Federal Court of Australia

Younas v Commonwealth of Australia [2025] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant was born in Lahore, Pakistan in 1993 or 1994.

2    The appellant appeals against the decision of the primary judge, dismissing an application for a declaration that the appellant is an Australian citizen by descent under s 10B(1) of the Australian Citizenship Act 1948 (Cth): Younas v Commonwealth of Australia (No 2) [2024] FCA 853 (PJ).

3    The issue on appeal is whether the primary judge erred in concluding that the appellant’s biological uncle, Mohammed Shahid, was not one of the appellant’s parents at the time of the appellant’s birth.

Issues summary

4    Section 10B(1) of the Act provided that a person born outside Australia is an Australian citizen if two conditions were satisfied:

(1)    the person’s name was registered for the purposes of s 10B at an Australian consulate within 25 years of birth; and

(2)    a “parent” of the person was at the time of birth an Australian citizen who had acquired Australian citizenship otherwise than by descent.

5    It was not in dispute that the first condition was satisfied. The primary judge found that the second condition was not satisfied.

6    Neither of the appellant’s biological parents was an Australian citizen at the time of his birth. Shahid, his biological uncle (on his father’s side), was since 1985, and remains, an Australian citizen. The appellant claims that Shahid was his “parent” at the time of his birth within the meaning of s 10B(1) of the Act.

7    It was accepted, both at first instance and on appeal, that the question of whether an individual is a parent for the purposes of s 10B(1) of the Act is a question of fact and degree to be determined according to the ordinary meaning of the word “parent” and is not limited to “biological parent”: H v Minister for Immigration and Citizenship (2010) 188 FCR 393 (in relation to s 16(2) of the Citizenship Act 2007 (Cth) which replaced the Act). The question directs attention to various factors, including social, legal and biological factors: H v Minister at [128]–[130] (per Moore, Kenny and Tracey JJ).

8    After conducting an evaluative assessment of the facts as his Honour had found based on the evidence, the primary judge concluded that the appellant’s uncle was not his “parent” at the time of his birth.

Summary of the appellant’s case at trial

9    The primary judge relevantly set out the background at PJ [16]–[25].

10    The appellant’s biological father (Mohammed Younas) was unwell at the time of the appellant’s birth. After fathering three further children with the appellant’s mother (Rubina Younas), the biological father died sometime after the last of those children was born in 1997.

11    The appellant’s case as pleaded and opened at trial was that because his biological father was suffering with serious health conditions, the appellant’s biological mother and father agreed with Shahid, before the appellant was born, that Shahid would assume the role of being the appellant’s “father” (PJ [187]). The primary judge found that there was no such agreement (PJ [200]). That finding is not challenged on appeal.

12    As explained by the primary judge, there were two main evidentiary footings on which the appellant’s case at first instance rested.

13    First, the appellant relied on evidence given by three members of his family. This evidence was primarily led to establish the existence of the agreement (PJ [13]).

14    Second, the appellant led evidence from an expert social anthropologist, Dr Adeem Suhail. Dr Suhail’s evidence was directed towards the nature of the joint family system and to establishing that such a family system was commonplace in Lahore at the time of the appellant’s birth (PJ [14]).

Witnesses

15    The primary judge identified the key individuals of the appellant’s extended family at PJ [6]. These included:

(a)    the appellant’s biological parents and their three other children, who are the appellant’s siblings;

(b)    the uncle (Shahid), his first wife and their four biological children;

(c)    the uncle’s second wife (Shabana Shahid), from whom he is now divorced, and their biological son (Asad), and

(d)    the uncle’s third (and current) wife, who resides in Pakistan.

16    Three members of the appellant’s extended family gave evidence, each of whom were cross examined:

(a)    Shahid;

(b)    Rubina; and

(c)    Fatima Shahid, a biological child of Shahid and the appellant’s cousin.

17    The primary judge expressed concerns as to the reliability of each of the appellant’s witnesses on the contested issues (see for Rubina (PJ [110]), for Fatima (PJ [42])).

18    By closing submissions, the appellant submitted that Shahid was not a credible witness and that all of his evidence should be rejected as unreliable (PJ [81]). The Commonwealth submitted that the uncle was prepared to lie, and did lie, when he thought that doing so would be to the advantage of himself or his objectives (PJ [83]) but weight could be given to evidence of representations which did not advance Shahid’s objectives.

19    As to the uncle, the primary judge found at PJ [84] and [86]:

I accept that the evidence Mohammed Shahid gave at the hearing of this proceeding cannot be relied upon unless it is corroborated, uncontroversial, or contrary to his perception of where his own interests lie. In many respects, Mohammed Shahid’s evidence was unsatisfactory. For example, his evidence in cross-examination by senior counsel for the Commonwealth concerning the circumstances in which he made his affidavits was unconvincing, and struck me in context as an attempt to walk away from statements he found inconvenient. Likewise, although he did accept that various forms contained information that came from him, Mohammed Shahid’s evidence at points that he had not read various forms, and that they had been filled out by friends and neighbours on the basis of their own knowledge, struck me as attempts to distance himself from the contents of the documents.

…

Nevertheless, I do not accept the applicant’s submission that Mohammed Shahid’s previous representations should all be treated in the same way as his evidence in court. It is certainly necessary to be keenly aware of where Mohammed Shahid likely saw his own advantage when making representations on migration forms, for example. But on the key question of whether he was a parent of the applicant at the time of his birth, there are many previous representations that are relevant, and which would not obviously be affected by any contemporaneous desire to distort the truth. For this overarching reason, and for more detailed reasons I will explain as I proceed, I do attach weight to the truth of some of Mohammed Shahid’s previous representations.

(Emphasis added.)

20    In this case, the primary judge has a very significant advantage over this court in making findings as to the reliability of each of the witnesses. The primary judge’s findings of primary facts are highly likely to have been affected by his impressions about the incredibility and unreliability of witnesses formed as a result of seeing and hearing them give their evidence.

Findings of primary facts

21    The primary judge made findings on the primary facts (at PJ [149]–[177]), including that there was no agreement of the kind asserted by the appellant. His Honour then carried out an evaluative assessment based on those primary facts to reach his conclusion on the ultimate issue: that the appellant’s uncle, Shahid, was not a parent of the appellant at the time of the appellant’s birth.

22    The primary facts included the following.

23    Some form of joint family system was in place in the appellant’s family at the relevant times (PJ [151]). From the time of the appellant’s birth until 2002, all members of the joint family had the same primary residence (PJ [157]).

24    There was no agreement that Shahid would be the appellant’s father as alleged by the appellant (PJ [158]). Underlying that finding were the following matters:

(a)    The appellant’s biological parents chose his name (PJ [166], [191]). Shahid had no role in the naming or registration of the appellant’s birth (PJ [192]).

(b)    The appellant went by “Hamza Younas” as a child whereas the biological children of Shahid were given the surname “Shahid” (PJ [168]).

(c)    The appellant knew his name was “Hamza Younas”, and that Mohammed Younas’ name was “Younas”, making it unlikely that, in light of the patrilineal naming conventions, the appellant did not know that Mohammed Younas was at least his biological father (PJ [193]).

(d)    The mother’s evidence that the fact that she and her husband were the biological parents of the appellant was a secret was rejected by the primary judge at (PJ [196]).

(e)    There was an expectation that as head of the joint family, Shahid would provide financially for the family and, as a member of the joint family, would contribute to the raising of children in the family, to the extent he could (PJ [197]).

(f)    The mother’s evidence that the appellant was admitted to school under the name “Shahid” despite that not being his real name, effectively as a means of facilitating his eventual migration to Australia (PJ [105]).

(g)    The change of name on entry to school made the existence of the agreement from before the appellant was born less likely (PJ [195]).

(h)    The appellant’s biological father, in addition to Shahid, was present at his birth (PJ [199]).

(i)    During cross-examination Shahid struggled to name one of the biological sons of his brother, other than the appellant (PJ [176]).

(j)    Shahid made at least three applications to secure Australian visas for his family after the date of the appellant’s birth. Critically, Shahid had not identified the appellant as among his children or dependents in any of the visa applications (PJ [202]).

(k)    Shahid did not make a plea in mitigation of sentence for dishonestly influencing a Commonwealth public official with respect to 11 citizenship applications, that, at least in relation to the appellant, despite not being the appellant’s biological parent, Shahid had been the non-biological parent of the appellant since the appellant’s birth (PJ [211]).

Grounds of appeal

25    The notice of appeal raised four grounds, one of which (ground three) is no longer pressed.

26    The first ground contends that the primary judge erred by:

(a)    wrongly proceeding on the basis that the word “parent” in s 10B of the Act could only cover one man (in the present context of a birth from a relationship between a woman and a man) at a time, when the correct position at law is that it is possible more than two persons may simultaneously be a “parent”; and

(b)    further or alternatively, failing to find that both the appellant’s biological father and his putative father were “parents” for the purposes of s 10B of the Act at the time of the appellant’s birth.

27    The second ground alleges that the primary judge erred by finding that it would have been relevant for the putative father (Shahid) to have raised the fact of non-biological parentage in his plea, when:

(a)    such matter was legally irrelevant to his plea; and

(b)    further or alternatively, all the evidence about the conduct of the putative father’s prosecution (by both the prosecution and defence), which was unchallenged, was to the effect that nobody turned their mind to the question of non-biological parentage.

28    The fourth ground alleges that the primary judge erred by failing to reconcile his findings about the existence of a naming convention and the appellant’s names, with the unchallenged and uncontradicted evidence that one of the putative father’s own biological children did not use a name that followed the same convention (PJ [166]–[170]).

Nature of the appeal

29    This is an appeal under s 24 of the Federal Court Act 1976 (Cth). It is an appeal by way of rehearing, whereby the Court “conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error”: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [57] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The task of the Court on appeal by way of rehearing is the correction of error: KMD v CEO (Department of Health NT) [2025] HCA 4 at [20] (per Gordon, Steward, Gleeson and Beech-Jones JJ), citing Allesch v Maunz (2000) 203 CLR 172 at [23] (per Gaudron, McHugh, Gummow and Hayne JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22] (per Allsop J); Lacey at [57] (per French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ). For the appellant to succeed in this appeal, this Court must be satisfied that the conclusions reached by the primary judge were erroneous. These proceedings do not entail judicial review of a decision of an administrator.

30    The question for determination by the primary judge was whether Shahid was a parent of the appellant at the time of the appellant’s birth. It is accepted that the question of whether a person is a parent of another is a question of fact. It involves an evaluation of primary facts. The question for the Court on this appeal is whether it is satisfied that the finding of the primary judge that Shahid was not a parent of the appellant at the time of the appellant’s birth was correct.

31    In deciding that question, this Court is bound to conduct a “real review” of the evidence given at first instance and of the primary judge’s reasons for judgment, in order to determine whether the primary judge has erred in fact or law: Lee v Lee (2019) 266 CLR 129 at [55] (per Bell, Gageler, Nettle and Edelman JJ). That review will be conducted with the appellate restraint described in Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (per French CJ, Bell, Keane, Nettle and Gordon JJ), and also in Fox v Percy (2003) 214 CLR 118 at [25] (per Gleeson CJ, Gummow and Kirby JJ) in so far as the primary judge made factual findings “which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: Lee at [25] (per Bell, Gageler, Nettle and Edelman JJ). Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”: Warren v Coombes (1979) 142 CLR 531 at 551 (per Gibbs ACJ, Jacobs and Murphy JJ).

32    By the grounds in his notice of appeal as elaborated upon in his written submissions, the appellant has not sought to identify the primary facts which he contends form the basis for the evaluative conclusion that Shahid was the appellant’s parent at the time of the appellant’s birth. Rather, the appellant sought to identify particular matters which he contends demonstrate erroneous reasoning by the primary judge. Approaching the matter in that way does not properly engage with the appellate jurisdiction being exercised in this case.

33    For the reasons that follow, this Court is not satisfied that the primary judge erred in the manner contended for by the appellant. Nor is the Court satisfied that the matters identified by the appellant in oral submission should lead it to conclude that Shahid was the appellant’s parent at the time of the appellant’s birth.

Ground 1(a)

34    The appellant contends that the primary judge erred by proceeding on the basis that the word “parent” in s 10B of the Act could only cover one man (in the present context of a birth from a relationship between a woman and a man) at a time.

35    The appellant contends that the correct position at law is that it is possible for more than two male persons to simultaneously be a ‘parent’. Counsel for the appellant gave the following examples of more than one person being simultaneously a parent to give more than two ‘parents’.

(a)    A new spouse when a surviving spouse remarries following the death of the other biological parent. The deceased biological parent is still a parent.

(b)    The situation in Chou v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs (2021) 286 FCR 459, where the father was not the biological father, as the child resulted from maternal infidelity.

(c)    Surrogacy arrangements.

36    The appellant’s contentions are rejected for two reasons.

37    First, we do not accept that the primary judge wrongly approached the matter with a construction of ‘parent’ which required there to be only two parents at any one time. The primary judge’s careful consideration of all the evidence shows that he did not adopt such a construction. The appellant’s biological father was alive at the time of the appellant’s birth. If the primary judge adopted the construction that the appellant alleges, his consideration would likely have stopped at that point.

38    To take one example, the appellant contended that there was a pre-existing agreement at the time of his birth, pursuant to which his uncle, Shahid, would be his parent (simultaneously with the biological parents). On the evidence before him, the primary judge rejected the existence of such an agreement (PJ [189], [200]). If the primary judge had adopted the erroneous construction as the appellant contends, there would have been no need for him to consider the agreement (or indeed any of the other factors relied upon) as the biological father would have been the only possible male parent at the time of the appellant’s birth.

39    As the primary judge observed at PJ [7] that the immediate question in the application before his Honour was a question of fact: whether Shahid was a parent of the appellant at the time of the appellant’s birth. An examination of the wording used by the primary judge in his reasons does not support the construction alleged by the appellant. The primary judge considered whether the uncle was “a” parent of the appellant at the time of the appellant’s birth.

40    The primary judge correctly identified at PJ [141] that the question of whether a person qualifies as “a parent” (emphasis added) within the ordinary meaning of that word is a question of fact: H v Minister at [130] (per Moore, Kenny and Tracey JJ). The primary judge went on to state correctly at PJ [144] that the “question whether Mohammed Shahid was a parent of the applicant at the time of his birth calls for an evaluative conclusion” (emphasis added).

41    The answer to the ultimate question of whether the uncle was “a parent” at the time of his birth required an evaluation of all the primary facts. That is what the primary judge did. After carefully considering the evidence, the primary judge made a number of findings of primary fact. These findings were set out under relevant headings in the reasons. The primary judge then carried out the evaluative assessment on the basis of the primary facts found to reach his Honour’s conclusion on the ultimate issue: that the uncle was not a parent of the appellant at the time of his birth. The conclusion was not founded upon a construction of “parent” limited in the manner contended by the appellant.

42    The appellant’s criticisms of the primary judge tend to assume the correctness of the appellant’s assertion. Thus, he says that the primary judge’s reasoning fails to “grapple with the point that there was more than one male ‘parent’”. But the primary judge did not accept that the uncle was “a” parent for the many reasons that his Honour gave. In so concluding, the primary judge correctly identified the relevant legal principles, and dealt carefully with the case that was advanced and the available evidence. Having not accepted that Shahid was “a” parent, it necessarily followed that the primary judge did not accept that Shahid and Younas were both “parents” (although strictly speaking that was not necessary to determine).

43    Second, it was the appellant’s pleaded case at first instance that there was both an agreement before the appellant was born that Shahid would act as the appellant’s father (and thereby, his parent) and that the fact that Younas was the appellant’s biological father was kept a secret from the appellant. The primary judge’s reasons are to be read in light of the case he was addressing.

Ground 1(b)

44    By this ground the appellant contends that the primary judge erred in failing to find that both the appellant’s biological father and Shahid were a parent for the purposes of s 10A of the Act at the time of the appellant’s birth.

45    On appeal, the appellant disavowed reliance on an agreement or plan in the nature of that which formed the crux of the case put to the primary judge (see PJ [135]).

46    By oral submissions, the appellant contends that, contrary to the conclusion drawn by the primary judge, this Court ought to find that Shahid was a parent of the appellant at the appellant’s time of birth by reason of the following matters relied upon before the primary judge (most of which are recorded at PJ [132]).

(a)    Immediately after the appellant’s birth, Shahid cradled the appellant, if he was crying, changed and bought nappies and helped bathe him almost every night, as well as taking him to the doctor when he was sick (PJ [173]).

(b)    Shahid provided financial support for the appellant’s needs (PJ [197]).

(c)    Shahid took the appellant to be circumcised (PJ [50]).

(d)    Shahid supported the appellant’s biological mother emotionally and Shahid and the appellant shared a strong emotional bond (PJ [132]).

(e)    The appellant called Shahid “Baba”, the Urdu word for father (PJ [95]).

(f)    Shahid was the head of the joint family (PJ [185]).

(g)    There was a genetic link between the appellant and Shahid (PJ [6(g)]).

(h)    Shahid was present at the appellant’s birth. The primary judge found that Shahid, together with his brother Younas (the appellant’s biological father) were present at the appellant’s birth (PJ [199]).

47    Even if the appellant had established an error in the primary judge’s approach, which he has not, this Court is not satisfied, based on the primary facts identified by the appellant, that Shahid was a parent of the appellant at the appellant’s time of birth. The matters relied upon by the appellant may well demonstrate, as the primary judge found, that Shahid had a close relationship with the appellant in various ways (PJ [174], [197]) and sought to discharge his responsibilities as head of the household (PJ [150]). The primary judge found (and it was not disputed on appeal) that the head of a joint family may be referred to as “Baba” by members of that extended joint family (PJ [185]–[186]).

48    However, that relationship was not that of parent and child. As the primary judge correctly observed, a person acknowledging another as that person’s own sibling, cousin, grandchild, niece, nephew or member of that person’s extended family, does not mean that person is that other’s parent for the purposes of s 10B(1) of the Act (PJ [182], [186]).

49    Absent a biological parental relationship, parentage typically is a matter of intense commitment which involves acknowledging that other person as one’s own child. Even a biological connection in specific circumstances may not establish an individual as a parent of another. Absent biology, it is the intensity of commitment which is the hallmark of the relationship of parent to child as that relationship is ordinarily understood in ordinary contemporary English usage. As the Full Court explained in H v Minister, 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: H v Minister at [129] (per Moore, Kenny and Tracey JJ) read especially in conjunction with [54] (per Moore, Kenny and Tracey JJ).

50    As the extensive and careful reasoning of the primary judge demonstrates, Shahid’s role as ‘paterfamilias’ does not render Shahid the “parent” of the appellant (PJ [186]). That relationship is one between extended family members. It is not that of a parent within the ordinary meaning of that term.

Ground 2

51    In 2019, Shahid pled guilty to, and was convicted for, dishonestly influencing a Commonwealth public official with respect to 11 citizenship applications. Shahid had claimed that he was the “natural” father for each of the 11 citizenship applicants, and that his second wife, Shabana (who he falsely said was dead), was the mother of each of them. One of the applications related to the appellant. During cross-examination, Shahid accepted that the false information with which he sought to dishonestly influence the Commonwealth public official was information to the effect that he was the father of the appellant (PJ [208]). Shahid did not raise as relevant to his sentencing plea that he was the non-biological parent of the appellant (PJ [212]).

52    The police informant, Detective Leading Senior Constable Joanne Turner gave evidence. She accepted that the allegations the subject of the charge against Shahid concerned the veracity of representations as to his status as the biological father of various persons, and that the investigation did not focus on whether it was possible that he could be their non-biological father (PJ [210]).

53    Ground two relates to the primary judge’s consideration at PJ [212] of the fact that in his plea on sentencing, Shahid did not suggest, as a matter relevant to his sentence, that although he was not the biological parent of the appellant, he had been the non-biological parent of the appellant since his birth. The primary judge did not attach decisive weight to this, but considered the fact that Shahid had not raised the suggestion by way of plea in mitigation, to be “another circumstance, consistent with a volume of other evidence, that suggests that Mohammed Shahid did not consider himself to be, and was not, the non-biological parent of the [appellant] at the time of his birth”: at PJ [212].

54    The appellant contends that the matter of non-biological parentage was legally irrelevant to his plea in relation to a representation concerning biological parentage, or alternatively, that all the evidence about the conduct of Shahid’s prosecution (by both the prosecution and defence), which was unchallenged, was to the effect that nobody turned their mind to the question of non-biological parentage. The appellant contends that the “compelling inference” to be drawn is that the reason the matter was not raised in the appellant’s plea was that no one turned their mind to the point.

55    The appellant’s contention is rejected. The primary judge did not err in his Honour’s consideration of the facts relating to Shahid’s plea. Whilst the inference advocated for by the appellant as to why Shahid did not raise non-biological parentage in his plea may be open as one inference, it is not the only one. Shahid was represented by lawyers in relation to his plea on sentence for his criminal conviction. It is also open to infer that competent counsel explored all possible mitigating factors for the plea with Shahid and did not raise Shahid being a non-biological “parent” to the appellant because it was simply not true. This latter inference is consistent with the totality of the evidence as so carefully set out in the reasons of the primary judge.

