Vaafusuaga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 4219

Vaafusuaga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4219 (17 November 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4948
Re:Faatafa Vaafusuaga
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 November 2021
Place:Sydney

The decision under review is set aside and remitted to the Respondent for reconsideration with a direction that the Applicant satisfies the requirements of paragraph 16(2)(a) of the Australian Citizenship Act 2007 (Cth).
...............................[sgd].........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship refused – whether applicant had a parent who was an Australian citizen – whether the Tribunal considers adoption arrangements have been made prior to and at time of birth – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 16
CASES
ABCD and Minister for Immigration and Border Protection [2014] AATA 18
Ghalzai and Minister for Home Affairs (Citizenship) [2019] AATA 74
H v Minister for Immigration and Citizenship and Anor (2010)117 ALD 293
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23
In re G (Children) [2006] UKHL 43
Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82
Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Masson v Parsons (2019) 226 CLR 554
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471
NWH and Minister for Immigration and Citizenship [2009] AATA 833
Onyema and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3883
Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746
SECONDARY MATERIALS
CPI 23 - Determining Parent-Child Relationship for the Purposes of the Citizenship Act
Jamila Hussain, Islamic Law and Society (Federation Press, Sydney, 1999)
The Holy Qu'ran 33:4-5
REASONS FOR DECISION
Chris Puplick AM, Senior Member
15 November 2021
BACKGROUND

Faatafa Vaafusuaga (the Applicant) seeks a review in this Tribunal of a decision by a delegate of the Minister (the Respondent) to deny his application for the grant of Australian citizenship.
The application for citizenship by descent was lodged on 7 August 2019 and refused by the Respondent on 9 August 2019. An appeal to this Tribunal was lodged on 14 August 2019[1] and heard on 10 November 2021 with the parties using the Microsoft Teams platform in accordance with the Tribunal’s continuing COVID-19 protocols.
[1] At all of these dates in August 2019 the Applicant was still a minor (before his birthday) and applications were made on his behalf by Elia and Laoso Vaafusuaga who were assisted by Eleanor Vaafusuaga-Erika.
The Applicant, his representative (his sister Ms Eleanor Vaafusuaga-Erika) and his mother (Ms Laoso Vaafusuaga) appeared from Auckland, New Zealand with the Applicant and his mother each providing sworn testimony and being cross-examined on this by both the Respondent’s representative and the Tribunal.[2]
[2] In this instance, the individuals referred to are his adopted sister and mother (and thus his natural cousin and aunt respectively).
THE AUSTRALIAN CITIZENSHIP ACT PARAGRAPH 16(2)(A)
This application turns on the construction of paragraph 16(2)(a) of the Australian Citizenship Act 2007 (Cth) (the Act) which provides (emphasis added):
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
The Respondent’s refusal decision of 9 August 2019 was consequent upon its finding that the Applicant failed to meet the requirement of paragraph 16(2)(a).
Plainly there are three relevant critical elements in paragraph 16(2)(a), namely
·parent;
·Australian citizen; and
·at the time of birth.
The phrase “at the time of birth” admits of no ambiguity. It requires that a particular fact (birth) be established as occurring on a particular day.
In Koka, Moshinsky J stated as follows:
49. …As discussed by the Full Court in H at [69], the construction of the provision might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in s 16(2)(a). As the provision is drafted, it is grammatically possible to interpret “at the time of birth” as applying only to the phrase “was an Australian citizen” and not to “a parent of the person”.
…
51. Accepting that the words “at the time of birth” qualify both the status of being a parent and the parent’s citizenship in s 16(2), the ordinary meaning of the words used in the provision is that the eligibility requirements need to be established as a matter of fact, as distinct from deeming on the basis of later adoption. In other words, the applicant for citizenship must have had, at the time of their birth, a parent with Australian citizenship as a matter of fact.[3]
[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471.
Moshinsky J’s decision was upheld on appeal to the Full Federal Court which stated:
4. The question on the appeal is whether the primary judge’s construction of s 16(2)(a) is correct. We find that it is, and the appeal must therefore be dismissed.
