Huynh and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 1084

Huynh and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 1084 (23 December 2016)

Division	GENERAL DIVISION
File Number	2016/2005
Re	Long Van Huynh
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr Gordon Hughes, Member
Date	23 December 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Dr Gordon Hughes, Member

CITIZENSHIP - application for citizenship by descent – child born in Vietnam – alleged father an Australian citizen by naturalisation – whether parent of child - lack of evidence of a relationship between alleged father and the mother – Applicant submitted to DNA testing in Vietnam but declined to submit to DNA testing in Australia– adverse inference drawn

Legislation

Australian Citizenship Act 2007 s.16(2)(a)

Cases

H v Minister for Immigration and Citizenship (2010) 188 FCR 393
Jones v Dunkel (1959) 101 CLR 298

Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178

Secondary Materials

Citizenship Policy, Department of Immigration and Border Protection

Procedures Advice Manual 3

REASONS FOR DECISION

Dr Gordon Hughes, Member

23 December 2016

1. The Applicant was seeking the review of a decision by the Respondent not to grant an application for Australian citizenship by descent to a child, Quang Chuong Huynh. 

2. The Applicant is an Australian citizen by naturalisation.  The application lodged by the Applicant on behalf of the child was refused by the Respondent on the basis that there was insufficient evidence that a parent of the child was an Australian citizen at the child's birth. 

   LEGISLATION

3. Section 16(2)(a) of the Australian Citizenship Act 2007 (the Act) provides:

   A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

   (a)         a parent of the person was an Australian citizen at the time of the birth;…

   Discussion

4. The child was born in Vietnam on 26 August 2010 and is a citizen of Vietnam.  On the application form, the Applicant is listed as one parent, and Ms Kim Hong Nguyen Thi as the other parent.

5. Whether a person is a parent of another person is a question of fact, having regard to the evidence.  The Respondent cited H v Minister for Immigration and Citizenship (2010) 188 FCR 393 [129]-[130]:

   Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.  Once, in the case of an illegitimate child, biological connection was not enough: today, biological connection in specific instances may not be enough…..Perhaps in the typical case, almost all the relevant considerations, whether biological, legal or social, will point to the same persons as being the "parents" of a person.  Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one's own and treating him or her as one's own. 

   Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant's birth, he or she had a citizen parent.  In deciding whether a person can be properly described as the applicant's parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent's conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge.  Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth.  For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word "parent" at the time of the birth.

6. The Respondent further referred to Chapter 20 of the Citizenship Policy which provides that an application for citizenship by descent should be subject to additional scrutiny where, amongst other things, the child is offshore or the birth certificate was issued a significant time after the birth.

7. In this instance, the child has resided in Vietnam since birth; and the applicant was not listed on the child's original birth certificate but appeared on a re-issued birth certificate which was issued more than two years after the child's birth.  The Applicant told the Tribunal he had not been included on the original birth certificate because he was a citizen of a foreign country and proof was required – that proof was only obtained two years later when he underwent DNA testing in Vietnam.  He said it took him two years to identify a reliable DNA testing authority.

8. The Tribunal accepts that the child would have been conceived in late November 2009 or early December 2009.  The Applicant's passport showed he was in Vietnam during that period only between 10 December 2009 and 10 March 2010.  It cannot therefore be concluded that the Applicant was necessarily in the same country at the time the child was conceived.

9. There was no evidence that the Applicant spent time with the child's mother when she was pregnant and no evidence that he provided any assistance with pre-natal care and arrangements.  The Applicant's evidence in this regard was at best confusing and at worst evasive.  He told the Tribunal that he had travelled to Vietnam on 10 December 2009 only after learning of the mother's pregnancy but this is inconsistent with his claim of paternity as he had not been in the same country as the mother during the period of possible conception prior to that date.  Contradictorily, he also told the Tribunal that he did not know the mother was pregnant when he left Vietnam on 10 March 2010.

10. The Respondent emphasised that no evidence had been provided from, or about, the child's mother, and there was no evidence that the Applicant had treated the child as his own at any time since learning the mother was pregnant.  The Applicant explained that the mother could not give evidence in this regard because she had poor English, although this presumably would not preclude the submission of an affidavit prepared through an interpreter.  The Applicant said that the mother's mother cared for the child and could have provided evidence, but she was now deceased. 

