Australian Immigration Daily News

Deciding who is a parent for migration purposes is not as simple as it seems.

The definition of “parent “is found in Section 5(1) and Section 5CA of the Migration Act.

Section 5(1)

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5ca.html

See also Regulation 1.14A of the Migration Regulations.

http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s1.14a.html

However in 2010 the Full Federal Court handed down a judgment that expanded the meaning of the word “parent.”

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/119.html

The case involved the meaning of the word “parent” in Section 16(2) of the Australian Citizenship Act with the court holding that “parent” could mean a person who was not biologically related to the child.

Set out below is an extract from the judgement;

131 We can discern no relevant justification for holding, as the Tribunal did in NWH’s case, that a person can only be a "parent" within the meaning of s 16(2) where it can be established that he or she has a relevant genetic link to the applicant. If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen: see Citizenship Act, ss 16(2) (a), 17(1A), 19A. As a practical matter, we do not consider that Parliament would have intended the likely unfortunate results of the Minister’s construction (see [79]). The practical effect of this construction would be to accord the science of genetics a status that Parliament has not given it.

Although this decision related to the Australian Citizenship Act it has important consequences for migration law as well.

A footnote-the case did not end happily for the applicant.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/23.html