Ibrahim and Minister for Home Affairs (Citizenship)

[2019] AATA 4294

Ibrahim and Minister for Home Affairs (Citizenship) [2019] AATA 4294 (18 October 2019)

Division:GENERAL DIVISION

File Number:           2018/6939

Re:Master Abdirizak Ibrahim  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:18 October 2019  

Place:Melbourne

The Tribunal sets aside the decision of the delegate of the Minister for Home Affairs dated 19 November 2018, refusing the application of the Applicant for Australian citizenship.

The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as he had  a parent, Mr Ibrahim, who was an Australian citizen at the time of his birth pursuant to s16(2)(a).

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

Ms Anna Burke AO, Member

Catchwords

CITIZENSHIP – citizenship by descent – Applicant born outside of Australia – whether a parent of the Applicant was an Australian citizen at the time of the Applicant’s birth – meaning of parent – not limited to biological parent – ordinary meaning of parent – parent’s conduct before, at the time of and after the birth – decision set aside and remitted for reconsideration.

Legislation

Administrative Appeals Tribunal Act1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

H v Minister for Immigration and Citizenship [2010] FCAFC 119

Secondary Materials

Citizenship Policy (provides guidance on the interpretation and exercise of power under the Act)

REASONS FOR DECISION

Ms Anna Burke, AO Member

INTRODUCTION

1. Master A (the Applicant) is a 12 year old child born in 2006 in Kenya. He applied to become an Australian citizen by descent on 7 May 2018 in accordance with section 16(1) of the Australian Citizenship Act 2007 (the Act).

2. In his application for Australian citizenship by descent his birth parents are recorded as:

   ·Mohamed Ahmed Ibrahim, male, date of birth 1 October 1965; and

   ·Sadia Sheikh Mohamed, female, date of birth 27 December 1986

3. Mr Mohamed Ibrahim was born in Somalia and obtained his Australian citizenship by conferral on 14 May 1997.

4. On 13 June 2018, the Department requested additional information in relation to the parental relationship between Master A and Mr Ibrahim at the time of the birth. Mr Ibrahim submitted a statutory declaration in response. DNA test results were also obtained on 13 November 2018.

5. On 19 November 2018, a delegate of the Minister for Home Affairs refused the Applicant’s application for citizenship by descent because at the time of his birth he did not have a parent who was an Australian citizen. In the delegate’s decision record he finds:

   His claim of being Master A’s father relies instead on his claimed social recognition as being Master A’s parent, present material support for Ms Mohamed and the inclusion of his name on the birth certificate to evidence his relationship with Master A.

   As a result, based on the evidence before me, I am not satisfied that Mr Mohamed Ahmed Ibrahim will be recognised as Master A’s legal parent under Kenyan law.

   Mr Mohamed Ahmed Ibrahim claims to be a relative of the applicant’s mother Ms Sadia Sheikh Mohamed. Mr Mohamed Ahmed Ibrahim claims to have provided financial support in relation to the applicant’s birth. There is no mention of shared parenting arrangements or any parental role Mr Ibrahim fulfilled prior to or at the time of the applicant’s birth.

   I accept that Mr Ibrahim is included on Master A’s birth certificate as the father, despite neither having a relationship with the mother nor having a biological connection to Master A.

   Inclusion on the birth certificate is not, on its own, evidence that Mr Ibrahim would be considered a responsible parent of the applicant. From the information provided, it appears to be more of an acknowledgement of Mr Mohamed Ahmed Ibrahim’s family relationship with Ms Sadia Sheikh Mohamed and by extension, his interest in the applicant.

   The evidence provided in support of Mr Ibrahim’s claim that he was the parent of Master A at the time of Master A’s birth does not satisfy me that Mr Ibrahim was Master A’s social or legal parent at the time of birth and therefore I’m not satisfied that Master A had an Australian parent at birth.

6. On 27 November 2018, an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (AAT) claiming the decision is wrong because (quoted): Child is adopted by me to coming Australia with mum and my daughter together.

