Mark Brinkman and Minister for Immigration and Border Protection

[2016] AATA 716

Brinkman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 716 (16 September 2016)

Division	GENERAL DIVISION
File Number	2016/0166
Re	Mark Brinkman
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Mr W. Evans, Member
Date	16 September 2016
Place	Perth

The decision under review is affirmed.

.........[Sgd]...............................................................

Mr W. Evans, Member

CATCHWORDS

CITIZENSHIP – application for grant of Australian citizenship by descent – insufficient evidence of parental relationship prior to birth of applicant - evidence fails to establish positive biological parenthood – decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 – s 16 – s 17

CASES

ABCD v Minister for Immigration and Border Protection [2014] AATA 18

GXVX and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 829

H v Minister for immigration and Citizenship & Anor [2010] 188 FCR 393

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Citizenship Policy 1 June 2016

REASONS FOR DECISION

Mr W. Evans, Member

16 September 2016

INTRODUCTION

1. Mark Kislev Reyes Brinkman (the applicant) through his representative Ronald Henk Brinkman (Mr Brinkman), his alleged father, seeks review in the Administrative Appeals Tribunal (the Tribunal) of the decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 21 December 2015 to refuse to grant him Australian citizenship under s 17(1) of the Australian Citizenship Act 2007 (the Act).

   ISSUE

2. The issue here is whether Mr Ronald Brinkman is a “parent” of the applicant when he was born pursuant to s 16(2)(a) of the Act.

   FACTS

3. The applicant was born at the Mary Chiles General Hospital in Manila, the Philippines on 11 February 2004 to Ms Normie Rivera Reyes, a citizen of the Philippines (T5, p46; T14, p103-105) and the then partner of Mr Ronald Brinkman.

4. On 6 March 2004, Mr Ronald Brinkman signed an Affidavit of Acknowledgement declaring that he was the biological father of Mark Kislev Brinkman born 11 February 2004.

5. Ms Reyes and Mr Brinkman later married at Baliuag, Bulacan in the Philippines (T14, p100) on 6 February 2010.

6. The applicant who is now 12 years old was, on 12 December 2014 granted a 3-month tourist visa (T5, p54) to visit Australia.

7. On 22 May 2015, some 11 years after the applicant’s birth, Mr Ronald Brinkman, listed as the applicant’s representative (T5, p44), lodged an Application for Citizenship by Descent (T5, p38-45).  Mr Ronald Brinkman was listed as an Australian citizen, and the applicant’s father (T5, p39).

8. The respondent advised the Tribunal that between June and November 2015 Mr Brinkman submitted supporting documents to the Department of Immigration and Border Protection (the Department) (T12, p66; T14, p91; T17, p150; T21, p197; T22, p203).

9. The respondent further advised that Tribunal that:

   On 21 December 2015 a delegate of the Minister refused to grant the applicant Australian citizenship by descent (T25, p220-231). The delegate was not satisfied that Mr Brinkman was a parent of the applicant at the time of the applicant’s birth, and therefore was not satisfied that the applicant satisfied s 16(2)(a) of the Citizenship Act.

10. Mr Ronald Brinkman, on 12 January 2016, lodged an application on the applicant’s behalf seeking review of the delegate’s decision (T1, p1-2).  An email from Mr Brinkman attached to the application (T1, p3) states:

    I am disappointed and shocked that [the delegate’s] analysis is poorly founded and Mark Kislev Reyes Brinkman is my son.

    At all stages, I answered your questions faithfully. At no stage you insisted that I must do biological blood tests to support your analysis, if so, your wording on all your further queries that are very explicit that if you cannot provide the necessary documents, then you are required to do a DNA test.

11. On 29 February 2016 Mr Brinkman filed with the Tribunal:

    (i)a covering letter dated 29 February 2016 (A2);

    (ii)a list of material he had provided to the Department titled ‘Appendix 1 Summary of his additional documents’; and

    (iii)a response to aspects of the delegate’s decision titled ‘Appendix 2 Comments on Mr Frederick Minson (sic) analysis’ (sic).

12. On 6 May 2016 Mr Brinkman filed with the Tribunal:

    (i)a letter from Mr Brinkman’s mother dated 27 April 2016 (A4);

    (ii)a letter from Mr Brinkman’s brother dated 1 May 2016 (A5); and

    (iii)a letter from the applicant’s maternal grandmother dated 3 May 2016 (A3) sworn before a notary public in the Philippines on 4 May 2016.

