SVYH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 936
•23 April 2020
SVYH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 936 (23 April 2020)
Division:GENERAL DIVISION
File Number: 2019/1581
Re:SVYH
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:23 April 2020
Place:Brisbane
I affirm the decision under review.
.......................[SGD].................................
Deputy President Dr P McDermott RFD
CATCHWORDS
CITIZENSHIP – citizenship by descent – citizenship by descent where Applicant’s lineage was unestablished – refusal to submit to DNA test – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 16, 17
Migration Act 1958 (Cth) s 57
Racial Discrimination Act 1975 (Cth) ss 6, 9CASES
H v Minister for Immigration and Citizenship (2010) 188 FCR 393, [2010] FCAFC 119
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178SECONDARY MATERIALS
Australian Citizenship Procedural Instructions – CPI 23 – Determining Parent-Child Relationship for the Purposes of the Citizenship Act
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
24 April 2020
INTRODUCTION
This is an application to review the decision of a delegate of the Minister for Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”, “the Department” or “the Respondent”) to refuse to approve SYVH (a minor born in 2018) (“the Applicant”), becoming an Australian citizen by descent pursuant to Subdivision A of Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (“the Act”).
The application for citizenship that is the subject of this application was made on 9 October 2018 by Mr X who states that he is the father of the Applicant. On 18 October 2018 and 3 December 2018 the Department requested additional documentation from Mr X.[1] On 17 December 2018, Mr X provided additional documentation to the Department.[2] On 3 December 2018 the Department wrote to Mr X with an offer to do DNA testing.[3] On 7 January 2019 Mr X declined DNA testing on the ground that the request was racially motivated.[4] On 30 January 2019, Mr X was sent an invitation to comment under s.57 of the Migration Act 1958 (Cth). On 2 February 2019, Mr X responded to that invitation to comment by stating that he and his wife Ms Y would not submit to a DNA test. On 18 March 2019 the application was refused by a delegate of the Minister on the basis that the delegate was not satisfied that the Applicant had a parent who was an Australian citizen at the time of his birth.[5]
[1] Exhibit B, Supplementary Section 37 T Documents, ST1 email from the Department to the Applicant’s father request for further documents dated 18 October 2018, pages 1 – 2; ST2 email from the Department to the Applicant’s father following up request for further documents, dated 3 December 2018, page 3.
[2] Exhibit B, Supplementary Section 37 T Documents, ST 3 Departmental case note confirming receipt of requested documents, dated 18 December 2018, page 4.
[3] Statement of Facts, Issues, and Contentions, dated 29 August 2019, page 2.
[4] Ibid, page 10.
[5] Exhibit A, Section 37 T Documents, T2 Notification of refusal of an application for Australian citizenship by descent, dated 18 March 2019, pages 14-16; Exhibit A, Section 37 T Documents, T1 Notice of application for review of decision, attachment 2, decision record, pages 4 – 10.
On 19 March 2019 Mr X, on behalf of the Applicant, applied to the Administrative Appeals Tribunal (“the Tribunal”) for the review of the decision to refuse the application for citizenship.[6] Although the application to the Tribunal was stated by Mr X to be a “visa refusal” decision, I am satisfied that he has made a competent application in respect of the decision to refuse citizenship to the Applicant. This is because in his application to the Tribunal he has referred to the actual date of the decision to refuse the application for citizenship, the relevant Department file number as well as the relevant Department client ID.[7]
[6] Exhibit A, Section 37 T Documents, T1 Notice of application for review of decision, attachment 3 - AAT application for review, dated 1 April 2019, pages 11 – 23.
[7] Ibid.
LEGISLATION
Section 16 of the Act sets out the eligibility requirement for a person applying for citizenship by descent. Relevantly, s.16(2) provides as follows:
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;
...
Further, sections 17(1A), (2) and (3) of the Act provide the following in relation to the Minister’s approval of applications for citizenship by descent:
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
CONTENTIONS OF APPLICANT
Mr X, who is an Australian citizen, claims that he is the Applicant's biological father and that his wife Ms Y, who is not an Australian citizen, is the Applicant's biological mother.[8]
[8] Exhibit D, Submissions of Mr X and behalf of the Applicant, dated 10 September 2019, page 1.