…
35. …in our opinion s 16(2)(a) is simply not concerned with the operation of any law on the legal status of a child, or the legal status of an adoptive parent of a child. It is concerned with the factual question of whether, when a child is born, she or he has – at that particular point in time – a “parent” (construed in accordance with H) who is an Australian citizen.[4]
[4] Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82.
While the meaning of “at the time of birth” is thus clear and to be taken as meaning exactly what it says, the term “parent” is not so clearly defined.
The Macquarie Dictionary (seventh edition) as a definition of “parent” gives simply:
“[1] a father or a mother
…
[3] a protector or guardian.”
The Oxford English Dictionary gives:
“a. A person who is one of the progenitors of a child; a father or mother. Also, in extended use: a woman or man who takes on parental responsibilities towards a child, e.g. a stepmother, an adoptive father.
b. A person who has the position or role of a parent; one who exercises the functions of a parent; a protector, guardian. Formerly also occasionally: father- or mother-in-law (obsolete).”
Obviously, at one time, the term “parent” was understood to be quite limited. That is, it referred to a person who was biologically the father or mother of an individual, and hence their immediate progenitor. Indeed, the Tribunal itself once took such a view.
In Kumar, Deputy President Forgie said:
it seems to me that the word “parent” should not be given a meaning that extends beyond the biological parents of the child.[5]
[5] Kumar and Minister for Immigration and Citizenship [2009] AATA 124 at [82].
Deputy President Handley denied citizenship to an applicant who:
is not eligible for Australian citizenship under s 16(2)(a) because Mr H is not his biological parent and NWH did not have a biological parent who was an Australian citizen at the time of his birth.[6]
[6] NWH and Minister for Immigration and Citizenship [2009] AATA 833 at [33].
However, over time, technology, social attitudes and the Courts have had occasion to expand this definition. Legal recognition of adoption, the rise of assisted reproductive technologies such as artificial insemination and surrogacy and even cloning (for non-human living creatures) have challenged traditional assumptions or definitions of parenthood.
In the English case of In re G (Children) Lady Hale, at one stage the most senior Judge in the United Kingdom,[7] stated:
33. There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.
34. The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.
35. The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:
"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."[8]
[7] Baroness Hale of Richmond was President of the Supreme Court of the United Kingdom 2017-2020.
[8] In re G (Children) [2006] UKHL 43.
Her Ladyship’s comments were referenced by the High Court in Masson when it said:
The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.[9]
[9] Masson v Parsons (2019)226 CLR 554 at [29]. Emphasis added.
This in turn takes the Tribunal to the seminal decision in H v Minister for Immigration and Citizenship [10] where the Full Federal Court stated:
128. The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognises, not all parents become parents in the same way: see, for example, s 8 of the Citizenship Act. This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
129. Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed Sate and Territory laws such as the Status of Children Act. Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.
130. The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the tribunal with regard to Mr McMullen. The minister has not shown any relevant error in the tribunal’s finding that Mr McMullen could qualify as Ms McMullen’s Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.
131. We can discern no relevant justification for holding, as the tribunal did in NWH’s case, that a person can only be a “parent” within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2)(a), 17(1A), 19A. As a practical matter, we do not consider that parliament would have intended the likely unfortunate results of the minister’s construction: see [79]. The practical effect of this construction would be to accord the science of genetics a status that parliament has not given it.
[10] H v Minister for Immigration and Citizenship and Anor (2010)117 ALD 293. Emphasis added and case citations omitted.
Since 2010, H has been accepted as the definitive statement of how to approach questions of parenthood under the Act:
The decision in H v Minister for Immigration and Citizenship is authority for the proposition that a person may be the “parent” of a child for the purposes of the Australian Citizenship Act even though not the biological “parent”.[11]
[11] Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [29] per Flick, Jagot and Barker JJ.
This Tribunal has, on several occasions, accepted a parental relationship exists where it is clear that there is no biological relationship.
In ABCD the Tribunal held:
4. By decision dated 21 May 2013, a delegate of the Minister refused the Application (reviewable decision). The delegate concluded that the Applicant had failed to establish that he “had a parent who was an Australian citizen at the time of (his) birth”, stating “based on the DNA testing report showing that the sponsor, (JM), is not the biological father of the applicant … ”.
