McMullen v Minister for Immigration and Citizenship
[2009] AATA 638
•27 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 638
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/0261
GENERAL ADMINISTRATIVE DIVISION ) Re Vanessa McMullen Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr G. L. McDonald, Deputy President Date27 August 2009
PlaceMelbourne
Decision The matter is set aside and remitted to the respondent with directions to undertake the following procedure in the order stated:
(a) determine if Mr Davidson was an Australian citizen at the date of birth of the applicant and if so accept him as being the applicant’s father, or if it transpires Mr Davidson is not an Australian citizen as at the date of the applicant’s birth, then
(b) accept Mr McMullen, an Australian citizen at the time of Vanessa’s birth, as the applicant’s father.
..............................................
Deputy President
CATCHWORDS – CITIZENSHIP – whether applicant had a parent who was an Australian citizen – two possibilities as to who was the applicant’s biological father – applicant had a father/daughter relationship with her non-biological father despite living in different countries – Tribunal satisfied that there were only two possibilities as to the applicant’s biological father and both of those men were Australian citizens – decision under review set aside and remitted to the respondent
Administrative Appeals Tribunal Act s 37
Australian Citizenship Act 1948 ss 10C and 11
Australian Citizenship Act 2007 ss 3 and 16
Family Law Act 1975
Migration Regulations 1994
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar and Minister for Immigration and Citizenship [2009] AATA 124
REASONS FOR DECISION
27 August 2009 Mr G. L. McDonald, Deputy President 1. The applicant, Vanessa McMullen, a citizen of Fiji, is seeking review of a decision of a delegate of the Minister refusing her Australian citizenship. The applicant claims that she has a right to citizenship as the child of an Australian parent.
2. On 22 December 2008 a delegate of the respondent refused the applicant’s application for citizenship on the basis that the applicant did not have an Australian citizen parent at the time of her birth.
3. At the hearing the Tribunal had before it the documents filed for the purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal heard oral evidence from both the applicant and her mother in Fiji, Mr and Mrs McMullen and Dr Simon Kennedy on behalf of the applicant. The respondent did not call any witnesses.
4. The evidence in this case establishes to the Tribunal’s satisfaction that the applicant is the daughter of Ms Akisi Dilagi (also sometimes called “Rachel”). The applicant’s mother is a citizen of Fiji. The respondent disputes who is, or may be, her biological father and whether he is a citizen of Australia. For the applicant to succeed the Tribunal must be satisfied that at the time of her birth her father was an Australian citizen.
5. In the time leading up to the applicant’s conception Ms Dilagi had an intimate relationship with both Mr Bill Davidson and Mr Fred McMullen. The Tribunal accepts the undisputed evidence that Mr McMullen is and that Mr Davidson is likely to be are Australian citizens. Mr McMullen commenced an (or continued an earlier established) intimate relationship with Ms Dilagi when he went to Fiji in 1987. Shortly after Ms Dilagi came to Brisbane where she recommenced an intimate relationship with Mr Davidson. While in Brisbane Ms Dilagi was involved in an incident, the details of which were not revealed, but which resulted in her experiencing difficulty in continuing to live in Brisbane.
6. Ms Dilagi telephoned Mr McMullen, who lived in Melbourne, and explained her situation. Mr McMullen invited her to come and stay in Melbourne. While in Melbourne Mr McMullen and Ms Dilagi recommenced their intimate relationship. At the time his relationship with Ms Dilagi recommenced in Melbourne Mr McMullen was aware that she had had such a relationship with Mr Davidson in Brisbane. Apparently towards the end of 1987, Ms Dilagi returned to Fiji. Mr McMullen travelled to Fiji to visit Ms Dilagi in March 1988. Mr McMullen said that Ms Dilagi informed him that she was pregnant with his child in about May 1988.
