NWH v Minister for Immigration and Citizenship
[2009] AATA 833
•28 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 833
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/2138
GENERAL ADMINISTRATIVE DIVISION )
ReNWH
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr R P Handley, Deputy President
Date28 October 2009
PlaceSydney
DecisionThe Tribunal affirms the decision to refuse NWH’s application for Australian citizenship by descent.
.......................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship by descent – applicant a child of marriage - Australian citizen parent not biological parent – applicant not adopted – decision under review affirmed
WORDS AND PHRASES - ‘parent’ and ‘descent’
…
RELEVANT ACTS
Australian Citizenship Act 2007 (Cth): ss 4, 6, 12, 13, 16, 19C, 25
Acts Interpretation Act 1901 (Cth): ss 13, 15, 15AA
Family Law Act 1975 (Cth): ss 4, 69P, 69U
Australian Citizenship Act 1948 (Cth): s 10C,
…
CITATIONS
Re McMullen and Minister for Immigration and Citizenship [2009] AATA 638
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
…
OTHER AUTHORITIES
Australian Citizenship Instructions
The Macquarie Dictionary (4th edn, The Macquarie Library, Sydney, 2005)
Convention on the Rights of the Child (Opened for signature 20 November 1989) 1577 UNTS 3 (entered into force for Australia 16 January 1991)
Australian Citizenship Bill 2006 (Cth) 28 November 2006
Oxford English Dictionary Online (Oxford University Press, 2000-onwards)
DC Pearce and RS Geddes Statutory Interpretation in Australia (6th ed), Butterworths Sydney, 2006)
…
REASONS FOR DECISION
| 28 October 2009 | Mr R P Handley, Deputy President |
NWH has applied to the Tribunal for the review of a decision to refuse his application for Australian citizenship by descent on the ground that he has no genetic link to an Australian citizen parent. The issue for the Tribunal is whether NWH’s Australian citizen parent must be a biological parent.
background
NWH was born in China in September 2008 and is now aged one. His mother, Ms W, is a Chinese citizen. Ms W acted as NWH’s representative in making his application for Australian citizenship.
In June 2008, Ms W and Mr H were married. Mr H was born in Sydney and is an Australian citizen by birth. At the time NWH was conceived, Mr H was in Australia and Ms W acknowledges that he is not NWH’s biological father.
On 9 October 2008, Ms W lodged NWH’s application for Australian citizenship by descent with the Australian Consulate General Shanghai. The application was supported by a birth certificate for NWH stating that his father is Mr H. 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”. The officer noted that Ms W had confirmed that Mr H is not the biological father of the child, but that she and Mr H had met in China and married in a ceremony in China prior to NWH’s birth.
On 14 May 2009, Ms W applied to the Tribunal on NWH’s behalf for a review of this decision.
legislation and issues
Section 16(2) of the Australian Citizenship Act 2007 (Cth) (the 2007 Act) states relevantly:
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;
(b)…
The facts of this case are not in dispute. At the hearing, Ms W and the person assisting her, Mr Strong Rudd, confirmed that the sole issue in dispute is the meaning of the word ‘parent’ in s 16(2)(a) of the 2007 Act, there being no definition for this word in the Act.
submissions
Ms W made lengthy written submissions filed on 12 October 2009. Many of these submissions deal with the facts of this case and evidence establishing those facts. Since the facts of the case are not in dispute, there is no need for me to refer to that material here.
In relation to the law, and how the word ‘parent’ in s 16(2)(a) should be interpreted, Ms W referred to provisions of the Family Law Act 1975 (Cth) (the Family Law Act) and the presumption in s 69P(1) that a child born to a woman while she is married is presumed to be the child of the woman and her husband. She noted that this includes a non-biological parent, which is, therefore, how the word ‘parent’ in s 16(2)(a) should be interpreted.
Ms Quinn, for the Minister, submitted that the Tribunal should consider the purpose or object of the 2007 Act. In the interpretation of a provision of the 2007 Act, a construction that would promote the purpose or object of the 2007 Act is to be preferred to one that would not: s 15AA(1), Acts Interpretation Act 1901 (Cth) (the Interpretation Act). Ms Quinn stated that s 16 of the 2007 Act deals with Australian citizenship by descent and that in this context, ‘descent’, according to The Macquarie Dictionary, implies a biological or genetic relationship. Interpreting ‘parent’ as meaning biological parent is consistent with other uses of the word ‘parent’ in the 2007 Act.
Ms W also referred to the meaning of the word ‘descent’, which she said is defined by reference to a person's relationship and without reference to any biological connection. Additionally, Ms W referred to dictionary definitions of the word ‘parent’, which define the word broadly as a person who is the father or mother of a child, there being no reference to a requirement for a biological connection. She noted that s 6 of the 2007 Act refers to the term ‘responsible parent’, which is to be interpreted in accordance with the meaning in the Family Law Act.
Ms Quinn noted that the words ‘responsible parent’ is defined in s 6 of the 2007 Act and encompasses a broad concept of parentage, including where a person has guardianship or custody of a child. The term ‘responsible parent’ is not, however, relevant to acquisition of citizenship by descent, but rather to acquisition of citizenship by conferral (see for example, cancellation of the Minister’s approval of a child’s citizenship under s 25(4) of the 2007 Act). Ms Quinn also noted that the definition of ‘child’ in s 4 of the 2007 Act, (which includes adopted or ex-nuptial children), is referable to whether the 2007 Act uses the term ‘responsible parent’. The word ‘child’ is not used in s 16. So also in s 12 (citizenship by birth), where the word ‘child’ is not used and the context implies that the word ‘parent’ requires there to be a biological connection.
Ms Quinn noted that specific provisions of the 2007 Act deal with acquisition of citizenship by an adopted child (ss 13 and 19C), suggesting that the meaning of the word ‘parent’ in s 16 does not include adopted parents. The fact that the biological parent of a child marries another person does not make the other person a parent of the child.
With regard to definitions used in the Family Law Act referred to by Ms W, Ms Quinn noted that s 4(1) of that Act contains separate definitions for and makes a clear distinction between the words ‘parent’ and ‘step-parent’, the latter term being a better description of Mr H's relationship with NWH. Ms Quinn said Part VII of the Family Law Act is concerned with children. Section 69P(1), referred to by Ms W, states that if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. However, this is a presumption that can be rebutted on the balance of probabilities (s 69U) and it is not a presumption that applies in respect of the 2007 Act.
Ms Quinn noted that the definition of parent when used in Part VII in relation to a child who has been adopted includes an adoptive parent. She said the context of these provisions in the Family Law Act is different from that of the 2007 Act. These Family Law Act provisions do not apply to the 2007 Act and are of no assistance in interpreting the meaning of the word ‘parent’. Ms Quinn submitted that there are two meanings of the word ‘parent’ in general use – a broader definition such as that used in the Family Law Act and the narrower definition of biological parent, which the 2007 Act makes reasonably clear should be applied in respect of s 16.
Ms W referred to the Australian Citizenship Instructions (ACIs), which she said shed no further light on the relevant provisions of the 2007 Act, there being no reference to a requirement that a ‘parent’ be a biological parent. Those parts of the ACIs that deal with surrogacy and adoption are not relevant here because this is not a case involving surrogacy or adoption.
Ms W submitted that the best interests of NWH should be the Tribunal’s paramount consideration pursuant to the Convention on the Rights of the Child, and that it was in his best interests that he be permitted to be with his mother who has decided to migrate to Australia.
Ms Quinn submitted that the Convention on the Rights of the Child is not relevant to the interpretation of the word ‘parent’ in s 16(2)(a). NWH, as a step-child of Mr H, may still be able to obtain permanent resident status through his mother and, ultimately, to apply for Australian citizenship.
Ms W referred to two recent decisions of the Tribunal in relation to her contentions. In Re McMullen and Minister for Immigration and Citizenship [2009] AATA 638 (McMullen), the Tribunal interpreted the word ‘parent’ in s 16(2)(a) of the 2007 Act to include a non-biological parent. Ms W sought to distinguish the decision in Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124 (Kumar), where the Tribunal was not satisfied that the child in question was the biological child of the woman who claimed to be the child’s mother. Thus, Ms W said that in Kumar, at the time of his birth, the child did not have a parent who was an Australian citizen.
consideration
As stated above, the issue in dispute is the meaning of the word ‘parent’ in s 16(2)(a) of the 2007 Act. As Deputy President McDonald commented in McMullen at [20], “Regrettably the 2007 Act does not define ‘parent’.” In that case, the facts of which are significantly different from those of the present matter, DP McDonald rejected the Respondent’s submission that the implicit meaning of ‘parent’ in the context of the 2007 Act was ‘biological parent’. The Deputy President noted, at [23], that in the previous legislation, the Australian Citizenship Act 1948 (Cth) (the 1948 Act), at s 10C(4)(a), citizenship by descent was defined by reference to the words ‘natural parent’. Because no such qualifying word is used in the 2007 Act, he was “unable to see why the Tribunal should qualify a word when the previously existing qualifier has been dropped from the current legislation”. DP McDonald rejected references to the Family Law Act as being unhelpful.
The other relevant Tribunal decision referred to by Ms W is that of Kumar. As DP McDonald stated in McMullen, at [23], the decision in Kumar was made on a different basis, namely that the Tribunal was not satisfied that the mother, who was an Australian citizen, and on whose citizenship the application for citizenship for descent was based, was the biological parent of the child. In Kumar, Deputy President Forgie referred to the relevant legislation and the ACIs. She noted, at [74], that provided the policy set out in the ACIs is consistent with the 2007 Act, does not require a decision-maker to take into account irrelevant circumstances or to exercise a power for improper purposes, it could provide guidance in the exercise of powers under the 2007 Act. However, “the policy and guidelines cannot be used to identify the boundaries and content of legislation” (at [79]), nor “in determining what material is relevant to the issues it [the Tribunal] must decide and what is probative” (at [80]).
Deputy President Forgie stated, at [82]:
Section 16(2)(a) refers to a “parent of the person” being an Australian citizen at the time of the birth. Although it may be regarded as obvious, I want to make it explicit that I understand the word “parent” to mean those who are the biological parents of the child. That is a meaning more narrowly expressed than the meanings ordinarily given to the word “parent”. Its ordinary meanings include mother or father and extend to the adopter or guardian of a child [fn: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers]. As s 13 of the Act deals specifically with citizenship by adoption and s 8 deals with children born by artificial conception, it seems to me that the word “parent” should not be given a meaning that extends beyond the biological parents of the child.
In the present matter, Ms Quinn, citing s 15AA of the Interpretation Act, referred me to the purpose or object of the legislation and to the wording of the 2007 Act. Part 2 is headed ‘Australian Citizenship’. Division 1 of Part 2 is headed ‘Automatic Acquisition of Australian Citizenship’ and deals with, for example, acquisition of citizenship by birth and adoption. Division 2 of Part 2 is headed ‘Acquisition of Australian Citizenship by Application’ and Subdivision A of Part 2 is headed ‘Citizenship by Descent’. The word ‘descent’ is not otherwise used in Subdivision A.
Section 13(1) of the Interpretation Act states:
The headings of Parts Divisions and Subdivisions into which an Act is divided shall be deemed to be part of the Act.
As DC Pearce and RS Geddes comment in Statutory Interpretation in Australia (6th ed), Butterworths Sydney, 2006, at [1.33], such headings are “drafting devices that are used for the better presentation of the Act to its readers and to make the task of understanding it a little easier”. However, where the meaning of a provision is ambiguous, a heading may be taken into consideration. In Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, at 16, Latham CJ said:
The headings in a Statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision …
The parties referred me to the dictionary definition of ‘descent’. I note that the following meanings are included among those listed in the Oxford English Dictionary:
7.The fact of ‘descending’ or being descended from an ancestor or ancestral stock; lineage.
8a.A line of descent, lineage, race, stock …
b. A descendant (lit. and fig.); also descendants collectively, offspring, issue.
The Macquarie Dictionary lists as its fourth meaning for ‘descent’, “derivation from an ancestor; extraction; lineage”. In my view, these meanings clearly imply a biological connection.
Pursuant to s 15AB of the Interpretation Act, which permits reference to extrinsic material for the purpose of ascertaining the meaning of a provision, I also examined the Explanatory Memoranda for the Australian Citizenship Bill 2006 in order to try and determine the meaning of the word ‘parent’ in s 16(2) but, in my view, these provide no assistance.
Ms Quinn referred me to the context of the 2007 Act and to other provisions in the Act dealing with those children who have been adopted (see ss 13 and 19C), indicating that the word ‘parent’ in s 16(2)(a) does not include an adopted parent. I agree that the context of the 2007 Act, including the way in which it is structured, indicates this.
With regard to the Family Law Act, I agree with DP McDonald in McMullen, at [25], that reference to the provisions of that Act provides little assistance. I agree with Ms Quinn that the context of the Family Law Act is different from that of the 2007 Act and that while the word ‘parent’ used in the Family Law Act bears a broad meaning, the context of the 2007 Act indicates that the word ‘parent’ used in s 16(2)(a) bears a narrower meaning.
Nor do I find the Convention on the Rights of the Child relevant here - for the reasons given by Ms Quinn. It is open to Mr H to adopt NWH who, on adoption, could apply to become an Australian citizen under s 19C of the 2007 Act. Ms Quinn stated that NWH may also be able to obtain permanent resident status in Australia and, ultimately, citizenship if Ms W is granted permanent residence.
In Kumar, DP Forgie referred to the relevant provisions of the ACIs, which may be regarded as Government policy providing guidance in the exercise of the discretionary powers. Policy cannot, however, as the Deputy President pointed out at [80], guide the Tribunal in the interpretation of the law.
In conclusion, my view, which accords with that of DP Forgie in Kumar, is that the word ‘parent’ in s 16(2)(a) means biological parent. This is consistent with the use of the word ‘descent’ in the heading to Subdivision A of the 2007 Act, the relevant dictionary meanings accorded to the word ‘descent’, and with the structure and context of the 2007 Act, including, for example, how provisions affecting adopted children are set out.
Thus, NWH is not eligible for Australian citizenship under s 16(2)(a) because Mr H is not his biological parent and NWH did not have a biological parent who was an Australian citizen at the time of his birth.
The Tribunal therefore affirms the decision to refuse NWH’s application for Australian citizenship by descent.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: ................[sgd]............................................................
A Veness, Associate
Date of Hearing: 14 October 2009
Date of Decision: 28 October 2009
Date of amended decision: 1 March 2011
Applicant representative: Mr Strong Rudd and Ms W
Respondent representative: Ms Therese Quinn, DLA Phillips Fox
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