56    In noting Shahid’s failure to raise a non-biological parental relationship with the appellant as a matter relevant to sentencing, the primary judge accepted that he could not be sure of the exact reason why it was not raised by way of plea in mitigation, and for that reason did not attach decisive weight to it. Instead, the primary judge simply considered it to be another circumstance “consistent with a volume of other evidence” that suggested that the uncle did not consider himself to be, and was not, the non-biological parent of the appellant at the time of his birth (PJ [212]). There is no error in that reasoning.

57    In any event, even leaving to one side the issue of the inference to be drawn from the failure to raise non-biological parentage as a mitigating circumstance in a sentencing plea, the circumstances relied upon by the appellant do not lead this Court to conclude that Shahid was the parent of the appellant at the time of the appellant’s birth.

Ground 4

58    The primary judge considered the evidence as to the appellant’s name to be “very significant” as to the existence of the claimed agreement (PJ [190]). His Honour considered that it bore directly on the question of whether the appellant was, at around the time of his birth, considered to be the child of Shahid in place of the biological father, or otherwise was one of the children of Shahid in a large joint family with the uncle at its head.

59    The primary judge set out five pieces of evidence related to the appellant’s name (PJ [166]–[170]). The appellant alights upon two of these: the existence of a naming convention, and the evidence that the name used by one of Shahid’s biological children (Asad), did not follow that convention. The appellant contends that the primary judge’s failure to reconcile these two pieces of evidence provides a basis to overturn the ultimate finding that the uncle was not the appellant’s parent at the time of his birth.

60    Asad was named Asad Shahid, after his biological father, consistent with patrilineal naming convention, but changed his name to Asad Awais on enrolling for high school. The factual background to Asad’s change of name is different to that of the appellant for the following reasons.

(a)    Shabana, Asad’s mother, did not see Shahid for about six years after Asad was born.

(b)    Shabana divorced Shahid in 1992.

(c)    Sabana remarried, moved away and had three children with her second husband.

(d)    Asad lived with his aunt, Imrana Awais.

(e)    Asad had the name Shahid at birth and was enrolled in school as Asad Shahid until high school, when he was enrolled under the name Asad Awais because his mother and aunt did not know where his biological father was.

(f)    Asad did not meet Shahid until he was 19 years old.

61    On appeal, no challenge is made to the following aspects of the appellant’s mother’s evidence.

(a)    Mohammed Younas was called “Younas” by everyone in the joint family, and the children in the joint family, including the appellant, knew that his name was Mohammed Younas (PJ [166]).

(b)    The appellant was given the name “Younas” because his father was called Younas (PJ [168]).

(c)    The appellant was admitted to school under the surname Shahid, despite that not being his real name, effectively as a means of facilitating his eventual migration to Australia (PJ [170]).

62    Further, no challenge is made to the other “name” facts found by the primary judge, and the inferences he drew from those facts as set out at PJ [191]–[196], including the following.

(a)    The fact that Rubina and Younas named the appellant at least suggests that they were acting as parents of the applicant shortly after his birth.

(b)    The fact that Shahid did not take part in naming the appellant or registering his birth suggests that Shahid was not acting as a parent of the appellant shortly after his birth.

(c)    The fact that the applicant knew his name was “Hamza Younas” and knew that Younas’s name was “Mohammed Younas”, make it unlikely in light of the relevant patrilineal naming conventions that the appellant did not know that Younas was at least his biological father.

(d)    The fact that the appellant was not named “Shahid” shows that Mohammed Younas and Rubina Younas did not consider Mohammed Shahid to be the appellant’s father at that time (PJ [194]).

63    We do not accept that Asad’s use of a name other than that of his biological father is of any relevance. Asad’s story is peculiar to him and his circumstances, and can shed no light on the appellant’s case. The fact that someone named in accordance with patrilineal naming convention can change their name at a later date is immaterial to the question in the present appeal. In any event there is extensive unchallenged evidence which supports the primary judge’s conclusion. There is no error in that reasoning.

Disposition

64    None of the grounds of appeal have been made out. The appeal is to be dismissed with costs.

Associate:

Dated:    14 March 2025