5. On the evidence before the Tribunal, the Tribunal also finds that JM is not the biological father of the Applicant.
6. The evidence does establish, however, that JM is the Applicant’s “parent” within the meaning of that word as it appears in section 16 of the Act and as construed by the Federal Court of Australia.[12]
[12] ABCD and Minister for Immigration and Border Protection [2014] AATA 18.
In Onyema the Tribunal found that:
27. …the Tribunal finds that it is highly implausible that Mr Onyema is the biological father of Master G.
42. …the Tribunal is satisfied that Mr Onyema genuinely believes he is the father of Master G, has fully accepted his responsibilities as the father of Master G since he was advised of (his partner’s) pregnancy in April 2014, and was the Australian parent of the child at the time of birth.[13]
[13] Onyema and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3883.
In the matter of Ghalzai[14] I had to determine a question of “parenthood” where Mr Ghalzai believed that he was the father of a minor child (the applicant for citizenship) however DNA testing proved that this was not the case. In this matter the mother of the child in question was the second (polygamous) wife of Mr Ghalzai. Nevertheless, Mr Ghalzai assumed “parental” responsibilities of for the child and raised him as his own. At no stage did Mr Ghalzai formally or legally “adopt” the minor child, both being nationals of Afghanistan, although the child was born in Pakistan. Indeed, adoption (as understood legally in Australia) is expressly forbidden by the Qu’ran[15] and hence not available to members of the Islamic faith.[16] Mr Ghalzai became an Australian citizen in 2004 and the child in question was born in August 2013.
[14] Ghalzai and Minister for Home Affairs (Citizenship) [2019] AATA 74.
[15] Sura 33:4-5.
[16] Jamila Hussain, Islamic Law and Society (Federation Press, Sydney, 1999) at 81-82.
In that case the Minister contended that although the parent/father was an Australian citizen at the time of the child’s birth and had subsequently provided care for the child, he was not actually “the parent” (in the sense of H) at the time of the child’s birth and only assumed parental responsibilities at a later stage. I was satisfied that this was not the case and, that although Mr Ghalzai had not been present at the birth of the child, nor had he in any legal sense adopted the child, he was nevertheless the parent of the child in a manner consistent with the principles enunciated in H and the requirements of the Act.[17]
[17] Ghalzai v Minister for Home Affairs [2019] AATA 74 at [47]-[52].
Although the word “parent” is not defined in the Act, it is addressed in the Australian Citizenship Policy Statement and the Revised Citizenship Procedural Instructions (CPIs) at CPI 23 – “Determining Parent-Child Relationship for the Purposes of the Citizenship Act”. The CPIs are published by the Government as a guide to the preferred interpretation of aspects of the Act, but they are not binding instructions on decision-makers, although their import should be given due regard unless there is a good reason not to do so.

CPI 23 (at 3.2) notes that:
“Consistent with the H case, the determination of whether a person is a parent is a question of fact and should be made on a case-by-case basis, in consideration of all the relevant information in the circumstances, including biological, legal, and social factors.
A parent-child relationship that developed after the birth of a child, such as adoption, would not suffice for the purposes of citizenship by descent or birth in Australia.”
The CPI goes on to state:
“For citizenship by birth or descent, the parent-child relationship must have existed at the time of the applicant’s birth.
The applicant or their responsible parent should be requested to provide evidence of the length and nature of the claimed parent’s parental relationship with the child.
It is unlikely that any one piece of evidence would be sufficient to prove the required parent-child relationship. The decision maker is required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether or not the claimed parent is (was) a parent of the applicant at the relevant time.
Evidence that a claimed parent-child relationship existed at the time of a child’s birth may include, but is not limited to:
·evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
·evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth, antenatal and postnatal care;
·evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; and
·when a child is born through a surrogacy arrangement - a formal surrogacy agreement entered into before the child was conceived and, if available, lawful transfer of parentage prior to or after the birth.
Evidence that the claimed Australian citizen or permanent resident parent treated the child as their own from some point in time after the child’s birth is not evidence that they were the child’s parent at time of birth. However, evidence as to the claimed parent’s conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as their own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth.
In the absence of evidence of biological parentage, any other evidence provided should be thoroughly assessed.”
