Re Kumar and Minister for Immigration and Citizenship - [2009] AATA 124

CATCHWORDS – CITIZENSHIP – application for grant of citizenship – whether Australian citizen signing application on behalf of applicant is his parent – decision affirmed

PRACTICE AND PROCEDURE – whether rule in Jones v Dunkel applicable – rule relevant in assessing probity of evidence – applies as a facet of duty to act with procedural fairness even though rules of evidence do not apply.

Administrative Appeals Tribunal Act 1975 ss 33, 33(1)(c), 33(1AA), 37 and 43(1)
Australian Citizenship Act 2007 ss 3, 6, 10(1), 16(2) and (3), 17(1A), (2), (3)-(5), 40
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13
Crimes Act 1914 s 23WA
Crimes Act 1958 (Vic) s 464(2), 464T(1)
Australian Citizenship Regulations 2007
Family Law Act 1975

Privacy Act 1988

Aporo v Minister for Immigration and Citizenship (2008) FCA 102
Australian Broadcasting Commission v Lenah Game Meat Pty Ltd (2002) 208 CLR 199; 76 ALJR 1; 185 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334
Browne v Dunn (1893) 6 R 67
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Dolan v Australian and Overseas Telecommunications Corp (1993) 114 ALR 231; 17 AAR 355; 31 ALD 510
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Farnell v Penhalluriack (No 2) [2008] VSC 214
G v H (1994) 181 CLR 387; 68 ALJR 860; 124 ALR 353
Grant v Repatriation Commission 57 ALD 1
Green v Minister for Immigration and Citizenship (2008) 100 ALD 346
Grosse v Purvis [2003] QDC 151
Hardcastle v Commissioner of Australian Federal Police & Anor (1984) 53 ALR 593;
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Hoskins v Repatriation Commission (1991) 32 FCR 443; 14 AAR 299
Jones v Dunkel (1959) 101 CLR 298; 32 ALJR 395
Kioa v West 1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
Marelic v Comcare (1993) 121 ALR 114; 32 ALD 155
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 44 FLR 41; 31 ALR 666
Muin v Refugee Review Tribunal (2002) 190 ALR 601; (2002) 76 ALJR 966
NABE v Minister for Immigration (2004) 144 FCR 1; 219 ALR 27
Port of Brisbane Corporation v Deputy Commissioner of Taxation R v Australian (2004) 81 ALD 549; 140 FCR 375; 39 AAR 402
R v Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; 1 All ER 81
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Gray and Australian Securities and Investments Commission [2004] AATA 1235
Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Repatriation Commission v Smith (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17
Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383
The Tax Agents’ Board of New South Wales v Martin (1997) 97 ATC 4192; 35 ATR 53
VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479; [1937] ALR 597
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1948] 1 ALR 89

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1; 70 ALJR 743; 138 ALR 220

DECISION AND REASONS FOR DECISION [2009] AATA 124

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2008/5281
GENERAL ADMINISTRATIVE DIVISION )
Re:RUDRA KUMAR
Applicant

And: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  25 February 2009
Place:  Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 5 November 2008.

SA Forgie
Deputy President

REASONS FOR DECISION

The applicant, Rudra Kumar, is an infant who was born in India on
15 October 2007. Rudra Kumar applied for a grant of Australian citizenship under the Australian Citizenship Act 2007 (Act) on the basis that Adarsh Rani was a parent of his at the time of his birth. Ms Rani signed the application on his behalf as he was under the age of 16 years at the time of his application. On 5 November 2008, a delegate of the Minister for Immigration and Citizenship (Minister) refused the application. I have decided that his decision was correct and have affirmed it.

LEGISLATIVE FRAMEWORK

Part 2 of the Act sets out the circumstances in which a person acquires Australian citizenship. Division 1 of that Part sets out circumstances in which a person automatically acquires Australian citizenship. The most common form of acquisition occurs when a person is born in Australia to a parent who is an Australian citizen or a permanent resident at the time. Division 2 provides for the acquisition of Australian citizenship by application.

I am concerned with acquisition under Division 1 of Part 2. Under
s 16 of that Division, a person may apply to the Minister to become an Australian citizen. There is no suggestion that Rudra Kumar’s application did not comply with the requirements of s 46. Those requirements include requirements that the application be made on a form approved by the Minister, contain information required by the form and be accompanied by any other information or documents prescribed by the regulations.[1]

[1] Act, ss 46(1)(a), (b) and (c)

Form 118 entitled “Application for Australian citizenship by descent” is the form approved by the Minister.[2] Form 118 begins with four pages of information. In the case of a person under the age of 16 years as Rudra Kumar is, the application form must accompanied by a declaration signed by a responsible parent. The expression “responsible parent” is given a wide definition in s 6 of the Act[3] and Ms Rani has signed the application form.
[2] Australian Citizenship Instructions 2007 (ACIs), Chapter 3
[3] See also Act, s 3

Form 118 sets out the documents that “are required to assess eligibility and should be provided with the application.”[4] They are:
[4] Form 118
“A full birth certificate of the applicant, showing details of parents.
Evidence that at least one parent was an Australian citizen at the time of the applicant’s birth, such as full birth certificate or certificate of Australian citizenship.
Passport held, if any.
Applicants who have spent a total of 12 months or more outside Australia during the last 10 years, must provide a penal clearance certificate for each country where they spent at least 3 months. This only applies to applicants who were aged 18 years or more at the time they were outside Australia. Information on how to obtain penal clearance certificates is available from the Department …
Official Australian evidence of any name changes. This will usually be a change of name certificate issued by an Australian Registry of Births, Deaths and Marriages (RBDM) or a marriage certificate issued by an Australian RBDM. Overseas marriage certificates are not acceptable evidence of a change of name.
If the Australian citizen parent is an Australian citizen by descent, evidence of that parent’s 2 year residence in Australia (eg. passport showing entry to Australia, school or employment records, or any documents issued by an Australian Government agency).
…

Translations

If documents are not in English, official translations need to be provided. …”[5]

[5] Form 118

Sections 16(2) and (3) set out the circumstances in which a person is eligible to become an Australian citizen. Only that in s 16(2) is relevant in this case. It 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 aged 18 or over at the time 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.”

Once a person has made an application under s 16, the Minister must approve or refuse the person’s becoming an Australian citizen. The Minister’s decision must be in writing.[6] If the applicant for Australian citizenship is eligible under ss 16(2) or (3), the Minister must approve the application. That is the effect of
s 17(2). Section 17 sets out circumstances in which the Minister must not approve the applicant’s becoming an Australian citizen. Among them is s 17(1A), which provides that the Minister must not approve a person’s becoming an Australian citizen unless the person is eligible under ss 16(2) or (3).

[6] Act, s 17(1)

Another is s 17(3), which provides that the Minister must not approve the person’s becoming an Australian citizen unless satisfied of the identity of the person. This provision must be read with Division 5 of Part 2, which is entitled “Personal identifiers”. The expression “personal identifier” is defined in s 10(1).[7] For the purposes of the Act, s 10(1) provides, a “personal identifier” is:
“… any of the following (including any of the following in digital form):
(a)fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b)a measurement of a person’s height and weight;
(c)a photograph or other image of a person’s face and shoulders;
(d)an iris scan;
(e)a person’s signature;
(f)any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of s 23WA of the Crimes Act 1914).”
[7] Act, s 3

In so far as it is relevant in this case, s 40 of Division 5 of Part 2 provides that:
“For the purposes of the Minister being satisfied of the identity of:
(a)a person in relation to an application under this Part; or
(b)…
the following persons may request the person, in writing, to provide one or more specified personal identifiers:
(c)the Minister;
(d)a person authorised under subsection (3);
(e)a person who is included in a class of persons authorised under subsection (4).”[8]
[8] The Minister’s authorisations under ss 40(3) and (4) are made in an Instrument of Delegation and Authorisation dated 6 December 2008.

Section 10(1)(f) refers to “any other identifier prescribed by the regulations” but s 10(2) sets out the parameters within which those regulations may do so. It provides:
“Before the Governor-General makes regulations for the purposes of paragraph (1)(f) prescribing an identifier, the Minister must be satisfied that:
(a)obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of s 23WA of the Crimes Act 1914; and
(b)the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c)obtaining the identifier is necessary for either or both of the following purposes:
(i)assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2 or seeking to sit a test approved in a determination under section 23A;
(ii)combating document and identity fraud in citizenship matters.”

Section 23WA of the Crimes Act 1914 (Crimes Act), to which

s 10(1)(f) refers, provides that:
“intimate forensic procedure means the following forensic procedures:
(a) an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(b) the taking of a sample of blood;
(c) the taking of a sample of saliva, or a sample by buccal swab;
(d) the taking of a sample of pubic hair;
(e) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(g) the taking of a dental impression;
(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.”

The Australian Citizenship Regulations 2007 (Regulations) do not prescribe any further personal identifiers. Regulations have, however, been made under s 40(2) of the Act. That section provides that a request for personal identifiers must inform the person of the matters prescribed by the regulations. Regulation 11 of the Regulations provides, in part, that:
“For subsection 40(2) of the Act, a request must inform the applicant of the following matters:
(a)why a personal identifier must be provided;
(b)how a personal identifier may be collected;
(c)how a personal identifier may be used;
(d)the circumstances in which a personal identifier may be disclosed to a third party;
(e)that a personal identifier may be produced in evidence in a court or tribunal in relation to the applicant who provided the personal identifier;
(f) …
(g)…”

AUSTRALIAN CITIZENSHIP INSTRUCTIONS

The Introduction to the Australian Citizenship Instructions (ACIs) states that:
“The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision-makers should be mindful that policy must not be applied inflexibly. Policy cannot restrain the exercise of delegated powers under the Act.”

