Kuel and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 2238

Kuel and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2238 (12 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/6117

Re:Autiak Clito Akot Kuel

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:12 July 2018

Place:Melbourne

The Tribunal sets aside the decision under review, finding that the Applicant is a parent of the child related to this matter, known as ACAJ. The Tribunal remits the matter to the Respondent for further processing in accordance with law in light of the Tribunal’s finding.

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

Dr Damien Cremean, Senior Member

Catchwords

CITIZENSHIP— child born in South Sudan — whether Applicant child’s biological father — whether citizenship by descent — factors considered — decision set aside.

Legislation

Administrative Appeals Tribunal Act1975 (Cth) s 33(1) (c)

Australian Citizenship Act 2007 (Cth) s 16

Cases

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

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

12 July 2018

Background

1. This application is made to review the decision made on 25 October 2016 to refuse the application of a minor for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act). The minor is the son of Autiak Clito Akot Kuel (the Applicant) and for the purposes of this decision will be known as ACAJ.

2. The ground of refusal was that the requirements set out in s 16 of the Act were not met, in that the ACAJ did not have a responsible parent who was an Australian citizen at the time of his birth. Therefore, his application to become an Australian citizen by descent was refused.

3. The Act at s 16 provides:

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

   …

   (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

   (j)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.

   …

4. At the hearing Mr Kuel was represented by Ms Roberto, a migration agent. The Minister for Immigration and Border Protection (the Respondent) was represented by Mr Gell, lawyer.

5. Mr Kuel gave evidence in person, with the assistance of an interpreter in the Sudanese language. Ms Aloe Manut Ajing gave evidence by telephone. There is also a Declaration made by Ms Asha Khalifa Usala, Mr Kuel’s mother, received by the Tribunal on 30 May 2017.

6. The Respondent called no witnesses but relied on the Witness Statement of Ms Melanie Marty, senior scientist, made on 5 February 2018, and on documentation concerning DNA.

   Applicant’s case

7. The evidence of Mr Kuel was in accordance with his Statutory Declarations of 6 May 2016 and 8 July 2016.

8. Mr Kuel gave evidence that he is an Australian citizen and that he is ACAJ’s biological father. His name is on the copy of the Republic of South Sudan Ministry of Health Notification of Birth as the father of ACAJ.

9. That document records that ACAJ was born on 13 July 2011 at 9.00 pm at Juba Teaching Hospital. ACAJ’s passport states that he is of South Sudanese nationality.

10. In his Statutory Declaration made on 6 May 2016, Mr Kuel declares I am the father of ACAJ…born on 13 July 2011 in Juba, South Sudan.

11. In another Statutory Declaration made on 8 July 2016, Mr Kuel says that at the time of I lodged my son’s citizenship application, I was in full knowledge that ACAJ is my biological son.  However, he says now that, in light of DNA evidence he has received, I strongly believe I am ACAJ’s biological father and [I have] found no reason to think otherwise.

12. He also says in the later Declaration that ACAJ’s mother [has] assured me that I am his [ACAJ’s] biological father.

13. ACAJ’s mother is Ms Aluel Manut Ajing and she lives in Juba. Her evidence by telephone was consistent with the view that Mr Kuel is ACAJ’s biological father and that no one else was or could be.

14. Again in the 8 July 2016 Declaration, Mr Kuel says that regardless of the DNA result I will remain ACAJ’s father because I am the only father he has ever known since his birth and my parents in Juba are the only grandparents known to him.

15. Ms Usala, in her Declaration, says that her son and Ms Ajing were in a relationship [and] were living together when [Ms Ajing] fell pregnant and that they were very happy when they told me they were expecting. She says Mr Kuel was at the hospital when Ms Ajing gave birth and that he was very happy when he heard the baby cry for the first time.

16. Ms Usala says in her Declaration that from that time on, no one came forward to claim ACAJ as his son, nor did Ms Ajing mention to Mr Kuel that he is not ACAJ’s father. Moreover, [a]mong our entire family and friends, [he] is known as ACAJ’s father. She says that as a mother herself, it gives me great joy and sense of pride to see my son [‘s] commitment towards raising his own son.

    Respondent’s case

17. The Respondent’s position may be shortly stated.

18. The Respondent maintains that ACAJ is not Mr Kuel’s biological son. This is based on DNA testing, which has been reviewed by Ms Melanie Marty.

19. Ms Marty in her Witness Statement says that she is employed as a Senior Scientist at Genomic Diagnostics and in that position she reviews results of DNA testing, conducts parentage and kinship analyses (including statistical calculations) and prepares reports for those tests. She says she also performs DNA-testing laboratory work including sample preparation, DNA extraction from samples, PCR (polymerase chain reaction) amplification of DNA and analysis of DNA profiling data.

20. Ms Marty says her qualifications include a Bachelor of Science (Honours) from Monash University and that she has 15 years of experience in the field of DNA testing and analysis. She says that based on her training, study and experience as a scientist, I have specialised knowledge of DNA testing techniques for the interpretation of results and the analysis of parentage and kinship cases.

21. In her report dated 30 June 2016, Ms Marty says that a percentage testing procedure being DNA typing has been carried out on bodily samples contained in sealed containers of both ACAJ and Mr Kuel.

22. Ms Marty says that the results of the DNA testing and parentage analysis show that Autiak Clito Akot KUEL is excluded from identification as the biological father of ACAJ.  She says that the exclusion is based on contradictions of the laws of genetic inheritance in 9 of the 15 genetic markers that were compared.

23. Ms Marty says that the probability of exclusion in this case is 100%, which means that Autiak Clito Akot KUEL is not the biological father of ACAJ Autiak Clito AKOT.

    Issues

24. In light of the arguments at the hearing, there are, in my view, two issues: (a) whether I may make a finding that ACAJ is the biological son of Mr Kuel; and (b) if not, whether I may make a finding nonetheless that Mr Kuel is a parent of ACAJ for the purposes of s 16 of the Act.

    Biological connection

25. There was a degree of informality, in my view, in the presentation of the Respondent’s case. For example, the Witness Statement of Ms Marty was only provided to Ms Roberto shortly before the last day of the hearing. Adjournments had been allowed for the Respondent to provide DNA evidence in an acceptable form or order.

26. Further, the Respondent did not call Ms Marty to give evidence in person or by telephone. I would have expected her to be available to give evidence, by either means; and to be called as a witness by the Respondent.

27. Nevertheless, I am not bound by the rules of evidence and I may inform myself on any matter in such manner as I think appropriate under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth). On this occasion, I inform myself regarding the DNA findings made by Ms Marty in her Witness Statement. This however may not be the case on another occasion.

28. In doing so, I am satisfied that ACAJ is not the biological son of Mr Kuel.

29. I make my finding based on the report of Ms Marty, which is quite decisive, based on her qualifications and experience.

30. In that regard I note that Mr Kuel disputes the DNA evidence and has always done so. However, before I could be satisfied I should reject the DNA evidence I would need to have some basis in fact of a scientific nature for doing so, and that is something I do not have.

31. I cannot explain how the DNA evidence is at such complete variance with the evidence given by Mr Kuel and Ms Ajing. I do not consider they were lying to me, but I do consider that somehow they are mistaken. I note that ACAJ’s birth is now 7 years ago, which could explain their faulty recollection.

    A parent nonetheless

32. Having found that ACAJ is not the biological son of Mr Kuel, I turn to the second issue:  whether he may be regarded as a parent under s 16 of the Act nonetheless.

33. I did not understand the Respondent to be pressing a strong position on this second issue.

34. It is clear to me that the word parent in s 16 is not confined to biological parenthood. I rely upon the Full Court of the Federal Court of Australia (FFC) decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119. The court in that case at [127]-[129] concluded, in a relevant citizenship context, that the word parent is not confined to biological parenthood but that [b]eing a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Typically, the court said, 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. 

35. I am satisfied in this case that I may make a finding that Mr Kuel is a parent of ACAJ under s 16 of the Act, in the broad sense indicated by the FFC.

36. At all material times he has strongly maintained the position that ACAJ is his son.

37. He was at the hospital at ACAJ’s birth. His family and friends regard him as ACAJ’s father.

38. Importantly, Ms Ajing, ACAJ’s mother, regards him as the ACAJ’s father.

39. Mr Kuel has travelled to South Sudan on several occasions to be with ACAJ and has provided financial and other assistance for him.

40. No one else has come forward to claim they are ACAJ’s father.

    Conclusion

41. Whilst I am not satisfied that I may make a finding that Mr Kuel is ACAJ’s biological father.  However, I am satisfied I may find that Mr Kuel is a parent of ACAJ under s 16 of the Act.  I find accordingly.

42. It follows that the decision under review must be set aside, finding that the Applicant is a parent of ACAJ, born on 13 July 2011, for the purposes of s 16 of the Act.

43. In light of this, I remit this matter to the Respondent for it to be further processed in accordance with law.

    I certify that the preceding 43 (forty-three)

    Paragraphs are a true copy of the reasons

    For the written reasons herein of Dr Damien

    Cremean, Senior Member

    [sgd]……………………………

    Associate

    Date   12 July 2018

    Date of Hearing  12 February 2018

    Applicant  In person

    Solicitor for the Respondent               Mr Lachlan Gell, Clayton Utz