7. Mr McMullen agreed that he must have had some doubts about whether he was the biological father of Ms Dilagi’s child. Shortly after the child was born he had blood tests undertaken to try and confirm that he was the father, there being no DNA testing then available. The tests established that Vanessa had the same blood type as Mr McMullen. Mr McMullen then accepted that he was Vanessa’s father. In 1999, when Vanessa was aged 10 years, a DNA test was undertaken and the results revealed that Mr McMullen was not the biological father of Vanessa. Ms Dilagi discounted the test results as being mistaken. This was accepted at the time by both Mr McMullen and Vanessa.
8. It was not until Vanessa made an application to be considered for Australian citizenship in 2008 that a further DNA test was conducted. It confirmed the earlier test results that Mr McMullen was not the biological father of Vanessa. Upon this occurring Ms Dilagi, for the first time to either of Vanessa or Mr McMullen, admitted that Mr Davidson was Vanessa’s biological father. Ms Dilagi in her evidence to the Tribunal maintained that she had nominated Mr McMullen as Vanessa’s father because he had told her, before Vanessa’s birth, he would look after her, whatever circumstances she faced. Ms Dilagi said that she had accepted Mr McMullen as a man of his word. It was Ms Dilagi’s evidence that she perceived that Mr McMullen would be a better father to provide for Vanessa. Ms Dilagi entered into a relationship with a Fijian man during the period when Vanessa was at school and had a further two children by him before they parted.
9. It was the evidence of Mr McMullen, which the Tribunal accepts, that he visited Fiji a number of times during Ms Dilagi’s pregnancy and again shortly after Vanessa’s birth. He and Ms Dilagi decided on the name to be given to Vanessa. Vanessa’s birth certificate records Mr McMullen as being her father. He purchased a house in Fiji for Ms Dilagi to live in with a daughter of hers from an earlier relationship (unrelated to either Mr Davidson or Mr McMullen) and Vanessa. Mr McMullen, while never a wealthy man, also provided monetary support to Ms Dilagi throughout Vanessa’s childhood. When Vanessa was aged about three years she and Ms Dilagi visited Australia and Mr McMullen took them on a driving tour of Australia over a several month period. Since the time Vanessa was old enough to talk, Mr McMullen has remained in regular telephone contact with her. Additionally, he has visited Fiji at least once a year, sometimes more often, to see and support Vanessa.
10. It is accepted by the respondent, and the Tribunal agrees, that in as far as Vanessa was concerned she has regarded Mr McMullen as her father and he, after some initial doubt, has regarded and accepted her as being his daughter. This remained the situation until Ms Dilagi revealed, in early 2009, to both Vanessa and Mr McMullen for the first time that Mr Davidson was Vanessa’s biological father.
11. Mr Davidson died in Fiji in 1990 after suffering an injury from falling from the roof of his house. His death certificate records him as being married (not to Ms Dilagi) and that there was a daughter of the marriage. Mr McMullen told the Tribunal that that daughter was alive as at the date of Mr Davidson’s death but she had subsequently died. There were no other issue from the marriage of Mr and Mrs Davidson.
12. Mr McMullen had met Mr Davidson on one occasion before Mr Davidson injured himself. He told the Tribunal that there was no discussion concerning Vanessa’s parentage. After Mr Davidson had injured himself from the fall he was unable to communicate and while Mr McMullen saw Mr Davidson prior to the latter dying no discussion concerning Vanessa’s parentage was possible. Mr McMullen officiated at Mr Davidson’s funeral in Fiji at which time he met Mr Boykett, Mr Davidson’s nephew, who had travelled from Australia to attend to the winding up Mr Davidson’s estate. Mr Boykett is now the only known living blood relative of the late Mr Davidson.
13. Mr McMullen told the Tribunal that he had approached Mr Boykett to undertake a DNA test in an attempt to confirm that Mr Davidson was Vanessa’s father but that Mr Boykett was uncooperative, stating his lack of concern for events which happened a long time ago.
