Hameed and Minister for Home Affairs (Citizenship)

Hameed and Minister for Home Affairs (Citizenship) [2019] AATA 675 (11 February 2019)
Division: General Division
File Number: 2018/4330
Re: Aisha Hameed
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member West
Date:11 February 2019
Place:Melbourne

The Tribunal affirms the decision of the delegate of the Minister for Home Affairs to refuse the Applicant’s application for citizenship.

...........[sgd].............................................................
Member West
Catchwords
CITIZENSHIP - Application for citizenship by descent – review of refusal decision – whether the applicant had an Australian citizen parent at time of birth - not biological parents – extended meaning of ‘parent’ – test not satisfied – decision affirmed.
Legislation
Australian Citizenship Act 2007
Cases
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
H v Minister for Immigration and Citizenship [2010] FCAFC 119
REASONS FOR DECISION
Member West
11 February 2019
BACKGROUND

This is an application for review of a decision of a delegate of the Minister for Home Affairs (the delegate) under s 17(1) of the Australian Citizenship Act 2007 (the Act) to refuse an application for Australian citizenship made on behalf of Aisha Hameed (Aisha).
The application for citizenship was made under s 16(2)(a) of the Act which 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.
The application for citizenship was refused by the delegate on the basis that, at the time of Aisha’s birth, she did not have a parent who was an Australian citizen.
A hearing of the application for review was held on 27 November 2018. The Applicant was represented by Mohammad Hameed (Mohammad). The Respondent was represented by Ms McInnes of counsel.
CONTENTIONS
The contentions of the parties in this case are simply stated.
It is not disputed that both Mohammad and his wife Lema Hameed (Lema) are Australian citizens and were Australian citizens on 24 January 2018.
Mohammad asserts that Aisha is a child born in Afghanistan on 24 January 2018 to himself and his wife Lema.
The Respondent submits that the Tribunal should not be satisfied on the evidence presented on behalf of the Applicant, that Mohammad and Lema (or either one of them) are the parents of Aisha.
EVIDENCE
In conducting the review I have had regard to the documents produced to the Tribunal by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975

