Su and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 912

Su and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 912 (16 April 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2020/0248
GENERAL DIVISION  )
Re: Enci (Josiah) Su
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL: Dr L Bygrave, Member
DATE OF CORRIGENDUM: 23 April 2021
PLACE: Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to “deferral” in the catchwords of the decision is replaced with “descent”.

.......................[sgd]............................................
Dr L Bygrave, Member
Division:GENERAL DIVISION
File Number: 2020/0248
Re:Enci (Josiah) Su
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:16 April 2021
Place:Sydney

The Tribunal:
·sets aside the decision of the delegate of the Respondent made on 16 December 2019 to refuse Mr Enci (Josiah) Su’s application for Australian citizenship; and
·remits the matter to the Respondent for reconsideration in accordance with the direction that Mr Enci (Josiah) Su’s parent, Ms Alexandra Jagelman, was an Australian citizen at the time of his birth.

................................[sgd]........................................
Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP BY DEFERRAL – through parent who is Australian citizen at time of birth – defining ‘time of birth’ – whether claimed parent-child relationship existed at or before ‘time of birth’ – whether ‘time of birth’ should be given technical or ordinary meaning – application set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 16, 17
CASES
Enli Su and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 590
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Minister for Immigration and Border Protection v VDQS [2018] FCA 574
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instructions (CPIs), CPI 21 and 23
REASONS FOR DECISION
Dr L Bygrave, Member
16 April 2021

