Li v Registrar of Births, Deaths and Marriages

Case •

[2025] NSWCATAD 6

•

10 January 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Li v Registrar of Births, Deaths and Marriages [2025] NSWCATAD 6
Hearing dates: 17 December 2024
Date of orders: 10 January 2025
Decision date: 10 January 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: Emeritus Prof. G D Walker, Senior Member
Decision:

(1) Decision under review set aside;

(2) A birth certificate is to be issued recording that Tiana Wu was born on 11 December 2011 at Hurstville, New South Wales; and

(3) A birth certificate is to be issued recording that Jasper Wu was born on 20 June 2019 at Yagoona, New South Wales.

Catchwords:

BIRTHS DEATHS AND MARRIAGES – births – refusal of registration – lack of witnesses or contemporaneous documents – other evidence.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Births, Deaths and Marriages Registration Act 1995 (NSW)

Births, Deaths and Marriages Registration Regulation 2017 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354;

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 1.

Texts Cited:

None cited

Category:Principal judgment
Parties: Wen Li (Applicant)
Registrar of Births, Deaths and Marriages (Respondent)
Representation:

Counsel:
C Chiam (Respondent)

Solicitors:
LMP Immigration (Applicant)
File Number(s): 2024/00299448
Publication restriction: Nil

reasons for decision

  1. The applicant Ms Wen Li applied to this tribunal on 14 August 2024 for review of a decision by the respondent Registrar on 18 July 2024 (exhibit R1, p 1) to refuse to register the births of the applicant’s children, Tiana Wu (born 11 December 2011) and Jasper Wu (born 20 June 2019).

  2. The applicant had applied on 6 October 2023 for birth certificates for her two children, who were born at home. She had not visited a hospital within 24 hours of birth and there were no witnesses at the births. During her pregnancy she had no medical checkups (id., 13 – 32).

  3. On 8 March 2024 the Registry of Births Deaths and Marriages had written to the applicant pointing out that there were no witnesses to the births, natal or post-natal care treatment details were not provided, nor were any details of witnesses who might have seen the children after their births. No historical documents were provided for the children. A very small number of documents for the children were provided between the time of lodgement of the birth registration documents and 7 March 2024. Those documents were dated after the applicant had lodged the birth registration documents. The Registry thus determined that there was insufficient evidence at that time to register the births in New South Wales (id., 143).

  4. The applicant sought an internal review of the refusal decision, which was refused on 18 July 2024 (id., 1), on the ground that the Registrar was required to ensure that particulars provided under cl 5(1)(a) of the Births Deaths and Marriages Registration Regulation 2017 were true and correct. In this case the respondent considered that there was insufficient evidence at the children were born, and had been living, in New South Wales.

  5. The applicant applied to this tribunal for administrative review or 14 August 2024 and the matter came on for hearing on 17 December 2024. A Mandarin interpreter was sworn in to assist the applicant in giving evidence, as required to translate particular phrases or expressions, but not to translate the entire proceedings.

  6. As the respondent pointed out, one procedural matter needed to be dealt with at the outset. The original application to the registrar and the request for internal review were made jointly by the applicant and the children’s father, Mr Jintao Wu. The application to the tribunal, however, was brought by the applicant alone and Mr Wu had not been joined as a party to the proceedings. The orders sought by the applicant presumably included that Mr Wu be listed as a parent of the children. He was therefore arguably a person “in respect of whom” an order was sought in these proceedings, and accordingly ought to be joined (Civil and Administrative Tribunal Rules 2014, r 27(b)).

  7. It would appear, however, that the failure to join Mr Wu is ultimately of no consequence. That is because s 18(c) of the Births Deaths and Marriages Registration Act (BDMR Act) provides that the Registrar must not include information about the identity of a child’s parent on the register unless, relevantly, one parent makes an application and “the Registrar is satisfied that the other parent does not dispute the correctness of that information”. Given that the original applications were made jointly, and Mr Wu had provided an affidavit in support of the present proceedings, it was clear that Mr Wu did not dispute the orders sought by the applicant. In those circumstances the tribunal is empowered by reason of s 18(c) of the BDMR Act to make an order resulting in Mr Wu being registered as a parent of the children, even though he is not a party to the present proceedings.

Applicable legislation

  1. Section 3 of the BDMR Act sets out the objects of the legislation:

3   Objects of Act

The objects of this Act are to provide for—

(a)  the registration of births, deaths and marriages in New South Wales, and

(b)  the registration of adoption information, and

(c)  the registration of changes of name and the recording of changes of sex, and

(d)  the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, registered relationships, changes of name and changes of sex in perpetuity, and

(e)  access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State, and

(f)  the issue of certified information from the registers, and

(g)  the collection and dissemination of statistical information.

  1. The general functions of the registrar are set out in s 6:

Registrar’s general functions

6 The Registrar’s general functions are—

(a)  to establish and maintain the registers1 necessary for the purposes of this Act and the Relationships Register Act 2010, and

(a1) to maintain the integrity of the Register and to seek to prevent identity fraud associated with the Register and the information extracted from the Register, and

(b)  to administer the registration system established by this Act and ensure that the system operates efficiently, effectively and economically, and

(c)  to ensure that this Act is administered in the way best calculated to achieve its objects.

Note—

1The registers are collectively referred to as the “Register”. See section 43.

  1. The registrar is required to keep the register of “registrable events”, which relevantly includes births: ss 4, 43(1).

  2. If a child is born in New South Wales, the birth must be registered under the BDMR Act: s 13(1). But if the birth is registered under an equivalent law of another state, then it must not be registered under the BDMR Act: s 13(5). The register must contain at least the information required in the BDMR Act itself: s 43(2). In the case of births, that requires the particulars set out in the regulations to be included: s 17(1).