(T Documents) and to the following:
·oral evidence of Mohammad Hameed
·oral evidence of Lema Hameed
·statutory declaration of Mofleha Hameed
·statutory declaration of Jamil Ahmad
·statutory declaration of Dr Rasoly;
·statutory declaration of Dr Ayesha Chothia
·chronology – Exhibit R1
Outline of facts as claimed by the Applicant
The essential facts as claimed by the Applicant are:
·Mohammad and Lema are a married couple who were both originally from Afghanistan.
·They had been trying to conceive a baby for approximately two years prior to October 2017, Lema having previously suffered a miscarriage.
·In October 2017 Lema decided to travel to Afghanistan to visit her mother who had taken ill, with the intention of returning six weeks later. Airline tickets were booked on 9 October 2017 and paid for on 14 October 2017.
·Three days prior to departure Lema consulted her doctor, Dr Ayesha Chothia, who conducted a urine test and diagnosed that Lema was pregnant.
·Lema travelled to Kabul with Mohammad’s parents, arriving on 19 October 2017. Her return flight was booked for 28 November 2017.
·Lema had an ultrasound scan in Kabul on 5 November 2017 which confirmed her pregnancy at 16 weeks, plus or minus 1.5 weeks.
·While Lema was in Kabul two of her cousins were killed in a bombing, following which Lema experienced bleeding and elevated blood pressure and she was advised by a doctor not to travel.
·Lema remained in Kabul and gave birth to Aisha on 24 January 2018 in Rabia Balkhi Hospital.
·Lema was discharged from Rabia Balkhi Hospital on 26 January 2018.
·As Aisha was premature she was required to stay in hospital following the birth. She was transferred to Ataturk Hospital on 26 January 2018; where she remained until her discharge on 22 February 2018.
Respondent’s contentions
The Respondent asserted that the evidence presented to the Tribunal was insufficient to enable a finding that the Applicant had a parent who was an Australian citizen at the time of the birth, on three bases:
a.The deficiencies in documentary evidence;
b.Implausibility of the circumstances surrounding the Applicant’s birth; and
c.An adverse inference that should be drawn from the Applicant’s failure to produce certain evidence, including a refusal to undertake DNA testing.
Analysis of the Evidence
Credibility
Before turning to the specific aspects of the evidence, I make the following observations about the oral evidence of Mohammad and Lema.
Although their evidence was generally consistent, there were two significant inconsistencies:
a.Mohammad stated that he and Lema went to see Dr Chothia on 15 October 2017 because Lema was suffering stomach problems. He denied that she was seeking a vaccination. Lema gave evidence that she went to the doctor to get some travel vaccinations and received a vaccination for hepatitis.[1]
b.Mohammad insisted that he did not visit Aisha in hospital at either Rabia Balkhi or Ataturk Hospital[2]; and added that as a male he was not permitted to do so.[3] Lema gave evidence that Mohammad visited Aisha in Ataturk Hospital with her on several occasions over the last two weeks of her stay at Ataturk Hospital.[4]
[1] Transcript at p.75.12.
[2] Transcript at p.31.
[3] Transcript at p.33.11.
[4] Transcript at p.87.01.
Overall, the demeanour of both Lema and Mohammad in the witness box indicated that they were not completely candid in the evidence they gave. When contradictions in the evidence were put to them, their answers were frequently evasive and on many occasions they claimed no recollection of significant facts. As an example, both Lema and Mohammad said they had no recollection of the events surrounding bringing Aisha home from hospital on 22 February 2018.[5] I find this unbelievable. Aisha was allegedly their first child. She had been in hospital for almost a month. The date of her discharge was only nine or so months before the hearing. That neither parent could recall the events is simply implausible.
[5] See Lema at Transcript 88.33 and Mohammad at Transcript 49.35.
Accordingly, I am not satisfied that the oral evidence of Lema and Mohammad was entirely reliable; and where it is not supported by other evidence I have given it less weight.
Pregnancy diagnosis in Australia
The documents produced by Mohammad and Lema to evidence the pregnancy diagnosis in Australia consist of:
a.An undated letter on the letterhead of Dr Chothia[6] stating simply that This is to certify that Lema Hameed had her pregnancy diagnosed on 15 October 2017. The letter is signed (although the signature is indistinct) and bears a stamp which includes Dr Chothia’s registration number and contact details.
b.A statutory declaration form, which is dated 18 April 2018[7], stating in handwriting Lema Hameed pregnancy diagnosed here on 15/10/2017. The form is not properly executed and does not identify the deponent by name; although it does bear the stamp of Dr Chothia.
c.A patient account dated 15 October 2017, which records a level B consultation (after hours) and a pregnancy test.[8]
[6] T7 at p.68.
[7] T14 at p.106.
[8] T15 at p.108.
The Respondent points to the absence of clinical records, the fact that Dr Chothia was not called to give evidence, and the unsatisfactory nature of the unsworn statutory declaration. The Respondent asserts that the evidence is not a reliable basis for a finding that Lema was diagnosed as being pregnant when examined by Dr Chothia on

15 October 2017.
Even allowing for the fact that the Applicant is not legally represented, the documents are of poor quality and the failure to call available evidence, especially from Dr Chothia, is concerning.
The two documents purportedly written by Dr Chothia, the undated letter and the unsworn statutory declaration, are of poor quality. It is hard to accept that they were produced by a professional person for the purpose of evidence in Tribunal proceedings. The documents could easily have been prepared by someone with access to Dr Chothia’s business stamp.
I accept that the patient account does confirm that Lema undertook a pregnancy test on 15 October 2017, but it does not confirm the Applicant’s claim that the test was positive.
In circumstances where Dr Chothia could easily have been called to give evidence and/or clinical records could have been produced, I have reservations about relying on these documents to establish that Lema was pregnant at the time she left Australia in