THE FACTS
The Applicant was born in Satapuala, Samoa in August 2001[18] his biological parents being Taulaga Vailima and Faaalu Vailima.
[18] Tribunal documents (T-documents) at 20.
As a result of a request made by the Tribunal to the Applicant at the hearing, a copy of an Adoption Order was provided to it. It shows that on 10 October 2003 an application was made by Elia and Laoso Vaafusuaga in the District Court of Samoa for the adoption of “Peteli Faatafa Taulaga a male child born… August 2001 at Satapuala”. An order granting this adoption was made by a Judge of that Court on 24 October 2003 under Part II of the Infants Ordinance 1961 (Samoa).
As a result of this Court Order, the original birth certificate of the Applicant was cancelled and a new birth certificate issued on 9 December 2003 which lists the Applicant’s mother as Laoso Vaafusuaga (nee Vailima)[19], aged 41 years. His father is listed as Elia aka Iosua Vaafusuaga, aged 43 and with the shown occupation as “Minister of Religion”.
[19] Maiden name Vailima.
On 3 May 2003 the Applicant was granted New Zealand citizenship by descent under the Citizenship Act 1977 (New Zealand).[20]
[20] T-documents at 22.
As a New Zealand citizen, the Applicant was entitled to the privileges attached to a Special Category subclass 444 visa which he was granted, and he first arrived in Australia on 8 January 2005. He has made numerous trips to and from Australia since that date.[21]
[21] Ibid at 29-30.
On 3 June 1993 Ms Laoso Vaafusuaga was granted Australian citizenship.[22] She was thus “an Australian citizen” at the time of the Applicant’s birth. At the time of his birth she was also physically resident in Australia.[23]
[22] Ibid at 23.
[23] Supplementary T-documents at 1.
Sworn evidence was given by the Applicant and his mother, from which the following was established:
(a)Mr Elia Vaafusuaga became an Australian citizen on the same day as his wife.
(b)Elia and Laoso Vaafusuaga had two of their own children born some years before the Applicant. The children are Australian citizens.
(c)Elia and Laoso Vaafusuaga have resided in Australia for more than 30 years.
(d)Laoso Vaafusuaga travelled to Samoa in December 2004[24] which was the first occasion on which she had physical contact with the Applicant child, and she returned bringing him to Australia on 8 January 2005.
(e)Members of the Vaafusuaga family lived in Kambah, a suburb of Canberra (Australian Capital Territory).
(f)Elia Vaafusuaga was enrolled as a student at Charles Sturt University from which he graduated some time in 2006 or 2007. He is now an ordained Minister in the Seventh Day Adventist Church.
(g)In 2007 Elia Vaafusuaga was posted to Auckland, New Zealand in his capacity as a Church Minister and the family accompanied him to New Zealand and have been permanently residing there since that date. They have indicated an intention to return to live in Australia in the near future when Elia retires from the Ministry.
(h)Faatafa Vaafusuaga gave evidence to the effect that he could not recall the details of his life in Samoa before arriving in Australia nor of his very first contacts with Elia and Laoso, which is not surprising given that he was three years old at the time and these event occurred some 17 years ago. He also testified that he had virtually no contact with his biological parents and siblings apart from a 3 to 4 week visit with his sister (Eleanor) to Samoa in 2016.
[24] Ibid at 6.
THE CIRCUMSTANCES OF THE “ADOPTION”
In both sworn testimony and in the written statement before the Tribunal (see below), the Tribunal accepts that:
(a)At some stage, approximately three months before the birth of the Applicant, the Applicant’s biological parents had a discussion with Laoso and Elia Vaafusuaga about whether or not they would be prepared to adopt the child, then in utero. Laoso is the sister of the Applicant’s biological father.
(b)The discussion was predicated on the fact that the Applicant’s biological parents already had three children and that they were not in a position to provide financial support for a fourth child.
(c)Laoso and Elia Vaafusuaga already had two children of their own (a daughter and son) who were, at that time, approximately 14 and 8 years of age respectively.
(d)Laoso and Elia Vaafusuaga discussed the potential adoption with their two children and thereafter agreed to proceed with the adoption. The fact that the adoption was planned was also made known to other members of their community. The adopting parents did not, at that time, have any indication of the sex of the child in question.