7. At the hearing, conducted on 19 September 2019, Master A was represented by his father Mr Ibrahim. Ms Katie Amanatidis, solicitor for the Australian Government Solicitor, appeared on behalf of the Minister for Home Affairs (the Respondent). The Tribunal was provided with documentation under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).  The Applicant submitted a statement and other documentation. Mr Ibrahim gave evidence under affirmation at the hearing and Ms Mohamed gave evidence under affirmation via telephone from Kenya.

   BACKGROUND

8. Mr Ibrahim was born in Somalia and fled to the Kenyan refugee camps in about 1991. He subsequently sought refuge in Australia and became a citizen in 1997. Since coming to Australia he has worked in numerous manufacturing positions and is currently the primary carer for his ill mother. He was first married in Australia and subsequently divorced and has three adult children from this relationship.

9. Movement records indicate that Mr Ibrahim has travelled outside Australia on the following occasions:

   ·March – May 2008 (Mr  Ibrahim advised the Tribunal he took his mother Saudi Arabia)

   ·April – July 2013 (Mr  Ibrahim advised the Tribunal he went to Kenya)

   ·March – July 2014 (Mr  Ibrahim advised the Tribunal he went to Kenya)

   ·April – July 2018 (Mr  Ibrahim advised the Tribunal he went to Kenya)

10. Mr Ibrahim advised the Tribunal of the following:

    ·he has never claimed to be the biological father of Master A, but has adopted the child, having given him his name and provided for him as his son;

    ·in 2006 he was approached by Ms Mohamed, a distant relative and family friend, via the telephone in a distressed state as she had been raped and her family had abandoned her - having thrown her out of home;

    ·he said it was scary, that he was shocked as Ms Mohamed had advised she didn’t want to continue living and indicated she might harm herself. He said: I told her to be patient I would support her; I was talking to her a lot and other family members  so that I could save this girl;

    ·he became aware that the family was seeking to pressure Ms Mohamed into having an abortion and he advised the family against this course of action; he indicated that 90% the pressure from the family was financial due to their inability to support her and the child;

    ·he had known Ms Mohamed when she was a very small child in Kenya before he left for Australia and has had constant contact with her family over the years;

    ·he organised for his uncle to assist Ms Mohamed to travel from her parents’ home in Isiolo County to Eldoret prior to the birth of Master A so she would have somewhere to live and would not be stressed by the pressure from her mother and brothers;

    ·Ms Mohamed had resided with his uncle in Eldoret prior to the birth in 2006 and until 2013, when he relocated her and their child back to Nairobi;

    ·from 2006 until the present he has been financially responsible for Ms Mohamed and Master A: he organised and paid for all the medical expenses associated with the birth including the hospital stay, paid for all the baby’s needs such as cots, and has continued to support Master A financially including paying all school fees, uniforms, books, and bus fees;

    ·in addition to money transfers sent from Australia, he utilised funds he had in Kenya from a business he owned there; he continues to financially support his family and is transferring more money currently as he has 2 children to support;

    ·when Ms Mohamed gave birth she was extremely stressed about what name she was to give the child, so Mr Ibrahim advised her to name the child after him;

    ·at the time of Ms Mohamed’s pregnancy they were not in a relationship and he was not seeking a relationship with her, but that subsequently over the years they have developed feelings for each other which have evolved into a romantic relationship;

    ·in 2008 when he visited Ms Mohamed in Kenya they wed in a traditional marriage and in 2013 married in the Islamic Court;

    ·he visits Kenya as often as he can based on finances, work requirements and caring for his mother, spending three months there at a time as this is the maximum time of the tourist Visa;

    ·he had intended to travel to Kenya in 2015 for his daughter’s birth but was prevented from leaving Australia as he had a travel prohibition in place for failure to pay child support for his three children in Australia;

    ·on 11 March 2015 their daughter Fatmah Mohamed Ibrahim was born;

    ·his family in Kenya, Somalia and Australia all consider Master A to be his son, indeed many people, including his son, are not aware that he is not his biological father; and

    ·he has not adopted Master A legally under Kenyan law, because according to all the Kenyan documentation he is Master A’s father, as it is recorded as such on the birth certificate and passport.