October 2017. I do not find that Lema was not pregnant at this time but neither am I positively satisfied that she was pregnant.
Lema’s decision to go to Afghanistan
The Respondent asserts that the reasons advanced by Mohammad and Lema for Lema’s travel to Afghanistan in October 2017 are implausible.
Mohammad explained that Lema decided to go to Afghanistan because her mother was ill in hospital. He said that Lema’s mother was sick because she lost her brother, and a few other brothers as well in the last couple of years, so she was in the hospital for that reason. He added that she was really sad and she was depressed and, yes, she had a blood pressure, and for that reason she was hospitalised. He also gave evidence that Lema had decided to travel at that time because his parents were travelling to Kabul and she could accompany them.
I can readily accept that these circumstances provided a valid reason for Lema to decide to undertake the trip. However, a question arises as to why she did not change her mind when she learned that she was pregnant.
The reasons given by Mohammad for Lema not cancelling the trip were unconvincing. He said that …she had no other option. Like, my parents were travelling and it was a good time for her to accompany them and see her mum. Lema acknowledged that she was worried about travelling to Afghanistan when she was pregnant because she had had an earlier miscarriage, but she said …my mum was sick, so I had to go there and see her.[9]
[9] Transcript at page 70.35.
I have difficulty in accepting the explanation given for Lema going ahead with the planned trip to Afghanistan if she had become aware that she was pregnant. Lema and Mohammad said they had been trying to get pregnant for a considerable time. Lema had previously had a miscarriage. It was their first child. Lema had not undertaken any of the usual tests to determine the health of the foetus or to assess any risks to herself or the baby. Afghanistan is a dangerous place with inferior medical facilities. Travel insurance was unavailable. Lema’s reasons for travelling were not so pressing that she could not put off the trip at least until she had undertaken proper tests. There was no medical evidence produced regarding Lema’s mother’s condition. The description of her condition given by Mohammad did not suggest that it was life-threatening or even serious. Lema in fact gave evidence that her mother was released from hospital a few days after she arrived in Kabul.
While it is possible that Lema put her concerns for her ill mother ahead of her own safety and the well-being of her unborn child, I am not satisfied on the evidence that she did so.
Lema’s decision to remain in Afghanistan
Lema said that she had intended to return to Australia after six weeks in Afghanistan. She had a return flight booked for 28 November 2017. She gave evidence that she had an ultrasound on 5 November 2017 which indicated that all was well with the pregnancy. The Applicant provided an ultrasound report from Nadera Sediqi Hospital dated

5 November 2017[10], which records …a single intrauterin pregnancy at 16 weeks +/- 1.5 weeks. The report was sent to Mohammad by Lema for forwarding to their preferred hospital in Australia. Lema did not send Mohammad the ultrasound images of the baby and she claims to have subsequently lost them.
[10] T8 at p.69.
Lema gave evidence that later she had a second ultrasound which indicated that she was five months pregnant and the baby was progressing normally. She said she was unable to get a written report of the second ultrasound from the clinic because it was too far for her to go and her brother was unwilling to accompany her.
Lema said she went to the doctor again about a month later, following the death of her two cousins, because she was bleeding and had high blood pressure. She indicated that the death of her cousins was in December 2017, although she was not sure. She said that at this appointment her doctor advised her to rest and not to travel; and because of this advice she did not return to Australia as planned. No medical evidence of the doctor’s diagnosis or advice was produced to the Tribunal.
Lema’s evidence was to the effect that the first and second ultrasounds gave a positive report on her pregnancy. The first was conducted on 5 November 2017 and the second a few weeks later. Thus, at the time of her planned return (28 November 2017) the indications were that she was medically clear to travel back to Australia and she would have had the assistance of her parents-in-law on the flight. She claimed that her condition deteriorated after her cousins were killed and she was advised by her doctor not to travel. Her evidence was that the incident in which her cousins were killed occurred in