The Applicant, Mr Enci (Josiah / also known as Jack) Su, was born on [redacted – Applicant’s date of birth] in China. He was abandoned by his biological parents due to being born with a cleft lip and palate, and has since been raised by Ms Alexandra Jagelman, an Australian citizen.
On 16 April 2019, Mr Su applied for Australian citizenship by descent in accordance with section 16 of the Australian Citizenship Act 2007 (Cth) (the Act).
This application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 16 December 2019 on the basis that Mr Su did not satisfy the requirement in paragraph 16(2)(a) of the Act that he had a parent who was an Australian citizen at the time of his birth. In particular, the delegate determined:
Whilst I acknowledge a parent-child relationship exists between yourself and Alexandra Jagelman, based on the evidence provided I am not satisfied that this relationship existed at the time of birth as required to be eligible for Australian citizenship by descent.[2]
[1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
[2] Exhibit T-T2, page 29.
On 13 January 2020, Mr Su applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.
The application was heard by the Tribunal on 26 February 2021. Mr Su and Ms Jagelman attended the hearing and gave oral evidence by videoconference. Mr Su and the Minister were represented by counsel.
RELEVANT LEGISLATION
Subsection 16(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 17(1) of the Act:
If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Relevant to this application, subsection 16(2) of the Act states:
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth; and
(b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c)if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. [emphasis added]
Australian Citizenship [Policy Statement]
The Australian Citizenship [Policy Statement] (Policy Statement) issued on 27 November 2020 outlines the overarching legislative requirements for the process of becoming an Australian citizen. The Policy Statement also provides context for the relevant Citizenship Procedural Instructions (CPIs) (set out below) when making decisions under the Act.
The rights and responsibilities of an Australian citizen are articulated in the Policy Statement as follows:
Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations.
Australian citizenship includes the right to:
·apply for an Australian passport and re-enter Australia freely;
·ask for consular assistance from an Australian consulate while overseas;
·vote in federal, state or territory, and local elections;
·vote in a Constitutional referendum or plebiscite;
·seek election to parliament;
·apply for children born overseas to become Australian citizens by descent; and
·apply for a job in the Australian Public Service or in the Australian Defence Force…
The responsibilities of Australian citizenship include obligations to:
·obey the laws of Australia;
·vote in federal, state or territory, and local elections, and in a Constitutional referendum or plebiscite;
·defend Australia should the need arise; and
·serve on jury duty if called to do so.[3]
[3] Australian Citizenship [Policy Statement], section 3.2.
Although I am not bound to strictly apply the Policy Statement and CPIs, these comprise government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[4]
[4] [1979] AATA 179; (1979) 2 ALD 634.
Relevant to this matter are CPI 21 – Australian Citizenship by Descent (CPI 21) and CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act (CPI 23).
CPI 21 – Australian Citizenship by Descent
CPI 21 identifies the legal requirements, and related policy and procedures relevant to the consideration of Australian citizenship by descent. This includes establishing whether a parent met the legal requirements at the time of the child’s birth.
CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act
CPI 23 sets out the legal requirements, and related policy and procedures that apply to the assessment of a parent-child relationship as part of an application for Australian citizenship under the Act.
The meaning of ‘parent’ is not defined in the Act. However, CPI 23 provides the following guidance:
Up until 2010, citizenship by descent was limited under the Act to biological children. Following the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship[2010] FCAFC 119 (H case) on 15 September 2010, citizenship by descent can also be accessed by non-biological children in circumstances where a parent-child relationship existed at the time of the child’s birth. Therefore, the term ‘parent’ where used elsewhere in the Act including citizenship by birth, also includes non-biological parentage.
Consistent with the H case, the determination of whether a person is a parent is a question of fact and should be made on a case-by-case basis, in consideration of all the relevant information in the circumstances, including biological, legal, and social factors.[5] [emphasis added]
[5] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.2.
