WVZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 1920
•24 June 2020
WVZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1920 (24 June 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4796
Re:WVZN
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:24 June 2020
Place:Brisbane
The Tribunal affirms the decision under review.
........................[SGD]...............................
Senior Member T. Tavoularis
Catchwords
CITIZENSHIP – Citizenship by Descent – Citizenship Act 2007 (Cth) – Born Outside Australia - Biological Parent Child Relationship - Non Biological Parent Child Relationship – Evidence Required to Prove Non Biological Parent Child Relationship – Insufficient Evidence Provided – Decision Affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ARL 577
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Secondary Materials
Australian Citizenship Policy
World Bank Group, Government Effectiveness Indicators
REASONS FOR DECISION
Senior Member T. Tavoularis
24 June 2020
WVZN, (”the Applicant”)[1] was born in the Philippines on 20 March 2010. Through his representative, Mr Donald Perera (A.K.A. Jerry Perera), the Applicant seeks review of the decision of a delegate of the Minister for Home Affairs[2] (“the Respondent”) made on
10 August 2018 to refuse the Applicant’s Application for Australian Citizenship by descent under the Australian Citizenship Act 2007 (Cth) (“the Act”).[3]
[1] The real name of the Applicant was suppressed at the Senior Member’s discretion because he is a minor.
[2] Now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
[3] Note: for the purposes of clarity and ease of reference in these Reasons, “the Applicant” refers to the infant child born in the Philippines on 20 March 2010. The adult who made the relevant application on behalf of the Applicant will be referred to as “Mr Perera”.
BACKGROUND
Mr Donald Perera (“Mr Perera”) was born in Sri Lanka on 4 April 1948 and became an Australian citizen in 1979. He lodged the initial abovementioned application on behalf of the Applicant minor.[4] 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.[5]
[4] See Exhibit 8, T Documents, T4, pp 60-69.
[5] See Exhibit 3, T documents, T8, pp 118-119.
The Applicant is a 10 year old child currently residing in the Philippines.[6] On
19 January 2018, Mr Perera, on behalf of the Applicant, lodged an Application for Australian Citizenship by descent naming himself as the Australian citizen father of the Applicant.[7]
[6] Exhibit 6, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [5].
[7] Exhibit 8, s37 T Documents, T4, pages 60-69.
The Application and supporting material was reviewed and processed by the Respondent,[8] whose delegate then wrote to Mr Perera (on 23 January 2018) 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 (20 March 2010).
[8] See Ibid, T5, pages 76-77.
Specifically, on 23 January 2018, a delegate of the Respondent wrote to Mr Perera suggesting that he and the Applicant undergo DNA testing. On 28 May 2018, Mr Perera replied, saying:
Dear [name redacted]
Thank you for your email which I received last week in response to my application to register my son [the Applicant] as an Australian Citizen. As I explained in a previous email I am unable to afford a DNA testing for both myself and my son so I appeal to you to seek to have you base this application on the option two given in your email of the 13th March where you suggested that I could apply for [the Applicant’s] citizenship in two ways and I quote your email…
‘Before I can approve [the Applicant] becoming an Australian citizen, I must:
Be satisfied that you [sic] his biological father; or
Be satisfied that you meet non-biological parent-child relationship criteria’
I would therefore like you to consider my application under the second category that there is a non biological parent-child relationship between my son [the Applicant] and myself.[9]
[9] Ibid, T17, page 286.
The Respondent considered the totality of the material received from Mr Perera and, on
10 August 2018, 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 Perera and the Applicant at the time of the Applicant’s birth, such as to meet the provisions of section 16(2) of the Act.
The Respondent reviewed the material it received from Mr Perera and made these findings:
…
I will assess each point in turn.
I am satisfied that you signed the applicant’s birth certificate as part of the birth registration process. However, I am not satisfied that the document is conclusive evidence of the Applicant’s paternity.
Secondly, you have provided money transfer receipts that indicate you as the sender and the applicant’s mother as the beneficiary. However, these various receipts are dated 2012 and 2016 to 2018, inclusive. However, as you state in your email, you cannot locate earlier receipts. Therefore, despite your claims to have financially supported the Applicant’s mother during her pregnancy, without evidence I am unable to place any weight on your claim.
Thirdly, in relation to acknowledgement of the Applicant as your child from or before birth, you stated that the Applicant’s mother’s ‘close cousin’, Juliet, wrote to you stating that Alma was pregnant to ‘another man whom Alma had been dating’. You also wrote that this was the ‘status quo at the time’ and that you were ‘content to be [the Applicant’s] surrogate father til about 3 years ago’ until his GP remarked that he ‘looked more like me than his mother’ and ‘the more I thought about it the more convinced I was the father rather than the American’. For the purposes of assessing non-biological parent-child relationship criteria, the claimed Australian citizen parent would need to recognise the child as their own from or before birth, not some time after the child’s birth. In my decision, I place significant weight on your delay in claiming a relationship with the applicant.
You have also provided photographs of yourself, the applicant and the applicant’s mother but they were all taken long after the birth of the child. Therefore, they do not provide evidence of the claimed non-biological parent-child relationship when the applicant was born.
Therefore, I am not satisfied that this application meets the criteria of a non-biological parent-child relationship.
No evidence has been provided to indicate that the applicant’s mother, Alma Colarat PAMA, is or has ever been an Australia citizen.
Therefore, I am not satisfied that the applicant had a parent who was an Australian citizen when she [sic] was born.[10]
[10] Ibid, T2, page 19.
Ultimately, the delegate of the Respondent said:
I have considered the application against the requirements set out in subsection 16(2) of the Act. I have decided to refuse your child’s application to become an Australian citizen by descent because:
at the time of the applicant’s birth he did not have a parent who was an Australian citizen.[11]
[11] Ibid, T2, page 21.
The Applicant then lodged an Application for Review of the delegate’s decision with this Tribunal on 27 August 2018.
ISSUE FOR DETERMINATION
The parties concur that the issue for determination by the Tribunal involves the question of whether the Applicant is eligible for Australia citizenship by descent pursuant to the provisions of section 16(2) of the Act. At a fundamental level, determination of this issue involves a finding as to whether the correct or preferable decision for the instant application is that Mr Perera 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 order to properly define the concept of a ’parent’ as part of the process of determining whether the requirements of section 16(2) of the Act have been met. Stated briefly, the concept of a ’parent’ for the purposes of the Act contemplates not only a strictly biological connection, but can also confer parental status to non-biological Australian citizen parents of a citizenship applicant child.
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 the assessment of evidence necessary to be taken into account and considered for the purposes of demonstrating a parent-child relationship in circumstances where there is insufficient evidence of a biological connection. I note the non-legislative character of the ACP but that it should only be departed from when there is cogent reason to do so.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ARL 577
As will be noted from the material filed by Mr Perera throughout the entirety of this matter, he initially propounded a biological link between himself and the Applicant. As this matter evolved, Mr Perera either withdrew or otherwise became conditional about any such biological link. As I understood the totality of his evidence, Mr Perera sought to primarily focus on his fatherly feelings towards the Applicant and that those feelings were valid and current, regardless of any biological connection between the two of them. I will deal with both the credibility and relative weight attributable to Mr Perera’s evidence (and those of witnesses who gave evidence at the hearing) later in these Reasons.
