TFRB and Minister for Immigration and Border Protection
[2017] AATA 1000
•30 June 2017
TFRB and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1000 (30 June 2017)
Division:GENERAL DIVISION
File Number: 2016/0011
Re:TFRB
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:30 June 2017
Place:Brisbane
The Tribunal affirms the decision under review.
..................................[sgd].......................................
Senior Member T. Tavoularis
CATCHWORDS
CITIZENSHIP – eligibility - Application for citizenship by descent – whether parent-child relationship existed between Australian citizen and Applicant – where not satisfied that Australian citizen was parent of Applicant – where DNA testing declined – where parent-child relationship not established at time of birth - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 16, 17
CASES
H v Minister for Immigration and Citizenship [2010] FCAFC 119
SECONDARY MATERIALS
Australian Citizenship Policy
REASONS FOR DECISION
Senior Member T. Tavoularis
30 June 2017
INTRODUCTION
The Applicant,[1] through his representative, Mr Gerald Young, seeks review of the decision of a delegate of the Minister for Immigration and Border Protection (“the Respondent”) made on 21 December 2015 to refuse the Applicant’s Application for Australian Citizenship by descent under the Australian Citizenship Act 2007 (“the Act”).
[1] The real name of the Applicant was suppressed at the member’s discretion because he is a minor child.
BACKGROUND
Mr Gerald Lane Young (“Mr Young”) is an Australian citizen. He lodged the abovementioned application on behalf of the Applicant minor. This application was refused by the Respondent pursuant to section 16(2) of the Act based on an insufficiency of evidence that a parent of the child was an Australian citizen at the time of the child’s birth. Specifically, the refusal involved a finding by the delegate that he was not satisfied that Mr Young: (1) was the biological father of the Applicant, or (2) had a parent-child relationship with the Applicant at the time of the Applicant’s birth.[2]
[2] See Exhibit 3, T documents, T8, pp 118-119.
The Applicant is a 6 year old child currently residing in the Philippines. On 15 June 2015, Mr Young, on behalf of the Applicant, lodged an Application for Citizenship by descent naming himself as the Australian citizen father of the Applicant.
The Application and supporting material was reviewed and processed by the Respondent whose delegate then wrote to Mr Young (on 15 July 2015) seeking further additional material to support a positive finding of a parent-child relationship between him and the Applicant at the time of the Applicant’s birth.
On 15 September 2015, a delegate of the Respondent wrote to Mr Young suggesting that he and the Applicant undergo DNA testing. On 23 September 2015, Mr Young replied saying, “as previously mentioned we have made a decision to not accept an offer for DNA testing As [sic] it has nothing to do with prooving [sic] a relationship and only provides inclusive proof of paternity.”[3] On 11 November 2015 the delegate once again extended the offer for Mr Young to undergo a DNA test. On 12 November 2015, Mr Young again notified the Respondent’s delegate of his refusal to provide DNA due to “moral and religious reasons”.[4]
[3] Ibid T7, p 95.
[4] Ibid T5, p 59.
Certain further material was provided by Mr Young to the Respondent under cover of an email dated 6 December 2015.
The Respondent considered the totality of the material received from Mr Young and, on 21 December 2015, the Respondent’s delegate refused to grant the Applicant Australian citizenship by descent. The primary basis of that refusal was that the Respondent was not satisfied that a parent-child relationship existed between Mr Young and the Applicant at the time of the Applicant’s birth such as to meet the provisions of section 16(2) of the Act.
In broad compass, the respective bases of the Respondent’s decision made on
21 December 2015 may be stated thus:
(a)A lack of physical similarities between Mr Young and the Applicant;
(b)Mr Young’s rejection of the suggestion to undergo DNA testing;
(c)The Applicant’s birth certificate did not constitute evidence to sufficiently demonstrate the requisite parent-child relationship contemplated by the relevant provision;
(d)Some weight was allocated to demonstrable financial support (by way of telegraphic transfer evidence) provided by Mr Young to the Applicant’s mother;
(e)The weight attributed to Mr Young’s claim of additional financial support in the form of cash to the Applicant’s mother, was diminished due to an absence of any evidence of such payments;
(f)Mr Young’s regular visits to the Philippines before and after the Applicant’s birth did not, in the opinion of the Respondent’s delegate, prove he was involved in providing care for the Applicant;
(g)Additional documents in the form of a “Certification of Residence” and a letter by the mid-wife apparently present at the Applicant’s birth did not support a finding of any relationship between Mr Young and the Applicant;
(h)There was an absence of evidence pointing to these factors:-
(i)Mr Young’s provision of emotional or domestic support to either the Applicant or his mother;
(ii)that Mr Young was involved in the Applicant’s long-term or day-to-day care, welfare and development; and
(iii)
any social recognition of the parent-child relationship propounded by
Mr Young.
Mr Young was duly notified of the finding that the Applicant did not have a parent who was an Australian citizen at the time of birth and, on that basis, the Application for Citizenship by descent was refused.
The Applicant then lodged an Application for Review of the delegate’s decision with this Tribunal on 4 January 2016.
ISSUE FOR DETERMINATION
Both parties agreed the issue for determination by this Tribunal is whether the Applicant is eligible for Australian Citizenship by descent pursuant to the provisions of section 16(2) of the Act. Put another way, this determination involves a finding as to whether the correct or preferable decision is that Mr Young was in a parent-child relationship with the Applicant at the time of the Applicant’s birth.
THE LEGAL FRAMEWORK
The Tribunal can derive assistance from several sources in its endeavour to properly and adequately define the concept of a “parent” to meet the requirements of section 16(2) of the Act. The concept of a “parent” for the purposes of the Act expands beyond a strictly biological connection and can be made available to children of non-biological parents who are Australian citizens.
The Act
Section 16(2) is found in Part 2 Division 2 Subdivision A of the Act. The specific provision relates to persons born outside Australia on or after 26 January 1949. It requires that “a parent of the person [seeking citizenship by descent] was an Australian citizen at the time of birth”. [my emphasis]
The Australian Citizenship Policy
Introduced on 1 June 2016, Chapter 20 of the Australian Citizenship Policy (“ACP”) provides certain guidelines relating to consideration of evidence to be taken into account in terms of demonstrating a parent-child relationship in circumstances where there is insufficient evidence of a biological connection.
As will be noted from the material filed by Mr Young throughout the entirety of this matter, there was a consistent propounding of a biological link between him and the Applicant. During the hearing, and in particular during his evidence, Mr Young eventually withdrew this submission and otherwise resiled from any contention of any biological link between him and the Applicant. He clearly told the hearing that any previous contention of a biological link between him and the Applicant was “off the table”. I will deal with issues of credibility arising from this retraction later in this decision.
For present purposes, in the absence of a DNA test or other conclusive proof of a biological connection, the ACP directs a decision-maker to assess the claimed parent‑child relationship in the light of other relevant factors. Indeed, this is precisely what was pressed on the Tribunal by Mr Young following his admission that there may be no biological link between him and the Applicant.
The ACP in particular, talks, in plain and clear terms, about these things:[5]
(a)a requirement for “additional scrutiny” if an application is lodged by a responsible parent in Australia and the child is offshore;
(b)for applications for citizenship by descent, the parent-child relationship between the Australian citizen and the Applicant must have existed at the Applicant’s time of birth;
(c)the requirement for evidence of the length and nature of the relationship between the Australian citizen and the child, or between the claimed parents to corroborate evidence of the relationship between the Australian citizen parent and the child;
(d)that it is unlikely that any one piece of non-biological evidence would be sufficient to prove the required parent-child relationship to the necessary threshold.
[5] Australian Citizenship Policy, Chapter 20, pp. 213-215.
In terms of factors to be taken into account, the ACP’s provide:
“Similarly, for citizenship by descent (s16), the parent-child relationship between the Australian citizen and the applicant must have existed at the applicant’s time of birth. The applicant (or, if applicable, their responsible parent) should be asked to provide evidence of the length and nature of the Australian citizen’s… parental relationship with the child.
…
It is unlikely that any one piece of non-biological evidence would be sufficient to provide the required parent-child relationship. The decision maker more likely will be required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent is (was) or is (was) not a parent of the applicant at the relevant time.
