Su and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 590
•19 March 2020
Su and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 590 (19 March 2020)
Division:GENERAL DIVISION
File Number: 2019/5694
Re:Enli Su
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R West
Date:19 March 2020
Place:Melbourne
The decision of the delegate of the Respondent made on 21 August 2019 to refuse the Applicant’s application for citizenship is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the Applicant’s parent, Ms Alexandra Jagelman, was an Australian citizen at the time of his birth.
.............[sgd]...................................................
Member R West
Catchwords
CITIZENSHIP – application for citizenship refused – non-biological parent – whether a parent of the person was an Australian citizen at the time of the birth – decision under review set aside and remitted to the Respondent.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Citizenship Act 2007 (Cth)Cases
ABCD v Minister for Immigration and Border protection (2014) 139 ALD 327
FMR18 v Minister for Home Affairs [2018] FCA 1632
Ghalzai v Minister for Home Affairs (Citizenship) [2019] AATA 74
H v Minister for Immigration (2010) 188 FCR 393
Koka v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5289
Minister for Immigration and Border Protection v VDQS [2018] FCA 574Onyema and Minister for Immigration and Border Protection (Citizenship) (2018) 162 ALD 597
REASONS FOR DECISION
Member R West
19 March 2020
This matter concerns an application for review of a decision of the delegate of the Respondent made on 21 August 2019 to refuse the Applicant’s application for citizenship by descent under s.16(2)(a) of the Citizenship Act 2007 (Act).
BACKGROUND
The Applicant was born in 1998 at a Hospital in the Yunnan province of the Peoples Republic of China. He was abandoned by his biological parents shortly after his birth and left in the care of the Hospital staff.
Ms Alexandra Jagelman, an Australian health care worker working at the Hospital, assumed the care of the Applicant shortly after his birth and raised the Applicant as a member of her family.
The Applicant applied for Australian citizenship on 16 April 2019 on the basis that he was eligible for citizenship under s.16(2)(a) of the Act, which relevantly provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth. The application was based on the assertion that Ms Jagelman was the Applicant’s parent.
A delegate of the Respondent refused the application on 21 August 2019 and the Applicant applied for a review of this decision by the Tribunal on 6 September 2019.
A hearing in relation to the application for review was held on 13 February 2020. The Applicant was represented by Ms G.A. Costello SC. The Respondent was represented by Mr Mark Hosking of counsel.
EVIDENCE
In conducting the review the Tribunal has had regard to:
(a)the documents produced by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents);
(b)the oral evidence of Ms Jagelman; and
(c)the following additional documents:
(i)the witness statement of Ms Linda Stringer, dated 3 February 2020 – Exhibit A1;
(ii)the witness statement of Ms Tamasin Louise Jonker, dated 4 February 2020 – Exhibit A2;
(iii)the witness statement of Mr Enci Su, dated 3 February 2010 – Exhibit A3;
(iv)a publication of the World Health Organisation on maternal and perinatal health – Exhibit A4;
(v)a bundle of documents regarding Centrelink payments to Ms Jagelman – Exhibit A5; and;
(vi)the witness statement of Ms Jagelman, dated 3 February 2020 – Exhibit A6.
FINDINGS OF FACT
The factual basis of the application is not subject to any significant dispute. The Respondent did not oppose the admission of the documentary evidence tendered by the Applicant and only briefly cross-examined the sole witness, Ms Jagelman.
On the basis of the evidence presented, the Tribunal makes the following findings of fact:
(a)In 1998 Ms Jagelman worked for a non-government organisation called Project Grace, later changed to Bless China International (NGO), providing maternal and child health training to local health workers at the Hospital. While providing the training she lived in accommodation at the Hospital.
(b)The Applicant was born at the Hospital on a day in 1998[1]. At birth he suffered from a cleft lip and palate.
(c)The Applicant’s biological parents were members of the Akha minority people who believed that any abnormality or deformity in a child means they are cursed and the child is at risk of being killed. Likely because of these beliefs, the birth parents secretly left the Hospital and abandoned the Applicant to the care of the Hospital staff soon after the birth. This was reported to the local police who determined that the parents could not be found[2].
(d)The Applicant was placed in a crib in the Hospital’s birthing room. It was common practice for babies to be kept in the birthing room if there were complications following birth. The babies were cared for by the nurses who usually attended to feeding. Mothers were only permitted to have limited access to their babies while they were in the birthing room.