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. As alluded to in the immediately preceding paragraph, this is precisely what was pressed on the Tribunal by Mr Perera following his assumption of an equivocal position about any biological link between him and the Applicant.
Also relevant for present purposes, the ACP speaks, in plain and clear terms, about the following things:[13]
(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)a 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.
[13] Australian Citizenship Policy, Chapter 20, pp. 213-215.
In terms of factors to be taken into account, the ACP provides that:
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. [14]
The definition of ‘parent’ for the purposes of the Act
[14] 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.[15]
[15] 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 Full Court’s findings 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 s16 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 section 16 of the Act to mandate a contemporaneous intersection between the birth of an Applicant child and that child 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 Perera. This does not necessarily rely on the basis of biology, but rather on the basis of an identifiable ‘intense commitment’ by Mr Perera towards the Applicant ‘expressed by acknowledging [the Applicant] as [his] own and treating [the Applicant] … as his own.’ [16]
[16] See H v Minister for Immigration and Citizenship [2010] FCAFC 119 at [129].
CONSIDERATION
The hearing of the instant application proceeded before me on 11 March and 3 June 2019. The hearing received oral evidence from: (1) Mr Perera; (2) Mr Perera’s wife (Sasina Perera); and (3) the Applicant’s mother (Alma Pama). The Tribunal also received written evidence. This written evidence was particularised into an agreed exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
Mr Perera’s Evidence in Chief
Mr Perera has filed two written submissions in support of his contended position in this matter. The first document comprises Exhibit 1. It consists of a statement by him with seven relevant attachments. The seven attachments comprise: (1) a statement from the abovementioned Ms Alma C Pama (undated); (2) a statement from Ms Eden Almeniana (sworn 8 November 2018); (3) a statement from Mr Jackie Colerat Eviota (undated); (4) copies of stamped pages of Mr Perera’s passport; (5) the sworn statement of Manuel Pedro Marques (sworn 16 November 2018); (6) the sworn statement of Juliet Olarte (sworn 29 November 2018); and (7) the statutory declaration of Mr Perera’s wife, Mrs Sasina Perera, made on 30 November 2018.
The second document relied upon by Mr Perera comprises Exhibit 5. In this undated document, Mr Perera responds to the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), dated 11 February 2019.
At the hearing, I asked him whether there were any further details he wished to orally add to the written submissions already filed. He spoke of making his old passport available in an effort to demonstrate to the Tribunal ‘that it’s just not a passport of somebody who goes on his annual vacation, you know, there’s almost 35 pages of stamps from countries all over South East Asia and Africa.’[17]
[17] Transcript, 11 March 2019, page 17, lines 7-10.
Mr Perera said the subject passport:
…is part of my defence. Because what I stated earlier was that my job as manager of a company called Head Camp(?) Holdings Australia Proprietary Limited, was to visit gold mines in South East Asia, in Africa, and in New Zealand and the Pacific and market a product called activated carbon which is used in the gold process. Now, that was my job and I also travel extensively around Australia doing that. Which meant, obviously, my commitment in terms of time was quite acute and I didn’t have the luxury of being able to visit Alma for [the Applicant’s] birth.[18]
[18] Ibid, lines 12-19.
On the specific issue of whether he was present for the Applicant’s birth, Mr Perera said:
So, effectively, what I’d like to say that my job was such that I couldn’t be at [the Applicant’s] birth. I did point that out to Alma.[19] I did contact them over the phone. I did not visit Alma until probably about when [the Applicant] was about four, five months old. And at that time she was still fairly sick in terms of her caesarean hadn’t healed. [The Applicant] was a premature child. He was under medical care. So it wasn’t the right time at that stage to do the birth certificate, even though I had suggested she does it.[20]
[19] That is, the previously mentioned Ms Alma C Pama, who was a witness at the hearing.
[20] Transcript, 11 March 2019, page 17, lines 27-33.
Mr Perera made reference to the timing of his signing of the relevant birth certificate relating to the Applicant’s birth. On that specific issue, he said:
So the next time I came, which was in February 2011, she went ahead and got everything done. The people - the registrar at Parañaque, I think it was, said that they would hold the birth certificate until I arrived. And when I arrived, I signed it. Now I need - I needed that point proven because the Minister had accused me or pointed out that how could I have signed it when I was not in the Philippines at that time. This was why this situation occurred. I did not have the - I wasn’t physically present when Alma took the document and got it signed, so the registrar held onto it and I signed it when I arrived. That was that point.
The evidence also referenced apparent material support provided by Mr Perera to the Applicant and to Ms Pama, both in the distant and recent past. In terms of being in a position to properly demonstrate the payment and application of those funds from him to them, Mr Perera spoke of the loss of most, if not all, of the relevant financial/transactional records evidencing his payment of those funds to them at the time either immediately before, contemporaneous with or shortly after the Applicant’s birth:
And the final point is that I did spend a lot of money on her confinement, on prenatal care, on postnatal care, for her caesarean and when I went to ask for the records, I was told - or she was told, Alma went and asked for the records - that they would only release them on a court order. That’s why we couldn’t get them from the hospital where she was born. We went to the gynaecologist who had seen her when she was pregnant and, unfortunately, there had been a massive storm or what they call a typhoon, and all the records were not – not computerised, but written, and they’d all been washed away and destroyed. So, not washed away, they were just wet and they were destroyed. So we couldn’t get those either.[21]
[21] Ibid, page 17, lines 45-47, and page 18, lines 1-7.
Mr Perera sought to overcome this significant shortfall in his evidence by purporting to suggest that he was known to Ms Pama’s family or close circle of friends. Despite producing no evidence from any competent financial institution and/or any statement from the relevant gynaecologist and/or hospital that could confirm that relevant fees had in fact been paid by Mr Perera, he contended that:
But I have witnesses who have seen me in the Philippines at that time. The money I transferred - initially I transferred when to Alma’s cousin Juliette, I transferred it Western Union because she didn’t have a bank account. When I - when Alma and [the Applicant] were young, or when [the Applicant] was very young, she moved out of the house and she stayed with on her own and at that time I sent up a bank account for her and for about six months she used it, but the bank needed a minimum amount and she wasn’t used to maintaining a minimum amount in the account, so eventually they closed that down and she continued thereafter to receive money from me, every month, through Western Union and subsequently WorldRemit, which is another money transfer organisation.[22]
[22] Ibid, page 18, lines 9-18.
According to his evidence, Mr Perera’s material support has been relatively substantial and consists of:
I have supported them from day one, when Alma was pregnant up until now. I still send an allowance for her and for [the Applicant’s] education. When I was working I was able to afford to buy them a small property and a very small house for them, and they’re living on that house.[23]
[23] Ibid, lines 20-24.
In terms of explaining the attitude of his wife to the arrangement involving Mr Perera, the Applicant and the Applicant’s mother, Mr Perera said:
I would like to add that my wife, Sasina, is totally aware of everything that has happened and she supports me 100 per cent in what I am doing right now, and what I have done.[24]
[24] Ibid, lines 25-27.
