Koka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2019] AATA 5289
•10 December 2019
Koka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5289 (10 December 2019)
Division:GENERAL DIVISION
File Number: 2019/1418
Re:Mr Bledi Koka
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO Member
Date:10 December 2019
Place:Melbourne
The Tribunal sets aside the decision of the delegate of the Minister for Home Affairs dated 18 February 2019, which refused the Applicant’s application 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 Koka, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).
......................[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 – adopted parent – ordinary meaning of parent – if limited to 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)
Adoption Act 1984 (Vic)
Australian Citizenship Act 1948 (Cth)Australian Citizenship Act 2007 (Cth)
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Kivalu and Minister for Home Affairs (Citizenship) [2018] AATA 5156
Masson v Parsons [2019] HCA 21Secondary Materials
Citizenship Policy, 1 June 2016 (provides guidance on the interpretation and exercise of power under the Act)Westlaw AU, The Laws of Australia (online at 8 February 2019)
REASONS FOR DECISION
Ms Anna Burke AO Member
10 December 2019
Mr Bledi Koka (the Applicant) is a 37 year old Albanian national with Italian citizenship who was adopted by an Australian citizen on 17 May 1995. Mr Koka arrived in Australia on 2 September 2016 on a Student Visa. Mr Koka applied to become an Australian citizen by descent on 23 April 2018 in accordance with section 16(1) of the Australian Citizenship Act 2007 (the Act).
In his application for Australian citizenship by descent, he records his birth parents as:
·Pullumb Koka, male (adoptive parent); and
·Ganimet Koka, female.
Mr Pullumb Koka was born in Albania and obtained his Australian citizenship by conferral on 24 January 1955. Mr P Koka met the Applicant’s mother in Albania in 1992, and they married in 1993; in 1995 he adopted the Applicant and in 1997 he died. A translated copy of the decision of the District Court of Durres on the child adoption matter states:
Firstly…the adoption is in all interests of the child, for the petitioner has full conditions to educate the child, he is graduated, has worked as journalist and columnist of the Voice of America and has also optimal economical conditions, from which the child could inherit a high family pension after possible death of the petitioner.
Above all the child would have a father, because with the natural father he has never lived.
The petitioner enjoys a good health, has never been condemned and has no impediments to the adoption.
The parents of the child and the State Committee of Adoption have approved the adoption.
Secondly with the adoption is legitimised the report of the petitioner with the child Bledi Hasanaj, because they lived together since two years like father and son, since the petitioner married his mother.
The adopted child takes the fatherhood of the applicant’s and his surname “Koka”.
On 18 January 2019, the Department requested additional information to demonstrate that the Applicant had at least one parent who was an Australian citizen at the time of his birth. The letter stated: you are required to provide evidence that a parent-child relationship existed between you and Mr Koka immediately prior to and at the time of your birth. The Applicant submitted a response on 8 February 2019, in which he stated:
When my mother, Ganimet Koka, met my father in 1992, I was 10 years old. He moved into my home and he and my mother started a relationship. They got married in 1993, and we lived as a family during these years. He was the first father figure I had known. He used all his finances to support us as a family. He was present at my baptism, and this became the norm at all my events. As a 10-year-old boy, it was an important stage of my development and he taught me everything about growing up and being a man.
In 1995 my mother became sick with leukaemia. During this time, my father was my sole carer. He would cook me breakfast every morning and take me to school. After school, he would pick me up and take me to see my mother in hospital. On these trips he would teach me about history and tell me stories about life. We built such a close bond. Because of the feeling and close relationship we had, he made his fatherhood official in 1995 through adoption. Fortunately after about six months, my mother recovered. However, he would continue to help me with my school work and provide advice and nurturing through my early teenage years. He represented me at school events and parent teacher interviews. It was as true of a father-son relationship as anyone, except for the blood. He said to me before my adoption, “Bledi, it is not the body and the blood that makes a father and child, but the heart”. And that was our relationship.
When he had a heart attack one night in 1997, it would prove to be the most devastating night of my life. Three days later he would pass away, and I lost my father. It was his great desire that his legacy would continue through me. All his history became my history, and all his family ties are my ties too. My birth certificate says only he is my father. When he adopted me, he gave me his fatherhood, his love and his surname, and Koka will always be my surname.