14. It was Mr McMullen’s evidence that he was now an aged pensioner and that he did not have the funds in any event to pay for Mr Boykett to undertake a DNA test, even if the latter had been willing to do so. Despite some initial doubts Mr McMullen has been true to his word and the applicant has been accepted as his child – by his wife and the three children of his marriage. Mr McMullen has provided both material and emotional support to the applicant over the years and assumed as best he could, given that they live in different countries, a father role to Vanessa.
15. Vanessa has always regarded Mr McMullen as her father. Ms Dilagi has always maintained that the relationship between Vanessa and Mr McMullen is one of child and parent. By the time that Ms Dilagi made her revelation that Mr Davidson was Vanessa’s father, Vanessa was an adult. The recently conveyed information by Ms Dilagi has not resulted in a change to the existence or closeness of the long established father/daughter relationship enjoyed between Mr McMullen and Vanessa.
16. Mr McMullen’s family – being his wife and three (now adult) children accept and regard Vanessa as being a child fathered by Mr McMullen. It was Mrs McMullen’s evidence that she has always accepted Vanessa as being Mr McMullen’s daughter and referred to herself as being Vanessa’s step-mother.[1]
[1] Exhibit A3.
The Issues
17. On behalf of the applicant the following three submissions are made:
(a)for purposes of s 16(2)(a) of the Australian Citizenship Act 2007 (“the Act”) Mr McMullen should be regarded as Vanessa’s Australian parent even although it is acknowledged that he is not her biological father; and/or
(b)the evidence should establish to the Tribunal’s satisfaction that Mr Davidson, an Australian citizen, is Vanessa’s father and that therefore Vanessa has the right to claim Australian citizenship; and/or
(c)as the result of a finding in the Migration Review Tribunal with respect to a visa application made by Vanessa there was a finding that Mr McMullen was Vanessa’s father and that because of that finding this Tribunal is estopped from finding otherwise.
18. On behalf of the respondent it is submitted that:
(a)s 16(2)(a) of the Act, when read on context, is limited to biological parentage as the test for a child born outside Australia to be granted Australian citizenship;
(b)the principle evidence as to Mr Davidson being Vanessa’s biological father is from Ms Dilagi’s evidence, Ms Dilagi has not told the truth to Mr McMullen or Vanessa about Vanessa’s father over a 20 year period and continued to convey misinformation in her witness statement even after she informed Mr McMullen and Vanessa as to the identity of Vanessa’s biological father;
(c)without the necessity of determining whether issue estoppel is a principal which is open to be applied in a Tribunal setting, the facts in this case do not support it arising as an issue as the Migration Review Tribunal was concerned with the issue of whether a visa application should be granted to Vanessa under the provisions of the Migration Regulations 1994 and not as to whether she qualified for Australian citizenship under the Act.
Does The Applicant Qualify As Having A Parent Who Is An Australian Citizen?
19. Section 16(2)(a) of the Act relevantly is in the following terms:
A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth; and …
20. Regrettably the Act does not define ‘parent’.
21. Dr Kennedy is a forensic psychologist who has given expert evidence in a number of Family Court and Children’s Court cases addressing the issue of child relationships when the parents separate, including in those cases where the parents are physically separated from the child (for example, living in different states). The Tribunal accepts him as being an expert in his stated field. He gave evidence that a person who is not a biological parent may assume the role of a parent for a child by virtue of the strength of attachment arising between the child and that other person. It was his evidence that such a high quality well established relationship of the type which arose where there was physical separation had occurred in the case of Mr McMullen and the applicant. While he appreciated that a biological relationship determines who is a parent, Dr Kennedy maintained that the quality of the relationship between a non biological parent and a child is of equal importance in defining the relationship. In the instant case regular telephone contact combined with irregular one to one contact had resulted in a very sound father/daughter relationship arising. Dr Kennedy maintained that the applicant recognised Mr McMullen as having her and her family’s best interests at heart based on his demonstrated support.