The Cross-Examination of Mr Perera
In cross-examination, Mr Perera agreed that he was not present at the Applicant’s birth because he was ‘busy working…’[25] In terms of a reason for not being available for the birth, Mr Perera said that:
When [the Applicant] was born I was in Australia, but I think - look, even though I was in Australia, being the manager of this company, I was not free to travel whenever I - whenever I had the fancy to travel. In fact, I don’t think in those 15 years - sorry, 20-odd years that I’ve worked with that company, I’ve had anything more than about a two week holiday. I just kept on working. And when I went overseas on work, I sometimes would take an extra few days to have a break. So, to answer your question, I was in Melbourne, I think, when [the Applicant] was born.[26]
[25] Ibid, line 41.
[26] Ibid, lines 43-47, and page 19, lines 1-3.
Mr Perera was taken to a specific document in the T Documents. It comprised his email to the citizenship authorities in Australia, in which he sought to explain his delay in meeting up with the newborn Applicant. In this particular letter, Mr Perera told the citizenship authorities that:
I did visit [the Applicant] a few months after he was born and it was at that time when we decided that he should have his birth registered as his mum did not know what to do before that time! I agreed that my name should appear on his birth certificate and actually signed the document at the time of registering [the Applicant’s] birth, even though it was delayed by a few months.[27]
[27] Exhibit 8, s37 T Documents, T17, page 286.
Mr Perera sought to explain the reality that he did not, in fact, sign any document relating to the Applicant’s birth shortly after the Applicant was born (in March 2010), but that he in fact signed it almost a year later in February 2011:
MR PERERA: Yes. Now, if I can answer that. I have to apologise, that was my memory that was - I’m 71 years old mate, I do have often lapses in memory, and it was corrected, not by Alma, but by my wife subsequently. But I did make an error. I did not sign it before - at the time when Alma was - when I first visited Alma after [the Applicant] was born - but I signed it in February 2011 when I visited Alma and she took me straight to the office of the registrar who had held onto the documents after she signed them, and got me to sign them. That is why there was a date that was preceding the date I arrived in - in the Philippines and you questioned me on that in one of your communications.
MR HE:[28] So was - at that time, was that when you agreed to be [the Applicant’s] father?
MR PERERA: No, I agreed long before then. When I started giving money to Juliette for Alma’s expenses - prenatal expenses - Juliette suggested, said look you care for them so much, why don’t you be his father. And I said that’s a real lovely idea. Yes I’ll do it.[29]
[28] Mr Zeng He, Senior Associate, Messrs Clayton Utz, Solicitors for the Respondent.
[29] Transcript, 11 March 2019, page 19, lines 21-36.
On the basis of that evidence, Mr Perera was then taken to another specific document in the material. The document comprised the affidavit of the aforementioned Juliet Azote Olarte. In her affidavit, Ms Olarte deposes to the following:
Soon after the boy was born in consultation with Jerry[30], we gave him the name of [name of Applicant redacted]. It was then that Jerry agreed to continue to support [the Applicant] in the long term and care for all his needs and be his legal Father.[31]
[My emphasis]
[30] That is, Mr Perera.
[31] Exhibit 8, s37 T Documents, T12, page 105.
He was asked about why Ms Olarte used the term ‘legal Father’ in her statement, and Mr Perera said she had used that term ‘Because I wanted to be his lawful father…And that’s why I wanted to sign his birth certificate so that I could then, if nowhere else, in Philippine law I would be his father.’[32]
[32] Transcript, 11 March 2019, page 20, lines 15-19.
To my mind, one of the critical difficulties with Mr Perera’s evidence arose not just from (1) his absence from the birth of the Applicant (in March 2010) and (2) the reality that he only met the Applicant almost a year after his birth in February 2011, but also because the relevant movement records confirm that he was in the Philippines on at least one other occasion between March 2010 and February 2011, but did not trouble himself to go and see the Applicant, for whom he wanted to apparently act as his ‘legal Father’. It transpired from Mr Perera’s evidence that he had travelled to the Philippines in August 2009, January 2010, May 2010, August 2011 and March 2012.[33] Despite these relatively consistent trips to the Philippines, it nevertheless took Mr Perera almost one full year to meet the newborn child for whom he wanted to be the ‘legal Father’.
[33] Ibid, page 20, lines 44-45, and page 21, lines 1-12.
He was then taken to the relevant movement records.[34] In responding to questions about those movement records, some significant inconsistencies in Mr Perera’s evidence began to emerge. This is what transpired during the cross-examination:
[34] Exhibit 7, Movement Details, dated 22 October 2018.
MR HE: I’m just trying to establish whether you were in the Philippines prior to 2011, and after [the Applicant’s] birth?
MR PERERA: Yes, I was. Yes, I was.
MR HE: But you had not met [the Applicant] though?
MR PERERA: No, no, I did meet [the Applicant] then. I think it was in 2010, he was born in March. 2012, 2011, May 2010.
MR HE: I can see that, in the stamps that you’ve provided in your passport?
MR PERERA: M’mm.
MR HE: It seems to suggest that you departed the Philippines on 8 May 2010?
MR PERERA: 16 January 2010, 8 May 2010.
MR HE: That’s right?
MR PERERA: Oh yes. Yes, yes, yes. I arrived on 1 May 2010.
MR HE: And so did - well did you see [the Applicant] when you visited the Philippines in May 2010?
MR PERERA: Definitely, yes.[35]
[My emphasis]
[35] Transcript, 11 March 2019, page 20, lines 44-45, and page 21, lines 1-12.
This evidence is squarely at odds with Mr Perera’s earlier evidence that the first time he met the Applicant was in February 2011, at which time he also apparently signed the relevant birth certificate. Mr Perera sought to explain this discrepancy in his evidence on the basis of sub-standard record keeping practices in the Philippines and the apparent lack of administrative sophistication on the part of the Applicant’s biological mother (Ms Pama) in attending to such matters, as well as her apparent health maladies:
MR HE: And can I just ask, why was the birth certificate when you arrived in the Philippines?
MR PERERA: Well the point is, you’ve got to put it into the right context. Alma is a person who has - well she - she comes from a village. Her primary, if you like, motivation is survival. She would like - she was always focused on looking after herself, healing herself and healing her son. Her son was prematurely born. She didn’t bother about birth certificate. I have told her numerous times that she had to get the birth certificate organised. But she wasn’t really interested at that time. She was more concerned about [the Applicant] who was born prematurely. He was a very slow beginner. He didn’t develop correctly for the first few years. And he was very - she had problems - number one she maybe suffering from hyperthyroidism. She didn’t have breast milk, she couldn’t breastfeed her child. She was having health problems. Caesarean cut wasn’t healing. [The Applicant] wasn’t too good. Those were her primary, you know - her primary focus was on looking after herself. She didn’t really worry about her birth certificate at that stage - or [the Applicant]’s birth certificate. Unlike in the Australian hospitals where the hospital encourages you and helps you with the birth certificate, in the Philippines you have to go and get your documents done in a different department from the hospital. The hospital will just send the documents across to the - or give the birth document to the mother. Then the mother has to go to a different department and get it done.
MR HE: So in ‑ ‑ ‑ ?
MR PERERA: She was in no state to have gone and done it at that time. I agreed with.
MR HE: If she was, did you want to register the birth certificate?
MR PERERA: I told her she should. But when I went there and she told me she hadn’t done it, I accepted it at that time.” [36]
[36] Ibid, page 21, lines 14-41.
