Wilkinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2122
•6 July 2021
Wilkinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2122 (6 July 2021)
Division:GENERAL DIVISION
File Number: 2020/1533
Re:Michael Wilkinson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:6 July 2021
Place:Sydney
The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application of citizenship by descent – where applicant adopted – whether
parent of the applicant was an Australian citizen at time of birth – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 16, 17
CASES
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 21 – Australian Citizenship by Descent (1 July 2019)
Citizenship Procedural Instruction 22 – Australian Citizenship by Adoption (1 July 2019)
Citizenship Procedural Instruction 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act (24 May 2019)
REASONS FOR DECISION
Dr L Bygrave, Member
6 July 2021
INTRODUCTION
The applicant, Dr Michael Wilkinson, was born in London, United Kingdom. At the age of approximately 11 months he was formally adopted by his parents, Paul and Lavinia Wilkinson, both of whom were Australian citizens residing in the United Kingdom.
On 14 January 2020, Dr Wilkinson applied for Australian citizenship by descent pursuant to section 16 of the Australian Citizenship Act 2007 (Cth) (the Act).
This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 19 February 2020 on the basis that Dr Wilkinson did not satisfy the requirement in paragraph 16(2)(a) of the Act that he had a parent who was an Australian citizen at the time of his birth.
On 17 March 2020, Dr Wilkinson applied for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The application was heard by the Tribunal on 24 June 2021. Dr Wilkinson attended the hearing and provided evidence by videoconference from the United Kingdom.
RELEVANT LEGISLATION
Subsection 16(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 17(1) of the Act:
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.
Relevant to this application, subsection 16(2) of the Act states:
(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…
Australian Citizenship [Policy Statement]
The Australian Citizenship [Policy Statement] (the Policy Statement) was issued on 27 November 2020 and outlines the overarching legislative requirements for the process of becoming an Australian citizen. The Policy Statement also provides context for the relevant Citizenship Procedural Instructions (CPIs) when making decisions under the Act.
Although I am not bound to strictly apply the Policy Statement and CPIs, these comprise government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]
[1] [1979] AATA 179; (1979) 2 ALD 634.
Relevant to this matter are CPI 21 – Australian Citizenship by Descent (CPI 21), CPI 22 – Australian Citizenship by Adoption (CPI 22), and CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act (CPI 23).
CPI 21 – Australian Citizenship by Descent
CPI 21 identifies the legal requirements, and related policy and procedures relevant to the consideration of Australian citizenship by descent. This includes establishing whether a parent met the legal requirements at the time of the child’s birth.
CPI 21 states the following in relation to children born outside Australia and adopted:
A child adopted by an Australian citizen parent is not eligible to become an Australian citizen by descent through their adoptive parent. Refer to Citizenship Instruction 22 – Australian Citizenship by Adoption for more information.[2]
[2] CPI 21 – Australian Citizenship by Descent, 1 July 2019, part 3.3.
CPI 22 – Australian Citizenship by Adoption
CPI 22 provides guidance on assessing whether a person can become an Australian citizen by adoption under sections 13 and 19C of the Act.
Australian citizenship by adoption under section 13 of the Act applies only to people adopted in Australia on or after 22 November 1984. Citizenship by adoption under section 19C of the Act relates to persons adopted in accordance with the Hague Adoption Convention: CPI 22 states that:
The Hague Adoption Convention was ratified by Australia on 1 December 1998. Australian citizenship under these provisions is therefore only available for children adopted under the Hague Adoption Convention on or after 1 December 1998.[3]
[3] CPI 22 – Australian citizenship by Adoption, 1 July 2019, part 3.3.
CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act
CPI 23 sets out the legal requirements, and related policy and procedures that apply to the assessment of a parent-child relationship as part of an application for Australian citizenship under the Act.
The meaning of ‘parent’ is not defined in the Act. However, CPI 23 provides the following guidance:
Up until 2010, citizenship by descent was limited under the Act to biological children. Following the decision of the Full Federal Court (FFC) in H v Minister for Immigration and Citizenship [2010] FCAFC 119 (H case) on 15 September 2010, citizenship by descent can also be accessed by non-biological children in circumstances where a parent-child relationship existed at the time of the child’s birth. Therefore, the term ‘parent’ where used elsewhere in the Act including citizenship by birth, also includes non-biological parentage.
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.[4] [emphasis added]
[4] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.2.
CPI 23 also sets out the evidence required to show the claimed parent-child relationship existed at the time of the applicant’s birth:
For citizenship by birth or descent, the parent-child relationship must have existed at the time of the applicant’s birth…
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.[5] [emphasis added]
[5] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.4
CONSIDERATION
The sole issue for determination is whether I can be satisfied Mr Wilkinson is eligible to become an Australian citizen pursuant to the requirements in paragraph 16(2)(a) of the Act.
The facts of this matter, as set out below, are not in dispute:
·Dr Wilkinson’s birth certificate shows he was born in London, United Kingdom.[6]
·Dr Wilkinson’s biological mother formally gave him up for adoption to the National Children Adoption Association in the United Kingdom when he was about four months old.[7]
·A certified copy of an entry given at the General Register Office in London United Kingdom shows Dr Wilkinson was formally adopted by Paul Wilkinson and Lavinia Wilkinson when he was approximately 11 months old.[8]
·Dr Wilkinson has provided written statements, documentary evidence and oral evidence that shows his adoptive father, Paul Wilkinson, was born in 1923 in Sydney, Australia. Paul Wilkinson joined the Royal Australian Air Force and provided outstanding service during the Second World War. After being discharged at the end of the war, he studied dentistry at the University of Sydney and became a dental surgeon.
