Kivalu and Minister for Home Affairs (Citizenship)

[2018] AATA 5156

Kivalu and Minister for Home Affairs (Citizenship) [2018] AATA 5156 (17 August 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1150

Re:Jayden Sione Ngalu Havea Kivalu by his mother Halaevalu Kivalu  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Ian Hanger AM QC 

Date:17 August 2018

Place:Canberra

The Tribunal sets aside the decision under review and remits the decision to the Minister for reconsideration in accordance with the direction that the applicant is eligible to become an Australian citizen at the time of the applicant’s birth.

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

Deputy President Ian Hanger AM QC 

Catchwords

AUSTRALIAN CITIZENSHIP – adoptive mother – cultural adoption – birth certificate – Bridging Visa E – legal adoption – biological parent – ordinary meaning of the word “parent” – parent’s conduct before and at the time of birth

Legislation

Australian Citizenship Act 2007 ss 16 (2), 52(a)

Cases

H v Minister for Immigration and Citizenship (2010) 272 ALR 605 paras [127], [130]-[131]

REASONS FOR DECISION

17 August 2018

1. The applicant seeks to review the decision of the delegate of the Minister of Immigration and Border Protection under section 52(a) of the Australian Citizenship Act 2007 (the Act) to refuse Jayden Kivalu’s application for Australian citizenship.

2. People involved:

   ·Jayden Sione Ngalu Havea Kivalu (Jayden) DOB March 2013, the applicant by his adoptive mother;

   ·Halaevalu Kivalu the adoptive mother of Jayden;

   ·Halafihi Kivalu the adoptive father of Jayden;

   ·Anddreanna Lepa’I’atatu Leka the birth mother of Jayden; and

   ·Semisi Havea Leka the birth father of Jayden.

   Facts

3. The facts are non-contentious. Jayden was born in California to Mr and Mrs Leka in March 2013.

4. Mr and Mrs Kivalu met in 2004 and were married on 30 March 2007. Mrs Kivalu has three children from a former marriage and one, Jariah, from this marriage born in 2009 as a result of in vitro fertilisation. Despite the fact that in vitro fertilisation was hard on Mrs Kivalu she and her husband wanted another child as company for Jariah. Unfortunately she suffered three miscarriages between 2010 and 2012 and retried in vitro fertilisation. In August 2012 that resulted in another pregnancy. The pregnancy also ended in a miscarriage quite late in pregnancy and Mrs Kivalu lost a lot of blood. After that, and suffering from high blood pressure, Mr and Mrs Kivalu decided that they could not risk another pregnancy.

5. Mr Kivalu commented on Facebook about the couple’s sadness. Mr Leka who is the third cousin of Mr Kivalu asked Mr Kivalu to telephone him and Mr and Mrs Kivalu and Mr and Mrs Leka had a conversation on speaker phone.

6. Mrs Leka said how sorry they were to hear of the miscarriage. They then said that Mrs Leka was pregnant and asked if the Kivalus wanted the baby. They said that they had not planned on having another baby, and were shocked to find that she was pregnant. Mrs Leka said, “if you would like to have the baby, we would love you to take it as we can’t afford another child emotionally, physically and most importantly, financially. We feel that this could be a blessing to both our families.”

7. Mr and Mrs Kivalu have always been very close to Mr and Mrs Leka. They grew up close together in Tonga and the two men consider each other as more like brothers. They had also spent time together in Utah, USA in 2000. Mr and Mrs Kivalu had also helped Mr and Mrs Leka financially to the amount of approximately $6000 or $7000 over the years to help them pay for rent, or to repair their car.

8. Mrs Kivalu’s 25-year-old son Jonathan and daughter Jana provided statements saying that they recall their mother discussing the proposed adoption with the family in early 2013. They said that this type of adoption known as cultural adoption is fairly common in Polynesian families and that they supported the proposal.