Evidence that the claimed parent-child relationship existed at the time of the Applicant’s birth may include, but is not limited to:
·anything which would show the Australian citizen’s inclusion as a parent on the birth certificate was done with their prior consent
·evidence that the Australian citizen 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 and prenatal and postnatal care
·evidence that the child was acknowledged socially from or before birth as the Australian citizen’s child, for example, the child was presented within the Australian citizen’s family and social groups as being the Australian citizen’s child…
…
Evidence that the Australian citizen treated the child as their own from some point in time after birth would not by itself be evidence that they were the child’s parent at the time of birth, but would lend weight to evidence of the types already mentioned.
In the absence of satisfactory evidence of biological parentage, any other evidence provided should be closely scrutinised and verified to the maximum practical extent.” [6]
The definition of “parent” for the purposes of the Act
[6] Australian Citizenship Policy, Chapter 20, p 215.
The nature of parentage: biological -v- non-biological
The Full Federal Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119 extended the definition of “parent” for the purposes of the Act beyond a strict biological connection to make citizenship available to children of non-biological parents who are Australian citizens.
At paragraph [67], the Full Court said that section 16(2)(a) of the Act requires that the citizen parent is a parent of the applicant “at the time of the [applicant’s] birth”. In other words “parenthood must be established as at the time of birth.” Further, that the concept of “at the time of birth” “…qualifies both the status of being a parent and the parent’s citizenship.”
On the theme of non-biological parentage, the Full Court also said “Whilst commonly one may assume that a person accepting the status of a parent at the time of birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship.”[7]
[7] See H v Minister for Immigration and Citizenship [2010] FCAFC 11 at [68] per Moore, Kenny & Tracey JJ.
The timing of the parental link
At paragraph [70], the Full Court examined the legislative history of section 16 of the Act and said: “Having regard to that legislative history, the clear better view is that s 16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. 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. …there is no indication in the extrinsic materials that the Parliament intended to change this basic test.”
I respectfully concur with the findings of the learned appeal court judges at paragraphs [67], [68] and [70] of the decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119. Accordingly, I predicate these reasons on the basis that for the purposes of section 16 of the Act:
(a)the concept of “parent” can be extended beyond a strict biological connection;
(b)that the citizen parent must establish such parentage as at the time of the Applicant’s birth; and
(c)that from a legislative historical perspective, parliament always intended s 16 of the Act to mandate a contemporaneous intersection between the birth of an Applicant child and having a parent with Australian citizenship.
The task of the Tribunal in the present case thus becomes one of looking for evidence of parentage between the Applicant and Mr Young. Not necessarily on the basis of biology, but more on the basis of an identifiable “intense commitment” by Mr Young towards the Applicant “expressed by acknowledging [the Applicant] as [his] own and treating [the Applicant] … as his own.” [8]
CONSIDERATION
[8] See H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [129].
What is the evidence and what does it reveal?
Prior to embarking on a discussion about the evidence, it is, in my view, necessary and prudent to express some comment about Mr Young’s eventual and very late concession of there being no biological link between him and the Applicant. I make these comments not from the point of view of parentage but more for the purpose of bringing Mr Young’s credibility into sharper focus.
From the commencement of this application for citizenship by descent, Mr Young has propounded a biological connection between him and the Applicant. He propounded that biological link on the following occasions:
· In the Application for Australian citizenship by descent, which was received by the Department on 15 June 2015, he named himself as the Applicant’s Australian citizen parent.[9]
· With that Application he included the birth certificate of the Applicant showing himself (Mr Gerald Lane Young) as the father.[10]
· In a letter accompanying that Application dated 1 June 2015.[11]
· In his email of 23 September 2015 where he responds to the Minister’s delegate and says “as previously mentioned we have made a decision to not accept an offer for DNA testing As [sic] it has nothing to do with prooving (sic) a relationship and only provides inclusive proof of paternity”.[12]
· Again, in his email of 12 November 2015 where he responded to the Minister’s delegate and declined to provide DNA as he was “morally and religiously against this”.[13]
· In his conduct of this matter up to and including the hearing.
· During the course of his evidence given at the hearing, right up until the hearing’s latter stages.
[9] Exhibit 3, T Documents, T2, Application for Australian Citizenship by Consent dated 1/6/15, p 5.
[10] Exhibit 3, T3, p 26 - Republic of the Philippines - Certificate of Live Birth.
[11] Exhibit 3, T3, p 12.
[12] Exhibit 3, T7, p 95.
[13] Exhibit 3, T5, p 59.
Under cross-examination, Mr Young spoke of a visit to the Philippines in July 2010 and of an apparent dalliance with the Applicant’s mother apparently resulting in the Applicant’s conception. He spoke of an excited visit to a radiologist in January 2011 for the usual diagnostic imaging that apparently depicted the unborn Applicant that Mr Young proudly asserted to be his child.
I think a significant adverse inference as to the credibility of Mr Young can be drawn from his conduct on the biological link issue. He knew that until this hearing, every stage of the process would proceed “on the papers” or in a way that allowed him to propound a biological link but, at the same time, feeling safe in the knowledge that he was always personally one step removed from having to directly and immediately deal with a question he ultimately conceded was an awkward one. He maintained this posture after the hearing commenced and well into his evidence. Faced with the reality of how his evidence was emerging under cross-examination, he finally conceded the biological point and told the Tribunal it should be taken “off the table”.
This disingenuous conduct, while not in itself fatal to this Applicant’s prospects, nevertheless displays an attitude of disdain for the Tribunal’s jurisdiction now engaged by this Application. It cannot but negatively impact upon Mr Young’s credibility and thus taint his evidence to a significant degree. This and other issues were taken up with Mr Young in cross-examination. It is therefore necessary to make a detailed analysis of his evidence, particularly under cross-examination.
The cross-examination of Mr Young
The absence of credibility and plausibility inherent in Mr Young’s evidence becomes more glaringly apparent when viewed through the prism of his specific responses and reactions to further questions put to him in cross-examination.
On the biological point, the following passage from the decision under review was put to him: “Based on the lack of physical similarities between the claimed father and the fact that a DNA test was offered but not accepted, I am not satisfied that Mr Gerald Young is the biological father of the Applicant.”[14] He conceded, for the first time, that he was not certain he was the biological father of the Applicant.
[14] Exhibit 3: T Documents, T8, p 118.
Also under cross-examination, Mr Young was referred to a statutory declaration under the hand of Jean M Tamayao (the mother of the Applicant) upon which Mr Young has sought to rely to demonstrate his biological link to the Applicant. In this statutory declaration, the only thing of substance (or virtually at all) that Ms Tamayao says is: “That I was in Angeles City, Pampanga, Philippines during all of the year of 2010. That I did not pocess [sic] a passport or leave the country at any time. I also met and dated Gerald Young of Australia in July of 2010.”[15]
[15] See Statutory Declaration in Exhibit 3, T4, p 32.
Mr Young readily conceded that there is no other statement or declaration or comment from Ms Tamayao – other than this cursory three line statutory declaration – of any connection between her and Mr Young. He also readily conceded that what Ms Tamayao says in this statutory declaration cannot be regarded, in any way, as confirmation that he and Ms Tamayao had an intimate union resulting in the conception and birth of the Applicant.
He sought to rely, by way of inference, on certain photographs depicting furniture apparently acquired in anticipation of the birth of the Applicant. His evidence was that this furniture was purchased in or about November–December 2010 through to February 2011 when he left the Philippines to return to Australia. He conceded under cross-examination that there was no financial or transactional evidence of his actually buying this baby furniture. He also conceded that simply because certain photos depicted baby furniture, this did not necessarily prove he purchased it. As I understood his evidence, he sought to create an inference that he must have bought the baby furniture because Ms Tamayao “doesn’t have any money of her own”.
Mr Young has maintained that he has provided financial support for Ms Tamayao through her pregnancy. He produced a certain “Table of Money sent and received to the Philippines”. This document comprises Exhibit 9 and contains a list of money transfers or payments he has apparently sent to Ms Tamayao. He accepted the payments relate to a period from 23 August 2010 to 5 November 2010. He conceded in cross-examination that the ultrasound proving Ms Tamayao was pregnant didn’t occur until some two months later in January 2011 and that, therefore, he could not have made those payments to assist with the Applicant’s birth.
