DNA Testing for Citizenship By Descent

The Department of Home Affairs may request for DNA testing before they are satisfied with granting Australian Citizenship by Descent. But do they have power to make such a request?

Firstly, we should understand the requirements of Australian Citizenship by Descent. The requirements are actually quite straightforward. The only main requirement is to show that at the time of birth outside Australia, one parent was an Australian citizen.

In our experience, we have seen the Department requesting for DNA testing to be satisfied of biological parentage. However, we have seen recent cases of the Tribunal overturning the weight to be placed on DNA testing. For example, in the case of Chan, the Tribunal did not place sole weight on the DNA results because:

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

2.     It was sufficient that the Government of China and Hong Kong recognised he was the child’s biological father.

So why else do they request for DNA Testing?

Another requirement for the grant, is that the Minister must be satisfied of the identity of the person. The Department has used the DNA results to confirm one’s identity but this is an improper exercise of their power and misapplication of the law.

In our research, we found another fundamental case, BSYH and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 814 (17 October 2016). In this case, the Australian father had completed DNA testing to confirm his biological parentage of the applicant. As the mother did not complete the DNA testing, the Department refused the application.

The Tribunal Member held that it was sufficient to meet the requirements of Australian Citizenship by Descent, and combined with the other identity documents provided, it was sufficient to be satisfied of the applicant’s identity. It was not necessary for the mother to also complete the DNA testing because to do so would be conflating the requirement to be satisfied of the mother’s identity too.

“I do not accept the argument put on behalf of the Minister. To do so would replace the requirement of satisfaction as to the   identity   of the Applicant with a requirement of satisfaction as to the   identity  of one of the Applicant’s parents. Clearly, the   identity   of the I do not accept the argument put on behalf of the Minister. To do so would replace the requirement of satisfaction as to the   identity   of the Applicant with a requirement of satisfaction as to the   identity  of one of the Applicant’s parents. Clearly, the   identity   of the Applicant’s parent who was the Australian citizen at the time of the Applicant’s birth must be established. In this application that fact is not in dispute.

Applicant’s parent who was the Australian citizen at the time of the Applicant’s birth must be established. In this application that fact is not in dispute.”

How can we help you?

DNA testing is a sticky situation as it also traverses into privacy laws. If you are an Australian Citizen who has not done a DNA test to prove the parental relationship with your child who was born outside Australia, please contact us immediately.

We speak fluent English, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.