CPI 23 also sets out the evidence required to show the claimed parent-child relationship existed at the time of the applicant’s birth:
For citizenship by birth or descent, the parent-child relationship must have existed at the time of the applicant’s birth.
The applicant or their responsible parent should be requested to provide evidence of the length and nature of the claimed parent’s parental relationship with the child.
It is unlikely that any one piece of evidence would be sufficient to prove the required parent-child relationship. The decision maker is required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether or not the claimed parent is (was) a parent of the applicant at the relevant time.
Evidence that a claimed parent-child relationship existed at the time of a child’s birth may include, but is not limited to:
-    evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
-    evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth, antenatal and postnatal care;
-    evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; and
-    when a child is born through a surrogacy arrangement - a formal surrogacy agreement entered into before the child was conceived and, if available, lawful transfer of parentage prior to or after the birth.
Evidence that the claimed Australian citizen or permanent resident parent treated the child as their own from some point in time after the child’s birth is not evidence that they were the child’s parent at time of birth. However, evidence as to the claimed parent’s conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as their own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth.
In the absence of evidence of biological parentage, any other evidence provided should be thoroughly assessed.[6] [emphasis added]
[6] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.4
EVIDENCE
The facts of this matter, as set out below, are not in dispute:
·Mr Su was born on [redacted – Applicant’s date of birth] at a Maternal and Child Health Hospital in China. He was born with unilateral cleft lip and palate.
·On the day Mr Su was born, Ms Jagelman received a phone call from Dr Li, a paediatrician at the hospital, who said there was a baby (Mr Su) with a cleft lip and palate and asked if she would come and take the baby.
·The context of this request was that Ms Jagelman was living and working in the area as a maternal health care worker. Ms Jagelman was raising another child, Mr Enli (Silas) Su, who had been abandoned at birth by his biological parents because he was born with cleft lip and palate about 18 months earlier. Dr Li was the treating paediatrician for Mr Enli (Silas) Su.
·Following the phone call from Dr Li, Ms Jagelman organised baby items (including a cleft feed spout drinking cup, nappies and clothing) and went to the hospital to collect Mr Su the next day.
·At the hospital, Ms Jagelman was shocked to meet Mr Su’s biological parents, who ‘thanked her for taking their son’.[7] When she realised Mr Su had not been abandoned, Ms Jagelman told the parents she would ‘show them how to feed him’ and ‘help arrange free cleft surgery’.[8] She left them the cleft feeding bottle and her name card for them to call when the baby was five months old and ready for the cleft repair.
·The next day (or possibly the day after), Ms Jagelman arrived at her home in the afternoon and the owner of the shop next door gave her a box that had been left for her. Inside the box was Mr Su, the cleft feeding bottle, Mr Su’s birth certificate from the hospital and a note asking Ms Jagelman to raise the baby. She took Mr Su ‘inside, fed and bathed him and named him’: she gave him the ‘Chinese name Su En Ci meaning Grace and Kindness’.[9] Ms Jagelman’s Chinese name is ‘Su’.[10]
·A translation of the note left with Mr Su states the note is dated three days after his birth. The biological parents of Mr Su write that they gave birth to a boy on [redacted – Applicant’s date of birth] and:
Given that the boy has defects and that we have heard there is a foreigner who has an adopted baby with the same defects as our child who has grown very well, my wife and I are willing for this child to be adopted by the kind-hearted foreigner. We will never regret this decision and appreciate the foreigner.[11]
·Ms Jagelman was later told by Dr Li that Mr Su’s biological parents ‘had confided in her that their relatives would kill the baby as soon as they saw he was “deformed”’[12] and they did not even have ‘the money for the public bus fare to get to the free surgery’.[13]
·Ms Jagelman has raised Mr Su as her own child in her home since two or three days after the date he was born. This has included naming him, caring for and loving him as her own child, and paying for his education and other expenses including treatment and costs associated with three cleft lip and palate-related surgeries and seven years of specialised orthodontics treatment.
·Mr Su’s upbringing and education has been entirely in English. He completed high school through the NSW distance education program and sat the NSW Higher School Certificate in October 2016.
·Mr Su is currently in his final year of a Bachelor of (Mechatronic) Engineering Honours degree at The University of Sydney; he has a ‘passion for working and building biomedical devices’ that has been inspired by watching his mother, Ms Jagelman, help people in the medical field.[14]
[7] Exhibit T-T1, page 8.
[8] Exhibit T-T1, page 8.
[9] Exhibit T-T1, page 8.
[10] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 38.
[11] Exhibit T-T3, page 90.
[12] Exhibit T-T1, page 8.
[13] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 40.
[14] Transcript oral evidence of Mr Su, 26 February 2021, page 18.
I also have regard to translations of the following ‘certifications’:
·A Certification by the Police Department dated 27 August 1999, which declared that Ms Jagelman:
…found an abandoned baby, male, at 16:00 on [one day after date of birth], and attended our office to file a report. An investigation determined there was a birth certificate and an abandonment letter from the parents of the baby. According to the investigation, the parents of the baby cannot be located.[15]
·Certifications by Civil Affairs dated 18 November 1999 and 13 December 1999 that verified Mr Su was born on [redacted – Applicant’s date of birth], ‘abandoned by his parents’ and ‘adopted’ by Ms Jagelman.[16]
·A Certificate from Civil Affairs dated 6 March 2018 that confirmed the relationship between Ms Jagelman and the children under her care. This Certificate stated that Ms Jagelman has raised Mr Su ‘since the time of [his] birth’; this has included taking the ‘entire responsibility to provide the basic necessities of life… i.e. feed, clothe, shelter and transport, and to devote their time to loving and caring for [him] as their own biological [child].’[17]
[15] Exhibit T-T3, page 88.
[16] Exhibit T-T3, pages 92 and 94.
[17] Exhibit T-T1, page 18.
At the Tribunal hearing, Ms Jagelman gave oral evidence that confirmed the facts set out in paragraphs 16 and 17. In her oral evidence, Ms Jagelman explained that in 1999 she was working as a maternal health care director for a non-government organisation in China and providing training for birth attendants and paediatricians. She said that there was a ‘very high infant mortality rate’ and ‘high incidence of thalassemia’, which caused ‘congenital defects’ in the region of China she was living in and working.[18] Ms Jagelman explained that ‘beliefs around birth defects’ in the area were ‘highly tribal and mystic’, and a ‘child born with a defect or a twin…[was] classed as bad spirits and were [sic] usually killed at birth’.[19] She described how, 18 months prior to Mr Su’s birth, she had experienced her older son, Mr Enli (Silas) Su, being neglected and starved because of a similar ‘birth defect’.[20]
[18] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 22.
[19] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 22.
[20] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 22.
Ms Jagelman also gave detailed oral evidence about the day of Mr Su’s birth. She said:
I received a phone call from Dr Li, and she called me and she said: “Listen, there’s a baby here with a cleft lip and palate. Would you come and take it? Would you want it”. And I said, “Yes. Yes, I will,” straightaway.[21]
[21] Transcript oral evidence of Ms Jagelman, 26 February 2021, page 24.
Ms Jagelman said that she understood she was making a ‘lifetime commitment’ to raise Mr Su and ‘be his mother’ because ‘there were no other options’ in the region at that time: no one ‘would adopt a child with a disability’, there was ‘no orphanage’ and she knew that he would be ‘left to die’.[22] She said she was ‘sober about the responsibility’, but made the decision and commitment to be Mr Su’s mother ‘from the moment’ that Dr Li asked her to on the day he was born.[23]
[22] Transcript oral evidence of Ms Jagelman, 26 February 2021, pages 24-25.
[23] Transcript oral evidence of Ms Jagelman, 26 February 2021, pages 25 and 35.
For completeness, I also note documents were filed with the Tribunal in support of Mr Su’s connection to Australia and his intelligent and delightful character. These include references in relation to Ms Jagelman’s family and Mr Su’s connection to Australia through visits to his extended family and school attendance. While these documents support the extraordinary humanitarian commitment of Ms Jagelman towards both her own children as well as other children in China, this is not directly relevant to the issue before the Tribunal, which I now consider.
CONSIDERATION
The Respondent accepts that Ms Jagelman has been Mr Su’s ‘parent’ within the meaning of paragraph 16(2)(a) of the Act since ‘the time she took [him] into her care’ and that Ms Jagelman is, and at relevant times has been, an Australian citizen.[24] Therefore, the sole issue for determination is whether I can be satisfied Ms Jagelman was the parent of Mr Su at the time of his birth pursuant to paragraph 16(2)(a) of the Act.
[24] Respondent’s Statement of Facts, Issues and Contentions dated 12 February 2021, paragraph 2.

Counsel for both the Respondent and the Applicant provided extensive submissions about the statutory interpretation of ‘at the time of [the Applicant’s] birth’.
Counsel for the Respondent submitted the correct interpretation of paragraph 16(2)(a) is the ‘literal meaning’ of ‘the time of the birth’, which is ‘the moment in time on a particular day that a child is born’.[25] Birth was described as an ‘event’ that ‘concludes at a fixed point in time’ and ‘does not extend to an indeterminant future period’.[26] Referencing section 12 of the Act, which uses the language ‘the time the person is born’ as well as ‘the day the person is born’, Counsel for the Respondent accepted that the ‘time of birth’ does not have the same meaning as ‘day of birth’.[27] Rather, they submitted:
…the time of birth is something that happens on the day of birth. That is, it’s a point of time on the date of birth and it is the moment that the child is physically born.[28]
[25] Transcript Respondent’s closing submissions, 26 February 2021, page 44.
[26] Transcript Respondent’s closing submissions, 26 February 2021, page 44.
[27] Transcript Respondent’s closing submissions, 26 February 2021, page 45.
[28] Transcript Respondent’s closing submissions, 26 February 2021, page 45.
In written submissions, Counsel for the Applicant contended:
In construing the meaning of “at the time of birth” the correct interpretation is not only the few moments that pass when a child emerges from a uterus, but a reasonable time following that moment, which is likely to be a few days. The applicant came into the parental care of [Ms Jagelman] within a short time of leaving his biological mother’s womb, in circumstances where the biological parents abandoned him at birth.
Section 16(2)(a) says “at the time of the birth”, not “at the hour of birth” or “at the moment of the birth”.
Accordingly, s 16(2)(a) encompasses a reasonable time after the birth.[29]
[29] Applicant’s Statement of Issues, Facts and Contentions dated 18 January 2021, paragraphs 30-32.
I also have regard to the decision by the Full Federal Court in H v Minister for Immigration and Citizenship (H v Minister), which is the leading authority on the meaning of ‘parent’ in the Act. H v Minister set out the following general propositions for determining when a question is one of fact, law or a mix of fact and law:
First, the ordinary meaning of a word is a question of fact. Second, the question whether a word in the Act is to be given its ordinary meaning or some technical or other meaning is a question of law… Third, whether the facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.[30]
[30] [2010] FCAFC 119 at [45].
In considering the meaning of ‘parent’ in subsection 16(2) of the Act, H v Minister then stated that ‘the more rational approach is not to attribute some technical meaning to the word “parent” in s 16(2), but instead attribute to the word its ordinary meaning as evident in ordinary contemporary English usage’.[31] The Full Federal Court concluded:
There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.[32]
…
The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The Minister has not shown any relevant error in the Tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.[33]
[31] [2010] FCAFC 119 at [54].
[32] [2010] FCAFC 119 at [127].
[33] [2010] FCAFC 119 at [130].
Thawley J, in Minister for Immigration and Border Protection v VDQS (VDQS), also considered the meaning of parent in section 16 of the Act and determined that:
…the test in s 16 directs attention to whether a person was a “parent’ at the time of birth. The answer to that question might be informed by past or future events (relative to the time of birth) or predictions, but it is important to note that the statutory question turns on whether a person is a “parent” at a particular time, namely at birth.[34]
[34] [2018] FCA 574 at [30].
More recently, the decision by Moshinsky J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka (Koka) also considered the requirement in subsection 16(2) of the Act. While Koka must be distinguished on the facts from the current application before the Tribunal – the relevant person in Koka was adopted by an Australian citizen when he was 13 years old – Moshinsky J stated:
Accepting that the words “at the time of birth” qualify both the status of being a parent and the parent’s citizenship in s 16(2), the ordinary meaning of the words used in the provision is that the eligibility requirements need to be established as a matter of fact, as distinct from deeming on the basis of later adoption. In other words, the applicant for citizenship must have had, at the time of their birth, a parent with Australian citizenship as a matter of fact.[35]
[35] [2020] FCA 1471 at [51]
Notably, while the decisions in H v Minister, VDQS and Koka considered the provisions of subsection 16(2), they did not contemplate in any form what is meant by ‘at the time of the birth’ in paragraph 16(2)(a) of the Act.
The meaning of ‘at the time of the birth’ in paragraph 16(2)(a) of the Act was considered recently by the Tribunal in the matter of Mr Su’s older brother, Enli Su and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Enli Su and the Minister).[36] As noted in paragraph 16 above, the facts of Mr Enli Su’s application are similar to those of Mr Su: Mr Enli Su was also abandoned at birth by his biological parents after he was born with a cleft lip and palate, and Ms Jagelman raised Mr Enli Su as her child from three days after the date he was born.
[36] [2020] AATA 590 (19 March 2020).
In the decision of Enli Su and the Minister, the Tribunal referred to the decision in H v Minister and noted the ‘Court considered the “timing issue” in the context of the meaning of the word parent in s 16(2)(a) rather than analysing it as an issue in itself’.[37] Member West then identified two ‘significant’ issues of interpretation that the Full Federal Court did not appear to consider in H v Minister:
First, if the phrase, at the time of birth, was intended to qualify the word parent, the sentence ought to make grammatical sense if the other qualifying words, was an Australian citizen, are removed. This is not the case. In that event, the sentence would read as follows:
A person born outside Australia on or after 29 January 1949 is eligible to become an Australian citizen if a parent of the person was .... at the time of the birth.
Grammatically the provision does not make sense, unless the words at the time of the birth were intended only to qualify the words was an Australian citizen.
Secondly, if one assumes that the section was written with the primary intention of applying to biological parents, there is some difficulty with the Court’s interpretation. Being a biological parent is not time dependent. If one is a biological parent they have that status at all times from conception until death. To say that a biological parent must be a parent at the time of birth is tautological. However, being an Australian citizen is time dependent. Citizenship may be acquired at a certain point in time, by reason of birth or by reason of conferral, and it may be relinquished or removed. A construction of s 16(2)(a) that it was intended to require a person to have a parent at the time of birth, really only makes sense if the assumption is made that it was drafted primarily to cater for non-biological parents. This may explain the Court’s conclusion given it considered the meaning of the words in the specific context of deciding the question of whether non-biological parents were contemplated by the section.[38]
[37] [2020] AATA 590 (19 March 2020) at paragraph 19.
[38] [2020] AATA 590 (19 March 2020) at paragraphs 20-21.
Considering very similar submissions from the Respondent and the Applicant that were made to this Tribunal, Member West identified the question was whether:
…considering the factual circumstances as a whole, it is open to the Tribunal to conclude that Ms Jagelman became the Applicant’s parent at the time of his birth, on the basis that the time of the birth is not a rigidly fixed time (such as the moment of birth) and should be given a more flexible meaning which fits with various factual circumstances that can attend individual cases.[39]
[39] [2020] AATA 590 (19 March 2020) at paragraph 31.
The Tribunal then concluded:
When the short period of time, from the moment of the Applicant’s birth to the assumption of parental care by Ms Jagelman, is assessed retrospectively it presents itself as a reflection of the natural formation of the maternal bonds between a mother and her baby. In substance, if not in precise form, the circumstances for the Applicant are the same as if he had been taken home from the Hospital after three days by his biological mother.[40]
[40] [2020] AATA 590 (19 March 2020) at paragraph 37.
In relation to the decision by Member West, I accept the circumstances before this Tribunal in the matter of Mr Su are possibly stronger than the case in the matter of Enli Su and the Minister. I also note that, while the Respondent disputed whether Member West made the correct and preferable decision, this decision by Member West was not appealed by the Minister to the Federal Court. Nonetheless, I must consider the facts of Mr Su in relation to the provisions in paragraph 16(2)(a) of the Act.
Based on the evidence, I am satisfied that the facts of this matter are:
·Ms Jagelman did not know about Mr Su until the day he was born in the Maternal and Child Health Hospital.
·On the day Mr Su was born with a cleft lip and palate, Ms Jagelman received a phone call from Dr Li asking if she would ‘come and take’ Mr Su.
·Ms Jagelman agreed to raise Mr Su on the day of his birth because she knew that Mr Su would otherwise be left to die. She understood this meant a lifetime commitment to be Mr Su’s parent.
·When, on the following day, Ms Jagelman became aware that Mr Su had not been abandoned by his biological parents at the hospital, she offered to support Mr Su’s biological parents with the process of surgical repair of his cleft lip and palate.
·Between one and three days after the day Mr Su was born in hospital, his biological parents abandoned him into the care of Ms Jagelman.
These facts show the circumstances of Ms Jagelman being Mr Su’s parent only arose because he was born with a cleft lip and palate. Indeed, the evidence of Ms Jagelman indicated that, if Mr Su was not born with a cleft lip and palate, his biological parents would not have abandoned him.
Considering the policy guidance in CPI 23, I find that the sort of evidence listed to show a claimed parent-child relationship existed at or before the time of a child’s birth, is not relevant to the factual circumstances of the birth of Mr Su. Therefore, I weigh up relevant social and/or legal factors to determine whether Ms Jagelman was the parent of Mr Su at the time of his birth.
Consistent with the Full Federal Court decision in H v Minister, I accept the meaning of ‘at the time of the birth’ should be given its ‘ordinary meaning as evident in ordinary contemporary English usage’, and I should not ‘attribute some technical meaning to the word’. In view of this, I simply cannot accept that ‘the time of the birth’ is the precise ‘moment in time on a particular day that a child is born’. This interpretation would not allow for the various experiences of birth that occur in the ordinary sense of the word.
In the circumstances of Ms Jagelman and Mr Su, I find that Ms Jagelman became his parent at the time he was born with a cleft lip and palate. While Mr Su may have remained at the hospital with his biological parents for two or three days after the day he was born, I accept the oral evidence of Ms Jagelman that a child born in the area with a physical ‘defect’ was either abandoned or killed at that time. Thus, these social circumstances at the time of Mr Su’s birth meant that it was inevitable that, when he was born with a cleft lip and palate, he would be abandoned by his biological parents to be parented by Ms Jagelman.
It is my view that this outcome is consistent with CPI 23 that states that ‘to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case’.[41]
[41] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 1.
CONCLUSION
Weighing all the evidence, I am satisfied that Ms Jagelman was an Australian citizen at the time of Mr Su’s birth and therefore, Mr Su meets the requirements in section 16 of the Act.
DECISION
The Tribunal:
·sets aside the decision of the delegate of the Respondent made on 16 December 2019 to refuse Mr Enci (Josiah) Su’s application for Australian citizenship; and
·remits the matter to the Respondent for reconsideration in accordance with the direction that Mr Enci (Josiah) Su’s parent, Ms Alexandra Jagelman, was an Australian citizen at the time of his birth.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[sgd].........................................
Associate
Dated: 16 April 2021

Date(s) of hearing: 26 February 2021

Counsel for the Applicant: Georgina Costello QC

Solicitors for the Applicant: Sousan Oboodi-Mehr (Oboodi Barristers & Solicitors Pty Ltd)

Counsel for the Respondent: Katherine Hooper

Solicitors for the Respondent: Grace Ng (Australian Government Solicitor)

Date(s) of hearing:	26 February 2021
Counsel for the Applicant:	Georgina Costello QC
Solicitors for the Applicant:	Sousan Oboodi-Mehr (Oboodi Barristers & Solicitors Pty Ltd)
Counsel for the Respondent:	Katherine Hooper
Solicitors for the Respondent:	Grace Ng (Australian Government Solicitor)