1. In the course of reviewing the written material before it, the Respondent's Department also invited the Applicant, Mr Rae and Ms Rosales to undertake DNA testing as a means of establishing a biological and, ultimately, a parent-child relationship between the Applicant and Mr Rae. This invitation was declined. On 23 April 2025, the Respondent's Department refused the application for citizenship by decent.3 There followed, on 16 May, 2025, an application for merits review of the decision under review.

1. Section 16(2) is found in Part 2 Division 2 Subdivision A of the Act. The specific provision relates to persons born outside Australia on or after 26 January 1949. It requires that "a parent of the person [seeking citizenship by descent] was an Australian citizen at the time of birth". [my emphasis] Mr Rae acquired Australian citizenship by birth. The residual question is whether Mr Rae can be found to be a "parent" of the Applicant at the time of her birth. .

Revised Citizenship Procedural Instructions ("CPI 14")

1. The Act does not carry a definition of "parent". For the conceptual purposes of s 16(2)(a) of the Act, a "parent" goes beyond a strictly biological connection and can

3 Hereinafter referred to as the "decision under review."

extend to children of non-biological parents who are Australian citizens. This is confirmed in paragraph [3.1] of CPI 14 but it comes with the rider that the parent-child relationship needs to have existed at the time of birth of the Applicant.

Parent must have been present at the time of birth

1. Paragraph 3.2.1 of CPI 14 provides that for this Applicant to qualify for Australian citizenship by descent, the relevant parent (i.e., Mr Rae) must have been present at the time of her birth:

"In Minister for Immigration, Citizenship and Multicultural Affairs v Su [2024] FCAFC 68, ["MICMA v Su"] the FFC [Full Federal Court] regarded the term 'at time of birth' to be at the precise time of the physical birth.

Therefore, for automatic citizenship by birth in Australia which requires the applicant to have an Australian citizen or permanent parent at the time of birth under section 10 of the 1948 Act or section 12 of the Act and Australian citizenship by descent under section 16(2) of the Act which requires the applicant to have an Australian citizen parent at time of birth, delegates need to be satisfied that the parent child relationship existed at the time of the applicant's birth. That is the moment the child physically emerges from the mother...and does not extend to a period beyond that."4

1. Paragraph 3.2.3 of CPI 14 deals with establishing a biological link between the child and the putative parent. It provides that:

"Evidence that a claimed biological parent-child relationship existed at the time of a child's birth can include, but is not limited to:

• Medical evidence and/or records of conception, pregnancy and birth of the child;

• DNA test provided by the applicant (not through departmental process). Note: Such a test is generally given less weight that a DNA test that has been undertaken as per departmental process; ...

Where the delegate is not satisfied of the circumstances of the claimed biological parent-child relationship, for example, information accompanying the application is scant or unreliable, delegates may invite the applicant and the claimed parent/s to undertake a DNA test. ...

DNA testing is not mandatory. Applicants can only be invited to undertake DNA testing and may choose not to do so. However, it is open to the delegate to consider the applicant's reason/s for declining the offer, and whether any adverse inferences should be drawn from this".5

Evidentiary onus where there is no biological link

1. Paragraph 3.2.4 of CPI 14 explains the evidentiary onus in circumstances where doubt exists about a claimed biological link:

"Where there is a non-biological link that has been acknowledged, or the circumstances indicate the claimed parent is not or is unlikely to be a biological parent, documentary evidence of the parent-child relationship must be requested.

Delegates should carefully scrutinise evidence provided to ensure it has not been manufactured... . Depending on the circumstances, further information may be requested or an interview may be conducted regarding the claimed circumstances of the relationship.

Delegates should note that in circumstances where there is a non-biological claim, it is unlikely that any one piece of evidence will be sufficient to prove the required parent-child relationship. Delegates are required to weigh up all relevant factors, including social and legal, to reach a finding of fact as to whether the claimed parent was the child's parent at the time of birth.

Evidence that a claimed parent-child relationship existed at the time of a child's birth may include, but is not limited to:

• evidence that the claimed Australian citizen or permanent resident parent was involved in providing care for the unborn child and/or the mother during the pregnancy. For example, emotional, domestic or

financial support, making arrangements for the birth, antenatal and postnatal care etc.;

• evidence that the child was acknowledged socially at or before birth as the claimed Australian citizen or permanent resident parent's child;

• joint travel by the parents prior to the birth of the applicant such as flight tickets. Note: Movement records can be checked to checked to see if parents were travelling at the same time;

• legal documents entered into pre or post birth; ..."6

H v Minister for Immigration and Citizenship [2010] FCAFC 119 ("H v MIC")

1. H v MIC is the predecessor to the abovementioned MICMA v Su. The Full Court in H v MIC extended the definition of "parent" for the purposes of the Act beyond a strict biological connection to make citizenship available to children of non-biological parents who are Australian citizens.

1. At paragraph [67], the Full Court said section 16(2)(a) of the Act requires the citizen parent to be a parent of the applicant "at the time of the [applicant's] birth". In other words "parenthood must be established as at the time of birth." Further, the concept of "at the time of birth"...qualifies both the status of being a parent and the parent's citizenship."

1. On the theme of non-biological parentage, the Full Court also said "Whilst commonly one may assume that a person accepting the status of a parent at the time of birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship."7

1. At paragraph [70], the Full Court examined the legislative history of section 16 of the Act and said: "Having regard to that legislative history, the clear better view is that s

7 See H v Minister for Immigration and Citizenship [2010] FCAFC 11 at [68] per Moore, Kenny & Tracey JJ.

16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. ...there is no indication in the extrinsic materials that the Parliament intended to change this basic test."

1. I respectfully concur with the findings of the learned appeal court judges at paragraphs [67], [68] and [70] of the decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119. Accordingly, I predicate these reasons on the basis that for the purposes of section 16 of the Act:

(a) the concept of "parent" can be extended beyond a strict biological connection;

(b) that the citizen parent must establish such parentage as at the time of the Applicant's birth; and

(c) from a legislative historical perspective, Parliament always intended s 16 of the Act to mandate a contemporaneous intersection between the birth of an Applicant child and having a parent with Australian citizenship.

1. The task of the Tribunal in the present case thus becomes one of looking for evidence of parentage between the Applicant and Mr Rae. In the words of the learned Full Court, "Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one's own and treating him or her as one's own."8

1. Both parties agreed the issue for determination by this Tribunal is whether the Applicant is eligible for Australian Citizenship by descent pursuant to the provisions of section 16(2) of the Act. Put another way, this determination involves a finding as to whether

the correct or preferable decision is that Mr Rae was in a parent-child relationship with the Applicant at the time of her Applicant's birth.

1. The plain and strict legislative requirement is for there to be a parent-child relationship precisely at the time of birth. Any shortfall in establishing that requirement cannot be assuaged by evidence of the development or emergence of a parent-child relationship after birth. This is not to suggest that post-birth evidence should be viewed as irrelevant to the central issue. Post-birth evidence may assist with providing context in the determination of the central issue. But more fundamentally, it would be unsafe to rely on post-birth evidence of a parent-child relationship several months or years after the birth as a means of making a definitive finding about the state of the relationship at the time of birth.

1. This is why the CPI 14 is configured towards directing decision-makers to look for and take into account evidence precursory to or contemporaneous with the birth. For example, did the putative parent attend milestone antenatal medical events?; are there documents pointing to evidence of a parent-child relationship prior to or contemporaneous with the birth?; is there evidence of any social acknowledgement of the child at or before birth as the putative parent's child? There seems little to cavil with the proposition that Parliament's clear intention in legislating for this particular path of citizenship involved a decision-maker being positively satisfied of there being a parent-child relationship at the time of birth.

1. A decision-maker cannot reach that positive level of satisfaction where a putative parent, for example, was not present at the precise moment of birth but was present during the post-natal period while the birthing mother was recovering and convalescing in hospital. Even then, the parent-child relationship at the time of birth is not established.

1. According to the evidence of Ms Rosales (the Applicant's mother) she and Mr Rae had an affair in 2006 and that she fell pregnant with the Applicant in March 2007. The relevant certificate of live birth (of the Applicant) does not record Mr Rae's name as the father of the Applicant. Indeed, no father of any description appears in this document with the relevant section for the identity of the father carrying the word "unknown". Ms Rosales says Mr Rae provided her with financial support while she was pregnant and that he has likewise supported her throughout their relationship.

1. Several reasons are given about why the certificate of live birth did not record Mr Rae's name as the father. Ms Rosales was apparently concerned about adverse consequences arising from her conducting a relationship with a man who was already married to someone else. She claimed to have also been concerned about facing societal pressure and stigma about bearing a child out of wedlock. As the Respondent's Statement of facts Issues and Contentions ("SFIC") notes, there is a troubling level of illogicality in this claim. If Ms Rosales was concerned about her own society's negative perceptions of the Applicant's legitimacy as a child born out of wedlock, why then was the certificate of live birth silent about the identity of a father?