11. Ms Mohamed advised the Tribunal the following:

    ·she was born in 1986 in Kenya;

    ·she first recalls meeting Mr Ibrahim in person 2007 or 2008 but did not remember meeting him as younger person;

    ·in 2006 she commenced communicating with Mr Ibrahim stating she had reached out to him when she had the problems and got pregnant. Over the years he had called her mother as they are related on his mother’s side and his mother would say uncle is on the phone come and talk to him. She didn’t really know why she decided to call him when she had the problem but she had a dream: she dreamt that there was someone who could come and help her;

    ·when she was pregnant, her mother and brothers had shut her out, but she had aunts and uncles in Eldoret who were standing by her in this difficult time;

    ·when she started communicating with Mr Ibrahim she was very stressed, and he treated her like his younger sister. She said I don’t know what name to give the baby and Mr Ibrahim said to give the child his name;

    ·during this time Mr Ibrahim was a fantastic support both financially and emotionally, it wasn’t romantic but it was more about the child;

    ·it became romantic one year after and he said he liked me and that he would come so that he can take his son to his family;

    ·prior to the birth and after, an uncle provided her with a room in his home and furnished it to her liking, and all her and her son’s expenses were provided by Mr Ibrahim via the uncle who had access to funds from Mr Ibrahim’s business in Kenya;

    ·she communicated with Mr Ibrahim during this period on a regular basis;

    ·she consulted with Mr Ibrahim in respect of decisions about her son after he was born, when deciding things like: issues with breast feeding, moving him onto solid food, dealing with his sleep, and that they did not perform the naming ceremony for the child until Mr Ibrahim came to Kenya in 2008;

    ·Mr Ibrahim’s family are aware he has a son. Mr Ibrahim’s mother calls regularly and has sent her money;

    ·in 2008 she and Mr Ibrahim had a traditional marriage and Master A was baptised;

    ·in 2013 she wanted to get married in court as she wanted to have another child with Mr Ibrahim so they married in the Islamic Court in Nairobi;

    ·her son has no other father but Mr Ibrahim, and Master A is unaware that Mr Ibrahim is not his biological father; her son is always wanting to know when his father will visit or when he can visit his father in Australia;

    ·Mr Ibrahim is financially supporting the family now with all living expenses including Master A’s school fees; and

    ·her son was incredibly upset when his sister received her Australian citizenship and he did not, and cannot understand why he has not become an Australian citizen as well.

    ISSUE

12. The issue in contention is whether Mr Ibrahim was a parent of the Applicant at the time of his birth in accordance with section 16(2)(a) of the Act.

    LEGISLATION

13. Section 16 of the Act outlines the provision for application and eligibility for citizenship:

    (1)  A person may make an application to the Minister to become an Australian citizen.

    Note:         Section 46 sets out application requirements (which may include the payment of a fee).

    Persons born outside Australia on or after 26 January 1949

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

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

    (b)  if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

    (i)  the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

    (ii)  the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

14. Section 17 provides, in part:

    (1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    (2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

15. The Australian Government has issued the Citizenship Policy (the Policy) to support the Act and to assist decision-makers with decisions as to citizenship. Whilst it is not binding on decision-makers it should be followed unless there is good reason not to do so.

16. Chapter 20 of the Policy relevantly provides:

    Biological parent-child relationships

    A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:

    the nature of the relationship between the claimed parents

    travel movements for the claimed parents around the date of conception

    the applicant’s birth, registration of birth and the chain of custody post-birth

    physical similarities between the applicant and claimed parent.

    DNA testing

    In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

    an Australian citizen (for descent) or

    an Australian citizen or permanent resident (for birth onshore)

    and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

    Non-biological parent-child relationships

    Factors to be taken into account

    For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth.

    Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may include, but is not limited to:

    ·anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent

    ·evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care

    ·evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and

    ·……

    Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at time of birth, but would lend weight to evidence of the types already mentioned.

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

    CONSIDERATION

    The meaning of the word parent

17. The word parent is not defined in the Act. However, the Full Court of the Federal Court of Australia has determined that whether or not a person is in fact a parent, within the ordinary meaning of the word, is a question of fact to be determined by the decision maker based on the facts and circumstances of each individual case.

18. In H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [8] the Full Court decided that the meaning of the word "parent" in the Act is not limited to biological parents and that a non-biological parent may be held to be a parent in certain circumstances. Being a parent depends on various factors, including social, legal and biological.

