Onyema and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3883

Onyema and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3883 (16 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4550

Re:Master G Onyema

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:16 October 2018  

Place:Melbourne

The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 6 July 2017, refusing the application of the Applicant for Australian citizenship.

The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Mr K Oneyma, was an Australian citizen at the time of the birth of the Applicant.

[sgd]........................................................................

Ms Anna Burke, Member

Catchwords

CITIZENSHIP – citizenship by descent – Applicant born outside of Australia – whether a parent of the Applicant was an Australian citizen at the time of the Applicant’s birth – meaning of parent – not limited to biological parent – ordinary meaning of parent – parent’s conduct before, at the time of and after the birth – decision set aside and remitted for reconsideration

Legislation

Administrative Appeals Tribunal Act1975 (Cth) s 33(1) (c)

Australian Citizenship Act 2007 (Cth) s 16

Cases
H v Minister for Immigration and Citizenship [2010] FCAFC 119
NWH v Minister for Immigration and Citizenship [2009] AATA 833
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2012)
Minister for Immigration and Border Protection v VDQS [2018] FCA 574 (26 April 2018)

ABCD and Minister for Immigration and Border Protection [2014] AATA 18 (7 January 2014)

Secondary Materials

Citizenship Policy (provides guidance on the interpretation and exercise of power under the Act)

REASONS FOR DECISION

Ms Anna Burke, Member

16 October 2018

1. Master G (the Applicant) is a three year old child born on 2 October 2014 in Nigeria, he applied to become an Australian citizen by decent on 10 September 2016 in accordance with section 16(1) of the Australian Citizenship Act 2007 (the Act).

2. In his application for Australian citizenship by decent his birth parent are recorded as:

   ·Kenneth I Onyema, male, date of birth 27 June 1986; and

   ·Veronica Aigbiko, female, date of birth 5 February 1988

3. Mr Kenneth Onyema was born in Nigeria and obtained his Australian citizenship by conferral on 1 September 2014.

4. A delegate of the Minister for Immigration and Border Protection on 6 July 2017 refused Master G’s application for citizenship by descent because at the time of his birth he did not have a parent who was an Australian citizen. In the delegate’s decision record he finds:

   ·that he is satisfied of Master G’s identity, having found he is a male child born in Nigeria

   ·that Master G’s approximate dates of conception would have fallen between 5/1/2014 and 13/1/2014. Mr Onyema’s movement records show he was present in Australia between 10/12/2013 and 2/4/2014. There is no record of Master G’s mother having ever travelled to Australia and no information that Master G was born through assisted reproduction technology and is therefore satisfied that Mr Onyema is not Master G’s biological father

   ·Mr Onyema is listed as the father on Master G’s birth certificate and it was accepted that Mr Onyema was recognised as a responsible parent at the time of the application for Australian citizenship by descent. However the birth certificate was issued more than two years after Master G’s birth and is not evidence that Mr Onyema was recognised as a legal parent at the time of birth.

   ·that he accepts Mr Onyema has contributed financially to Master G’s care in Nigeria. However Mr Onyema has not provided any evidence that he provided financial or emotional support to Master G’s mother during her pregnancy, he has not provided any supporting documentation that he had been acknowledged socially or legally as Master G’s father, and has not provided any evidence that he was involved in the day-to-day decision-making regarding Master G at the time of his birth. Therefore he did not accept that Mr Onyema is Master G’s parent for the purpose of citizenship by descent.

5. On 2 August 2017 an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (AAT) claiming the decision is wrong because (quoted):

   ·Delegate delayed a decision for the application for nearly 10 months for something would normally take 1 month. I came out fighting and was not polite with them at all because I was within my right.

   ·The delegate failed to apply Australian citizenship act 2007 accordingly and all of the case laws that have warranted the department to make changes to the citizenship act.