He was also questioned about his travel or movement patterns to and from the Philippines. He was referred to Exhibit 10 comprising “Movement Records for YOUNG, Gerald Lane – DOB: …”. On the fourth page of that exhibit, there is reference to a departure date of 21 June 2010 and an arrival back in Australia of 14 July 2010.
Mr Young said this was a trip to Thailand and the Philippines and that, specifically, he spent a week in the Philippines at the beginning of July 2010.He was also referred (via Exhibit 10) to another departure date of 6 November 2010 when he again travelled to the Philippines, this time via Brunei, arriving back in Australia on 3 February 2011, as per his earlier evidence. The issue of sending money by way of financial support to Ms Tamayao was again put to him in cross-examination. He was asked whether – apart from the Western Union money transfers detailed in Exhibit 9 – there was any other evidence of financial support by him to Ms Tamayao. His initial response was to say he thought he had produced bank statements of some “joint account” he had with Ms Tamayao. When pressed about any such bank statements and/or joint account, he conceded that the only credible evidence he had of money actually sent by him to the Philippines was the list of funds transferred as per Exhibit 9.
Counsel for the Respondent then referred Mr Young to his own statement marked as Exhibit 1. He was specifically referred to this passage from his statement:
“a. Until Nov.2010, Financial, emotional support were developing issues, various amounts of money were transferred via Western Union for food, rent ect.
11/2010 – Returned to Philippines - For the first three weeks I stayed in Jeans squatters flat on Oregon Street with her that she rented with two other girls for 1,500 pesos a month. The other two girls moved out and I realized Jean owned nothing of her own. I purchased a small stove as she had been cooking on coal and a few other things. I met her Mother and two of her children there.
a. Financial, emotional support started in seriousness (I had carried $10,000 AUD to Phil. From cash, not knowing what would really happen) at the time I had a fair amount of money in cash in my CWB safe deposit box.
b. 1/28/2011 – Jean had an Ultra Sound-they determined Jean was Pregnant with [the Applicant] (this was our first knowledge she was pregnant as she was still having periods) and declared the time period to expect birth and it fell within the days we were together in July 2010.”
He agreed that, as per his statement, he did carry $10,000 to the Philippines and that he did so on a trip he made in November, 2010.
He was then referred back to the movement records (Exhibit 10) and agreed that he returned to the Philippines on 18 March 2011 staying until 16 June 2011. The Applicant was born during this time in April. He confirmed he was carrying cash when he travelled to the Philippines in March 2011. When asked whether he was carrying $10,000, he said he could not recall the exact amount, but that he most certainly did have cash with him.
He told the Tribunal of his purchase of a house with Ms Tamayao in about May 2011. The purchase price was 470,000 Pesos or about AUD$12,000. He said that the additional money he was carrying on the March 2011 trip, when joined with the money he took in November 2010, would have been enough to purchase this house. Again, he was unable to recall exactly how much he was carrying. He said it may have been “maybe $5 – 7, maybe $8,000” but that, in any event, it would have been enough to purchase the house.
Counsel for the Respondent then referred Mr Young to Exhibit 11 comprising an “Outgoing Passenger Card” dated 6 November 2010. He agreed this card related to his trip made on 6 November 2010 to the Philippines via Brunei. He was asked why – in the section marked “Main reason for overseas travel” – he marked his answer as “Holiday” instead of “Visiting friends or relatives”. The suggestion behind the question was that if he were involved in a serious relationship with Ms Tamayao, a relationship that had apparently caused him to sire a child, he would surely have marked the card with “Visiting friends or relatives”. His response was vague, general and unconvincing, seeking to explain the discrepancy as the trip being “just a holiday”.
With further reference to this Outgoing Passenger Card marked as Exhibit 11, he was asked why it was that he ticked the “No” answer to the question: “Are you taking out of Australia AUD10,000 or more in Australian or foreign currency equivalent?” This response on the card is, of course, at odds with his statement referred to earlier at paragraph 38 (discussing Exhibit 1). His explanation was vapid, unconvincing and unmeritorious. His response was that he ticked the “No” box because the correct figure was in fact $9,999. When it was put to him that his response was “convenient”, he replied with “that’s just the way it is”.
With still further reference to this “Outgoing Passenger Card” it was put to him that the question on the card referred to “$10,000 or more” and not $9,999. He nevertheless refused to concede his response was untruthful and that he ticked the “No” box on the basis of “a generality”.
He was also referred to the Outgoing Passenger Card he completed when embarking on his trip to the Philippines on 18 March 2011, marked as Exhibit 12. He was asked similar questions about his responses to the main reason for the trip and whether he was taking AUD$10,000 or more out of Australia. His responses were largely a repetition of what he said about the earlier passenger card (for the trip in November 2010). Those responses were just as unconvincing and unmeritorious as his earlier answers.
Neither the reliability nor credibility of Mr Young’s evidence seemed to improve when he was referred to certain documents apparently evidencing the purchase of the property at Angeles City in the Philippines. He was referred to Exhibit 13 comprising an “Agreement for the Sale of Land with Down Payment” apparently dated 28 March 2011. This document comprises three pages. The third page – handwritten – is apparently dated 18 October 2011.
Mr Young appeared to struggle with supporting the veracity and validity of both purported documents. He agreed the former document spoke of the sale of a certain parcel of real property in the total sum of 510,000 Pesos (as per its clause 1) with payment of the purchase price to be staggered across two dates: 400,000 Pesos upon execution of that document on “May 1, 2011” (as per its clause 2A) and 110,000 Pesos on “May 20, 2011” (as per clause 2B).
He initially had difficulty and unease with explaining the obvious inconsistency between the stipulated purchase price of 510,000 Pesos in this first document and the purchase price of 470,000 stipulated in his statement (Exhibit 1) wherein he says:
“5/2011 – purchased home at [at Angeles City] for 470,000 Pesos ($12,000 AUD)”[16]
[16] There was no suggestion by either party at the hearing that the property appearing at number 34 of the relevant street in Angeles City is a different parcel of land to the property described as number 1 of the relevant street in Angeles City referred to in Exhibit 13.
His evidence in seeking to explain this discrepancy was, on one view, vague and incoherent while, on another and more likely view, embarrassing and damaging. He told the Tribunal the figures were different because between May and October 2011, “it all changed”. He said “one was an agreement to buy and then matters changed, money got talked about, money wanted to be given sooner, so the price dropped to 470,000 in terms of what I actually had to pay”.
When challenged he could not produce or point to a document evidencing the amendment of the purchase price or any other term of the purported contract. His evidence was there was no requirement for any such amending document because “it was all just word of mouth, handshake”.
He was then referred to the second or handwritten document (apparently dated
18 October 2011) annexed to the Agreement for Sale. He was referred to the introductory words appearing in this document:“As of 4.30 in the afternoon of 10/18/2011 I Jerry D. David [the vendor] received the amount of 110,000 pesos only to Gerald Young. As the complete reimbursement of my house and lot. …
1) First payments /3/30/2011 = P 150,000
2) Second payments /5/1/2011 = P 250,000
3) Third payments /10/18/2011 = P 110,000
P 510,000 Total amount”.
When pressed to explain the discrepancy between the notation of “P 510,000 Total – amount” in the document and the 470,000 Pesos he says he paid, he maintained the figure of 510,000 pesos was simply “not true”. He was referred to the date at the top of this document (18 October 2011) and asked to explain how it post-dates the date specified in the Agreement for Sale by five months. He sought to contrive an answer by saying “I’m looking at the date to see how it works” and “All I can say is Philippines do strange things” and “This is the first time I have noted this date” and “I’m trying to figure this out”.
Counsel for the Respondent then, generously in my respectful view, sought to establish some measure of cogency to Mr Young’s evidence and invited him to agree that the former document comprised “the contract” while the latter handwritten document comprised “the receipt” confirming the three payments totalling 510,000 Pesos. He told Counsel “you’re wrong” and that he “totally disagreed” with that proposition.
He was again pressed to explain the discrepancy between the purchase price he recorded in his statement (Exhibit 1) – 470,000 pesos – and the figure of 510,000 pesos appearing in both documents dealing with the apparent purchase of the property. His responses, in my view, took his evidence nowhere. He conceded his statement “may not have been produced accurately”. Further, he conceded that his statement “may not be true”. This was followed by these tepid remarks: “I’m searching here … for a proper way to explain myself” and “This [his statement - Exhibit 1] is pretty close to the truth.” And further “At the time it was written, I was not under the intent of dot the i and cross the t”.
Mr Young was then referred to the bundle of visitor documents marked as Exhibit 14. It comprises an Application for a visitor visa for Ms Tamayao. With reference to question 2 on the first page, he agreed the period of her stay was from 20 February 2016 to 19 May 2016. He was referred to the fourth page of that Application and, specifically, to question 29 which poses the question: “Why do you want to visit Australia?” He was directed to read the response: “Tourist. See friends.” He conceded this answer makes no mention of Ms Tamayao coming here to be with him as her partner or boyfriend. His initial response was “No, not required”. In the end he conceded Ms Tamayao’s response to this question doesn’t refer to him at all in her answer to that particular question 29.
He was then referred to Ms Tamayao’s response to question 39 of that Application. It provides: “Explain why you are unemployed and give details of your last employment (if applicable)?” Ms Tamayao has responded with “House of mom and at my house I have a small store…”. His initial explanation of this answer was that Ms Tamayao was referring to a small shop or store belonging to her sister. Upon closer perusal of the answer, he changed his evidence to Ms Tamayao apparently having a small store at her home. This was a recurring theme striking at the heart of the credibility of his evidence: he would initially provide an answer and then purport to vary or amend that answer depending on what he subsequently saw or read or how he thought his evidence was being perceived.
He maintained this posture throughout virtually the totality of his evidence. He was referred to question 40 of this Application, which provides: “Give details of how you will maintain yourself financially while you are in Australia.” Ms Tamayao responded with: “I have been to Australia on 3 previous tourist visas and my sponsor Gerald L. Young was still is [sic] my sponsor plus I have my own money.” Mr Young immediately responded with: “this is the money that I’ve given her”, in an unconvincing attempt to counter any suggestion she may be independent of him.
Counsel for the Respondent then took Mr Young to a document within the bundle comprising Exhibit 14 entitled “Appointment or withdrawal of authorised recipient - Form 956A”. He agreed he was the nominated “authorised recipient” for Ms Tamayao and that he in fact helped her to complete these forms. He also agreed that he has signed the Authorised recipient declaration and that she has signed her complementary declaration on the last page of this Form 956A.
He was then referred to a “Letter of Invitation to visit Australia” he authored, appearing in the bundle comprising Exhibit 14. He was specifically referred to the second last sentence in the first paragraph: “She owns her own house and has funds of her own as well.” His immediate and unprompted response was to declare: “This is the money I gave her”. He conceded, upon reflection, that this letter does not really say any such thing.
Counsel for the Respondent then challenged Mr Young to explain the discrepancy between the content of the letter referred to in the immediately preceding paragraph and the documents evidencing the purchase of the Angeles City property from the putative vendor, Mr Jerry David. It was put to Mr Young that the abovementioned letter says that Ms Tamayao owns her own house whereas the earlier document says he and Ms Tamayao purchased the house together. Mr Young’s explanation was both self‑serving and unconvincing. He said “No, we purchased the house together from Jerry David but I’m not on the title deed or anything. The contract to buy is in our joint names but not the title.”
The credibility of Mr Young’s evidence on this issue did not improve when he was referred to a document appearing further into the bundle comprising Exhibit 14. That document is entitled: “Deed of Transfer of Rights”. He was asked to explain the discrepancy between this Deed – between Mr David (as vendor) and Ms Tamayao (as purchaser) – and the earlier purported Agreement for Sale between Mr David (as vendor) and both himself and Ms Tamayao (as purchasers). He conceded the two documents are in conflict with each other. After momentarily thinking about his response, he said: “This [ie the Deed of Transfer of Rights] is the document actually purchasing the house; the other document is a legal document and an agreement between two people.” He then unconvincingly sought to explain the discrepancy between the two documents on, apparently, cultural terms: “Welcome to the Philippines. If I was in the Philippines, I wouldn’t know which one to take to the Court.” He added: “You just hope for the best when you’re doing land deals in the Philippines”.
Mr Young’s evidence lacks credibility because of, firstly, the obvious inconsistency between documents purporting to evidence a single transaction about a single property at a given point in time. He cannot satisfactorily explain the inconsistency and this position is exacerbated by there being no evidence of any external involvement in the transaction by, for example, solicitors and/or conveyancers and/or land agents – or their Filipino equivalents. To my mind, there may have been some semblance of truthfulness to his evidence if he had said a given external consultant was involved in facilitating the transaction and evidence was called from such a consultant. No such evidence was adduced.
Secondly, I find it very difficult to accept that in this modern age, dominated as it is by digitally recorded and easily accessible information, that the Filipino authorities are either oblivious to or otherwise not in control of who owns what parcel of land on their own landmass. That would be an extraordinary state of affairs. There must surely be the Filipino equivalent of a Registrar of Land Titles as we know that entity in Australia. Mr Young could have produced evidence from a government (or suitably mandated) authority that could surely have assisted the hearing with independent and verifiable evidence about exactly how the subject parcel was held, both prior to and after the apparent transaction. No such evidence was adduced.
Mr Young sought to introduce a veneer of officialdom or formality to the Deed of Transfer of Rights by referring the Tribunal to a stamped and signed pro-forma notation dated
26 June 2015 apparently made by a Justice of the Peace (“JP”) appearing on the face of that document. By way of preliminary comment, it should be noted there are two photocopies of this Deed in the Exhibit 14 bundle. One bears the aforementioned stamp of the JP, the other does not. He sought to rely on the stamped copy (by the JP) of the Deed as the correct or official version.I challenged him about that. I directed him to the actual words recorded on the JP’s stamp:
“This is to certify that this is a true copy of the
original/ copy /downloadwhich I have sighted.Dated: 26.6.15
Signed: [signature]
Justice of the Peace Qualified
Reg No: 71406.”
I suggested this stamp was merely a certification that the JP sighted a copy of the Deed, not the original. He said he “may have the original”. It was not produced for the hearing. I pointed out to him the hollowness of this evidence because this Deed could have been prepared anywhere at anytime and by anyone. He accepted he was “confused” and “wrong” about this contention that the JP’s stamp on a copy somehow gave the impression of reality and formality to the document.
He eventually agreed there are two conflicting documents about the subject property. He accepted that one of them cannot be true. He conceded that the former agreement, the “Agreement for Sale of Land with Down Payment” is not true. He said the “Deed of Transfer of Rights” is true.
Counsel’s cross-examination of Mr Young then moved to a series of social media records and images he had provided to the Tribunal (via a CD) prior to the hearing. He agreed that being a parent involves much more than just financial support or assistance to a child. He also agreed about a parent’s responsibility to teach a child about morals and the need to be able to distinguish right from wrong. He agreed with the critical importance of a parent counselling a child about appropriate standards of behaviour. He further agreed that when a child is young, a parent should provide certain basic things such as food, shelter but also emotional support in the form of comfort, nurturing and love, together with the more basic requirements of feeding, preparation of bottles and changing of nappies.
Mr Young was then referred to his CD containing images and commentary published on social media. He was referred to one of his Facebook entries for April 2011 (the month of the Applicant’s birth) where the notation is “[the Applicant] grown up”. He could not explain why this comment was not made more in the context of the Applicant being part of his own family unit, such as, for example, “here is my son”.
He was then referred to Exhibit 16. It comprises a series of social media images and, sometimes, short comments beneath a given image. These images are from a period of about one month after the Applicant’s birth. He was referred to the entry for 14 June 2011 depicting himself, Ms Tamayao and, apparently, the Applicant as a newborn infant. He agreed that this entry is the first entry following the birth of the Applicant two months earlier in April 2011. He was then referred to another entry, also dated 14 June 2011, apparently depicting the Applicant as a newborn infant. The wording accompanying this entry is “Say hi to [the Applicant] everyone.” It does not say, for example, “Say hi to my new son, [the Applicant]” or “This is my son, [the Applicant]”.[17] He agreed these two entries for 14 June 2011 are the first entries making any reference to the Applicant some two months after his birth. He sought to explain the general nature of the commentary accompanying these images on the basis of “a correlation with things running on a normal thing” [sic]. On this basis, says Mr Young, this is just a “generality”. These words and purported explanation make less sense to me now than when Mr Young spoke them at the hearing.
[17] The transcript of the hearing and Exhibits will demonstrate that the Applicant’s actual name was used. However, due to my decision to suppress his name, the Applicant’s name has been removed.
Mr Young was then questioned about a break up in his asserted relationship with
Ms Tamayao in 2012. He became rather defensive about any suggestion of a break-up in the relationship. His initial posture – in terms of addressing questions about this issue – was to return to his earlier story of being affected by what he termed “chemo brain”. According to him, he has previously received chemotherapy treatment for a cancer condition and this treatment has apparently caused him to have memory lapses and confused moments where he has difficulty recalling times and events. His evidence was that he does not recall any physical break-up with Ms Tamayao such that it resulted in him “moving out” or “getting on a plane and suddenly coming back to Australia”.He was then shown Exhibit 17 which comprises a single excerpt of social media (Facebook) commentary for 27 August 2012. The excerpt is from the aforementioned CD he provided to the Tribunal before this hearing. The excerpt is entitled “In a Relationship - August 27, 2012”. To facilitate an easier understanding of my following remarks, the comments from that excerpt should be quoted:
“Dave Ashika: Good to see your [sic] back in a relationship the other woman must be heart broken! smile emoticon
Gerald Gary Young: Actually, there were about 5 who lost out.
Daryl Jones: did you get back with your girlfriend or someone new
Gerald Gary Young: Back with Jean, ouch.”
To my mind, this sequence of remarks can only be read in one way. It is clear there was a break-up of the relationship and it then resumed. Mr Young was strident in his denial of any break-up calling it “…just an argument”. He added “It [the abovementioned Facebook dialogue] was a joke because in the Philippines, the saying is “there’s lots of fish in the sea”. He went on to say that the dialogue was primarily between himself and his adult son (David) calling it “…a joke between a father and his son. It’s kind of like ‘boy talk’.” He said “It’s Donald Trump”. He conceded, however, that the dialogue was not just with his adult son but with other people as well such as “Daryl Jones”. Mr Young sought to further explain the dialogue as being “all very whimsical” and “glib”. He told Counsel for the Respondent “You’re looking for a break-up in here. It’s not a break-up. It’s boys bullshitting boys.” He also conceded the entries made in his Facebook dialogue are made by him.
His evidence was that there was no break-up. Instead, he and Ms Tamayao had an argument in the house and he then went outside and had a drink to calm his anger and frustration. He said it was usual for him to engage in this type of social media dialogue when he was out on such a session at a bar.
Mr Young was then shown Exhibit 18. It consists of two pages of movement records. The first is for the Applicant and the second relates to Ms Tamayao. It was noted the Applicant has visited Australia twice, once in 2014 (aged 3 years) and once in 2016 (aged almost 5 years). Contrastingly, it was noted Ms Tamayao first obtained a passport to visit Australia in 2012 and that she has come here in 2013, 2014, 2015 and twice in 2016.
He was asked to explain why it is that he did not arrange for a passport for the Applicant in 2012 as was done for Ms Tamayao. This would have allowed the Applicant to visit him in Australia with his mother, Ms Tamayao, earlier than 2014. He agreed that the Applicant was born in April 2011, yet did not obtain a passport until May 2014. He was asked why he did not obtain a passport for the Applicant in 2012 – the same year Ms Tamayao obtained hers. The response was that in 2012, “The Applicant was a young boy. It was pointless to take him on a trip like that that, he wouldn’t remember. He’s too young.”
The question was then put to him about whether the Applicant could be reasonably expected to remember things from his trip to Australia in August 2014 when the Applicant was aged 3 years. Mr Young responded with “I can remember things from when I was three” and “I used my own judgment on that”. He sought to augment this answer by citing the example of his two sons (from an earlier marriage) who did not receive their passports until they attained the ages of 13 and 17 years respectively.
Mr Young was then shown Exhibit 19. It comprises three primary social media images of the Applicant consuming what Mr Young eventually conceded was beer. His initial response was to adamantly assert that the beverage depicted in the photographs was “ginger beer”. By the time he was taken to the third of the three primary photographs (on the third page of this exhibit) depicting the Applicant (then barely 2 years of age) holding a rusty coloured bottle bearing the label “Red Horse”,[18] he eventually made the concession that the substance was beer.
[18] Red Horse Beer is an extra-strong lager brewed by San Miguel Brewery in the Philippines. Its percentage of alcohol by volume is 6.9%. It was first introduced into production in 1982. (Sourced from Wikipedia:
The second of the three primary images in this exhibit depicts the Applicant holding the beer bottle with a very broad grin. Above the image, Mr Young recorded the words: “I was only going to have a sip, BUT – OMG I’m drunk and I feel so silly”. Mr Young sought to explain these images of a barely two year old child consuming extra-strong beer on the basis of frivolity and (apparent) cultural norms prevailing in the Philippines.
Prior to eventually admitting the substance was beer and contemporaneous with his initial assertion that the substance was “ginger beer”, he said: “It’s funny. He [the then 2 year old Applicant] thinks he’s drinking beer” and that “He’s [the Applicant] playing a game”. He was reminded of the previously discussed and critically important role of a parent to act as a moral compass for a child and to educate a child about knowing right from wrong. He agreed that allowing a barely 2 year old child to consume extra-strength beer and to, apparently, mimic or copy drunken behaviour was inappropriate. He then said “It’s the Philippines” and defiantly told Counsel for the Respondent “Sorry if you don’t approve”.
Mr Young was then shown Exhibit 20 depicting further dialogue and images published by him on social media in June 2014. He was shown an image on the first page of the exhibit. It depicted a herd of cows in a field adjacent to a tractor. Above the image, Mr Young wrote the following words: “So, you might wonder what a tractor and a cow pasture have in common with a group of teenage boys. They are both something to climb on and screw around with”.
When challenged about the appropriateness of these words, he agreed it was not an appropriate way to talk about infant boys. His demeanour then became one of defiance and apparent indignation culminating in his rejection of any indecent or other untoward construction or meaning being read into those words. He asked Counsel for the Respondent: “What type of morals are you alluding to?”
According to Mr Young, the sentence “They are both something to climb on and screw around with” refers only to the words “tractor” and “cow pasture” in the immediately preceding sentence and not to “a group of teenage boys”. Without delving into the realms of grammatical accuracy, one could easily interpret the reference to a “tractor” and “cow” as one “bundle” and the reference to “teenage boys” as another “bundle”. Thus the reference in the following sentence to “They are both ….” could easily be construed as a reference to tractor and cows (on the one hand) and teenage boys (on the other).
Mr Young was then referred to the second, third and fourth pages of Exhibit 20. These pages contain both visual images and accompanying commentary. The depicted images are at once appalling and disturbing. The theme of boys recurs at the foot of the second page: “Rainy day, nothing to do but play with clay. Boys wiil (sic) be boys. Especially Filipino Boys.” These words precede three quite inappropriate images of two quite young boys displaying what can only be described as highly sexualised behaviour. These images can only be viewed and understood in that one way.
Mr Young’s evidence was: (1) he took the photographs; (2) he wrote the commentary preceding the photographs; (3) he caused the photographs to be published on his own Facebook page; and (4) the children depicted in the photographs are two of the five infant children (including the Applicant) residing at the Angeles City property.
Mr Young’s responses and demeanour adopted towards questions put to him about these images were simultaneously brazen and astonishing. He agreed it was not appropriate for a responsible parent to have taken these photographs and to have them published on social media to which he brazenly added: “… they weren’t appropriate when they did it either, but boy, you should have seen everyone laughing”. He confirmed that he was among the people who were laughing. He also agreed that he went a step further by taking the photographs and causing them (and his commentary about them) to be published on his Facebook page.