(e)At approximately 2:00pm on the following day, Ms Jagelman attended the birthing room to observe a birth and provide instruction to the health workers in her program. While in the birthing room she noticed the Applicant lying in a crib in the corner of the room. She was informed by a nurse that the parents had run away. Ms Jagelman picked up the Applicant and coddled him for approximately 90 minutes to comfort him. She spoke to a nurse and offered to feed the Applicant but was advised by the nurse that the Applicant had already been fed.
(f)Ms Jagelman attended the birthing room again on the morning of the next day to see the Applicant. She visited the Applicant several times that day during breaks from her teaching duties and each time coddled him to comfort him as he was crying. She offered to feed the Applicant but was told by a nurse that he had already been fed. Each time Ms Jagelman saw the Applicant it was in the birthing room, except on one occasion when she found him in his crib in a doctor’s office.
(g)The next morning, Ms Jagelman visited the Applicant in the birthing room and became concerned that he was very weak and dry in the mouth. She suspected that he had not been fed by the nurses and was at risk of dying. She spoke to her supervisor, the Medical Director, and her superior in the NGO and obtained their permission to approach the Director of the Hospital to ask if she could take over the care of the Applicant.
(h)Ms Jagelman spoke to the Director of the Hospital later that afternoon and offered to take over the care of the Applicant and to raise him as her child. The Director gave her approval and arranged the necessary paperwork. Ms Jagelman then took the Applicant into her care and fed him immediately. She named him Silas Anthony Ian. The name Silas was entered onto his birth certificate. Ms Jagelman purchased necessary items for the care of the Applicant including nappies and a pram. She obtained official permission to travel with the Applicant by plane to her residence in another city where she was studying Chinese. She undertook the trip on the seventh day after the Applicant’s birth.
(i)From that time on Ms Jagelman assumed the role as parent of the Applicant and he was included into her family as her son.
[1] T5 at p. 40.
[2] T5 at p.41.
The Tribunal does not set out the details regarding the subsequent relationship between Ms Jagelman and the Applicant and her family for the purpose of this decision. It is readily conceded by the Respondent that from the day Ms Jagelman assumed the care of the Applicant with the approval of the Hospital Director, she became his parent for relevant purposes under the Act, having regard to the decision of the Full Court of the Federal Court in H v Minister for Immigration and Citizenship[3].
[3] (2010) 188 FCR 393.
Although it is not necessary for the purpose of the Tribunal’s determination, it should not go without saying that Ms Jagelman has, throughout the Applicant’s life, demonstrated an extraordinary commitment to the Applicant and in every sense of the word has fulfilled the role of an exceptional parent, not only to the Applicant but also to her other children.
Unfortunately however, the issue to be determined in this case does not turn on the depth and quality of the parental relationship upon which the Applicant relies. Rather, it turns on a narrow and technical issue related to the meaning and effect of s.16(2)(a) of the Act.
The precise wording of s.16(2)(a) of the Act is as follows:
(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…
The Applicant in this case is clearly a person born outside Australia on or after 26 January 1949. His eligibility for citizenship depends on whether he has a parent who was an Australian citizen at the time of birth.
It is now settled that a person does not have to be a biological parent in order to be a parent for the purposes of s.16(2)(a) of the Act. The Full Court of the Federal Court specifically addressed this issue in H v Minister for Immigrationand Citizenship and 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….
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[4].
[4] Ibid, [127] – [130].
The more difficult issue in the context of this case is the potential ambiguity in the meaning to be given to s.16(2)(a) arising from the words was an Australian citizen at the time of the birth. On one construction s.16(2)(a) requires that a person be a parent and an Australian citizen at the time of birth. Alternatively, it merely requires that a parent be a citizen at the time of birth.
The resolution of this ambiguity is, of course, critical in the Applicant’s case. Ms Jagelman is not the Applicant’s biological mother and if the interpretation adopted by the court in H v Minister for Immigration and Citizenship is accepted, the Applicant’s eligibility for citizenship under s.16(2)(a) of the Act depends on whether she was his parent at the time of his birth. If the alternative interpretation is accepted, there is no doubt that the Applicant satisfies the eligibility criterion as it is conceded that Ms Jagelman was an Australian citizen at the time of the Applicant’s birth, and that she became his parent on and from three days after his birth. It is profoundly sad that the future of a young man should turn on such a pedantic exercise, but it is what it is.