Chapter 3 of the ACIs is concerned with citizenship by descent. In an overview of the chapter, it is said that:
“Decision-makers considering applications for citizenship by descent need to take into account the risk of fraud in this caseload. Attachment B – Fraud has information on the circumstances in which additional scrutiny is warranted.”

Attachment B – Fraud to Chapter 3 of the ACIs reads:
“An application requires additional scrutiny if one or more of the following circumstances apply:
the person stated to be the child’s mother departed from Australia in what would have been a very advanced state of pregnancy. Most airlines will not carry a passenger after the 28^th week of pregnancy
the person stated to be the child’s mother is of mature age and the birth certificate shows the child to be her first born
the person stated to be the child’s mother claims to have had no pre-natal attention from a doctor in Australia
the person stated to be the child’s mother claims she had no ante-natal care
an application is lodged by a responsible parent in Australia and the child is off-shore
the birth certificate was issued many years after the birth
the travel movements of the person stated to be the Australian father indicate he was in Australia around the time the child would have been conceived.
There have been fraudulent attempts to register adopted children. This is often difficult to detect because in many countries a new birth certificate is issued without any reference to the natural parents or the fact that the child has been adopted.
Adopted children are not eligible for citizenship by descent.
Where doubt exists about the Australian parentage of a child, the bona fides should be checked in one or more of the following ways:
review movements of both stated parents using their passports and the Movements Database
ask for detailed reasons why the Australian citizen mother was overseas at the time of the birth
ask for medical evidence of pregnancy from the stated mother’s doctor, preferably an Australian doctor
obtain verification of the birth and the parent’s details from the hospital where the birth is stated to have occurred
a medical examination of the stated mother by a panel doctor
a DNA test
review any visa held by the child. The overseas post issuing the visa may be able to comment on why a visa was granted instead of the child being registered as a citizen by descent.
…”

Attachment C to Chapter 3 relates to DNA Testing. It states in part that:
“DNA testing can be used to verify the Australian citizenship parentage of a person who is an applicant for Australian citizenship by descent.
However, there is no legal power to compel an applicant and their stated Australian citizen parent to undergo DNA testing.
Decisions on applications should be made on the information available at the time. If the opportunity to provide DNA evidence in support of an application has not been used, and the decision-maker is not satisfied that the legal requirements have been met (that is, a parent of the applicant was an Australian citizen at the time of the applicants’ birth) the application must be refused.
DNA evidence will be most useful in countries where there is a high incidence of document fraud or where the official documentation is simply unavailable. It can also be useful where there is some doubt about the validity of the claimed relationships and/or credible documentation cannot be provided to substantiate the claims.
DNA testing facilities and procedures (how tests are conducted, details of recommended laboratories and sample letters that can be adjusted for citizenship purposes) is available in PAM3:Div1.2/reg1.12 – Member of the family unit – DNA testing. These procedures should be followed if a decision has been made to request an applicant to undergo DNA testing.
…”

The reference to “PAM3” is a reference to the Procedures Advice

Manual and it is described as:

“PAM3 instructions are departmental policy and as such must be considered and given due weight by ministerial delegates (decision-makers) in deciding visa applications or exercising associated decision-making powers. Policy must not, however, be regarded as inflexible and decision-makers must not give it the same force as law. (For general information about policy instructions, see, on IMMInet (the department’s intranet), CEI 30 (Chief Executive Instruction no. 30 - Departmental policy instructions).”[9]

[9] PAM 3 at [1.2]

When regard is had to the particular reference to PAM3 made in Attachment C to Chapter 3 of the ACIs, it is found that it contains an instruction providing policy and procedural advice on the use of DNA testing as an optional relationship verification strategy in the family visa stream and the Australian citizenship and refugee/humanitarian visa stream cases. At [2.2], the Instruction states in part:
“The department endorses DNA testing as a useful tool in verifying claimed biological family relationships in cases where the decision-maker is not satisfied with the documentary evidence (such as birth certificates or family books) supplied or where documentary evidence of a claimed biological relationship is unreliable or unavailable. In these cases a decision-maker may suggest the use of DNA testing to an applicant as another means to provide evidence of a claimed biological relationship.
DNA testing should not be suggested until all other options to establish the biological relationships have been exhausted – see section 5.1 Last resort strategy. In citizenship cases, DNA testing should be considered where there are concerns regarding the evidence supporting a claim of a biological link between an Australian citizen parent (or permanent resident) and a child. DNA testing should not be used routinely and is not recommended in cases that would ordinarily be refused or granted without hesitation.
DNA testing can also be used to rule out suspected non-genuine relationships …
There is no legal power to compel an applicant to undergo DNA testing. It is not a legislative criterion but rather just another form of evidence, usually as an alternative to a birth certificate. Applicants are not obliged to undertake DNA testing when it is suggested. It is recognised that the costs of testing may be prohibitive for some applicants and that for others there may be cultural issues. It is for this reason that, in reaching a decision on a case, little weight should be given to an applicant’s decision not to undergo testing – see section 10 DNA testing and the law.”[10]
[10] PAM 3:Div1.2/reg1.12 – Member of the family unit – DNA testing at [2.2]

Section 5.1 comes under the heading “When is testing appropriate”. It begins:
“DNA testing should be used as a last resort strategy where claims are doubtful or if credible documentation cannot be provided to substantiate claimed familial relationships. DNA testing should not be used in cases where:
officers would ordinarily approve a case on the available documentation by giving the benefit of the doubt to client/s or
doubts regarding a case are such that the decision-maker would ordinarily have no hesitation in refusing the case.
It is important however, that decision-makers bear in mind that all the circumstances of a particular case are relevant to the whole. As mentioned previously, there may be genuine reasons such as financial or cultural issues that can lead to a client declining DNA testing. Therefore, while a client’s refusal to undergo testing might be considered a factor in making a decision, it should not be the basis or main reason for the decision.
…”

THE EVIDENCE

Ms Rani’s family and friends

The material reproduced in the following table is taken from statutory declarations admitted in evidence. Those marked with an asterisk also gave oral evidence and that is referred to elsewhere in these reasons.

*Name*	*Relationship to Ms Rani*	*Residence or place of employment*	*Contact with Ms Rani in India and Australia*
*Shubwanti, widow of the late Vrinder Kumar Joshi who died on 28 October 2007	Ms Rani’s elder sister	Kalyan Nagar, Ludhiana	Ms Rani stayed with her “last year when she was pregnet and I was looking after her on 15 Oct 2007 she has given birth to Baby Boy Rudra Kumar.”[11]
Janak Raj Sharma	Priest of a Temple and knows Ms Rani through her sister, Shubwanti	Purana Bazar, Ludhiana	Knows Ms Rani through her sister, Shubawanti. Ms Rani “stay with her sister, she use to come to temple, that the Adarsh was pregnet, and she gave birth to Baby Boy (Rudra Kumar) Oct 2007, and I have performed Religious Ceremony after Adarsh son Rudra was born.”[12]
Adarsh Sehgal, widow of Ran Kumar Goyal	Kalyan Nagar, Ludhiana	Knows Ms Rani for many years through Shubwanti, who lives in the same neighbourhood. “Adarsh stayed with her sister. She was pregnet and given birth to Boy named Rudra Kumar.”[13]
Ashok Dawar, son of late Ram Lal Dawar	Kucha Beli Ram, Ludhiana	Knows “… adarsh Rani for many years, after sudden death of her Brother-in-law Vrinder Kumar Joshi, after his death Adarsh Rani stayed with our family and her son Rudra Kumar was born on 15 Oct 2007 in our House. My family has looked after Adarsh after delivery.”[14]
Kiran Ahuja, widow of Ramesh Ahuja	Kalyan Nagar, Ludhiana	Knows “… Adarsh Rani, through her sister Shubwanti I live in same street and I know adarsh Rani was pregnet and last year Boy was Born name Rudra Kumar.”[15]
Ravinder Kaur, widow of Gurmeet Singh	Kalyan Nagar, Ludhiana	Knows “… Adarsh Rani for over 20 years through her sister Shubwanti we live in same neighbourhood. During Adarsh’s stay with her sister, Adarsh was pregnet and in Oct. 2007 she has given Birth to Baby boy Rudra Kumar.”[16]
Nirmala Goyal, widow of Yashpal Goyal	Kalyan Nagar, Ludhiana	Knows “… Adarsh Rani for many years. I live in same neighbourhood with adarsh’s sister Shubwanti, last year Adarsh was pregnet and given birth to boy Rudra Kumar in Oct. 2007.”[17]
Rajiv Chopra, son of Banwari Lal	Kucha Beli Ram, Ludhiana	Knows “… Adarsh Rani, when she came to stay my next door neighbour Ashok Dawar, that time Adarsh Rani was pregnet and my family was there when she give birth to Boy Rudra Kumar.”[18]
Dharm Pal, son of late sh. Nand Lal	Old Sabzi Mandi, Ludhiana	Knows “… adarsh Rani through her brother-in-law Late shri Vrinder Kumar Joshi for many years, During Adarsh stay with her Brother-in-laws family. that time Adarsh was pregnet, and she use to come to my shop to buy Medicine, and Adarsh give birth to Baby Boy Rudra Kumar 15, Oct. 2007.”[19]
Karamjeet Kaur, widow of Avtar Singh	Noorwali, Ludhiana	Has “… been Dahi (Midwife) for many years. And I have done delivery for Adarsh Rani on 15 Oct. 2007. Adarsh Rani gave birth to healthy Baby Boy named (Rudra Kumar”.[20]
*Nirajkumar Naik, husband of Geeta Rani	Northcote, Victoria	Known Ms Rani for four years. She is his wife’s best friend. He and Ms Rani had also become very good friends as she and he and his wife had visited each other when she visited India. He had “visited her several times, including when she was pregnant in India last year. I saw her grow as her pregnancy progressed. I gave her help when she needed it. I also visited Adarsh in October 2007, before I came to Australia. By this time, she had given birth to her baby son, Rudrakumar.”[21]
*Rahul Sharma	Reservoir, Victoria	Knows “… Adarsh Rani from many years through my wife’s family. when Adarsh Rani was pregnent in India I visited her in India few times with my wife. We also visited her when she gave birth to Rudra Kumar in Oct. 2007.”[22]
*Geeta Rani	Northcote	Best friends for over 20 years. She was in India in July and visited Ms Rani when she was pregnant. Ms Geeta Rani also visited India in December 2007 and “… spent lots of time with adarsh and her new born baby Rudra Kumar. Adarsh was very happy with her son Rudra Kumar.”[23]