December 2017; although she qualified this by saying she was not sure. A December date is consistent with Lema’s evidence that she sought a third ultrasound examination about a month after the second ultrasound. This suggests that the decision to remain in Afghanistan beyond the scheduled departure date of 28 November 2017 was for reasons other than the purported medical advice.
In addition, Lema’s account of the doctor’s diagnosis did not indicate that the ‘complications’ were of a serious nature. Lema confirmed in her evidence that, at the time of the diagnosis, the baby was fine and she expected to go to full term. She did indicate that she was given some unspecified medicine but the principal advice from her doctor appears to be simply that she rest. In these circumstances, it is difficult to understand why Lema did not at least seek a second opinion on her fitness to fly back to Australia where she would have access to superior medical support, a safe environment and the support of her husband.
On the basis of this evidence I am not satisfied that Lema’s decision to remain in Kabul after the scheduled departure on 28 November 2017 was for the reasons she claims. I am not satisfied that she was deterred from returning to Australia because of her doctor’s advice not to travel.
Aisha’s Birth
The evidence regarding Aisha’s birth is far from satisfactory.
The only documentary evidence produced in relation to Aisha’s birth is a birth certificate (an original[11] and a translated version[12]) and a statutory declaration of a Dr Rasoly. The Applicant did not produce any hospital records from the Rabia Balkhi Hospital where Aisha was born.
[11] T8 at page 105.
[12] T5 at page 53.
The statutory declaration of Dr Rasoly, a medical practitioner at Rabia Balkhi Hospital, is dated three or so months after the birth. It is unclear who has authored this declaration; whether Dr Rasoly wrote it himself or signed a declaration that was presented to him. It also does not provide any details as to how he identified Lema, and how he knew she was the person who had a baby three months before. Lema’s evidence was that the Rabia Balkhi Hospital was very busy at the time of Aisha’s birth and that she and Aisha only stayed at the Rabia Balkhi Hospital for one and a half days. There was no evidence of any contact between Lema or Mohammad and Rabia Balkhi Hospital or Dr Rasoly before or after this time.
Having regard to these matters I give the statutory declaration of Dr Rasoly little weight.
Lema gave evidence that the original birth certificate was issued to her by a nurse at Rabia Balkhi Hospital on the date of Aisha’s birth. The certificate is dated

