VDQS and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1420

VDQS and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1420 (31 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4273

Re:VDQS  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:31 August 2017

Place:Sydney

The decision of the delegate of the Minister for Immigration and Border Protection made 20 July 2016, refusing the application of the Applicant for Australian citizenship, is set aside.

The matter is remitted to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Warren King, was an Australian citizen at the time of the birth of the Applicant.

......................................[sgd]..................................

Deputy President J W Constance

CATCHWORDS

CITIZENSHIP – citizenship by descent – Applicant born outside of Australia – whether a parent of the Applicant was an Australian citizen at the time of the Applicant’s birth – meaning of parent – not limited to biological parent – ordinary meaning of parent – parent’s conduct before, at the time of and after the birth – decision set aside and remitted for reconsideration

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 16, 17

CASES

H v Minister for Immigration and Citizenship [2010] FCAFC 119

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Deputy President J W Constance

31 August 2017

INTRODUCTION

1. The Applicant is two years old.  He is seeking Australian citizenship by descent.  In this application he is represented by Mr Warren King who claims to be the Applicant’s father.

   BACKGROUND

2. Unless stated otherwise, the findings of fact in these reasons are made on the basis of the evidence of Mr King.

3. The Applicant was born in a General Hospital in Thailand in June 2015.[1]   His mother, Ms O, is a citizen of Thailand.

   [1] Exhibit R1 p.21.

4. Mr King first met Ms O in February 2013 in Thailand. Since then Mr King has travelled between Australia and Thailand on a regular basis. He was in Thailand between 9 October 2014 and 7 December 2014.[2]   In the period 9 October 2014 until 4 November 2014 Mr King had sexual intercourse with Ms O on a number of occasions.

   [2] Exhibit A3.

5. On 4 November 2014 Ms O informed Mr King that she was pregnant and that he was the father of her child.  At all times Mr King has accepted this to be so and that the Applicant is his son.  Ms O provided a statement dated 2 March 2017[3] in which she said that Mr King is the father of the Applicant.

   [3] Exhibit A20.

6. Mr King provided evidence to show that it is likely that the Applicant was conceived between 9 October 2014 and 9 November 2014.  I accept this evidence.

7. Mr King supported Ms O financially from 1 January 2015 during the remainder of her pregnancy and for a considerable time after the Applicant’s birth.[4]  He had assisted her financially prior to this.  He also paid for the expenses associated with the Applicant’s birth.  I will refer to this evidence in greater detail later in these reasons.

   [4] Exhibit R1 p.17.

8. On 1 April 2016 Mr King lodged the Applicant’s Application for Australian citizenship by descent at the Australian Embassy in Bangkok.[5] 

   [5] Exhibit R1 p.29.

9. As part of the process of considering the application, an official of the Australian Embassy requested Mr King to provide a DNA report to confirm that he was the Applicant’s father.  Mr King initiated this process on 17 June 2016, but following an argument with an Embassy official, he cancelled the arrangements for the testing three days later.[6]  Since that time he has continuously refused to undergo any such tests.  Ms O has told Mr King that she does not want to take the Applicant to the Embassy for DNA testing.  Mr King says that he does not know why she is reluctant to do this.

   [6] Exhibit A5.

   LEGISLATION

10. Subsection 16(1) of the Australian Citizenship Act 2007 (Cth) provides:

    A person may make an application to the Minister to become an Australian citizen.

11. Subsection 16(2) provides, in part:

    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...

12. Section 17 provides, in part:

    (1)If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    (2)Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

    …

    GOVERNMENT POLICY

13. The Government has issued the Citizenship Policy to support the Australian Citizenship Act and to assist decision-makers with decisions as to citizenship.  It is not binding on decision-makers but should be followed unless there is good reason not to do so.  In this application there is no reason why I should not follow the policy.

14. Chapter 20 of the Policy relevantly provides:

    Biological parent-child relationships

    A decision maker may be satisfied that the parent-child relationship is biological after considering, as a whole, evidence concerning matters such as:

    ·the nature of the relationship between the claimed parents

    ·travel movements for the claimed parents around the date of conception

    ·the applicant’s birth, registration of birth and the chain of custody post-birth

    ·physical similarities between the applicant and claimed parent.

    …

    DNA testing

    In cases where a person applies for Australian citizenship or evidence of citizenship on the grounds that they are the biological child of:

    ·an Australian citizen (for descent) or

    ·an Australian citizen or permanent resident (for birth onshore)

    and the decision maker is not satisfied that the person has such a biological relationship, the decision maker may suggest a DNA test.

    …

    Non-biological parent-child relationships

    Factors to be taken into account

    For citizenship by birth (s12), the parent-child relationship between the Australian citizen or permanent resident and the applicant must have existed at the applicant’s time of birth. 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.

    …

    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 and

    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 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.

    ISSUES

15. The Minister concedes that there is no issue as to the Applicant’s identity and that he is the child of Ms O.  He also concedes that Mr King is an Australian citizen and was so at the time of the Applicant’s birth.  I am satisfied that these concessions are appropriate.