1. A further explanation behind the failure to record the name of a father in the certificate of live birth was due to a fear that if so named, the named father could somehow obtain lawful custody of the Applicant and remove her from the primary care of Ms Rosales. This explanation is tenuous in circumstances where it is now propounded by both Mr Rae and Ms Rosales that they were in a defacto relationship at the time. The further point is this: the "record" in terms of what the certificate of live birth says about any father for the Applicant has, on the Applicant's case, been incorrect for almost two decades. Yet no attempt has been made to rectify that record by inserting the name of Mr Rae as the Applicant's father. Any suggestion the relevant authorities in the Philippines move very slowly in rectifying such records can be safely rejected.

1. A contention was put on behalf of the Applicant that there once existed a series of social media / electronic platform communications between Ms Rosales and Mr Rae which were said to be demonstrative of a developing and subsisting de-facto relationship between them. Some of these communications were said to be descriptive of Mr Rae's involvement with Ms Rosales during the period leading up to the Applicant's birth. However, those communications cannot now be produced because the

electronic platform via which these communications passed is said to no longer exist resulting in the communication history being deleted. This evidence should be received with caution. Thus any evidence around co-parenting arrangements remains uncertain and is based almost entirely on self-reported evidence of Ms Rosales and Mr Rae. Their evidence is not corroborated by the written evidence before the Tribunal.

1. I agree with the Respondent's submissions: the tenuous nature and largely unsubstantiated extent of the relationship between Ms Rosales and Mr Rae does not establish, to any positive level of satisfaction in the mind of this Tribunal, the existence of any parent-child relationship between the Applicant and Mr Rae at the time of the Applicant's birth. Plus, while there is no denying at least some measure of familiarity between Mr Rae and Ms Rosales at or around the time of the Applicant's birth, the evidence falls well short of establishing either of (1) the social stigma around her bearing a child out of wedlock or (2) any risk of Mr Rae forcibly removing the new-born Applicant child from her care.

1. In response to a request for further information from the Respondent's Department, Mr Rae provided a statement in which he spoke of providing cash payments to Ms Rosales to meet daily expenses related to food, municipal costs as well for antenatal medical checks and / or treatments arising from the pregnancy as well as costs related to the Applicant's birth. As for a cogent reason behind the relative dearth of evidence comprising any photographs suggestive of any close relationship between them and any documentary proof of supportive payments by him to her at or around the time of the birth, it is said none of this evidence is available because, at that time, the relationship was conducted under the cloak of an extra-marital affair.

1. It can be accepted Mr Rae has made supportive payments to Ms Rosales. I noted (with due respect) at the hearing that Mr Rae has proven to be a good provider not just to Ms Rosales, but also to his ex-wife (in Australia) as well as his other children by his earlier marriage. But the critical difficulty presented by the evidence in this matter is that it demonstrates Mr Rae's support to Ms Rosales occurred at a time well beyond the time of the Applicant's birth.

Does a Family Law Act (1975)(Cth) provision apply?

1. To repeat, the Tribunal is being asked to accept there was a parent-child relationship at the relevant time exclusively on the self-reported evidence of Ms Rosales and Mr Rae which is now provided some two decades after the Applicant's birth. It would be unsafe for this Tribunal to be positively satisfied about any parent-child relationship between the Applicant and Mr Rae on the basis of this evidence.

1. An argument is propounded on behalf of the Applicant that s 69R of the Family Law Act (1975) (Cth) ("FLA") applies to the instant facts. The argument is put in these terms:

"In accordance with section 69R of the [FLA], there is a presumption of parentage that arses from registration of birth. That is, if an individual's name is entered on a relevant register of births under Federal or State / Territory laws as a parent of a child, that individual is presumed to be the parent of that child."9

1. The argument is propounded in circumstances where the Applicant's birth certificate was amended in August 2024 such that Mr Rae is now recorded as the Applicant's father. It is said this amendment facilitates the operation of s 69R of the FLA such as to now give rise to a presumption of parentage between the Applicant and Mr Rae that arises back from the time of registration of the Applicant's birth. This presumption may have currency in the family law jurisdiction but it does traverse the legislative requirements of s 16(2)(a) of the Act and its constituent CPI 14. This is why neither the Act of the CPI 14 carry any reference to an automatic presumption of parentage referable to one document, let alone one altered almost two decades after a relevant person's birth.

1. A derivative contention is then put on behalf of the Applicant in these terms: that the Applicant's birth certificate updated in 2024 "...forms an important piece of evidence of Mr Rae's self-identification as the Applicant's parent, which is one of the hallmark factors identified in [H v MIC] and referred to in the CPI by reference to social

acknowledgement of a child."10 The contention can be rejected on two grounds. First, any reliance on the amended birth certificate to now demonstrate Mr Rae's self-identification as the Applicant's parent does meet the requirements of the CPI 14. This is so because "social acknowledgement" for the purposes of the CPI 14 is predicated upon social acknowledgement at the time of the relevant person's birth. The fatal difficulty for the Applicant is that the birth certificate issued at the time of her birth did not record the Applicant as her father.

1. Second, while the plurality in H v MIC referred to a birth certificate as "...a critical government record...[comprising] the products of government processes dependant on the existence of a relationship of parent and child. ...,"11 any reliance on the amended birth certificate based on this passage from H v MIC is impacted by the same fatal element impacting Mr Rae's self-identification as the Applicant's parent on the basis of birth certificate amended in 2024. Yes, a birth certificate is an important government record; and yes, a birth certificate is a product of a government process predicated on a parent-child relationship. On the instant facts, it is beyond argument that (1) the Philippines authorities produced, at the time of the Applicant's birth, a birth certificate that made no reference to Mr Rae as her father and (2) those authorities issued that birth certificate predicated on the existence of a relationship only between the Applicant and her mother, Ms Rosales. The birth certificate issued contemporaneously with the Applicant's birth makes no mention of Mr Rae.

Any social acknowledgment of Mr Rae as the Applicant's father?

1. The evidence of the Applicant's witnesses does not advance the issue of any social acknowledgement of Mr Rae as her father at the time of her birth. Their evidence derives from circumstantial and inferential apprehensions arising from what they were told by Mr Rae and / or Ms Rosales as opposed to first hand knowledge about what they saw or experienced. Mr Rae's long-term friend, Mr Simon Street, concludes Mr Rae is the father of the Applicant based exclusively on what Mr Rae told him: "I was with Michael [Rae] when he first met Bernalyn Rosales and was aware of their relationship from the start. Michael told me straight away when Bernalyn informed him

she was pregnant with their first child."12 The evidence of Mr Rae's ex-wife, Ms Allison Rae, is likewise based on what he told her and, more importantly confirms she knew nothing of the Applicant being Mr Rae's daughter until after the birth:

'I have been married to Michael [Rae] since 23 April 2005. We had a brief period of separation in around October or November 2008. In fact, the separation was triggered as I became aware of Michael's relationship with Bernalyn and the existence of his daughter, [the Applicant] during a fight.

I did not know about Michael's relationship with Bernalyn or [the Applicant's] birth until after [the Applicant] was born. ..."13

1. In her statement, Ms Rosales' mother, Ms Raymunda Veraque, forms a view about the paternity of the Applicant exclusively on what Ms Rosales told her: "My daughter Bernalyn V Rosales get pregnant to Mr Michael Rae last March 2007 to my grand daughter [the Applicant]."14 Likewise the evidence of the Applicant's sister, Ms Rose Rosales, who said: "My younger sister and I was together the time she is pregnant to my niece [the Applicant] in March 2007. I knew from Bernalyn that she was dating Michael at that time and that he was the father of [the Applicant]."15 Accordingly, little weight can be allocated to the evidence of Mr Street, Mrs Rae, Ms Veraque and Ms Rose Rosales.

1. Much of this uncertainty could have been resolved by an agreed intervention of science in the form of DNA testing. There is no legislative compulsion on the Applicant / Mr Rae to undergo DNA testing in an application like this. That said, this Tribunal will not draw any adverse conclusion from the refusal to undergo DNA testing. Further, the Tribunal accepts the absence of DNA evidence is not necessarily determinative and does not give rise to any negative presumption. The reasons given for the refusal to undertake

DNA are themselves curious. As best as I recall the evidence, the refusal was broadly based on (1) the cost and logistical scope of the testing process and (2) anticipated trauma / impact on the Applicant.

1. Yet Mr Rae is clearly a man of means who has provided for a large number of people within his orbit. I am hard-pressed to believe the testing cost was beyond his material means. And further, even if the DNA test came back negative, the Applicant would be in no worse position than she is now. That is, she would have been subjected to exactly the same process (i.e these proceedings) to which she has already been subjected. On the contrary, if a favourable DNA result ensued, the Respondent may well have taken a different view about s 16(2)(a) of the Act. However, and to repeat, this Tribunal will not draw any adverse inference from the refusal to undergo DNA testing.

Any other documents showing a parent / child relationship?

1. In terms of documents contemporaneous with the Applicant's birth we are therefore left with the abovementioned certificate of live birth in which Mr Rae is not named. This failure to name Mr Rae in important documents appears to have persisted until quite recently. Despite the evidence of financial contributions by Mr Rae towards Ms Rosales, the evidence contains a "Deed of Absolute Sale" dated 19 July 2024, via which Ms Rosales (as "Buyer") acquires a "...parcel of agricultural land..." from a named "Seller" for a sum of "ONE HUNDRED FIFTY THOUSAND PESOS (Php 150,000.00)". Ms Rosales is named in this document as "...BERNALYN VERAQUE ROSALES, of legal age, single, Filipino. ..."16 [My emphasis].

1. There seems little doubt that Mr Rae has provided funds to Ms Bernalyn across a number of years. But the evidence seems opaque as to how those funds were precisely applied. It appears he periodically sent cash to her which she drew down on to meet a particular expense or expenses. It may be that Ms Rosales spent at least some of those funds on raising the Applicant. To my mind, the evidence about financial support does not rise to a state of positive satisfaction of a parent-child relationship between Mr Rae and the Applicant at the time of her birth. Rather, the totality of the evidence

referable to financial contributions seems more indicative of a long-distance relationship Mr Rae was conducting with Ms Rosales as opposed to the existence of a parent-child relationship at the time of the Applicant's birth.

1. Mention should also be made of the report of the Registered Psychologist, Mr Dan Sheptooha which appears in the material and is dated 10 September, 2025.17 In essence, Mr Sheptooha was briefed to look back some two decades and opine as to whether there can be found to have been a parent-child relationship between Mr Rae and the Applicant. From these findings, the Tribunal is then asked to somehow form a presumption of there having been a parent-child relationship at the time of the Applicant's birth. While there can be question about Mr Sheptooha's expertise and knowledge in his field, I am hard-pressed to understand how his findings in 2025 can now be safely relied upon to determine whether a parent-child relationship existed between the Applicant and Mr Rae at the time of her birth some two decades ago.

1. Mr Sheptooha was briefed to examine and opine on things such as (1) the quality of the relationship between the Applicant and Mr Rae; (2) the "attachment style" between them; (3) the "Expressions of affection - how does [the Applicant] demonstrate affection for [Mr Rae]?"; (4) "The cultural and socioeconomic factors that have shaped their relationship"; and (5) "...has the extended family (both in the Philippines and Australia)...been supportive of the bond between [the Applicant] and [Mr Rae]?' Mr Sheptooha interviewed both Mr Rae and the Applicant for the purposes of his report. He also psychometrically tested the Applicant. His findings are predicated on those interactions made in 2025.

1. While there is no historically clinical connection between Mr Sheptooha and either of Mr Rae or the Applicant, I have no reason do doubt either the veracity of Mr Sheptooha's findings based on his impressive professional credentials or whatever the Applicant and Mr Rae self-reported to him. But to repeat, it would be patently unsafe for this Tribunal to, as it were, superimpose Mr Sheptooha's findings in 2025 upon the

precise time of the Applicant's birth (some two decades ago) to now reach a positive level of satisfaction of a parent-child relationship between her and Mr Rae. Accordingly, in terms of the assistance Mr Sheptooha's report can now render to the central question before this Tribunal, only very limited weight can be allocated to it.

1. The legal status of the Applicant does not impact the Tribunal's central task for present proposes which is whether, as a matter of fact, a parent-child relationship existed between her and Mr Rae at the precise time of her birth. The phrase "the time" for present purposes refers to a specific point in time (of the birth) as opposed to a range of time or a general period. This specific point does not even encompass an entire day.18 While a relationship may have developed between the Applicant and Mr Rae subsequent to her birth, the central question for present purposes can only be resolved by determining the nature of the relationship prior to and at birth.

1. On the state of the material before me, there is insufficient evidence with respect to Mr Rae's involvement at the time of the Applicant's birth in order for the parent-child relationship between them, as contemplated by s 16(2)(a) of the Act, to be established. All is not lost for the Applicant. Her capacity to reside here as the dependant of an Australian citizen will not be imperilled by an adverse outcome in the instant application. With the fulness of time, alternate avenues towards Australian citizenship will become available to her.

1. The decision under review is affirmed. I will make an order in these terms.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

............................[sgd].............................

Associate

Dated: 14 April 2026