13. On 31 May 2016 and 9 June 2016 Mr Brinkman filed with the Tribunal:

    (i)an affidavit of acknowledgement made by Mr Brinkman on 11 February 2004 (A6);

    (ii)a Republic of the Philippines Judiciary official receipt number 4413946 dated 27 May 2016 in respect of the abovementioned affidavit of acknowledgement; and,

    (iii)certificate number 16406 from the Manilla Regional Trial Court Notarial Section dated 27 May 2016.

    LEGISLATION AND POLICY

    Australian Citizenship Act 2007 (Cth)

14. Acquisition of Australian citizenship by application on the basis of descent (T2, p13) is provided under section 16(2) of the Act as follows:

    16          Application and eligibility for citizenship

    Persons born outside Australia on or after 26 January 1949

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

    (a) a parent of the person was an Australian citizen at the time of the time of the birth;

    …

15. Section 17 of the  Act states:

    17          Minister’s decision

    (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).

    Australian Citizenship Instructions and Policy

16. The respondent advised the Tribunal that the Department has developed policy in the form of the Citizenship Policy 1 June 2016 in support of the Act.  The Citizenship Policy replaces the policy guidance content previously provided by the Australian Citizenship Instructions (ACIs).

17. The “Introduction to Citizenship Policy” states the role of the new Citizenship Policy as:

    The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.

18. A copy of Chapter 7 of the Citizenship Policy (regarding citizenship by descent) and Chapter 20 of the Citizenship Policy (regarding parents and parent-child relationships) was provided with the Respondent’s Statement of Facts, Issues and Contentions (SFIC).

19. The respondent at para 17 of their SFIC states:

    Decision-makers should generally apply policy such as the Citizenship Policy unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

20. The respondent submitted that there is “nothing in the applicant’s circumstances which indicates that the Citizenship Policy should not apply. This being the case, the Tribunal must have regard to the relevant parts at Chapter 20 (pages 214-215):

    Biological parent-child relationships

    A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:

    ·the nature of the relationship between the claimed parents

    ·travel movements for the claimed parents around the date of conception

    ·the applicant’s birth, registration of birth and the chain of custody post birth

    ·physical similarities between the applicant and claimed parent.

    DNA testing

    In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

    ·     an Australian citizen (for descent) or

    ·     an Australian citizen or permanent resident (for birth onshore)

    and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

    DNA testing facilities and procedures (how tests are conducted and details of recommended laboratories) is available in PAM3: Div1.2/reg1.12 - Member of the family unit - DNA testing.

    DNA evidence will be most useful in countries where there is a high incidence of document fraud or where official documentation is simply unavailable. It can also be useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate claims. A DNA inclusiveness result of 99.5 or more may be taken as persuasive evidence of the biological relationship.

    If the opportunity to provide DNA evidence in support of an application has been offered and not accepted, the decision maker should consider the applicant’s reason/s for not accepting the offer and whether any adverse inference may be drawn.

    Decisions on applications should be made on the information available at the time. If the applicant declines to undertake a DNA test, or if the results of a DNA test do not support the applicant’s claims, the decision maker should assess the claimed parent-child relationship in the light of any other relevant factors.

    Non-biological parent-child relationships

    The citizenship applicant may have a non-biological parent-child relationship with their claimed parent. In other cases, although a biological parent-child relationship was claimed, there may be insufficient evidence to support the claim of biological parentage.

    These cases may occur for a variety of reasons, such as:

    ·the applicant was born through a surrogacy arrangement that did not involve the contribution of genetic material by either commissioning parent

    ·the applicant and their parent held a genuine but mistaken belief that they were biologically parent and child

    ·the applicant acknowledges that there is no biological link to their claimed parent but contends that they nevertheless had a parent-child relationship at the relevant time (generally as of the date of the applicant’s birth).

    Factors to be taken into account

    For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth. The applicant (or, if applicable, their responsible parent) should be asked to provide evidence of the length and nature of the Australian citizen’s or permanent resident’s parental relationship with the child.

    Note: Evidence of the length and nature of the relationship between the claimed parents may corroborate the evidence of the relationship between the applicant and the Australian citizen parent, but is not in itself evidence of the parent-child relationship.

    It is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship. The decision maker more likely will be required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.

    Evidence that the claimed parent-child relationship existed at the time of the applicant’s birth may include, but is not limited to:

    ·anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent

    ·evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth and prenatal and postnatal care

    ·evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child and

    ·when a child is born through a surrogacy arrangement – a formal surrogacy agreement entered into before the child was conceived and lawful transfer of parentage before or at time of birth in the country in which the surrogacy was carried out.

    Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at time of birth, but would lend weight to evidence of the types already mentioned.

    In the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent.

21. The respondent further submitted to the Tribunal (SFIC para 19) that:

    Relevantly, chapter 20 of the Citizenship Policy directs decision makers to consider any explanation from a person as to why they have not pursued DNA testing and contemplates that adverse inferences may be drawn, and chapter 5 of the Citizenship Policy provides that evidentiary documentation provided in relation to an application for citizenship by descent must be closely examined.

    RELEVANT CASES

22. The respondent cited the following as being relevant to this Tribunal:

    a.The Full Court in H v Minister for immigration and Citizenship & Anor [2010] 188 FCR 393 (‘H’) at [127], determined the term ‘parent’ in s 16 of the Citizenship Act has the meaning it bears in ordinary contemporary English usage, and does not only mean ‘biological parent’.

    b.The Full Court in H described at [130] the Tribunal’s task as follows:

    “The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.”

    c.The issue for the Tribunal to determine in the present proceedings is therefore whether, as a question of fact, Mr Brinkman was the applicant’s parent at the time of the applicant’s birth on 11 February 2004.

    RESPONDENT’S CONTENTIONS

    Respondent’s Evidence currently before the Tribunal

23. Set out below is the respondent’s summary (SFIC paragraphs 24 - 52) of the relevant evidence currently before the Tribunal.

24. It addresses the following categories:

    (i)evidence pre-dating the applicant’s birth;

    (ii)evidence immediately post-dating the applicant’s birth; and

    (iii)evidence since the applicant’s birth.

    Summary of Evidence

    “24. While the Tribunal can have regard to evidence post-dating the applicant’s birth in determining whether Mr Brinkman was the applicant’s parent at the time of the applicant’s birth, that evidence may be given lesser weight than evidence concerning the months immediately before and after the applicant’s birth: GXVX and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 829 at [94].

    Evidence pre-dating the applicant’s birth

    25. The Department’s pregnancy calculation indicates that the applicant would have been conceived around 6 May 2003 (T11, p62). Mr Brinkman had a valid Philippine work permit from 2002-2004 (T12, p74 and 81), and passport records provided by Mr Brinkman confirm that he was in the Philippines from 3-28 March 2003, 31 March-15 April 2003, and 28 April-16 May 2003 (T17, p150).

    26.A letter from Mr Brinkman’s maid Ms Roslyn Regala indicates that Mr Brinkman hired Ms Regala around 4 months prior to the applicant’s birth to care for the applicant’s mother during her pregnancy.  Ms Regala states that Mr Brinkman showed ‘compassion and care of his son during the pregnancy and whilst the son was growing up’ (T21, p197: T22, p203).

    27.Other than this letter, no evidence has been provided, pre-dating the applicant’s birth, demonstrating that Mr Brinkman provided emotional or domestic support to the applicant’s mother during her pregnancy with the applicant. In this regard, no evidence has been provided regarding the genesis or history of Mr Brinkman’s relationship with the applicant’s mother prior to the applicant’s birth.

    28. Since applying to the Tribunal on the applicant’s behalf, Mr Brinkman has provided the following evidence relating to events pre-dating the applicant’s birth:

    28.1.A letter from Mr Brinkman’s mother dated 27 April 2016 confirming that Mr Brinkman advised her that Ms Reyes was pregnant ‘some 2 months during the pregnancy in July 2003’, that she was ‘extremely excited to learn that I would be a grandmother again’, and that despite Mr Brinkman living abroad they are very close and talk on a weekly basis.

    28.2.A letter from Mr Brinkman’s brother dated 1 May 2016 stating that Mr Brinkman advised him that Ms Reyes was pregnant ‘some 2 months during the pregnancy in July 2003’, that he was delighted for his brother to have a new child in his life, and that despite living so far away ‘we are a close family and talk regularly of our family lives together’.

    28.3.A letter from the applicant’s maternal grandmother dated 3 May 2016, and sworn before a notary public in the Philippines on 4 May 2016, stating that her daughter ‘confirmed her pregnancy with Ronald H. Brinkman in June 2003’, that she was ‘extremely excited to be a Grandmother and the prospects of a future son-in law’ and that ‘due to Ron’s work, Normie spent most of her pregnancy living in Manila with Ron as this was very close to her sister’s residence’.

    Evidence immediately post-dating the applicant’s birth

    29.      The applicant’s birth certificate (T5, p46; T14, p98):

    29.1.states that the applicant was born in the Mary Chiles General Hospital in Manila at 12:13PM on 11 February 2004;

    29.2.lists Mr Brinkman as the applicant’s father, and is signed by Mr Brinkman as informant on 11 February 2004;

    29.3.records the applicant’s parents as ‘not married’;

    29.4is stamped as having been prepared by a records clerk on 11 February 2004, and having been received at the Office of the Civil Registrar on 6 March 2004; and

    29.5.states at question 18 ‘DATE AND PLACE OF MARRIAGE OF PARENTS (if not married, accomplish Affidavit of Acknowledgment/Admission of Paternity at the back)’.

