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Who is my father?

Citizenship by decent – who is my parent?

Think of this scenario: you are an Australian citizen and you apply for Australian citizenship for your child. After a long wait the Department finally contacts you. You are required to provide relationship evidence and do a DNA test. Can you refuse it?

CHAN and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 21 (16 Jan 2019)

In Chan’s case, Mr. Chan is an Australian citizen who applied for a citizenship by decent application for his son born in 2015 in China. Mr. Chan claimed to be the biological father of the child, and had presented a copy of the birth certificate to prove this. However, due to some reasons, Mr. Chan was not able to provide further evidence to prove that he and the child’s mother was in a relationship at the time of the child’s birth. Mr. Chan also refused to do a DNA test to substantiate his claim after receiving the Department’s request.

The citizenship application was therefore refused. Mr. Chan appealed to the Administrative Appeals Tribunal (the AAT).

The AAT set aside the Department’s decision for reasons including but not limited to:

  1. Mr. Chan completed his tertiary education, including a PhD degree in Australia and was offered a position of lecturer. Ms. Chan was considered a person of good character and the evidence he gave was of significant weight to the Tribunal.

  2. The birth certificate issued by the Chinese authorities must be accepted as back the one-child policy was still implemented in China and the Chinese government was very strict on verifying parents’ details.

  3. The required marriage certificate was lost, but if required, Mr. Chan was willing to go through the process and manage to get a copy reissued by the authority.

  4. Photos that could help demonstrate the required relationship were saved in a mobile, but they were all lost due to the mobile camera’s malfunction.

  5. Mr. Chan has provided emotional, financial and physical support to the child.

Take-home messages

As the AAT decision was just made on 16 Jan 2019, it is unclear whether the Department would appeal against the decision at the Federal Court. What we can learn from this case is that it is of paramount importance about how an applicant frames his arguments, particularly in situations where applicants have limited evidence to support their claims. If you would like professional help when preparing your applications and framing arguments, please book a consultation with one of our experienced migration agents today.

Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.

Photo by Derek Thomson on Unsplash

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