Koka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5289

Tribunal: Member A Burke

The applicant applied to the Department of Home Affairs (the Department) to become an Australian citizen by descent[1] and was refused.

The Department claimed the applicant failed to prove he had at least one parent who was an Australian citizen at the time of his birth. The applicant was adopted by his Australian citizen father, P Koka, when he was 10-years old.

The applicant sought a review from the AAT claiming the Department’s decision was wrong in law.

The AAT determined the following was not in dispute:

P Koka was the legally adopted parent of the applicant

P Koka was an Australian citizen at the time of the applicant’s birth

P Koka was not the applicant’s parent at the time of the applicant’s birth

The AAT considered whether the applicant’s adopted father being an Australian citizen at the time of the applicant’s birth, which he was, regardless of whether he had adopted the applicant yet or not, was sufficient grounds to satisfy the Australian Citizenship Act [2].

The AAT considered the ordinary meaning of being a parent to include various social, legal and biological factors. ‘An adopted child becomes in law the child of the adopter or adopters, … as if the child had been born to the adopters. This is sometimes known as the ‘substitution principle’, because in law the adoptive parents are substituted for the birth parents’.[3]

The AAT considered the applicant’s relationship to his adopted father as if he had been born to him and so found his adopted father was his parent at the time of his birth.

The AAT set aside the decision and remitted it for reconsideration with the direction the applicant had a parent who was an Australian citizen at the time of his birth.[4]

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