19. The Court said in part:

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

    We can discern no relevant justification for holding, as the Tribunal did in NWH's case, that a person can only be a "parent" within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant...

    Is Mr Ibrahim the biological father of the Applicant?

20. The Minister’s representative contended that Mr Ibrahim is not the biological parent of Master A, by reference to movement records indicating that Mr Ibrahim was in Australia at the time of Master A’s conception, and DNA test results that clearly indicate Mr Ibrahim is not Master A’s biological father.

1. Mr Ibrahim has never claimed to be Master A’s biological father.

2. The Minister’s representative accepts that DNA samples do demonstrate Mr Ibrahim is the biological father of Miss F, half-sister of Master A.

   Was Mr Ibrahim the parent of the Applicant at the time of his birth?

3. The Minister’s representative contended that there was insufficient evidence currently before the Tribunal to conclude Mr Ibrahim was Master A’s parent at birth. They argued that the evidence simply did not demonstrate that Mr Ibrahim had been providing care both financially and emotionally for the unborn child and mother from conception to birth.

4. The Minister’s representative contended that there was no evidence that Mr Ibrahim was involved in Master A’s life at the time of his conception or birth. They argued that Mr Ibrahim’s subsequent marriage and child with Ms Mohammed could not be considered as this occurred after the birth of the Master A, and therefore Master A was not the child of an Australian parent at birth.

5. The Minister’s representative contended that there was no evidence that Mr Ibrahim had adopted Master A and this was a course open to him under Kenyan law.

6. Mr Ibrahim argued that he had adopted Master A as his son by his actions and deeds and that according to all who know him, Master A is his son. He stressed that he does not know how he would tell Master A he is not his father.

7. The Minister’s representative outlined the evidence before the Tribunal from Mr Ibrahim in the following terms:

   ·he had been on the phone to Ms Mohamed before the birth of the child and continued to remain in touch;

   ·he had given financial support to Ms Mohamed before the birth of Master A and subsequently after;

   ·in 2008 he first visited Master A and took him to meet his family; during this visit he wed Ms Mohamed;

   ·in 2015 he was prevented from attending the birth of his daughter in Kenya because of a travel ban over non-payment of child support; and

   ·Mr Ibrahim had provided no documentary evidence of the financial or other support provided to Master A and his mother before his birth or after.

8. The Minister’s representative contended this evidence was vague and inconclusive to demonstrate support and care of Master A at birth. Additionally, they argued the evidence about Mr Ibrahim’s contact and concern of the child since birth was insufficient to demonstrate a parental relationship existed, which was further demonstrated by Mr Ibrahim’s failure to visit Kenya until 2008 (some 2 years after the child’s birth).

9. Mr Ibrahim advised the Tribunal he had never sought to document his support of Ms Mohamed or Master A as his intention had been humanitarian, to save the mother and child, not to press for the child’s citizenship.

10. The Minister’s representative contended that Mr Ibrahim’s presence in Australia at the time of and following Master A’s birth weighed against the existence of a parent - child  relationship as it was difficult to see how Mr Ibrahim provided practical support to Master A whilst in another country.

11. The Policy provides that evidence that the child was acknowledged socially from birth as the Australian citizen’s child is evidence of a parent-child relationship. Relevant to this, Mr Ibrahim provided a letter dated 14 February 2019 from Abdiaziz Farah, Senior Social Worker of the  Somali Australian Council of Victoria, outlining the community’s knowledge of his acceptance and care for Master A:

    It is my assessment that Mohamed is worthy of any support to enable him to be with his son Abdirazak Mohamed that he loves very much. Despite Mohamed Ahmed not being his biological father, he has been his keeper since he was born. I believe without his son, Mohamed will not be able to cope. He feels it is his responsibility to upkeep his sons welfare as he is the only family he has.

12. The Minister’s representative contended that the Tribunal cannot give any weight to the relationship between the parents to demonstrate a parent - child relationship between Mr Ibrahim and Master A. They argued that in accordance with the Policy, Mr Ibrahim cannot corroborate the evidence of a relationship by demonstrating the length and nature of the relationship between the claimed parents, as by their own admission, Mr Ibrahim and Ms Mohamed were not in a relationship at the time of Master A’s birth.