[11] Exhibit R

[12] Part of Exhibit T

[13] Part of Exhibit T

[14] Part of Exhibit T

[15] Part of Exhibit T

[16] Part of Exhibit T

[17] Part of Exhibit T

[18] Part of Exhibit T

[19] Part of Exhibit T

[20] Part of Exhibit T

[21] Exhibit O

[22] Exhibit S

[23] Exhibit P (T documents at 77)

Events before Rudra Kumar’s birth

In her statutory declaration,[24] Ms Rani said that she had travelled to India on 14 March 2007 for business as well as to visit her family and have a holiday. As her sister’s husband had been very ill and her sister has young children, Ms Rani wanted to make sure that the family was all right. In cross-examination, Ms Rani said that she had planned to stay for two months. She had first made plans to go when she heard that her sister’s husband was not well. That was about 15 days before she travelled. Her main reason for travelling to India was to help her sister and because she was concerned about her brother in law.
[24] Exhibit A

Ms Rani said that she met Rudra Kumar’s father in “February sometime” i.e. February 2007. His name was “Kumar”. They first had sexual relations at the “same time. February sometime”. They “met casually from time to time”. When asked whether they continued sexual relations until she left Australia, Ms Rani said “Not exactly true. Yes … no. Met 15 days togther. …” The relationship ceased before she went to India. It had just been casual and she never took it seriously.

Ms Rani said that she did not know where Mr Kumar lived. He did not tell her and they would only meet at her house. She knew that he was Indian but she did not know where he was born. Ms Rani said that she did not know if he is an Australian citizen. When asked if they discussed having children, Ms Rani replied that it was just a casual relationship and no future was discussed. They met at the Temple in Albert Park. She gave him her telephone number and he called her. They then exchanged telephone numbers. He would call her and go to her home. She did not visit him, she said.

Ms Rani said that she did not experience any symptoms of pregnancy before she left Australia but she felt really unwell a week or ten days after she arrived in India. She had not thought that she might be pregnant and was shocked when, after consulting a doctor, she was told that she was pregnant. Ms Rani said that she was also a little scared because she is a single woman and not in a relationship. She spoke with her sister who was very supportive and encouraged her to have the child. Her brother, sister and other members of her family were all very supportive of her. She is very close to her brother and sister and has no parents since her mother died when she was about 15 years of age and her father died twelve years ago. Ms Rani considered an abortion but had taken that course in 1993 and did not want to repeat the profound emotional experience it had been.

Ms Shubhwanti said that her sister had been quite upset when she went to stay with her and her husband. Ms Rani was pregnant at the time but Shubhwanti told her not to worry and that she could go ahead with the pregnancy. Shubhwanti said that her sister learned she was pregnant soon after she went to India and told her at the same time. Ms Rani told her that someone had come into her life for a little while and told her a little of what happened. Her sister did not tell her too much; what has happened has happened, Ms Shubhwanti said. She had been a little surprised that her sister was pregnant but, when she related her story, Ms Shubwanti and her husband said that it was all right and to go ahead with the pregnancy.

Ms Rani said that she wanted to return to Australia to have the baby but, because she was suffering from morning sickness and felt very weak all day, her doctor in India advised her not to travel overseas. Her age and the morning sickness, Ms Rani understood from her doctor, meant that there was a very real risk of miscarriage.

Ms Rani said in her statement that she stayed with her sister for the entire time that she was in India.[25] Ms Shubwanti agreed that Ms Rani had visited her because her husband was not well. In her oral evidence, Ms Rani said that she “mostly stayed” with her sister but she also stayed with her brother in law, who lived close by, and with her brother. As her pregnancy advanced, she tended to stay at home more and more. In that way, she avoided being asked embarrassing questions about the baby’s father. She either did not wish to answer or could not answer them. Ms Rani said that there were not photographs of her when she was pregnant as she had kept a very low profile.
[25] Exhibit A at [7]

Ms Shubhwanti said that her sister had not complained of any complications. They all decided that if all went well, she would have a home birth and if it did not, they would take her to hospital. When asked whether Ms Rani had ever suggested that she return to Australia for the birth, Ms Shubhwanti said that she had suggested that she would look after her. As Ms Shubhwant’s husband was not feeling well and she had to care for him, her sister and husband were company for each other.

When she was in India, Ms Rani said, she was advised by the doctor that it was not a good idea for her to fly. At the time, she was feeling weak. She consulted Dr Singla, who had a small four or five bed hospital, and also saw a doctor where her brother lived. He lived in a different town. She first tested pregnant soon after she arrived in India. That was in March 2007. When the doctor asked her for dates, she had not been equipped to answer his question. Ms Rani first saw Dr Singla on 2 May 2007 and last saw her on 2 September 2007 when Ms Rani said that she was 7½ months’ pregnant.

Ms Rani said that Dr Singla sent her for an ultrasound. She had the ultrasound and was given a report. Ms Rani said that she gave that report to Dr Singla who then returned it to her. She is unable to find it and never knew that she had to keep it, Ms Rani said.

Dr Singla told her that she did not recommend that she travel because her age was a factor. She also told her not to travel. Dr Singla told her that there was a risk of miscarriage and that she was not to take any risks. As a result, Ms Rani said, she did not take any risks. When asked whether Dr Singla had told her that she was relatively old to be pregnant and that her age could be a risk in itself, Ms Rani replied that she had not. She was relatively healthy and so was the child.

Dr Singla did not give her any recommendations about how she should give birth. That was her choice, Ms Rani said. Dr Singla did not advise her to go to a hospital and did not say that it would be safer.

Dr Anju Singla is an obstetrician and gynaecologist at a clinic in Ludhiana. In a statement, Dr Singla confirmed that Ms Rani had been her patient and that Ms Rani had attended the clinic on five occasions. When she first attended, she was pregnant and Dr Singla last examined her on 2 September 2007 when Ms Rani was in her 30^th week of pregnancy. Dr Singla understands that Ms Rani delivered a baby but does not know the circumstances of the delivery. Apart from morning sickness, Ms Rani had a normal pregnancy and all tests and ultrasounds were within expected ranges. The notes attached to her statement were notes she had made but she does not keep a copy at the clinic for her clinical patients. Dr Singla confirmed that the person in the photograph sent to her by the High Commission was the person who had consulted her.

In her notes of the first visit on 2 May 2007, Dr Singla wrote that Ms Rani’s LMP had been 1 February 2007 and that she was four months’ pregnant. She explained what she had written in her notes over the course of the five consultations. They included notes of her clinical findings regarding matters such as Ms Rani’s blood pressure, ultra sound, state of pregnancy and medications together with matters such as foetal heart sounds. Dr Singla said that the last occasion on which she saw Ms Rani occurred on 2 September 2007. “She didn’t turn up after that”, she said.

Dr Singla agreed that Ms Rani was relatively old to be giving birth but said that some people do give birth at that age. If it is a normal pregnancy, she would treat a 45 year old woman in the same way as a younger woman. When asked whether she had advised Ms Rani not to travel, she said that she usually advised patients not to travel because there is a chance of miscarriage or abortion. She advises patients that it is better to deliver their babies in hospital as it is much safer but it depends on the patient. Dr Singla could not say whether she would have expected Ms Rani to require a caesarean. These things are very unpredictable. Most people deliver at home.

Dr Singla said that the average weight gained by a pregnant woman is 10 to 12 kilogrammes. Ms Rani had started at 60 kilogrammes and was 65½ when she last saw her. She would have put on weight in the last weeks before giving birth.

Mr Nirajkumar Naik, who is the husband of Mrs Geeta Rani, said in giving oral evidence, that he had seen Ms Rani in July 2007. During July and August 2007, Mr Naik saw Ms Rani three or four times. He was with his wife and he could see that Ms Rani was pregnant. They also visited Ms Rani about a week after she gave birth to her son, he said. Mr Naik said that he first learned that Ms Rani was pregnant when he saw her in July 2007. When asked if he was surprised, he said that he did not ask much. It was news to him and that was that. In reply to me, Mr Naik said that it is not the done thing to ask questions about such matters. When I asked whether people in India make judgments or have views about women who have children out of wedlock, Mr Naik replied that they did in the old days but he did not think that they do now. The old days were quite a long way back, he said.

Ms Rani did not mention any complications with the pregnancy and did not ever say why she had not travelled back to Australia to give birth. Mr Naik said that he was not present at the birth.

Ms Geeta Rani said in giving oral evidence that she visited Ms Rani at Ms Rani’s sister’s house. When she visited her in July, Ms Geeta Rani noticed that her friend was pregnant. She would have visited four or five times in July and August 2007 and before she returned to Australia on 12 August 2007. Ms Geeta Rani said that the community does not think well of single mothers and they do not have a good reputation.

When her friend told her that she was pregnant, Ms Geeta Rani said, her friend also told her that she had been with a man for a brief relationship. Ms Rani’s health was good when she was pregnant and Ms Rani did not tell of her of any complications. When asked why Ms Rani had not returned to Australia to give birth, Ms Geeta Rani replied that she had stayed with her family until she had the baby. What had decided her to do that was the fact that she was a single mother. It might have been that she did not want to answer questions and it might have been that she had more support in India. Ms Rani had not gone out of the house much when she was there but she was only in India for a brief time. Ms Geeta Rani had noticed that her friend was very concerned about being a single mother.

