship between the applicant for citizenship and the claimed parent; the relationship between the latter and the applicant’s other parent is not of itself determinative in that regard (see at [29]).

    Australian Citizenship Instructions

21. As is stated in its introductory passage, the Australian Citizenship Instructions “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act”.  It is appropriate for the Tribunal to have regard to the policy expressed in that document in reviewing the respondent’s decision; however, the Tribunal is not bound by it, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In any event, in my view the relevant parts of the Australian Citizenship Instructions provide assistance in the determination of the factual question posed by s 16(2)(a) of the Act.

22. Chapter 19 concerns the determination of whether a parent-child relationship exists and relevantly provides:

    “19.4 Applicants who do not claim a biological link or who have insufficient evidence of a claimed biological link

    19.4.1  Background

    These cases may occur for a variety of reasons, such as:

    .....

    ·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).

    19.4.2  Factors to be taken into account

    .... [F]or citizenship by descent (s 16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time or 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 ... 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

    ...

    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 mentioned above.

    Under policy, in the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent.”

23. As the respondent acknowledged in his written submissions lodged after the hearing in accordance with the Tribunal’s directions, while his decision was, necessarily, made on the material before him, the Tribunal had before it a considerable amount of additional material, including the witnesses’ oral evidence.  It is well-settled that “the question for the determination of the Tribunal is whether [the] decision [under review] was the correct or preferable one on the material before the Tribunal” (Drake at 68 per Bowen CJ and Deane J).

    SUBMISSIONS

24. It is appropriate, given the conclusion I have ultimately reached, to focus upon the respondent’s submissions, as set out in his Statement of Facts and Contentions and, more comprehensively, in his written submissions.  I note that the respondent accepted that the fact that Mr S is not the applicant’s biological parent does not preclude the satisfaction of s 16(2)(a) of the Act.

25. Given the temporal focus in s 16(2)(a), as construed by the Full Federal Court in H, the respondent conveniently and logically addressed the evidence before the Tribunal in three categories, being evidence pre-dating the applicant’s birth, evidence immediately post-dating the applicant’s birth and evidence since the applicant’s birth, which the respondent contended, despite accepting that it can be taken into account, should be given lesser weight than the evidence concerning the months immediately before and after the applicant’s birth in December 2004.  That much can be accepted given the confirmatory significance ascribed to such evidence in H. 

26. The respondent pointed to the following matters as weighing against a finding that Mr S was the applicant’s parent at the time of her birth for the purposes of s 16(2)(a):

    (a)his absence from the Philippines at the time of her birth and for significant period before and after her birth, particularly the fact that he did not return to the Philippines after her birth until March 2005, when she was about three months of age;

    (b)the fact that there is no contemporaneous documentary evidence of the applicant being identified as Mr S’s daughter at the time of her birth, given that her birth certificate was not obtained until December 2015, being a year after her birth, and his affidavit acknowledging paternity was not made until then either;

    (c)the fact that, even though the applicant was born in December 2004, no application for citizenship was made on her behalf until 2007, being a significant delay and contrary to what one would reasonably expect a father to do in the circumstances.

27. With respect to the first matter, the respondent noted that Mr S had given evidence that his absence was attributable to financial necessity and his father’s surgery but suggested that his absence might also be explicable by his uncertainty about his relationship with Ms C and his future intentions towards her and the applicant.

28. I note that in the respondent’s Statement, he adverted to Mr S’s absences from the Philippines over the last 10 years, rather than merely focussing on the time of, and months following, the applicant’s birth.  He also pointed to the fact that Mr S’s visits to the Philippines over the last decade have been brief.

    CONSIDERATION

29. I am satisfied on the basis of the evidence before the Tribunal that Mr S was the applicant’s parent for the purposes of s 16(2)(a) of the Act at the time of her birth.  I accept the evidence of Mr S, which I find, for all material purposes, is corroborated by the evidence of the other witnesses and by the documentary evidence before the Tribunal.

30. To paraphrase the words of the Full Federal Court in H, I find that Mr S by his conduct before and at the time of the applicant’s birth acknowledged her as his own and then proceeded to treat her as his own.  His conduct prior to her birth and at the time of her birth was that of a father.  His conduct after her birth serves to confirm that he was her father at the time of her birth. 

31. It seems to me, and indeed para 19.4.1 of the Australian Citizenship Instructions supports such a view, that a relevant issue which arises for consideration given the evidence before the Tribunal is whether I am prepared to find that Mr S believed that the applicant was his biological child at the time of her birth.  In my view that is so even though the term “parent” in s 16(2)(a) has been judicially construed as not being confined to biological parents; what matters is not whether Mr S is in fact the applicant’s biological father but rather whether he believed he was at the relevant time, as much of the evidence as to his conduct is best explicable, and therefore of greater probative value, in that context.

