NWH and Minister for Immigration and Citizenship

[2011] AATA 286

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 286

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2138

GENERAL ADMINISTRATIVE DIVISION		)
Re		NWH

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Mr D Letcher QC, Senior Member

Date3 May 2011

PlaceSydney

Decision The Tribunal affirms the decision to refuse NWH's application for Australian citizenship by descent.

...................[SGD].......................
   Ms G Ettinger

Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship by descent – Applicant’s mother pregnant with him when she marries an Australian citizen in China – Australian citizen not biological parent – claim that Australian husband has the requisite relationship with the Applicant in order for him to qualify as a parent under the legislation – putative Australian parent did not attend the hearing – Tribunal not satisfied on the evidence that the mother’s husband is a parent to the Applicant  – decision under review affirmed.

Australian Citizenship Act 2007 (Cth) ss 4, 6, 13, 16, 19C, 25

NWH v Minister for Immigration and Citizenship [2009] AATA 833

H v Minister for Immigration and Citizenship (2010) 188 FCR 393

Re McMullen and Minister for Immigration and Citizenship (2009) 111 ALD 475

REASONS FOR DECISION

3 May 2011

  Ms G Ettinger, Senior Member

               Mr D Letcher, Senior Member

SUMMARY

1.      Master NWH, represented by his mother Ms W, has applied to this Tribunal for review of the decision to refuse his application for Australian citizenship by descent. Following an appeal to the full bench of the Federal Court in H v Minister for Immigration and Citizenship (2010) 188 FCR 393, the application of NWH was remitted to this Tribunal to be heard de novo.

2.      The Full Court in H v Minister for Immigration and Citizenship stated at [131]:

[131] We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant…

3.      Accordingly we had to decide whether we were satisfied to the requisite standard that Mr H, the husband of NWH’s mother, who is not his biological father, can be held to be NWH’s parent pursuant to section 16(2) of the Australian Citizenship Act 2007 (Cth) (the Act), and whether NWH can therefore have conferred upon him, Australian citizenship by descent.

4.      From the evidence before us, we were not so satisfied, and we have affirmed the decision under review.  Our reasons follow.

BACKGROUND

5.      NWH was born in China in September 2008. His mother, Ms W, is a Chinese citizen.  Ms W has acted as NWH’s representative in making his application for Australian citizenship.  He has had one application heard and determined by the Tribunal, NWH v Minister for Immigration and Citizenship [2009] AATA 833, which found that due to the fact NWH does not have at least one biological parent who is an Australian citizen, he could not attain Australian citizenship by descent.

6.      Ms W appealed that decision which was heard by the Full Federal Court, and resulted in the decision H v Minister for Immigration and Citizenship (2010) 188 FCR 393. The Federal Court remitted the matter to the Tribunal, indicating that a non-biological parent may be held to be a responsible parent in certain circumstances.

7.      At the hearing before us, Ms W gave evidence by telephone from China. We were assisted by Ms H Yang, a very competent interpreter in the Mandarin language. It was important for us in order to make the correct or preferable decision, to hear evidence from Mr H, Ms W’s husband, and the child’s putative father. We are satisfied Ms W had been informed on several occasions, that it was important Mr H attend to give evidence at the hearing. In email correspondence with the Tribunal, Ms W had indicated that she would see if he could attend.

8.      However, Mr H did not attend the hearing. Ms W told us that he had undergone shoulder surgery, was resting, and, although resident in Sydney, was unable to attend. We asked her if there were medical certificates available. There were not, she said, nor were any tendered. We did however, have a short typed statement of Mr H, dated 6 December 2010, which was before the Tribunal as Exhibit A4.

9.      In light of the information that Mr H was unable to attend, Mr Moloney, who represented the Minister at the hearing, sought, and was granted an adjournment to seek instructions. He returned with a submission that the hearing be adjourned in order for Mr H to attend on another occasion. Ms W opposed the application, saying she wanted to proceed, and stated emphatically her views regarding why NWH should be granted citizenship by descent. Senior Member Letcher made a point of advising Ms W of the relevance and importance of the Tribunal hearing from Mr H.