CONTENTIONS OF MINISTER
The Minister contends that in the absence of DNA evidence confirming Mr X's claimed biological parentage of the Applicant there is insufficient evidence to be satisfied of the parentage of the Applicant in circumstances where:
(a)the Applicant's claimed mother was 51 years old at the time of the birth; and
(b)the Applicant's claimed mother alleges she travelled by air from Australia to Indonesia three days before the birth of the Applicant; and
(c)there is no evidence of prenatal care in Australia; and
(d)there is no statement from an independent person or any photographic evidence verifying the fact of the Applicant's claimed mother's pregnancy.
DOCUMENTARY EVIDENCE
There are several documents which verify the Australian citizenship of Mr X and the Indonesian citizenship of Ms Y. There are also movement records for Mr X and Ms Y.[9]
[9] Exhibit A, Section 37 T Documents, T4 Application for citizenship by descent, attachment 4 copy of Mr X’s Australian passport, dated 23 September 2010, page 55; Exhibit A, Section 37 T Documents, T4 Application for citizenship by descent, attachment 8 certified copy of Ms Y’s Indonesian passport, dated 21 May 2015, page 59.
There are a number of records relating to the birth of the Applicant:-
Excerpt of Birth Certificate of Applicant
In evidence is a document and a translation of that document which contains the statement that it is a ‘birth certification’ of the Applicant which lists Ms Y as the mother of the Applicant and Mr X as the father of the Applicant. This ‘birth certification’ bears the logos of the Indonesian Midwives Association and Bidan Delima Qualified Services.[10]
[10] Exhibit A, Section 37 T Documents, T4 Application for citizenship by descent, attachment 3 copy of Applicant’s birth certificate, dated 30 September 2018, page 54; Exhibit A, Section 37 T Documents, T10 Various documents, attachment 8 certified translation of Applicant’s birth certificate, dated 30 September 2018, page 81.
Statement of S. K.
According to the translation of this document S. K. is also known as Mrs A, who signed the Applicant's birth certificate.[11] This person has provided a statement stating that Ms Y gave birth to a child and provided some details of the child and the birth (date, weight, height etc.).
[11] Exhibit A, Section 37 T Documents, T10 Various documents, attachment 5 certified translation of statements made by S. K., dated 06 December 2018, page 78.
Mother and Child Health Record Book
This book is said to be a record of vital statistics taken at various times throughout Ms Y’s pregnancy. The record includes statistics such as ‘foetal heart beat/minutes’ and records entries in June and September 2018. Some entries in the book appear to be initialled. The record is not signed and it is not clear how or when this document was generated.[12]
[12] Exhibit A, Section 37 T Documents, T10 Various documents, attachment 7 copy of Indonesian parental health record, dated 30 December 2017, page 80; Exhibit A, Section 37 T Documents, T10 Various documents, attachment 8 certified translation Indonesian parental health record, dated 11 December 2018, pages 83 – 85.
Ultrasound Picture
An ultrasound picture is in evidence.[13]
[13] Ibid, attachment 11 copy of ultrasound photograph, page 86.
Receipt
There is a receipt dated 1 October 2008 for 15 million rupiah ‘for payment of childbirth cost’.[14]
[14] Exhibit C, Applicant documents filed 3 June 2019, Authorized Transaction dated 1 October 2018, page 15.
Letter of Y. G.
In her letter Ms Y. G. states that she is a ‘good friend’ of Ms Y and that they have been ‘close personal friends since 2014’. In her letter Ms Y. G states that she supported Ms Y during her pregnancy.[15]
[15] Exhibit C, Applicant documents filed 3 June 2019, Letter of Y. G, dated 1 June 2019, page10.
Photographs
The Applicant has supplied a number of photographs. One photograph is said to depict Ms Y when she was pregnant. There are also photographs of Ms Y holding a small child.[16]
[16] Exhibit C, Applicant documents filed 3 June 2019, photographs, pages 6 – 8 and 10 – 14 and 17 – 18.
EVIDENCE OF FATHER
Mr X stated that he met his wife in Bali in about 2013 and that before their marriage (in November 2014) she had travelled to Australia and had stayed in Australia while on a visitor visa. Mr X confirmed that the Applicant was born on 30 September 2018 in Surabaya, Indonesia. He stated that it was early in 2018 when his wife told him she was pregnant; he was in the kitchen. He confirmed that she was 50 years old when the baby was conceived. He stated that the conception was a natural conception and his wife did not have fertility treatments. He stated that it was in June or July 2018 when his wife went to a consultant in Indonesia, where the ultrasound photo was taken.
Mr X stated that it was always his wife’s intention to have the baby at the overseas clinic because S. K. was the only person that his wife trusted with her pregnancy. Mr X confirmed that he wrote a letter on 2 February 2019 in which he stated that his wife was expected to give birth at the end of October 2018.[17] He stated that he was not sure who his wife told about the pregnancy. He stated that the only friends that he has are at work and he told them about the pregnancy. He stated that he does not use social media and was unsure if his wife did. He stated that his wife told U, her best friend who lives in Brisbane, about the pregnancy. His wife was working while she was pregnant and finished work a couple of months before she was due to travel to Indonesia.
[17] Exhibit B, Supplementary Section 37 T Documents, ST6 Letter from the Applicant’s father to the Department: Response to invitation to comment, dated 2 February 2019, pages 17 – 18.
Mr X confirmed that he submitted photographs of his wife while she was pregnant. He was unable to say when a photo of his wife in a red dress in Brisbane was taken.[18]
[18] Exhibit C, Applicant documents filed 3 June 2019, photographs, page 12.
Mr X stated that his wife wouldn’t see any doctors in Australia and that she only trusted S. K. the midwife who is a close family friend who she has referred to as an ‘aunty’. He stated that his wife found one Indonesian speaking doctor; that doctor was Chinese, and his wife would not consult with her. Mr X confirmed that his wife did not attend to any medical treatments or monitoring in Australia in relation to her pregnancy. Mr X stated that his wife communicated with the midwife by telephone or he assumed by social media. Mr X stated that he did not have any evidence of phone conversations, social media or messages.
Mr X confirmed that the movement records indicate that his wife departed Australia on 17 June 2018 and returned on 22 June 2018 and that she flew alone to see S. K.[19] He also confirmed that he and his wife departed Australia on 27 September 2018 and that they travelled together to see S. K. who has been a qualified midwife for about 40 years.
[19] Exhibit A, Section 37 T Documents, T5 Australian citizenship be descent assessment, dated 25 January 2019, page 64.
Mr X was directed to a translation of S. K.’s ID card from Indonesia which records her occupation as retired;[20] he was not aware why that statement is on the ID card. Mr X said that perhaps she has retired professionally and she’s just helped his wife out because they’ve known each other for so long. Mr X gave evidence that he was the father of the Applicant.
[20] Exhibit A, Section 37 T Documents, T10 Various documents, attachment 1 certified translation of S. K. Indonesian identification card, dated 10 December 2018, page 75.
Mr X was directed to the translation of the birth certificate issued by the midwife, which states that the date of birth is 30 September 2018 and the certificate itself is dated 30 September 2018.[21] He stated that he probably did not receive the certificate on 30 September 2018. He said that he thought that the midwife may have filled it out that same day because the child was born early in the morning.
[21] Exhibit A, Section 37 T Documents, T10 Various documents, attachment 8 certified translation of Applicant’s birth certificate, dated 30 September 2018, page 81.
Mr X was directed to the difference in spelling of the first name of the Applicant in the birth certificate issued by S. K. and the birth certificate from the Civil Registry in Jakarta .[22] He stated that he thought that the person in the Civil Registry ‘has put a typo in, misspelt his name and then gone back and modified this birth certificate to change it’. He stated that the correction of the name on S. K.’s birth certificate was not done by S. K. in Surabaya but was done in Jakarta. He said that they did not apply to have the birth certificate corrected because they would have to go through the Civil Registry in Depok. He confirmed that the excerpt was issued on 8 October 2018, about eight days or nine days after the Applicant was born.
[22] Exhibit A, Section 37 T Documents, T4 application for Australian citizenship, attachment 3 exert of Applicant’s birth certificate, dated 30 September 2018, page 54.
Mr X was directed to a receipt issued to his wife with the translation; the receipt is for an amount of 15 million rupiah for payment of childbirth cost and is dated 1 October 2018 in Surabaya.[23] He stated that he thought that the receipt was issued by a nurse. He stated that the money was paid in cash.
[23] Exhibit C, Applicant documents filed 3 June 2019, Authorized Transaction dated 1 October 2018, page 15.
Mr X was asked why the ultrasound scan, which has no name written in the panel name, relates to the Applicant. He said that the ultrasound was given by the clinic. He said that the scan would have been completed in June when his wife was over there. He did not know who completed the scan as he was in Australia when it was done. He was asked to affirm if the scan was conducted in the evening as the scan appears to be time stamped at 8:10am on the 20 June 2018. He stated that he did not know.
Mr X was asked if it was fair to say that his only evidence of his wife giving birth to the Applicant is a letter from her friend S. K., a birth certificate signed by the same friend, a page showing medical records without a name, a receipt that doesn’t indicate who it was issued by and an ultrasound without a name. He answered: ‘yes, the friend was the midwife, a signed statement’. Mr X stated that he did not see his wife giving birth and he had stayed in the apartment at that time.
Mr X was asked why he refused the offer from the Department to undertake DNA testing; he answered, ‘well it’s voluntary so I refused on the grounds that it’s voluntary and I believe that it was racial profiling’. He added: ‘I believe it’s racially motivated as well and it’s also unfair. Why is it not applied to everybody? Why is it not a law that you must undergo a DNA test and then it can be applied to everybody fairly, not just applied as the Department sees fit’. Mr X denied that he was concerned that the DNA test would show that he was not the biological father of the baby and that his wife is not the biological mother of the baby.
EVIDENCE OF MOTHER
Ms Y, the mother of the Applicant, gave evidence by telephone. Although the Respondent had indicated on a hearing certificate that Ms Y was required for cross-examination, no prior arrangements had been made for her to give evidence before the Tribunal.
Ms Y stated that her son’s date of birth was 30 September 2018. She did not respond to the question as to when she first knew she would be having a baby. She stated that she did not indicate that she was pregnant on any social media. She told her friend U. that she was pregnant but did not tell anyone else. She stated that when she gave birth, her cousins and S. K. were present. She stated that she did not see any doctors in Australia because she would only trust S. K. She used Facebook a long time ago and spoke to S. K. by WhatsApp. She stated that she worked in childcare in Australia some time before the pregnancy.
CONSIDERATION
The Applicant is 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 to satisfy s.16(2)(a) of the Act. The application before the Tribunal is based upon the contention of Mr X that he is the biological father of the Applicant and that his wife is the biological mother of the Applicant.
The case of the Applicant is not based upon Mr X being a parent in the non-biological sense as explained by the Full Court of the Federal Court of Australia in H v Minister for Immigration and Citizenship (2010) 188 FCR 393, [2010] FCAFC 119. There certainly is no evidence which would enable me to make a finding that Mr X could be regarded as a parent in the non-biological sense. I also mention that the Full Court in Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23, at [29], explained that the earlier decision of H v Minister for Immigration and Citizenship (2010) 188 FCR 393, [2010] FCAFC 119 is not authority for the proposition that a person necessarily becomes the ‘parent’ of a child merely by reason of having married the biological parent prior to the birth of the child.
The Respondent made submissions concerning the evidence that was given by Mr X. Mr X was questioned about whether he was present at the birth of the Applicant. I do not draw an adverse inference against him merely because he was not present at the birth of the Applicant. The fact that Ms Y had only her cousins present as well as the midwife may be explicable because of cultural reasons and the early time of birth. The Respondent submitted during cross examination that Mr X stated that he did not tell any family members or friends that Ms Y was pregnant. This submission is not entirely accurate because Mr X, in cross-examination, stated that he had no family but that he did tell his friends at work about the pregnancy. However, Mr X did not identify which work friends he did inform about the pregnancy. The Respondent also submitted during cross-examination that Mr X had incorrectly identified the date (including the year) when he married Ms Y. However, there was never any question of whether Mr X and Ms Y were validly married. There was evidence before the Tribunal in the form of a marriage certificate that they were lawfully married.[24] These matters are not in my view central to the decision which I must make.