3 February 2018, which is about a week after the birth and after Lema and Aisha had been discharged from Rabia Balkhi Hospital. The original certificate names Mohammad as the father. However, Mohammad was in Australia at the time and his identity as the biological father could not have been properly verified. The usual practice in Afghanistan is to name the father on the birth certificate and not the mother. There is no place for the mother’s name to be entered on the form. The original form does not name Lema as the mother; however, the translated certificate includes Lema’s name as the mother. This indicates that the translator added information not present on the document he/she was to translate.
Country information[13] indicates that document fraud is a major issue in Afghanistan and that fraudulent documents are easily obtained. Bearing this in mind, and having regard to the fact that the translated birth certificate includes a mother’s name when no mother’s name is included in the original, that the date of issue of the certificate is inconsistent with Lema’s oral evidence, and that Mohammad was not in the country when this certificate was obtained, I am not satisfied that the birth certificate is a reliable basis from which to determine whether Lema or Mohammad are the biological parents of Aisha. I give the certificate little weight.
[13] DFAT Country Information Report Afghanistan, 18 September 2017 – ST 9 at page 259.
If it is accepted that the ultrasound report of 5 November 2017 relates to Aisha, she was 16 weeks +/- 1.5 weeks as at that date. Allowing for an average gestation period of 40 weeks, her full term would extend to approximately 22 April 2017.[14] This leads to the conclusion that she was born on 24 January 2018 at around 28 weeks gestation, or 12 weeks premature. On discharge from Ataturk Hospital on 22 February 2018 she would have been around 32 weeks gestation (or 8 weeks premature.)
[14] See Exhibit R1.
The Applicant produced a baby history form for Aisha issued by the Ministry of Public Health[15] and a translated version.[16] The translation is replete with errors and I give the document no weight. However, the limited entries in English on the original form do include some information which is apparently inconsistent with Aisha’s premature condition. Firstly, the original form notes that Aisha was premature but records that she weighed 2,800 grams at birth, which is more or less the birth weight of an average full term baby. Mohammad also confirmed in his evidence that he understood her birth weight was 2,500 grams. Secondly, the original form records that, at the time of discharge, Aisha was able to breast feed. Mohammad’s evidence was that Aisha was fed via a tube while in Ataturk Hospital and was unable to breast feed.[17] This accords with Lema’s evidence that she only visited Aisha in Ataturk Hospital occasionally and only after the first two weeks. Finally, the photograph of Aisha attached to the application for citizenship does not appear to be that of a very premature baby.
[15] See ST 3d.
[16] ST3d.
[17] See transcript at 32.10.
Mohammad and Lema provided a series of photographs of Aisha; many with Lema but only one with Mohammad.[18] The photographs were all taken after Aisha was discharged from hospital and there was no evidence of the dates upon which the photographs were taken. The Respondent drew attention to the absence of any photographs of Aisha or Lema while in hospital. Various explanations for the absence of any photograph of Aisha while in hospital from 24 January 2018 to 22 February 2018 were given.
a.In an email to the Respondent on 20 May 2018 Mohammad said: …my wife was not allowed to take photos for privacy issues and also because of security matters. She was warned by the hospital staff that there is a greater chance that her phone or precious items would be stolen if she brought them with her …to the hospital.[19]
b.Mohammad gave the following evidence at the hearing:
Yes, that is true we didn’t take her photos in the hospital. Like my wife she was really distressed. She was sad as well because (indistinct) she was sick and she was in the hospital. There was a privacy issue, like even if you had the camera we couldn’t take the photos. Like she was with other females in the same room in the hospital, so it wasn’t appropriate to take her photos because of the privacy of other people as well. Yes, and those hospital is not like what we have here, like it is not a separate room for each female to be there, so many females there in the same room, and a male is just not allowed to enter that room.
In my culture it’s not common or it’s not necessary to take a photo of a child when in the hospital, and even she was also sick, so it wasn’t a good time for the photo as well.
c.Lema’s gave the below explanation at the hearing:
I haven’t got any photos of her at the both hospitals, so like it wasn’t an appropriate time. My cousins, they were died, my father, mother, they were also upset, and I wasn’t - I was also sick and I was not happy, in the mood to take the photos.
[18] T15 at pp109-119.
[19] T17 at p.129.

I have difficulties accepting these explanations. The ‘privacy’ and ‘security’ excuses may have been relevant while Lema was an inpatient at Rabia Balkhi Hospital, but she was discharged from there after less than two days. While Aisha was in Ataturk Hospital for almost a month, I have no doubt there would have been opportunities to take photographs without infringing the privacy of others and without the risk of Lema’s camera or mobile telephone being stolen. I accept that it is possible that Lema was not in the mood to take photographs, but I find it unlikely. It is claimed that Aisha is their first child. The alleged father was not able to be at the birth or to be with the baby for the first two weeks. The baby was confined to hospital. Relatives and friends would be likely to want to see some images of the new arrival. In those circumstances, one would expect new parents to have taken at least a few photographs. The fact that they did not do so raises a suspicion as to the veracity of their claim.
One particular issue of concern relates to the photograph of Aisha affixed to the citizenship application form lodged with the Department of Home Affairs (the Department).[20]
[20] T5.
I am satisfied on the evidence that the citizenship application form was lodged on