Mr Perera was then taken to the document purporting to be the Applicant’s birth certificate in the Philippines.[37] He acknowledged that at the top of the second page of this document, he has signed this document intending it to be an ‘affidavit of acknowledgment/admission of paternity’. This is at odds with his later concession of no longer propounding any claim to being the biological father of the Applicant. He further agreed that the relevant birth certificate purports to be ‘subscribed and sworn to before me this 17th day of January, 2011.’ He acknowledged the difficulty that arose from this date on the birth certificate – that is, that he was not actually physically present in the Philippines on 17 January 2011. His purported explanation of this inconsistency in his evidence was not convincing and evasive:
MR HE: And that document has been sworn on 17 January 2011?
MR PERERA: Yes.
MR HE: But the movement records - and you’ve also acknowledged in your statements, that you were not physically present?
MR PERERA: Yes.
MR HE: When this Affidavit was signed and sworn?
MR PERERA: Yes.
MR HE: So if that’s the case, how - how was this document sworn if you were not physically present before the person?
MR PERERA: I think that question to be asked of the person who made the swearing, not of me. Look, these things happen in the Philippines. It’s a developing country. There’s a lot of anomalies like this that happen.[38]
[37] Exhibit 8, s37 T Documents, T4, pages 72-73.
[38] Transcript, 11 March 2019, page 22, lines 4-15.
This part of Mr Perera’s cross-examination then evolved into how the document has actually been sworn. He was reminded of the immediately preceding inconsistency in his evidence such that the document purports to have been sworn or made before a witness in the Philippines on 17 January 2011, yet Mr Perera was not in the Philippines on that date. He was asked to explain how the document was, in fact, sworn. This is what transpired:
MR HE: Can you explain to us how this document was sworn?
MR PERERA: The document was sworn by, when I arrived I was taken to the - in the office at Parañaque. And the document had been held by the officer who signed it, who acknowledged our signature and he asked me to sign, acknowledging that I was the father - which I did - and he then gave the document to Alma. At that stage, I did not even look at the date. I just took the document, because I had just arrived the previous night and I was pretty tired. So I just signed the document and it was given to Alma.
MR HE: So when you signed the document, was this - was the Affidavit already sworn? Do you recall seeing that particular (indistinct) ‑ ‑ ‑ ?
MR PERERA: It might have been sworn. I can’t remember. I think he hadn’t signed it, but he had filled everything else in.
MR HE: When do you remember signing this affidavit?
MR PERERA: On the day after I arrived in the Philippines. So, when was that? In February some time? I arrived on 6 February, so it’s probably the 7 February - hang on, I arrived on 6 February, departed 17 January. It was sometime in February though. I’ve got here, “departed 17 January 2011”. Yes, I arrived on 6 February 2011, so it would have been on 7 February 2011.[39]
[39] Ibid, lines 29-46, and page 23, lines 1-2.
A further difficulty with Mr Perera’s evidence around the signing of the purported birth certificate is that it appears to contradict that of the Applicant’s biological mother, Ms Pama. He was taken to Ms Pama’s statement[40] and, in particular, to the paragraph that says the following:
When I finally filled up the forms in January 2011 when jerry was planning to come back we decided to Submit the document for registration. I signed on the 17th January ad [sic] Jerry signed when he arrived in February, after the Notary sighted his passport. Jerry signed the document about the 23rd February. The Notary help [sic] the docs with him til Jerry arrived and after he signed we received the Birth certificate along with the stat dec giving reason for the delay in registering the Birth.
[40] See Exhibit 4.
After initially agreeing that he recalled the Notary Public sighting his passport as part of the signing of the birth certificate, Mr Perera was less than convincing in terms of explaining the discrepancy between his evidence and that of Ms Pama in terms of the date he apparently signed the birth certificate:
MR HE: Do you remember a notary sighting your passport?
MR PERERA: Yes.
MR HE: “And Jerry signed the document about the 23 February”. Do you remember that?
MR PERERA: Well, that’s what I just mentioned to you. I said, when I arrived, I have an entry into the Philippines on 6 February, so I would say this is 7 February. She’s got her dates a little bit mixed up. But it was 7 February when I signed. I arrived on 6 February. If you - I can - how can I - - -
MR HE: That’s okay, Mr Perera, I think you’ve provided stamps of your passport. What I’m just trying to establish is on what day you had signed this affidavit and it seems as though, from your evidence, you’re saying you did it on 7 February, the day after you arrived in the Philippines?
MR PERERA: Yes, yes.
MR HE: Which is different to Ms Alma Pama’s statement, which says that you had signed it on 23 February?
MR PERERA: Look, she has probably got the dates mixed up, but I’m going according to my passport, because I arrived and I signed the documents the day after I arrived.
MR HE: The statement also says: ‘The notary held the docs with him until Jerry arrived and after he signed, we received the birth certificate, along with the stat dec giving reason for the delay in registering the birth certificate.’?
MR PERERA: Yes.[41]
[41] Transcript, 11 March 2019, page 23, lines 20-44.
I have misgivings about the veracity of Mr Perera’s explanation of the discrepancy between the date Ms Pama says he signed the birth certificate, compared to the date that Mr Perera says he signed the birth certificate. It is not sufficient, for present purposes, for him to purport to explain away this discrepancy on the basis that Ms Pama ‘…has probably got the dates mixed up…’ A further element of difficulty arises from the involvement of a third party in this process – that is, the Notary Public. I find it difficult to accept that a document of such critical importance as a birth certificate could be allowed – by a Notary Public - to be so tardily signed and completed. I do not accept that this can be explained away on the basis of some kind of lack of sophistication or absence of the observance of proper process in the completion of such documents in the Philippines. This birth certificate purports to document the existence of a human being, not a chattel. Accuracy as to its circumstances of creation, execution and registration is the least that should be expected of those involved in this process.[42]
[42] Note: the World Bank Group categorises states by government effectiveness and efficiency which includes indicators such as corruption levels and administrative procedures. The Philippines has ranked above the global average in this system since 2006. Source: World Bank Group, ‘Government Effectiveness’, Gov Data 360 (Website, 31 December 2018) Philippines <
The purported birth certificate also contains a portion dealing with delayed registration of a given birth. It is titled ‘Affidavit for Delayed Registration of Birth’. Mr Perera was taken to this portion of the document. He had no explanation as to why the circumstances of the delay in the registration of the birth had been so poorly and inaccurately recorded in the document. Paragraph six of this specific affidavit actually invites the putative parents of a newborn child to explain the delay. It reads as follows: ‘6. That the reason for the delay in registering my/his/her birth was due to…’ This critical question is answered by the cursory inclusion of four words, which do not effectively explain the delay: ‘…personal appearance of father’. Once again, it is stretching the bounds of credibility to suggest that the almost 12 month delay in registering a document of such importance is sought to be explained by nothing more than the ‘…personal appearance of father’. Once again, I do not accept that any lack of sophistication or administrative backwardness in the Philippines explains the unsatisfactory state of this part of the birth certificate. I can only repeat my observation that a third party – a Notary Public, no less – was involved in the completion of this document and it was not entirely the work of Mr Perera and/or Ms Pama.