He was again challenged about whether this was appropriate behaviour for a responsible parent. He said: “probably not… possibly… yeah... in the context you’re speaking of it. It probably should have been left as a private moment.” He then defaulted to his, by now, familiar alternate line of defence or explanation involving what, in his view, are prevailing cultural norms in the Philippines. He defiantly stated that this type of imagery and commentary from parents about their children exhibiting such behaviours is “not frowned upon in this context [in the Philippines] nor is it frowned upon by anyone on Facebook who saw my photos”.
His evidence was that he “doesn’t feel morally horrible about it. I would say it’s outside the realms of 100% proper… I didn’t do it according to the Australian standards. I did it according to the moment in time in a party atmosphere and kids playing… In my opinion, at the time, they [the photographs] were ok”.
I suggested to the Applicant that the question for him to answer is whether these images are appalling or not appalling. I suggested his opinion about these images cannot just be based on their appropriateness or otherwise. He agreed and said “they’re wrong”.
Counsel for the Respondent then suggested to him that the reason he put these images and words on his Facebook page was precisely because the Applicant was not his child and that he is not in any parent-child relationship with him at all. His response was clear, deliberately stated and unequivocal: “Yes, I am, very much so”. This was his evidence (on the biological point) at 1:08pm on the day of a hearing that commenced at 10:00am regarding an application for citizenship by descent that he initiated on 1 June 2015.
Mr Young was shown Exhibit 21 comprising a single page from his Facebook page for 30, 31 May and 1 June 2014. On 30 May 2014, he posted “The little lady [Ms Tamayao] had to go out, so I made her take the kids. Ruins her day. But, mine is peaceful. Pay back, haha.” It was suggested to him that what prompted him to make this comment was the fact that until the Applicant’s first visit to Australia in August 2014, he was not used to providing care for the Applicant on a 24 hour a day, 7 days per week basis. His response was equivocal. He said that care for the Applicant was communally shared between Ms Tamayao, her sister and himself.
Exhibit 21 also contains a responsive comment from a Chris Carmalt. He responded to Mr Young’s post with: “After all they are her kids not yours”. I asked Mr Young to explain why Mr Carmalt may have made that comment. The response was perhaps because the initial post or comment related to “I made her take the kids”. Mr Young thought Mr Carmalt may have (somehow) become confused by the plurality expressed in that phrase (“kids”) and inadvertently included the Applicant in his response as one of Ms Tamayao’s three children from a previous relationship. After momentarily considering the credibility of that response, Mr Young said Mr Carmalt (who is personally known to him) “may have the same opinion as this lady [pointing to Counsel for the Respondent] that [the Applicant] is not my son. I don’t think that has anything to do with the father son parent relationship because then we’re getting back to the subject of DNA…”
The theme of Mr Young not being used to providing constant care for the Applicant was further explored by Counsel for the Respondent via Exhibit 22. This exhibit comprises five pages from Mr Young’s Facebook page for the period 19 August to 1 October 2014. An initial point to note is that the Applicant’s visit to Australia in 2014 traversed the period
7 August until 4 November.[19][19] See Exhibit 18: Movement records for the Applicant.
Having the Applicant in Australia seemingly drew feelings of exasperation from Mr Young. For example, on 19 August 2014, he posted: “If I have to listen to [the Applicant’s] DVD’s for three more months, I’m going crazy”. On 22 August 2014, he posted: “Cold, Rainy Day, hard with [the Applicant] to be and make happy.” On 15 September 2014, he posted: “Just 9 or so more weeks, can’t wait to be back home and get rid of [the Applicant]…” Although disputed by Mr Young, this comment, in my view, can only refer to a stated desire by Mr Young to part company with the Applicant in “nine or so weeks” such that the Applicant leaves Australia and returns to the Philippines with his mother. To be clear, Mr Young published this comment on 15 September 2014. The Applicant departed Australia with his mother on 4 November 2014.
At this point in the hearing (and, indeed, the entire process) Mr Young’s evidence about a biological link between him and the Applicant, to my mind, began to equivocate. He conceded that although there were photographs of Ms Tamayao giving birth to the Applicant, none of those photographs depicted him seeking to comfort her through the birthing process. He sought to ameliorate that concession by telling the hearing that no‑one else either volunteered or was available to take the photographs. He further conceded that there is a complete dearth of photographs from the neo-natal phase of the Applicant’s life depicting Mr Young performing usual fatherly duties such as giving the Applicant his bottle or changing his nappy.
He was then referred to his letter dated 1 June 2015,[20] addressed to the Respondent Department. He was specifically referred to the first paragraph of that letter where he explicitly says: “…my son [the Applicant] born to myself and Jean Tamayao in the Philippines on April… 2011.” He was challenged by Counsel for the Respondent to confirm this phrase refers to a definite and irreputable biological link between him and the Applicant. He responded with “That’s your interpretation. I said it to establish the continuity of the relationship with Jean and me”.
[20] Exhibit 3, T Documents, T3, p 12.
Astonishingly, and for the first time, he gave evidence of a conversation he had with a representative of the Respondent Department. Mr Young said during that conversation he apparently asked “Does DNA matter? I will take it off the table now if it matters.” To which the representative apparently replied: “No, you are going forward on the basis that you have a parent-child relationship.” He then said: “I am not in this room trying to prove biology… I have never tried to go down that road.”
He was then taken to one of his previous emails that contained these words: “All our evidence shows a clear and undisputable [sic] path of a man meeting a woman, her getting pregnant and the birth of the mentioned child, the signing of a birth cert. [sic] and photos and properties of them all continuously together.” [21]
[21] Exhibit 3, T Documents, T5, p 58.
Mr Young was then asked to confirm that the two written comments he had made in these two written communications do not, in any way, suggest that he was claiming to be the biological father of the Applicant. He responded “precisely”. Upon further questioning from me, he conceded (1) he could possibly be the father of the Applicant but that (2) a third party could also be the father.
Re-examination/Reply of Mr Young
99.The principal point made by Mr Young during this phase of his evidence was to, in his words, formally “take off the table” any claim or assertion he may have previously made about him being the biological father of the Applicant. He confirmed that this Tribunal is to decide this application on the basis of applying the ACP guidelines to determine whether there exists a parent-child relationship in circumstances where there is no biological connection between him and the Applicant.
FINDINGS
The principal issue for the Tribunal to decide is whether Mr Young, in the broadest sense of that word, is a parent of the Applicant.
I am not satisfied that he is for two principal reasons:
(a)his credibility was, in my view, so seriously damaged in cross-examination that no reasonably minded decision-maker can accept his evidence;
(b)even if his evidence were to be accepted (which it is not), I find that there is insufficient evidence before the Tribunal such that I can be satisfied Mr Young is either the parent of the Applicant or in a parent-child relationship with the Applicant at the relevant time, that being at the time of birth.
Mr Young’s credibility
As mentioned earlier, there is no doubt Mr Young propounded – for a very lengthy period, well into the hearing - a biological link between him and the Applicant. Given his concession about that issue now being “off the table” there is, strictly speaking, no fundamental requirement to make a determination on the biological point.
Of more relevance now are the credibility issues arising from his overall demeanour and posture (in evidentiary terms) he adopted while propounding the biological point. One cannot ignore the disingenuous way he gave the evidence about the biological link. He was clearly evasive and refused to provide direct answers to questions. He would frequently respond to a question with a question of his own or some other response that was either irrelevant or deliberately intended to de-rail the line of questioning.
His evidence tended towards generalities and when, for example, specific words or commentary was put to him for explanation, any difficulty he experienced in providing that application was met with that material apparently being “glib”.
Similarly, other difficult questions involving matters of explanation or clarification of inconsistencies were met with absurd responses such as: “It’s the Philippines.” He also spoke of an apparent inability to recall things due to suffering the apparent side effects of a condition he termed “chemo brain”. According to Mr Young, he has previously received chemotherapy treatment for some type of malignant condition and this remedial chemotherapy has, according to him, adversely affected his capacity to recall things. There was no medical evidence put to me about that and this contention must be rejected.