[24] Exhibit A, Section 37 T Documents, T10 Various documents, attachment 4 certified copy of Mr X’s and Ms Y’s marriage certificate, dated 8 November 2014, page77.
After considering the evidence before me, I have concluded that there is no plausible evidence that Ms Y is the mother of the Applicant.
There is no independent evidence before me that shows that Ms Y is the mother of the Applicant. The case that has been presented to the Tribunal is that on 27 September 2018 Ms Y travelled by air to Indonesia and gave birth to the Applicant on 30 September 2018. The case of the Applicant is that Ms Y was traveling by air when she was in an advanced state of pregnancy. There is no evidence that the airline was informed of the pregnancy. In the absence of confirmatory evidence such as DNA testing, I do not accept that Ms Y was pregnant when she was on the flight to Indonesia. On the account that is put before the Tribunal there was no prenatal treatment in Australia. She was born in 1967 and is of an age in which it is difficult to conceive without undergoing fertility treatment. The photograph of Ms Y that is said to have been taken prior to the birth of the Applicant that was tendered in evidence does not, in my opinion, show that Ms Y was pregnant.
The documentation that is put forward on behalf of the Applicant does not in my view assist the Applicant. There are no contemporaneous photographs at the time of birth. The letter from Y. G. is not verified by statutory declaration and the author of the letter did not give evidence before the Tribunal. The ultrasound picture does not contain any indication that it was performed on Ms Y. The birth certificate is signed by S. K. who is regarded by Ms Y as her ‘aunty’ and not by an independent person. It is not clear why S. K. still works as a midwife when her ID shows her to be retired. There is no evidence to establish the providence of the mother and child book.
The Department has requested Mr X and Ms Y to undertake DNA testing. I consider it to be a reasonable request for the Department to give an invitation for the parties to undertake DNA testing as there is minimal evidence to support the claimed parent-child relationship. In evidence is the current policy which is reasonable to apply in these circumstances.[25]
[25] Exhibit G, Australian Citizenship Procedural Instructions – CPI 23 – Determining Parent-Child Relationship for the Purposes of the Citizenship Act, s 3.4
Ms Y will not undergo DNA testing without the permission of her husband who asserts that DNA testing will involve racial profiling. I do not accept that there is any reasonable basis for Mr X or Ms Y to decline the offer of DNA testing. There is no evidence which would enable me to conclude that there will be any racial profiling of the Applicant or that the request of Mr X and Ms Y to undertake DNA testing was racially motivated. The Racial Discrimination Act 1975 (Cth) binds the Crown in right of the Commonwealth,[26] and so binds the Department. The Racial Discrimination Act 1975 (Cth) provides that racial discrimination is unlawful, [27] and so the Department is prohibited from engaging in racial discrimination. It unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.[28]
[26] Racial Discrimination Act 1975 (Cth), s.6.
[27] Ibid.
[28] Racial Discrimination Act 1975 (Cth), s.9.
The Respondent has asked the Tribunal to draw an adverse inference from the failure of Mr X and Ms Y to take up offers made to them by the Department to submit to DNA testing: see Kumar and Minister for Immigration and Citizenship [2009] AATA 124 (“Kumar”). In Kumar the Applicant was legally represented. I have decided not to place on record that I have drawn an adverse inference from the failure of Mr X and Ms Y to undergo DNA testing. They are not legally represented and may not understand the nature of an adverse inference. Nevertheless, the Applicant does not have the evidentiary benefit of favourable DNA test results. The absence of such evidence allows for considerable doubt to remain as to the biological parentage of the Applicant.
CONCLUSION
I am not satisfied that Mr X is the biological father of the Applicant or that Ms Y is the biological mother of the Applicant. The correct and preferable decision is that I must affirm the decision under review.
DECISION
I affirm the decision under review.
42. I certify that the preceding 41 (fourty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD.
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Associate
Dated: 23 April 2020
Dates of hearing:
19 November 2019
Date final submissions received:
17 January 2020
Solicitors for the Respondent:
Clayton Utz
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