22 February 2018.
The Identity declaration form was signed and dated by Lema and Mohammad on

13 February 2018. The photograph of Aisha affixed to the form was authenticated by a Shah M Nakban, who signed an identity declaration confirming that the photograph was a true photograph of Aisha. The declaration is dated 7 February 2018. Mohammad gave evidence that Shah M Nakban is a doctor at Ataturk Hospital who was involved in the care of Aisha.
If the information on the form is correct, the photograph was taken on or before

7 February 2018 while Aisha was in Ataturk Hospital and two weeks before she was discharged. Assuming the ultrasound taken on 5 November 2017 was accurate, Aisha would have been around 29 weeks gestation at the time. Lema gave evidence that Aisha had trouble breathing and was being fed with a tube during this time. The photograph does not depict a baby meeting this description. The existence of the photograph also contradicts the evidence of Lema and Mohammad that no photographs were taken of Aisha while she was in hospital.
To add further uncertainty to the evidence regarding the photograph I note that Dr Nakban was not listed by Ataturk Hospital as one of the doctors on duty during the period of Aisha’s admission[21] and Lema gave evidence that she did not recall him.
[21] T15 at p.107
Mohammad initially gave evidence that some time after Aisha was discharged from the Ataturk Hospital he had her photographed by a professional photographer and he then took the photograph to the Ataturk Hospital for Dr Nakbar to sign to confirm her identity. Both Mohammad and Lema were questioned about the discharge of Aisha from the Ataturk Hospital and the taking of the photograph. Each gave inconclusive answers and, when pressed, each claimed to have no recollection of the events surrounding Aisha’s discharge from hospital and return home or the taking of the photograph to be appended to the application.
When asked to explain how Dr Nakbar could have signed the declaration on

7 February 2018 when on Mohammad’s evidence the photograph was not taken until after Aisha was discharged from hospital on 22 February 2018, Mohammad said; It seems they have made a mistake on that, those doctors, they didn’t know the dates, and later said Maybe we have made a mistake on the date. Yes, I think we made a mistake on the date.
The evidence regarding this photograph raises a number of questions. It is quite possible that the photograph is not a photograph of Aisha. If there were no photographs taken of Aisha while she was in hospital, then the only way the photograph could have been appended to the application received by the Department on 22 February 2018 is if it was taken immediately after Aisha was discharged on 22 February 2018 and then taken to

Dr Nakbar for authentication on that same day. This was not the clear evidence of either Mohammad or Lema. If one accepts that Dr Nakbar did authenticate the photograph on

