Jani and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 363

Jani and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 363 (11 April 2025)
Applicant/s:  Haniya Jani
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8059

Tribunal:General Member M. Carey
Place:Melbourne
Date:11 April 2025

Decision:

The decision of 11 September 2024 is set aside and remitted to the Minister with the following Direction:
The Applicant, Haniya Jani, is the child of a parent who, at time of her birth outside of Australia on 8 November 2023, was an Australian citizen within the meaning of subsection 16(2)(a) of the Australian Citizenship Act 2007 (Cth).

.............[SGD]...........................................................
General Member M. Carey
Catchwords
CITIZENSHIP BY DESCENT – applicant child born outside Australia – nominated father an Australian citizen at time of birth – paternity disputed by Minister – DNA testing to determine biological parentage – role of Ministerial policy instructions – whether evidence of biological parentage relevant – whether available evidence can satisfy statutory test for Australian citizen parent at the time of the birth of the child born overseas.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
H v Minister for Immigration and Citizenship and Anor [2010] FCAFC 119; (2010) 188 FCR 393
Secondary Materials
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (17 April 2022); Citizenship Procedural Instruction 23 – Determining Parent-Child Relationships for the Purposes of the Citizenship Act
Statement of Reasons

Haniya Jani is an infant living with her mother, Sania Jani, in Afghanistan. At the present time she is about 17 months old. A birth certificate issued under an Afghani authority records her birth date as 8 November 2023 and her birth location was the in Hewad Shifa Hospital in Kabul. That same certificate records her mother as Sania Jani and her father as Sejad Hussain Jani. At the time of Haniya’s birth, Mr Sejad Jani was back in Australia.
On 8 January 2024, about a month after the birth of Haniya, Mr Sejad Jani lodged an application on Haniya’s behalf for Australian citizenship by descent nominating himself as her Australian citizen parent. An officer of the Department of Home Affairs requested further information in relation to the application on 10 January 2024 and again on 3 June 2024, and on 21 June 2024 invited Mr Jani and his family to undertake DNA testing to confirm a biological parentage. That testing was not conducted.
On 11 September 2024, the delegate for the Minister of Immigration and Multicultural Affairs refused the grant of citizenship by descent to Haniya Jani.[1] The essential reason for the denial was a lack of satisfaction as to Mr Jani’s being the father of Haniya. That decision is now the subject of the present review by this Tribunal.
[1] T3, 13-22. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references.
An application was made on Haniya’s behalf by Mr Sejad Jani to the former Administrative Appeals Tribunal (AAT) on 8 October 2024.[2]
[2] T2, 9-11.
At issue in this review is the question whether, in the absence of DNA testing of a biological parent relationship between Haniya Jani and Mr Sejad Jani, there is a sufficient basis for accepting that at the time of Haniya’s birth on 8 November 2023, Mr Sejad Jani was her parent.
On 14 October 2024, the AAT was abolished, and the Administrative Review Tribunal (the Tribunal) was created. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Legislation
By subsections 16(1) and (2) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) citizenship by descent may be recognised in the following manner:
16 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
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The Minister’s discretion to award citizenship is fettered in two ways by subsections 17(3) and (5) of the Citizenship Act:
17 Minister’s decision
(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(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).
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
National security
(4) If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).
(4A) If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.
(4B) A person is covered by this subsection if:
(a) at the time the person made the application under section 16, the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(b) at the time of the person’s birth, the person had a parent who was an Australian citizen.
Cessation of citizenship
(5) If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.
(Emphasis added)
The Minister’s delegate, in the decision of 11 September 2024 that is presently under review stated that the prohibitions in subsections 17(3) and (5) of the Citizenship Act did not apply to the applicant in this matter.
Interpretation of terms used in the Citizenship Act is aided by the inclusion of statutory definitions in section 3, including the following:
3 Definitions
In this Act:
…
Australian citizen has the meaning given by section 4.
…
child: without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
…
stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone is the stepchild of a person if he or she would be the person’s stepchild except that the person is not legally married to the person’s de facto partner.
The term ‘Australian citizen’ is defined by subsection 4(1) of the Citizenship Act as follows:
4 Australian citizen
(1) For the purposes of this Act, Australian citizen means a person who:
(a) is an Australian citizen under Division 1 or 2 of Part 2; or
(b) satisfies both of the following:
(i) the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;
(ii) the person has not ceased to be an Australian citizen under this Act.