9. The parties kept in touch with each other during the pregnancy. Mrs Kivalu says that she tried not to set her heart on having the baby as she wanted Mr and Mrs Leka to have the option of changing their minds once they had seen the baby. That is perfectly understandable but I am not sure that she succeeded in that respect.

10. She and her children discussed names for the baby. She began to get all the baby paraphernalia together and to get a nursery ready. Jana surrendered her room for the baby.  Mrs Kivalu began buying baby clothes in yellow as she did not know what sex the baby would be. She and Mrs Leka discussed the possibility of the baby being born in Australia but that was not possible because of Mrs Leka’s other children’s needs at home. At some point they were told that the baby would be a boy and were delighted.

11. In March 2013, Mrs Leka phoned and advised that her waters had broken, that she was about three months premature, that she was losing a lot of blood and asking that Mrs Kivalu come over to America as soon as she had had the baby. Mrs Kivalu sent her $1000 to help with nightgowns and other things that she might need in hospital because Mr Leka had stopped work to look after his five children while his wife was in hospital. As soon as Mrs Kivalu arrived in America she gave him $1000 to help him provide for his five children. Both Mr and Mrs Kivalu gave evidence that they periodically gave money to relatives to help them out and so the giving of money in this case is of less significance than it would be if the gift was an exceptional gift.

12. Jayden was born three months premature but as soon as he was born Mrs Kivalu travelled to America with her daughter Jariah on a three-month visa. She went straight from Los Angeles airport to see the baby in hospital before checking into a hotel. Thereafter she attended the hospital twice per day.

13. Mrs Kivalu had further discussions with the Lekas about the proposed adoption wanting to ensure that they had not changed their minds about keeping the baby. Mr Leka said, “No, we haven’t changed our mind. We don’t want the baby, and we know for certain that God wanted you to have the baby for us so that Jariah can have a little sibling to play with. We understand you have been here two months now and we will help you get this sorted out.” They did not as yet have a birth certificate and Mrs Kivalu gave them $30 to enable them to get one.

14. Mrs Kivalu’s daughter Jariah was not allowed into the hospital for health reasons and fretted when she had to be left behind during her mother’s hospital visits and so Mrs Kivalu paid for her sister, Fonu to fly from Sydney to look after Jariah so that she could visit Jayden. Once Fonu was present to look after Jayden, Mrs Kivalu visited the hospital five times per day because it was within walking distance of her hotel.  I have been shown photos of Mrs Kivalu with Jayden aged a few weeks, nursing the baby to her bosom and a picture of Fonu nursing the new baby. Mrs Kivalu followed the hospital’s advice by keeping a small soft blanket type doll against her skin which she would leave with Jayden in his crib when she was not there in person so that he would recognise her scent.

15. Mrs Leka only went to the hospital to sign forms for immunisation etc. She did not want to show attachment to Jayden.

16. Given the prematurity of the baby, Mrs Kivalu had not had time to consider the legal requirements relating to the possible adoption of Jayden. The extent of her discussion about that was a discussion with Mrs Leka in which Mrs Leka had said that she would put Mrs Kivalu’s name on the birth certificate and that after that it would be easy for her to adopt the baby. That did not sound right to Mrs Kivalu but she agreed to discuss it with Mrs Leka on her arrival in America. In fact the birth certificate did not list Mrs Kivalu as the mother. The law did not permit that.  The birth certificate shows the true birth parents but gives the Kivalu surname together with a couple of middle Kivalu family names that are in accordance with Tongan tradition. That is consistent with an acknowledgement by both families that they regarded Jayden as being the child of the Kivalus.

17. Their expenses were amounting and Mrs Kivalu managed to get accommodation in Ronald McDonald house and a social worker arranged for half of the funding of a monitor which cost more than $3000 to enable the premature Jayden to be released from hospital and put on a plane for Australia. The Kivalus paid the other $1500. Mrs Kivalu also undertook a CPR first aid course in USA so that when she took Jayden she would know what to do if he stopped breathing.

18. Mrs Kivalu made appointments with different organisations recommended by social workers with a view to organising and adoption but was told that the process would take about a year and cost $20,000. She did not have the money and her Visa was about to expire. It was recommended to her that she should get a court order enabling her to take Jayden to Australia. By this time she had Jayden’s birth certificate and so she applied for a temporary guardianship order and with the birth parents attended court in California. The Lekas informed the court that they consented to the proposed guardianship order and she was granted temporary guardianship on 29 May 2013. Given the imminent expiration of her Visa the court granted her an earlier court date for the final hearing and on 10 June 2013 she was granted permanent guardianship by the court. She was then able to discharge Jayden out of hospital, apply for a United States passport for him, and on advice from Australian Department of Immigration and Border Protection applied for an ETA visa to enter Australia for 12 months. That Visa would also require him to leave the country every three months. The Lekas consented to the grant of the Visa enabling the Kivalus to take him out of the country as required.  Jayden is presently on a Bridging Visa E.

19. Mr and Mrs Kivalu as well as Mr and Mrs Leka belong to the Mormon religion and have expressed concern from the religious point of view that they are not able to “seal Jayden in the temple” as their own child without legal adoption papers from Australia. Mr and Mrs Leka provided statements for these proceedings to the effect that both before and after the birth of Jayden they and the Kivalus regard the Kivalus as Jayden’s parents.

20. Since arriving in Australia Mr and Mrs Kivalu have borne all of the costs relating to the care of Jayden. That is not insignificant because Jaden does not have a health care card and on one occasion they had to pay a great deal of money for his hospitalisation for treatment of a boil. They live in Queanbeyan. Jayden has his own bedroom and they are providing a more than satisfactory upbringing, living environment and education for Jayden.

21. I have no doubt that Jayden is with a loving and supportive family.

    Relevant law

22. In H v Minister for Immigration and Citizenship (2010) 272 ALR 605 the Full Court of the Federal Court decided that the meaning of the word “parent” in the Australian Citizenship Act is not limited to biological parent. It said,

    “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 s16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s16(2) has the meaning it bears in ordinary contemporary English usage. Legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intent and of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.” (at [127])

    “………. 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 birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledges 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 the person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of birth…” (at [130])

    “… We can discern no relevant justification for holding… That a person can only be a “parent” within the meaning of s16(2) where it can be established that he or she has a relevant genetic link to the applicant…” (at [131])

23. Based on the material that I have set out in some detail above, and on the impression I formed of the witnesses in this hearing I am satisfied that, while not being the biological parents of Jayden, Mr and Mrs Kivalu are and have always been his parents within the extended meaning of that term as set out above. They treated him as their son from before birth and cared for him immediately after birth while he was in a humidity crib at the hospital. Mrs Kivalu did all the things that his mother would normally do, and did so, with the consent and approval of the birth mother. Before he was born, he had been given his name and the family names of Kivalu by his adoptive family. They prepared for his birth by painting his bedroom and setting it up for his arrival in Australia. They acquired the objects that are normally required for a new baby. In the weeks after his birth they acquired the expensive apparatus necessary to enable a premature baby to undertake the flight to Australia and Mrs Kivalu undertook a specific first aid course.

24. I am satisfied that they were the parents of Jayden at the time of his birth and have always cared for him as their own. I am satisfied that the applicant, Jayden, had a “parent” who was an Australian citizen at the time of his birth for the purposes of s16(2)(a) of the Act.

25. The Decision of the Delegate of the Minister for Home Affairs dated 6 February 2018, refusing the application of the applicant for Australian citizenship, is set aside. The matter is remitted to the Minister for reconsideration in accordance with the direction that the applicant is eligible to become an Australian citizen as his parent Halaevalu Maureen Kivalu, was an Australian citizen at the time of the applicant’s birth.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of  Deputy President Ian Hanger AM QC

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Associate

Dated: 17 August 2018

Date of hearing:	16 August 2018
Solicitor for the Applicant:	Mr Sean Kikkert
Solicitors for the Respondent:	Clayton Utz