·Dr Wilkinson has provided written statements, documentary evidence and oral evidence that shows his adoptive mother, Lavinia Wilkinson, was born in 1920 in Sydney, Australia.
·Paul and Lavinia Wilkinson married in 1950 and went to the United Kingdom to live in 1951. They were unable to have children and adopted three children in accordance with the laws of the United Kingdom. Dr Wilkinson is the eldest of their children. His younger brother obtained Australian citizenship in 1984 pursuant to the (then applicable) provisions of sections 11 and 14 of the Act.[9]
·As at the relevant time of Dr Wilkinson’s birth in 1959, both Paul and Lavinia Wilkinson were Australian citizens. They both maintained Australian passports and remained Australian citizens their entire lives.
[6] Exhibit T-T4, page 67.
[7] Exhibit T-T4, page 80.
[8] Exhibit T-T1, page 10.
[9] Exhibits A2, R2, R3 and R4.
At the Tribunal hearing, Mr Wilkinson provided oral submissions in which he referred to the Adoption of Children Act 1949 (United Kingdom) and the Adoption Act 2000 (New South Wales), and contended that an adopted child should have equal rights to a biological child. In particular, he noted that, if his adoptive parents had a biological child in 1958, that child would be eligible for Australian citizenship by descent in accordance with section 16 of the Act.
In addition to the provisions of the Act and the CPIs, I have regard to the decision by the Full Federal Court in H v Minister for Immigration and Citizenship (H v Minister), which is the leading authority on the meaning of ‘parent’ in the Act. The Full Court concluded:
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.[10] [emphasis added]
[10] [2010] FCAFC 119 at [127].
Relevantly, the Full Court also observed in relation to the construction of subsection 16(2) of the Act:
Having regard to the legislative history of s 16…, 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.[11] [emphasis added]
[11] [2010] FCAFC 119 at [70].
The construction of paragraph 16(2)(a) of the Act has been recently considered by the Full Federal Court in Koka vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In considering whether Mr Koka (who was adopted by an Australian citizen in Albania, under Albanian law, when he was 13 years old) was eligible for Australian citizenship by descent, their Honours stated:
The primary judge is correct to observe at [51] of his reasons that s 16(2)(a) is not concerned with the operation of law, or any deeming effect of adoption laws, but with the factual situation that exists at the time a child is born.
We are prepared to accept it was open to the Tribunal to find that as a matter of Albanian law (evidenced by the Albanian Court order and the birth certificate) that a person was deemed to be the parent of a child she or he has adopted, as from the birth of that child. The Minister did not challenge these findings in his notice of appeal under s 44, but rather challenged the Tribunal’s construction of s 16(2)(a) as incorporating these circumstances.
Even accepting those findings, 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…[12] [emphasis added]
[12] [2021] FCAFC 82 at [33] to [35].
For completeness, the primary judge in this matter, Moshinsky J stated at [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. There is no indication in the text of the provision or the statutory context or purpose that these requirements can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. The statutory context includes, in s 13 and Pt 2, Div 2, Subdiv AA, specific provisions relating to the acquisition of Australian citizenship in circumstances of adoption. While the presence of those provisions should not lead to a narrower construction of s 16(2), their presence makes clear that s 16(2) is not directed at an adoption situation.[13] [emphasis added]
[13] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471 at [51].
The undisputed evidence is that Dr Wilkinson was born outside Australia after 26 January 1949. He was adopted by his parents – who were Australian citizens at the time of his birth – when he was 11 months old. There is no evidence that Dr Wilkinson’s adoptive parents had any relationship with either him or his biological mother at the time of his birth. There is also no evidence that his biological mother was an Australian citizen.
The construction of subsection 16(2) of the Act, which sets out the requirements for a person to obtain Australian citizenship by descent, requires me to determine a factual question: whether, at the time Dr Wilkinson was born, he had a parent (consistent with the meaning in H v Minister) who was an Australian citizen. Unfortunately for Dr Wilkinson, I find that he did not have a parent who was an Australian citizen at the time of his birth.
I am satisfied that this finding is consistent with the policy guidance contained in the CPIs. I note CPI 21 explicitly states that ‘a child adopted by an Australian citizen parent is not eligible to become an Australian citizen by descent through their adoptive parent’. Unfortunately, the provisions in CPI 22 for obtaining Australian citizenship by adoption, which reference sections 13 and 19C of the Act, are not applicable to Dr Wilkinson’s circumstances. CPI 23 also sets out that for ‘citizenship by birth or descent, the parent-child relationship must have existed at the time of the applicant’s birth’.
CONCLUSION
For the reasons above, I am satisfied that Dr Wilkinson does not meet the requirements for Australian citizenship by descent in accordance with section 16 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 06 July 2021
Date(s) of hearing: 24 June 2021 Applicant: Self-represented Solicitors for the Respondent: Ms D Stone, Sparke Helmore
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