   ·All evidences provided were not carefully looked at, some were even over look

   ·To say the least they were poor and notorious for refusing visa, etc once your background is from a certain nationality

6. At the hearing conducted on 23 & 24 July 2018, Master G was represented by his father Mr Kenneth Onyema. Ms Melinda Jackson, solicitor from the Australian Government Solicitor, appeared on behalf of the respondent Minister. The Tribunal was provided with documentation under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).  The Applicant submitted a statement and numerous character references. Mr Onyema gave evidence under oath at the hearing and Ms Aigbiko gave evidence under affirmation via telephone from Nigeria.

   BACKGROUND

7. Mr Onyema and Ms Aigbiko met in Nigeria in 2003 and soon commenced a de facto relationship. Mr Onyema left Nigeria for Egypt in May 2005 to pursue his professional soccer career. At that time he left Ms Aigbiko in a rental apartment for which he was paying and supported her financially in opening a business in fashion design. He said they had been planning to marry and she has been waiting for him since that time.

8. Mr Onyema first met his Australian wife Nikki in 2006 when she was holidaying in Egypt. They exchanged emails and then subsequently commenced a relationship when he moved to Cyprus to continue pursuing his soccer career. Mr Onyema and Nikki were married in Turkey in May 2009. Mr Onyema advised the Tribunal that Nikki was divorced, had six children from previous relationships and was 20 years his senior and that he and Nikki had been trying for children but this had not been successful with Nikki suffering several miscarriages. Nikki had been keen to return to Australia and she successfully sponsored Mr Onyema on a partner Visa which subsequently led to his conferral of Australian citizenship in September 2014. Mr Onyema advised the Tribunal that his relationship with Nikki deteriorated in 2013 when he discovered she had been unfaithful to him after having an affair with one of his teammates in Cyprus.

9. Mr Onyema advised the Tribunal of his complicated relationship with Nikki and his sense of responsibility to support her financially and emotionally. They separated in 2015 and he is currently in the process of seeking a divorce.

10. Mr Onyema advised the Tribunal that in Nigeria an individual can have four wives legally; culturally it was common and accepted that one could have a partner on the side and it was not unusual by Nigerian standards for a male to live abroad but to continue to support a partner and children back in Nigeria. He expressed to the Tribunal that both culturally and personally he desired to be a father and so he returned to what he described “as his Nigerian option” in Veronica to commence a family.

11. Mr Onyema advised the Tribunal that his long-term plan was to bring Veronica and their child to Australia and that they both wanted more children.

    ISSUES

12. The issue in contention is whether Mr Oneyma was a parent of the Applicant at the time of his birth in accordance with section 16(2)(a) of the Act.

    LEGISLATION

13. Section 16 of the Act outlines the provision for application and eligibility for citizenship:

    (1)  A person may make an application to the Minister to become an Australian citizen.

    Note:         Section 46 sets out application requirements (which may include the payment of a fee).

    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 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

14. Section 17 provides, in part:

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

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

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

15. The Australian Government has issued the Citizenship Policy (the Policy) to support the Act and to assist decision-makers with decisions as to citizenship. Whilst it is not binding on decision-makers it should be followed unless there is good reason not to do so.

16. Chapter 20 of the Policy relevantly provides:

    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.

    Non-biological parent-child relationships

    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.

    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

    ·……

    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.

    CONSIDERATION

    The meaning of the word parent

17. The word parent is not defined in the Act. However the Full Court of the Federal Court of Australia has determined that whether or not a person is in fact a parent, within the ordinary meaning of the word, is a question of fact to be determined by the decision maker based on the facts and circumstances of each individual case.

18. In H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [8] the Full Court decided that the meaning of the word "parent" in the Act is not limited to biological parent and that a non-biological parent may be held to be a parent in certain circumstances.

19. The Court said in part:

    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.

    ...

    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...

    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...

    Is Mr Onyema the biological father of the Applicant?

20. The Minister’s representative contended that Mr Onyema could not be the biological parent of Master G by reference to the movement records indicating that Mr Onyema was in Australia from 10 December 2013 until 2 April 2014, given the accepted birthdate of Master G is 2 October 2014. Therefore, for Mr  Onyema to be the biological father the most favourable gestation period would have been the extremely implausible period of 42 ½ weeks, as Mr  Onyema is recorded as re-entering Australia on 10 December 2013 at 1:10 AM, indicating he would have left  Nigeria the day before.