The contention made on behalf of the Respondent is therefore correct: these type of behaviours and tendencies in a witness cannot sit comfortably with the idea that someone is telling the Tribunal the truth and that such evidence should be accepted and acted upon.
On a number of occasions during the hearing, it occurred to me that he was being snide and confronting towards Counsel for the Respondent. This was especially the case on issues of interpretation of documents. When pressed about the specific forensic meaning of something appearing in a document (nearly always one of his documents), he responded with some type of diatribe about people in the hearing room being “university people” who have “done studies in relation to the English language” and that such people simply do not understand what he was saying in the witness box or what he wrote in certain of his documents.
He adopted this sanctimonious approach in relation to his evidence about the documents appearing at pages 12 and 58 of the T Documents. These documents related to statements Mr Young had made during the course of this matter asserting a claim of biological parentage between him and the Applicant. His responses are detailed earlier in these Reasons. His evidence in this regard may be capable of being understood if the application had been made on or about the Applicant’s birth in April 2011. The Applicant could have asserted that at the time of the birth, he had a genuine belief that he was the biological father.
But the critical point about this evidence that, to my mind, irrevocably harms Mr Young’s credibility, is that this application was not made in 2011, it was made in mid-2015. One could understand evidence of him asserting to be the biological father if that belief formed the foundation to support an application that, theoretically, had been made in April/ May/ June 2011. Instead, we have a passage of time of over four years from the Applicant’s birth until the bringing of the present application.
When the application was brought and when the DNA testing was offered by the Respondent Department, I think it is very notable that Mr Young did not decline that testing on the basis of telling the Department that he may not be the biological father but that he was nevertheless in a parent-child relationship with him in other respects. Rather, Mr Young took the high-handed and now abandoned position that he was the biological father and that his rejection of DNA testing was done on the basis of moral and religious grounds. This evidence should be viewed in conjunction with the content of his email dated 23 September 2015 quoted at paragraph [26] of these Reasons – fourth bullet point.
The Respondent’s contention is therefore correct: it is exactly this type of conduct by Mr Young that, in my view, seriously damages his credibility. In his evidence he referred to a certain conversation that apparently occurred during the life of this application that he had with an officer from the Respondent Department. The terms of that exchange are detailed earlier in these Reasons. It is the chameleon nature of Mr Young’s evidence that infects its credibility. There is:
(a)his evidence of his recollection of the content of the discussion with the officer from the Respondent Department, which contrasts with:
(b)his definitive statements of a biological connection appearing at page 12 of the T Documents (Exhibit 3) where he says the Applicant was “born to myself and Jean Tamayao” and page 58 of the T Documents which talks about “…a clear and undisputable path of a man [referring to himself] meeting a woman [referring to Ms Tamayao], her getting pregnant and the birth of the mentioned child…”, which contrasts with:
(c)his more equivocal position appearing in his email to the Department at page 95 of the T Documents “…we have made a decision to not accept an offer for DNA testing As [sic] it has nothing to do with proving [sic] a relationship and only provides inclusive proof of paternity”, which can be, in turn:
(d)contrasted with his concession/evidence well into the hearing that any previously asserted biological connection was now “off the table”.
It was difficult to ignore Mr Young’s demeanour in the witness box under cross‑examination. It was plain to see that he would – when handed documents for questioning – continually look or read ahead through those documents to try and anticipate likely questions and, of course, to develop believable answers. I regard this conduct as also directly impacting on Mr Young’s credibility in an adverse way. On repeated occasions, he was trying to ascertain where the line of questioning was going and thus trying to anticipate questions from Counsel for the Respondent. He reached a point of providing some semblance of an answer but when he was not even able to do that, he retreated to certain (in his view) cultural differences between Australia and the Philippines and/or that what he was being asked to explain was “glib”.
It is, in my view, irrefutable that Mr Young has clear and obvious difficulty with making concessions in relation to aspects of his evidence. Where, for example, there were clear inconsistencies between documents leading to a “dead end” in his evidence, his tone and posture was to try and spuriously explain any such inconsistency on the basis of either a cultural difference between Australia and the Philippines or to try and add some veneer or gloss of formality and credibility in the document(s).
There was a clear conflict between the documentation relating to the Angeles City property. Mr Young maintained an unrealistic and stoic determination in maintaining that the purchase price of the subject property was 470,000 Pesos. He sought to rely on Exhibit 1 to these proceedings entitled “Chronological Facts”. This particular document was drafted by Mr Young and it dates from December 2016. Yet the documents apparently signed by the relevant parties in 2011 evidence a different purchase price and a different method of payment of that purchase price – in effect, an instalment contract. Despite the reality of those documents being put to him, Mr Young refused to accept any suggestion that anything other than his version of that transaction as recorded in his document (Exhibit 1) was the correct state of affairs.
His flippancy to the seriousness of the issues impacting upon his credibility seemed lost on him. His defiance of logic and common sense in the answers he provided to questions about, for example, how much money he carried out of the country – whether it was $10,000 or $9,999 – serves to import a certain convenience in his evidence. Those inconsistencies which seek to be supported on the basis of hollow pretexts of cultural differences or glibness and the like, in my view, further seriously imperil any reliability upon his evidence.
His almost nonchalant approach to other serious issues such as the nature of his relationship with Ms Tamayao also caused me to have serious misgivings about the totality of Mr Young’s evidence and how it has, over time, been constructed to suit a certain outcome in this application. He spoke of his encounter with Ms Tamayao in July 2010 as a “fling” but, despite that contention, he maintained a parallel contention of being the biological father of the Applicant.
The serious and significant inconsistencies and difficulties with Mr Young’s evidence have not been properly or adequately explained. I find his evidence to be lacking in any quantifiable measure of credibility. I also have serious misgivings about his dogged refusal to abandon an aspect or aspects of the application that were clearly no longer sustainable or tenable until it was apparent to him that no reasonably minded decision-maker could believe his evidence.
I consider that my refusal to accept the evidence of Mr Young is, by itself, sufficient to ground a finding that he was not in a parent-child relationship with the Applicant at the time of the Applicant’s birth. I so find.
Evidence (if any) of a (non-biological) parent-child relationship
Out of an abundance of caution and for the sake of completeness (and only for those reasons), I will also discuss the evidence as it related to Mr Young’s assertion – biological issues aside – of being in a parent-child relationship with the Applicant at the time of the Applicant’s birth.
A discussion of certain of the documents sought to be relied on by Mr Young do not provide any meaningful assistance to a decision-maker in terms of demonstrating a parent-child relationship between him and the Applicant.
I was taken to Exhibit 7 which comprises a purported “Last Will and Testament” apparently made by or on behalf of Mr Young. I cannot attach any weight to that document as being evidence of anything. It bears no signature or date and cannot be relied upon as evidence of any contention that this Applicant is regarded by Mr Young as “his child” in the same way as he regards his two children from a previous relationship.
There were a series of references or other letters of support. They are particularised as Exhibits 4(a) – (m) in these proceedings. I agree with the analysis of those statements that was made by Counsel for the Respondent. The only one of those statements that remotely approaches any credible evidence of a parent-child relationship at the relevant time is the statement of Mr Jeffrey Thomson, dated 20 August 2013. In this letter,
Mr Thomson says that: “In May 2011, my partner and I visited them at their home near Angeles City for several days. We also met members of the family and socialised with everyone.” Rather self-servingly (for Mr Young) Mr Thomson goes on to say “Since then, Gerald [Mr Young] has spent much of the time living in a family environment with Jean [Tamayao] and her children.”[22][22] See Exhibit 4(f), Letter of Jeffrey Thomson, dated 20 August 2013.