  3. Sections 14 and 17 outline the process for registering the birth of a child:

14   How to have the birth of a child registered

A person has the birth of a child registered under this Act by giving notice of the birth to the Registrar (the birth registration statement) in a form and manner required by the Registrar, specifying the particulars required by the regulations.

17   Registration

(1)  The Registrar registers a birth by making an entry about the birth in the Register including the particulars required by the regulations.

(2)  However, if the particulars available to the Registrar are incomplete the Registrar may register a birth on the basis of incomplete particulars.

  1. The regulation dealing with birth registration is cl 5, which relevantly provides:

5   Registration of birth

(1)  For the purposes of sections 14 and 17 (1) of the Act, the following particulars are required—

(a)  the sex and date, time and place of birth of the child,

(b)  the weight of the child at birth,

(c)  whether or not the birth was a multiple birth,

(d)  the full name (including, if applicable, the original surname), date of birth (or age), place of birth, occupation and usual place of residence (at the time of delivery) of each parent of the child,

(e)  the date and place of marriage of the parents of the child (if applicable),

(f)  the full name, sex and date of birth of any other children (including any deceased children) of either of the parents of the child,

(g)  whether or not either of the parents of the child is of Aboriginal or Torres Strait Islander origin,

(h)  if either parent of the child was born outside Australia, the period of residence in Australia of that parent.

Note—

A birth registration statement given to the Registrar under section 14 of the Act must also state the name of the child (see section 21 of the Act).

(2)  For avoidance of doubt, the Registrar is authorised to include in the Register the registrable information about the identity of the child’s parents that is required to be provided under this clause.

  1. The issues in this case are therefore the following:

  1. whether the evidence shows on the balance of probabilities that the children were born in New South Wales (and if so, they must be registered pursuant to s 13(1)); and

  2. if the tribunal is not satisfied that the children were born in New South Wales, whether it has the power to register the birth and should exercise that power.

The evidence

  1. The respondent did not adduce any oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant and her witness. The applicant and Mr Wu gave oral evidence.

Ms Wen Li (applicant)

  1. In oral evidence at the hearing the applicant adopted her statutory declaration dated 15 November 2024 (exhibit A1, pp 1 – 5) in which she stated inter alia that she and her husband, Jintao Wu, have three children, Tiana Wu, Jasper Wu and Sylvia Wu. Tiana, their first child, was born on 11 December 2011 when the applicant was aged 19. She was delivered at their home at Hurstville without any assistance from health care professionals. There were no witnesses present during labour.

  2. After Tiana was born, they moved to several places, Burwood, then Enfield, Homebush West, Regents Park, Yagoona, Auburn and finally Five Dock. At that time, only a few friends and roommates knew about Tiana, and over the years most of them had either returned to their home countries or lost contact with the applicant and Jintao.

  3. Tiana did not visit any medical centres until 2023. During that time, whenever she had a fever, they would give her Panadol, and after receiving plenty of rest, she would recover quickly. So far she has not received any vaccinations. The applicant and Jintao alternated their schedules to care for her. When she was young, they did not fully recognize the importance of formal education, so they taught her basic knowledge and simple Chinese. Later, when she was around three or four years old, she discovered YouTube and learned most of her English through various cartoons, eventually becoming more proficient in English than in Chinese. Her favourite channels at that time included Ryan’s Toy Review, Pocoyo and Masha the Bear.

  4. From 2013 to 2016 they were renting in a newly built neighbourhood in Homebush West where Tiana had made friends with other children and often played with them on the playground. When she turned six, they began considering her education more seriously. As the learning material for young children was fairly simple, they started by printing basic addition, subtraction, multiplication and division exercises from the Chinese website for her to practise and taught her vocabulary through daily life activities.

  5. The earliest documented record of Tiana Wu’s name and birthdate is found in the Enchanted Adventure Indemnity and Release form signed by Jintao on 4 February 2022, when he took Tiana tree surfing (exhibit A1, pp 40– 42) and then the medical records in 2023 and 2024 (id., 301 – 302). Apart from that, the applicant could provide a record of her growth over the years only in photographs (id., 43 – 78).

  6. Her second child is Jasper, born 20 June 2019 at their home at Yagoona without any assistance from health care professionals. On the day he was born, Jintao had a work appointment scheduled, so he left early in the morning. After noticing some symptoms on waking, she called Jintao and asked him to return home as soon as possible. They thought that if he arrived quickly he could take her to hospital, but he proved unable to make it back in time. But about five minutes after Jasper was born, Jintao did arrive home. He took Tiana along when he went to buy essential baby supplies (see her letter, id., 79) and purchased a baby pram from Baby Kingdom (see invoice, id., 300). There were no witnesses present during the labour.

  7. When she was pregnant with Jasper, she worked at a salad shop in Parramatta Westfield. At that time, only two people knew about her pregnancy, her co-worker Amy, who was Cambodian, and her boss. She normally contacted Amy through WeChat (id., 80 – 101). Since Amy returned to Cambodia at the end of 2021, they have not been in frequent contact, but Amy does send birthday wishes to Jasper almost every year. In September 2024, the applicant contacted her to request a statement confirming that Jasper was born in New South Wales, but so far had not received a reply. As for her boss, he had closed the business before Jasper was born and she no longer has his contact details.

  8. When Jasper was 1½ years old he cut his hand on broken glass while playing outside. They took him to Bankstown Hospital emergency department. As they did not have Jasper’s Medicare information at the time, the hospital recorded his date of birth, name and their contact information (id., 102 – 103). They sent the bill to their home after treatment. Jasper had also not received any vaccinations, and over the past five years has had only a few fevers, recovering after a night’s rest. He then went to see the doctor in 2023 and 2024 (id., 304 – 306).