Mr Rahul Sharma said that he and his wife visited Ms Rani in India in July 2007. It was in that month that his wife had told him that Ms Rani was pregnant. He visited Ms Rani again in August 2007 and later in October 2007 when the baby was about four days old. He could see that she was pregnant in July and August. Mr Rahul Sharma said that Ms Rani never told him who the father of her baby is and he did not ask.

Evidence of Rudra Kumar’s birth

Ms Rani said that Rudra Kumar was born on 15 October 2007 at her sister’s house with the help of a local midwife. She said in her statement that she chose to have a home birth because she trusted the midwife who had been giving her massages throughout her pregnancy.[26] Ms Rani said that she was not impressed with Indian hospitals and felt safer at home. Home birth seemed to be the right course of action as her mother, sister and sister in law had given birth at home. The midwife visited her every 15 days at first, then weekly and then daily before the birth.
[26] Exhibit A at [10]

The midwife arranged to Rudra Kumar’s birth to be registered.
Ms Rani said that this is the normal course. Had Rudra Kumar been born in a hospital, the hospital staff would have arranged for his birth to be registered.

In her oral evidence, Ms Rani said that her sister, her sister’s mother-in-law and the mid wife attended her at the birth. The birth occurred at 8.10 pm. In her oral evidence, Ms Rani said that she was 37 weeks pregnant at the time. It was a little earlier than she had expected but she had never been given a date. She has been told that can happen. A baby can come early or late and she should be prepared for either, she was told. Ms Rani said that she was very comfortable giving birth with the midwife. She had done a lot of births in the area and would massage her and give her all the home remedies. She was very happy with the midwife. Her sister and sister’s mother-in-law assisted the midwife.

The midwife had registered the baby’s birth on 2 November 2007. That was about two weeks after his birth. It had taken the midwife that length of time as she had a lot of births to report. She must have done them together, Ms Rani said.

Ms Rani did not see a doctor after the birth. She felt fine after a few days. After 40 days, she was allowed to go out of the house. She did not see a doctor until well after those 40 days. When she went, it was to see a General Practitioner because she was not well for other reasons. She just went for a check up. Ms Rani said that she did not attend a hospital.

The first of the photographs, Exhibit B, shows Ms Rani with Rudra Kumar when he was probably seven days old, she said. Exhibits C, F and G also show Ms Rani with him in a different setting from that in Exhibit A. Exhibits D and E show Ms Rani with Rudra Kumar at the time of his naming ceremony. That is a ceremony held 40 days after birth. Exhibit D also shows the priest, Ms Rani noted on the back of the photograph. Ms Rani said that it was a very small ceremony as she is a single mother.

Exhibit H shows Ms Rani asleep with Rudra Kumar and Exhibit I shows her bathing him. Exhibit J shows Rudra Kumar at three months, Ms Rani said, together with her, friend, Ms Geeta Rani and her friend’s son. Mr Naik also identified his wife and son and Ms Rani and her son in the photograph. Exhibit K shows Rudra Kumar at six months with Nirajkumar Nair, she said. In Exhibit M, he is three months of age, Ms Rani said. One of the other two boys shown in the photograph is Ms Geeta Rani’s son and the other is the son of a family friend living next door. Exhibit L comprises eight photographs showing Rudra Kumar at three months of age. Exhibit N comprises two books of similar photographs and several loose photographs.

Ms Rani submitted a translated version of a Birth Certificate with Rudra Kumar’s application. It recorded the date of registration of his birth as
2 November 2007 and his birth date as 15 October 2007. His father’s name was recorded as “Keshav Kumar” and the name of his mother as “Adarsh Rani”.[27] The certificate stated that it was taken from the original record registered in the Local Register of Births & Deaths, Municipal Corporation, Ludhiana, Tehsil & District, Ludhiana of Punjab State. It also showed the full address of the parents as an address in Ludhiana. That address is the address shown on Rudra Kumar’s application as his residential address.

[27] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 27. The translation at T documents at 29 and 57 shows the father’s name as “Kasav Kumar”.

Ms Rani said that her sister took Rudra Kumar to the hospital for his vaccinations when he was three days old. Her sister had taken her own children to that hospital for their vaccinations. The Child Health Record maintained by the Paediatric Clinic No 4 and Vaccination Center No 3 at the Dr BL Kapoor Memorial Hospital shows the date of birth of a boy as 15 October 2007. The name of the child is not recorded as such and he is identified as “B/O Adarsh Rani”. The place of birth is recorded as “home Delina” and his address, as best as I can read it, as equivalent to the address in Ludhiana on the birth certificate. The record shows that the child was given various vaccinations on 19 October 2007, 3 December 2007, 19 April 2008 and 15 February 2008.

Ms Shubhwanti said that she took Rudra Kumar to the hospital to have his vaccinations. She went on one occasion when the baby was three days old and on another when he was a month old.

Application for Australian citizenship by descent

Ms Rani said that, after her son was born, she called the Australian High Commission in New Delhi to register him as an Australian citizen. She had not realised that so much paperwork would be required and it took her a while to get everything that was needed. She lodged the application on 27 December 2007.

In the case of an applicant under the age of six years, Part E of the application form requires a proof of identity declaration to be made by “… an Australian citizen who has known the child for less than 12 months and who belongs to one of the listed professions or occupations”.[28] Ms Rani said that the person who made the declaration was a notary. A family friend known to them for years had taken her to the notary to attest copies of documents. The notary did not know Rudra Kumar. She did not know anyone in New Delhi but she asked for attested copies.
Ms Rani said that she was not aware that the person making the declaration should be an Australian citizen. She had been told that it should be attested locally and she went to a notary. Ms Rani said that she had not understood that the person making the declaration had to know the applicant for citizenship for 12 months.[29]

[28] T documents at 23
[29] The requirement is ameliorated for applicants under the age of six years: see [53] above

The course of consideration of the application and requests for further information

An officer of the Department of Immigration and Citizenship (Department) based at the High Commission asked her for further proof that she is Rudra Kumar’s mother. In an email sent to her on 15 February 2008, an officer at the the High Commission asked Ms Rani to provide:
“Any document which supports your claim to be the birth mother of Rudra Kumar. The following list is not exhaustive, and it is open to you to provide any documentary evidence which you think may help support your claim.
Ultra-sound records for Rudra Kumar showing mother’s name;
Doctor’s certificates during nine months pregnancy of Rudra Kumar showing mother’s name;
Hospital records during nine months pregnancy of Rudra Kumar showing mother’s name;
…”[30]
[30] T document at 30
In response, Ms Rani sent a copy of his immunisation card, the notes of her visit to the obstetrician she consulted in India and the results of blood and other pregnancy related tests. She also sent affidavits from Dharam Pal and Shubwati, who are people who knew she had given birth to Rudra Kumar.[31] Although her reply was undated, the two affidavits were dated 19 February 2008.
[31] T documents at 31-43

When she had not had a reply from the High Commission, Ms Rani sent an email dated 20 March 2008 asking what was happening.[32] An officer of the Department based at the High Commission replied stating that he had received advice from the Department in Australia and would like to discuss the next steps in person. He asked her whether she would be available for an interview in New Delhi.[33]
[32] T documents at 48
[33] T documents at 48

In an email dated 25 March 2008, Ms Rani advised the officer in the High Commission that she was not in India as she had returned to Australia as she had urgent work to do. Therefore, she was unable to attend an interview in New Delhi.[34]
[34] T documents at 47

In response, the Department’s officer sent Ms Rani an email referring to a discussion between them and attaching a letter dated 27 March 2008 requesting DNA evidence. The letter read in part:
“The department does not have sufficient evidence to be reasonably satisfied that the claimed Australian citizen parent is the natural parent of the child.
We therefore invite the claimed Australian citizen parent to provide DNA evidence to confirm the relationship. Participation, however, is voluntary and they would have to bear the costs of testing.
I have attached Form 1259i Information about DNA testing for visa and citizenship applicants which contains more information about DNA testing, including the availability of counselling.
If you wish to proceed with the testing, please contact one of the recommended laboratories listed below to make arrangements for the testing. These laboratories have arrangements in place with the department for DNA testing for immigration and citizenship purposes. You would need to provide a copy of this letter to the laboratory.
A representative from the New Delhi Visa Office will supervise the DNA sample collection for Rudra Kumar. …
The claimed Australian citizenship parent/s are requested to provide DNA evidence either in Australia or overseas in consultation with the Department …
If you decide not to participate in DNA testing, the application will be decided on the information you have already provided.
…”[35]
[35] T documents at 44-45

In a letter dated 2 April 2008, Ms Rani’s solicitors wrote to the High Commission describing its invitation to Ms Rani and Rudra Kumar “… to undergo DNA testing as an outrageous request and one which has deeply angered and stressed her.”[36] The letter continued:
“As you should know, Departmental Policy ONLY endorses DNA testing as a tool to verify claimed biological family relationships in cases where a decision-maker is not satisfied with the documentary evidence (such as birth certificates or family books) supplied or where documentary evidence of a claimed biological relationship is unreliable or unavailable. Policy also clearly states that: ‘In cases where a decision-maker is not satisfied with the evidence provided, a letter should be sent, including comprehensive reasons for considering the existing evidence insufficient to establish a genetic relationship. Furthermore, DNA testing should not be suggested until all other options to establish the biological relationships have been exhausted.’
Your letter of 27 March 2008 merely states ‘The Department does not have sufficient evidence to be satisfied that the claimed Australian citizen parent is the natural parent of the child’. Of course, this statement gives no indication of the reasons for considering existing evidence insufficient to establish a genetic relationship between mother and baby and comes nowhere near following your Department’s own policy on this. The policy is in place for very good reasons, relating inter alia to the right of Australian citizens and others to privacy on matters as intrusive as DNA procedures.”[37]
[36] T documents at 50
[37] T documents at 50-51