21. The Minister’s representative entered into evidence an article from the Australian Bureau of Statistics’ series Australian Social Trends 2007, titled Australian Babies, which indicated that in 2004 the average gestation period for Australian mothers was 38.8 weeks which represented a decrease from 39.2 weeks in 1991. Ms Jackson also entered into evidence an article titled Duration of Human Singleton Pregnancies in Ibadan, Nigeria, published in the Journal of The National Medical Association.  The article was about a study of patients who delivered babies at the University College Hospital in Ibadan, Nigeria between 1986 and December 1992.  The study found the mode duration of pregnancy was 275 days and the medium was 276 days (39 weeks).  The article concluded that the mean pregnancy duration of black women was consistently lower than that of white women.

22. The Minister’s representative also referred to the document provided by Mr  Onyema from the hospital management board, General Hospital in Ibusa, in Delta State of Nigeria,  dated 30 September 2016 Re Master G:

    This is to hereby certify that the antenatal and 9 months pregnancy period of the above-named child was without any complications. The child was born via spontaneous Vertex delivery without any congenital malformation. The child has remained mentally, physically and medically fit since birth.

23. Mr Onyema contends that he accepts he is the biological father of Master G. He has not undertaken a DNA test to put this question beyond doubt as he cannot afford such a test and no one could legally demand that he obtain such a test. He strenuously argued that even if a DNA test proved he was not the father of Master G this did not alter his acceptance of Master G as his child.

24. Mr Onyema stated that Veronica, the mother of his child, had advised him she was pregnant in April 2014, when he had returned to Australia from a recent visit to Nigeria. He said he believed and accepted what she had told him; that she had given him assurances there were no other men involved; that he had been in a long term relationship with her and he did not want to break the trust or destroy the peace of their relationship as they had been trying for children.  Therefore, he fully accepted he was the biological father of the child. He indicated to the Tribunal that he had hurt Veronica deeply when he had married Nikki and he did not want to destroy her trust again.

25. Mr Onyema provided a written response on 6 December 2016 to adverse findings in respect of Master G’s application for Australian citizenship by descent. In it he stated:

    During those two period you mentioned we agreed to try for kids and I travelled to Nigeria on both occasions. Also bear in mind I hold Nigerian passports as well. By April I got confirmation of pregnancy and I assumed full control and acknowledgement bearing in mind that we have had sexual intercourse. You might assume that I am not the person because of those dates of travel on file. But it is the mother of the kid that says who she thinks impregnated her to the best of her knowledge. We have being in de facto relationship since 2004 and I have to acknowledge what she says.

26. Ms Veronica Aigbiko, the mother of Master G, was adamant in her testimony to the hearing that Mr Onyema was the biological father of her child and that she had had no other relationships. She told the Tribunal that she and Mr Oneyma had been in a long-term relationship, having first met in 2003. She had been in constant touch with him until his wife Nikki had called her to say she must not contact him again. She expressed how unhappy this made her, saying that she felt very bad/very hurt and she almost harmed herself. She told the Tribunal she was always hopeful that he would come back to her and when he returned to Nigeria and they recommenced their physical relationship she was incredibly happy.

27. Regardless of Mr Onyema’s belief, and Ms Aigbiko’s evidence, the Tribunal finds that it is highly implausible that Mr Onyema is the biological father of Master G.

    Was Mr Oneyma the parent of the Applicant at the time of his birth?

28. Ms Jackson contended that the Tribunal should not be satisfied that Mr Onyema was Master G’s parent at the time of birth, as there was insufficient evidence to demonstrate he was involved in providing care for the unborn child and/or the mother during the pregnancy through emotional, domestic or financial support. There was no evidence he was involved in arrangements for the birth or prenatal or postnatal care. Furthermore, there was no evidence that the child was acknowledged socially, from or before his birth, as Mr Onyema’s child by his family or social connections in Australia.

1. Ms Jackson acknowledged there was evidence of financial support from Mr Onyema to the mother of Master G, as evidenced by money transfer receipts and rental receipts. However, the amounts seemed insubstantial and there was no indication that this money had been used for the support of the child.