10.     Ultimately, having considered the submissions of both parties, the Tribunal decided that in the light of Ms W’s wish to proceed, the hearing should proceed.

11.     As to the facts in this matter; we noted from Ms W’s evidence that she and Mr H married in China in June 2008. When asked about the date, Ms W told us it was 8 June 2008, but after having looked at the marriage certificate, corrected that to 10 June 2008, explaining that the eighth was an auspicious date. It turns out that Ms W and Mr H, who met on the internet, first met in person when Mr H arrived in China on 8 June 2008, and that they were married two days later. We noted that Ms W was born in 1977 and was aged 34 at the time of marriage, whereas Mr H, being born in 1957, is 20 years older. Mr H stayed in China for approximately a fortnight. He is an Australian citizen and returned to Sydney, where he lives. He has visited Ms W only once since then, for a week in May 2010, she told us.

12.     Ms W was six months pregnant when she and Mr H married. She gave birth to NWH in September 2008, after Mr H had returned to Sydney. Ms W acknowledges that Mr H is not NWH’s biological father. She declined to inform the Tribunal of the name of NWH’s biological father. Ms W told us that she has been married before, and that she has another child aged six.

13.     On 9 October 2008, Ms W lodged NWH’s application for Australian citizenship by descent with the Australian Consulate-General in Shanghai. The application was supported by a birth certificate for NWH stating that Mr H is his father.  By letter, dated 15 April 2009, a senior migration officer informed Ms W of his decision to refuse NWH’s application on the ground that NWH is not descended from an Australian citizen parent, and has no genetic link to an Australian citizen. 

14.     On 14 May 2009, Ms W applied to the Tribunal on NWH’s behalf for a review of that decision.

ISSUE TO BE DECIDED

15.     The Tribunal has to decide whether the relationship between Mr H and the Applicant, NWH, satisfies section 16(2)(a) of the Act, such that Mr H can be considered to be the Applicant’s parent, and that NWH would therefore be eligible for citizenship by descent.

LEGISLATIVE ENVIRONMENT

16.     Subsection 16(2) of the Act provides:

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

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

(b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

(c)if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

17.     The parties raised various paragraphs from the Full Federal Court decision in H v Minister for Immigration and Citizenship. We have reproduced them below as relevant.

[48] Today, perhaps, one assumes that when a person speaks of a “parent”, the speaker is referring to a biological parent. If, however, it is plain from the context or from one’s knowledge of the speaker that the reference is not to a genetic relation but to someone who, for the speaker, performs the role that society typically expects a parent to fulfil, then one accepts the reference to “parent” as apposite. Thus, in ordinary usage, the word “parent” may be used without modifier to signify a genetic or non-genetic connection with another: compare Black’s Law Dictionary (8th ed, 2004). Whilst often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.

18.     At [54], their Honours stated:

[54] The concept of citizenship, though not constitutionally defined, is therefore central to the idea of the Australian body politic; and to the way the Australian community defines itself for the present and the foreseeable future. As the legislative history (discussed below) shows, just as “[c]onstitutional notions of membership of the Australian community” have changed with “international and national realities”, so too legislative notions of membership of the Australian community have altered to keep pace with changing social or cultural realities: compare Singh 222 CLR at 417 [263]-[264] (Kirby J). Unsurprisingly, the ancient principles of jus soli and jus sanguinis to which the Minister referred no longer much guide Parliament in determining membership of the Australian community. Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the “common bond” mentioned in the preamble. Within this framework, there is, however, little contextual support for the proposition that the word “parent” has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word. Biological parentage can scarcely be the sine qua non of a meaningful connection to the Australian community. A claimant for citizenship under 16(1), with a biological at-birth citizen parent, can have no more connection with the country than a claimant for citizenship also born outside Australia, with an at-birth citizen parent who holds out the person as his child from birth, treating the person as his child from that point on, though the genetic link is missing. Bearing this in mind, the more rational approach is not to attribute some technical meaning to the word “parent” in s 16(2), but instead to attribute to the word its ordinary meaning as evident in ordinary contemporary English usage. Under the present jurisdictional arrangement, it would then be a matter for the Tribunal to determine whether, on the facts as found, either claimant for citizenship had, relevantly, a citizen “parent” within the ordinary meaning of the word, as at the time of their birth.