On 7 April 2008, it wrote to Dr Anju Singla to ask whether she could confirm that the person shown in the photograph attached to the letter was the patient, Ms Adarsh Rani, who attended her clinic as a patient.[38] Dr Anju Singla replied that she was in a letter received by the High Commission on 10 April 2008.[39]
[38] T documents at 52
[39] T documents at 53

The Department responded to Ms Rani’s solicitors on 15 May 2008 setting out its doubts on the evidence to date and referring to the ACIs in force from 1 October 2007 and reproduced at [13]-[19] above. The letter also recorded that:
“Advice received by the Department’s Medical Officer of the Commonwealth (MOC) suggests that a medical examination by a panel doctor in this case would not reliably assist the Department in making a decision.”[40]
[40] T documents at 63

In his response, Ms Rani’s solicitors wrote on 10 June 2008 that she was “… adamant that she will not consent to DNA testing”.[41] With regard to the advice the Department had given regarding a medical examination, though, they wrote that they would have thought it should be perfectly possible to establish through a medical examination whether a 45 year old woman has recently given birth to a baby. They asked that the Department reconsider its position and arrange for their client to be medically examined by a Panel Doctor or referred by the MOC to a suitable specialist for an opinion on the matter. Their client would he happy to pay for the examinations if that meant that she and her baby did not have to undergo DNA testing.[42]
[41] T documents at 64
[42] T documents at 64-65

On 11 June 2008, the Department sought further advice from its Health Operations Centre on the question of the utility of a medical examination to determine whether Ms Rani had given birth. The Health Operations Centre confirmed that “… the only way to establish whether she has had the child is DNA testing.”[43] The Department advised Ms Rani’s solicitors of this view in a letter dated 27 June 2008.[44]
[43] T documents at 67
[44] T documents at 68-69

Adarsh Rani’s age

Ms Rani stated in Rudra Kumar’s application that she had been born on 15 April 1962. This meant that, on 2 May 2007, she was 45 years of age.

A Biochemistry Request and Report Form issued on 2 May 1997 shows the name “Adarsh Rani” and describes her as a 40 year old female.[45] That report contains a number of items with a box beside each. The box against Plasma Glucose (Randome) is ticked. A report from the Department of Pathology of the
DR BL Kapur Memorial Hospital is also dated 2 May 2007. It reports on the haemoglobin and ABO and Rh groupings of Adarsh Rani, who is described as a 40 year old female.[46]

[45] T documents at 33
[46] T documents at 32

Records from Dr Anju Singla dated the same day also describe a patient named Adarsh Rani as a “40y/f”.[47] The date of 2 May 1997 appears to be the date of the first consultation as it is followed by notes dated 2 June 2007 and 4 July 2007. A further sheet in the same hand and again on notepaper showing Dr Anju Singla’s name is dated 15 August 2007. It again records her as a “40y/f”.[48] It records a subsequent date of 2 September 2007 but that appears to be the end of Dr Singla’s records regarding her patient, Adarsh Rani.
[47] T documents at 38
[48] T documents at 40

Adarsh Rani’s address

I have already noted the address shown on Rudra Kumar’s birth certificate. It was an address in Ludhiana and said to be the address of the parents of Rudra Kumar.

Care of Rudra Kumar since his birth

Ms Rani said in her statutory declaration that she had hoped to return to Australia in March 2008 but could not when his application had not been granted. Her sister has been looking after him but her “… first priority has always and will always be my son. … [Her] business means nothing to … [her] if … [she] cannot share … [her] life with … [her] child.”[49]
[49] Exhibit A at [14]

Medical tests

In her statement, Ms Rani said:
“16. I do not want to undertake the DNA testing because I strongly believe in my right to privacy about such things, especially given that my child was born out of wedlock. Instead, I offered to undertake a medical examination by the panel doctor in New Delhi but the Department told me that this wasn’t going to be sufficient evidence for them.
…
20.I am the biological mother of Rudra Kumar. I have offered to undertake ultrasounds and medical examinations in order to prove that I was pregnant and gave birth to a baby; however I have been told by my gynaecologist that after one year it is simply not possible to tell with certainty.”[50]
[50] Exhibit A

Ms Rani said that she was prepared to undergo a medical examination and to have an ultrasound. She agreed that she had been invited to undergo a DNA test and said that she had been told that it would have given evidence that was 95% accurate. Her reasons for not wanting to have a DNA test are: the Department has put her through so much; it did not answer her for a year; she went through emotional trauma and was under medication; and she did not feel like going ahead. She is taking sleeping pills as she is not sleeping at night and is very upset and distraught. The doctor has prescribed medication for her to take during the day to calm her down.

In answer to my questions about her reluctance to have a DNA test, Ms Rani told me that she has explained herself so much and asked why she should do more. Emotionally, she has been suffering for the past 1½ years. She has come up with all of the evidence and does not feel comfortable. Why should she have a DNA test, she asked when she has been put through so much already. She is not married and she did not want that to get out. Her conscience does not allow her to do it and she will not put herself and her boy through it. Ms Rani did not think that it should be done to her. She has been in Australia for 25 years and has suffered much in her sleep, her business, her life and her health. The officer said the DNA test would not be 100% certain.

CONSIDERATION

Relevance of ACIs in determining the scope of the relevant evidentiary material

The Statement of Facts and Contentions lodged on behalf of Ms Rani sets out the a list of documents and precedes that list with the proposition that:
“The Tribunal is to be guided by the Australian Citizenship Instructions. In terms of the application, policy asks that the … following documents should be provided in support …”.[51]
[51] Applicant’s Statement of Facts and Contentions at [9]

I hesitated when reading this proposition for it seems to me that it is too broadly framed if those formulating it thought to guide the Tribunal as well as the Minister’s delegates who are making decisions at first instance. It is too broadly framed because it suggests that the Tribunal is to be guided by the ACIs as to the evidentiary material that will be sufficient to make out an applicant’s claim. The statement finds some support in the Introduction to the ACIs, which I have set out above.[52] The Introduction goes beyond a suggestion that the ACIs have a place in guiding the decision-maker in deciding the evidentiary material to a suggestion that they have a place in relation to the interpretation of the Act.
[52] See [13] above

The suggestion in the Introduction that the ACIs provide guidance in the exercise of powers is a proposition that I have no difficulty with in so far as it focuses on discretionary powers, its policy is consistent with the Act[53] and it does not require a decision-maker to take irrelevant circumstances into account[54] or to exercise a power for improper purposes. Brennan J explained the reason for adopting a policy in relation to decision-making:
“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”[55]
[53] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J
[54] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 641
[55] (1979) 2 ALD 634 at 640

In Drake v Minister for Immigration and Ethnic Affairs,[56] Smithers J had also referred to these concepts:
“ Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited). …
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. (see British Oxygen Co v Board of Trade [1971] AC 610 at 625 and 631). Lord Denning referred to the distinction in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, where he said:
‘I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not “shut its ears to an application”: see [1971] AC 610, 625 per Lord Reid. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.’”[57]

Brennan J’s view is consistent with the judgments of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[58] and of Smithers J.[59]

[56] (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J

[57] (1979) 2 ALD 634 at 640-641

[58] (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J

[59] (1979) 24 ALR 577; 2 ALD 60 at 602; 80

As a rule, the power to give directions and make guidelines is determined by reference to “… the subject matter, scope and purpose of the statute …”.[60] Equally, the scope of any discretion given to a decision-maker under an enactment depends on the latitude of the subject matter, scope and purpose of the Act and of the particular power conferred on the decision-maker.[61] A decision-maker is free to adopt a policy to guide it in the exercise of its discretion provided its policy is consistent with the Act[62] and does not require the decision-maker to take irrelevant circumstances into account.[63] A policy “… must leave … [the decision-maker] free to consider the unique circumstances of each case … [It] does not control the making of decisions … [but] is informative of the standards and values which a … [decision-maker] usually applies. …”.[64]
[60] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 at 40; 309 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.
[61]
[62] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J
[63] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 641
[64] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 641 and see also the general discussion of the principles by Mr SC Fisher, Member, in Re Gray and Australian Securities and Investments Commission [2004] AATA 1235

A consideration of the way in which the Tribunal is obliged to act when reviewing a decision illustrates why it is proper for it to have regard to policy of this sort but it is not proper to have regard to a policy that attempts to guide it on the interpretation of the law or to confine the evidentiary material to which it may have regard. When carrying out its duties:
“… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”.[65]
[65] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J

This is not to say that the Tribunal is entitled to dismiss policy. While acknowledging the importance of policy, Smithers J had said in Drake v Minister for Immigration and Ethnic Affairs:
“ In the performance of the Tribunal’s function it is essential that a policy adopted by an administrator should be under review to the same extent as his evaluation of relevant matters and his general process of reasoning, not for the purpose of deciding whether it was reasonable for the administrator to make the decision he did, but for the purpose of deciding whether, by the objective standard of good government it was the right decision to make.”[66]
[66] (1979) 2 ALD 60; 24 ALR 577 at 80; 602

So far as the Tribunal is concerned, it follows that legislation provides the framework on which the policy and guidelines are built and by which they are shaped. Unless the legislation provides otherwise, the policy and guidelines do not shape the legislation. Therefore, policy and guidelines cannot be used to identify the boundaries and content of the legislation. That is to say, they cannot be used to interpret a particular provision of the legislation. As Moore J said in Port of Brisbane Corporation v Deputy Commissioner of Taxation:[67]
“[25] … I apprehend it was not seriously in issue in these proceedings that the tribunal was wrong to suggest as it did in that passage, [that] the construction of the relevant legislation and its application to the facts (a process which would not involve the exercise of a discretionary power) should be influenced by a declaration by the executive (in the bulletin) about the reach of the legislation.
[26] The decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concerned a deportation order under the Migration Act 1958 (Cth). The then president of the Tribunal, Brennan J, discussed the role of ministerial policy in the exercise of the discretionary power to deport. His Honour concluded that while the tribunal was not bound to apply that policy, it should only depart from it cautiously and sparingly, particularly if parliament had in fact scrutinised and approved the policy. That case does not suggest (nor does any other case of which I am aware) that guidelines or policy documents which express a view about the scope or meaning of legislation provide a tool or aid in construing the legislation. In the present case the bulletin was no more than an expression of an opinion about what the relevant legislation meant after the legislation was enacted: see Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241; 77 ALR 8 at 11-12 per Mason CJ and Gaudron J and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1995) 59 FCR 423 at 430; 38 ALD 529 at 535. In relying on the material in the way it discussed in the passage quoted …, the tribunal erred in law. It might be characterised as the tribunal having taken into account an irrelevant consideration: see Maritime Union of Australia v Minister for Transport and Regional Services (2000) 100 FCR 58 at 70-71; 175 ALR 411 at 425-6; 61 ALD 675 at 690 [31], though it is probably unnecessary and perhaps even undesirable to put it this way. That is because the construction of the legislation did not involve the exercise of a power on which the relevant or irrelevant considerations might operate.”[68]
[67] (2004) 81 ALD 549; 140 FCR 375
[68] (2004) 81 ALD 549; 140 FCR 375; at 550; 386

As the ACIs cannot guide the Tribunal in interpreting the law, they cannot guide the Tribunal in determining what material is relevant to the issues it must decide and what is probative. That follows from the fact that it is the legislation that determines the issues that must be decided before the decision-maker, whether the original decision-maker or the Tribunal on review, has power to make a decision. Taking s 16 of the Act as an example, the issues that must be decided before a decision can be made that a person is eligible to become an Australian citizen are those set out in the three paragraphs in s 16(2) if it is also determined that the person was born outside Australia on or after 26 January 1949. Only if those three issues are decided in the applicant’s favour and the person is eligible to become an Australian citizen, may the decision-maker make a decision. If that is the case of s 16(2), the decision-maker is not given a discretion as to whether to approve or refuse the application. The decision-maker is obliged to make a decision approving the person’s becoming an Australian citizen.

That brings me back to [9] of the Statement of Facts and Contentions submitted on behalf of Ms Rani. The documents listed are those referred to in the ACIs. They are also shown on Form 118 as those “required to assess eligibility and should be provided with the application.” Form 118 is a form approved by the Minister as required by s 46 and the application must contain the information required by the form. There is no suggestion in s 46 or otherwise that the applicant’s eligibility will be determined only by reference to the information contained in the form or in any information or documents prescribed by the Regulations. That is to say, s 46 and the information that must accompany an application made on Form 118 cannot limit the evidentiary material that may be requested or obtained in order to decide the issues that must be decided under s 16 in relation to the application. Relevance and probity limit the scope of evidentiary material. The rules of procedural fairness do not. They limit only the process that must be followed before relevant and probative material may be relied upon. In the context of s 16 of the Act, that process is to ensure that the applicant has a reasonable opportunity to present a case that he or she is eligible to become an Australian citizen and that he or she has a reasonable opportunity to answer any material or information in the possession of the Tribunal which suggests otherwise.[69]
[69] See Muin v Refugee Review Tribunal (2002) 190 ALR 601; (2002) 76 ALJR 966 at 617; 979 per Gaudron J

What is a “parent”?

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.[70] 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.
[70] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

DNA test

Before I consider the evidence as a whole, I will begin with the DNA test. I note that the relevant passages of PAM3, which are incorporated by reference in the ACIs, direct decision-makers to suggest DNA testing as a last resort. The passages encourage decision-makers to make the decision that they would normally make on the documentation they are given be that a decision to approve or to refuse and not to consider asking applicants to turn their minds to DNA testing. This encouragement is consistent with the advice given in PAM3 to use DNA testing as a last resort. What becomes a last resort and what becomes the decision that a decision-maker would ordinarily make on the documentation presented with the application or subsequently are not static matters. They are influenced by such matters as the contents of the documentation, its source and the matters it purports to establish. Other matters such as the prevalence of false documentation will also have an influence.

For the reasons I have already given, I do not consider that I am bound by the ACIs when having regard to the evidence and in making the findings of fact that must be found to decide the issues raised by, in this case, s 16(2)(a). I must look to the whole of the evidence or material that I have. That includes evidence of Ms Rani’s declining to allow her and Rudra Kumar to undergo a DNA test and her reasons for declining to do so. It is not a situation in which I must decide the matter on the documentary and other evidence and then decide whether I will have regard to the absence of DNA evidence.

As with all evidence, I must consider the weight that must be given to Ms Rani’s declining to take a DNA test. An essential part of that consideration is the reason that she has given for declining to take it. She has declined on the basis of her belief in her right to privacy. She wants to protect that right particularly as her child was born out of wedlock. That leads to a consideration of two matters. The first is whether any inference can be drawn from the fact of her declining to take a DNA test. If so, the second is whether her reasons for declining can influence the inference that is drawn and, if so, in what way. I will look at these matters in light of the principles developed in other jurisdictions and consider whether they are applicable in this case.

The first matter was raised in the case of G v H,[71] in which H claimed maintenance from G on the basis that he was the father of her child. The proceedings were taken under the Family Law Act 1975 (FLA). Part VII of the FLA sets out a number of presumptions that are made from such matters as parentage arising from marriage, from the registration of birth and cohabitation. Each presumption was rebuttable by proof on the balance of probabilities. The Family Court ordered, without opposition, that G undergo a parentage testing procedure to be carried out by a named laboratory. Evidence was given that the testing would be at least 99.9% accurate. G declined to undergo the test.
[71] (1994) 181 CLR 387; 68 ALJR 860; 124 ALR 353

The trial judge considered the matter in light of the principles in Briginshaw v Briginshaw.[72] Those principles apply when attempting to decide whether reasonably satisfied of a fact or that it has been proved on the balance of probabilities. That is the standard of proof generally applicable in civil proceedings in the courts as well as in the Tribunal.[73] It is not an absolute standard and regard must be had to the principles set out by Dixon J in Briginshaw v Briginshaw:[74]
“… [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …”[75]
[72] (1938) 60 CLR 336; [1938] ALR 334
[73] See, for example, Repatriation Commission v Smith (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17; Northrop, Beaumont and Spender JJ
[74] (1938) 60 CLR 336, Latham CJ, Rich, Starke, Dixon and McTiernan JJ
[75] (1938) 60 CLR 336 at 362. The same principles have been considered and applied in numerous cases in the Tribunal including Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 255 (Brennan J) and Hardcastle v Commissioner of Australian Federal Police & Anor (1984) 53 ALR 593 (Bowen CJ, Gallop and Lockhart JJ).

In G v H, the majority of the High Court decided that these principles did not apply in determining the question of paternity for the purposes of the FLA. They said:
“ Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …”[76]
[76] (1994) 181 CLR 387 at 399-400

The case with which I am concerned raises the issue of parentage in a different context but this passage is relevant in that it recognises the legitimacy of DNA testing and the relevance both of its results if the test is undertaken and of a refusal of a putative parent to do so if that is the case. I will look first to the relevance of the results.

In Farnell v Penhalluriack (No 2),[77] Bell J said that “The science of biology has reached the stage that DNA testing provides evidence of paternity on which the courts can usually safely act, and they regularly do so.”[78] That is not to say that the results of a DNA test are accepted without question. In Farnell v Penhalluriack (No 2), Bell J made it clear that:
“… DNA evidence stands in no different category to other evidence of a scientific nature. Unless it is received into evidence without objection, DNA evidence must be properly proved by admissible evidence. Such evidence must come from an appropriately qualified expert. Thus I refused in this case to allow the DNA evidence to be proved informally, and granted an adjournment and made other necessary orders to allow it to be proved formally. Once a DNA test has been admitted into evidence without objection or properly proved, it will be presumed to have been regularly conducted unless the contrary is shown. To that end, such evidence is liable to be tested by the usual forensic means, such as cross-examination and the giving of contrary evidence. If, for example, defects are exposed in the testing procedure or in the taking and examination of the tissue samples, this may undermine the reliability of the test results. Like other kinds of scientific evidence, the reliability of DNA evidence can be undermined by various kinds of potential contamination and laboratory error … Having regard to the consequences of a finding of paternity, and to the possibility of error in the DNA testing procedure, it is important that the parties are allowed reasonable scope to test the evidence for such defects. …”[79]
[77] [2008] VSC 214
[78] [2008] VSC 214 at [44]
[79] [2008] VSC 214 at [44]

DNA test: do the principles in Jones v Dunkel apply in the Tribunal?

I turn now to the relevance of a refusal to undergo DNA testing. The principles in Jones v Dunkel[80] are, on their face, relevant in Tribunal proceedings. Although described in various ways by the members of the High Court, the principles were best explained for the purposes of this case by Windeyer J, who formulated the principle by adopting:
“... the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: ‘The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.’”[81]
[80] (1959) 101 CLR 298 at 308 (per Kitto J), 312 (per Menzies J) and 320-321 (per Windeyer J) (Dixon CJ and Taylor J dissenting)
[81] (1959) 101 CLR 298 at 320-321

The principles in Jones v Dunkel have been applied in a case where a party fails to ask pertinent questions of its own witnesses. Handley JA, with whom Kirby P agreed, said in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd:[82]
“ There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates ‘as the most natural inference that the party fears to do so’. This fear then is ‘some evidence’ that such examination in chief ‘would have exposed facts unfavourable to the party’: see Jones v Dunkel (at 320-321) per Windeyer J. Moreover, in Ex parte Harper; Re Rosenfeld [1964-5] NSWR 58 at 62 Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.”[83]
[82] (1991) 22 NSWLR 389
[83] (1991) 22 NSWLR 389 at 418 and see Kirby P at 398-399 The High Court dismissed an appeal from the judgment of the New South Wales Court of Appeal and did not consider the evidential aspects of the case: (1993) 176 CLR 332; 67 ALJR 264; 111 ALR 339

But does the rule in Jones v Dunkel apply in the Tribunal? Tamberlin J has answered this question in the negative. In Green v Minister for Immigration and Citizenship,[84] his Honour said:
“41 Although the observation of the Tribunal at [66] concerning Mr Green’s failure to call certain witnesses could be construed adversely to Mr Green’s case, there is no indication that those persons could have provided material to assist his case. On the other hand, however, having regard to the fact that the Tribunal’s proceedings areinquisitorial in nature and the observations in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 are not applicable, there is no indication in this case that any particular adverse inference was drawn or suggested on the basis of the fact that the witnesses did not give evidence orally and that the omission to ask them to do so rested with Mr Green (and not on the Tribunal).”[85]
[84] (2008) 100 ALD 346
[85] (2008) 100 ALD 346 at 353

[118] (2002) 121 FCR 233; 72 ALD 333

[119] (2002) 121 FCR 233; 72 ALD 333 at 244-245; 345 and see [98] above

On its face, the rule in Jones v Dunkel is in a different category. It is not addressed to the rules of natural justice whether described in terms of procedural fairness or of the Tribunal’s statutory obligations under s 39(1) of the AAT Act. It is directed to that part of the decision-making process in which the decision-maker must decide first whether evidence or material is probative before deciding the weight that should be accorded to that evidence which is probative. That is the part of the decision-making process to which the rules of evidence are directed. In his judgment in R v Deputy Industrial Injuries Commissioner; Ex parte Moore,[120] Diplock LJ explained how they came to be developed:
“… For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf Myers v Director of Public Prosecutions ([1964] 3 WLR 145).
‘These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood o the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.’
…”[121]
[120] [1965] 1 QB 456; 1 All ER 81
[121] [1965] 1 QB 456; 1 All ER 81 at 487-488; 94

This is a passage adopted by Deane J in Minister for Immigration and Ethnic Affairs v Pochi.[122] His Honour also accepted the principles made clear by Willmer LJ and Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore that the Deputy Industrial Injuries Commissioner:
“… was not, on the hearing of the appeal, bound by the rules of evidence or procedure available to him. He was however bound to observe the principles of natural justice. Each of Willmer LJ and Diplock LJ made clear, in the course of his judgment, that he was of the view that the principles of natural justice operated not only in respect of the procedure adopted by the tribunal but also in respect of the material upon which a decision was based. …”[123]
[122] (1980) 4 ALD 139, Smithers, Evatt and Deane JJ at 159 per Deane J, with whom Evatt J agreed
[123] (1980) 4 ALD 139 at 159

After setting out the passage from the judgment of Diplock LJ above, Deane J developed this view saying:
“… There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more that a futile illusion of fairness. I respectfully agree with the conclusion of Diplock LJ that it is an ordinary requirement of natural justice that person bound to act judicially ‘ base his decision’ upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements of natural justice may vary according to the nature of the inquiry … and that conclusion may not be of universal validity in that it may not, for example, apply in respect of some domestic forums. It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it … Implicit both in Diplock LJ’s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it …
Examination of the provisions of the Administrative Appeals Tribunal Act 1975 discloses nothing which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that it was the legislative intent that the Tribunal should, in a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material. To the contrary, s 43(2) of the Act which requires the Tribunal to give its reasons in writing expressly provides that ‘those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based’. …”[124]
[124] (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 at 67-68; 689-690; 160

The case of Minister for Immigration and Ethnic Affairs v Pochi was decided in 1980. Since then, it is my perception that the expression “natural justice” is used less often and the expression “procedural fairness” preferred in its place. If there is such a preference, it may be that it has its origins in judgments such as that of Mason J in Kioa v West[125] when he said:
“ It has been said on many occasions that natural justice and fairness are to be equated: … And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression ‘natural justice’ has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making. ...
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. …
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. …
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. …”[126]
[125] (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ
[126] (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 at 583-585; 127; 346-347

While Mason J’s focus was clearly upon the duty to provide procedures that were fair to the parties, there is nothing in the judgment that suggests that the other aspects of natural justice have no place in administrative decision-making. Indeed, he expressly stated that the content of the doctrine of natural justice or duty to act fairly depends to a large extent on the construction of the statute. Although focused on procedures and processes and upon their being fair, he did not dismiss as irrelevant those aspects of natural justice that require that administrative decisions ordinarily be based on logically probative material and that, when relevant facts are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. That aspect of natural justice was not in issue in Kioa v West and I do not think that it can be read as in any way rejecting the propositions set out by Deane J in Minister for Immigration and Ethnic Affairs v Pochi.

It is apparent, therefore, that if a tribunal is bound to act judicially and that duty has not been modified by the Parliament, it must act according to natural justice. Natural justice requires such a tribunal to act with procedural fairness, which in part incorporates the duty imposed by by s 39(1) of the AAT Act to give the parties an opportunity to present their cases. Natural justice also requires that the tribunal act on findings of fact that are based on material reasonably capable of supporting that finding i.e. material that is logically probative of those findings of fact. The provision in s 33(1)(c) that the Tribunal is not bound by the rules of evidence cannot be regarded as modifying that obligation given the requirement in s 43(2) requiring the Tribunal to give its reasons including its findings on material questions of fact and a reference to the evidence and other material on which they were based.

It follows from this view that the rule in Jones v Dunkel has relevance in Tribunal proceedings. It is directed to assessing the probity or otherwise of the fact that a party has not produced certain material in certain circumstances. One aspect of procedural fairness requires the Tribunal to act on logically probative material. Therefore the rule in Jones v Dunkel is relevant.

I have also considered the relevance of the rule in Jones v Dunkel lest, contrary to my view, the analysis of the Tribunal proceedings as either adversarial or as inquisitorial has any relevance. I have reached the same conclusion and will explain why.

What Jones v Dunkel signifies in a truly adversarial context is that, should a person fail to produce material (to use a general word) that would be within his or her power to produce to support the fact he or she claims to be so and does not produce that material then, unless there is a rational and reasonable explanation for that failure, the failure itself has probative value. It has probative value because an inference can be drawn from it that, if produced, the material would not support his or her claim. If the proceedings of the Tribunal are adversarial, there is no reason why the rule would not be equally relevant in determining probity of evidence of omission.

Even if the Tribunal is regarded as having inquisitorial powers of a sort that go beyond that described by the Full Court in Grant v Repatriation Commission[127] referred to by Merkel J in VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[128] it would seem to me that a failure to produce material in similar circumstances would also be probative. It would also allow an inference to be drawn that, if produced, the material would not support his or her claim. If the material that has not been produced is in the party’s control or requires some action by the party, the tools that the Tribunal has been given to fulfil any inquisitorial functions it has are dependent upon that party and his or her compliance with any direction given by the Tribunal. Certainly, if the material is held by a person other than the parties, the Tribunal can summons the material or the person to give evidence as appropriate. If it is held by one of the parties, it can use its powers to give a direction under s 33(1) of the AAT Act to the person to produce it or, perhaps, to issue a summons under s 40(1A) but it then becomes dependent upon the party’s producing it or taking the directed action to obtain it. Although failure to comply with the direction or the summons may have some consequences for the party, the Tribunal can take the matter no further as far as the case is concerned. If there is no rational or reasonable explanation for the failure, why should it not draw the inference permitted by Jones v Dunkel in those circumstances? If there is no reason why it should not in those circumstances, why should the Tribunal have to use its powers to attempt to obtain material before drawing the inference in circumstances in which the party has not offered a reasonable and rational explanation for refusing to produce it and makes clear that he or she will not do so? All that the making of a direction or issuing a summons will do is to add to the refusal an extra refusal; that of refusing to comply with the direction or summons.
[127] (1999) 57 ALD 1 at 5-6
[128] See [98] above

It would seem to follow that the reasons for the rule in Jones v Dunkel are equally applicable in the Tribunal. In Re Perring and Australian Postal Corporation,[129] Einfeld J applied the principles in considering an appeal from the Tribunal’s decision and did so without questioning their applicability.[130]
[129] (1993) 31 ALD 693
[130] (1993) 31 ALD 693 at 696-697

DNA test: do the principles in Jones v Dunkel apply in this case?

This is a case in which Ms Rani has presented documentary evidence that Rudra Kumar is her son. She has given evidence about how she became pregnant, why the baby’s father is no longer in her life and the fact that she has been unable to find him since. Ms Rani also gave her reasons for not returning to Australia for her pregnancy and has presented witnesses some of whom say that they saw her when she was pregnant and all of whom have seen Rudra Kumar. Among those who have given evidence is her sister Shubwanti who said that she assisted with the birth of Rudra Kumar. The midwife, Karamjeet Kaur, has given a statement but was not called to give evidence. The doctor whom Ms Rani said that she consulted, Dr Singla, gave evidence that she had identified Ms Rani from a photograph sent to her by the High Commission. She answered questions about Ms Rani on the basis that Ms Rani was a pregnant 45 year old woman but I note that her clinical notes refer to her as a 40 year old. I did not notice this at the hearing and Dr Singla was not questioned about it by the parties’ representatives. In view of Dr Singla’s not being asked about it, I have paid no regard to the discrepancy at all.

At one level, I could simply come to the conclusion that all of the evidence is consistent and leads to a conclusion that Ms Rani is the parent of Rudra Kumar. When I look at the evidence of what happened as a whole, it does not have any discrepancies of note. The chain of events follows neatly as do the reasons for certain events taking place at certain places and the reasons for Ms Rani not taking steps, such as returning to Australia or giving birth in a hospital. Explanations are given for the absence of the person, Keshav Kumar, identified by Ms Rani as Rudra Kumar’s father. Explanations are given for the lack of contact with people outside her home when she was pregnant. They are given for the lack of photographs when she was pregnant. Reasons have been given for Ms Rani’s staying and giving birth in India. They have been given for her giving birth at her brother in law’s house and for her no longer having the report of her ultra sound. They have been given for her not giving birth in a hospital despite being an older mother and Dr Singla’s advice that she should. It is evidence that gives a logical and orderly progression of events taking me to a conclusion that Ms Rani is the birth mother of Rudra Kumar.

But then I think a little more carefully. The explanation for her not wanting to go out while pregnant and avoiding being photographed at that time was that she wanted to avoid being asked embarrassing questions about the baby’s father. She either did not wish to answer or could not answer them. But what was so different about being seen with a newborn? Would there not equally be questions asked about the father and why would they be any less embarrassing after the birth than before? What of the man said to be Rudra Kumar’s father? Accepting that he cannot be found, where is the evidence that he existed? Even accepting that the relationship between him and Ms Rani was casual and perhaps kept very much between themselves, it might be thought that someone at the Temple in Albert Park might remember him given that Temple was the place at which they met.

These questions would simply be questions if it were not for Ms Rani’s refusal to undertake a DNA test. They would not persuade me that I should not be satisfied that she is the birth mother of Rudra Kumar. The evidence that has been given is logically probative and support that finding and the questions are just that; questions. Her refusal to undergo the DNA test is not in the same category as a question. Her refusal is itself part of the evidence that I must take into account just as her reasons for refusal are part of that evidence.

What are her reasons? There is only one and that is that to undergo a DNA test is a breach of her right to privacy. It is often said that people have a right to privacy but is there such a right and, if so, is it a right that is unfettered by boundaries? In looking for answers to those two questions, it must be remembered that one person’s right is another person’s duty. That is to say, a person cannot have a right unless another is under a duty to ensure that the person has that right.

One expression of a right of privacy is found in the Charter of Human Rights and Responsibilities Act 2006 (Vic) in which s 13 provides:
“A person has the right-
(a)not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b)not to have his or her reputation unlawfully attacked.”

That is an enactment of the Victorian Parliament and does not impinge upon Commonwealth enactments.

The Commonwealth Parliament has enacted the Privacy Act 1988 (Privacy Act) and its application extends throughout Australia. It is a comprehensive enactment directed to ensuring that personal information is not collected beyond what is necessary for one or more of its functions or activities. It is also directed to ensuring that personal information is not used for other than those functions unless it is for a secondary function related to those functions and the individual concerned would reasonably expect that information to be disclosed or used for that secondary function. Data quality, security of storage of personal information and access to and correction of personal information are also the subject of regulation in the Privacy Act. That enactment is made in light of Australia’s international obligations referred to in the recital appearing after the long title, which reads: “An Act to make provision to protect the privacy of individuals, and for related purposes”:
“ WHEREAS Australia is a party to the International Covenant on Civil and Political Rights …
AND WHEREAS, by that Covenant, Australia has undertaken to adopt such legislative measures as may be necessary to give effect to the right of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence:
AND WHEREAS Australia is a member of the Organisation for Economic Co-operation and Development:
AND WHEREAS the Council of that Organisation has recommended that member countries take into account in their domestic legislation the principles concerning the protection of privacy and individual liberties set forth in Guidelines annexed to the recommendation:
AND WHEREAS Australia has informed that Organisation that it will participate in the recommendation concerning those Guidelines:
…”

At common law, some consideration has been given by the High Court to whether there is a tort of invasion of privacy. That occurred in Australian Broadcasting Commission v Lenah Game Meat Pty Ltd,[131] in which Gaudron, Gummow, Hayne and Callinan JJ held that a previous case of Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor[132] does not stand in the way of the development of a tort of unjustified invasion of privacy. Not standing in the way of the development of that tort does not mean that the High Court recognised that it existed today. They did not. What they did recognise is that there are already causes of action that may be available to those who may consider their privacy to have been breached. These were described by Gummow and Hayne JJ, with whom Gaudron J agreed:
[131] (2002) 208 CLR 199; 76 ALJR 1; 185 ALR 1
[132] (1937) 58 CLR 479 considered at (2002) 208 CLR 199; 76 ALJR 1; 185 ALR 1
“… Injurious falsehood, defamation (particularly in those jurisdictions where, by statute, truth of itself is not a complete defence), confidential information and trade secrets (in particular, as extended to information respecting the personal affairs and private life of the plaintiff …, and the activities of eavesdroppers and the like …, passing-off (as extended to include false representations of sponsorship or endorsement …), the tort of conspiracy, the intentional infliction of harm to the individual based in Wilkinson v Downtown (…[1897] 2 QB 57]) and what may be a developing tort of harassment …, and the action on the case for nuisance constituted by watching or besetting the plaintiff’s premises …, come to mind. Putting the special position respecting defamation to one side, these wrongs may attract interlocutory and final injunctive relief.”[133]
[133] (2002) 208 CLR 199; 76 ALJR 1; 185 ALR 1 at 255; 27; 36 citations omitted

Two years later, in Grosse v Purvis,[134] Judge Skoien of the District Court of Queensland was prepared to find that the common law had developed to meet changing circumstances and did now provide a remedy. He did so saying:
[134] [2003] QDC 151
“[442] It is a bold step to take, as it seems, the first step in this country to hold that there can be a civil action for damages based on the actionable right of an individual person to privacy. But I see it as a logical and desirable step. In my view there is such an actionable right.
[443]   …
[444]   It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be:
(a)a willed act by the defendant,
(b)which intrudes upon the privacy or seclusion of the plaintiff,
(c)in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
(d)and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.
…
[447]   It seems to me that a defence of public interest should be available (see Lenah at para 34). …”

However it is characterised, any right to protect personal information and to have one’s body held inviolate from other persons can be overridden by enactment. An example is found in the Crimes Act 1958 (Vic) (Crimes Act) in relation to forensic procedures in certain situations. A “forensic procedure” is defined in s 464(2) to mean:
“forensic procedure means the taking of a sample from any part of the body, whether an intimate or non-intimate sample or any other type of sample, or the conduct of any procedure on or physical examination of the body but does not include the taking of a fingerprint”

That is clearly broad enough to include DNA testing and the Magistrates’ Court may direct a person to undergo that testing in certain circumstances. They include those in which the person has refused to do so after being requested to so, the sample may be obtained by compulsory procedure, the person is a relevant suspect and a member of the police force believes on reasonable grounds that the person has committed an offence of which the procedure was requested.[135]

[135] Crimes Act, s 464T(1)

The provisions of the Crimes Act are, of course, entirely inapplicable in this case. My reference to them is intended to illustrate the point that, to the extent that a person can protect his or her privacy and personal information either under enactment or at common law, the protection is not absolute. Protection, for example, will not be afforded when Parliament has determined that protection must be diminished in order to achieve a more important goal directed to the investigation of criminal offences and so the maintenance of public safety.

By the same token, the protection of one’s privacy and personal information that a person is afforded does not mean that the person may not choose to step outside the reach of that protection in order to achieve a goal of some sort. We all do it on a regular basis and almost without thinking. Every time we ask for a bank account to be opened or the electricity to be connected, we supply personal information that the bank or electricity supplier could not otherwise require us to give. We forego our privacy in order to obtain something that we want more than we want to protect our privacy. At the same time, we know that the use that the bank or the electricity supplier may make of our personal information is very limited because of the provisions of the Privacy Act.

As convenient as it is to have a bank account or the electricity connected, many would see what Ms Rani wants as far more important – far more precious. She wants a child to be recognised as her child. She wants to be recognised as its birth mother. She wants it to be recognised so that it can be recognised as an Australian citizen by descent. Yet she will not undergo a DNA test which is a non intrusive test. She offers to undergo a medical examination instead but her offer is hard to fathom as her own evidence is to the effect that her gynaecologist has told her that, one year after the birth, it is not possible to tell with certainty whether she gave birth. Given the importance of having Rudra Kumar recognised as her child, Ms Rani’s explanation for refusing a DNA test leads me to infer that she knows that the likelihood is that the DNA test will show that Rudra Kumar is not her biological child and so that she is not his parent for the purposes of the Act.

If I have the power to require Ms Rani to undergo a DNA test, I would not exercise it. Although non invasive, it is a test that requires a mouth swab. That is an invasion of her personal space. The Act does not permit officers of the Department to require such a test. I have not considered whether I am bound by the same restriction as they but, even if I am not, I think that it would be quite inappropriate to require Ms Rani to do what she does not want to do.

I do, however, draw an adverse inference from her refusal. When I do that and weigh that against the documentary and oral evidence I am not satisfied that Ms Rani is the parent of Rudra Kumar for the purposes of s 16(1) of the Act.

For the reasons I have given, I affirm the decision of the Minister dated 5 November 2008.

I certify that the preceding one hundred and thirty one paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: .......................................................................
Kate Conners Associate

Dates of Hearing  19 December 2008
Date of Decision  25 February 2009
Counsel for the Applicant                   Mr Guy Gilbert
Solicitors of the Applicant                  Clothier Anderson & Associates

Solicitor for the Respondent Mr Ned Rogers
Solicitor of the Applicant Australian Government Solicitor

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80
per Smithers J

at 231; 13; 27 per Gaudron J, 248; 23; 31 per Gummow and Hayne JJ and 322; 66; 91 per Callinan J