For the guidance of decision-makers, the Minister has issued several policy documents in respect of the grant of citizenship and in respect of the present application, the Australian Citizenship Procedural Instructions – CPI 23 – Determining Parent-Child Relationships for the Purposes of the Citizenship Act (CPI 23) was relied upon by the Minister’s delegate in coming to a decision not to recognise Haniya Jani as an Australian citizen by descent.
Evidence
Mr Sejaz Jani gave evidence at the hearing as to his own background, his Australian citizenship, his engagement and marriage to Sania, the time shared together in Kabul, his return home to Australia and the birth of Haniya on 3 November 2023. It was useful to have this evidence to provide context to the documentation supplied.
Mr Jani was born in Afghanistan 20 May 1996. He lost his parents at two years of age and was raised by his aunt and uncle. He was told that his mother was killed and that no one knew what had happened to his father. He has no recollection of his birth parents.
He remained in Afghanistan until about the age of 13 or 14 years when he came to Australia with his aunt and uncle and continued his schooling to year 12 level at Dandenong High School. He did a diploma course at TAFE in computing for about six months before transferring to computing science at Deakin University. He remained only for about a month at Deakin before leaving and starting work firstly at a frozen pizza factory in Campbellfield from April 2017 to November 2020 before changing jobs to a seating manufacturer in Wantirna, closer to home in Dandenong.
Mr Jani told the Tribunal that in late 2020, his aunt travelled to Pakistan for the wedding of her daughter. Mr Jani did not travel to Pakistan on this occasion. While at the wedding, his aunt was introduced to Sania, his future wife. He explained that his aunt formed a favourable impression of Sania and considered her a suitable wife for her nephew and discussed a proposal of marriage. Mr Jani was shown a picture of Sania and he consented to the proposal and there was an engagement party on 5 January 2021 to celebrate the announcement. Mr Jani was also not present at that time. He explained that he didn’t have an Australian passport at that time and could not easily travel on his Afghan papers to Pakistan. He said that he and Sania would talk over the phone or internet every night from then on.
On 17 September 2022, Mr Jani acquired Australian citizenship.[3] He told the Tribunal that he had to await the receipt of his Australian passport on 22 October 2022 before he could travel to Afghanistan to marry his fiancé.
[3] T4, 37 is a photograph of Mr Jani’s certificate of Australian citizenship signed by the Minister for Immigration, Citizenship and Multicultural Affairs.
On 4 November 2022, Mr Jani departed Tullamarine Airport in Melbourne for Kabul via Dubai for his wedding to Sania. He stayed in Dubai for three days and told the Tribunal that during that time he spent $20,000 of his own money purchasing gold jewellery as gifts for his wife to be.[4]
[4] T19, 115 is copies of his travel itinerary in in November 2022 showing his departure from Melbourne on 4 November and from Dubai on 8 November 2022 bound for Kabul.
Exhibit R1 is a document dated 19 November 2024, tendered on behalf of the Minister, which is a Movement History of Mr Jani showing his entry and exits from Tullamarine Airport. These confirm his departure on 4 November and return to Australia on 15 May 2023.
Sania and Mr Jani were married on 14 November 2022 in the Mujalal Wedding Hall in Kabul. Mr Jani had supplied copies of the wedding reception invitations[5] as well as the original Marriage Certificate and the English translation Marriage Certificate issued by the Supreme Court of the Islamic Republic of Afghanistan.[6]
[5] T19, 119-20.
[6] T7, 58-62 is the English translation certificate while T13,86-96 is the original.
Mr and Mrs Jani stayed with her parents for the first month of marriage until they could find an apartment on their own. Mr Jani was due to return to Australia in February 2023, but this was delayed, principally because he needed copies of the marriage certificate to be issued so that he could arrange passage and visas for his wife. He said that this was delayed until February 2023, but Sania shortly became pregnant. Mr Jani told the Tribunal that it was not the intention of the couple to have children at that early stage of the marriage but that once the pregnancy was confirmed he remained another three months in Kabul.
He returned to Melbourne arriving on 15 May 2023 but continued to maintain telephone and internet contact with his wife daily. Sani remained on her own in Kabul and relied upon the assistance of supportive neighbours to help her with getting provisions. Mr Jani said that women under the current Taliban regime in Kabul may not travel unescorted by a close male relative and this restricts her in daily life.
