LM and Minister for Immigration and Citizenship

[2013] AATA 408

[2013] AATA 408 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3057
Re	LM
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	19 June 2013
Place	Hobart

The decision under review is set aside and the matter remitted to the Minister for reconsideration of LM’s application to become an Australian citizen under section 17(1) of the Australian Citizen Act 2007.

[Sgd Ms A F Cunningham]

Ms A F Cunningham (Senior Member)

CATCHWORDS

IMMIGRATION & CITIZENSHIP – citizen by descent – whether applicant had a parent who was an Australian citizen at time of her birth – weight of evidence supports finding that SM, an Australian citizen is LM’s biological father – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007, ss 16(2)(a), 17

CASES

H v Minister for Immigration and Citizenship (2010) FCAFC 119

NWH v Minister for Immigration and Citizenship (2009) AATA 833
McMullan v Minister for Immigration and Citizenship (2009) AATA 638

Kumar v Minister for Immigration and Citizenship (2009) AATA 124

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. The applicant, LM, a citizen of Papua New Guinea, seeks the review of a decision which refused her application for Australian citizenship by descent on the ground that she did not have a parent who was an Australian citizen at the time of her birth.

   Background

2. LM was born in Port Moresby Papua New Guinea on 20 April 1996. The Certificate of Birth Entry records LB as her mother and SM as her father. The Registration Certificate issued by the Registrar-General's Office, Papua New Guinea, states that LM's birth was registered on 7 August 1996 and that both parents, SM (father) and LB (mother) consented to the registration.

3. LM is a citizen of Papua New Guinea as is LB. SM is an Australian citizen and was so at the time of LM's birth.

4. On 5 May 2011 LM made an application for Australian citizenship by descent. The application was based on her claim that SM, an Australian citizen, was her father at the time of her birth. LM was 14 years of age at the time of her application and SM was nominated as her responsible parent and representative.

5. On 30 June 2012, a Delegate of the Minister refused LM's application for citizenship on the basis of not being satisfied that SM was her father at the time of her birth.

6. On 18 July 2012 SM, on behalf of LM, filed an application for a review of the Delegate’s decision and lodged further documentary material in support.

7. Both parties to the appeal requested that the Tribunal determine the matter on the basis of the documentary material submitted which included the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the respondent’s Statement of Facts and Contentions with annexures, an affidavit of GM sworn 1 April 1988, Order of the District Court at Port Moresby dated 17 July 1998, Order of the National Court at Waigani, Papua New Guinea dated 14 December 2011, Certificate of Birth Entry of LM dated 7 August 1996, Certificate of Birth Entry of LM dated 10 March 2011, letter of authority to travel dated 24 November 2011, Birth Registration Certificate dated 28 November 2012, Statutory Declaration of Senior Constable English dated 23 November 2012 and Statutory Declaration of  JM dated 30 November 2012.

   Issue

8. The issue for the Tribunal to determine is whether LM satisfies the eligibility criteria for Australian citizenship by descent pursuant to section 16(2)(A) of the Australian Citizenship Act 2007 (the Act). That is whether either:

   (i) SM is the biological father of LM; or

   (ii) SM had a parent like relationship with LM at the time of her birth.

   Contentions

9. It is contended by the Minister that there is no evidence to support a finding that SM was LM's parent at the time of her birth, either as a biological parent or by virtue of a parent like relationship.

10. SM contends that the evidence overwhelmingly supports a finding that he is the biological father of LM. SM relies on the documentary evidence submitted by him as outlined above and his written responses to the conclusions of the Departmental Delegate who determined LM's application.

11. SM concedes that initially he disputed LB’s claim for maintenance for LM on the basis that he may not be LM’s biological father but subsequently accepted the Court's determination and paid maintenance in accordance with the Court Order. He contends that he also continued to maintain contact with LM who has resided with him and his family since she was 12 years of age. An Order for Custody in favour of SM was made by the National Court of Justice at Waigani, Papua New Guinea on 14 December 2011.

    Legislation

12. The Application for Citizenship is made pursuant to the Australian Citizenship Act 2007. Section 16(2)(a) of the Act relevantly provides:

    “(2)A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if :

    a)  parent of the person was an Australian citizen at the time of the birth”.

13. The Minister‘s power to either approve or refuse to approve a person becoming an Australian citizen is derived from section 17 of the Act which provides:

    “(1)If a person makes an application under section 16, the Minister must,by writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    (2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    Identity

    (3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person...”.

    Consideration

14. I accept the Delegate’s findings regarding the identity and date of birth of the applicant and that SM was an Australian citizen at the time of the applicant's birth. What remains in contention is whether SM was LM's parent within the meaning of the Act.  

15. The Act does not define the term "parent" but it has been considered on a number of occasions by the Tribunal and most relevantly by the Full Court of the Federal Court in its decision H v Minister for Immigration and Citizenship (2010) FCAFC 119.  The principal issue in that case was whether the term "parent of a person" in section 16(2) of the Act means only a natural or biological parent of the person. Following a detailed consideration of the submissions of the parties, previous authorities including the Tribunal's decisions in NWH v Minister for Immigration and Citizenship (2009) AATA 833, McMullan v Minister for Immigration and Citizenship (2009) AATA 638 and Kumar v Minister for Immigration and Citizenship (2009) AATA 124, and other relevant case law, the Full Court concluded at paragraph 127:

    "There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s16(2), the word "parent" can only mean biological parent. Indeed, these considerations indicate that the better view is that the word "parent" in s16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intent of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word."

16. And further at paragraph 130”

    "The ordinary meaning of the word "parent" is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s16 (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 in 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 …".

17. In the present case LM’s application is based on the claim that SM is her biological father. The Delegate found that there were a number of inconsistencies in the evidence presented such that she could not be satisfied that SM was the biological father of LM and nor was there evidence to support a finding that he was her parent as that term is understood, at the time of her birth.

18. As the Full Court stated in H v Minister for Immigration and Citizenship the question whether a particular person qualifies as a parent within the ordinary meaning of the word "parent" is a question of fact to be determined on the evidence presented.

19. The Delegate referred to Departmental records that indicated that SM was not present in Papua New Guinea at the time of LM’s conception which was estimated at around July 1995.  The Immigration Movement Records placed SM in Australia in the period 8 May 1994 to 14 December 1995. The Delegate referred to an unsigned statutory declaration of SM that had not been witnessed in which he claimed that sometime in September 1994 he had travelled to Papua New Guinea crossing illegally through the Torres Strait after hearing about the earthquake in Rabaul.  He then went to Lae sometime in January 1995 until March 1995 when he moved to Port Moresby. He further claims that he had returned to Australia illegally via the Torres Strait in November 1995. The Delegate stated that SM had provided no substantive evidence that he was in Papua New Guinea during this period.

20. In an e-mail dated 26 May 2011 addressed to Mrs Bellawa, DFAT, SM attaches his draft unsigned statutory declaration explaining his presence in Port Moresby during the time of his daughter's conception.  His concluding paragraph states:

    "Can you or your supervisor assure me that if I sign and officially submit this declaration that it will only be used for the purpose of processing my daughter's application for citizenship by descent and not for any other purpose?"

21. The Statutory Declaration referred to by the Delegate was subsequently sworn by SM before a Commissioner for Oaths at Waigani, Port Moresby in 2012 and appears at T 21. In this statement SM states that on or about 1 July 1994 he travelled to Thursday Island, Queensland where he was employed by Thursday Island Autopro.  After receiving news of the volcanic eruptions in Rubaul,  Papua New Guinea on around 21 September 1994 he decided to immediately return via the quickest route as he had family and property in Rubaul.  SM states that he flew on a charter flight that was transporting employees of IBIS stores at the time to Saibai Island from where he got a ride in a dinghy to the PNG mainland. He then caught a domestic flight to Port Moresby and went on to Kokopo where he remained for three months. In January 1995 he travelled to Lae where he resided with his father, GM. He was in Lae until March 1995 when he travelled back to Port Moresby where he resided with LB at the Courts Flats in Gordons.

22. SM states that he resided with LB until November 1995 and that it was during this time that LB fell pregnant with his daughter LM.  During October 1995 SM attempted to renew his PNG passport that he held at the time, however was refused and the passport was subsequently confiscated. Because SM had an Australian passport, he was not eligible to hold a PNG passport at the same time. He was advised to leave the country, obtain a visa and return, which he did in November. SM states that he returned to Australia in the same manner that he entered PNG and then flew to Cairns from where he flew back to PNG. He did not believe that he was breaking the law as he was the holder of both Australian and Papua New Guinea passports at the time.   He concluded his Statutory Declaration by stating:

    "I realise that by making this statement that I am exposing myself to possible prosecution from both Papua New Guinea and Australian Authorities for failing to declare crossings of the border."

23. In support of SM’s evidence that he was residing with LB at the time of LM's conception, is a Statutory Declaration of Senior Constable English, Police Officer with the Central Provisional Task Force in New Guinea sworn 23 November 2012. In the statement Senior Constable English states that in 1995 he was a Police Officer attached to the Port Moresby Police Station and that in mid-1995 he knew SM to be cohabiting with LB at the Courts Flats in Gordons, Port Moresby. At paragraph 4 he states that in October 1995 he:

    “… served SM with an eviction notice from Courts as he was not authorised to reside there”.  

    At paragraph 5 he states:

    "It was at this time I knew LB to be pregnant with SM's child."

    He goes on to state that he then knew that SM had departed Papua New Guinea. Further, in March 1998, he knew that SM was working at USG Products in Port Moresby where he served him with a summons to appear in Family Court maintenance proceedings.

24. Included in the T Documents was a copy of an Affidavit from GM, SM’s father which had been filed with respect to the maintenance proceedings in the District Court at Port Moresby. In the affidavit sworn on 1 April 1998 GM states that he was aware that SM and LB were in a relationship which resulted in the birth of a child namely LM on 20 April 1996. Further that he acknowledges LM as his granddaughter being the child of his son. GM states that he had been providing financial and other support to LB for the child since the child's birth and that LB and the child had been residing at his residence since the child's birth until the present time. At paragraph 5 GM states:

    "The defendant is fully aware that he is the father of the child and has acknowledged that fact in my presence on several occasions."

    and at paragraph 6:

    "I make this statement as I believe that the defendant should take responsibility for his actions and provide for his child on a regular basis."

25. The Court documentation filed by SM included the record of an Order of the Presiding Magistrate of the District Court of Papua New Guinea made on 17 July 1998 in which it is ordered that "The defendant is in fact the father of the child-LM" and that SM pay maintenance in the sum of K250 per fortnight towards the upkeep of the child. By Court Order dated 14 December 2011, SM was granted sole custody of LM.

26. SM also relies on a copy of a Certificate of Birth Entry dated 7 August 1996 for LM in which he is recorded as the father and LB as the mother. In the Delegate’s decision she acknowledges this birth certificate as well as a further certified copy of a birth certificate issued in March 2011.  The Delegate states the first certificate "issued in August 1996 and was an uncertified copy of an original document which was reportedly lost." SM maintains that he had never advised that the original certificate was lost but claims that he was informed that the original certificate issued in 1996 was unacceptable and this is why he obtained a new certificate with a barcode. The Tribunal accepts SM’s explanation and notes that the second certificate contains the same information as the original certificate which is imprinted with the signature and stamp of the Deputy Registrar-General.

27. With reference to the passport issued in the name of RR, SM refers to LB’s statutory declaration in which she states that she was pressured into completing the application form in the name of LR by her then partner RR. Although not produced, SM maintains that all of LM’s medical records are in the name of LM rather than RR.

28. In the Statutory Declaration sworn by LB on 9 June 2011, she acknowledges SM as the natural biological father of LM stating that she was in a relationship with SM between March and November 1995 during which time she fell pregnant with LM.  She states that prior to her relationship with SM she was in a relationship with RR and that she reconciled with RR shortly before LM was born. LB states that SM was aware of LM’s birth and was listed as her father on her birth certificate issued in August 1996.

29. LB goes on to state that during her relationship with RR, he was very abusive towards her and jealous of SM. He would not allow LB to have anything to do with SM or allow her child to have contact with SM as RR felt it was embarrassing to be seen as the stepfather of another man's child.  LB was forced to keep secret the fact that she was receiving maintenance payments from SM even though she had taken proceedings against SM for maintenance. RR also forced her to lie and pretend that he was LM’s father. LB states that in her application form for an Australian Visa she declared RR to be LM’s father under extreme duress as she feared for the safety of her child and herself. She stated that she did not escape her abusive relationship and permanently separate from RR until 2007 at which time she and her daughter were left homeless. She states that she reluctantly contacted SM who immediately took over care of their daughter. In paragraph 7 LB states:

    “LM  always knew that SM  was her real dad and she immediately bonded with him. LM is now in full-time care and custody of her natural biological father, SM and his family with my full consent. "

30. The Delegate placed significant weight on SM’s refusal to undertake DNA testing after being invited to do so by the Department in a letter dated 29 May 2011 in order to establish LM’s paternity.  On 26 May 2011 SM stated that while he was willing to undertake a DNA test, he was not willing to pay for it. In July 2011 SM provided a genetic test purportedly conducted by DNA Solutions which states that samples were collected from himself, LM and LM’s mother, LB on 18 January 2007. The report stated that there is a 99.99% probability that SM is the biological father of LM. Following a check by a Departmental officer, DNA Solutions subsequently advised that they had not undertaken DNA testing between the people named in the report and that the doctor who purportedly provided the report did not work for DNA Solutions. DNA Solutions had not provided the test report provided to the Department. The Delegate reported that when this information was put to SM during an interview at the Australian High Commission in Port Moresby, SM wrote to the Department stating that he wished to withdraw the DNA test report.

31. In his e-mail addressed to Mrs Davidson dated 28 July 2011 in which he advised that he wished to withdraw the DNA test that was supplied with LM’s application, SM stated that:

    "It has become apparent that it is seriously flawed in its integrity. I apologise for this and did not deliberately set out to deceive you or anyone, please refer to e-mail correspondence between her mother and I below this e-mail."

    SM goes on to state:

    "I wasn't the best parent when she was younger, in fact I am the first one to admit that I even denied that she was my child at one time. But over time deep down I knew she was mine and I did attempt to maintain contact although limited over the years. Sometimes a parent is faced with a devastating reality that concerns the immediate safety of the child. It is during these times that all doubt leaves and you automatically become a protective parent."

    SM goes on to explain the circumstances in which LM came to live with him when she was 12 years of age prior to which she had been living with her mother and her mother's husband. SM states that the reason why he did not wish to undergo a DNA test was because his daughter:

    "Has been to hell and back several times in her short life"

    and that he knows her mother well enough to realise that:

    "After all this time that she may not have been entirely truthful to me or LM or anyone else for that matter. Now if that is the case, after everything LM has been through, I am thinking very hard about the worst case scenario and I had to be completely honest and tell you that I cannot risk putting my daughter through that. If a DNA test came back with adverse results I'm afraid that it would push LM over the edge, all the progress that she has made over the last few years will be absolutely gone.  For that reason I cannot agree to a DNA test at this time. If that is what we ultimately need then I would rather wait for LM to become an adult and consciously make that decision for herself. She is just way too young and emotionally fragile to handle any possible negative outcome at the moment.…"

1. Attached to the e-mail is a copy of an e-mail from LM’s mother, LM in which she states:

   "SAI, you didn't tell me that you are going to give the DNA test to the High Commission.

   It wasn't supposed to be for them. It was only for your wife because you said you are having problems with her at the time accepting LM.

   You never paid for the real one back then so it was never sent and I got this one for you from one of Steve's mates. I'm sure you knew about it.

   It was just meant for your wife so she would let LM stay with you. You weren't supposed to give it to the High Commission or anyone else.

   You can't blame me, you should have asked me first.

   Why did you need it anyway? You have the birth certificates and a court order.

   Please know that I am sorry, I didn't mean to cause problems and please don't tell LM.

   I am sorry, I was only trying to help. I realise and understand if you don't ever want to speak to me again.

   I am sorry.

   L"

2. Prior to this e-mail exchange SM had sent an e-mail to LB in which he advised that he had been informed by the Australian High Commission that the test was a fake and that there was no record of it. SM stated that he had no choice but to go and get a new DNA test which he hoped for LM’s sake would prove once and for all that he is her father because if it says otherwise it would absolutely destroy her.

3. On 8 August 2011 an e-mail was sent to SM by the Principal Migration Officer with the Australian High Commission advising that the legislative requirements are that a DNA test would be required to demonstrate the child-parent relationship at the time of birth to satisfy the registration by descent requirements. SM was advised that if he no longer wished to proceed with the application he should submit a signed written withdrawal.

4. In SM's e-mail to the Department dated 30 May 2011 he had stated that he was willing to submit a DNA test however he was not willing to pay for it because he should not have to prove to anyone that he is his child's father. He stated that he knows that he is her father and that she knows that she is his daughter as do all of his family, friends and associates and the general community. In an earlier e-mail of 27 May 2011 he referred to the evidence contained in LM’s birth certificates and her PNG passport and contended that DNA testing is only suggested when birth certificates are unavailable or do not contain the father's name.

5. In an e-mail to the Department dated 9 August 2011 SM advised that he had sought legal advice and was not now prepared to provide a DNA test as it is not required by law. SM's legal advice was that a DNA test would not be required in circumstances where the Department had been provided with an original birth certificate declaring him as the father as well as a Court Order that specifically ordered that he is the father of the child LM as well as a passport indicating that he is the father.

6. The Delegate considered that SM's reluctance and ultimate refusal to undergo a DNA test was indicative of his suspicion that he was not in fact the father of LM.

7. The Delegate referred to LB’s application for a Visitor Visa for LM to travel to Australia in 2007 and the documents submitted in support which included LM’s passport in the family name of R. The Delegate suspected that there was a third birth certificate in the name of R which had not been provided. In the application submitted for a Tourist Visa lodged on behalf of LM, her family name was stated as R and there was reference to a Papua New Guinea passport which had been issued on 21 December 2005. That passport was not tendered in evidence The only passport included in the T Documents was a copy of LM’s Papua New Guinea passport issued in 2011 which stated her family name as M.

   Findings

8. It was submitted on behalf of the respondent that the Tribunal should not place significant weight, if any, on the orders issued by the District Court of Papua New Guinea which were made some 15 years ago and without the benefit of the evidence currently before the Tribunal. It was contended that the available evidence indicates that it is very likely that at some time before 21 December 2005, LM was issued with a birth certificate in the family name of R. In support of this contention reference was made to LM’s application submitted in October 2007 for a Tourist Visa in the family name of R which included reference to a Papua New Guinea passport issued on 21 December 2005. The Minister contends that LM could only have been issued with a passport in the name of R if she had presented a birth certificate showing RR as her father.

9. Tendered in evidence were copies of two birth certificates for LM which named SM as LM's father.  The first was issued several months after her birth in 1996 and the second certificate was issued on 10 March 2011 containing the same information. There is no evidence of a third birth certificate in the family name of R having been issued in between these dates which would support the issue of a Papua New Guinea passport in 2005. It is noted that there is a copy of the signed letter by RR dated 18 October 2007 addressed to the Australian High Commission in support of the application for a Tourist Visa in which he states:

   "I RR, father of LM, hereby give my consent for my daughter to travel to Cairns to have a holiday with her grandmother, uncles and aunties."

   The means by which a Papua New Guinea passport was issued to LM in 2005 remain unexplained.

10. There is very little if any other evidence to support the conclusion that RR is the biological father of LM. In her Statutory Declaration dated 9 June 2011, LB states that SM is the natural biological father of LM. She explained that she was in a relationship with RR prior to her relationship with SM and that she reconciled with RR shortly before LM was born. She describes her relationship with RR as abusive and controlling and states that she was forced into pretending that he was LM's father.

11. I accept that LB only maintained that RR was LM's father because of the nature of the abusive relationship in which she found herself at the time. LB admitted that she had reconciled with RR shortly prior to LM's birth but notably named SM as LM's father in the birth certificate. LB had no reason to claim that SM was LM's father if indeed he was not. LB subsequently sought maintenance payments for LM’s support from SM. Given the nature of her claimed relationship with RR, I consider that it is unlikely that she would have claimed that SM was LM's father and pursued him for maintenance if that was not the case. I further accept SM’s reasons for initially denying that he was LM's father particularly given that LB had reconciled with RR with whom LM was living at the time.

12. I accept the evidence of SM as contained in his sworn Statutory Declaration that he was cohabiting with LB at the time of LM's conception. His evidence is corroborated by Senior Constable English.

13. I understand and accept SM's reasons as detailed in paragraph 31 above for not wishing to participate in DNA testing in order to satisfy the Department of his paternity. DNA testing is not required in order to prove paternity under the Act.  I do not consider that his not unreasonable fear or suspicion counter balances the weight of the evidence that supports a finding that SM is the biological father of LM.

14. The determination as to whether SM was the parent of the applicant at the time of her birth is a question of fact for the Tribunal after considering the evidence before it. SM submits that there can be no doubt that he is LM's natural father and relies not only upon the documentary evidence tendered but also the corroborative evidence of LB, his parents and an independent witness, namely Senior Constable English.

15. I consider that the weight of the evidence does support a finding on the balance of probabilities that SM is the biological father of LM. I accordingly determine that the decision under review should be set aside and the matter remitted to the Minister for reconsideration of LM’s application to become an Australian citizen under section 17(1) of the Act in accordance with my finding.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated 19 June 2013 

Date(s) of hearing Hearing on the papers