Paul Cutler's Migration Case Law Blog
Who is a parent?
The meaning of “parent” for the purposes of s16(2) Australian Citizenship Act 2007 is not limited only to biological parents. When Charlotte Nguyen’s mother applied for evidence that her daughter was an Australian citizen, the question arose about whether Mr Lieu (who is an Australian citizen) was Charlotte’s father. No DNA test was undertaken. Mr Lieu’s relationship with the mother had ended about 3 months after Charlotte’s birth. However, he was named on the birth certificate, had paid child support and there was a Medicare card.
The Full Court (see Minister for Immigration v Lieu [2023] FCAFC 57 ) was critical of the delegate who focussed on the nature of the relationship between Ms Nguyen and Mr Lieu. The judgment referred extensively to the earlier decision of H v Minister of Immigration and Citizenship (2010) 188 FCR 393. In H v Minister, the court considered that there was nothing in the legislation which limited the word “parent” to mean only biological parents. Being a parent was not just a matter of biology but of intense commitment. The girl’s father had shown commitment to her from the time of birth, believing her to be his biological daughter and caring and raising her as if she was. H v Minister contains a detailed analysis of the meaning of the word parent (by reference to both legal and everyday meanings). It also considers issues of statutory construction and the object of the citizenship legislation.
In the end, the Minister’s appeal in Lieu was dismissed.
There are a number of other cases which are also in this “who is a parent” space, including FMR18, by her litigation guardian FSH18 v Minister for Home Affairs [2018] FCA 1632. Once again a non-biological father was found to be a parent. There is also the AAT case of Ibrahim and Minister for Home Affairs (Citizenship) [2019] AATA 4294 where the Member was satisfied that the child was “informally” adopted at birth due. There was evidence full acceptance and responsibility being taken for the child. There was also financial and emotional support provided to the child’s mother prior to, and at the time, of the birth.
The lesson from these cases appears to be that there must be evidence to show that the child had been treated, by the Australian citizen, as if he/she were their own child from the time of birth.
Creative commons acknowledgement for the photograph.
Citizenship and character
Whether or not someone is of good character is an issue which can arise in migration law as the basis for refusing or cancelling a visa. Character is also an issue which has to be considered in the context of applications for citizenship. Unlike the Migration Act, the Australian Citizenship Act does not have a definition of what “good character” means. As a result the test from Irving v Minister...
Fairness and Capacity
Karan v Minister for Home Affairs [2019] FCAFC 139 is yet another recent Full Court character cancellation case. Mr Karan (a citizen of Fiji) had a history of alcohol and drug addiction and mental illness. He represented himself before the AAT. The jurisdictional error which was alleged in the courts at first instance and on appeal was that he had been denied procedural fairness because the...
Interpreted generously but…
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was...
Logical Connection
There are only very limited grounds on which fact finding can be challenged on a judicial review application. This is highlighted by MZZGE v Minister for Home Affairs [2019] FCAFC 72. In that case, the Applicant (pregnant with a second child) said she would be forced to have an abortion and be sterilised if returned to China. It was also claimed she would face various societal pressures...