  9. The applicant became a full-time housewife after Jasper was born, which allowed her to focus more on Tiana’s education. She started buying age-appropriate textbooks like School Zone, Excel and Naplan textbooks, and Tiana completed reading and maths assignments daily. As she grew older, the maths problems became more challenging, making Jintao and herself realize the importance of formal schooling. They also wanted her to have more friends of the same age, but could not enrol her in school because of the admission requirements of a birth certificate and vaccination record.

  10. Whenever Tiana encounters questions, whether about science concepts seen in videos or the customs of other countries, she and Jintao do their best to answer. They also take her and Jasper on trips to other cities each year so they can see different landscapes and experience different cultural atmospheres (id., 43 – 78). Jasper is also gradually starting to learn basic mathematics and spelling.

  11. Now Tiana and Jasper play for an hour each afternoon in the park near their home, where they can make new friends. Both children are sociable and enjoy making friends, showing no signs of isolation or fear of the outside world despite being educated at home.

  12. Sylvia Wu is their third child, born [date redacted] 2024 at Royal Prince Alfred Hospital, Camperdown. The births of Tiana and Jasper are recorded in the previous pregnancy part on the antenatal record of Sylvia Wu (id., 104). Before Sylvia was born, the applicant suffered a miscarriage in 2022 and went to Auburn Hospital.

  13. Both the applicant and Jintao came to Australia for study purposes (id., 106 – 112, 307 – 308, 113 – 114) in 2009 (id., 115 – 223). In the last few years, both have lived in New South Wales (id., 17 – 33, 224 – 235, 216 – 217, 236 – 284). During that time they have returned to their home country, China, for short stays (id., 115 – 223) and also have travelled interstate for holidays (id., 43 – 78).

  14. The applicant has provided two statutory declarations, from Beibei Xu and Yixiong Yu respectively (id., 288 – 295) and an internal review statement (id., 285 – 287). She also provided an affidavit from Jintao (id., 296 – 299) helping to clarify the circumstances.

  15. She and Jintao did not register Tiana and Jasper on time because of their lack of knowledge and experience. Particularly for Tiana, as both Jintao and she had her when they were under 20, they tried to keep Tiana’s existence as low-profile as possible. As a result there are very few official records of her name and birth, but there is no doubt that both of those two children were born in New South Wales. They hope that their children can study and grow in an environment that supports their development just like other children. They want them to receive a proper education and be empowered by knowledge, unlike their parents.

  16. The applicant also tendered her internal review statement which said inter alia that the time when Tiana was born was a very hectic period in their life. They were both still in high school at the time and were on student visas. They found themselves in this difficult situation with very limited legal knowledge, and were unsure about how their circumstances would impact their educational prospects and visa status. They were terrified of the consequences of going to hospital or asking their teachers for help, because of their young age and the fear of being judged by their peers and people around them. The social stigma attached to teenage pregnancy cast a shadow over many prospects in her life. Fear, confusion and an overwhelming sense of shame kept them quiet and they decided to deal with the pregnancy themselves. They were afraid to tell their parents, who were in China, because they hold very traditional and conservative views, with cultural norms placing significant pressure on unmarried mothers, especially as she was a teenager at the time.

  17. On top of their lack of experience and knowledge, they were struggling financially and could not afford expenses associated with antenatal checkups, delivery and other related hospital fees. Further, they were not fully aware of the importance of professional medical assistance due to their lack of education and awareness about the potential risks associated with unassisted childbirth.

  18. For both of the children, the labour period was very short, which did not give them much time to go to hospital, especially for Jasper. On the day her second child was born, her partner was not at home and there was scarcely enough time to consider seeking medical help, leaving them once again to manage childbirth without the support of healthcare professionals. Her body did not undergo drastic physical changes during both pregnancies. Because she and her partner did not know how to nourish her body properly to prepare for the pregnancy, she was extremely skinny at the time and almost always wore loose clothes to hide her protruding abdomen. She did not gain extra weight and was fortunate not to experience morning sickness, making it difficult for others to notice her pregnancy. With no roommates it was easy to hide the pregnancy while she was at home. After Tiana’s birth, a few friends and acquaintances became aware of her existence, but over the years, many of them drifted away, returning to their home countries or losing touch with them altogether.

  1. After Tiana was born her attention was divided between becoming a mother and the pressing concerns surrounding her own academic prospects and immigration status. Her HSC results had just been released, and she was in the process of applying for a new student visa. She was afraid to register Tiana’s birth because she was afraid that it would jeopardize her visa application. She was foolish and irresponsible and afraid to deal with the legal consequences of having a child at 19. They did not have adequate knowledge of the legal requirements and registration process. The lack of guidance and help led them to make further mistakes, and the lack of witness accounts and medical records further complicated the matter.

  2. When Jasper was born on 20 June 2019, their visa had already expired. The lack of official documents and the expiration of the visas made it nearly impossible to establish contact with authorities to navigate the mistakes they had made along the way. But now that they are older, more experienced and more knowledgeable, they are determined to set things right for their children and fix their mistakes. As their financial situation gradually improved, they started to seek professional legal assistance. They wish to provide Tiana and Jasper with the opportunities they deserve, including education and access to a better, normal life.

  3. When she and her partner applied for their visa, they disclosed their children to the Department. The weight of their past mistakes rests heavily on her and her partner. The thought that their negligence had caused the children to suffer the consequences of not having official documents, birth certificates and normal lives makes them feel a profound sense of guilt and remorse for them. They regret their mistakes and want to do everything they can to make things right for them. They want to rectify their past mistakes of being ignorant, timid and irresponsible. They apologize sincerely and wish to make things right because they love their children very much.

  4. In oral evidence at the hearing the applicant reiterated those points, adding that Sylvia, born [date redacted] 2024, has a birth certificate because she was born in hospital. During that pregnancy the applicant had medical checkups because she and Mr Wu were now on bridging visas.

  5. Cross-examined by Mr Chiam, the witness said she had attended Gymea High School in 2010 – 2011 and had undertaken the HSC in 2011. She had obtained a bridging visa in 2023, but before that had no visa from 2016 onward as she could not afford the school fees, but as she had a student visa she needed to prove attendance. She had tried to enrol Jasper at school in 2023 but had been unable to do so because at that stage she had no visa. Some of her friends had known about Jasper’s birth but they had returned to China.

  6. Asked how she kept her pregnancy secret, she replied that she wore loose clothing and there was little change in her body shape. For the last two months she had been at home. For Tiana’s pregnancy she had been at high school for the last two months. The WeChat conversation noted in exhibit A1, p 83 was with Amy, a friend from the salad shop where she worked from 2016 to 2019. She had returned to Cambodia by the time of the message (20 June 2019) and had asked why the birth (Jasper’s) had been so early and had discussed the mother’s contractions.

  7. Her earliest photograph of Tiana is dated 29 January 2012 (id., 43) because she had lost her old telephone a few years ago. Her earliest photograph of a birthday for Tiana was dated 11 December 2020 (id., 58) because before then they did not celebrate the children’s birthdays as the children did not like the cakes. She had visited Brisbane in 2022 and 2023 and Melbourne a few years previously.

  8. The witness was then asked about the statement by Mr Xu (id., 293), Mr Wu’s uncle, who lived nearby at Regent’s Park when Tiana had been 5 or 6 but had not known about her. The witness explained that she had not met Mr Xu until this year. Jintao had told her that his uncle lived nearby but said he had not told him about Tiana. She had returned to China to visit her family on one occasion, during which time Jintao took care of Tiana.

  9. When Jasper was born in 2019, Jintao had been at work that morning at a distant location engaged in a removal task. At about 7:30 when she started to notice symptoms, she called him to come back, several times, so he could take her to hospital. They planned to go to the emergency department as they might not check her visa. The contractions became frequent. They had taken Jasper to hospital in 2021 because he cut himself on glass and was bleeding profusely, but they were scared.

  10. As regards her work history, she had undertaken an SIBT diploma in commerce and in 2013 – 2014 had pursued an accountancy course at Macquarie University. She had been unable to continue with the Macquarie course as she lacked energy because she was working at a milk tea shop in Chatswood and subsequently in the salad shop from 2016 to 2019.

Jintao Wu

  1. The applicant’s de facto husband Mr Jintao Wu swore an affidavit in these proceedings dated 15 November 2024 (id., 296 – 299) in which he stated inter alia that when he and Wen had found out about the pregnancy, they were still in high school in 2010. Out of concern about others’ judgment and fear of their parents finding out, they kept it a secret, but he had decided to take responsibility as a father.

  2. During the pregnancy he worked at McDonald’s at Town Hall, so their life was not greatly impacted. Being young and inexperienced he had not fully grasped the concept of pregnancy and childbirth and since the applicant’s physical and mental states did not change much, he was not deeply involved in her care during that time.

  3. On the morning of 11 December 2011 she told him she was feeling labour symptoms and asked him to go to the supermarket for baby supplies, which he did.

  4. A month before the birth, he resigned from McDonald’s to be available to care for her and the baby. For a while after Tiana’s birth, their living expenses were covered by family support, but finances were tight because of the costs of a newborn baby. They took turns caring for Tiana. Since her birth he has chosen flexible jobs where he could take her along without it affecting his work. While the applicant was back in China, he took on the full-time responsibility of caring for the child at home.

  5. Jasper is his second child, born 20 June 2019 in Yagoona. Before his birth, their financial situation had improved, but since the applicant’s workplace was preparing to close, Wen decided to keep working until the store officially shut down. On the day Jasper was born, he had an appointment for a moving job, so he left home at around 7 AM for work. At about 8 AM he received a call from her saying she might be going into labour. He completed his tasks as quickly as possible and rushed home, but by the time he arrived home he had received a call saying that the baby had already been born.

  6. After the birth he took Tiana with him to buy the necessary baby supplies. After Jasper was born, he focused on work while the applicant took care of the children. He is endeavouring to obtain bank records regarding the purchase of baby supplies on the days of Tiana’s and Jasper’s dates of birth, 11 December 2011 and 20 June 2019.

  7. In oral evidence at the hearing Mr Wu said he had come to Australia in 2009 for study purposes, and had been enrolled for three years, completing the HSC here. When Tiana was born, he was in year 11 and working at a McDonald’s in Pitt Street, as well as working as a removalist. The only time he had returned to China was for the Chinese New Year in 2009, returning in January 2010. He had not told his parents about the pregnancies because they would have considered him to be too young, so he kept the situation secret.

  8. Cross-examined by Mr Chiam, Mr Wu said he had an uncle and a cousin living in Sydney – they had made the attached statutory declarations. His uncle had also been living at Regent’s Park at the same time as they were there, and he had known that his uncle and cousin were there but did not tell them because there had not been much contact between them. He had, however, lived with Mr Xu in 2009 for a year. After that he had not run into him, even though they were also living in Regent’s Park. The receipt from Baby Kingdom dated 22 June 2019 (id., 300) showed that he had purchased a pram two days after Jasper’s birth.

  9. They had waited to register Tiana’s birth because he had no visa, his student visa having expired in 2012. He now holds a bridging visa which was issued in 2023.

Respondent’s submissions

  1. In written submissions dated 6 December 2024 (exhibit R2), the respondent took a neutral position on the issues. First, it was not disputed that the applicant is the mother of the two children and that Mr Wu is their father. Secondly, if the tribunal accepts that the two children were born on the dates alleged by the applicant, then the respondent did not dispute that the applicant was in Australia at the time of the births. That was made clear by the travel records. Thirdly, the applicant had produced a number of receipts, invoices, bank statements and other documents showing that she had a New South Wales address at various points in time. Many of those documents relate to a period well before or after the alleged dates of birth, but there is a bank account statement covering the period of Jasper’s alleged birth and recording the applicant’s address as being in Yagoona. Her HSC results from December 2011, which are dated a few days after Tiana’s birth, record an address at Hurstville. The Registrar thus accepts that from those documents, the respondent does not dispute that it is open to the tribunal to find that the applicant ordinarily resided in New South Wales at the time of the births, subject to the reservation that the documents do not demonstrate that the applicant was at those addresses at the time of the births.

  2. The respondent contends that the applicant has not provided any contemporaneous documents in respect of Tiana’s birth. The earliest documented record of Tiana’s name and birth date is in an indemnity and release form signed by Mr Wu in February 2022, over 10 years after her birth. The earliest photograph of Tiana provided is dated 29 January 2012, about six weeks after her alleged birth. Neither of those documents sheds any light on when or where Tiana was born.

  3. There are also limited contemporaneous documents in respect of Jasper’s birth. The text message exchange with Amy is dated 20 June 2019 and suggests that the applicant gave birth to a boy on or around that day. The messages do not, however, provide details of the place of birth.

  4. The receipt from Baby Kingdom is dated 22 June 2019 and records Mr Wu buying a pram. Even on the applicant’s own account, that is from two days after Jasper’s birth. It therefore does not indicate that the applicant was in Bankstown (or anywhere else in New South Wales) at the time of the birth. Nor does it follow from the receipt that the birth occurred on the date claimed.

  5. The account given by the applicant explaining why there are no contemporaneous documents or independent witnesses is implausible. Neither of the persons named as knowing about the pregnancy with Jasper has given evidence in these proceedings, nor does there appear to be anyone else who was aware of her pregnancy with Tiana. Her claim that she was able to hide the pregnancies is unconvincing, as is her assertion that she did not seek medical or antenatal treatment in respect of her pregnancy with Tiana from fear of being judged by peers and persons around them or because of financial stringency, of which she has not produced any evidence. The evidence also does not explain why there were no medical or antenatal treatments for the pregnancy with Jasper, as their financial situation had improved. They should by then have been aware of the potential risks of unassisted childbirth.

  6. At the time of Jasper’s birth in 2019, the applicant had called Mr Wu with the intention that he could take her to hospital. The concerns about attending hospital thus were no longer in play by 2019 and there is no compelling reason as to why there are no contemporaneous documents supporting the fact that he was born in New South Wales.

  7. The applicant’s own evidence gave rise to a real possibility that the children were not born in New South Wales, for although the applicant has always appeared to reside in the state, her evidence is that she and Mr Wu take the two children on trips to other cities each year “so they can see different landscapes and experience different cultural atmospheres”. There is thus a plausible possibility that either child was born while they were not in New South Wales but on an interstate trip that has not been disclosed in the family photos provided to date.

  8. The written submissions then considered the second issue: if the tribunal is not satisfied that the children were born in New South Wales, whether it has the power to register the births. In view of the conclusion I have reached on the first issue, it is not necessary to consider that issue further.

  9. In oral submissions at the hearing the respondent reiterated those points, adding that while there was no legal requirement for contemporaneous documentary proof of the actual date of birth, the absence of such evidence was relevant. There were no contemporary documents relating to Tiana. The WeChat conversation with Amy and the receipt from Baby Kingdom did offer some support in respect of Jasper.

  10. The photographic record in relation to Tiana was slight, as the applicant said she had lost her telephone some years before. There is a photograph of her at six weeks (id., 43) but nothing to indicate the location. There is a photograph suggesting that Jasper was born within the state (id., 54) if the photograph is indeed of him. The photograph of Jasper’s birthday party on 20 June 2020 might assist the applicant’s case.

Consideration

Approach

  1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

  2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and s 56(1) of the RBDM Act. The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

  3. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

The narrative

  1. The applicant and Mr Wu both gave written and oral evidence describing the births of the two children, that was consistent one with the other (although there were some differences because of the different roles of the two parties in the process), and seeking to explain their delay in seeking to register the births, of 13 years in Tiana’s case and five years in Jasper’s.

  2. The sequence of events as described in the evidence of the applicant and Mr Wu is that Tiana was born on the morning of 11 December 2011 at their home at Hurstville.

  3. The couple had kept the pregnancy secret, as Tiana was born when the applicant was aged 19 and in high school. She and Mr Wu were on student visas at the time, and they chose to keep the pregnancy secret because they were concerned about how the birth would affect their visa status, as well as about the “social stigma attached to teenage pregnancy”. They were also afraid to tell their parents in China because of their traditional and conservative views. They were struggling financially at the time and could not afford medical fees for antenatal checkups or for the delivery. In addition, they were not fully aware of the importance of professional medical assistance because of their lack of education and awareness about the potential risks associated with unassisted childbirth. Those circumstances, they contend, explained why there were no witnesses to the birth, or contemporaneous medical or other documentary records confirming the details of the birth.

  4. The couple also testified that Jasper was born on 20 June 2019 at their then home in Yagoona. Mr Wu had a work appointment as a removalist and had left home early in the morning. When the applicant awoke, she observed symptoms and asked him to come home as soon as possible, as they believed that if he arrived promptly, he could take her to the hospital, but he was too far away to return in time. Jasper was delivered at 9:05 a.m. and Mr Wu arrived home about five minutes later.

  5. The applicant explained that she was able to keep the pregnancies secret because during both pregnancies her body did not undergo drastic physical changes, nor did she experience morning sickness. She wore loose clothes and did not otherwise gain weight. During the final two months of the pregnancies, she was staying at home almost all the time.

Matters not in dispute

  1. There are several points that the respondent considers to be clear from the documents. First, that the applicant is the mother of the two children and that Mr Wu is the father is established by the DNA analysis results (exhibit A1, pp 9, 12, 15, 18).

  2. Secondly, assuming that the two children were born on the dates stated by the applicant, then the documentary evidence shows that the applicant was in Australia at the time of the births. That appears from the travel records, which show that she was in Australia on the day of each of the births (exhibit R1, p 301). There is no evidence to contradict or cast doubt on her testimony or that of Mr Wu about the dates of birth.

  3. Thirdly, among the documents tendered by the applicant is a Commonwealth Bank statement for the period of 13 June 2019 to 12 September 2019 that records the couple’s address as being in Yagoona (exhibit A1, p 252). The applicant’s HSC results from December 2011, which are dated a few days after Tiana’s birth, record an address in Hurstville (id., 106). The respondent accepts that from those documents it is open to the tribunal to find that the applicant ordinarily resided in New South Wales at the time of the alleged births, subject to the reservation that they do not show that she was at those addresses at the time of the births.

  4. I therefore find:

  • that the applicant is the mother of the two children and that Mr Jintao Wu is their father;

  • that the two children were born on the dates stated by the applicant and Mr Wu;

  • that the applicant was in Australia on the day of each of the births; and

  • that the applicant ordinarily resided in New South Wales at the time of the two births, at Hurstville and Yagoona respectively, subject to the reservation that the documents referred to do not show that she was at those addresses at the time of the births.

Other documents and photographs

  1. The applicant tendered a quantity of other documents relied on as establishing the birthdates of the two children. The respondent refers to several of them, pointing out that they are not contemporaneous with the births and in Tiana’s case are dated over 10 years from the date of her birth. Nevertheless, they are relevant and suggestive. They are:

  • an indemnity and release form signed by Mr Wu in February 2022 in relation to Tiana, which records her birth date as 11 December 2011 (exhibit A1, pp 34 – 36);

  • a birth certificate of their third child, Sylvia, born [date redacted] 2024, which records that Tiana and Jasper are previous children of the parents’ relationship; (id., 21);

  • a photograph showing Jasper’s birthday party on 20 June 2020 (id., 57);

  • Hospital invoices from 2021 when Jasper received treatment (for his injured hand) recording his birthday as 20 June 2019 (exhibit A1, pp 102 – 103);

  • antenatal records from the applicant’s third child recording the birthdates of the other two children (id., 104).

  1. The respondent acknowledges that there are two documents that are relatively contemporaneous with Jasper’s birth. The first is the text exchange with Amy, a former work colleague at the salad shop, who knew about the applicant’s pregnancy (id., 80 – 101). In one passage Amy comments, “That’s y quick… only 2 hours” “U juz delivery this morning?”. Making allowances for the demotic shorthand used in text messages, that passage fairly records that the applicant had a baby (boy) on 20 June 2019, although, as the respondent pointed out, it does not state where the applicant was at the time of birth.

  2. The other document is a receipt from Baby Kingdom at Bankstown recording Mr Wu buying a Bugaboo pram on 22 June 2019 and showing his address as being at Yagoona (id., 300). The respondent points out that the date is two days after Jasper’s putative birth and the document does not say where the applicant was when she gave birth to Jasper.

  3. The applicant tendered a quantity of other documents, none of which squarely record the birth of either child on a particular date at a particular place, but which when taken together raise a plausible inference that the applicant was living in New South Wales at the relevant times, probably in Hurstville and Yagoona. They include, for example, a TPG Internet bill dated 15 June 2011 (id., 23), a letter of offer from Macquarie University’s Sydney Institute of Business and Technology (SIBT) dated 9 January 2012 (id., 111 – 112), a letter of offer dated 16 February 2013 for a Macquarie University bachelor of commerce course, giving the applicant’s address as being in Burwood (id., 224 – 225), an electricity bill dated 7 May 2019 and showing the applicant as residing at Yagoona (id., 30) and movement records from the Department of Home Affairs showing the applicant’s overseas travel movements from 2011 to 2016, with the sole arrival and departure port being Sydney Kingsford Smith Airport (id., 115 – 116).

  4. The applicant said she had little photographic evidence relating to Tiana’s early years as she had lost her older telephone some years ago. The first photograph she could locate for Tiana was marked as taken on 29 January 2012 at Hurstville (id., 43). The other photographs show the children in various settings which could be in New South Wales but for the most part cannot be positively identified as such.

  5. The respondent criticized a group of photographs labelled as having been taken on 20 June 2019 at Yagoona, on the day Jasper was born (exhibit R1, p 116), saying that one of them showed Jasper sitting up unsupported, which was impossible. The applicant replied that this resulted from a misunderstanding caused by the lack of time stamped context in the initial set of photographs and incorrect organization of materials. A further collection of photographs concerning Jasper’s first six months was tendered, which the applicant said clearly showed that the sitting up unsupported happened on 23 December 2019 (exhibit A2, pp 13 – 18). That appears to be correct.

Ms Beibei Xu

  1. The applicant tendered two statutory declarations dated 31 October 2024. One is from Ms Beibei Xu, Mr Wu’s cousin, who has known him since he was born. Ms Xu described how, when he came to Australia to study in 2009, Mr Wu had lived with her and her parents at their home in Regent’s Park for about a year. After he moved out they remained in close contact through messages and phone calls. She and her family are his only relatives in Australia. As Ms Xu’s husband and Jintao both work in construction, they became close friends and shared many mutual friends within the field.

  2. It was not until 2023, however, that she learned that he had children. Her husband had been speaking with a mutual friend who happened to mention Jintao’s children in conversation. On hearing that, her family was both surprised and shocked, but they decided to invite Jintao and his children to a gathering at a restaurant in April 2024. Seeing the children for the first time filled her with surprise and joy. Later, during the mid-autumn festival in 2024, she organized another family gathering, at which Jintao openly shared with his parents in China that he and Wen have three children. That was the first time he had revealed that to his parents, and on hearing it they were both thrilled and deeply moved.

  3. She could understand why Jintao had kept the matter secret. His parents would probably have pressured the couple to end the pregnancy and prioritize their studies. The fear of disappointing his parents or facing their disapproval explained why he chose not to tell them, or Ms Xu or his friends and classmates at the time. The applicant has spent years home-schooling the children, but it saddens Ms Xu and her husband to know that they cannot access higher education because of the lack of birth certificates.

  4. The secrecy the couple felt they had to maintain also made it difficult for them to find witnesses now to prove they had children back then, as the primary goal was to avoid any familiar people and keep the family situation private. They even avoided places where they might run into people they knew, out of concern about explaining themselves if they were recognized. Ms Xu strongly supports the application for the issue of birth certificates for Tiana and Jasper.

Mr Yi Xiong Xu

  1. Mr Wu’s uncle Mr Yi Xiong Xu stated that when Jintao had first come to Australia he had lived with the family at their current, Regent’s Park, address. During the year they lived together, they got along very well, but around June 2011 he said he wanted to move out for a more convenient living and study environment. Although he moved out, they stayed in contact through messages and phone calls, but Mr Xu and his family were unaware that Jintao and his partner had children.

  2. It was not until February 2021 that they ran into Jintao and his partner Wen at a shopping centre at Auburn. They were with two young children at the time, but Jintao vaguely mentioned that the children belonged to his landlord. This raised their suspicions somewhat, but no further questions were asked. Earlier this year, their son-in-law heard from a friend that Jintao was expecting a third child. Shocked by the news, they made enquiries that revealed that Jintao already had three children. They arranged two family gatherings at which Jintao and Wen shared more details about the children and explained the difficulties they were facing and obtaining birth certificates. Because of the lack of birth certificates and official identification, Tiana and Jasper had been unable to attend school and had to be home-schooled instead.

  3. Jintao later explained to them why the children had no birth certificates. He and Wen were very young when Tiana was born and, fearing societal judgment, they did not feel comfortable going to hospital. When Jasper was born, the visa situation made them afraid of facing deportation if they sought medical help, so they had no choice but to deliver at home. Over the years Jintao and Wen have felt deep regret and remorse for the decision and now wish to secure legal status for the children so that they can receive a proper education.

  4. Mr Xu supports the accuracy of Jintao’s account. Tiana and Jasper were indeed born in Australia, and due to their young age, financial difficulties and societal pressures at the time, Wen and Jintao felt compelled to deliver Tiana at home. Again, because of visa issues they could not seek medical help for Jasper’s birth. Mr Xu strongly supports giving the children an opportunity to obtain legal recognition of their births so that they do not miss out on critical educational opportunities.

  5. The respondent contends that the two statutory declarations have little relevance to the proceedings. Ms Xu notes that she learned about the children only in 2023. She could accordingly have no primary knowledge of when and where they were born. Mr Xu’s declaration similarly states that he first heard that Mr Wu had children in early 2024 and is therefore not in a position to give evidence about the circumstances in which the children were born.

Evaluation

  1. The respondent points out that the applicant and Mr Wu have given evidence about the date and place of birth of both Tiana and Jasper, and in particular that they were born in New South Wales. If that evidence is accepted, then the tribunal is obliged to register the births pursuant to the BDMR Act s 13(1). The respondent submits, however, that in deciding whether to accept their evidence on those matters, the tribunal needs to take account of several matters.

  2. First, that the applicant has not provided any contemporaneous documents in respect of Tiana’s birth. The earliest documented record of Tiana’s name and birth is the indemnity and release form signed by Mr Wu on 4 February 2022 (exhibit A1, pp 40 – 42). The earliest photograph depicting Tiana is dated 29 January 2012, about six weeks after her birth.

  3. The whole thrust of the applicant’s case, however, is that she and Mr Wu avoided taking any steps that would result in her pregnancy and Tiana’s birth becoming known. As they were both still at high school and aged 19 they feared that their student visa status might be called in question. They also feared social stigmatization of her teenage pregnancy. For those reasons she did not seek any antenatal care and did not wish to give birth in hospital. In addition they were in financially straitened circumstances. The couple also did not inform their parents in China, fearing their disapproval.

  4. She states that the only people who knew about her pregnancy with Jasper were her boss and Amy, a work colleague at the salad shop where she was working. The respondent points out that neither of those persons has given evidence in these proceedings. The applicant explains their absence on the ground that she has lost contact with Amy, who has returned home to Cambodia, and that her boss at the salad bar closed the business and she no longer has his contact details. There is no reason to doubt the veracity of that explanation.

  5. The respondent submitted that little weight should be given to the statutory declarations of Mr Wu’s cousin Ms Xu or his uncle Mr Xu because they do not describe any events or circumstances at the time of the births. They do, however, support the couple’s explanation of the absence of contemporary documents and witnesses and attest to the success of their efforts to keep the berths secret.

  6. Ms Xu declared that she could understand why Jintao had kept the matter secret. His parents would probably have pressured the couple to end the pregnancy and prioritize their studies. The fear of disappointing his parents or facing the disapproval explained why he chose not to tell them, or Ms Xu herself or his friends or classmates at the time.

  7. Ms Xu states that the secrecy the couple felt they had to maintain made it difficult for them to find witnesses now to prove they had children back then, as the primary goal had been to avoid any familiar people and keep the family situation private. They even avoided places where they might run into people they knew, out of concern about explaining themselves if they were recognized.

  8. Mr Wu’s uncle Mr Xu recalled that when Jintao had first come to Australia in 2009 he had lived with them at their current address in Regent’s Park. During the year they lived together they got along very well. As both Mr Xu and Mr Wu work in construction, they are on friendly terms. Yet he knew nothing about the two children, and suspected nothing until February 2021 when he and his wife encountered Jintao and the applicant at a shopping centre in Auburn. They were with two young children, whom Jintao of vaguely indicated belonged to his landlord. They began to become aware of the truth following a comment made to their son-in-law by a friend.

  9. Jintao later explained to them that the children had no birth certificates because he and Wen were very young when Tiana was born and, fearing societal judgment, they did not feel comfortable going to hospital. When Jasper was born, their visa situation made them afraid of facing deportation if they sought medical help, so again they felt they had no choice but to deliver at home. Neither Mr Xu nor Ms Xu was required for cross-examination.

  10. The applicant explained that she was able to conceal the pregnancies as her body did not undergo drastic physical changes during either pregnancy. Because she and Mr Wu had limited knowledge of the nutrition required to prepare for pregnancy, she was extremely slim at the time and almost always wore loose clothes to hide any change of shape. She did not gain extra weight and was fortunate not to experience morning sickness, making it difficult for others to notice the pregnancy. With no roommates it was easy to hide the pregnancy while she was at home, as she was for most of the final two months. It does appear that she could have been visibly pregnant at the time she sat for the HSC examinations in 2011, but given the preoccupations and stresses of the examination process, it would not be surprising if she had been able to conceal any signs at that stage also.

  11. The respondent disputed the applicant’s evidence that she was able to conceal her condition because she did not undergo drastic physical changes during either pregnancy and wore loose clothing. But that is not necessarily implausible. While there is no expert evidence on the point, it does appear that some women do not become visibly pregnant. The BBC reported a case of a teenager who was slim and had a flat abdomen who went into labour with no previous idea that she was pregnant, and had a normal delivery. A medical authority also added that a thin woman could have a small baby: “This is why you can get pregnant and give birth without having a baby bump” (bbc.co.uk/bbcthree/article). The Internet contains a large number of sites giving information on how to conceal a pregnancy, including wearing loose clothing but not maternity wear.

  12. The respondent also questioned the applicant’s further reason for not seeking medical attention, their “lack of education and awareness about the potential risks associated with unassisted childbirth”. The respondent submitted that was implausible because the couple had received some formal education as they had both completed their HSC in Australia. It was also implausible that they would not have been aware of those risks by reason of their own general knowledge or informal research undertaken using the Internet.

  13. But the couple’s formal education may not have included instruction on those matters. Further, unassisted childbirth at home was not particularly unusual in China, where they had lived until the age of 19. The US National Library of Medicine reports that in 1998, 45 percent of births in China took place outside a healthcare facility, and of those only 58 percent had skilled assistance at the birth (though the percentage of homebirths has declined sharply since then): “Giving birth at a healthcare facility in China – is it affordable for the poor?” (pmc.ncbi.nlm.nih.cov).

  14. Similarly, the respondent contends, there are limited contemporaneous documents in respect of Jasper’s birth. While the text exchange with Amy dated 20 June 2019 suggests that the applicant gave birth to a baby boy on or around that day, it provides no details as to where the applicant was when she delivered Jasper. But the tax invoice for the purchase of the pram from Baby Kingdom on 22 June 2019, two days after Jasper’s birth, sets out Mr Wu’s address in full and gives the suburb as Yagoona (exhibit A1, p 300). It is reasonably inferable that it was at that Yagoona address at the applicant gave birth to Jasper.

  15. The respondent also points out that when Jasper was born in 2019, it had been their intention that if Jintao arrived home in time, he would take her to hospital. “What follows from that evidence,” it was submitted, “is that many of the Applicant’s concerns about not attending hospital (such as fear of judgment, the cost, visa implications and lack of education) were no longer in play by 2019. Therefore in respect of Jasper’s birth, there is no compelling reason given as to why there are no contemporaneous documents….”

  16. In cross-examination, however, the applicant explained that they had intended to go to the hospital emergency department for the birth because they thought it less likely that their visa status would be checked there. When Jasper was 1½ he had cut his hand on broken glass while playing outside. At that stage they still had no visas and were apprehensive about taking him to hospital, but because he was bleeding heavily they took him to the emergency department, which recorded his date of birth, name and parents’ contact information and had sent the bill to their home after treatment (id., 102 – 103). Thus the emergency department had not checked their visa status. Jasper has never received any vaccinations.

  17. The respondent then argued that because the applicant and Mr Wu have taken the two children on trips to other Australian cities each year there is a real possibility that they were not born in New South Wales but while they were on an interstate trip. Photographs provided by the applicant record trips to Canberra in October 2018, the Gold Coast in December 2018, Adelaide in March 2019, Brisbane in September or October 2019, Melbourne in February 2022 and the Gold Coast in December 2022.

  18. While that is possible, it is unlikely that the applicant would wish to undertake an interstate trip while she was in the final stages of pregnancy. Moreover, any such trips would in all probability account for a relatively small proportion of the year, making it unlikely that she had given birth while outside the state.

  19. A final, and significant, point is that it is not disputed that the applicant was within Australia at the time both Tiana and Jasper were born. The evidence offers no reason why the applicant would have had a motive or incentive to represent that they were born in New South Wales rather than some other state or territory of the Commonwealth if that were not the case.

Conclusion

  1. I therefore conclude on the balance of probabilities that Tiana was born at Hurstville, New South Wales, on 11 December 2011 and Jasper was born at Yagoona, New South Wales, on 20 June 2019, and I so find.

  2. In view of the conclusion I have thus reached on the first issue, it is not necessary to deal with the second issue. The decision under review is therefore set aside and birth certificates for both Tiana Wu and Jasper Wu giving the dates and places of birth stated are to be issued.

Orders

  1. Decision under review set aside;

  2. A birth certificate is to be issued recording that Tiana Wu was born on 11 December 2011 at Hurstville, New South Wales; and

  3. A birth certificate is to be issued recording that Jasper Wu was born on 20 June 2019 at Yagoona, New South Wales.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 10 January 2025

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Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42
Briginshaw v Briginshaw [1938] HCA 36
Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42