Can a Baby Born Offshore Be Qualified for An Australian Citizenship If There Is No DNA Test to Show the Parental Relationship?

The decision in KHCC depicts that despite not having DNA test to show the parental relationship, a baby who was born outside Australia can also be qualified for Australian citizenship if only one of the person’s parent was an Australian citizen at the time of birth.

Fact Summary

Minister’s Delegate refused to grant Australian Citizenship to KHCC (a minor, born in 2015) (the Applicant) because the delegate considered that he was not satisfied that he was the biological child of one parent who was an Australian citizen at the time of his birth.  The Applicant’s mother is not an Australian citizen. His father is Australian but delegate disagreed that the Australian father was the Applicant’s biological father, as there was insufficient evidence to prove the father-son relationship because KHCC failed to undertake any form of DNA test.  Subsequently, the Australian father sought a review from the Tribunal to review the delegate’s decision.

The Tribunal set aside the delegate’s decision and the Applicant was considered to have satisfied the requirement of s 16(2)(a) of the Australian Citizenship Act 2007.

Key Legislation

 Applications for citizenship by descent for Applicants born outside Australia (after 26 January 1949) are dealt with under s 16(2) of the Australian Citizenship Act 2007 (the Act).

Key Issue

Whether the Australian father is the Applicant’s ‘parent’?

Tribunal’s Reasoning

‘Parent’ should be understood as not only biologically but also socially, because parenthood is not considered to be just a matter of biology but of intense commitment and caring for another.

In order to protect the integrity of the citizenship system from fraudulent attempts to make citizenship claims, the following considerations should be considered if there is the absence of a DNA test:

• anything which would prove the Australian citizen’s inclusion as a parent on the birth certificate was done with their previous consent;

• evidence that the Australian citizen was involved in providing care for the unborn child and/or the mother during the pregnancy;

• evidence that the child was recognized socially from or before birth as the Australian citizen’s child;

• when a child is born through a surrogacy arrangement – a signed surrogacy agreement entered into before the child was conceived and lawful transfer the parental status before or at time of birth in the surrogate country;

• Evidence that the Australian citizen treated the child as their own after birth would not by itself prove that they were the child’s parent at the time of birth but would lend weight to evidence of the types already mentioned.

In the case of KHCC, the Australian father provided evidence detailing the relationship between the Applicants’ mother and himself, and submitted a registered birth certificate of the local government of the Applicant. The Australian father also proved that he had registered the Applicant’s birth in both the Chinese and Hong Kong governments.

Although the Tribunal considers the evidence submitted as not be considered as determinative, Tribunal was satisfied that the Australian father is the biological father of the Applicant as the Tribunal found it was persuasive enough that both the government of China and the Hong Kong recognized that the Australian father was present at the child’s birth and family members of the Australian father also accepted the Applicant as his child.

Besides, the Tribunal was satisfied that the Australian father's relationship with the mother and the child existed at the time of birth. Therefore, he satisfies the temporal requirements of section 16(2)(a) of the Act.

How Can We Help You

If you are Australian Citizen who has not done a DNA test to prove the parental relationship while your child who was born outside Australia, please contact us immediately.

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