The Decision of the Full Court and the Tribunal's Decision
21 Just as the primary Judge experienced "difficulty" in understanding the "question of law" advanced before him for resolution, this Court expresses comparable difficulty in understanding the "Grounds of Appeal".
22 In one form or another, however, the Grounds of Appeal focus attention upon whether the Administrative Appeals Tribunal correctly applied the decision of the Full Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119, 188 FCR 393.
23 In that decision the Full Court, constituted by Moore, Kenny and Tracey JJ, entertained extensive submissions as to the meaning of the term "parent". Those submissions extended from the history of legislative amendments, the use of the term "parent" in other provisions of the Australian Citizenship Act, to the common law and overseas authorities. Having canvassed that material, their Honours relevantly concluded:
Bringing the threads together
[127] There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s 16(2), the word "parent" only can mean biological parent. Indeed, these considerations indicate that the better view is that the word "parent" in s 16(2) has the meaning it bears in ordinary contemporary English usage. Indeed, legislative history confirms that this approach is most in keeping with the development of citizenship legislation over time and with the spirit and intendment of the current Citizenship Act. No sound reason has been advanced to warrant a more limited reading of the word.
[128] The word "parent" is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: … This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do.
[129] Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough … Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the "parents" of a person. 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.
[130] The ordinary meaning of the word "parent" is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning. Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant's birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant's parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent's conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word "parent" at the time of the birth. In the case of Ms McMullen, this was in substance the conclusion reached by the Tribunal with regard to Mr McMullen. The minister has not shown any relevant error in the Tribunal's finding that Mr McMullen could qualify as Ms McMullen's Australian citizen parent for the purpose of s 16(2)(a) of the Citizenship Act.
24 In applying this decision, the Tribunal relevantly set forth its reasoning and findings in part as follows:
[26] In coming to a decision we accept the Full Court's comment that parent today can indicate a social relationship to another person, and that the parent need in some circumstances, not be a biological parent. We note that the Full Court also urged upon us not to attribute some technical meaning to the word parent, but rather to give it its ordinary meaning as evident in ordinary contemporary English usage, and of course we must do that.
[27] We are satisfied from Ms W's evidence that Mr H is not NWH's biological parent. In order to establish to our satisfaction whether Mr H satisfies being a parent to NWH in the terms of the Act, and whether NWH can therefore be conferred citizenship by descent, we have considered various indicia.
[28] Ms W's evidence was that she and Mr H met on the internet, and that she had known him on the internet for 5 months before they met. Ms W says she is able to write in English but cannot speak it, while Mr H does not speak Mandarin. She said that Mr H came to China and, 2 days after he arrived on 8 June 2008, they married. She said that he is a good man, and wanted to marry her in spite of the fact she was pregnant at the time. Ms W also told us that Mr H was not in China when NWH was born in September 2008. In fact Mr H only spent approximately 2 weeks in China in 2008. We noted from the evidence that the first time Mr H met NWH was on a return trip to China in May 2010, when Mr H, Ms W and NWH spent a week together.
[29] When we asked her about Mr H's occupation, Ms W said that she does not know what work he does in Sydney. She added that he had been a security guard at one time. Ms W also told us that Mr H has not given, and does not give her any money to support her, or the child, but that she has sufficient money as she has a good job with a telecommunications company in China.
[30] Ms W told us that distance does not stop a relationship forming, and that she and NWH see Mr H when they communicate via internet video calls. We are not convinced to the requisite standard that a parental relationship can be formed between NWH and Mr H, partly because NWH and Ms W speak Mandarin, whereas Mr H speaks English, and no Mandarin.
[31] When we questioned Ms W about Mr H's role in relation to NWH, she insisted that he has a good relationship with the child, and brought him toys when he visited. She also tendered photographs of "Australian" souvenirs which are in a bundle of photographs before us as Ex A2. We asked Ms W about Mr H's role in bringing up NWH. She said that the child is too young for any major decisions to be made about him. Notwithstanding Ms W's evidence that she and Mr H speak on the telephone, we are satisfied from the evidence that he was not, and is not actually involved in bringing up NWH.
The Tribunal thereafter went on to set out the steps it had taken - unsuccessfully - to secure Mr Hudson's appearance at the hearing before it. The Tribunal also set forth what it accurately described as a statement "formal in nature" that had been provided by Mr Hudson. The Tribunal stated at [37] that Mr Hudson had "…offered no financial support, and plays no role in making decisions about the boy's life". It ultimately concluded as follows:
[38] Accordingly our conclusion is that we are not satisfied that Mr H has established the requisite degree of connection as a parent with NWH, and accordingly, NWH is not eligible for Australian citizenship by descent pursuant to s 16(2)(a) of the Act.
25 The Tribunal reached its conclusion based upon its factual findings. It accepted that a person may be a "parent" even though not the biological father of a child ([2011] AATA 286 at [20] and [26]) and went on to consider the relationship that existed in fact between Mr Hudson and Ms Wang's son. Although it is no part of the function of this Court to trespass into the factual merits of the manner in which the Tribunal resolves a claim before it, it is not considered inappropriate in the present proceeding to note that the factual conclusion of the Tribunal that Mr Hudson is not the "parent" of the son is clearly correct. Indeed, a "question of law" may well have arisen had the Tribunal reached any contrary conclusion on the evidence before it.
26 More relevantly, the primary Judge was clearly correct when he concluded that the Tribunal understood its "task … as being to answer a question of fact, not a question of law": [2011] FCA 1134 at [12]. His Honour was clearly correct in further concluding that the Appellant's "'question of law' is not a question of law, but if it is, it is not a relevant question of law on which to found the appeal": [2011] FCA 1134 at [15].
27 Before this Court the argument for the Appellant seemed to change emphasis. Although it was not understood that Ms Wang wished to abandon her argument that Mr Hudson was properly to be regarded as a "parent" of her son by reason of their relationship, she seemed to also advance a further and discrete argument. This alternative argument was that Mr Hudson was the "parent" of her son simply by reason of the fact that she and Mr Hudson had married prior to his birth. Even though Mr Hudson was not the biological father or a person who had a sufficiently close personal relationship such that he could be regarded as a "parent" within the approach of H v Minister for Immigration and Citizenship, the fact of marriage alone (Ms Wang submitted) was sufficient to satisfy the requirements of s 16(2)(a) of the Australian Citizenship Act.
28 However the Grounds of Appeal are to be construed, and whatever may be the argument advanced by Ms Wang, the appeal is without merit.
29 The approach to be taken when resolving whether a person is a "parent" for the purposes of s 16(2)(a) of the Australian Citizenship Act is that set forth in H v Minister for Immigration and Citizenship. When that approach is applied to the present facts, it is apparent that there never has been a "legal parent-child relationship" between the Appellant and Mr Hudson. Contrary to the submission advanced on behalf of the Appellant, the mere fact that a mother has married prior to the birth of a child does not of itself make the husband the "parent" of the child in circumstances where it is not contradicted that the husband is not the biological father. The decision in H v Minister for Immigration and Citizenship is authority for the proposition that a person may be the "parent" of a child for the purposes of the Australian Citizenship Act even though not the biological "parent". That decision is no authority for the proposition that a person necessarily becomes the "parent" of a child merely by reason of having married the biological parent prior to the birth of the child. Nor is there any support for Ms Wang's proposition to be found in the terms of the Australian Citizenship Act.
30 The findings of fact as made by the Tribunal necessarily dictate a conclusion that Mr Hudson could not on any view be regarded as the "parent" of the Appellant for the purposes of s 16(2)(a) of the Australian Citizenship Act.