11. The Applicant said he stayed with the mother and child whenever he visited Vietnam.  However he said he could not reveal the location, and did not register his address with local authorities, because of security concerns stemming from his past.

12. There was no evidence of financial support being provided by the Applicant to the mother prior to 2016 although the Applicant claimed to have been remitting money to Vietnam.  The Applicant produced evidence of two transfers, each in the sum of $5000, which had been remitted to the mother in the course of 2016 "for the child's education".  He said there had been previous transfers but he had not kept receipts.  There was no evidence that the moneys transmitted in 2016 had been retained by the mother or applied to the child's education.

13. Unquestionably the issue could be resolved through appropriate DNA testing. 

14. Chapter 20 of the Citizenship Policy states that where a decision maker is not satisfied as to a biological relationship, a DNA test may be suggested.  Specifically it states:

    …[DNA testing can be] useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate claims. …

    If the opportunity to provide DNA evidence in support of an application has been offered and not accepted, the decision maker should consider the applicant's reason/s for not accepting the offer and whether any adverse inference may be drawn.

15. The Respondent referred to Procedures Advice Manual 3 regarding factors to be taken into account in relation to the DNA testing process and the assessment of DNA testing results:

    15.2 Witnessing sample collection (offshore donors)

    To reduce the risk of fraud in the DNA testing process, it is a policy requirement that all sample collection offshore is witnessed by a trusted person nominated by the Department.

    …

    17.5 Test undertaken outside the visa/citizenship application

    Officers should exercise careful discretion before accepting as suitable evidence the results of DNA tests conducted outside the context of a migration/citizenship application, for example, tests done prior to the application being lodged.

    In regard to sampling in which the department has had no involvement, the department cannot be assured of the integrity of the procedure.  Therefore, officers may either request a repeat testing (to be paid for by the client) or request the client provide further evidence of the soundness of the process (for example, by examining forms and ID material submitted at the time of sampling).  Note: Neither NATA nor HOC can provide guidance on the soundness of the DNA sample collection process.

16. The Applicant relied on the DNA test conducted in Vietnam.  The Vietnam's DNA testing process did not comply with Departmental requirements for DNA evidence.  Specifically, the test was not "witnessed by a trusted person nominated by the Department" and was not undertaken by a testing laboratory accredited by the National Association of Testing Authorities for the relevant class of testing. 

17. The Applicant was offered the opportunity to undertake new DNA testing in accordance with Departmental requirements but he declined without elaboration in a letter dated 10 March 2016.  The Applicant's explanation to the Tribunal for not submitting to DNA testing in Australia was unconvincing.  He said "the facts are the facts" and that the Vietnamese results should be sufficient.  He said further testing would be "a waste of time, waste of money", which seems to be a rather incongruous response to a process which would, if the results were to establish his parenthood, have avoided considerable time and inconvenience.

18. Consistent with Chapter 20 of the Citizenship Policy, the refusal of the Applicant to submit to DNA testing gives rise to an inference that the Applicant is concerned that the result might be detrimental to the application: see Re Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178, 205 [91] citing Jones v Dunkel (1959) 101 CLR 298, 320.

19. Overall, the Tribunal is not swayed by the Applicant's evidence.  The evidence is not conclusive that he was in Vietnam at the time of the child's conception; there is contradictory evidence as to his involvement with the mother once the pregnancy was discovered; there is incomplete evidence regarding financial support provided by the Applicant to the child or the child's mother; and there is no corroborating evidence in respect of his assertion that he has visited the child or the mother in subsequent visits to Vietnam.

20. Most significantly, the Tribunal takes account of the Applicant's refusal to submit to DNA testing in Australia.  It would have been in the Applicant's hands to resolve any uncertainty by submitting to appropriately supervised and conducted DNA testing in this country, and his reasons for refusing were sufficiently vague as to warrant an adverse inference being drawn. 

21. For the above reasons, the Tribunal concludes that there is insufficient evidence that the Applicant is the father of the child.  The application is rejected and the decision under review is affirmed. 

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of:

23.     Dr Gordon Hughes, Member

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

Associate

Dated 23 December 2016

Date of hearing	15 December 2016
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor, Ms K McInnes