Mr Perera’s evidence with regard to this purported birth certificate then evolved into an explanation of it being in the state it was because factors such as fatigue and jetlag apparently prevented him from giving the matter closer attention:
MR HE: Once again, this seems as though it’s been sworn on 17 January. I’m finding it hard to understand how this document was sworn before a notary public on the day that you had not arrived in the Philippines. Based on your evidence, it seems as though you’re saying that everything was already sworn and signed and when you arrived in the Philippines on 7 February, you signed the document and that was the last thing that was (indistinct)?
MR PERERA: Basically, the notary had dated it the day Alma Pama signed it and he was waiting for my signature when I came in. We’ve got to understand that I wanted the birth certificate done, right? I had just come in, I was jetlagged, I wanted to get this over and done with so I could go back and sleep. And he just said, “This is where you’ve got to sign”, I signed it, probably he signed the bottom of it. He printed everything up when he was with Alma Pama and probably had dated it at that point as well. I signed it and I erroneously didn’t - I didn’t read it, yes, possibly. But that does not mean that it was done illegally or without - the intention was honest, that much I can say.[43]
[43] Transcript, 11 March 2019, page 24, lines 1-16.
The state of Mr Perera’s evidence relative to this birth certificate did not improve when he was questioned about him swearing to being the paternal father of the Applicant. One component of the subject birth certificate is titled ‘Affidavit of Acknowledgement/Admission of Paternity’. In this part of the birth certificate, Mr Perera solemnly swears that it is true and correct to the best of his knowledge and belief that he is the paternal father of the Applicant. The cross-examination emerged thus:
MR HE: You mentioned that you may not have read it, but did you understand when you signed that document that, that document is an admission of paternity? What you’re saying there, by signing the document, is you claim to be (indistinct)?
MR PERERA: That I’m the father, yes. Yes.
MR HE: And when you signed that document, did you understand that that was to be his biological father?
MR PERERA: Not necessarily. But at that point, we - she was not aware, she’s not sure whether I was or wasn’t.
MR HE: When you signed this document, it says that, “To you knowledge and belief, this is an admission of paternity”?
MR PERERA: Yes.
MR HE: An admission of paternity generally suggests that you are the biological father?
MR PERERA: Generally suggests. Yes, I could have been and as you said, “generally suggests”, but I know that by that time I had taken on the full responsibility of being his father, biologically or not. I had spent money on his prenatal care, I had spent money on his delivery, I had spent money on his postnatal care and I was giving them an allowance on a monthly basis. So, as far as I was concerned, I was his father.
MR HE: When you signed that document, did you think you were his biologically father?
MR PERERA: I don’t think that’s relevant. I was his father.
MR HE: I’ll put it to you again, Mr Perera. This document is an admission of paternity. Now, you’ve signed that document and my question to you is, when you signed that document, in your mind, did you think you were the biological father of [the Applicant]?
MR PERERA: I was not a hundred per cent sure, but I was going to be his father, biologically or not.[44]
[44] Ibid, lines 18-45.
Finally, Mr Perera was referred to a document in the material,[45] consisting of an email from Mr Perera to the citizenship authorities. In this document, Mr Perera tells the authorities in an email dated 27 March 2018, that:
I was content to be [the Applicant’s] surrogate father til about 3 years ago when his GP made a remark to me that [the Applicant] looked more like me than his mother! This had been said to me by a number of people, but I had ignored this til that point. Working back through the dates we calculated that had Alma missed one or two weeks in her workings when she actually conceived, I could easily have been the Applicant’s father. The more I thought about it, the more convinced I was that I was his Father rather than the American. [The Applicant] has my features…, he has a gentle personality which is the same as mine. I became convinced that I was his father and decided to rectify the history books. Maybe that is why in my subconscious I wanted to be [the Applicant’s] Father…[46]
[45] Exhibit 8, s37 T Documents, T15, pages 281-282.
[46] Ibid, page 282.
I also have misgivings about the veracity of this evidence. According to Mr Perera, he was content to be the Applicant’s surrogate father until about three-four years ago. He purports to introduce another putative father – ‘the American’ – but bases the entirety of whatever belief he may have about being the biological father of the Applicant on the basis of little more than a hunch, which he was apparently motivated to experience as a result of a passing observation made by a ‘GP’. It is this hunch which apparently convinced Mr Perera that ‘…in my subconscious I wanted to be [the Applicant’s] father.’ Little or no weight can or should be attributed to this evidence in circumstances where all of it could be conclusively dispatched or resolved by him and the Applicant undertaking DNA paternity testing. No such testing results appear in the material. His evidence goes no higher than the abovementioned hunch:
MR HE: In this statement, it seems to me that you’re saying that you were content to be [the Applicant’s] surrogate father until about three years ago. Is that right?
MR PERERA: Three years from the day I wrote this letter, which was 2018, yes. So, four years ago. I was content to be his father until this incident took place where we sat down and had a chat and I suddenly said, “Look, maybe I am his father”. See, I did not know whether I had been - had impregnated his mother or not, whether she was pregnant by me or not. Right? So, I didn’t - I just put it out of my mind, but I said, “Look, I will be his father, because he does not have a father, he’s not going to have a father”. The man in question denied any responsibility, so I said, “I will be his father”.
MR HE: When you say, when you sat down and had a chat, was this with Ms Alma Pama?
MR PERERA: Yes, it was. We had a chat after I met this GP who said that I looked more – [the Applicant] looking more like me than his mother.[47]
[47] Transcript, 11 March 2019, page 25, lines 9-22.
Evidence in Chief of Alma Pama
Ms Pama provided a written statement for the purposes of these proceedings.[48] She also gave oral evidence via an interpreter. Her written statement reveals that she first met Mr Perera in July 2009, through her cousin Juliet Olarte.[49] She speaks of ‘becoming friends’ with Mr Perera and of them having a ‘short relationship’. Following that apparently short relationship, Mr Perera left the Philippines whereupon, about a month later, Ms Pama says ‘I discovered I was pregnant.’ She acknowledges:
…There was another man I had had a relationship with before I met Jerry but we broke up because I found out that he was cheating on me and that he had a wife. I contacted him to tell him that I was pregnant but he never showed up, or even called to say he received my message. It was Jerry who helps me financially by sending money to my cousin to help me financially. After some months he sent me money regularly directly to me through Western union at first and later through World Remit. While I was pregnant he sent me to college to try and educate me. He was helping me because I was diagnos [sic] with hyperthyroidism and needed medical care.[50]
[48] See Exhibit 4.
[49] See Exhibit 1 – one of its attachments – sworn statement of Juliet Olarte made on 29 November 2018.
[50] Exhibit 4, statement of Ms Alma Pama, first page.
In addition to Mr Perera’s financial support of herself, Ms Pama deposes to Mr Perera supporting her son, the Applicant:
[The Applicant] was born by cesarian [sic]…since I moved from other city, the big flood of 2009 was the cause of losing all my western union records. I even went and asked my Ob/Gyne for her records but she had lost them in the flood…I didn’t register my son and neither did the hospital do anything to help me. The hospital did not bother to help me or even encourage me to register [the Applicant]. I was sick, my cut was infected and [the Applicant] was premature. I did not think about registering [the Applicant] for a long long time. It is my fault that he was registered late.
When I finally did register him (since i had to do it by my self) it was almost twelve months later. Jerry helped my expenses for my Cs through sending money to my cousin. I didn’t have a job and my hospital was a private one. Jerry was the only one who helped me that time with my bill that over 50.000.00 pesos.[51]
[51] Ibid; note: based upon the applicable exchange rate between the Filipino and Australian currencies as at 30 June 2010, this amount of pesos comprised roughly AUD $1,250.
Ms Pama then deposed to an explanation about why it took almost 12 months to register the Applicant’s birth. She said:
Because I was sick and [the Applicant] was premature the idea of registering never came to me til Jerry just kept reminding me all the time. Finally when both [the Applicant] and I were feeling better I started the process and. [sic] Yes it was because I was sick and completely forgot to register [the Applicant’s] birth certificate. i forgot as i was only busy looking after him and trying to cope with life…I got complication of my cs my cut didn’t heal for long months and it got infected.[52]
[52] Ibid.
In terms of ongoing support, Ms Pama says:
Jerry has been supporting me and my son ever since [the Applicant] was in my uterus. He visits regularly to spend time with our son. My son only know he is the father. His father never neglect him he always looks after his well being and give of his best to [the Applicant], talking with him through vedio [sic] every day he make sure that our son felt his love and presence even if he is in Australia. Losing all our 2009 and 2010 documents is my fault i even erased all our emails. I never knew this will be needed for things like this. With out Donald Perera we would be long dead, since I have no one to rely on and i cant work in my situation, with out his support…[53]
[53] Ibid, first page and second page.
Several observations can be made about Ms Pama’s written evidence. Her evidence contains the same level of opaqueness and obfuscation as that of Mr Perera in terms of whether or not Mr Perera is in fact the paternal father of the Applicant. In Ms Pama’s statement, ‘There was another man’ with whom she had a relationship but he apparently disappeared and was replaced by Mr Perera. Once again, the issue of paternity is capable of definitive and unarguable resolution by way of DNA paternity testing. Neither Ms Pama nor Mr Perera have undergone any such testing.
Ms Pama speaks of Mr Perera not paying any supportive funds directly to her at the time of the Applicant’s birth. Instead, she says that Mr Perera paid these funds to her cousin (Juliet Olarte) and that after the Applicant’s birth, Mr Perera ‘…sent me money regularly directly to me through Western union at first and later through World Remit.’ The critical difficulty with that evidence is that, according to Ms Pama, ‘the big flood of 2009 was the cause of losing all my western union records.’ Because of that, says Ms Pama, she cannot produce any written evidence about receipt of supportive funds from Mr Perera immediately prior to, contemporaneous with or very shortly after the Applicant’s birth.
Things do not improve in terms of the credibility of this evidence as a result of any collaborative support from Ms Juliet Olarte. Ms Olarte deposes that Mr Perera:‘
…did send me money to assist and pay for all of [the Applicant’s] birth and all expenses before this. Unfortunately, I went to the Western Union office and requested a copy of the transfer receipt that was made about the end of February or early March 2010 but the man stated that records were only kept for 5 years.[54]
[54] See Exhibit 1 – attachment thereto – sworn statement of Juliet Olarte, sworn 29 November 2018.
Ms Olarte goes on to say that:
I also contacted the hospital where the Caesarean was performed but they too could not find the records from so long ago. I do swear that [Mr Perera] sent me many consignments of money to pay for Almas prenatal treatment and then a lump sum of 90,000 pesos to cover the confinement and Caeserean.[55]
[55] Ibid; note: 90,000 pesos converts to AUD$, approximately, $2,500.
I have significant misgivings about the veracity of Ms Pama’s written evidence and consider that it is not corroborated by that of Ms Olarte or that of Mr Perera. In any event, little, if any, weight can be allocated to the evidence of Ms Olarte because she was not called as a witness at the hearing before me and the Respondent did not have an opportunity to test her evidence in cross-examination. The differences between the evidence of Ms Pama and Mr Perera, on the one hand, and that of Ms Olarte, on the other, are both stark and concerning.
First, I find it very difficult to accept that a financial institution of the magnitude of Western Union would not have the information technology wherewithal to be able to reproduce written records that had apparently been washed away by ‘the big flood of 2009’. A further difficulty is that, while ‘the big flood of 2009’ may have apparently washed away records, there is nothing in the material representing or purporting to be financial records after ‘the big flood of 2009’ demonstrating any provision of supportive funds by Mr Perera to Ms Pama immediately prior to, contemporaneous with or very shortly after the Applicant’s birth.
Second, there is, to my mind, an irreconcilable disparity between why the records from the financial institution are not available. According to Ms Pama and Mr Perera, those records were lost in ‘the big flood of 2009’. According to Ms Olarte (who swore her statement in November 2018), she actually approached Western Union for a copy of transfer receipt/confirmation records regarding any funds provided by Mr Perera ‘…about the end of February or early March 2010 but the man [at the financial institution] stated that records were only kept for five years.’ Ms Olarte makes no reference to ‘the big flood of 2009’ as the cause of the unavailability of any financial/transactional records evidencing the relevant payments.
In her statement, Ms Pama spoke of Mr Perera supporting her ‘…since [the Applicant] was in my uterus.’ She speaks of having recorded Mr Perera’s ‘…love and presence…’ in the lives of both herself and the Applicant in certain email correspondence. She is not able to produce any email correspondence to this effect because ‘losing all our 2009 and 2010 documents it is my fault i even erased all our emails. I never knew this will be needed for things like this.’
Cross-Examination of Alma Pama
In cross-examination, Ms Pama was asked whether she could recall the first time that Mr Perera came to the Philippines after the Applicant was born:
MR HE: So, Ms Pama, you mentioned that Mr Perera came to the Philippines to register [the Applicant’s] birth certificate. Was that the first time Mr Perera came to the Philippines after [the Applicant] was born?
MS PAMA: Before that after few months that I give birth he should ask that I should already said to register the baby but that time really (indistinct) was bad. (Indistinct) I said perhaps we just think about maybe next time when you come that or maybe when I am okay already after few months of my birth (indistinct) already visit us.
MR HE: Thank you. And when did Mr Perera first visit the Philippines after [the Applicant] was born?
MS PAMA: If I’m not mistaken it was May, I just can’t remember clearly but it was after I give - because my caesarean was still fresh and I mean I have really a lot of complications of my caesarean and I (indistinct) stitches. I think it was May or - April or May like that. I can’t remember clearly but it was after I give birth, sir.
MR HE: Thank you. And Mr Perera was not at [the Applicant’s] birth, was he?
MS PAMA: Sorry? Sorry?
MR HE: Was Mr Perera at [the Applicant’s] birth?
MS PAMA: No, sir.
INTERPRETER: He wasn’t there. No, Mr Perera was not there but we had a chat at the mobile phone.[56]
[56] Transcript, 11 March 2019, page 11, lines 18-39.
Ms Pama was specifically asked whether she made a request of Mr Perera to be present at the Applicant’s birth. The response was as follows:
MR HE: Did you ask Mr Perera to be at [the Applicant’s] birth?
INTERPRETER: No, I didn’t because I know he was working but he said he is going to visit (indistinct) he came to visit.
MS PAMA: Yes. Yes, that time, sir, I understand that he can’t be there because he has work and he said that he’s planning to visit (indistinct).[57]
[57] Ibid, line 46, and page 12, lines 1-5.
