XTPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

XTPR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4184 (7 December 2022)
Division:GENERAL DIVISION
File Numbers: 2021/6898
2021/7087
2021/7088

Re:XTPR
DMHG
QVRJ
APPLICANTS

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

Decision
Tribunal:Dr L Bygrave, Member
Date:7 December 2022
Place:Sydney

The Tribunal affirms the decisions under review made by the Respondent on 21 September 2021 in relation to XTPR, DMHG and QVRJ.

................................[SGD]........................................
Dr L Bygrave, Member
Catchwords
CITIZENSHIP – applications by three sisters for Australian citizenship by descent under section 16 of the Australian Citizenship Act 2007 (Cth) – whether applicants had a parent who was an Australian citizen at the time of their respective births – decisions under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth) (the Act), s 16
Cases
H v Minister for Immigration and Citizenship [2010] FCAFC 119
Secondary Materials
Australian Citizenship [Policy Statement] (the Citizenship Statement)
Citizenship Procedural Instruction 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act
REASONS FOR DECISION
Dr L Bygrave, Member
7 December 2022

This decision concerns the review of separate applications for Australian citizenship by descent made on 26 June 2020 by three sisters (XTPR, DMHG and QVRJ) in accordance with section 16 of the Australian Citizenship Act 2007 (Cth) (the Act).
On 21 September 2021, these applications were refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister)[1] on the basis that XTPR, DMHG and QVRJ did not satisfy the requirement in paragraph 16(2)(a) of the Act that they had a parent who was an Australian citizen at the time of their births. In particular, the Minister was not satisfied ‘the Australian parent would be identified as the biological, social or legal parent of the applicant[s] at the time of their birth’.[2]
[1] The relevant Minister is now named the Minister for Immigration, Citizenship and Multicultural Affairs.
[2] Exhibits T-T6898, 21; T-T7087, 21; T-T7088, 18.
On 23 September 2021, Mr ‘A’ applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the decision in relation to XTPR. On 29 September 2021, Mr ‘A’ further applied to the Tribunal for review of the decisions in relation to DMHG and QVRJ.
The applications of XTPR (file number 2021/6898), DMHG (file number 2021/7087) and QVRJ (file number 2021/7088) were heard jointly by the Tribunal on 6 October 2022. Mr ‘A’ attended the hearing and gave oral evidence by video conference.
RELEVANT legislation and policy
The statutory provisions for the acquisition of Australian citizenship by application are set out in Division 2 of the Act; subdivision A states the requirements for citizenship by descent.
Section 16 of the Act outlines the application and eligibility for citizenship: subsection 16(1) provides that a person may make an application to the Minister to become an Australian citizen and subsection 16(2) relevantly 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 … [emphasis added]
Subsection 17(1) of the Act stipulates that ‘[i]f a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’.
Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act
The Australian Citizenship [Policy Statement] (the Citizenship Statement) outlines the overarching legislative requirements for the process of becoming an Australian citizen and provides context for the Citizenship Procedural Instructions (CPIs).
Relevant to these applications is CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act (CPI 23) that was issued on 24 May 2019. 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 legal context and policy 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.
A parent-child relationship that developed after the birth of a child, such as adoption, would not suffice for the purposes of citizenship by descent or birth in Australia.[3] [emphasis added]
[3] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.2.
CPI 23 also stipulates 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.