22. Concepts of what constitutes a family, who are parents and the definitions of relationships between a child and other adults, are having to become more flexible as science and the community changes what were more clearly defined concepts in the nineteenth and into the twentieth centuries. Thus, a surrogate mother may not be considered as being either a ‘parent’ or as having a parental role with respect to a child she may have supported through pregnancy and birth. As societal concepts change, the descriptions, once more certain and more limited, of who falls within a parental relationship also need to adjust. Just as the concepts involved are expansionary in nature, so too must the description of who falls within a relationship be expansionary. This may be done by the utilisation of new terms, for example, ‘surrogate’ or ‘birth’ mother or, alternatively, understandings of existing descriptions will change.
23. It was put by on behalf of the respondent that the implicit meaning of ’parent’ in the context of the Act was ‘biological’ parent. The Tribunal in a case decided on a different issue, has commented that the reference to ’parent’ in s 16(2)(a) of the Act does not extend beyond ‘biological parent’.[2] The Tribunal, as presently constituted, is unable to accept the respondent’s submission that such a narrow contextual approach should be taken. The respondent submitted that to adopt an expansionary interpretation not necessarily based on biological parentage would unduly expand the number of citizenship applications and that this was something Parliament did not intend when passing the Act. It was put that if upheld impossibly uncertain administrative difficulties in the management of citizenship applications would result. The Tribunal does not accept this as necessarily being the case.
[2] Kumar and Minister for Immigration and Citizenship [2009] AATA 124.
24. The Tribunal notes that before the introduction of the current Act citizenship by descent was defined by reference to ‘natural parent’ (s 10C(4)(a) of the Australian Citizenship Act 1948) and in the case of descent claimed through the mother the term used was ‘natural mother’ (s 11(1) of the 1948 Act). The terms used were undefined. The qualifying use of ‘natural’ seemed to suggest ‘biological’. The Tribunal notes that no such qualifying word is used in the current Act and is unable to see why the Tribunal should qualify a word when the previously existing qualifier has been dropped from the current legislation.
25. The parties referred the Tribunal to the definition of ‘child’ in the Act as being relevant. The definition of ‘child’ is inclusive of the definition of ‘child’ contained in the Family Law Act 1975: s 3 of the Act. Cases as to who is considered a ‘child’ in that context were referred to. The Tribunal did not find this line of argument helpful. Section 16 of the Act does not refer to ‘child’ but to who may be considered a ‘parent’. It is the status of the parent as being, or not being, an Australian citizen which is in issue. While the Family Court, as might be expected, has been concerned to define who is a child and who necessarily therefore is a parent in the context of the Family Law Act, the reversal of definition does not follow, that is, that who is a parent for the purposes of the Family Law Act is determinative of who is a parent for the purposes of the Australian Citizenship Act.
26. The facts in this case are very unusual. With the establishment of more certain outcomes with DNA testing than was the case at the time of Vanessa’s birth, the facts before the Tribunal are unlikely to arise again. The fact is that Mr McMullen has not just assumed the role of Vanessa’s father but has, from Vanessa’s point of view, as well as his own, become her father. That different and unusual facts present themselves does not of course mean that the meaning of words which are otherwise well understood, should be distorted in considering the interpretation of statutes. However, there is a difference between someone assuming the role of the father while knowing that he is not the father and someone accepting, on reasonable grounds, that he is the father and continuing to undertake that role. It was at least possible, and indeed likely that, Mr McMullen was Vanessa’s biological father. That, combined by with the re enforcing confirmation of the mother over a 19 year period, led to a strong father/daughter relationship developing. The relationship is so strongly established that neither Mr McMullen or Vanessa see it changing now it is known that Mr McMullen is not Vanessa’s biological father. With both Mr McMullen and Vanessa being in a father/daughter relationship for that extended period of time it would be unduly restrictive, unfair and unreasonable to determine in an administrative sense it was anything else other than a father/daughter relationship.
27. However, the if the Tribunal is wrong on that ground other evidence has left the Tribunal satisfied that Vanessa is more likely than not to be the child of an Australian citizen.
In Any Event, Is The Applicant The Child Of An Australian Citizen?
28. The circumstantial evidence supports Ms Dilagi’s statement that Vanessa is the daughter of Mr Davidson. Aside from Ms Dilagi’s statement there is no reason not to believe Mr McMullen when he stated that Ms Dilagi was with Mr Davidson in Queensland before coming to Melbourne in late 1987. His evidence about the telephone call he received and the action he took to bring Ms Dilagi to Melbourne are creditable. The photographs provided by Mr McMullen of Vanessa demonstrate, even to the untrained eye, that she is more likely to have a Caucasian connection in her background than not. Ms Dilagi gave a cogent, even if not in this century considered to be a socially acceptable, reason for deciding that Mr McMullen was her preferred choice to be the applicant’s father – namely, his reassurance that he would always look after her and of his commitment Vanessa. She said that she judged him to be a man of his word and that has transpired to the case as he has provided emotional and material support both to Vanessa and Ms Dilagi, the latter in her own right as well as in her capacity as Vanessa’s day to day care giver.
29. The respondent queried whether the Tribunal could be justified in accepting Ms Dilagi’s word that Vanessa was the daughter of Mr Davidson given she had lied to both Mr McMullen and Vanessa over an 18 year period as to who the biological father is. It was pointed out that the Tribunal, in reaching a decision about an issue which will affect the outcome of the application, needed to be satisfied to a greater degree before the threshold of the balance of probabilities could be satisfied.[3]
[3] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
30. Without ascribing any onus of proof, except an evidentiary one, to the applicant the Tribunal is satisfied to accept Ms Dilagi’s evidence. Ms Dilagi, at this stage of her life, has nothing to gain from telling a lie about the circumstances surrounding Vanessa’s birth. Ms Dilagi has no further call on Mr McMullen to provide material support for Vanessa. Ms Dilagi may well have taken the view that she was not prepared to reveal who Vanessa’s father may have been. On the other hand, she had a reason to do so at the time of Vanessa’s birth as she perceived that Mr McMullen would be the better provider than Mr Davidson. While it is not impossible that Ms Dilagi had intimate relationships in the relevant period other than with Mr Davidson or Mr McMullen there is no evidence of this. It would be wrong for the Tribunal to conclude that that was the case when the only evidence from Ms Dilagi is that there were only two possibilities as to who is Vanessa’s father – Mr Davidson and Mr McMullen.
31. While there is nothing raised by the respondent to suggest otherwise than Mr Davidson was at the time of Vanessa’s birth an Australian citizen the Tribunal accepts that this is something which should be formally confirmed.
Issue Estoppel
32. In light of the Tribunal’s findings it is not necessary to address the vexed question of issue estoppel.
Conclusion
33. In the result the reasons stated by the Tribunal establish that Vanessa has two fathers. That may seem a curious outcome. However, it reflects the unique circumstances of this case. It is difficult to logically categorise the father/daughter relationship each man has to Vanessa but perhaps that must be done to clarify the determination. Vanessa has a biological father in the late Mr Davidson and an accepted father in Mr McMullen.
34. For the reasons stated the decision under review is set aside. The matter is remitted to the respondent with directions to undertake the following procedure (if it becomes necessary to rely on ground (b)) in the order stated:
(a)determine if Mr Davidson was an Australian citizen at the date of birth of the applicant and if so accept him as being the applicant’s father, or if it transpires Mr Davidson is not an Australian citizen as at the date of Vanessa’s birth, then
(b)accept Mr McMullen, an Australian citizen at the time of Vanessa’s birth, as the applicant’s father.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G. L. McDonald, Deputy PresidentSigned: .....................................................................................
Associate Grace HorzitskiDate/s of Hearing 7 August 2009
Date of Decision 27 August 2009
Counsel for the Applicant Ms G. Costello
Solicitor for the Applicant Oboodi Barristers and Solicitors
Solicitor for the Respondent Mr T. Eteuati, Clayton Utz Lawyers
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