Ms Pama was also asked about whether she had ever communicated with Mr Perera about who would be recorded as the Applicant’s father on the birth certificate. This is what transpired in cross-examination:
MR HE: So, did you ever have a conversation with Mr Perera about who would be [the Applicant’s] father?
INTERPRETER: Yes, we did. I know I had a relation with another man when Mr Perera came. I did not know if I was pregnant or not when he came.
MR HE: So, maybe I’ll rephrase this question. When you - during your pregnancy, and when you were giving birth to [the Applicant], who did you think was [the Applicant’s] biological father?
MS PAMA: Because I think it was - I think it was - I was confused that time because I think Jerry - my son is look like (foreign language spoken). But when I think - when I count the time, when I count my due date, my thinking was perhaps that was my first man. And so my thinking was both. I said perhaps because my son is really look like him, like Donald Perera. And also I’m thinking about my due date. So I said perhaps this is his son or perhaps this is son from my first man. I was confused really what answer.
…
MR HE: Now Mr Perera is listed on [the Applicant’s] birth certificate as his father. When did you decide that you were going to list Mr Perera as [the Applicant’s] father on the birth certificate?
INTERPRETER: I said that Donald Perera was the father of [the Applicant] since he came from Australia the first time, because I saw how much he loved [the Applicant] and how much he cared for me.[58]
[58] Ibid, page 13, lines 9-26 and 36-43.
The Evidence in Chief of Sasina Perera
Ms Sasina Perera is the wife of Mr Perera. She has provided a written statement, by way of statutory declaration, made on 30 November 2018.[59] She deposes to wanting to assist Mr Perera ‘…in bringing his son over to Australia as a Citizen of this country.’ Her involvement in this matter arises as follows:
I first learnt of [the Applicant] was in October 2009 when his dad, my then-partner (we were not married at that time) informed me of his relationship with [the Applicant’s] mother and told me that even though he felt that he may not be the biological father of [the Applicant] he had acted as a father and had supported [the Applicant] right through his mother’s confinement and had paid for the caesarean section when [the Applicant] was born. This was because he said that he had contacted whom he thought was [the Applicant’s] father (an American) but was unsuccessful in convincing this man to be responsible for the birth of [the Applicant].[60]
[59] See Exhibit 1 – final attachment thereto – Statutory Declaration of Sasina T Perera, made on 30 November 2018.
[60] Ibid, second page.
Ms Perera deposes to Mr Perera’s apparent devotion and commitment to the Applicant and his mother. She speaks of him observing a strict regime of monthly financial support for the Applicant and his mother in the Philippines, for both day to day expenses as well as medical expenses. She also speaks of Mr Perera building a home for them in a provincial area of the Philippines:
I also understood that he, Jerry Perera supported both mother and son as [the Applicant’s] mum, Alma, was unwell with Hypothyroidism[61] and was being treated by a doctor. Jerry religiously transferred money every month for their livelihood as well as extra when they needed medical expenses and other things. Also know that Jerry had built a home for them in their small provincial town of Bayugan in Mindanao.
[61] Note: in this statement, Ms Perera refers to Ms Pama suffering from a condition known as “Hypothyroidism”. In her statement, Ms Pama deposed to suffering from “hyperthyroidism”. These are different conditions. In the former, the patient’s thyroid gland is not able to produce enough thyroid hormone. In the latter, the thyroid gland becomes overactive and produces more thyroid hormones than the patient requires.
Cross-Examination of Sasina Perera
In cross-examination, Ms Perera was referred to the following paragraph in her statement:
When [the Applicant] was born in the Philippines on 20th March 2010, Jerry could not go because he had a lot of work to do in Australia. He got a call from Alma’s doctor telling him that the baby’s birth by C-section and Jerry supported Alma by permitting her to make [sic] Jerry the legal father of [the Applicant]. I also agreed to this decision. From that time, we sent child support for baby [Applicant] and mother till now.
She was specifically asked about her reference to ‘I also agreed to this decision’ regarding the recording of Mr Perera as ‘the legal father’ of the Applicant. This is what transpired in cross-examination:
MR HE: When you say you agreed to this decision, in that statement, what did you mean when you say you agreed to the decision?
SASINA PERERA: I agreed for [Mr Perera] to be his - to be [the Applicant’s] father and I agree that Jerry give the [Applicant] name that is [first name of Applicant redacted] Perera.
MR HE: When you say, “legal father”, what do you mean by that?
SASINA PERERA: I mean that is the - that [the Applicant] - the baby [Applicant], did not have the legal father when he was born, but Jerry agree that I will sign the document and give him the name, [name redacted] and I agree him to use the Perera last name, our family.[62]
[62] Transcript, 11 March 2019, page 27, lines 33-41.
FINDINGS
The principal issue for the Tribunal to decide is whether Mr Perera, in the broadest sense of that word, is a parent of the Applicant. This involves the making of findings about two specific issues:
(a)whether there is sufficient evidence to demonstrate a biological parent-child relationship between Mr Perera and the Applicant; and
(b)whether there is adequate evidence to demonstrate a non-biological parent-child relationship between Mr Perera and the Applicant at the time of the Applicant’s birth.
Is there sufficient evidence to demonstrate a biological parent-child relationship between Mr Perera and the Applicant?
As best as I could understand the evidence, it was not pressed (certainly not to any noticeable or insistent degree) by Mr Perera that he was the biological father of the Applicant and thus in a biological parent-child relationship with the Applicant. In any event, I find that the evidence reaches nowhere near the necessary threshold to demonstrate any biological parent-child relationship between Mr Perera and the Applicant.
First, I have sought to outline and highlight the inconsistent evidence relating to any claims of paternity Mr Perera may now propound. The evidence makes it plain that Mr Perera has in the past acknowledged that he should be regarded as the adoptive father of the Applicant, rather than his biological father. When the matter was the subject of a settlement conference before this Tribunal on 22 October 2018, Mr Perera made it clear that the primary contention of this application would henceforth be on the basis of him being in a non-biological parent-child relationship with the Applicant, as opposed to a biological parent-child relationship.
Second, the evidence from both Ms Pama and Mr Perera is, put at its highest, opaque and less than reliable in relation to them both being in the same location at the probable time of conception. Ms Pama speaks of ‘discovering’ she was pregnant ‘about a month after’ the Applicant left the Philippines. She also says ‘there was another man I had had a relationship with before…’ she met Mr Perera. Mr Perera says he ‘…was not 100% sure…’ about being the Applicant’s biological father, and that he ‘was content to be [the Applicant’s] surrogate father…’ consequent upon a comment from a third party that the Applicant apparently looked more like him than Ms Pama. Ultimately, this evidence is not probative because it could be immediately resolved, one way or the other, by the production of DNA paternity testing results.
As noted by the Respondent,[63] there is an indication in the evidence that the Applicant was born in the Philippines on 20 March 2010. The likely period of conception would therefore have been 21 June 2009 to 24 July 2009. The difficulty with any propounding of a biological relationship between Mr Perera and the Applicant is that Mr Perera’s movement records reveal he was actually in Australia from 2 June 2009 to 24 July 2009. Further, there is nothing in the evidence to suggest that Ms Pama ever visited Australia during the abovementioned likely period of conception. There is some attempt by Ms Pama and/or Mr Perera to rectify this deficiency in the evidence by asserting that the Applicant was born prematurely. I am not prepared to accept such a contention when it is not supported by expert and independent medical evidence.
[63] See Exhibit 6, Respondent’s SFIC, page 7, [23(b)],.
Third, I have highlighted the concerning and significant deficiencies and inconsistencies surrounding the Applicant’s birth certificate. An initial observation is that the birth certificate was registered almost a year after the birth. For reasons I have earlier highlighted, I reject the evidence of Ms Pama and Mr Perera in now purporting to explain the extraordinary delay in registration of that birth certificate. In addition, I have misgivings about the circumstances in which the subject birth certificate was apparently signed. It bears a registration date of 17 January 2011 and, on this particular date, the document reveals that Mr Perera apparently swore to issues around acknowledging/admitting paternity and that he did so before a Notary Public in the Philippines. The fatal difficulty with that contention is that Mr Perera was in Australia – not the Philippines – on that day. For reasons I have recounted earlier, I reject any explanation for the inconsistencies on the face of the birth certificate on the basis of any asserted cultural or administrative backwardness in the Philippines. Therefore, I must limit the weight that can be assigned to the birth certificate as an accurate reflection of the state of facts relating to the Applicant’s birth and lineage.
Accordingly, in terms of the first question before me, I find that after having due regard to the totality of the evidence and, most significantly, Mr Perera’s failure to provide any DNA paternity testing results, I am not satisfied that Mr Perera is the biological father of the Applicant.
Is there sufficient evidence to demonstrate a non-biological parent-child relationship between Mr Perera and the Applicant at the time of the Applicant’s birth?
For reasons I have enumerated earlier in this Decision, I find that the evidence does not satisfy me that Mr Perera has met the requirements of section 16(2)(a) of the Act, such as to demonstrate a non-biological parent-child relationship with the Applicant at the time of the Applicant’s birth.
First, despite the evidence of Ms Pama and her cousin, Ms Olarte, about Mr Perera providing financial support to Ms Pama and the Applicant, there is little or nothing in the way of financial and/or similar documentation confirming the provision of those funds immediately prior to, contemporaneous with or very shortly after the Applicant’s birth. Ms Pama speaks of all of the relevant financial documents being lost in ‘the big flood of 2009’. Ms Olarte makes no reference to a flood, but instead speaking to ‘the man’ at the financial institution telling her that that institution only kept records for five years. The evidence of Ms Pama must be rejected for reasons I have outlined. The evidence of Ms Olarte must be similarly rejected because it lacks as much credibility as the evidence of Ms Pama, and was not the subject of any cross-examination by the Respondent’s representative. Mr Perera’s evidence, to the extent it follows the ‘the big flood of 2009’ theme raised by Ms Pama, must be similarly rejected.
Two further observations can be made about this aspect of the evidence. First, it is very difficult to accept that a significant and multinational financial institution such as Western Union would not be in a position to produce electronic versions of its records generated, for example, within Australia, which was not subject to ‘the big flood of 2009’ that afflicted the Philippines. Second, the combined lay (in a financial documentary sense) evidence of Ms Pama and Ms Olarte, put at its highest, is that Mr Perera has provided something in the order of $AUD 3,750 to the Applicant and Ms Pama for costs relating to the Applicant’s birth. That sum is not supported by any financial documentary evidence as having been paid contemporaneously with or very soon after the Applicant’s birth.
It should also be noted that Mr Perera was not present at the birth of the Applicant and there is nothing in the evidence to suggest that this was ever his intention. The evidence of both Mr Perera and Ms Pama about the level of communications between them at the time of the Applicant’s birth is both scant and unreliable, to which little, if any, weight can be safely allocated. Ms Pama speaks of having ‘erased all our emails’ which could have demonstrated some level of communication between her and Mr Perera because, apparently, ‘I never knew this will be needed for things like this.’ I find it highly unlikely that a person would delete correspondence of personal, sentimental value because they didn’t know those emails would one day be necessary for proceedings such as this. I must therefore, reject that assertion.
Second, it is very difficult to attribute any convincing level of a non-biological parent-child relationship between Mr Perera and the Applicant in circumstances where (1) the subject birth certificate was registered in the Philippines almost a year after the Applicant’s birth, and (2) Mr Perera was actually in the Philippines between 1 and 8 May in 2010, only two months after the Applicant’s birth, but had no contact with the Applicant.
Third, there is a dearth of evidence to demonstrate that Mr Perera provided any level of emotional and domestic support to Ms Pama and the Applicant either during the pregnancy or at the time of the Applicant’s birth, including the Applicant’s prenatal and postnatal care. As mentioned earlier, the evidence of Ms Pama and Ms Olarte is not corroborated by financial documentation. While it can be accepted that the evidence does contain the transfer of funds from Mr Perera to Ms Pama during the period 2012 to 2018, there is a complete absence of any such documentary financial evidence dating from the period of concern being either before, or the time of, or in the immediate period following, the Applicant’s birth.
Fourth, the evidence does not reach the temporal threshold required by section 16(2)(a) of the Act, and does not, as required by the Full Court’s decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119, demonstrate that the Applicant was acknowledged before or from his birth as the child of Mr Perera. There are several relevant examples of this lack of temporality in the material:
(1) Ms Pama initially thought the putative father was ‘an American’. She took almost 12 months to register a birth certificate purportedly recording some type of parental relationship between Mr Perera and the Applicant;
(2) Ms Olarte says that ‘soon after the boy was born in consultation with Jerry, we gave him the name of [name of Applicant redacted]. It was then that Jerry agreed to continue to support [the Applicant] in the long term and care for all his needs and be his legal father’; and
(3) Ms Sasina Perera says Mr Perera could not be present at the Applicant’s birth ‘because he had a lot of work to do in Australia.’ Ms Perera adds that ‘…he got a call from Alma’s doctor telling him of the baby’s birth…and Jerry supported Alma by permitting her make [sic] Jerry the legal father of the Applicant. I also agreed to this decision.’
[My underlining]
Consequently, I would only be able to surmise that Mr Perera accepted parenthood of the Applicant within the first year of the Applicant’s life. This does not satisfy the requirement that he was recognised as the child of an Australian citizen from his birth.
CONCLUSION
On the evidence available to the Tribunal, I find that:
(1)the Applicant is not the biological child of Mr Perera; and
(2)Mr Perera 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 87 (eighty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
.............................[SGD]................................
Associate
Dated: 24 June 2020
Date(s) of hearing: 11 March 2019 and 03 June 2019 Date final submissions received: 04 March 2019 Advocate for the Applicant: Mr Donald Perera Counsel for the Respondent: Mr Zeng He Solicitors for the Respondent: Clayton Utz Annexure A - Exhibit List
Exhibit Number
Document
1
Email submission (inc. seven attachments from the Applicant) dated 30/11/18
2
Statement of Eden Almeniana sworn on 8 November 2018
3
Statement of Jacky Colerat Eviota (undated)
4
Statement of Alma C Pama (undated)
5
Applicant’s Response (undated) to Respondent’s Statement of Facts, Issues and Contentions (“SFIC”)
6
Respondent’s SFIC dated 11 February 2019
7
Movement records for the Applicant dated 22 October 2018
8
Section 37 T Documents
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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2
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