The ambiguity in s.16(2)(a) was recognised by the Court in H v Minister for Immigration and Citizenship[5]. In accepting the Minister’s submission that for purposes of s 16(2)(a), parenthood must be established as at the time of the birth[6], the Court noted:
The Minister’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth[7].
[5] Ibid.
[6] Ibid, [67] – [70].
[7] Ibid, [69].
The parties each acknowledged that the Court’s conclusion in relation to the timing issue in H v Minister for Immigrationand Citizenship was strictly obiter dicta[8]. 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. There are two significant issues of interpretation which the Court appears not to have considered.
[8] Ibid, [43]. At the outset of its decision, the Court stated clearly that the legal issue to be determined in the case was whether the word “parent” in s 16(2) of the Citizenship Act means only a biological parent.
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.
Notwithstanding these considerations, the Court’s decision is consistent with the legislative context. The Court noted at [43] that:
The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. As the Minister submitted, there is no indication in the extrinsic materials that parliament intended to change this basic test. This construction is also consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent ... is an Australian citizen ... at the time the person is born”. Other provisions that support the Minister’s position on timing include s 17(4)–(4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. Similar language appears in the context of national security exceptions to other routes to citizenship: see ss 19D(7) (adoption under the Hague Convention), 21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship)[9].
[9] Ibid, [70].
The Tribunal also noted in Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[10] that s.10B of the Australian Citizenship Act 1948 clearly articulated that an applicant for citizenship by descent must have a responsible parent who was, at the time of the birth of the applicant, a parent of the applicant[11].
[10] [2019] AATA 5289.
[11] Ibid, [22].
The Applicant submitted that the Tribunal is not bound by the decision in H v Minister for Immigrationand Citizenship and should conclude that on the proper construction of s.16(2)(a) it only needs to be satisfied that Ms Jagelman was an Australian citizen at the time of the Applicant’s birth. The Respondent submitted that whatever the Tribunal’s view, it is bound to apply the Court’s decision in H v Minister for Immigrationand Citizenship and must be satisfied that Ms Jagelman was the Applicant’s parent at the time of his birth.
Whether or not it has reservations regarding the proper interpretation of s.16(2)(a) in relation to the timing issue, the Tribunal is satisfied that it is bound to apply the decision of the Full Court of the Federal Court on this issue, notwithstanding that it was obiter. This approach is consistent with decisions of single judges of the Federal Court[12] and members of the Tribunal[13].
[12] FMR18 v Minister for Home Affairs [2018] FCA 1632 at [41] and Minister for Immigration and Border Protection v VDQS [2018] FCA 574, [30].
[13] See ABCD v Minister for Immigration and Border Protection [2014] AATA 18 at [37], Koka v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5289 at [50], Ghalzai v Minister for Home affairs (Citizenship) [2019] AATA 74 at [46] and Onyema and Minister for Immigration and Border Protection (Citizenship) (2018) 162 ALD 597 at [37]-[42].
This then leads to the question – was Ms Jagelman the parent of the Applicant at the time of his birth?
There are two aspects to this question. First, what is meant by the phrase at the time of birth, and secondly, what evidence is there that Ms Jagelman was a parent at that time?
The meaning of the phrase at the time of birth was not considered by the Court in H v Minister for Immigrationand Citizenship. Arguably, the phrase could mean, the moment of birth, the day of the birth or the time approximate to the birth. The Respondent submits that the phrase means the moment of birth. The Applicant asserts that it means a period following the birth that is understood in common parlance to indicate the time of the child’s birth and that this would encompass the three days after the Applicant’s birth before Ms Jagelman took the Applicant into her care. Neither party advocated for the day of birth.
The Court in H v Minister for Immigrationand Citizenship set out the considerations for determining if a person is a non-biological parent for the purpose of s.16(2)(a) of the Act.
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.[14]
[14] (2010) 188 FCR 393, [130].
The question whether a person is a parent under the section should encompass the full description in the section, namely that the person was a parent at the time of birth. This requires the Tribunal to consider the evidence before it, to determine as a question of fact whether the person was a parent at the time of birth. In this sense the time of birth is part of the factual matrix necessary to determine the question.
The evidence in this case is clear that Ms Jagelman was not a parent of the Applicant if the factual circumstances are assessed only at the moment of birth or even on the day of the birth. She had no knowledge of the Applicant’s birth until the day after his birth and had no knowledge of the pregnancy which preceded it. The question then, is 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 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.
The decided cases do not directly address the meaning of the words time of birth, although the Court in H v Minister for Immigrationand Citizenship did indicate that the effect of s.16(2)(a) is to exclude infant adoptees[15]. The circumstances in this case are unique in that the decided cases exclusively concern claims by non-biological fathers.
[15] Ibid, [122].
Except for Minister for Immigration and Border Protection v VDQS[16], where the father was present at the birth and involved with the child from the time of birth[17], the court and Tribunal have accepted non-biological paternity without the involvement of the father in the birth at all. In H v Minister for Immigrationand Citizenship the father, McMullen, did not visit Fiji until shortly after the birth[18] and McMullin had doubts about his paternity until blood tests were conducted shortly after the birth and he was found to have the same blood type as the child. Only then, were his doubts resolved and he accepted, mistakenly as it turned out, that he was the biological father[19]. In Ghalzai v Minister for Home affairs (Citizenship)[20] the father was not present at the birth but travelled to Pakistan where the child was born within a few days[21], although members of his family performed religious rituals associated with the birth. Otherwise there was little evidence of his connection with the child during the period immediately after the birth[22]. In FMR18 v Minister for Home Affairs[23] the father was not present at the birth and did not travel to China where the child was born for almost twelve months[24]. He was not advised of the birth until the day after the birth[25]. The Court found that from the day he was informed of the birth (i.e. the day after the birth), the father considered the applicant to be his child. In ABCD v Minister for Immigration and Border Protection[26] the father was not present at the birth of the child and did not travel to the Phillippines where he was born until 17 days afterwards. In Onyema and Minister for Immigration and Border Protection (Citizenship)[27] the father did not returned to Nigeria for the birth or for around four years after the birth[28].
[16] [2018] FCA 574.
[17] Ibid, [16].
[18] (2010) 188 FCR 393, [15].
[19] Ibid, [15].
[20] [2019] AATA 74.
[21] Ibid, [38].
[22] Ibid, [34].
[23] [2018] FCA 1632.
[24] Ibid, [18].
[25] Ibid, [11].
[26] (2014) 139 ALD 327.
[27] (2018) 162 ALD 597.
[28] Ibid, [32].
In each of these cases, the Court or Tribunal was able to assess whether the fathers met the definition of a parent at the time of birth even though they had no involvement in the actual birth, relying in part on the evidence of their conduct after the birth.
The evidence in the Applicant’s case is that on and from the afternoon of the third day after the date of the birth, Ms Jagelman unequivocally acknowledged the Applicant as her own and treated him as her own. She displayed the intense commitment to the Applicant typical of parentage[29]. This was readily conceded by the Respondent.
[29] (2010) 188 FCR 393, [129].
Ms Jagelman first discovered the Applicant in his crib less than 24 hours after the birth and immediately took the baby into her care to comfort him. She returned several times the next day to do the same, indicating a growing concern and attachment to the baby. By the third day, she was moved to approach her superiors to request permission to assume full-time care of the baby. During this time, the baby was being cared for in the birthing unit where Ms Jagelman had access to the baby just as his biological mother would have had, had she not left the Hospital. In these respects, the relationship between Ms Jagelman and the baby over these three days closely mirrored what would have been the case had matters proceeded with his biological mother.
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 were the same as if he had been taken home from the Hospital after three days by his biological mother.
Having regard to the evidence and the unique circumstances of this case and applying the plain ordinary meaning to the phrase at time of the birth, the Tribunal is satisfied that Ms Jagelman was a parent of the Applicant from the time of his birth. Accordingly, the Tribunal finds that the Applicant is eligible for Australian citizenship by descent under s.16(2)(a) of the Act.
DECISION
The decision of the delegate of the Respondent made on 21 August 2019 to refuse the Applicant’s application for citizenship is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the Applicant’s parent, Ms Alexandra Jagelman, was an Australian citizen at the time of his birth.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R West.
...............[sgd]...................................................
Associate
Dated: 19 March 2020
Date of hearing: 13 February 2020 Counsel for the Applicant: Ms G.A. Costello SC Solicitors for the Applicant: Oboodi Barristers & Solicitors Pty Ltd Counsel for the Respondent: Mr M Hosking Solicitors for the Respondent: Sparke Helmore Lawyers
2
6
0