VDQS and Minister for Immigration and Border Protection (Citizenship)

This matter concerned an application for Australian citizenship by descent made by a two-year-old applicant, represented by Mr Warren King, who claimed to be his father. The applicant was born in Thailand to a Thai mother. Mr King had a regular travel history between Australia and Thailand and had a period of sexual intercourse with the applicant's mother during the likely period of conception. He provided financial support to the mother during her pregnancy and after the applicant's birth, and paid for the birth expenses. The application for citizenship was lodged at the Australian Embassy in Bangkok, which requested DNA testing to confirm paternity. Mr King initiated this process but subsequently cancelled it following a disagreement with an Embassy official, and has since refused to undergo any DNA testing.

The central legal issue before the court was whether Mr King qualified as the applicant's "parent" for the purposes of section 16(2)(a) of the *Australian Citizenship Act 2007* (Cth), which requires a parent to have been an Australian citizen at the time of the applicant's birth. The court was required to determine the meaning of "parent" in this context and whether Mr King's relationship with the applicant met that definition, notwithstanding his refusal to provide DNA evidence to confirm biological paternity.

The court applied the Full Court of the Federal Court's decision in *H v Minister for Immigration and Citizenship*, which established that the term "parent" in the *Australian Citizenship Act* is not limited to a biological parent. Instead, it should be interpreted according to its ordinary contemporary English usage. The court held that determining whether a person qualifies as a parent involves a question of fact, requiring consideration of the individual's conduct before, at the time of, and after the birth. While Mr King's biological paternity could not be definitively established due to his refusal to undergo DNA testing, the court was satisfied, based on his conduct, that he was the applicant's parent at the time of birth. This included his acceptance of paternity, financial support provided to the mother and child, and his actions in lodging the citizenship application.

Consequently, the court set aside the delegate of the Minister's decision of 20 July 2016, which had refused the applicant's application for Australian citizenship. The matter was remitted to the Minister for reconsideration, with the direction that the applicant was eligible to become an Australian citizen as Mr King, an Australian citizen, was considered his parent at the time of his birth.