2. Ms Jackson also acknowledged there were records of telephone  calls between Mr Onyema and the mother of Master G but the calls were  few and of a very short duration. The representative argued that this would be insubstantial information to demonstrate a relationship between the couple for migration purposes. Further she contended that proving a parental relationship between Mr Onyema and Master G should be more onerous and not be seen as an easier option for non-biological parents citing the Full Court in  H v Minister for Immigration and Citizenship, which said: parentage is not just a matter of biology but of intense commitment to one another, expressed by acknowledging that other person is one’s own and treating him as such.

3. Mr Onyema argued that it was both his and Veronica’s evidence that they were the mother and father of Master G and no other person had put themselves out as claiming to be the child’s parents.

4. Mr Onyema outlined that:

   ·he had been financially supporting Veronica since 2013, paying her rent and meeting all her and their child’s financial requirements;

   ·that his family and social group in Nigeria acknowledges that he is the father of Master G;

   ·that for obvious reasons he had not declared he was the father of Master G in Australia as he was still married to Nikki at the time of the child’s birth;

   ·that he has a bond with Master G and speaks on the telephone to him regularly, and that Veronica has told their son his father is somewhere else in Nigeria so he won’t get too upset about the fact he is so far away;

   ·that financially he has been unable to return to Nigeria because he has been pursuing his studies as an alternative to his soccer career but that he was determined to visit Veronica and his son at Christmas-time this year.

5. Mr Onyema argued that Master G’s birth certificate named him as the child’s father and that this was a legal document provided by the Federal Republic of Nigeria’s National Population Commission. Additionally, Master G had acquired a Nigerian passport which had accepted the birth certificate as a legitimate identifying document.

6. Ms Jackson argued that minimal weight should be placed on the birth certificate as evidence of a parental relationship at the time of Master G’s birth, as the birth certificate had been issued nearly two years after the child’s birth and parentage had been recorded on the basis of self-reporting.

7. Mr Onyema took exception to Master G’s birth certificate being disregarded as it was a legal document and he said that it was common practice in Nigeria not to seek a birth certificate at the time of birth. Master G’s birth certificate had been obtained so that he could apply for a Nigerian passport, as he required an internationally recognised document to prove identity.

8. Mr Oneyma reiterated that he accepted the word of his long-term partner Veronica that he was the father of Master G; that he had accepted this fully and willingly and would continue to act as the child’s father now and into the future.

9. The Tribunal, having determined that Mr Onyema is not the biological father of Master G, has considered the facts outlined above which would indicate that Mr Onyema was Master G’s parent at the time of his birth.

10. The Tribunal finds that Mr Onyema has been providing continual emotional and financial support to Veronica since 2013, both before and after the birth of Master G.

11. The Tribunal finds that Mr Onyema has at all times adamantly maintained his position that Master G is his son and indicated he would do so even if it was proven he was not the biological father. No other individual has come forward claiming to be Master G’s father.

12. The Tribunal finds that Ms Aigbiko, the mother of Master G, has at all times adamantly maintained her position that Mr Onyema is the father of Master G.

13. Whilst the official birth certificate from Nigeria recorded Mr Onyema as the father, the Tribunal placed less weight on this document as it was issued two years after the birth.

14. On the basis of the above, the Tribunal is satisfied that Mr Onyema genuinely believes he is the father of Master G, has fully accepted his responsibility as the father of Master G since he was advised of Ms Aigbiko’s pregnancy in April 2014, and was the Australian parent of the child at the time of birth.

    CONCLUSION

15. The Tribunal sets aside the decision of the delegate of the Minister for Immigration and Border Protection dated 6 July 2017, refusing the application of the Applicant for Australian citizenship.

16. The Tribunal remits the matter to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Mr K Oneyma, was an Australian citizen at the time of the birth of the Applicant.

I certify that the preceding 44 (forty-four)  paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

[sgd]...........................................................

Associate

Dated: 16 October 2018

Date(s) of hearing:	23 & 24 July 2018
Advocate for the Applicant:	Mr Kenneth Onyema
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor