Can Babies Born Outside Australia be Qualified as an Australian Citizen?
The decision in Ghalzai and Minister for Home Affairs (Citizenship)  AATA 74 (31 January 2019) depicts that despite the fact that DNA test excluded the ‘parent’ from being biological parent, babies who born outside Australia can also be qualified as an Australian citizen.
Visa Applicant Background
Minister’s Delegate refused the Australian citizenship to Muhammed Azan Ghalzai (a minor, born in 2013) (‘the Applicant’) because the delegate considered that the Applicant did not have a parent who was an Australian citizen at the time of his birth. Mohammed Ibrahim Ghalzai, an Australian citizen claimed to be the Applicant’s father. However, two separate and independent DNA showed that he was not the biological father of the Applicant. The Applicant’s mother is Mr Ghalzai’s second wife wedded under Islamic law and is not an Australian citizen. Subsequently, Mr Ghalzai sought a review from the Tribunal.
The Tribunal decided to set aside the delegate’s decision to refuse the Australian citizenship by remitting the decision back to the Department with the direction that the applicant satisfied the requirement of s 16(2)(a).
Whether Mr Ghalzai is considered to be the Applicant’s ‘father’?
Why Did the Tribunal Decide to Remit the Australian Citizenship Application?
The father-son relationship should be understood not only in a biological way but also in a social way. The parentage is not only a matter of biology but rather defined as a strong commitment to another, expressed by treating and regarding another person as one’s own.
The following considerations are mentioned in the Tribunal in the event that the biological relationship is absent:
Anything which would prove the Australian citizen was present at the birth of the child;
Evidence that the Australian citizen was provided significant financial support to the mother before or immediately after the birth of the child;
Evidence that the child was recognised socially from or before birth as the Australian citizen’s child;
Evidence that the Australian citizen spend a large amount of time to take care of the mother and the child at the time of his/her birth;
In the case of Ghalzai, Mr Ghalzai provided evidence detailing the financial, emotional and physical support that he provided to the child and mother. Mr Ghalzai also proved the Applicant was recognised and accepted as his child by his family members and other people in the community that he lived in.
Although Mr Ghalzai is not the biological father of the Applicant, he genuinely and sincerely believed that he is the Applicant’s father and undertook father’s duty by giving all his love and commitment to the Applicant.
However, Mr Ghalzai has two wives, which means there are two separate families sharing one husband, one in Australia and one in Pakistan. As a father to both, it is impossible for Mr Ghalzai to be in two countries at the same time and he is only able to work in one place at a time to be a bread-winner to support two families. Since the Family Law Act 1975 acknowledges the “Polygamous marriages shall be deemed to be a marriage”, the Tribunal is satisfied on the evidence before it in addition to Mr Ghalzai’s oral evidence.
For the above reasons, Mr Ghalzai satisfied the temporal requirements of section 16(2)(a) of the Act.
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