I’m not sure what more I can express to show the relationship I had with my father and his family. A dad is a big part of a boy’s life, and although our time together was regrettably not very long, and the relationship did not commence at the time of my birth, his impact on my life and our bond is the same as a birth father raising his son. That will never change.
On 18 February 2019, 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. The delegate’s decision record finds:
To be eligible for Australian citizenship by descent, you must have had at least one parent who was an Australian citizen at the time of your birth.
.. in the absence of any evidence to support your claim of a parent-child relationship with your claimed Australian citizen parent at the time of your birth, I am not satisfied that you had a parent who was an Australian citizen when you were born.
On 14 March 2019, an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (AAT), claiming that the decision is wrong in law.
At the hearing, conducted on 1 November 2019, the Applicant was represented by Mr Lorenzo Boccabella of counsel. Ms Eleanor Cannon, solicitor at Clayton Utz, 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.
ISSUE
The issue in contention is whether Mr P Koka was a parent of the Applicant at the time of birth in accordance with section 16(2)(a) of the Act.
LEGISLATION
Section 6 of the Act defines “responsible parent” as follows:
(1)For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a)the person is a parent of the child except where, because of orders made under the Family Law Act 1975 , the person no longer has any parental responsibility for the child; or
(b)under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c)under a parenting order the person has parental responsibility for the child's long-term or day-to-day care, welfare and development (whether or not the person is a parent of the child); or
(d)the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
(1A) In paragraph (1)(a):
"parental responsibility" has the same meaning as in Part VII of the Family Law Act 1975 .
(2)Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975 . (definition in family law includes an adopted child)
Section 13 of the Act outlines citizenship by adoption as follows:
Citizenship by adoption
A person is an Australian citizen if the person is:
(a)adopted under a law in force in a State or Territory; and
(b)adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and
(c)present in Australia as a permanent resident at that time.
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
Section 17 of the Act 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).
Subdivision AA of the Act outlines citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement.
Section 19B of the Act provides a simplified outline of this Subdivision:
You may be eligible to become an Australian citizen under this Subdivision if you are adopted outside Australia by at least one Australian citizen in accordance with:
(a) the Hague Convention on Intercountry Adoption; or
(b) a bilateral arrangement.
You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.
You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.
Section 19C of the Act outlines the application and eligibility for citizenship in these circumstances:
(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).
Eligibility
(2) A person (the applicant) is eligible to become an Australian citizen if:
(a) the applicant is adopted in a Convention country or a prescribed overseas jurisdiction by:
(i) a person (the adopter) who is an Australian citizen at time of the adoption;
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.
Chapter 5 of the Policy relevantly provides:
Status of the person’s parent
It is necessary to determine the citizenship status of an applicant’s parent at the time of the applicant’s birth. For the purposes of s16(2), for example, an applicant would not satisfy the eligibility criteria if:
·the applicant’s parent at the time of the applicant’s birth acquired Australian citizenship after the birth of the applicant or
·after the applicant’s birth, the applicant acquired a parent (for example, by adoption) who was an Australian citizen at the time of the applicant’s birth or
·the applicant’s parent at the time of the applicant’s birth had previously been an Australian citizen, but had ceased to be an Australian citizen prior to the applicant’s birth.
Chapter 20 of the Policy relevantly provides:
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
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.
Section 53 of the Adoption Act 1984 (Vic) (the Victorian Adoption Act) provides the general effect of adoption orders:
(1) Subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order—
(a) the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents, and the adoptive parent or adoptive parents shall be treated in law as the parent or parents of the child, as if the child had been born—
(i) to the adoptive parent; or
(ii) to the adoptive parents;
(b) the adopted child shall be treated in law as if the adopted child were not a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the child;
(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection so far as they are relevant;
(d) any guardianship of the adopted child ceases to have effect; and
(e) any previous adoption of the child (whether effected under the law of Victoria or otherwise) ceases to have effect.
CONSIDERATION
The meaning of the word “parent”
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.
In H v Minister for Immigration and Citizenship [2010] FCAFC 119, 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. The Court found that being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. 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...
We accept that, where a child is said to be a child of a person, then that person is ordinarily described as a parent of the child. Where Parliament states in an Act that a child is a child of a person, then, absent any contrary indication, it is reasonable to assume that Parliament intended that that person has the status of parent of the child, if that status is relevant for the operation of the Act. We also accept that, having regard to the definition of “child” in the Citizenship Act, the Act clearly contemplates that, at least for some purposes (including where the word “child” is expressly used), the status of being a parent is not limited to a biological parent. However, the use of the words “parent” and “child” in a correlative sense may weaken, depending on the context in which the words “child” (in the sense “child of a person”) or “parent” are used. Having regard to the absence of the word “child” from s 16(2), the definition of that term in s 3 does not greatly assist in answering the present question.
Turning from these statutory definitions to the precise words of s 16(2), the Minister maintained that s 16(2)(a) requires that the citizen parent is a parent of the applicant “at the time of the [applicant’s] birth”. In other words, the Minister argued that, for purposes of s 16(2)(a), parenthood must be established as at the time of the birth. That is, on this construction of s 16(1)(a), “at the time of birth” qualifies both the status of being a parent and the parent’s citizenship. This was said to be the natural effect of s 16(2)(a). If this were the correct construction, then, so the Minister argued, his argument as to the meaning of “parent” in s 16(1)(a) was strengthened.
The Court also addressed the issue of timing, stating in part:
As it happens, we accept the Minister’s submission as to timing, although we reject the latter submission as to its consequential support for his case. Whilst commonly one may assume that a person accepting the status of a parent at the time of a birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship: see, for example, Magill v Magill [2006] HCA 51; (2006) 226 CLR 551. Indeed, the appeal in McMullen provides a further example. Accepting that the Minister is correct on the timing issue, this does not favour the limitation of parent to biological parent only. Even on this construction s 16(2)(a) does not in terms preclude attributing parent status to a person identified as a parent at the time of birth even though not a biological parent.
The Minister’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth. Such a situation could only occur, of course, if the Minister’s submissions as to the meaning of parent were rejected.
The Court further addressed the legislative history of section 16 of the Act, stating in part:
Having regard to the legislative history of s 16 (which is discussed in detail below), however, the construction as to timing advanced by the Minister is to be preferred. Having regard to that legislative history, the clear better view is that s 16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. As the Minister submitted, there is no indication in the extrinsic materials that Parliament intended to change this basic test. This construction is also consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent ... is an Australian citizen ... at the time the person is born”. Other provisions that support the Minister’s position on timing include ss 17(4) – (4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. Similar language appears in the context of national security exceptions to other routes to citizenship: see ss 19D(7) (adoption under the Hague Convention), 21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship).
Section 10B of the Australian Citizenship Act 1948 (Cth) (the Repealed Act) clearly articulates that an applicant for citizenship by descent must have a responsible parent who was, at the time of the birth of the applicant, a parent of the applicant.
(2) Where, at the time of the birth of a child (in this subsection referred to as the relevant child), one of the parents of the relevant child was not an Australian citizen, the name of the relevant child shall not be registered for the purposes of this section at an Australian consulate unless the person applying to register the name declares in writing to the person to whom the application is made, or otherwise satisfies that person, that:
(a) at least one person who is, at the time of the application, a responsible parent of the relevant child, was, at the time of the birth of the relevant child:
(i) a parent of the relevant child; and
(ii) an Australian citizen; or
(b) a person who was, at the time of the birth of the relevant child:
(i) a parent of the relevant child; and
(ii) an Australian citizen;
is dead.
Was Mr P Koka the parent of the Applicant?
There is no dispute that Mr P Koka is the parent of the Applicant, having adopted him in accordance with Albanian law in 1995.
Ms Cannon took the Tribunal to the case of Kivalu and Minister for Home Affairs (Citizenship) [2018] AATA 5156 where the Tribunal drew upon the Victorian Adoption Act. This Act provides the general effect of adoption orders, namely that the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents, as if the child had been born to the adoptive parent.
Was Mr P Koka an Australian citizen at the time of birth?
There is no dispute that Mr P Koka was an Australian citizen at the time of the Applicant’s birth.
Mr Boccabella argued strenuously that on a plain reading of the words of the Act, the Applicant was eligible to become an Australian citizen as his father was an Australian citizen at the time of his birth.
Was Mr P Koka the parent of the Applicant at the time of his birth?
There is no dispute that Mr P Koka was not the Applicant’s parent at the time of his birth.
Ms Cannon argued that the statute and the determination of the Full Court in H provides the best interpretation of the Act and contemplates the rigid timing requirement. Ms Cannon argued that as a matter of fact there must be a requisite degree of connection and intense commitment between the citizen parent and the Applicant at the time of the Applicant’s birth. Ms Cannon noted as a fact that the Applicant did not have a parental relationship with his father at the time of his birth; by the Applicant’s own acknowledgement, this relationship did not begin until approximately 10 years after his birth.
Ms Cannon contended that the requirements of section 16(2)(a) of the Act are inflexible and require the parent-child relationship to be present at the time of birth, and thus it is not sufficient for the relationship to commence at a later date.
Ms Cannon contended that an adopted child cannot claim Australian citizenship by descent through the Australian citizenship status of their adoptive parent, as their adoptive parent was not their parent at birth. Ms Cannon argued that for an individual to claim citizenship by adoption, they had to rely on either section 13 or section 19B of the Act. The Act requires adoption to be either under a law in force in a State or Territory of Australia or if the adoption occurs outside of Australia, it must be in accordance with the Hague Convention or a bilateral agreement.
Ms Cannon argued that the Act directly provides for adopted children to seek citizenship by conferral and contended that the Applicant was seeking to bypass this requirement. Ms Cannon argued that whilst the Applicant had been adopted it did not follow he should be a citizen by decent.
Mr Boccabella drew the Tribunal’s attention to the case of Masson v Parsons [2019] HCA 21 where the High Court of Australia addressed the question of the meaning of “parent”. The Court found that it is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The Court said in part:
In In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, "[t]here are at least three ways in which a person may be or become a natural parent of a child" depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of "parent" in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship's analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of "parent" is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of "parent" and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
Mr Boccabella argued that in addition to the notion of genetic, gestational or psychological parenting, there was a fourth method of parentage that had not been considered in Masson v Parsons- that of adoption. He argued that it was impossible to conceive of an adoption at the time a person is born; a person becomes a parent through adoption at some stage after birth. He observed that in some cases it may be relatively quick and in other cases it may be a much longer process, however regardless of the length of time, the adoptive parent is still a parent.
Mr Boccabella contended that the Court in H was not envisaging the situation involving an adoption and its reference to adoption was obiter to the determination, as the Court had observed:
Again, the Minister argued that this section would be superfluous if a broad understanding of “parent” were intended in s 16(2). We would reject this argument as well. Section 16(2) looks to the time of the birth of a person and treats this time as relevant for determining eligibility for citizenship by descent. In Australia a person is adopted after the time of birth, and usually well after this time: see Adoption Act 1993 (ACT); Adoption Act2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act 2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984(Vic); and Adoption Act 1994 (WA). Section 13 recognises this, treating the time of the adoption as the relevant time for the purposes of eligibility for citizenship.
The Minister also relied on s 7(2) of the Citizenship Act, which provides that “the status of a parent of a person at the time of the person’s birth, is, for a parent who died before the birth, taken to be the status of the parent when the parent died”. This provision is silent about the need for biological connection; and is also consistent with the fact that the word is to be understood in its ordinary sense. Whether or not a person was a parent prior to birth is essentially a matter of fact to be determined in the ordinary way, by reference to the circumstances disclosed and the ordinary experience of a member of the Australian community.
One must conclude that there is little, if anything, in the text or structure of the Citizenship Act that would support the proposition that, in the specific context of s 16(2), the word “parent” only can mean biological parent, irrespective of the ordinary meaning of the word.
On the contrary, textual and structural considerations would support the proposition that the word “parent” in s 16(1)(a) bears its ordinary meaning and that it is essentially for the decision-maker to determine whether or not a person was a “parent” as ordinarily understood, having regard to the facts before him or her.
The Minister argued that a reading of “parent” as extending beyond biological parentage would create “anomalous and indeterminate” and “arbitrary” results. We doubt that this would be the case. First, as emphasized already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement. Secondly, judicial acceptance that parentage is not limited to a biological relationship in analogous provisions in citizenship statutes elsewhere has not had the consequences described by the Minister.
Mr Boccabella argued that there was a need to distinguish the findings of the Court in H between a psychological parent-child relationship and that of an adoptive parent-child relationship. As at law, the adoptive parent steps into the shoes of the parent with all the legal consequences that it involves. Mr Boccabella contended that therefore, there was no need to establish a more onerous relationship as envisaged in H for non-biological parents, where the Full Court said: parentage is not just a matter of biology but of intense commitment to one another, expressed by acknowledging that other person as one’s own and treating him as such before and at the time of birth.
Mr Boccabella contended that an adopted child acquires rights to property that the adopted parent acquired prior to the date of adoption; by parity of reasoning, the adopted child acquires the citizenship rights of the adoptive parent. For this reason he argued that the reasoning in H about the timing of the psychological parent’s status does not extend to an adoptive parent. Mr Boccabella argued that the Act does make reference to adoption in section 13 and subdivision AA of the Act, but neither of these provisions are relevant to the adoption of the Applicant.
Additionally, Mr Boccabella contended that in the absence of the words “if and only if” in section 12 of the Act (the section regarding citizenship by birth), the Act had not covered the field in determining the citizenship rights of a person. Therefore, he argued that as far as adoption is concerned in a country not covered by the Act, the ordinary meaning of section 16 is to be applied, which means that the Applicant had a parent who was an Australian citizen at the time of his birth.
Mr Boccabella advised the Tribunal that the issue was a simple matter of statutory interpretation. Whilst the Tribunal concurred that this matter did present an issue of statutory interpretation, the Tribunal does not view statutory interpretation as simple on any level. The Court’s findings in H clearly articulate the grammatically challenging construct of section 16(2)(a) of the Act:
The Minister’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth. Such a situation could only occur, of course, if the Minister’s submissions as to the meaning of parent were rejected.
The Court in H went on to find that section 16(2)(a) of the Act contains a narrow timing requirement:
The Minister argued that a reading of “parent” as extending beyond biological parentage would create “anomalous and indeterminate” and “arbitrary” results. We doubt that this would be the case. First, as emphasized already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement. Secondly, judicial acceptance that parentage is not limited to a biological relationship in analogous provisions in citizenship statutes elsewhere has not had the consequences described by the Minister.
At the outset, the Tribunal clearly articulated the finding in H that being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.
The Tribunal then considered that this definition of parent envisaged different tests for the recognition of the parent-child relationship; for example, a DNA test for biological factors, an intense commitment to one another before and at the time of birth for social factors and formal adoption for legal factors.
In the case of H the Applicant was not seeking to contend legal parentage by way of adoption. Similarly, Mr Boccabella was arguing that a parent-child relationship had been established not biologically, but through the concept of social parentage. The Court in H determined that a parent-child relationship had been found because the connection had commenced before birth and continued after birth, thus accepting the broader notion of parentage.
The Tribunal noted that the Court’s determination in H referred to adoption in obiter but did not address the numerous legal complexities of legal parentage.
The Tribunal noted that the Court in H clearly argues that adopted children could not satisfy the strict requirements to establish a parent-child relationship, because a parent to such a child only becomes a parent at some point after the applicant’s birth. However, the Court acknowledged the grammatical ambiguity created by the Act and did find that being a parent depended on many factors, including legal factors.
The Tribunal found that Mr P Koka was the legal parent of the Applicant and was an Australian citizen at the time of the Applicant’s birth.
The Tribunal noted that the Act did provide a clear path for citizenship by conferral through adoption in accordance with section 13 and subdivision AA of the Act, where the connection between a person who is an Australian citizen and the child occurs at the time of the adoption. However, the Tribunal noted that the Applicant cannot seek to have his citizenship by conferral recognised in accordance with section 13 or subdivision AA of the Act, as his adoption was not in accordance with a State or Territory law of Australia or via the Hague Convention or a bilateral agreement.
The Tribunal found that the timing in this matter is most relevant to the Applicant’s case, and considered this issue in the context of adoption as described in the Laws of Australia:
An adopted child becomes in law the child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopters. This is sometimes known as the ‘substitution principle’, because in law the adoptive parents are substituted for the birth parents.[1]
[1] Westlaw AU, The Laws of Australia (online at 8 February 2019) [17.9.1290].
Additionally, the Tribunal referred to the case of Re K (an infant) [1953] 1 QB 117 where Jenkins LJ said that the purpose of adoption is:
[T]o extinguish all the rights, duties, obligations and liabilities of the parent in regard to the infant, [and] to vest those rights, duties, obligations and liabilities in the adopter, and to convert the infant into the legal equivalent of a child born to the adopter in lawful wedlock, to whom the natural parent becomes in the eye of the law a mere stranger.
The Tribunal, looking at the history of the legislation, found that section 16(2) of the Act had replaced the clear articulation of being the parent at the time of the Applicant’s birth in the Repealed Act:
10B Citizenship by descent
A person born outside Australia (in this subsection referred to as the relevant person) is an Australian citizen if:
(b) a person, being a parent of the relevant person at the time of the birth of the relevant person:
with a less grammatically clear phrase: parent at the time of birth. The Tribunal finds that this different choice of language in the legislation opens up the interpretation of the Act, so that it may be interpreted more widely in the manner proposed by the Applicant.
However, the Tribunal did not seek to depart from the decision in H and as such the Tribunal has found that Mr P Koka had a legal parental relationship with the Applicant that commenced when he adopted the Applicant. The Tribunal considers this relationship in the same way as if the Applicant had been born to Mr P Koka, and therefore finds that Mr P Koka was the Applicant’s parent at the time of his birth.
51.The Tribunal, having taken into consideration all the factors outlined above, determines that Mr P Koka’s parental relationship with the Applicant commenced at birth and the Applicant therefore had a parent who was an Australian citizen at the time of his birth.
52.The Tribunal did note that the Policy explicitly excludes an adopted child in respect of meeting the requirements of section 16(2)(a) of the Act, as the adoptive parent could not have been the parent of the child at birth. The Policy states that an applicant would not satisfy the eligibility criteria if after the applicant’s birth, the applicant acquired a parent (for example, by adoption) who was an Australian citizen at the time of the applicant’s birth. Nevertheless, the Tribunal notes that the Policy is a non-binding instrument, which neither party sought to rely upon.
53.Whilst neither party sought to rely upon the Policy in this matter, the Tribunal in its consideration did have regard to the matter of G v Minister for Immigration and Border Protection where Her Hon Justice Mortimer found:
In the present application, I find that the Tribunal’s reasons involve an inflexible application of the policy because of:
(a) The language used by the Tribunal at [4] and [5] to frame its view of its task on review;
(b) The failure to identify its task as being the exercise of the power in 24(1) read with the discretion in s 24(2), but that discretion not controlling the whole of the task under s 24(1);
(c) The way the Tribunal structured its reasons;
(d) The absence of consideration of factors outside the Citizenship Instructions;
(e) The adoption of the premise, underlying its entire reasoning, that it should “usually not approve” a citizenship application from a child under 16 unless the conditions set out in the Citizenship Instructions were met;
(f) The emphasis placed in the reasons on demonstrating compliance with certain aspects of the Citizenship Instructions (such as “significant hardship or disadvantage” and “full circumstances” that are “so unusual” as to warrant approval);
(g) The presence of a great deal of apparently cogent, credible and un-contradicted material that could have been considered in a variety of ways by the Tribunal but was not because the Tribunal simply stuck to the method set out in the Citizenship Instructions;
(h) The failure of the Tribunal to confront the effect of the Refugee Review Tribunal decision; and
(i) The erroneous interpretation the Tribunal gave to the principle in Drake (No 2) and the use to which it put that authority.
The Tribunal determined that a legal adoption can be considered under section 16(2)(a) of the Act as a fact, as the child is considered to have been born to the parent. The Tribunal did note that this situation would only apply to legally recognised adoptions outside of Australia. The Applicant in this case could not access the provisions in section 13 of the Act as his adoption was not in accordance with Australian law, nor subsection AA of the Act as his adoption had taken place before the ratification of the Hague Convention. The Tribunal did not believe the Applicant was attempting to bypass the legislation, but rather that he was seeking conferral under the Act in recognition that at law his father was his father as if he had been born to him.
DECISION
The Tribunal sets aside the decision of the delegate of the Minister for Home Affairs dated 18 February 2019, which refused the Applicant’s application 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 P Koka, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Act.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO Member.
.....................[sgd].....................................
Associate
Dated: 10 December 2019
Date of hearing: 1 November 2019
Counsel for the Applicant: Mr Lorenzo Boccabella Advocate for the Respondent: Ms Eleanor Cannon Solicitors for the Respondent: Clayton Utz
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