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

This matter concerned an application for citizenship by descent, brought by the applicant, YXTS, against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute centred on whether the applicant had established, as a matter of fact, that he had a parent who was an Australian citizen at the time of his birth, as required by section 16(2)(a) of the Australian Citizenship Act 2007 (Cth). The decision was made by Deputy President McDermott of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had discharged the onus of proving, to the satisfaction of the Tribunal, that Mr X was his biological father and that Mr X was an Australian citizen at the time of the applicant's birth. This required the Tribunal to assess the evidence presented by the applicant, including his own statements, his mother's statutory declaration, and supporting documents, against the evidence and contentions put forward by the Minister. The Minister's case highlighted inconsistencies in the applicant's stated dates of birth, the absence of independent evidence of paternity, Mr X's denial of paternity, and the fact that Mr X had left Papua New Guinea before the applicant's claimed birth date.

The Tribunal considered the evidence in light of the principles established in *Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka*, which affirmed that eligibility for citizenship by descent under section 16(2) must be satisfied as a matter of fact, not by deeming. Despite acknowledging the difficulties in obtaining contemporaneous documentary evidence of birth in the applicant's rural upbringing and his mother's illiteracy, the Tribunal found that the applicant had not established as a fact that Mr X was his father and an Australian citizen at the time of his birth. The Tribunal noted Mr X's denial of paternity and the applicant's shifting accounts of his birth date, which, when considered with Mr X's departure from Papua New Guinea in 1973 and his Australian citizenship date of 1976, did not satisfy the factual requirement.

Consequently, the Tribunal was unable to find as a fact that the applicant had a parent who was an Australian citizen at the time of his birth, as mandated by section 16(2) of the Act. Accordingly, the Tribunal affirmed the decision under review.