Tribunal’s Decision to Set Aside the Department’s Decision to Refuse the Australian Citizenship by Descent Application
This is the case where the Tribunal set aside the decision of refusing the Applicant’s Citizenship Application with the direction that applicant is eligible to become an Australian citizen as he had a parent, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).
Background of the Applicant Who Had Applied for Australian Citizenship by Descent
The applicant is an Albanian national with Italian citizenship who was adopted by an Australian citizen on 17 May 1995. In his application for Australian citizenship by descent, he records his birth parents as PB (name redacted), male (adoptive parent) and GK (name redacted), female. The applicant’s adopted father was born in Albania and obtained his Australian citizenship by conferral on 24 January 1955. He later passed away in 1997.
Before a decision was made on the application, the department requested the applicant to provide additional information to demonstrate that the Applicant had at least one parent who was an Australian citizen at the time of his birth. The applicant responded and informed the delegate that he was not a biological child of any Australian citizen.
The Decision to Refused the Australian Citizenship by Descent Application
Delegate of the Minister for Home Affairs later refused the Applicant’s application for Australian citizenship by descent, because at the time of his birth he did not have a parent who was an Australian citizen.
The relevant sections in the Citizenship Acts for this cases are s6 where it defines what is ‘responsible parent’, s13 where it talks about citizenship by adoption, s16 of the Act outlines the provision for application and eligibility for citizenship, subdivision AA where it talks about persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement; along with chapter 5 and 20 of the citizenship policy.
S53 of the Adoption Act 1984 was also discussed to provide arguments in favor of the applicant.
The meaning of the ‘parent’ is not defined in Citizenship Act however it was held in v Minister for Immigration and Citizenship [2010] FCAFC 119 that "parent" in the Act is not limited to biological parents and that a non-biological parent may be held to be a parent in certain circumstances. The Court found that being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological; and that ‘for non-biological parents, parentage is not just a matter of biology but of intense commitment to one another, expressed by acknowledging that other person as one’s own and treating him as such before and at the time of birth.’
The court also commented on whether the child applying for citizenship by descent must assume a person accepting the status of a parent at the time of a birth is, in fact, a biological parent, 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: see, for example, M v M [2006] HCA 51; (2006) 226 CLR 551. The court has also discussed the legislative history of s16 and concluded that a person born in Australia is an Australian citizen in certain circumstances, may include that “a parent ... is an Australian citizen ... at the time the person is born”.
The meaning of parent in M v P was also discussed where the court found that it is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. High court noted that Section 16(2) looks to the time of the birth of a person and treats this time as relevant for determining eligibility for citizenship by descent. But in Australia a person is adopted after the time of birth, and usually well after this time: see Adoption Act 1993 (ACT); Adoption Act 2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act 2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984 (Vic); and Adoption Act 1994 (WA). Section 13 recognizes this, treating the time of the adoption as the relevant time for the purposes of eligibility for citizenship.
In the case of K (an infant) [1953] 1 QB 117 the court also noted that the purpose of adoption is to extinguish all the rights, duties, obligations and liabilities of the parent in regard to the infant, [and] to vest those rights, duties, obligations and liabilities in the adopter, and to convert the infant into the legal equivalent of a child born to the adopter in lawful wedlock, to whom the natural parent becomes in the eye of the law a mere stranger.
The Tribunal’s Decision to Set Aside the Department’s Decision to Refuse the Australian Citizenship by Descent Application
The tribunal therefore found that based on all the cases listed above, the definition of parent envisaged different tests for the recognition of the parent-child relationship; for example, a DNA test for biological factors, an intense commitment to one another before and at the time of birth for social factors and formal adoption for legal factors. A legal adoption can be considered under section 16(2)(a) of the Act as a fact, as the child is considered to have been born to the parent.
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