Federal Court (Full Court). For a person to be a ‘parent’ within the meaning of s 12 of the Australian Citizenship Act 2007 (Cth), must he or she be the biological parent of the child? Can it be said that, "whether the relationship between [the Respondent's mother and the Respondent's claimed father] was “genuine and continuing” at the time of [the Respondent's] birth or whether [her mother] may have made misrepresentations concerning the extent of her relationship with [the claimed father] is of limited relevance to, much less determinative of, the statutory question"?
Section 12(1)(a) of the Australian Citizenship Act 2007 (Cth) provided as follows: "A person born in Australia is an Australian citizen if and only if ... a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born".
Section 37 of the Act provided as follows:
(1) A person may make an application to the Minister for evidence of the person’s Australian citizenship.
Note: Section 46 sets out application requirements (which may include the payment of a fee).
Notice
(2) The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.
...
The Applicant applied under s 37(1) of the Act for a citizenship notice to be given, providing the following pieces of evidence, among others:
- The birth certificate, which showed a Mr Lieu as the Applicant's father;
- Evidence that Mr Lieu was an Australian citizen at the time of the Applicant's birth;
A delegate indicated that the above evidence was not sufficient to convince him that Mr Lieu was the Applicant's father and requested that the Applicant provide a DNA test. The Applicant responded that she could not locate the father, with the result that a DNA test was not undertaken. The delegate refused to give the notice under s 37(2), reasoning, inter alia, as follows:
I am satisfied that Miss Lieu’s birth certificate is a legitimately issued evidence of her birth in Australia, and that Mr Lieu appears to have consented to his inclusion on Miss Lieu’s birth certificate. However, as birth certificates are completed with information that is self-declared by the informants, the birth certificate in itself is not evidence of parentage, and must be considered in the context of other available information. I therefore place little weight on this document as evidence that Miss Lieu acquired Australian citizenship at the time of her birth by virtue of having a parent who is either an Australian permanent resident or an Australian citizen.
...
In the absence of evidence of a biological link between Mr Lieu and Miss Lieu, I have turned my mind to relevant factors, including social and legal, to establish whether there was any parent-child relationship between the two at the time of Mr Lieu’s birth. As part of this consideration, I have examined the relationship between Mr Lieu and Ms Nguyen, both before and at the time of Miss Lieu’s birth.
The Respondent successfully applied to the Federal Court (FCA) for judicial review of the delegate's decision. The Minister then appealed to the Full Court of the FCA (FCAFC).
Some of the questions to the FCAFC were as follows:
Question 1: Can it be said that "a person can only be a ‘parent’ within the meaning of [s 12] where it can be established that he or she has a relevant genetic link to the applicant"?
Question 2: Is the question of whether a person is a parent for the purposes of s 12 of the Act one of fact?
Question 3: Can it be said that, "whether the relationship between [the Respondent's mother and the Respondent's claimed father] was “genuine and continuing” at the time of [the Respondent's] birth or whether [her mother] may have made misrepresentations concerning the extent of her relationship with [the claimed father] is of limited relevance to, much less determinative of, the statutory question"?
Question 4: Is "self-declared" information provided to governmental agencies such as the Department of Human Services about the parentage of a child capable of having independent probative value, as it is given on pain of prosecution for false statements, even though not conclusive?
Question 5: If the the delegate had pre-judged the whole review by immediately attributing a dishonest motive to the Respondent's mother and the person claiming to be her father, would that be evidence of legal error?
Question 6: If the delegate's reasons refer to non-biological parentage, and if the delegate had the Australian Citizenship Instructions before him, setting out "in relatively clear terms that a person does not have to establish a biological link to a child to be a “parent” for the purposes of s 12 of the Act", does that suffice to indicate that the delegate understood and applied the law?
Question 7: If the answer to Question 4 is 'yes', is it the self-declaratory character of that information provided to governmental agencies which is the very feature which gives them significance?
Question 8: In a task such as the one under s 37 of the Act, does the formation of a lawful state of satisfaction about parentage "necessarily require a decision-maker to engage with material produced by, or arising from, formal processes under Australian law that bear a relationship to parentage"?
Question 9: If the answer to Question 7 is 'yes', does that requirement "affect the decision-maker’s ability to evaluate the material, and to do so against other considerations such as the decision-maker’s rational and reasonable assessment of the genuineness of those individuals involved in any application"?
Question 10: Can it be said that "each of the birth certificate, the child support payment documents and the Medicare card (and the newborn declaration that generated it) were the products of government processes dependent on the existence of a relationship of parent and child"?
Question 11: If the answer to Question 7 is 'yes', was the delegate required to understand what each of materials produced by, or arising from, formal processes under Australian law represented, before deciding what weight to accord them, and what status (if any) they had in the question under s 37?
Question 12: If the answer to Question 10 is 'yes', were legislative schemes underpinning those materials relevant to a correct appreciation of the significance of the documents in the assessment of whether the Respondent was the child of an Australian citizen?
Question 13: Were other Acts of Parliament on what is required for parentage to be recognised conclusive of the question under s 37(1) of the Act of whether the Respondent's claimed father was her parent?
Question 14: Can it be said that "the joint parental responsibility for applying for a birth certificate, and the circumstances in which a person’s identity may be entered as a parent, were critical factors in the task under s 37"?
Question 15: Is the the establishment of materiality necessary for an error to be recognised under the ADJR Act?
Answer: Mortimer CJ: [her Honour said that the error was material "[t]o the extent it is necessary to determine “materiality”", which indicates that the Chief Justice did not categorically say whether or not materiality was required".]
Question 16: Is the amount of child support payments relevant to the fact of parentage?
Question 17: Did the process for obtaining a Medicare card under the Health Insurance Act (including completion of the newborn child declaration) plainly inform the delegate’s consideration of what a Medicare card in the claimed father's name, listing the Respondent as a dependent, might say about the Respondent's parentage?
Question 18: Can it be said that, "without significantly probative evidence of dishonesty, and thorough reasoning, it is irrational to assume [that the Respondent's mother] would have been party to fraudulent conduct at the time she was giving birth", as "the provision of photographs from that time is not only rational, but the provision of the best evidence"?
The FCAFC answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Monthly Subscriptions
Annual Subscriptions
Where GST applies, the above amounts are inclusive of GST.
Content Types
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.