Haniya Jani was born on 8 November 2023 at the Hewad Shifa Hospital in Kabul. A birth certificate issued by the relevant Afghan agency identifies her parents as Sania and Sejad Jani.[7]
[7] T4, 39 is a photograph of Haniya Jani’s birth certificate issued by the National Statistics and Information Authority of the Islamic Republic of Afghanistan in December 2023. At T7, 63 there is an English translation version of the birth certificate which identifies the hospital.
At some later stage on 27 May 2024, Haniya Jani was issued a National Identity Card by the Islamic Republic of Afghanistan that also attests to her birth date as 8 November 2023.[8] Her mother, Sania Jani, has also obtained a passport from the Afghani authorities with a date of issue as 22 April 2024[9] that now gives her a right to travel although Mr Sani, in his oral evidence, stated that this was not actually issued until five months ago, or late 2024. At present, she and Haniya remain in Kabul.
[8] T11, 79 is a photocopy of Haniya Jani’s National Identity Card.
[9] T11, 80 is a copy of the main identification page of the passport holder, Sania Jani.
Mr Sejad Jani remained in Melbourne following his return on 15 May 2023. He has worked since that time as a warehouse voice picker for Woolworths at a distribution centre in Mulgrave in Melbourne.
Mr Jani was cross-examined as to his absence from his wife during the majority of the pregnancy and the birth of Haniya as well as his absence from Afghanistan ever since, where he could support them personally. He agreed that he had not, and he accepted that this absence was inconsistent with ordinary parental obligations.
It was also apparent from his answers that there are separate applications in preparation or on foot for his wife and child for permission to join him in Australia.
Mr Jani was questioned concerning the absence of DNA testing to establish his status as the biological parent of Haniya. He answered that he was willing to perform the testing but that such testing was not available in Kabul.
The evidence provided by the Minister in the Tribunal documents shows that on 5 July 2024 Mr Jani did request the Minister’s delegate to provide details of where the testing could be done. There was a reply on 15 July 2024 that he should ‘engage with a National Association of Testing Authorities (NATA) accredited facility in Australia by 18 August 2024. A DNA sample collection is currently unavailable in Afghanistan, DNA sample collection will be coordinated by the Australian High Commission in Islamabad or the Australian Embassy in Tehran.’[10]
[10] T18, 110.
Mr Jani gave evidence that his wife, Sania, was alone and without a close male relative to escort her around and that women in Afghanistan are not allowed to go out of the house too much without a male and she could not be expected to travel alone without male escort to either Iran or Pakistan in order to do the recommended testing.
Contentions
There is no question that Mr Sejad Jani is an Australian citizen and has been so since 17 September 2022, prior to his marriage and the birth of Haniya Jani.
The Minister contends that there is no sufficient evidence submitted on behalf of the Haniya Jani to demonstrate that at the time of her birth, she is the child of Mr Sejad Jani. Accordingly, the Minister contends that I could not be satisfied of the requirement of paragraph 16(2)(a) of the Citizenship Act that requires her, as a person born outside of Australia on or after 26 January 1949, that to demonstrate that she is the child of ‘a parent’ who was ‘an Australian citizen at the time of birth’.
The principal documentary supports to Haniya Jani’s application are the Marriage Certificate of 14 November 2022 and her birth certificate attesting to her birth on 3 November 2023.
The Minister submits that though this is evidence that might be accepted, it ought not to be regarded as sufficient. I was referred by the Minister to that part of CPI 23 that states:[11]
A birth certificate… is evidence only that the child's birth has been registered. By itself, it is not reliable evidence of parentage as these documents are issued on the basis of self-reported information that is not independently verified by the registration authority. In circumstances where the application is accompanied by little other information apart from a legitimately issued birth certificate, decision makers should seek further information to satisfy themselves of the parent-child relationship.
[11] T22, 153 reproduces part of paragraph 3.4 of CPI 23.
The ‘further information’ that CPI-23 urges decision-makers to seek then focusses on DNA testing, and the Minister’s Statement of Facts Issues and Contentions dated 17 March 2025 (R SFIC) contends that testing is appropriate ‘where an application has been made in a country where there is a high incidence of document fraud, where the official documentation is unreliable and where there is a lack of verifiable information regarding the claimed relationship.’[12]
[12] R SFIC [24].
The Minister submits that without the evidence from DNA testing to establish Mr Jani’s status as Haniya’s biological parent there is sufficient doubt as to Mr Jani’s paternity which ought to be assessed by various factors cited by the CPI 23 that may include:[13]
·     evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
·     evidence that the claimed Australian citizen or permanent resident parent 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, antenatal and postnatal care;
·     evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; …
[13] R SFIC [25] citing CPI 23 paragraph 3.4 in part; T22, 154.

The Minister contended that Mr Jani’s evidence, including his responses in cross-examination should lead to the conclusion that there was insufficient evidence that the claimed parent-child relationship existed at the time of Haniya’s birth and pointed to:
(a)Mr Jani’s absence for much of Sania Jani’s pregnancy and the birth on 8 November 2023 of Haniya.
(b)His answer in cross-examination that such absence was inconsistent with his ordinary obligations as a husband and father.
(c)The fact that Mr Jani has never physically seen or held his daughter or provided personal care and support to Sania and Haniya Jani since returning to Australia on 15 May 2023, some months before Haniya’s birth.
(d)His further acceptance in answers in cross-examination that this absence of presence was inconsistent with his ordinary obligations as a husband and father.
(e)The limited evidence that he provided financial support to his family.
Consideration
I note at the outset, that the Minister does not bring any evidence to disputing the authenticity of either the Marriage Certificate of 14 November 2022 or the birth certificate of Haniya Jani on 3 November 2023. There was no allegation of fraud in the preparation of either of these documents and no evidence as to the general unreliability of documents issued from the regular authorities in Afghanistan relating to births and marriages.
Mr Sejad Jani’s name appears as the groom on the marriage certificate of 14 November 2022 and as father on the birth certificate of Haniya Jani.
Much of the Minister’s original decision, and the submissions on review, focusses on the need to confirm a biological relationship between Haniya and Mr Sejad Jani. CPI-23 cautions against acceptance of birth certificates because, as mentioned above, they are said to be ‘evidence only that the child's birth has been registered. By itself, it is not reliable evidence of parentage as these documents are issued based on self-reported information that is not independently verified by the registration authority …’ Further, the resort to DNA testing of the parties is said to be the best evidence to confirm parentage.
This tendency to discount evidence of parentage from the regular certifying bodies of a foreign state and emphasis testing for biological parentage is at odds with the proper meaning of the work ‘parent’ as used in subsection 16(2) of the Citizenship Act.
In H v Minister for Immigration and Citizenship and Anor the Full Federal Court dealt with two appeals from decisions of the former AAT concerning the meaning of the words ‘parent of the person’ as they are used in subsection 16(2) of the Citizenship Act.[14] In H the applicant was an infant born in China in September 2008 and his putative father, an Australian citizen, married his mother three months earlier in June of that year. On review of the denial of citizenship, the Tribunal affirmed the decision on the grounds that the word ‘parent’ in the Citizenship Act meant ‘biological parent’ and the evidence accepted was to the effect that the putative father was in a different country at the time of conception. In the other appeal considered at the same time, Vanessa McMullen was born in Fiji in 1988 and applied for citizenship twenty years later. Her nominated Australian citizen father was not the biological father, this being demonstrated by DNA testing. The facts of the case that were accepted by the Tribunal were that Mr McMullen accepted paternity in 1988 shortly after the birth of the applicant on the basis of blood tests then performed and provided financial support for Vanessa and her mother, including purchase of a house in Fiji for them to live in, throughout the childhood years. There was regular telephone contact, annual visits and Mr McMullen’s existing family accepted Vanessa as Mr McMullen’s daughter. It was not until 1999 when DNA testing showed the absence of a biological relationship between Vanessa and her father. The AAT nonetheless accepted the evidence of the personal attachment and the parental relationship by Vanessa and her father. This led to the remittal of the matter to the Minister to determine whether at the time of birth the biological father was an Australian citizen, failing which then to accept Mr McMullen as the applicant’s father.
[14] [2010] FCAFC 119; (2010) 188 FCR 393 (‘H’).
The Court, on appeal, noted that the Minister contended that the word ‘parent’ was to be confined to biological parents. The Court gave a detailed analysis of the history of the legislation as well as related statutes referred to in the Citizenship Act, went on to conclude:[15]
127 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.
128 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: see, eg, s 8 of the Citizenship Act; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
129 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: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). 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.
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. 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. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.