I think the contention put on behalf of the Respondent is well made and should be accepted: Mr Thomson does not say anything about any parent-child relationship between Mr Young and the Applicant at the time he made this letter (August 2013). The letter makes a reference to a visitation by Mr Thomson and his partner upon Mr Young and Ms Tamayao in the Philippines and that Mr Thomson and his partner met members of the family and socialised. This letter cannot possibly constitute supportive evidence of any parent-child relationship between Mr Young and the Applicant. More critically,
Mr Thomson says that Mr Young has been “living in a family environment with Jean and her children”. He does not say that any one of those children belongs to Mr Young or that Mr Young has otherwise fathered one of those children. It would be irregular and, more likely, extraordinary if Mr Young did not introduce the Applicant to Mr Thomson and his partner as “his son”. There is no record of any such introduction in Mr Thomson’s letter. I accordingly afford little or no weight to this reference.I was also referred to the statement or reference of Ms Krystal Tamayao.[23] She is
Ms Tamayao’s daughter. Her letter speaks of the Applicant being a “nice guy from Australia”. She refers to Mr Young as “my Daddy”. She also purports to introduce a theme of Mr Young being some type of financial supporter of the family. However, Krystal Tamayao’s letter of reference has one, and to my mind, very significant flaw. In the second paragraph, she talks about her mother “get pregnant to [the Applicant], Daddy Gerald Young stay in our apartment until [the Applicant] born at April… 2011”. As has been conceded by Mr Young, he may very well not be the biological father of the Applicant and, therefore, Krystal’s mother could not possibly have been pregnant to Mr Young. I accordingly afford little or no weight to this reference.[23] See Exhibit 4(g).
I was then taken to the reference of Ms Tamayao’s sisters, Beth Tamayao and Fe Belen Javar, dated 7 November 2016.[24] The only possible value of this reference for the demonstration of a parent-child relationship relates to the buying of vitamins, apparently by Mr Young, “for the baby in her”. Counsel for the Respondent made two points about this reference. I accept both of those points. First, the mere purchase of vitamins is insufficient to ground any finding of a parent-child relationship. Second, there can be no doubt that there have been break-ups or pauses in the personal relationship between Mr Young and Ms Tamayao. It is conceded by the Respondent that a personal relationship between them probably exists[25] but, be that as it may, one could reasonably expect one partner in a personal relationship to buy vitamins for the benefit of the other. Such a purchase of vitamins, in the context of a personal relationship between two adults, cannot possibly convince a reasonably minded decision-maker of the existence of a parent-child relationship between one of the parties and the child of the other party.
[24] See Exhibit 4(h).
[25] This reference, for example, also refers, inter alia, to Mr Young leaving money with Ms Tamayao to pay her bills and his presence at certain family events.
As was also noted by Counsel for the Respondent, apart from Mr Young holding a newborn child purporting to be the Applicant, there is a significant paucity of material at or around the date of birth of the Applicant such as to demonstrate any parent-child relationship involving Mr Young and the newborn. The relative absence of any contemporaneous (or near contemporaneous) announcements on social media or, for example, the local press, is of concern to me. More significant is the complete absence of any sworn evidence by Ms Tamayao in these proceedings. She is, after all, the biological mother of the Applicant. She attended the hearing but did not give any oral evidence at all. I find it extraordinary that the biological mother of an Applicant son seeking Australian citizenship did not see fit to give any supportive evidence – written or oral – of any substantive nature. There is the shortly worded and vague statutory declaration appearing in the T Documents[26] but, to my mind, that (barely) three line statutory declaration is glaring not for what it says but for what it does not say.
[26] See Exhibit 3, T Documents, T4, p 32.
I agree with the Respondent’s contention: the explanation for the absence of any detailed or credible evidence from Ms Tamayao is that this application was initially predicated and propounded on an alleged biological link between Mr Young and the Applicant. It would seem that both Mr Young and Ms Tamayao thought they would cause the Applicant to succeed in this application on the basis of convincing a decision-maker of the biological link. In my view, this is why there is little convincing material comprising evidence of parentage on a non-biological basis. As noted on behalf of the Respondent, this application has been on foot since mid-2015 and there has been ample time for both the Applicant and Ms Tamayao to provide evidence of a parent-child relationship in circumstances where a biological link was no longer propounded. They were well aware that this application would be heard and determined in Australia, according to this country’s laws, values, morals and levels of acceptable behaviour.
Mr Young’s explanations for either a lack of evidence or a lack of clarity in the evidence relating to a non-biological parental link with the Applicant cannot, in my view, be explained away on the basis of:
1)cultural differences between Australia and the Philippines; and/or
2)that, as he said in evidence, he was not “totally in charge”; or that
3)he is not otherwise in the child’s presence all the time, bearing in mind that the Applicant spends the predominant part of his life in the Philippines while Mr Young’s primary place of residence is in Australia.
The point Mr Young has missed is that these types of applications – when no biological link is propounded - is exactly about demonstrating an alternate parental link(s) with a given child for whom Australian citizenship is sought. It was incumbent on Mr Young (and even Ms Tamayao to support him in this endeavour) to demonstrate that he was indeed the parent of the Applicant and that he was the immovable and responsible moral compass providing guidance and “life lessons” to the Applicant. There seems an unexplained disconnection – in parental and caring terms - between Mr Young and the Applicant. As I am sure he would have done with his two other children from a previous relationship, one could reasonably expect Mr Young to want to impress his values about how to live one’s life upon “his son” – the Applicant. The evidence simply does not point to any convincing level of engagement by Mr Young in a parent-child relationship with this Applicant. It is just too convenient for him to try and explain away the lack of such duly evidenced parental connectivity between him and the Applicant on the basis of cultural differences between Australia and the Philippines. Although self-represented in this matter, I cannot reasonably accept Mr Young’s explanation that he has “made mistakes” in the conduct of this Application. The major mistake he has made – compromising the credibility of his own evidence - does not require any great expertise, beyond his own, to rectify.
I will also refer to the quite inappropriate material published by Mr Young on his Facebook page. I specifically refer to the images and commentary at Exhibits 19 and 20. My preference is not to moralise about the images or the commentary. The images speak for themselves and are suggestive of only one thing. At the hearing, I told the Applicant the images were appalling and he confirmed that “they’re wrong”. There is, therefore, no requirement to moralise in these Reasons about what has been written and said in these exhibits.
What is of concern – indeed great concern – is the nature of Mr Young’s evidence about these two particular exhibits. As noted by Counsel for the Respondent, were this type of imagery and commentary to have occurred in the privacy of Mr Young’s home, then one could, perhaps, take a different approach to his performance as a putative parent. That is an entirely different proposition from his conduct now before the Tribunal involving as it did (1) his actual publication of these images and commentary on his own social media page and (2) his flippant and dismissive attitude when giving his evidence that both his act of publication of those images and the highly sexualised conduct displayed by the children were laughing matters.
The deeper and more significant conclusion to be drawn from this evidence is that
Mr Young had little or no qualms about publishing this material on social media because he has never really thought he has been in a parent-child relationship with the Applicant. This is borne out by his damaging utterances on social media attesting to his desire to “get rid of” the Applicant and that he has found it “hard with [the Applicant] to be and make happy” and that “if I have to listen to [the Applicant’s] DVD’s for three more months, I’m going crazy.” The Applicant made these comments on the very first occasion the Applicant visited him in Australia. One wonders about the likely nature of his utterances on social media or elsewhere were the Applicant to reside with Mr Young in Australia on a full-time basis. These types of comments serve to ground a finding that Mr Young is not involved in the parenting of this Applicant on a day-to-day basis either here or in the Philippines.The Respondent has conceded that there is most likely a personal relationship between Ms Tamayao and Mr Young. However, the Respondent’s resulting contention, in my view, strikes at the heart of this application: (1) the existence of a personal relationship between Ms Tamayao and Mr Young does not – and on the evidence before the Tribunal, certainly cannot – lead to a finding that Mr Young is a parent – biological or not - of the Applicant, and (2) although Mr Young may be present at a time and location when the Applicant is present does not make him a parent of the Applicant.
CONCLUSION
On the evidence available to the Tribunal, I find that:
(1)the Applicant is not the biological child of Mr Young; and
(2)Mr Young was not in a parent-child relationship with the Applicant at the time of the Applicant’s birth within the meaning of section 16(2) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 135 (one hundred and thirty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
............................[sgd].............................
Associate
Dated: 30 June 2017
Date of hearing: 7 February 2017 Appearing for the Applicant child: Mr Gerald Young Counsel for the Respondent: Ms A. Wheatley Solicitors for the Respondent: Australian Government Solicitor
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Immigration
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