The applicant or their responsible parent should be requested to provide evidence of the length and nature of the claimed parent’s parental relationship with the child.
It is unlikely that any one piece of evidence would be sufficient to prove the required parent-child relationship. The decision maker is required to weigh up any relevant factors, including social and legal, to reach a finding of fact as to whether or not the claimed parent is (was) a parent of the applicant at the relevant time.
Evidence that a claimed parent-child relationship existed at the time of a child’s birth may include, but is not limited to:
-    evidence that the claimed parents were in a genuine and continuing relationship prior to and at the time of the child’s birth;
-    evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy, for example, emotional, domestic or financial support, making arrangements for the birth, antenatal and postnatal care;
-    evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent’s child; and
-    when a child is born through a surrogacy arrangement - a formal surrogacy agreement entered into before the child was conceived and, if available, lawful transfer of parentage prior to or after the birth.
Evidence that the claimed Australian citizen or permanent resident parent treated the child as their own from some point in time after the child’s birth is not evidence that they were the child’s parent at time of birth. However, evidence as to the claimed parent’s conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as their own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word ‘parent’ at the time of the birth.
In the absence of evidence of biological parentage, any other evidence provided should be thoroughly assessed.[4] [emphasis added]
[4] CPI 23 – Determining Parent-Child Relationship for the Purpose of the Citizenship Act, 24 May 2019, part 3.4
consideration
The applications for Australian citizenship by descent made by XTPR, DMHG and QVRJ on 26 June 2020 name as their ‘birth parents’, Mr ‘A’ born on 25 December 1981 in South Sudan and Ms ‘B’ born on 23 December 1990 in South Sudan.[5]
[5] Exhibits T-T6898, 85, 87; T-T7087, 85-87; T-T7088, 82-83.
I am satisfied the evidence shows Mr ‘A’ acquired Australian citizenship by conferral on 20 July 2005 and Ms ‘B’ is a citizen of South Sudan.[6] I am further satisfied the evidence shows that XTPR was born on 17 January 2010 in South Sudan, DMHG was born on 12 January 2013 in South Sudan and QVRJ was born on 13 May 2016 in South Sudan.[7] Therefore, in accordance with subsection 16(2) of the Act, I find Mr ‘A’ was an Australian citizen at the time of the respective births of XTPR, DMHG and QVRJ.
[6] Exhibits T-T6898, 100; T-T7087, 100; T-T7088, 95.
[7] This is stated in both the Applications for Australian Citizenship and ‘Notification of Birth’ documents at Exhibits T-T6898, 97; T-T7087, 96; T-T7088, 93.
Consequently, the issues for determination by the Tribunal are whether:
·Mr ‘A’ is the biological parent of XTPR, DMHG and/or QVRJ; and
·a parent-child relationship existed between Mr ‘A’ and XTPR, DMHG and QVRJ at the time of their respective births.
Issue: Is Mr ‘A’ the biological parent of XTPR, DMHG and/or QVRJ?
Although Mr ‘A’ is named as the ‘birth parent’ of XTPR and DMHG in their applications for Australian citizenship, in the applications for review to the Tribunal and his oral evidence to the Tribunal, Mr ‘A’ accepted that XTPR and DMHG are not his biological children.
Mr ‘A’ provided the following explanation about the nature of his relationship with Ms ‘B’ in an undated letter:
[Ms ‘B’] is my ex-partner. In 2007, I proposed to her for her hand in marriage and we got engaged. Our two families met in Kakuma refugee camp and agreed on the dowry payment which part of dowry was paid. Therefore because we paid dowry and by the law of Republic of South Sudan that make me legally the father of the children.[8]
[8] Exhibits T-T6898, 128; T-T7087, 128; T-T7088, 123.
Mr ‘A’ also filed a ‘Married agreement’ dated 26 August 2007 made between the families of Mr ‘A’ and Ms ‘B’ at Kakuma Refugee Camp in north-west Kenya; this agreement named the representatives of each family present at the engagement and outlined the engagement expenses and dowry.[9]
[9] Exhibits T-T6898, 131-132; T-T7087, 131-132; T-T7088, 126-127.
In his oral evidence to the Tribunal, Mr ‘A’ said he was married to Ms ‘B’ in December 2007. However, he returned to Australia alone from August 2008 to November 2012 and, during this period, Ms ‘B’ had ‘an affair with another man’ who is the biological father of XTPR (born in January 2010) and DMHG (born in January 2013).[10]
[10] Oral evidence of Mr ‘A’ on 6 October 2022, Transcript of proceedings, 8.
Based on the evidence of Mr ‘A’, which is consistent with his travel movement history that shows he was in Australia for the period from 4 August 2008 to 18 November 2012,[11] I am satisfied that he is not the biological parent of either XTPR or DMHG.
[11] Exhibit ST-ST1, 1-2.
Mr ‘A’ is named as the ‘birth parent’ of QVRJ in her application for Australian citizenship.[12] In his application to the Tribunal and his oral evidence at the Tribunal hearing, Mr ‘A’ stated that QVRJ, who was born in May 2016, was conceived in the period he was with Ms ‘B’ in Nairobi Kenya between 18 August 2015 and 26 September 2015.[13] He declared that QVRJ is his ‘biological child’.[14]
[12] Exhibit T-T7088, 82.
[13] Exhibit ST-ST1, 1-2.
[14] Exhibit T-T7088, 10.
Documents filed with the Tribunal show Mr ‘A’ and QVRJ completed parentage testing procedures (DNA typing) with samples collected from QVRJ on 3 February 2022 and Mr ‘A’ on 17 January 2022. A report by DNALabs dated 17 March 2022 concluded that Mr ‘A’ ‘is EXCLUDED from identification as the biological father of [QVRJ]’.[15] [emphasis in original]
[15] Exhibit A3.
At the Tribunal hearing, Mr ‘A’ said he does not accept these DNA test results because the process of sample collection from QVRJ was conducted in Nairobi Kenya.[16] However, I note Mr ‘A’ has not provided alternate DNA test results that support his claim to be the biological parent of QVRJ.
[16] Oral evidence of Mr ‘A’ on 6 October 2022, Transcript of proceedings, 11-12.
Based on the evidence before the Tribunal, I am satisfied that Mr ‘A’ is not the biological parent of QVRJ.
Issue: Did a parent-child relationship exist between Mr ‘A’ and XTPR, DMHG and/or QVRJ at the time of their respective births?
Mr ‘A’ submitted to the Tribunal that he had a parent-child relationship with XTPR, DMHG and QVRJ at the time of their births because he provided financial support to Ms ‘B’ during and after each of her pregnancies. Mr ‘A’’s submission was supported by:
·Receipts showing four payment transfers he made to Ms ‘B’ between 15 January 2018 and 20 July 2018 that totalled AUD1,445.06.[17]
·A handwritten statement by Ms ‘B’ dated 13 May 2022 stating Mr ‘A’ sent money to her before, during and after her pregnancies with XTPR, DMHG and QVRJ, and that she is still receiving money from Mr ‘A’ to pay rent, school fees, health-related issues, food, water, clothes and electricity bills.[18]
·A statutory declaration from Ms ‘B’’s sister dated 2 February 2022 stating that Mr ‘A’ had provided financial support to Ms ‘B’ before, during and after her pregnancies, and had taken care of Ms ‘B’’s family ‘plus the dowry [they] received in 2008’.[19]
[17] Exhibits T-T6898, 103-106; T-T7087, 103-106; T-T7088, 98-101.
[18] Exhibit A1.
[19] Exhibit A2.
At the hearing, Mr ‘A’ explained the process he undertook in 2017 to be legally recognised as the father of XTPR and DMHG. He said he returned to South Sudan with Ms ‘B’ and the children, and the courts ‘granted’ him Ms ‘B’, XTPR and DMHG.[20] Mr ‘A’ filed the following documents that show this legal process and outcome:
·A decree from Rumbek Town Court dated 7 November 2017, which stated the ‘defendant’, Mr ‘C’, was required to ‘return’ Ms ‘B’ and her two children (XTPR and DMHG) to Mr ‘A’ because Mr ‘C’ ‘committed adultery’ with Ms ‘B’ ‘in the dowry’ of Mr ‘A’.[21]
·A decision by the Rumbek Central County Court – Lakes State dated 28 November 2017, which confirmed the decree of the Rumbek Town Court that ‘awarded a legal wife … with children’ to Mr ‘A’.[22]
·An Order by the High Court of Lakes State – Rumbek on 29 November 2017 that confirmed the decision of the Rumbek Central County Court to confirm the decree of the Rumbek Town Court.[23]
[20] Oral evidence of Mr ‘A’ on 6 October 2022, Transcript of proceedings, 18.
[21] Exhibits T-T6898, 12; T-T7087, 12.
[22] Exhibits T-T6898, 13; T-T7087, 13.
[23] Exhibits T-T6898, 14; T-T7087, 14.
Mr ‘A’ also told the Tribunal that, in addition to providing financial support to Ms ‘B’, he communicated with her by telephone while he was in Australia. He said that, although he has not seen Ms ‘B’, XTPR, DMHG and QVRJ since January 2018 as they are in Nairobi Kenya, he talks ‘with them every day through Messenger video call’.[24]
[24] Oral evidence of Mr ‘A’ on 6 October 2022, Transcript of proceedings, 22.
Guided by the policy outlined in CPI 23 and considering the evidence before the Tribunal, I make the following findings of fact regarding the parent-child relationships that existed between Mr ‘A’ and XTPR, DMHG and QVRJ at the times of their respective births:
·Mr ‘A’ was married to Ms ‘B’ from December 2007 to January 2018. During this time:
oMr ‘A’ lived in Australia in the following periods: 4 August 2008 to 18 November 2012; 18 February 2013 to 18 August 2015; and 26 September 2015 to 31 October 2016.
oMs ‘B’ lived in Kenya and did not visit Australia.
·Mr ‘A’ provided financial support to Ms ‘B’ before, during and after her pregnancies with XTPR, DMHG and QVRJ, and he has continued to provide financial support to Ms ‘B’ for the welfare, care and education of XTPR, DMHG and QVRJ. There is no evidence he provided domestic or emotional support to Ms ‘B’, made arrangements for the births of XTPR, DMHG and QVRJ, or provided antenatal and/or postnatal care.
·Decisions made by the courts in Rumbek in November 2017 show Mr ‘A’ has been legally recognised in South Sudan as the parent of XTPR and DMHG due to the dowry paid for Ms ‘B’. It also appears (based on a ‘Notification of Birth’ document signed and completed on 27 December 2017) that Mr ‘A’ is legally recognised in South Sudan as the father of QVRJ.
·There is no objective evidence – such as letters, telephone call records, photographs or statutory declarations from family/friends/community members – that show a genuine and continuing relationship existed between Mr ‘A’ and Ms ‘B’ prior to and at the time of the births of XTPR on 17 January 2010, DMHG on 12 January 2013 and QVRJ on 13 May 2016.
·There is no documentary evidence – such as birth certificates, photographs or statutory declarations from family/friends/community members – that shows either XTPR, DMHG or QVRJ were acknowledged socially at or before their births as the child of Mr ‘A’. I note the ‘Notification of Birth’ documents for XTPR, DMHG and QVRJ were signed and completed on 27 December 2017, a significant time after each of their births, and these documents contained the declaration ‘This is not a BIRTH CERTIFICATE’.[25] [emphasis in original]
[25] Exhibits T-T6898, 97; T-T7087, 96; T-T7088, 93.
While I accept Mr ‘A’ has provided financial support to Ms ‘B’ both during and following her pregnancies of XTPR, DMHG and QVRJ, and has continued to maintain communication with Ms ‘B’ and XTPR, DMHG and QVRJ, I find this evidence alone is insufficient for me to be satisfied that a parent-child relationship existed at the time of each of the children’s births.
CONCLUSION
I am satisfied:
·Mr ‘A’ is not the biological parent of XTPR, DMHG and QVRJ; and
·there is insufficient evidence to show that a parent-child relationship existed between Mr ‘A’ and XTPR, DMHG or QVRJ at the times of their respective births.
For these reasons, I find XTPR, DMHG and QVRJ do not satisfy subsection 16(2) of the Act.
DECISION
The Tribunal affirms the decisions under review made by the Respondent on 21 September 2021 in relation to XTPR, DMHG and QVRJ.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 7 December 2022

Dates of hearing: 6 and 7 October 2022

Advocate for the Applicant: Mr ‘A’

Solicitors for the Respondent: Kyu-Won Kim

[2022] AATA 4184

7 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	6 and 7 October 2022
Advocate for the Applicant:	Mr ‘A’
Solicitors for the Respondent:	Kyu-Won Kim