(e)Laoso and Elia Vaafusuaga provided some degree of financial support to the biological parents of the Applicant, although this support was not great, due to their own constrained financial circumstances (Elia was a full-time student and Laoso the sole breadwinner). This financial support was also provided as part of their commitment to support of their Samoan family in general, noting that the biological parents of the Applicant were also caring for their aged parents, including Laoso’s parents.
(f)When Laoso and Elia Vaafusuaga were in a better financial position they instructed solicitors in Samoa to arrange for the formalisation of the adoption and this led to the issue of a birth certificate to Faatafa which shows Laoso and Elia Vaafusuaga as his parents. That birth certificate is dated 9 December 2003.[25]
(g)Laoso Vaafusuaga travelled to Samoa at the end of 2004 and brought the Applicant back to Australia in January 2005.
(h)At all times since the verbal agreement of approximately May/June 2001 Laoso and Elia Vaafusuaga have regarded Faatafa as their son; they have held this out to all their family members and acquaintances, and they have legal documentation to this effect as of December 2003.
[25] T-documents at 20.
CERTAIN DOCUMENTARY EVIDENCE
There is an Affidavit before the Tribunal, dated 23 July 2021 in the following terms:[26]
“AFFIDAVIT BY NATURAL PARENTS
WE, TAULAGA VAILIMA Security Officer and FAAALU VAILIMA his wife and both of Satapuala, Samoa, jointly and severally make oath and say as follows:
1.        THAT we are the natural parents of FAATAFA VAILIMA a male infant born [in] August 2001, at Satapuala, Samoa.
2.        THAT LAOSO VAAFUSUAGA, the female applicant is the sister of TAULAGA VAILIMA, the male deponent herein.
3.        THAT when FAAALU VAILIMA, the female deponent herein became pregnant of the infant and as early as 6 months before he was born, we wanted to adopt him to the applicants. We discussed this with the applicants and they were delighted to adopt our child when born.
4.        THAT when the infant was born [in] August 2001, the applicants advised us that they were having financial difficulties as ELIA IOSUA VAAFUSUAGA, the male applicant was studying for his Masters' degree at Charles Sturts University.
5.        THAT the adoption had to wait for a further 2 years to allow the applicants to get their finances in order.
6.        THAT we, the natural parents of the infant, confirm the facts as stated in this affidavit.”
[26] Reproduced as in original.
The Affidavit is headed:
“IN THE MATTER of an application by ELIA IOSUA VAAFUSUAGA of Kambar [sic], Australia and Laoso Vaafusuaga his wife to adopt Faatafa Vailima as a male infant.”
The Affidavit is properly made and notarised by a barrister and solicitor of the Supreme Court of Samoa.
In a letter addressed to one of the Tribunal’s Conference Registrars, dated 9 December 2019 Laoso and Elia Vaafusuaga write:
“I am writing to confirm the pre-adoption process for our son Faatafa Vaafusuaga. As stated on the teleconference held on 10 October 2019 by our daughter (Eleanor), we had agreed to adopt Faatafa prior to his birth. It was discussed with my brother and his wife, we would legally adopt their child once he was born. Due to the legal and other processes in New Zealand, the adoption did not finalise until he was two years old.
It proves quite difficult to track specific discussions from the year 2000 as it was as [sic] verbal agreement between us and my brother’s family. We had agreed to adopt my brother’s unborn child as my family in Samoa are a very poor family. We could provide the unborn child with a better life and more opportunities in Australia which is where we were residing at the time. We had adopted two children from Samoa, we put in application for both children which was successful. A boy from my family and girl from my husband’s family to add to our family of four.
This whole Australia citizenship application process has really made us feel like our children are segregated from birth and adoption. We have appealed the decision as we believe Faatafa is genuinely entitled for the citizenship under the law and procedures of Australia as the adoption agreement was in place prior to his birth. We have always sent money to Samoa to assist with the care of their children before the adoption was finalised but this is normal practice for my husband and myself. Prior to Faatafa adoption, we have always done our best to financial support my brother and family back in Samoa. We still continue to support them from New Zealand.”[27]
[27] The practice of formal adoption (adoptio or adoptatio) is ancient and was a central feature of Roman law, finally codified in the Institute of Justinian (I. tit.11). See J. A. Crook, Law and Life of Rome, 90 BC. ― A.D. 212 (Cornell University Press, Ithaca, NY, 1967).
DISCUSSION
To put this in the terms as used by Lady Hale, in essence Elia and Laoso Vaafusuaga, who are biologically the aunt and uncle of the Applicant claim that they are socially and psychologically the Applicant’s “parents”. As far as they are concerned they entered into an agreement (with the Applicant’s “gestational” parents) when the Applicant was still in utero to “adopt” him as from the time of his birth and they believe that they have fulfilled their obligations in that respect. At that time both Laoso and Elia Vaafusuaga were Australian citizens. Hence, they claim that the Applicant meets the requirements of paragraph 16(2)(a) of the Act.
The Respondent does not (in any practical sense) dispute the commitment of Elia and Laoso Vaafusuaga to the Applicant, nor does it dispute that they have acted in loco parentis for most of his life.[28] The Respondent also accepts that the couple were Australian citizens in August 2001. What the Respondent claims is that these arrangements, whatever they may be, were not in place at the time of the birth of the Applicant, but that they arose and were fulfilled at some later date. Hence, the Respondent claims that the requirements of paragraph 16(2)(a) have not been met.
[28] In the place of a parent.
The High Court has made it clear in the matter of Masson that the relevant circumstances of each case need to be taken into account to determine questions of “parenthood”, those being matters of “fact and degree”. The Full Federal Court in H has made it clear that in determining such matters of fact and degree, evidence about what was done “before”, “at the time of” and “after” birth should be taken into consideration, as should evidence that a person “acknowledged” the person “before and at the time of birth as his own” and thereafter “treated” the person as such.
The gravamen of the Respondent’s contentions are set out in its Statement of Facts, Issues and Contentions (at [27]) as follows:
“The Minister contends that the Tribunal should not be satisfied that this information establishes that a parent-child relationship existed at the time of the applicant's birth as a matter of fact because:
(a) there is no evidence which corroborates their statement that such an arrangement was in place, such as evidence confirming the date on which the formal adoption process commenced;
(b) there is no evidence to indicate that any emotional, domestic support, and antenatal and postnatal care was provided by Ms Vaafusuaga to the birth mother and/or the applicant prior to, and at the time of, the applicant's birth—in fact, the evidence from Mr and Ms Vaafusuaga indicates that Ms Vaafusuaga was in Australia at the time of the applicant's birth in Samoa until 27 January 2004;
(c) there is no evidence corroborating the claim that Ms Vaafusuaga provided financial support to the applicant and his immediate biological family prior to his birth; and
(d) even if the Tribunal were to accept that Ms Vaafusuaga provided financial support at the time of the applicant's birth, the evidence from Mr and Ms Vaafusuaga regarding the financial support that they provided to the applicant's biological family demonstrates that this support was provided as a matter of 'normal practice' and not because of an intense commitment from Ms Vaafusuaga to the applicant at the time of his birth. For example, in their statement, Mr and Ms Vaafusuaga state:
‘We have always sent money to Samoa to assist with the care of their children before the adoption was finalised but this is normal practice for my husband and myself. Prior to Faatafa adoption, we have always done our best to financial support my brother and family back in Samoa. We still continue to support them from New Zealand.’”
Each of these contentions should be interrogated:
(a)It is the sworn testimony of Laoso Vaafusuaga that an intra-family agreement was reached sometime in May/June 2011 for herself and Elia to “adopt” the then unborn child of her brother and sister-in-law. This is corroborated by a written statement signed by both herself and her husband, an Ordained Minister of the Seventh Day Adventist Church. It is clear that some little time later (2003) steps were undertaken for the formalisation of this adoption (October 2003) resulting in the issue of a birth certificate showing their parentage of the Applicant in December 2003. The Tribunal accepts that an adoption intention and arrangement was in place well prior to the birth of the Applicant.