131 We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister’s construction (see [79]). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.
[15] Ibid 426-7 [127]-[131].
Following this decision, a genetic link between father and daughter may be established by DNA testing but parenthood is not defined in that narrow range. In the absence of such genetic testing, the relevant considerations will require me to examine the available evidence to determine whether the status and relationship is established. That would involve examination of the degree of commitment by whether the parent acknowledged the relationship with the child and whether the parent treated the child as their own.
The Minister submitted to me that regardless of the circumstances in other cases where no biological relationship was acknowledged, DNA testing should be relevant where, as is the case here, the Australian citizen claims to be the biological parent. Mr Jani does indeed claim to be the biological parent. However, the test to be applied by the Tribunal in respect of subsection 16(2) of the Citizenship Act of parenthood is not confined to biology and is clearly to be examined by status and relationship. The test is not narrowed by reason of Mr Jani’s claim to being the biological father of Haniya. There is no basis to do so based on the language of the statute as interpreted by the Full Court.
As the Court says, it is relevant to examine 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’.[16]
[16] Ibid 427 [130].
Turning to that evidence, I note that there is no evidence suggesting that the documents presented by Mr Jani in relation to his marriage and the birth are not genuine. The decision record of 11 September 2024 did state that the prohibition on approval in subsection 17(3) of the Citizenship Act by reason of the Minister not being satisfied of the identity of the person seeking citizenship did not apply in this case. That state of satisfaction could only have been attained at that time having regard to the sole identifying document being Haniya’s birth certificate issued in Afghanistan. No explanation is offered as to why Haniya’s identity is readily accepted on such a basis while the remainder of the certificate identifying her parents, including Mr Sejad Jani, is to be doubted.
Indeed, none or Mr Jani’s oral testimony before the Tribunal concerning the events before, during and after Haniya’s birth was challenged in cross-examination.
In respect of Mr Jani’s conduct before and at the time of the birth, I find the following relevant facts based on the evidence:
(a)Mr Sejad Jani entered into a bona fide marriage with Sania, the mother of Haniya, on 19 November 2022 as evidenced by the subsequent Marriage Certificate issued by the Supreme Court of the Islamic Republic of Afghanistan.
(b)Following that marriage the couple lived together in Kabul until it was time for Mr Jani to leave. That date was extended by three months due to Mr Jani’s need to obtain authorised copies of the relevant marriage certificate, a step taken to assist in bringing his wife to Australia on a valid visa.
(c)During that period Sania became pregnant and Mr Jani remained with her during the early stages of the pregnancy.
(d)Mr Jani’s absence from Afghanistan for the period 15 May 2023 when her returned to Melbourne and the birth of Haniya on 8 May 2023 is not evidence of his abandonment of the marriage or lack of acknowledgement of his child. He returned to work to earn money, some of which was applied to the care and support of his wife. He remained in contact and talked daily with Sania via mobile telephone or the internet. I accept his unchallenged evidence on these matters as evidence in support of his continuing close personal relationship with his wife.
(e)At the birth of Haniya on 8 November 2023, her mother Sania, registered the birth acknowledging Sejad Jani as the father. That step was an ordinary birth registration and I accept that, in the absence of any evidence to the contrary, it was a truthful report of the circumstances of the birth and parentage of Haniya.
(f)Mr Jani’s acceptance of the propositions put to him that his absence at the time of birth and continued absence from his wife and daughter was inconsistent with ordinary obligations as a husband and father was an acceptance based on separation. The separation is accounted for by the fact that he is a citizen of Australia while his family members are citizens of Afghanistan. His prospects for earning sufficient support for his family are brighter in Australia than in Afghanistan. It is clear that he is attempting to end that separation by reuniting his family in Australia. I accept the evidence that the grant of a passport to Sania in 2024 is a further step toward achieving that goal and is consistent with his continued close relationship with and support for his wife and daughter.
Taking all the evidence and submissions into consideration, I conclude that at the time of her birth on 8 November 2023, Haniya Jani was the child of Sejad Jani, an Australian citizen within the meaning of paragraph 16(2)(a) of the Citizenship Act. The decision of the Minister’s delegate of 11 September 2024 is set aside and remitted to the Minister with the direction in accordance with this conclusion.
Date(s) of hearing: 3 April 2025
Solicitors for the Applicant: Self-represented
Solicitors for the Respondent: Madelyn Balinski, Minter Ellison