7 February 2018, as his declaration states, then it may not be a photograph of Aisha as it does not depict a baby having trouble breathing and being fed with a tube and both Mohammad and Lema were adamant that no photographs were taken of Aisha while she was in hospital.
On the basis of the evidence presented to the Tribunal I am unable to decide the true circumstances regarding the photograph appended to the application, but the contradictory nature of the evidence does lead me to question the veracity of the evidence of both Mohammad and Lema generally, regarding their relationship with Aisha.
DNA Testing
In assessing the Applicant’s citizenship application, the Department requested the Applicant to provide additional evidence to establish Mohammad’s paternity and/or the maternity of Lema and in particular to undertake DNA testing to the standard required by the Department.[22] The Department offered to arrange DNA testing in Kabul, Dubai or Islamabad. While both Mohammad and Lema indicated their willingness to undergo DNA testing, they each declined to take up the opportunity to undertake testing in Kabul because of security concerns regarding the location of the collection centre. They cited the difficulty of obtaining visas to attend for testing in Dubai or Islamabad, and added in relation to Islamabad that they were also concerned about security. Mohammad also gave evidence that he and Lema had not attempted to obtain visas to travel to the United Arab Emirates or Pakistan. Offers were also made by the Department to make arrangements with a panel doctor for an alternative collection location in Kabul[23] but Mohammad and Lema did not respond to the offer to make alternative arrangements.
[22] T12 at pp 87-97.
[23] T17 at p. 128 and p.131.
I am satisfied on the basis of country information[24] that there is a genuine basis for persons in Lema and Mohammad’s position to be fearful for their safety in attending particular locations in Kabul to undergo DNA testing. The personal experiences of Lema in suffering the death of members of her family would understandably heighten their level of anxiety. I note, however, that Lema and Mohammad have visited Afghanistan several times and both have local knowledge of their own as well as from their families. In addition, Lema was prepared to travel to medical facilities in Kabul to visit her mother in hospital, to seek medical attention prior to the birth, to attend hospital for the birth and to visit Aisha after her transfer to Ataturk Hospital. I also note that Mohammad admitted that he did not pursue the option of applying for a visa to undertake the DNA testing in Dubai or Islamabad, or follow up with the Department regarding its invitation to make alternative collection arrangements in Kabul.
[24] DFAT Country Information Report Afghanistan, 18 September 2017 – ST 9 at page 236-8
It is possible that the security threat has been used as an excuse by Lema and Mohammad to avoid DNA testing, but I am not comfortably satisfied that this is the case. The Respondent submits that I should draw a Jones and Dunkel[25] inference from their failure to undergo DNA testing.[26] Having accepted the reality of the security threat, and notwithstanding my reservations about the motivation of Lema and Mohammad, I am not prepared to draw an inference that their failure to undergo DNA testing indicates that they are not the biological parents of Aisha.
[25] (1959) 101 CLR 298.
[26] See Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178.
Nevertheless, the absence of DNA evidence is important in this case. A positive DNA test would dispel any uncertainty as to the biological parentage. The absence of such definitive evidence means that the Tribunal must reach its decision on the basis of the evidence available to it. As I have discussed above, the evidence in support of the application is beset by contradictions and uncertainties. In many instances, this uncertainty stems from the quality of the evidence produced. Many of the documents are of poor quality. In some cases better evidence would be readily available but has not been produced.
Other Considerations
To add to the overall uncertainty regarding the evidence in this case, I note that there is no continuity in the medical treatment Lema allegedly received in relation to her pregnancy. She saw Dr Chothia in Australia once. She had two ultrasounds at Nadera Sediqi Hospital in Afghanistan. She saw a family doctor, whom she could not name, who advised her that she could not travel. She gave birth in Rabia Balkhi Hospital and she was discharged after a day or two. Aisha was then cared for in the Ataturk Hospital, although Lema was not admitted to that hospital and only visited a few times. This lack of continuity means that there is an absence of any objective witnesses with an overall understanding of the events. This absence admits a degree of uncertainty over the reliability of evidence from third persons confirming the factual basis of the Applicant’s case.
In addition, I find that the evidence of Lema and Mohammad failed to demonstrate a genuine engagement with the birth of Aisha, bearing in mind that Aisha is said to be their first child, who they had been trying to conceive for over two years. Lema and Mohammad admitted that they had not cared to calculate Aisha’s expected date of birth following the first ultrasound examination.[27] Lema did not retain the first ultrasound image of the baby or retain the second ultrasound documents. Lema took no photographs of the baby for over a month while she was in hospital. Neither parent had any recollection of bringing the baby home from hospital. In the documents filed in the proceedings there is only one photograph of Mohammad and Aisha together, although there are multiple photographs featuring Lema and Aisha. These matters in themselves do not disprove the Applicant’s parental claims, but they do add to the uncertainty arising from the other evidence.