1. I accept Mr S’s evidence, as corroborated by that of other witnesses, that he believed he was the applicant’s biological father until 2008, when the DNA test revealed that that belief was false.  I have drawn that conclusion despite the inference I have drawn, from evidence concerning Ms C’s circumstances prior to and at the time of the applicant’s birth, that a more sceptical man would likely have at least harboured doubts about his paternity prior to or at the time of the applicant’s birth.  While it might be considered surprising, for example, that Mr S’s father did not share his own doubts with his son, I nevertheless accept that evidence, considered in the context of the other relevant aspects of his evidence.

2. I consider that the factors favouring a finding that Mr S was the applicant’s father at the time of her birth outweigh the prima facie countervailing factors raised by the respondent.  Without reiterating the evidence, I note the following matters, shortly stated.  Mr S provided financial support to Ms C, including with respect to her pregnancy in particular, prior to the applicant’s birth.  He has financially supported the applicant since birth.  He continued to support Ms C financially at the time of and after the applicant’s birth and has continued to do so to this day despite his intimate relationship with her having ended when the applicant was very young; I infer that Mr S has done so because Ms C is the applicant’s mother and is therefore responsible for her welfare. 

3. Although the documents are not contemporaneous (a point I address shortly in these reasons), Mr S consented to his inclusion on the applicant’s birth certificate and made an affidavit acknowledging paternity.  The applicant took his surname and a first name suggested by him. 

4. Mr S maintained a sustained personal interest in the progress of Ms C’s pregnancy, albeit sometimes while absent.  He maintained concern for her health and welfare during her pregnancy and after the applicant’s birth. 

5. The applicant has always been known, both before and after her birth, as his child, not only in his social circle in the Philippines but also in his family and in his social circle in Australia.  He announced her imminent arrival to such people, including his own parents, as being the arrival of his child.  I accept that the applicant has always known Mr S as “Daddy”, as he was described in an early video by Ms C.  The videos of Mr S with the applicant, albeit taken when she was at least a year old, demonstrate the behaviour of a father.

6. I consider that the evidence must be considered in the context that Mr S is a father who, through circumstances, lived in a different country from the applicant at the time of her birth and who has continued to do so.  That does not, of itself, preclude a finding that he was in fact her father at the time of her birth – rather, it prima facie gives rise to factors which might be said, as the respondent has in fact submitted, to weigh against a finding that Mr S was the applicant’s father at the time of her birth and necessarily affects the manner in which s 16(2)(a) of the Act might be satisfied.  (I note in passing that, although I give little weight to the document concerning guardianship being granted to Mr J, as it was executed quite recently, I consider that document must be read in the context that the applicant and Mr S presently live in different countries.)  

7. I accept Mr S’s evidence concerning the circumstances in which he left the Philippines prior to the applicant’s birth, was not present for her birth and did not return to the Philippines until a few months after her birth.  I am not prepared to draw the alternative inference put forward by the respondent, particularly given the relevant evidence corroborating that of Mr S.  Put simply, at the time of the applicant’ birth, Mr S was an absent father, because of financial exigencies and his own father’s ill-health; nevertheless, he was her father for the purposes of s 16(2)(a) of the Act, for the reasons I have given.  The fact that he was not present for her birth does not alter that conclusion.  Nor does the fact that Mr S has spent limited time with the applicant since her birth;  I accept that he has spent all or most of his available free time in the applicant’s company since her birth.

8. I turn now to the other matters upon which the respondent relied, particularly that fact that there is no contemporaneous documentary evidence of the applicant being identified as Mr S’s daughter at the time of her birth, given that it was not until a year later that a birth certificate was obtained and Mr S made an affidavit acknowledging his paternity.  I have taken those matters into account, but they do not alter my conclusion, given the other evidence before the Tribunal.  In particular, I accept Mr S’s explanation of the dilatory approach taken to those matters. 

9. Furthermore, I accept Mr S’s explanation of why there was such a delay in applying for Australian citizenship on the applicant’s behalf.  Although the respondent submitted that such delay was contrary to what one would reasonably expect a father to do in the circumstances, the inference I draw from the evidence, considered in its totality, is that Mr S’s conduct has been that of a father who might be said, at least at the time of the applicant’s birth, to have paid little attention to administrative matters concerning the applicant’s welfare; nevertheless, I give more weight to evidence by which he has demonstrated his fatherhood in other ways.

10. In summary, while I have taken into account the matters relied upon by the respondent, I do not consider them to be determinative, whether considered in isolation or together.

    CONCLUSION

11. Based on the evidence before the Tribunal, considered in its totality, I am satisfied that Mr S was the applicant’s “parent” for the purposes of s 16(2)(a) of the Act at the time of her birth and that she is therefore eligible to become an Australian citizen insofar as s 16(2)(a) is satisfied.

12. For the above reasons, the Tribunal will set aside the decision under review and remit the matter to the respondent for reconsideration, for the determination of the applicant’s application to become an Australian citizen in accordance with the Tribunal’s reasons for its decision.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins

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

Associate

Dated 27 October 2015

Date(s) of hearing	7 July 2015
Date final submissions received	27 July 2015
Advocate for the Applicant	Mr S
Solicitors for the Respondent	Mr Ned Rogers, Australian Government Solicitor