19.     The Full Federal Court continued with the definition of parent at [127] – [131]:

[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 s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(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 intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

[128] The word “parent” is an everyday word in the English language, expressive both of status and relationship to another.  Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: see, e.g., s 8 of the Citizenship Act; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J).  This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.  

[129] Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.

[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 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. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.

[131] We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister’s construction (see [79]). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.

20.     Accordingly, a person who is not the biological father of a child such as NWH, may, in certain circumstances, be held to be the parent of the child.

SUBMISSIONS

21.     Ms W has made extensive written submissions to the Tribunal. A large bundle of her emails was before us as Exhibit A3. Other documents and photographs which Ms W has submitted, including a photograph of NWH which she says was signed by Mr H, are Exhibits A1 and A2.

22.     Given the decision of the Full Court to guide us, and the fact that it is a hearing de novo, we do not find it necessary to refer to submissions which were made at the previous Tribunal hearing. We are bound to accept from the Full Court at [127], that:

[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 s 16(2), the word “parent” only can mean biological parent…

23.     We note however, that Ms W referred on a number of occasions during her submissions to us, to Re McMullen and Minister for Immigration and Citizenship [2009] AATA 638, where the Tribunal interpreted the word parent in section 16(2)(a) of the Act to include a non-biological parent. Ms W was adamant that the situation in Re McMullen was very different from that of her son. Indeed for our part we found distinct contrasts between the commitment, contact, support and assumption of responsibility by the parents in Re McMullen and the situation in this case.

24.     Mr Moloney made submissions on behalf of the Minister based on the Respondent’s Statement of Facts and Contentions. He submitted that for the reasons given in the Statement of Facts and Contentions, the requisite parent/child relationship had not developed between Mr H and NWH, neither at the time of NWH’s birth nor at any later time. 

25.     Both parties referred to various paragraphs in the Full Court decision, including paragraphs 48 and 54, as well as 129, 130 and 131.

THE TRIBUNAL’S DELIBERATIONS AND CONCLUSIONS

26.     In coming to a decision we accept the Full Court’s comment that parent today can indicate a social relationship to another person, and that the parent need in some circumstances, not be a biological parent. We note that the Full Court also urged upon us not to attribute some technical meaning to the word parent, but rather to give it its ordinary meaning as evident in ordinary contemporary English usage, and of course we must do that. 

27.     We are satisfied from Ms W’s evidence that Mr H is not NWH’s biological parent. In order to establish to our satisfaction whether Mr H satisfies being a parent to NWH in the terms of the Act, and whether NWH can therefore be conferred citizenship by descent, we have considered various indicia. 

28.     Ms W’s evidence was that she and Mr H met on the internet, and that she had known him on the internet for five months before they met. Ms W says she is able to write in English but cannot speak it, while Mr H does not speak Mandarin. She said that Mr H came to China and, two days after he arrived on 8 June 2008, they married. She said that he is a good man, and wanted to marry her in spite of the fact she was pregnant at the time. Ms W also told us that Mr H was not in China when NWH was born in September 2008. In fact Mr H only spent approximately two weeks in China in 2008. We noted from the evidence that the first time Mr H met NWH was on a return trip to China in May 2010, when Mr H, Ms W and NWH spent a week together.

29.     When we asked her about Mr H’s occupation, Ms W said that she does not know what work he does in Sydney. She added that he had been a security guard at one time. Ms W also told us that Mr H has not given, and does not give her any money to support her, or the child, but that she has sufficient money as she has a good job with a telecommunications company in China. 

30.     Ms W told us that distance does not stop a relationship forming, and that she and NWH see Mr H when they communicate via internet video calls. We are not convinced to the requisite standard that a parental relationship can be formed between NWH and Mr H, partly because NWH and Ms W speak Mandarin, whereas Mr H speaks English, and no Mandarin.

31.     When we questioned Ms W about Mr H’s role in relation to NWH, she insisted that he has a good relationship with the child, and brought him toys when he visited. She also tendered photographs of ‘Australian’ souvenirs which are in a bundle of photographs before us as Exhibit A2. We asked Ms W about Mr H’s role in bringing up NWH. She said that the child is too young for any major decisions to be made about him. Notwithstanding Ms W’s evidence that she and Mr H speak on the telephone, we are satisfied from the evidence that he was not, and is not actually involved in bringing up NWH.

32.     Mindful of the Full Court’s statement at [130], which is reproduced below, we were very keen to hear from Mr H at the hearing:

[130] …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…

33.     We anticipated hearing from Mr H would be important, and to that end, the Tribunal’s staff who communicated with Ms W by email (extensive bundle of emails in English comprise Exhibit A3), made her aware of that. We did not have a separate email or other address to which we could send notices of hearing to Mr H.  A selection of the emails sent to Ms W about Mr H attending, follows.

Tribunal email, 8 February 2011 – Please be aware that Mr H is likely to be required for cross-examination by the Respondent (that is, the Respondent will want Mr H to be available to be asked questions about the statement he has provided).

Ms W replied on 15 February – Having asked my husband, I was told that he will try his best to ask a leave at that time and in case it is really difficult the applicant side would like to apply that the cross-examination be held via telephone.  You know it is not so easy for a man in my husband's age to find another stable job.  My husband is a hard working man, not like Mr McMullen, who has retired, does not have to concern the problem of time so much.  We hereby ask for the respondent's understanding.

Tribunal email, 16 February 2011 – SM Ettinger would prefer that Mr H attends the Tribunal in person at the hearing if he is in Sydney.

Tribunal email, 11 April 2011 – ...The Tribunal and the Respondent also require Mr H to attend the hearing so that they can ask him questions.  It is very important for your son's case that he be available at the Tribunal hearing...

Tribunal email, 13 April 2011 – ...It is also very important that Mr Hudson attends the Tribunal for the hearing...

34.     We are mindful from the above that Tribunal staff contacted Ms W about the importance of Mr H attending as recently as a day before the hearing which took place on 14 April 2011.

35.     The only evidence from Mr H was a statement, formal in nature, addressing in bald terms the criteria set out in paragraph 130 of the Federal Court judgement. The statement, (Exhibit A4), dated 3 December 2010, follows:

1. I   S… J…  H…  of  (address was supplied) affirm

2. N.. W.. H… is my son.

3. I understood that N… is not my biological child before I married my wife Ms X… W…

4. Since I became the husband of Ms X… W…, she and I decided together that I would become N…’s father regardless of the absence of the genetic links between my son and me.

5. Eventually, I became N…’s father at the time of he birth on September … 2008.

6. I authorized my wife to list my name and passport number on N ..’s birth certificate as his father.

7. As a fully support N…’s application for Australian citizenship, I left my wife my birth certificate for the application.

8. I will assist my wife to migrate to Australia and look after N… together while I believe that N… should come back to Australia as an Australian citizen.

9. I have already taken my responsibility of parentage as N…’s father since his birth and I will continue doing so in the future.

36.     Ms W told us that she assisted Mr H to prepare the statement. She denied assistance by a migration agent or lawyer in China or Australia. We find the statement unconvincing in its terms and content.

37.     We were not able to accept that evidence as convincing or complete in the absence of any other signs of parenting from Mr H, particularly as, according to Ms W, he has offered no financial support, and plays no role in making decisions about the boy’s life. Mr H has only visited Ms W and her son once, in May 2010 for a week, since the boy was born.

38.     Accordingly our conclusion is that we are not satisfied that Mr H has established the requisite degree of connection as a parent with NWH, and accordingly, NWH is not eligible for Australian citizenship by descent pursuant to section 16(2)(a) of the Act.

DECISION

39.     The Tribunal therefore affirms the decision to refuse NWH’s application for Australian citizenship by descent.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Mr D Letcher QC, Senior Member

Signed:         ..............[SGD]...........................................................
  Associate

Date of Hearing  14 April 2011
Date of Decision  3 May 2011
Applicant  Ms W on behalf of Master NWH 
Solicitor for the Respondent     Scott Moloney, Clayton Utz