Conclusion re Biological Parent Claim
[27] Transcript at p. 42.23.
Having weighed up all of the evidence I am not reasonably satisfied that either Lema or Mohammad are the biological parents of Aisha. The evidence, which I have discussed in detail above, is not sufficiently reliable to allow such a finding. This uncertainty may be removed by the production of better evidence, in particular by the provision of DNA testing results. However, on the evidence available, I cannot find that Aisha is eligible for Australian citizenship on the basis that she had a biological parent who was an Australian citizen at the time of her birth.
Non-biological parents
The question under s 16(2)(a) of the Act is not answered simply on the basis of whether an applicant has a biological parent who was an Australian citizen at the time of the birth. The Federal Court in H v Minister for Immigration and Citizenship[28] gave detailed consideration to the meaning of the term ‘parent’ as used in s 16(2)(a) and concluded at [130]
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.
[28] [2010] FCAFC 119.
In this case there is limited evidence of the conduct of either Lema or Mohammad that would bear on the question of whether at the time of Aisha’s birth either qualifies as a ’parent’ within the extended meaning stated in H v Minister for Immigration and Citizenship.
The Applicant relies on the statutory declarations of Mofleha Hameed[29] and Jamil Ahmed.[30] Neither person was called to give evidence at the hearing. I also note that both are located in Australia and have not directly observed the conduct of either Lema or Mohammad in relation to Aisha. As the Respondent notes, there was no evidence called from grandparents, neighbours or friends in Kabul who would have direct knowledge of Mohammad and Lema’s conduct in relation to Aisha.
[29] ST 6b.
[30] ST 6a.
The evidence of Mohammad was that before, and at the time of Aisha’s birth, he had limited involvement with her. He remained in Australia for the last months for Lema’s pregnancy and did not attend the birth. He travelled to Kabul while Aisha was in Ataturk Hospital, but on his evidence he did not visit her in hospital. Mohammad then returned to Australia on 24 March 2018 and there was no evidence that he has been involved in the direct care and support of Aisha since that time. The evidence before the Tribunal includes only one photograph of Mohammad with Aisha.
Lema has claimed that she has cared for Aisha as a parent since she was discharged from Ataturk Hospital. However, I note that she and Aisha had been living with relatives in Kabul, not independently. In view of the unsatisfactory aspects of Lema’s evidence regarding her claim to be the biological parent of Aisha, I am reluctant to accept her evidence regarding her care and support for Aisha without corroboration. There is some support for Lema’s evidence in the declaration of Mofleha Hameed, but Mofleha’s evidence is essentially based on what she says she had been told by Lema. Accordingly, I give it little weight. There is no evidence called from grandparents, neighbours or friends in Kabul who have direct knowledge. There is also evidence tending to suggest that Lema has not assumed the role as parent. In the month following Aisha’s birth she was cared for by Ataturk Hospital and Lema only visited occasionally. At the time of the hearing Lema had returned to Australia, leaving Aisha in the care of her family in Afghanistan.
I am not satisfied on the basis of the evidence that either Lema or Mohammad can properly be regarded as parents under the usage of that term in s 16(2)(a) of the Act.
CONCLUSION
Having considered the evidence, I am not satisfied to a reasonable level of satisfaction that Aisha is the biological child of either Mohammad or Lema Hameed. Nor is there adequate evidence that either Mohammad or Lema Hameed have met the test of a parent in H v Minister for Immigration and Citizenship [2010] FCAFC 119. Accordingly, I am unable to find that the Applicant has a parent who was an Australian citizen at the time of her birth. I affirm the decision to refuse her application for citizenship under s 16(2)(a) of the Act.
In reaching this decision I note that a further application for citizenship can be made in the future, supported by further evidence to address the Tribunal’s concerns. In particular, consideration should be given to DNA testing.
DECISION
I affirm the decision under review.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member West.

..........[sgd]..............................................................
Associate
Dated: 11 February 2019

Date of hearing: 27 November 2018

Advocate for the Applicant: Mr Mohammad Hameed

Advocate for the Respondent: Ms Kylie McInnes

Solicitors for the Respondent: Australian Government Solicitor

[2019] AATA 675

11 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	27 November 2018
Advocate for the Applicant:	Mr Mohammad Hameed
Advocate for the Respondent:	Ms Kylie McInnes
Solicitors for the Respondent:	Australian Government Solicitor