13. Mr Ibrahim advised the Tribunal he had no intention of forming a relationship with Ms Mohamed when she originally contacted him for help, as he is a great deal older than her and already has children. However, their feelings have developed over time through their communication about the child to the point where they have married and had a child together. Regardless, he had always considered Master A his son and responsibility as the child required a father. He had advised Ms Mohamed from the start of her problems that he would support her and the child and to give the child his name.

14. The Minister’s representative contended that minimal weight could be placed on Master A’s birth certificate as evidence of a parental relationship, as the birth certificate was registered some 10 years after Master A’s birth. The Tribunal places minimal weight on this document, but notes that it is evidence of a consistent story of Mr Ibrahim having given Master A his name.

15. Mr Ibrahim advised the Tribunal that in Kenya, when a child is born you are given a piece of paper from the hospital to note the birth, and when you need a birth certificate you take this piece of paper and a birth certificate is issued. Master A needed identification documentation so they had obtained a birth certificate for him when he was 10. He stated the birth certificate can only record the details from the hospital paper – not insert new details – which had him recorded as the father.

16. There is no dispute that Mr Ibrahim was an Australian citizen at the time of Master A’s birth, nor that he is not the biological father of Master A. As such, the Tribunal must consider the facts outlined above to determine if Mr Ibrahim had a parent – child relationship with Master A at the time of his birth for him to be considered a child of an Australian citizen at birth.

17. The Tribunal worked from the premise that establishing a parental relationship between Mr Ibrahim and Master A should be more onerous and not seen as an easier option for non-biological parents. The Tribunal referred to the Full Court in H v Minister for Immigration and Citizenship, which said: parentage is not just a matter of biology but of intense commitment to one another, expressed by acknowledging that other person is one’s own and treating him as such.

18. The Tribunal finds that Mr Ibrahim had been providing intense commitment by his emotional and financial support to Ms Mohamed from before the birth of Master A until the present day. The Tribunal accepted Mr Ibrahim’s evidence that he had utilized funds in Kenya and transferred additional funds to Ms Mohamed from 2006 when she first contacted him in distress. The Tribunal found that Mr Ibrahim has played a parental role in Master A’s life, sharing in the decision making of his upbringing from the start. Examples of this role include:  supporting Ms Mohamed’s decision to give birth to her child when her family members had pressured her to abort the child; arranging accommodation and medical care before, during and after the birth; providing the child with his name; acceptance by his family and wider community that Mr Ibrahim is Master A’s father; and a knowledge, care and involvement in Master A’s day to day development.

19. The Tribunal does not consider the fact that Mr Ibrahim and Ms Mohamed where not in a relationship at the time of Master A’s birth as a factor to be considered in accordance with the Policy, as at no time has Mr Ibrahim claimed to be the biological parent of Master A. The Policy in respect of non-biological parents requires consideration of whether financial and emotional support had been provided to the mother and child before and at birth. As outlined above, the Tribunal accepted Mr Ibrahim’s evidence that this had been the case. The Tribunal was impressed by the candour of both Mr Ibrahim and Mrs Ibrahim (formally Ms Mohamed) during the hearing, and their desire to protect and support their son.

20. On the basis of the above, the Tribunal is satisfied that Mr Ibrahim genuinely accepted Master A as his son, having informally “adopted” him at birth. He has fully accepted his responsibility as the father of Master A from the time he assisted Ms Mohamed during her pregnancy, and was therefore the Australian parent of the child at the time of birth.

    CONCLUSION

21. The Tribunal sets aside the decision of the delegate of the Minister for Home Affairs dated 19 November 2018, refusing the application of the Applicant for Australian citizenship.

22. The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as he had  a parent, Mr Ibrahim, who was an Australian citizen at the time of his birth pursuant to s16(2)(a).

I certify that the preceding 42(forty-two)  paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

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

Associate

Dated: 18 October 2019

Date of hearing:	18 September 2019
Advocate for the Applicant:	Mr Mohamed Ibrahim
Advocate for the Respondent:	Ms Katie Amanatidis
Solicitors for the Respondent:	Australian Government Solicitor