Tamanabae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 840

Tamanabae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 840 (27 April 2022)

Division:GENERAL DIVISION

File Number:          2020/5669

Re:Judy Tamanabae

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:27 April 2022

Place:Brisbane

The decision under review is affirmed.

......[SGD]..................................................................

Member R Maguire

Catchwords

CITIZENSHIP – refusal of application - identity of applicant – prohibited from approving application - review of decision - affirmed

Legislation

Australian Citizenship Act 2007 (Cth) s 16 s 16(2(a) s 17(1A) s 17(2) s 17(3)

REASONS FOR DECISION

Member R Maguire

27 April 2022

INTRODUCTION

1. By application dated 10 September 2020, the Applicant (Ms J Tamanabae), a citizen of Papua New Guinea (“PNG”), seeks review of a decision of a Delegate of the Respondent (Minister) under section 17(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”) made on 24 August 2022 to refuse to grant the Applicant citizenship by descent under section 16 of the Act because the Delegate was not satisfied as to the Applicant’s identity, and was therefore prohibited from approving the application by section 17(3) of the Act.

2. The Applicant was born prior to Papua New Guinea gaining independence in 1975.

   LEGISLATION

3. Section 16 of the Act sets out the eligibility requirement for a person applying for Australian citizenship by descent. Relevantly, section 16(2) provides 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; ...

4. Further, sections 17(1A), (2) and (3) of the Act provide the following in relation to the Minister’s approval of applications for Australian 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.

   PARTIES CONTENTIONS

   Applicant

5. In her application for Australian citizenship, the Applicant claimed that she was born in Kundiawa prior to PNG achieving independence. At that time, Kundiawa was located outside of Australia in the Trust Territory of New Guinea.

6. The Applicant also initially claimed that she was the biological daughter of a man who was an Australian citizen. That man will be referred to as “Mr X”. Mr X was in poor health, and did not give evidence.

7. During the course of the Hearing, and following the receipt of adverse DNA evidence the Applicant changed her evidence and her argument to assert a parental relationship at the time of her birth.

   Respondent

8. The Respondent contended that there was insufficient reliable evidence to support findings that the Applicant was born “outside Australia” or that Mr X was her parent for the purposes of section 16(2)(a) of the Act or her identity for the purposes of section 17(3) of the Act.

   EVIDENCE

9. The full suite of documentary evidence before the Tribunal is set out in the Exhibit Register annexed hereto and marked “A”. The Tribunal has had regard for this material.

   Evidence at hearing

10. At the Hearing which commenced on 1 October 2021, the Tribunal noted that it had no DNA evidence before it to assist to determine if Mr X was in fact the biological father of the Applicant.

11. The following exchange occurred[1]:

    MEMBER: Yes. Mrs Tamanabae, you have sought citizenship on the basis that Mr X is your biological father; that is, your natural father.

    WITNESS (APPLICANT): Yes.

    MEMBER: Okay. As I understand it, it's not your contention that Mr X and your mother - sorry, that Mr X was your parent at the time that you were born in the sense that he wasn't living with your mother and playing the role of a father at that time; was he?

    WITNESS (APPLICANT): No.

    [1]     Transcript page 8, lines 27-37.

12. After discussions with the Applicant and Mr Kyranis who appeared for the Minister, the matter was adjourned to enable the procurement of a DNA test which, if negative, was expected to be determinative of the application.

13. The Hearing was resumed on 24 March 2022, at which time the Respondent was represented by Ms Allen. The Applicant tendered a DNA test[2], which showed a 0.00% probability of the claimed paternity.

    [2]     Exhibit 17.

14. The Applicant informed the Tribunal that Mr X was unwell and unable to attend or give evidence by telephone. The Applicant also told the Tribunal that she was not seeking any adjournment to allow her a further opportunity to obtain evidence from him. She also expressed satisfaction that she had had a reasonable opportunity to obtain evidence from him, and was happy to proceed with the hearing[3].

    [3]     Transcript page 20, lines 39 – 47; page 21 lines 1 - 13.

15. Notwithstanding the Applicant’s initial statement to the Tribunal made on the first day of hearing that she was not relying upon Mr X being in a parental role at the time of her birth, the Applicant gave evidence that she and Mr X had a parent/child relationship at the time of her birth. In cross-examination, the following exchange occurred[4]:

    Ms ALLEN: Your application for citizenship was made on the basis that [Mr X] was your biological father, yes?

    WITNESS (APPLICANT): ---Yes.

    Ms ALLEN: But you've subsequently undertaken DNA testing which has excluded him as your biological father?

    WITNESS (APPLICANT): ---Yes.

    Ms ALLEN: Do you think that you and Mr X had a parent/child relationship at the time you were born?

    WITNESS (APPLICANT): ---Yes.

    Ms ALLEN: And why do you say that?

    WITNESS (APPLICANT): ---Because he was there at the time of my birth, that's what my mother said.

    [4]     Ibid page 27, lines 29-39.

16. The Applicant also claimed that her mother had told her that Mr X had supplied “everything” for her mother while she was pregnant, and baby clothes for her when she was born[5].

    [5]     Transcript page 28, lines 22-34.

17. The Applicant’s mother was not called to give evidence to support these assertions.

18. The Applicant gave evidence that she had located and met Mr X in 2014.

19. The Tribunal heard evidence that the Applicant had at different times provided her place of birth as Kundiawa, which was outside Australia at the time of her birth. At other times she had listed her birth place as Ioma which was not outside Australia at the time, as it formed part of the External Territory of Papua.

20. On occasions the Applicant had listed both Kundiawa and Ioma as her place of birth. The Applicant asserted that she had in fact been born in Kundiawa, but had married a man from Ioma, and that under local custom, she was from both Kundiawa and Ioma, and her husband’s place of birth had been listed in documents including her passport.

21. The Tribunal also heard evidence that the Applicant had at various times, for cultural reasons, nominated other people as her mother and father after she had met Mr X, and described her father’s citizenship as Papua New Guinean[6].

    [6]     Transcript page 31, lines 28-46; page 34, lines 24 - 30 and page 35, line 1.

22. The Applicant claimed to have been given Mr X’s surname at birth notwithstanding that she had made no claim of ever being known by that name on multiple occasions over a period of years[7].

    [7]     Transcript page 33, lines 10- 13 and page 34 line 22.

    CONSIDERATION

23. Based upon the DNA evidence contained in Exhibit 17, the Tribunal finds that Mr X is not the biological father of the Applicant, and there is no evidence before the Tribunal that her biological father was another Australian citizen.

24. The Applicant’s evidence that there was a parental relationship between herself and Mr X at the time of her birth appears to be of recent origin, as the very contrary circumstance was conceded by her on the first day of the hearing. The Applicant’s claim that she took Mr X’s surname from birth is not supported by her own prior written statements, or contemporaneous documents. To the extent that this assertion has found its way into more recent documents issued by the government of PNG, there is no evidence before the Tribunal that such inclusions were authoritatively based.

25. Evidence before this Tribunal that Mr X was in a parental relationship with the Applicant at the time of her birth flows only from the Applicant, is sparse, and uncorroborated. Whilst the Tribunal accepts that the Applicant presently has a close relationship with Mr X, the current relationship is not evidence of the relationship at birth.

26. Whilst it is possible that the requisite relationship existed between the Applicant and Mr X at the time of her birth, the evidence before the Tribunal is not sufficient to enable it to conclude that this was the case.

27. Turning now to the Applicant’s place of birth, the documentary evidence before the Tribunal provides little support for her assertion that she was born in Kundiawa. The weight of evidence appears to be to the contrary. All of the passports issued to the Applicant by the government of PNG show her birthplace as being Ioma, which was in the former External Territory of  Papua, and this is substantially in accord with the documentation she has provided to the Australian government in the course of her dealings. The Applicant has produced an outdated birth certificate (which is no longer regarded as valid by the government of PNG) which shows her place of birth as Kundiawa, however if the PNG government will not rely on the validity of such a document there is no good reason why this Tribunal should.

28. The evidence presently before the Tribunal as to the Applicant’s place of birth is not sufficient to enable it to be satisfied on the balance of probabilities that the Applicant was born outside Australia.

29. In the light of the above findings, the Applicant is not eligible for Australia citizenship by descent under section 16(2) of the Act.

30. Moreover, in the light of all of the inconsistencies in the evidence as discussed above and in the Respondent’s Statement of Facts Issues and Contentions and closing submissions (which are accepted by the Tribunal), the Tribunal is unable to be satisfied as to the identity of the Applicant.

    CONCLUSION

31. Accordingly, the decision under review is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.....[SGD]...................................................................

Associate

Dated: 27 April 2022

Date(s) of hearing:	1 October 2021; and 24 March 2022
Applicant:	In person
Solicitors for the Respondent:	Ms Cody Allen Sparke Helmore Lawyers

ANNEXURE A - EXHBITS

Exhibit Number	Description	Date of Document	Party	Filing Date
1	Section 37 T Documents (T1-T27, pages 1-336)	-	R	06 NOV 20
1.1	Supplementary T Documents (Omitted material from s37 T Documents	29 Sept 21	R	29 Sept 21
2	Respondent’s Statement of Facts, Issues and Contentions including annexures 1-2	-	R	19 JUL 21
3	Statement of Wordman Agita	24 NOV 20	A	26 NOV 20
4	Statement of Gordon Brocas Findlay	15 MAY 20	A	02 AUG 21
5	Further Statement of Gordon Brocas Findlay including annexures 1 - 4	20 MAY 20	A	26 NOV 20
6	Statement of Marie Smith with attached photographs	-	A	26 MAY 21
7	Statement of Ruth Duna including Annexures A - D	29 JUL 21	A	02 AUG 21
8	Letter to Registrar General of PNG Civil and Identity Registry and attached reply (filed at later date)	-	A	11 MAR 21 26 MAY 21
9	Statutory Declaration of Robin Tamanabae	11 OCT 19	A	29 SEPT 21
10	Applicant DNA Parentage Test Report  Undated Letter from John Ipu	24 NOV 21	R	8 DEC 21
11	Further Statements from Wordman Agita & Marie Anne Smith	28 Sept 21	A	1 Oct 21
11	Statement from Applicant – Request to proceed with Review	22 Dec 21	A	12 Dec 21
12	Passenger Card dated 2 December 2014	2 DEC 14	R
13	Passenger Card dated 17 August 2014	17 AUG 14	R	29 SEPT 21
14	Applicant’s Movement Record	23 OCT 20	R	29 SEPT 21
15	Map Extract from Encyclopedia Brittania of Papua New Gunia Pre-Independence	R	29 SEPT 21
16	Statement of Marie Ann Smith	28 SEP 21	A	1 OCT 21
17	DNA Test of Applicant and Mr Findlay	24 NOV 21	R	8 DEC 21