    30.No affidavit of acknowledgment or admission of paternity document was provided to the Department with the application for Australian citizenship.  However, since applying to the Tribunal for review of the delegate’s decision the applicant has filed an affidavit of acknowledgement made by Mr Brinkman on 11 February 2004 in which Mr Brinkman states that:

    30.1.he is in a relationship with the applicant’s mother and that they have been living as husband and wife;

    30.2.the applicant was begot from that relationship;

    30.3.he acknowledges that he is the biological and natural father of the applicant; and

    30.4.he executed the affidavit to attest to the truth of these matters.

    31.The applicant has also filed a certificate from the Manilla Regional Trial Court dated 27 May 2016 certifying that the affidavit of acknowledgment was entered into the Notarial Report of the witnessing notary public on 6 March 2004.

    32.The applicant’s ‘Newborn Admission Record’ does not record details of the applicant’s father. The details provided in the document appear to be incomplete (T14, p103).

    33.The applicant’s ‘Admission and Discharge Record’ records the applicant’s mother’s occupation as ‘H. wife’, records her admission to hospital on 11 February 2004, and lists her father as emergency contact (T14, p104).

    34.No photographs from the time of the applicant’s birth have been provided. Mr Brinkman states that non-digital photographs of the applicant were destroyed during flooding in 2006 (T14, p92), that emails/Facebook were not readily available and used in 2003 and 2004, and that he did ‘not have a Facebook account to share any emotion (sic) support’ (see Appendix 2 ‘Comments on Mr Fredericks Minson (sic) Analysis’ to Mr Brinkman’s letter dated 29 February 2016).

    35.Other than the letters discussed at paragraph 28 above, no evidence from the time of the applicant’s birth indicating social recognition of Mr Brinkman as the applicant’s father has been provided.

    Evidence since the applicant’s birth

    36.Mr Brinkman and the applicant’s mother were married in Baliuag, Bulacan province on 6 February 2010 (T5, p47). The applicant’s mother’s name is listed as ‘Normie R. Reyes’. The applicant’s mother’s passport issued on 15 March 2011 records her name at that point as ‘Normie Reyes Brinkman’ (T5, p49).

    37.Mr Brinkman has provided photographs of the applicant dating from 2006 to February 2015 including with members of Mr Brinkman’s family (T14, p127-135), and photographs of an Australian flag and Australian artwork at the family home in Bulacan (T21, p201-202).

    38.In response to the delegate’s statement that it was unlikely that a certain photo provided by Mr Brinkman was taken in February 2006 (T25, p229-230, photo at T14, p127), Mr Brinkman agreed that it is more likely that the photo was taken in December 2006 when the applicant was aged 2 years and 10 months (see Appendix 2 ‘Comments on Mr Fredericks Minson (sic) Analysis’ to Mr Brinkman’s letter dated 29 February 2016).

    39.In response to the delegate’s reference to a ‘lack of physical similarities’ between Mr Brinkman and the applicant, Mr Brinkman has stated ‘I disagree and accept that my son’s hair and eyes are more akin to my wife’ (see Appendix 2 ‘Comments on Mr Fredericks Minson (sic) Analysis’ to Mr Brinkman’s letter dated 29 February 2016).

    Minister’s contentions

    40.Other than the applicant’s birth certificate and Mr Brinkman’s affidavit of acknowledgment, there is limited evidence before the Tribunal from the months before and after the applicant’s birth addressing the relevant factors set out in the Citizenship Policy.

    41.No evidence (by way of written statement or otherwise) has been provided from the applicant’s mother regarding:

    41.1.Mr Brinkman being the applicant’s biological parent, or the applicant’s parent (within the ordinary meaning of that word), at the time of the applicant’s birth;

    41.2.Mr Brinkman’s involvement in providing emotional, domestic or financial support to her during her pregnancy; or

    41.3.the applicant being acknowledged socially as Mr Brinkman’s child from birth.

    42.Other than the letter from Ms Regala, no evidence has been provided regarding Mr Brinkman providing emotional, domestic or financial support to the applicant’s mother during her pregnancy. Even if it is accepted that communication via email or social media was not available to Mr Brinkman and the applicant’s mother during that period, it would be expected that some documentary evidence of Mr Brinkman’s and the applicant’s mother’s interaction during this period, and statements from Mr Brinkman and the applicant’s mother addressing Mr Brinkman’s provision of support during the pregnancy, could be provided.