(b)The Tribunal does not accept that no “emotional” support was provided to the “birth mother” at the time of the Applicant’s birth. The very fact that a loving member of the family agreed to relieve the birth mother of the worry about providing adequately for her offspring and that she (the birth mother) could be confident about the future care and nurture of her offspring constitutes “emotional” support. It is correct that the adopting parents were not present at the birth of the Applicant (as was the case in Ghalzai) but that is not fatal defect. To the extent that “antenatal” and “postnatal” care was or was not provided, the Tribunal takes note of the fact that it was told in evidence that antenatal care is not something well understood in Samoa where “you just rock up to the hospital and have the baby”.
(c)While there is no “corroborating” evidence about the provision of financial support some 20 years ago, the Tribunal is prepared to accept the evidence before it that such support was provided. Although the amounts in question may have been only modest, it is possible that even modest amounts sent from Australia went a long way in Samoa.
(d)The Respondent’s emphasis on the term “normal practice”, implying a devaluation of the significance of the Applicant’s financial support bespeaks a certain lack of cultural sensitivity. Because it is “normal practice” this does not make it any less worthy or significant. Furthermore, the importation of and emphasis upon the “intense commitment” qualification is unjustified. The term is used but once in the 134 paragraphs of H, (at [129]) as cited above. The term is not found in the Act nor in CPI 23 and in any case, the Tribunal noted a clear commitment to the Applicant in the evidence presented by members of his family. If the Respondent wishes to argue that the commitment of the adoptive parents to the Applicant was, or is less than “intense”, it requires significantly more than a passing reference to do so.
The Respondent’s SFIC continues (at [28]):
“While the evidence demonstrates that Ms Vaafusuaga held the applicant out as her child from 2003, the evidence does not demonstrate that this commitment existed at the time of the applicant's birth [in] August 2001.”
The Tribunal does not agree with this proposition. The commitment existed prior to the birth of the Applicant as is demonstrated by the evidence that Laoso Vaafusuaga discussed and sought “permission” from her other children to bring another member into the family.
CPI 23 also lists a variety of factors for consideration. These include:
·evidence of the continuing relationship between the claimed parents which is apparent in this instance;
·the provision of emotional support which has been discussed above;
·“evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident’s child” which has been established by the evidence of the public knowledge of the proposed adoption arrangements prior to the child’s birth; and
·finally, the CPI restates what was said in H (at [130]), “evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth” and in this instance the Tribunal is satisfied that such a conclusion is indeed justified.

The Respondent goes on to note that there may be alternate routes open to the Applicant to obtain Australian citizenship. That is a matter of fact but neither the Tribunal nor the Respondent is in any position to say what the outcome of any such application might be or how long it would take to determine.
The Applicant rightly points out that his parents and all his siblings are Australian citizens and the Tribunal notes that in Wijewardhanage the Tribunal spoke of the utility (not to say desirability) of “maintain[ing] an integrated citizenship for the family”.[29]
[29] Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746 at [37].
CONCLUSION
The Tribunal accepts that, on the face of it, the delay between the birth of the Applicant and the formal completion of adoption arrangements in the remote jurisdiction of Samoa, may cause some doubt to be engendered about the exact nature of the relationship between the Australian citizen parent and the Applicant “at the time of birth”.
However, it is nevertheless satisfied that well before the birth of the Applicant there was a genuine arrangement in place for the adoption of the then unborn child by his biological aunt, and her husband (both Australian citizens at the time) and that those arrangements were in due course formalised.
It is also satisfied that emotional and financial support was provided by the adopting parents to the biological parents. It is further satisfied that the commitment of the adopting parents was sufficiently “intense” for them to overcome financial and logistical impediments to ensure that the Applicant was legally adopted, brought to Australia, nurtured and cared for.
DECISION
The decision under review is set aside and remitted to the Respondent for reconsideration with a direction that the Applicant satisfies the requirements of paragraph 16(2)(a) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.......................................[sgd].................................
Associate
Dated: 15 November 2021

Date(s) of hearing: 10 November 2021

Date final submissions received: 10 November 2021

Applicant: In person

Solicitors for the Respondent: Ms S Prasad, Minter Ellison

Date(s) of hearing:	10 November 2021
Date final submissions received:	10 November 2021
Applicant:	In person
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison