YXTS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1698

YXTS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1698 (11 June 2021)
Division:GENERAL DIVISION
File Number:2018/6107
Re:YXTS
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:11 June 2021
Place:Brisbane

I affirm the decision under review.
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Deputy President Dr P McDermott RFD
CATCHWORDS
CITIZENSHIP – citizenship by descent – citizenship by descent where Applicant’s lineage was unestablished –– decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
H v Minister for Immigration and Citizenship (2010) 188 FCR 393; [2010] FCAFC 119
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471
Parke and Repatriation Commission (1985) 2 RPD 404
TWWH and Minister for Home Affairs [2018] AATA 3371
DEPARTMENTAL POLICY DOCUMENTS
Australian Citizenship Procedural Instructions – CPI 23 – Determining Parent-Child Relationship for the Purposes of the Citizenship Act, 24 May 2019
Australian Citizenship (Policy Statement), 27 November 2020
SECONDARY MATERIALS
Queensland Law Reform Commission, Report on the Oaths Act (QLRC, Report no 38, 31 March 1989)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
11 June 2021
INTRODUCTION

This is an application for the review of the decision of a delegate of the Minister for Home Affairs (“the Minister”) on 16 October 2018 to refuse the applicant becoming an Australian citizen by descent pursuant to the Australian Citizenship Act 2007 (Cth) (“the Act”).
The application for Australian citizenship that is the subject of this application was made on 9 February 2018 by the applicant who claims that he is the child of a man who was an Australian citizen at the time of his birth. On 13 February 2018 the Department acknowledged his application.[1] On 14 June 2018 the Department requested additional documentation from the applicant. The Department requested the birth records of the applicant, full details of his mother and father (including evidence of the Australian citizenship of the father) and full details of the relationship between the mother and father.[2] On 16 March 2019 the application was refused by a delegate of the Minister on the basis that the delegate was not satisfied that the Applicant had a parent who was an Australian citizen at the time of his birth.[3]
[1] Exhibit A, Section 37 T Documents, T5.
[2] Exhibit A, Section 37 T Documents, T6.
[3] Exhibit A, Section 37 T Documents, T8.
On 18 October 2018 the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for the review of the decision to refuse the application for Australian citizenship.[4]
[4] Exhibit A, Section 37 T Documents, T1.
LEGISLATION
Section 16 of the Act sets out the eligibility requirement for a person applying for Australian citizenship by descent. Relevantly, section 16(2) provides as follows:
(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; ...
Further, sections 17(1A), (2) and (3) of the Act provide the following in relation to the Minister’s approval of applications for Australian citizenship by descent:
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
CONTENTIONS OF THE APPLICANT
In his application for Australian citizenship the applicant has claimed that his date of birth was 24 October 1976.
The applicant contends that at the time of his birth his father was an Australian citizen.[5] In these reasons I will refer to the man who the applicant claimed to be his father as “Mr X”.
[5] Exhibit I.
The applicant has also made a request that the Tribunal order that DNA testing be undertaken to ascertain whether Mr X is the father of the applicant.[6]
[6] Exhibit I.
CONTENTIONS OF THE MINISTER
The Minister contends there is insufficient evidence to be satisfied of the parentage of the applicant at the time of his birth in circumstances where:
(a)the applicant has given different dates of birth, and before the Tribunal the applicant affirmed that he was born in Papua New Guinea in 1976;
(b)there is no independent evidence that Mr X is the father of the applicant;
(c)after the applicant was confronted with evidence of the employment history of Mr X, he resiled from the evidence that he had previously given before the Tribunal and then claimed that his date of birth could be in 1973;
(d)the Tribunal had before it documentary evidence that Mr X had left Papua New Guinea in 1973, this points against Mr X as being the father of the applicant;
(e)the Tribunal had the benefit of direct evidence from Mr X who denied paternity; and
(f)the applicant does not have the benefit of favourable DNA test results.
DOCUMENTARY EVIDENCE
Australian citizenship
There is documentary evidence which verifies that Mr X became an Australian citizen on 5 March 1976.[7]
[7] Exhibit K.
Birth records
In evidence is a document, along with a translation of that document, which contains the statement that it is a “Certificate of Birth Entry” of the applicant and lists the mother of the applicant and Mr X as the father of the Applicant. The original of this certificate was issued on 23 May 2017.[8]
[8] Exhibit A, Section 37 T Documents, PT4, p 21.
Statements of applicant
The applicant has made statements in which he has claimed that Mr X is his father.[9]
[9] Exhibits G and I.
Statement of Mr X
Mr X has made a statement in which he has denied being the father of the applicant.[10] Attached to Mr X’s statement are various employment records concerning his employment in Papua New Guinea. Notably, the records indicate that his employment in Papua New Guinea had ended by 31 July 1973.[11]
[10] Exhibit F.
[11] Exhibit F, letter dated 31 July 1973.
Supporting documents
The applicant has lodged various documents from his friends and associates in support of his application. Some of these documents are in the T-Documents. The applicant has helpfully collated these documents in one volume which has been admitted into evidence.[12]
[12] Exhibit I.
In the evidence before the Tribunal there is a letter of reference in respect of the applicant dated 8 August 2008 from a former employer of the applicant in which the surname of Mr X is used.[13] This appears to be the earliest document in which the surname of Mr X is used in connection with the applicant. In other documents which post-date this letter, the applicant is referred to with the surname of Mr X.
[13] Exhibit I, schedule four, document (iii)(c).
The mother of the applicant has provided a statutory declaration dated 11 December 2018.[14] The mother of the applicant stated that she became aware she was pregnant with the applicant around the time Mr X left Papua New Guinea for Australia, and that Mr X was the father of the applicant. She stated that she gave birth to the applicant after Mr X had left Papua New Guinea. In her statement, one of the surnames that the mother claims to have given the applicant at birth was the surname of Mr X.
[14] Exhibit I, schedule two, document (ii).
The uncle of the applicant has provided a statutory declaration dated 11 December 2018.[15] The uncle in his statement intimated that Mr X did not return to Papua New Guinea in the knowledge that the mother of the applicant was pregnant.
[15] Exhibit I, schedule two, document (i).
EVIDENCE OF APPLICANT
The applicant gave evidence at the hearing on 10 and 11 November 2020.
The applicant gave evidence that he was born in Papua New Guinea.[16] The applicant agreed under cross-examination that in 2006 he began thinking about starting his own family and where he wanted to raise them. He agreed that his first child was born in 2007 and that he wanted a better life for his children in Australia, and that that is why he sought Australian Citizenship.[17]
[16] Transcript 11.11.2020, p 13, lines 36-40.
[17] Transcript 11.11.2020, p 16.
On the second day of the hearing, 10 November 2020, the applicant gave evidence that his date of birth is 24 October 1976.[18] On the third day of hearing, 11 November 2020, the applicant gave evidence that his date of birth could be as early as in 1973, explaining he used the date of 24 October 1976 on his birth certificate because it was the date of birth used when his uncle enrolled him in school.[19]
[18] Transcript 10.11.2020, p 6, lines 1-2.
[19] Transcript 11.11.2020, p 15, lines 16-29.
Under cross-examination it was put to the applicant that Mr X’s time in Papua New Guinea ended in 1973, being 3 years before his purported date of birth. The applicant responded as follows: “My date of birth was (indistinct) made an assumption for that … the date.” [20] When asked whether his date of birth could have been 1973 rather than 24 October 1976, the applicant responded, “Yes.” [21] The applicant gave evidence that the purported birth date of 24 October 1976 was a guess of his actual birth date. He said he still uses the date of 24 October 1976 as his birth date, “but I don’t know exactly when I was born, and my mum too don’t know.” [22]
[20] Transcript 11.11.2020, p 14, lines 5-6.
[21] Transcript 11.11.2020, p 14, lines 32-35.
[22] Transcript 11.11.2020, p 15, lines 26-29.
The applicant gave evidence that when he “become older” he found out that Mr X was his father.[23] The applicant gave evidence that he did an archive search and found the name of the company Mr X worked for in Papua New Guinea.[24] The applicant gave evidence that he met Mr X and spent time with him. The applicant gave evidence that Mr X “admitted that he is my father” and from that point the applicant began using the same surname as Mr X.[25]
[23] Transcript 11.11.2020, p 16, lines 8-9.
[24] Transcript 11.11.2020, p 18, lines 26-31.
[25] Transcript 11.11.2020, p 16, line 10.
EVIDENCE OF MR X
Mr X gave evidence before the Tribunal on 6 August 2019. Mr X explained that the letters attached to his signed statement were from companies where he had worked. He said that each time he finished a contract with a company, he would get a reference from the company and keep it.[26] Mr X told the Tribunal that he finished working in Papua New Guinea in 1973.[27]
[26] Transcript 6.08.2019, p 12, lines 36-38.
[27] Transcript 6.08.2019, p 12, lines 44-45.
Mr X gave evidence that his brother worked in Papua New Guinea for 25 years and has the same surname.[28]
[28] Transcript 6.08.2019, p 13, lines 13-14, 18-19.
Under cross-examination, Mr X affirmed his previous statement that he is not the father of the applicant.[29] Mr X gave evidence that he had never been in a relationship with the applicant’s mother.[30]
[29] Transcript 6.08.2019, p 13, line 37.
[30] Transcript 6.08.2019, p 14, lines 7-8.
Mr X gave evidence that in 2006 the applicant approached him and asked him for money.[31] Mr X denied saying to the applicant that the applicant was his son.[32]
[31] Transcript 6.08.2019, p 14, lines 1-3.
[32] Transcript 6.08.2019, p 20, line 28.
CONSIDERATION
There is no issue that the applicant is a person who born outside Australia on or after 26 January 1949. The applicant has provided evidence of his good character.[33] The eligibility of the applicant for citizenship by descent depends on whether he has a parent who was an Australian citizen at the time of his birth to satisfy the requirements of section 16(2)(a) of the Act.[34] The application before the Tribunal is based upon the contention of the applicant that Mr X is the biological father of the Applicant.
[33] Exhibit I, various character references. See also Australian Citizenship (Policy Statement), 27 November 2020.
[34] Australian Citizenship (Policy Statement), [3.4] (27 November 2020).
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka,[35] Moshinsky J remarked:
there is no basis to depart from the ordinary meaning of the words used in s 16(2), which is that the eligibility requirements of the provision need to be satisfied as a matter of fact, as distinct from deeming based on later adoption. Neither the context nor the purpose of the provision suggest that the requirements can be satisfied on a deemed basis. Accordingly, in my view, it is necessary for an applicant for citizenship under s 16 to show that they had, at the time of their birth, a parent with Australian citizenship as a matter of fact (as distinct from deeming based on later adoption).[36]
While this application does not concern an adoption, it is evident from the remarks of His Honour that before the application for Australian citizenship by descent can be granted under section 16(2) of the Act, it is necessary that I find as a fact that the applicant at the time of his birth had a parent with Australian citizenship.
[35] [2020] FCA 1471.
[36] [2020] FCA 1471 at [54].
In his application for Australian citizenship the applicant has claimed that his date of birth was 24 October 1976. That date of 24 October 1976 is the date which appears in the “Certificate of Birth Entry”. The applicant was born in a rural village and his mother gave birth to him in a nearby bush in the village. The applicant states that this is a common practice in the village. I accept that it is not unusual for a birth of a child in a rural region to not be promptly registered and in some cases may never be registered. There were, at the time of his birth, no hospitals or clinics around the village where the applicant was born and so the applicant is unable to provide any records concerning his birth or immunisation as requested by the Department. The mother of the applicant is unable to clearly remember the applicant’s birth date. She is also illiterate as she did not attend any formal school education.[37] This is certainly no criticism of the applicant’s mother. It is, however, a worthwhile observation as it tends to explain the dearth of contemporaneous documentary evidence of the circumstances of the applicant’s birth.
[37] Exhibit I, schedule two, document (ii); Applicant’s reply to submissions dated 6 January 2021, para 4B.1.
The applicant’s mother, in her statutory declaration dated 11 December 2018, claimed to have given the applicant the surname of Mr X at the time of the applicant’s birth. As I have earlier mentioned, the earliest documented use of the surname of Mr X in connection with the applicant appears to be in 2008. I am satisfied that the applicant did not use this surname until around 2008.
Although the applicant was born on 24 October 1976 it was not until 23 May 2017 that a certificate of his birth was registered. The relevant policy document provides guidance that birth certificates provided on self-declared information may not be correct.[38] The fact that Mr X is listed on the “Certificate of Birth Entry” as the father of the applicant is not in itself probative that Mr X is indeed the father of the applicant. The applicant accepts that the birth date as listed on the “Certificate of Birth Entry” may not be accurate.
[38] Exhibit J, Australian Citizenship Procedural Instructions – CPI 23 – Determining Parent-Child Relationship for the Purposes of the Citizenship Act, s 3.4.
It is fair to say that the applicant has not been consistent in his statements as to when he was born. When the applicant was giving evidence and learned that Mr X had departed from Papua New Guinea in 1973, he then proffered that he could have been born in 1973. Following the hearing, the applicant now contends that that his mother was pregnant with him in 1973.[39] Before the “Certificate of Birth Entry” was issued on 23 May 2017 which recorded the applicant as being born in 1976, the applicant had also used a surname which was different from the surname of Mr X. This different surname was used in his secondary school records in 1995, his college records in 1998 as well as in his employment records in 2008. The uncle of the applicant enrolled him in primary school and informed the school that his date of birth was 24 October 1976.
[39] Applicant’s reply to submissions dated 6 January 2021, para 4C.7.
I consider that it is more probable than not that the date of birth of the applicant was sometime on or about 24 October 1976, rather than in 1973. I would expect the uncle of the applicant to have an accurate recollection of the date of birth of the applicant. Because Mr X had departed from Papua New Guinea in 1973, it is not possible for him to be the father of the applicant.
Mr X, in his signed statement dated 5 August 2019, has stated that to the best of his knowledge he was not the father of the applicant.[40] Mr X also gave evidence before the Tribunal which was consistent with his statement. I accept his evidence in that regard. The applicant has submitted that Mr X “refused to swear on the Bible because he wanted to lie”.[41] I do not accept this submission of the applicant that I should form a critical view of the credibility of Mr X because he gave his evidence on affirmation and not under an oath. A witness is entitled to make an affirmation rather than swear an oath for any personal reason. Originally, a person was permitted to make an affirmation where that person could not swear an oath for religious reasons.[42] I therefore do not accept that this criticism of Mr X has any basis.
[40] Exhibit F.
[41] Applicant’s reply to submissions dated 6 January 2021, para 6.16.
[42] Queensland Law Reform Commission, Report on the Oaths Act (QLRC, Report no 38, 31 March 1989), p 54.
The applicant was also critical of the circumstances of the departure of Mr X from Papua New Guinea in 1973. The applicant contends that Mr X departed from Papua New Guinea when he learned of the pregnancy of his mother. However, the contemporaneous employment records which are in evidence show that Mr X was leaving his employment “on his own accord as construction work is being phased out”. The applicant has asserted that he was given gifts by Mr X; however, this does not enable me to be satisfied that Mr X was the biological father of the applicant at the time of his birth
If indeed the applicant was born in 1973, and if Mr X was his father (which I do not accept is the case), this application cannot succeed. Mr X became an Australian citizen on 5 March 1976. If the applicant was born sometime in 1973 and Mr X was his father, Mr X would not have been an Australian citizen at the time of the applicant’s birth as required by section 16(2) of the Act.
There is no independent evidence before me that shows that Mr X is the father of the applicant. While there are statements made by relatives and associates of the applicant, these persons have not been called to give evidence. The statements do not contain references to matters such as critical dates which would enable me to reach an informed conclusion.
The applicant has also made a request that the Tribunal “exercise some of its powers to compel a mandatory DNA testing on me and [Mr X]”[43] to ascertain whether Mr X is the father of the applicant.
[43] Exhibit I.
This Tribunal derives its powers from statute. As Deputy President Todd remarked in Parke and Repatriation Commission:[44]
The Tribunal derives its jurisdiction from Commonwealth legislation and its powers are conferred in specific terms. Unless it has power so conferred on it, it can do nothing.
Similarly, in TWWH and Minister for Home Affairs [45] Deputy President Forgie remarked: “The Tribunal is a body established by statute and its powers are limited to those given to it by statute. Those powers may be expressly stated or may be implicit.”[46]
[44] (1985) 2 RPD 404.
[45] [2018] AATA 3371.
[46] [2018] AATA 3371 at [12].

The Commonwealth Parliament has not vested the Tribunal with any jurisdiction to order that DNA testing be undertaken as it has, for example, with the Family Court which has power to order a “parentage testing order”[47] where a child's parentage is in issue. Consequently, the Tribunal does not have power to require Mr X to undertake DNA testing. If it is indeed the case that the applicant was born in 1973, there would be no utility in DNA testing. This is because even if DNA testing confirmed that Mr X was the father of the applicant, the applicant would have been born some 3 years before Mr X became an Australian citizen. In these circumstances the requirements of section 16(2) of the Act would not be met.
[47] Family Law Act1975 (Cth), s 69W.
As a matter of completeness I should record that this application is not based upon Mr X being a parent in the non-biological sense as explained by the Full Court of the Federal Court of Australia in H v Minister for Immigration and Citizenship.[48] There certainly is no cogent evidence which would enable me to make a finding that Mr X could be regarded as a parent in the non-biological sense.
[48] (2010) 188 FCR 393; [2010] FCAFC 119.
CONCLUSION
I am unable to find as a fact that the applicant at the time of his birth had a parent with Australian citizenship as required by section 16(2) of the Act.
DECISION
I affirm the decision under review.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 11 June 2021

Dates of hearing:
6 August 2019, 10-11 November 2020

Date final submissions received: 8 January 2021

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

Dates of hearing:	6 August 2019, 10-11 November 2020
Date final submissions received:	8 January 2021
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore