Child left ‘stateless’ after estranged Australian father couldn’t be reached for DNA test, court hears

The Department of Home Affairs rejected an Australian-born child's citizenship application after her estranged Australian father couldn't be reached to provide a DNA test, which her lawyer says rendered her "stateless".

In a decision quashed by the federal court, the overseas-born mother of the child was told the department did not have proof of a biological link to the father - despite his name being listed on the girl's birth certificate and Medicare card, his payment of child support and photos of the pair together.

In a move that support workers say has become increasingly common, a department official had said a DNA test should prove whether the father - who the mother said was no longer in contact with the family - was biologically linked to the child, now aged six.

The application was rejected when no test was conducted.

Michaela Rhode, the Asylum Seeker Resource Centre's gender clinic coordinator, represented the mother, and said requests for DNA tests in citizenship cases for children when one parent is on a temporary visa or seeking asylum and the other is an Australian citizen had become increasingly common over the past five years.

"Even if we provide an overwhelming amount of evidence that meets the legal requirement for citizenship to be recognised and support that there is a parent-child relationship, they're still pushing for the DNA test," she said.

She said if a woman had fled a violent relationship, re-engaging with a perpetrator had significant risks.

"Women find it difficult to leave dangerous situations and to be forced into a situation where, even though they're able to provide a lot of alternative evidence, they're still being forced to try and reach out to perpetrators and bring them back into their lives in order to get the DNA test is problematic and puts them in an untenable situation."

Under Australia's Citizenship Act, a child born in Australia is a citizen if a parent of the person is a citizen.

According to the Federal Court decision, the mother - who first made the citizenship application for her child in 2017 - did not have a valid visa at the time of her daughter's birth in Melbourne in 2015.

She said her relationship with the father broke down about three months after the child's birth and despite trying to contact him she had not heard from him.

In 2020 the department rejected the citizenship application.

The child's lawyers later told the federal court that the decision "has the practical effect" of leaving the girl "stateless".

The court last month ordered the department reconsider the child's application.

In the judgment Justice Shaun McElwaine said the department had misunderstood the law by asserting that a birth certificate was not "evidence of parentage" and failed to consider the circumstances where the mother was unable to contact her child's father because they were no longer in contact.

In a statement the department said an appeal has been filed and it could not comment further on the case.

A spokesperson said the department it endorsed DNA testing as a useful tool in verifying a claimed parental-child relationship in cases where documentary evidence - such as birth certificates - may be scant or unreliable.

"DNA testing is optional. It is used in a very small proportion of citizenship cases to support a parent-child relationship," a spokesperson said.

But Maria O'Sullivan, a Monash University law professor and the deputy director of the Castan Centre for Human Rights Law, said there was an issue of "true consent".

"Is it really consent given that they're not going to get citizenship unless they consent to this?" she said.

Prof Mary Crock, a professor of public law at the University of Sydney, told Guardian Australia the new federal government should focus on creating legislation that stipulates how people determine and prove their identity.

"It raises really interesting questions about identity because there are generations of people who have been in Australia their whole lives but can't show who they are. A lot of them are Indigenous Australians - this is the knock-on effect of the stolen generations, as parents didn't want to register the children," she said.

"Then you've got children brought out to Australia after world war two with the mass child migration program. A lot of them lost their identity papers."