16. The only issue requiring a decision in this application is whether Mr King is the Applicant’s parent.

    CONSIDERATION

    The meaning of parent

17. In H v Minister for Immigration and Citizenship[8] the Full Court of the Federal Court decided that the meaning of the word “parent” in the Australian Citizenship Act is not limited to biological parent.

    [8] [2010] FCAFC 119.

18. The Full Court said in part:

    127.There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the court to conclude that, in the specific context of s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.

    …

    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…

    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…

    Is Mr King the biological father of the Applicant?

19. Mr King has argued that he is the biological father of the Applicant and that his application for citizenship should be granted on this basis.  However, on the evidence before me I am not satisfied that Mr King is the Applicant’s biological father.  It must be understood that I have not determined that Mr King is not the Applicant’s biological father; evidence unavailable to me may establish the genetic link between them.

20. Several factors cause me not to be satisfied of the biological relationship.

21. It appears that the only reason Mr King refused to proceed with DNA testing was his disagreement with an Embassy official as to the manner in which the testing was to be carried out.  It is unfortunate that Mr King decided to take this course as it would have resolved the issue in dispute had the test been positive.  If it had been negative it would still have been open to Mr King to proceed with the application on the Applicant’s behalf.

22. Ms O’s unexplained reluctance to take the Applicant to the Embassy for testing also is a factor I have taken into consideration.  Ms O did provide a brief statement that Mr King is the Applicant’s father.  However she did not give evidence before me and her evidence remains untested.

    Was Mr King the Applicant’s “parent” within the ordinary meaning of that word at the time of the Applicant’s birth?

23. I am satisfied of the facts set out in the following eight paragraphs.  On the basis of these facts I am satisfied that Mr King was a parent of the Applicant at the time of his birth, in June 2015.

24. Mr King has supported Ms O emotionally and financially since she told him that she was pregnant with his child.  Ms O was totally financially dependent on Mr King from January 2015 until a considerable time after she gave birth to the Applicant.  As at 2 March 2017 Mr King was continuing to support Ms O and the Applicant.[9]

    [9] Exhibit A20.

25. From 9 October 2014 until 7 December 2014 Mr King stayed in a hotel in Thailand.  He and Ms O spent almost every day together.[10]

    [10] Exhibit A3.

26. Mr King was in Thailand from 1 March 2015 for a period of 30 days.  During that time he and Ms O shared rented accommodation.  He returned to Thailand on 7 June 2015 and remained there until 5 August 2015. From 7 June 2015 until 28 June 2015 he and Ms O again shared rental accommodation.[11]  Mr King paid for their joint living expenses.[12]

    [11] Exhibit A3.

    [12] Exhibit R1 p.17.

27. During Ms O’s pregnancy Mr King accompanied Ms O on her visits to her obstetrician and for pre-natal scans.  He accompanied her to the Hospital and was at the Hospital when the Applicant was born.  Photographs taken by Mr King show the Applicant on the day he was born.[13]

    [13] Exhibit A22.

28. Mr King paid all the expenses associated with Ms O’s pregnancy, her medical assistance, her hospitalisation and post-natal care.[14]  He also paid for all of the Applicant’s immunisations.[15]  He purchased the Applicant’s clothing, nappies, cot, bedding, bath, towels, pram, toys and milk powder.[16]

    [14] Transcript of Mr King’s evidence on 21 April 2017.

    [15] Exhibit R1 p.17.

    [16] Exhibit R1 p.17.

29. The Applicant’s birth certificate, dated the same day as his birth, records Mr King as his father.[17]  Details of the birth were provided by a Hospital staff member as is the normal practice.  Mr King provided his consent to his name being provided as the Applicant’s father and details of his passport being included on the birth certificate.

    [17] Exhibit R1 p.21. 

30. Since the Applicant’s birth Mr King has represented himself to Ms O’s family as the Applicant’s father.  He took part in a marriage ceremony with Ms O in the presence of her family to allay their concerns of her being an unmarried mother.[18]  However Mr King does not regard himself as married.

    [18] Exhibit A4.

31. Mr King provided photographs which depict him with the Applicant.[19]  Some photographs were taken in the apartment he shared with Ms O shortly after the Applicant’s birth.  Others were taken in an apartment they shared when the Applicant was about six months old and others when he was about 12 months old.

    [19] Exhibit A21.

32. On the basis of the above I am satisfied that Mr King was the Applicant’s parent at the time of his birth.  Mr King’s conduct since the birth supports this conclusion.

    CONCLUSION

33. The decision of the delegate of the Minister made 20 July 2016, refusing the application of the Applicant for Australian citizenship, will be set aside.

34. The matter will be remitted to the Minister for reconsideration in accordance with the direction that the Applicant is eligible to become an Australian citizen as his parent, Warren King, was an Australian citizen at the time of the birth of the Applicant.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 31 August 2017

Date(s) of hearing:	21 April 2017
Date final submissions received:	8 June 2017
Advocate for the Applicant:	Mr W King
Solicitors for the Respondent:	Mr W Sharpe, Minter Ellison

[7] Citizenship Policy pp.214-215.