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Level 7, 530 Little Collins Street

Melbourne, VIC, Australia

Level 3, 21 Taepyung-Ro

Jung-Gu, Daegu, South Korea​​

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James Bae - Solicitor

Andrew Topalovic - Solicitor

Fernando Seo - Lawyer Consultant, Korea

Jang Eun Lee - Lawyer Consultant, Korea

  • Visa Plan Australia

Citizenship by Descent - Child abandoned at hospital and Nurse assumed the care

Su and Minister for Immigration, Citzenship, Migrant Services and Multicultural AFfairs (Citizenship) [2020] AATA 590


Facts

The applicant was born in 1998 with a deformity of a cleft lip and palate. His biological parents were members of the Akha minority people who believed that any abnormality or deformity in a child means they are cursed and the child is at risk of being killed. Likely because of these beliefs, his birth parents secretly left the hospital and abandoned the him to the care of the hospital soon after the birth. This was reported to the local police who determined that the parents could not be found.

Ms Alexandra Jagelman, worked for a non-government organisation called Project Grace, later changed to Bless China International, providing maternal and child health training to local health workers at the hospital. As part of her work, Ms Jagelman visited the applicant in the birthing room and became concerned that he was very weak, dry in the mouth and at risk of dying. She spoke to the Director of the hospital, and with the approval assumed the care of the applicant from three days after his birth. She had then raised him as her own child.

Relevant Laws

Section 16(2)(a) of the Citizenship Act 2007 - A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth...

It is settled in common law that a person does not have to be a biological parent in order to be a parent for the purposes of s.16(2)(a) of the Act, as per the Full Court of the Federal Court in H v Minister for Immigration and Citizenship (2010) 188 FCR 393.

Question of Fact

The question whether a person is a parent under the section should encompass the full description in the section – whether the person was a parent at the time of birth. The Tribunal is to consider the evidence, to determine as a question of fact whether the person was a parent at the time of birth. In this sense, the time of birth is part of the factual matrix necessary to determine the question.

Adversarial Positions

The respondent submits that the phrase means the moment of birth. Ms Jagelman was not a parent of the applicant if the factual circumstances are assessed only at the moment of birth or even on the day of the birth. She had no knowledge of the applicant’s birth until the day after his birth and had no knowledge of the pregnancy which preceded it.

The applicant contends that the time of birth is not a rigidly fixed time (such as the moment of birth) and should be given a more flexible meaning which fits with various factual circumstances that can attend individual cases. It means a period following the birth that is understood in common parlance to indicate the time of the child’s birth and that this would encompass the three days after the applicant’s birth before Ms Jagelman took the applicant into her care.

Case Laws

Minister for Immigration and Border Protection v VDQS: Where the father was present at the birth and involved with the child from the time of birth, the court and Tribunal have accepted non-biological paternity without the involvement of the father in the birth at all.

H v Minister for Immigration and Citizenship: The father did not visit Fiji until shortly after the birth as he had doubts about his paternity until blood tests were conducted shortly after the birth and he was found to have the same blood type as the child. Only then, were his doubts resolved and he accepted that he was the biological father.

Ghalzai v Minister for Home Affairs: The father was not present at the birth but travelled to Pakistan where the child was born within a few days. Members of his family performed religious rituals associated with the birth. Otherwise, there was little evidence of his connection with the child during the period immediately after the birth.

FMR18 v Minister for Home Affairs: The father was not present at the birth and did not travel to China where the child was born for almost twelve months. He was not advised of the birth until the day after the birth. The Court found that from the day he was informed of the birth which was the day after the birth, the father considered the applicant to be his child.

ABCD v Minister for Immigration and Border Protection: The father was not present at the birth of the child and did not travel to the Phillippines where he was born until 17 days afterwards.

Onyema and Minister for Immigration and Border Protection: The father did not return to Nigeria for the birth or for around four years after the birth.

Tribunal’s Deliberation and Decision

The evidence demonstrates that on and from the afternoon of the third day after the date of the birth, Ms Jagelman unequivocally acknowledged the applicant as her own and treated him as her own. She displayed the intense commitment to the applicant typical of parentage, which closely mirrored what would have been the case had matters proceeded with his biological mother. This was readily conceded by the Respondent. When the short period of time, from the moment of the applicant’s birth to the assumption of parental care by Ms Jagelman, is assessed retrospectively it presents itself as a reflection of the natural formation of the maternal bonds between a mother and her baby. In substance, the circumstances were the same as if he had been taken home from the hospital after three days by his biological mother.

Having regard to the evidence and the unique circumstances of this case and applying the plain ordinary meaning to the phrase at time of the birth, the Tribunal is satisfied that Ms Jagelman was a parent of the applicant from the time of his birth. Accordingly, the Tribunal finds that the applicant is eligible for Australian citizenship by descent under s.16(2)(a) of the Act.

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