    43.Further, while some photographic evidence has been provided indicating that Mr Brinkman and his family were involved with the applicant from around late 2006, limited evidence has been provided to indicate that Mr Brinkman acted as, and was socially acknowledged as, the applicant’s parent between the time of the applicant’s birth and 2006. Mr Brinkman has explained that his non-digital photographs were destroyed during typhoon flooding in Manilla 2006, however no explanation regarding the specifics of this flooding (including where and when flooding occurred, and where Mr Brinkman and the applicant were residing at the time) has been provided.

    44.The respondent notes that the applicant had not indicated that he intends to call the applicant’s mother, the applicant’s maternal grandmother, or members of Mr Brinkman’s family to give oral evidence (either in person or by telephone) at the hearing of the application for review.

    45.In these circumstances, and bearing in mind the significance of grant of Australian citizenship the Minister contends that it is appropriate for the Tribunal to rigorously scrutinise the evidence before it and approach the matter with some caution:  ABCD v Minister for Immigration and Border Protection [2014] AATA 18 at [34]-[36].

    DNA evidence

    46.On 20 October 2015 the Department advised Mr Brinkman that (T19, p192-194):

    46.1.further evidence of his parent-child relationship with the applicant during the applicant’s time of birth was required, including evidence that Mr Brinkman was involved in providing emotional, domestic or financial care, evidence that the applicant was acknowledged socially as Mr Brinkman’s child, and evidence that Mr Brinkman was responsible for the applicant’s long-term or day-to-day care; or

    46.2.alternatively, Mr Brinkman had the option of undertaking a DNA test to prove the family relationship.

    47.On 9 November 2015 Mr Brinkman advised the Department that he had just read the Department’s 20 October 2015 correspondence (T20, p195). Shortly afterwards, the Department received supporting documents from Mr Brinkman (being the letter from his maid Ms Roselyn Regala, and some photographs).

    48.In a letter to the Tribunal dated 29 February 2016 Mr Brinkman states that:

    “[DNA testing] was an option if we were unable to respond to the questions raised by [the Department].  At no time was DNA Testing refused by me as I responded to all the questions raised by the Australian Embassy.”

    49.Further, in his list of comments on the delegate’s decision, Mr Brinkman states his understanding that ‘DNA Testing was only a requirement if I did not respond to the question’ and that the questions raised by Australian Embassey [sic] did not require any non-biological testing on the proviso that all questions are responded’ (Appendix 2 ‘Comments on Mr Fredericks Minson (sic) Analysis’ to Mr Brinkman’s letter dated 29 February 2016).

    50.Notwithstanding the wording of the Department’s correspondence with Mr Brinkman, it is clear that DNA test results indicating a biological relationship between the applicant and Mr Brinkman would be highly persuasive evidence that the applicant satisfies s 16(2) of the Australian Citizenship Act.

    51.Mr Brinkman has not provided results of a DNA test establishing his biological relationship to the applicant.  This fact alone may not necessarily give rise to any adverse inference regarding Ms Brinkman’s claim to be, and to have been at the time of the applicant’s birth, the applicant’s father.  However, in the context of the limited evidence provided by the applicant, and taking into account the significance of grant of Australian citizenship, the Minister contends that in the absence of DNA evidence Mr Brinkman’s claim to have been the applicant’s father at the time of the applicant’s birth should be tested at hearing.

    52.The Minister submits that it is open to the Tribunal, on the evidence currently before it, to not be satisfied that Mr Brinkman was a parent of the applicant at the time of the applicant’s birth, and that the applicant therefore does not satisfy s 16(2) of the Citizenship Act.”

    CONSIDERATION

1. Mr Brinkman stated to the Tribunal that he was employed as an engineer with FF Cruz in the Philippines from 2001 to 2004 and that he met Ms Reyes at a function in 2001 at FF Cruz where she was also an employee.  They moved in together in April 2002 in Manila.

2. Mr Brinkman was a consultant for High Point Rendel, an international project consultancy firm during 2001-2004 and was seconded to FF Cruz in 2001.  He was self-employed in April/May 2004, sought work in Hong Kong and returned to the employ of FF Cruz in 2005.  He now works in Hong Kong and resides there with his wife and son.  He travels constantly with his work and has done so for many years.

3. In December 2007, he built a house at Block 9, Lot 10 Casimiro Northville, Baliuag, Bulacan (Philippines) which he currently rents out as he is now resident with his family in Hong Kong.

4. When asked about the provision of prenatal proof of their living together, Mr Brinkman replied that he was unable to do so.  In regard to proof of medical attention during the prenatal period Mr Brinkman stated that neither he nor his wife could recall who the attending doctor was in 2003-2004 as it was over ten years ago and he was thus unable to provide any corroborating evidence of Mr Brinkman’s involvement prior to the birth.

5. Mr Brinkman was then referred to the Mary Chiles Hospital Newborn Admission Form at T14 page 103.  The document purportedly shows the birth details of Mark Kislev (Reyes).  The form is incomplete in that the father’s name is not recorded and many other details are omitted. Similarly, at T14 page 105, the Newborn Identification form has many pertinent details missing, including the boy’s name and the mother’s name.  Mr Brinkman stated that he was out of the country at the time of the birth and the forms were completed by his father in-law Mr Jamie Reyes who cannot speak English and was unable to spell “Brinkman”.

6. When referred to T14 page 104, the hospital Admission and Discharge form, Mr Brinkman was unable to comment on why the attending physician Dr Cascis Reyes (Tribunal’s interpretation of handwriting) was not contacted to provide evidence. The form was apparently also filled out by Mr Jamie Reyes or at least with his direct input.

7. Mr Brinkman signed an Affidavit of Acknowledgement dated 11 February 2004 stating that he was “in a relationship with Normie R. Reyes, a resident of Baliuag Bulacan and out of that relationship was begot a child named Mark Kislev Brinkman born February 11, 2004”.

8. The Tribunal notes that Mr Brinkman was “out of the country on the day of the birth” yet apparently he was able to obtain and sign an Affidavit of Acknowledgement dated 11 February 2004 (the same day as the birth), from the hospital of the birth, in the city of Manila, albeit that the Notary Public did not sign until 6 March 2004. 

9. On that affidavit dated 11 February 2004, Mr Brinkman states his address as 27 Etwell Street, Victoria Park Western Australia NOT at an address in Manila.  Also, at paragraph 1 of the affidavit, he states that he was in “a relationship with Normie R. Reyes, Filipina, resident of Baliuag, Bulacan”.  Ms Reyes in her affidavit stated that they lived at 1600 Interior 7, J Fajardo Street Sampaloc, Manila from April 2002.  Mary Chiles Hospital is also in Sampaloc, Manila.  At T14, page 103, the Newborn Admission Form dated 11 February 2004, shows Ms Reyes’ address as 1600 Fajardo Street, Sampaloc, Manila.

10. In his oral evidence, Mr Brinkman stated that he purchased a house in Baliuag, Bulacan in December 2007.   He also stated that all his hard-copy photos and documents were lost in a storm in November 2006 at the “old house”. The Tribunal can only assume that he refers there to the Sampaloc address. The distance between Sampaloc, Manila and Baliuag, Bulacan is 45 kilometres.

11. It was not explained to the Tribunal how the Baliuag, Bulacan residence appears on the Affidavit of Acknowledgement in 2004 and on the Certificate of Live Birth (T5, page 46) when the house was apparently not purchased until December 2007.  Be that as it may, it is also not clear as to why the address at Sampaloc does not appear on the Affidavit of Acknowledgement, given that it was Ms Reyes’ address on the day of the birth.

12. Mr Brinkman’s passport at page 2 shows that he was in Perth Western Australia from 23 January to 26 January 2004, however, at no time during his oral evidence nor within his various written submissions did he attest to discussing with his family during his visit, the pregnancy of his partner Ms Reyes and the impending birth expected in February 2004.  Interestingly, in their oral and/or written evidence, none of his witnesses mentioned any discussion of the impending birth either.

13. Mr Brinkman did not offer his movements or whereabouts between 26 January 2004 and the date of birth, 11 February 2004.  He did not inform the Tribunal of what date he actually returned to Manila and first met his purported son.

14. Mrs Mary Brinkman (Mr Brinkman’s mother and the child’s grandmother) gave oral evidence that she first knew of the pregnancy when she was advised by Ron Brinkman in a telephone conversation in July 2003.  She did not have an email account or Facebook page as they did not exist in her household. When the child was born, no photographs were sent by her son and if any card was sent, she did not retain it. She does not possess any photos of the child that she can recall.  Her first physical contact with the child was in December 2010, following the second wedding (28 December 2010) of Mr Brinkman and Ms Reyes.

15. Mr John Brinkman (Ron Brinkman’s older brother) in his oral evidence stated that his brother had been absent from Australia for some 30 years and with limited communication between them, he was only kept up to date by second-hand information through his mother, who also initially advised him of the pregnancy. However, he was informed by Ron in a telephone call in July 2003 of the pregnancy. He (John) was not into social media at all and communicated occasionally with Ron by telephone.  In the early years they spoke rarely but they now speak on the telephone more often.  He (John) does not have any photographs of the child.  He stated that Ron was away from home (Philippines) when the child was born, thus affirming Mr Ron Brinkman’s prior statement (refer to paragraph 29 above).  He did not attend either of the weddings in the Philippines.

16. Mrs Leonor Rivera Reyes by affidavit dated 3 May 2016, stated that she was advised by her daughter Normie of the pregnancy in June 2003. That affidavit offered no further detail regarding the relationship between her daughter and Mr Brinkman either prenatally or postnatally.

17. Ms Normie Reyes Brinkman (the mother of the applicant) submitted her affidavit dated 1 July 2016 confirming her relationship with Mr Brinkman commenced on 23 December 2001 and that they moved in together in April 2002. Their address was 1600 Interior 7, Fajardo Street, Sampaloc, Manila.  She also affirms that Ron Brinkman was absent from the country “for a couple of weeks” at the time of the applicant’s birth and that her father (Jamie Reyes) attempted to complete the hospital forms associated with the birth.  Interestingly, Mrs Brinkman refers to the hospital as St Gilles Hospital and not Mary Chiles Hospital. The affidavit also shows Mrs Brinkman being resident at Block 9 Lot 10 Casimiro Northville, Baliwag, Bulucan (sic) as at 1 July 2016.

18. At T5, page 51, it is indicated that Mr Brinkman occupied a flat in Hong Kong from at least 13 November 2014 to 11 March 2015. He stated in oral evidence that his family are now resident there.

19. The Tribunal noted that all four Affidavits were identically produced and carefully worded to affirm the date the pregnancy became family knowledge. Mrs Normie Brinkman’s affidavit affirms the difficulties in filling out forms at the hospital. Only two affidavits, Mrs Leonor Reyes and Mrs Normie Brinkman were sworn before a Notary Public. No affidavit other than that of Mrs Normie Brinkman provides evidence of the live-in relationship between Mr Brinkman and Ms Reyes prior to the pregnancy becoming apparent.

20. A letter from Ms Roslyn Regala dated 10 November 2015 (T22 page 203) attests to her employment by Mr Brinkman as housekeeper from 1 October 2003 to 28 May 2015.  Ms Regala stated that she was employed initially to care for Ms Normie Reyes during her pregnancy and to do the household chores.  Following the birth of the applicant Ms Regala continued as housekeeper until 28 May 2015.  No documentary proof, such as photographs showing Ms Regala attending to either Ms Reyes or the child from the date of birth, was offered in evidence. Again, the structure of the letter was similar to the affidavits mentioned above, suggesting that they were all produced by the same person at roughly the same time.

21. On 6 February 2010, the couple officially wed in Bulacan, Philippines.  Apparently, it was a small wedding and was not attended by any member of Ron Brinkman’s family.  On 28 December 2010, another more glamorous wedding was conducted; this time attended by Mr Brinkman’s other brother Terry from America and their parents who travelled from Perth.

22. The Tribunal noted that no photographs of the child from birth to 2 years and 10 months were able to be produced by any member of the families concerned.  Mr Brinkman again stated that all hard-copy photographs of his son and family were lost in a flood in November 2006. He was unable to produce any photographs or other evidence confirming that his house was actually damaged in that flood.  Mr Brinkman stated that the house was not insured, so no records were recoverable from such a source.  He did not provide an address for that house.

23. Mr Brinkman at T14 page 127 was able to submit a photograph allegedly taken in February 2006, in the background of which is a hardcopy photograph of his son allegedly taken in 2004 soon after birth.  Mr Brinkman did state that the main photograph was taken “in the old house” (presumably at Sampaloc, Manila).  Given its apparent position in the family room of the house, just how that February 2006 photograph survived the November 2006 flood was not explained.  Similarly, at T14 page 128 is an October 2006 photograph of Mr Brinkman, Mrs Brinkman and Mark Brinkman, apparently at a restaurant, which has also survived the November 2006 flood.  This is in despite of the statement at paragraph 34 above, that all hard copy photographs were destroyed in November 2006.

24. Mr Brinkman then went on to say that the photograph of his son dated February 2006 (T14, page 127) was probably taken much later, perhaps in December 2006 when his son was nearly three years of age. That photograph also depicts a background photograph allegedly of the grandparents and refers to photograph 9 (T14, page 132) which interestingly was purportedly taken in December 2010. Just how that photograph no. 9 was extant in February 2006 is a mystery.

25. Mr Brinkman stated that he had not asked any member of his family including his mother, whether they had any photographs of his son from the time of his birth.  Subsequent questioning of the witnesses affirmed that no photographs are held by members of the Brinkman family.

26. When asked whether he had ever sent photographs of his new-born son to any members of his family, Mr Brinkman stated that he could “not recall”.

27. Remarkably, Mr Brinkman was unable to provide any hard evidence other than the housekeeper’s affidavit, of his relationship with Ms Reyes in the period from when they met in 2001 through to when the child was born in February 2004.  No photographs were submitted showing them together at any social activity or at their house, and no documentary evidence from a real estate source, friends or neighbours was submitted to support the assertion that they were living together for some two years prior to the birth of the applicant.  This could have been due to the alleged loss of hard copy photographs and documents in the flood of 2006; however, Mr Brinkman made no attempt to prove the relationship existed from 2001 on, other than the affidavit from his wife.

28. The Tribunal asked Mr Brinkman why he had decided not to pursue the offer of a DNA test which had the potential to provide indisputable evidence of his paternity.  Mr Brinkman responded by saying that he believed that the wording of all the (departmental) forms indicated that if you provided all the answers sought, you had the OPTION of a DNA test but it was not mandatory.  He reiterated that given that he had provided all the right answers, he still refused to undertake a DNA test on principle. He further stated that he intends to return to Australia in 2017 but will not submit to a DNA test.

29. Mr Brinkman went on to say that he stands on his principles and he will not undertake the test in fear of a negative result and the possible family repercussions on his 12-year relationship with his wife.

30. The Tribunal then asked if Mr Brinkman had considered the impact on the applicant (Mark) if, sometime in the future, a DNA test of the applicant for whatever reason, revealed that he (Ron Brinkman) was not the father.  He replied that he had not considered that prospect but he was prepared to run the risk and he stands by his principles.

31. Mr Brinkman was then informed by the respondent that should the Tribunal affirm the previous decision to refuse the applicant citizenship by descent, the option remained for a new application to be made in the future and that a DNA test would be of obvious benefit.

    CONCLUSION 

32. Chapter 5 of the Citizenship Policy provides that evidentiary documentation provided in relation to an application for citizenship by descent must be closely examined.

33. In this case, the affidavits submitted failed to convince the Tribunal that a relationship required by the Act and Section 20 of the Citizenship Policy was extant prior to the applicant’s birth.

34. It is apparent that there is some social recognition of the applicant being supported as the child of Mr Ron Brinkman about two years and ten months after the applicant’s birth in February 2004. However, little if any evidence by either Mr Ron Brinkman’s family or Normie Reyes Brinkman’s family was submitted supporting the claimed relationship from 2001 to 2004. The affidavit from the housekeeper does provide some evidence but is not conclusive.

35. The photographic evidence supplied showed little resemblance of features between the alleged father and son.

36. The dearth of evidence of a family relationship extending out through both the Brinkman and Reyes families from 2001 to 2004 and beyond is significant.  The Tribunal is also cognizant of the lack of prenatal evidence of the alleged relationship demonstrated in each of the affidavits submitted by family members.  Indeed, the veracity of the submitted affidavits is questionable as are the photographs and little weight is given to this evidence.

37. Mr Brinkman stated that he intends to return to Australia in 2017 (refer to paragraph 52 above), which may account for the timing of this citizenship application by descent.

38. The Tribunal has given some weight to the contradiction of the timing of the declaration by Mr Brinkman on the Affidavit of Acknowledgement (of paternity); that is, he allegedly signed it on 11 February 2004 being the day of Mark Brinkman’s birth (when Mr Brinkman was not in the Philippines) and it was notarised in Manila on 6 March 2004 some 23 days later.  The home address given on that Affidavit of Acknowledgement is also in question.

39. The confusion about addresses across forms allegedly filled out some 12 years apart does little to support Mr Brinkman’s case on behalf of his alleged son.

40. Relevantly, chapter 20 of the Citizenship Policy directs decision makers to consider any explanation from a person as to why they have not pursued DNA testing and contemplates that adverse inferences may be drawn.

41. The fact that Mr Brinkman was several times, given the option of a definitive DNA test, which he refuses to take “on principle”, and his stated fear that a negative result would severely affect his relationship with his wife, gives rise to doubt on his paternity.

    DECISION

42. To become a citizen of Australia by descent, a person must meet the requirements for citizenship set out in section 16 of the Australian Citizenship Act 2007.

43. The Tribunal on the balance of the evidence and after careful consideration of all the information submitted is not satisfied that there exists sufficient proof of an Australian parent-child relationship at the time of the applicant’s birth.

44. The decision by the delegate dated 21 December 2015 is therefore affirmed.

I certify that the preceding 68 (sixty eight) paragraphs are a true copy of the reasons for the decision herein of Mr W. Evans, Member

........[Sgd]................................................................

Administrative Assistant

Dated 16 September 2016

Date of hearing	8 July 2016
Representative for the Applicant	Mr R Brinkman
Representative for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor