Federal Court of Australia
Younas v Commonwealth of Australia (No 2) [2024] FCA 853
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. By 4.00 pm on 9 August 2024, the applicant file and serve written submissions as to costs, not exceeding two pages.
3. By 4.00 pm on 16 August 2024, the respondent file and serve written submissions as to costs, not exceeding two pages.
4. Subject to further order of the Court, the question of costs be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WHEELAHAN J:
1 The applicant is a man of about 30 years of age who was born in Lahore, Pakistan. He seeks a declaration that he is an Australian citizen.
2 Under s 4 of the Australian Citizenship Act 2007 (Cth) (2007 Act), an Australian citizen includes a person who was an Australian citizen under the Australian Citizenship Act 1948 (Cth) (1948 Act) immediately before the commencement day of the 2007 Act, and who has not ceased to be an Australian citizen under the 2007 Act. The commencement day of the 2007 Act, which repealed the 1948 Act, was 1 July 2007.
3 Section 10B(1) of the 1948 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. It is not in dispute that the first condition was satisfied. The second condition is disputed.
4 Neither of the applicant’s biological parents was an Australian citizen at the time of his birth. However, the applicant’s biological uncle was, and remains, an Australian citizen. The applicant claims that his uncle was his “parent” at the time of his birth, within the meaning of s 10B(1).
5 Whether the applicant has established this claim requires evaluation of the evidence relating to the applicant’s family circumstances at that time. The word “parent” was not defined by the 1948 Act. As I will explain, it bears its ordinary meaning. Whether a person is a “parent” is a question of fact which directs attention to various factors, including social, legal, and biological factors: H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 (H v Minister) at [128]–[130] (Moore, Kenny and Tracey JJ).
The key individuals
6 The following are the key individuals who were the subject of evidence –
(a) the applicant, who commenced this proceeding under the name Hamza Younas but who was also referred to in several of the documents in evidence as Hamza Shahid;
(b) Mohammed Younas, who died in 2008, and who was the biological father of the applicant;
(c) Rubina Younas, who is the biological mother of the applicant and the widow of the late Mohammed Younas;
(d) Momina Yasir (formerly Momina Younas), who is the biological daughter of Rubina Younas and Mohammed Younas;
(e) Mohammed Taha (or Taha Younas), who is the biological son of Rubina Younas and Mohammed Younas;
(f) Talal Younas, who is the biological son of Rubina Younas and Mohammed Younas;
(g) Mohammed Shahid, who is the biological uncle of the applicant;
(h) Iffat Parveen, who is the first wife of Mohammed Shahid and the mother of four of his biological children, including their daughter Fatima Shahid;
(i) Fatima Shahid, who is the elder daughter of Mohammed Shahid and Iffat Parveen;
(j) Hina Shahid, who is the younger daughter of Mohammed Shahid and Iffat Parveen;
(k) Mohammed Saif Shahid, who is elder son of Mohammed Shahid and Iffat Parveen;
(l) Usama (or Usman) Shahid, who is the younger son of Mohammed Shahid and Iffat Parveen;
(m) Shabana Shahid, who was the second wife of Mohammed Shahid, and from whom he divorced in 1992;
(n) Asad (or Awees) Shahid, who is the biological son of Mohammed Shahid and Shabana Shahid; and
(o) Mona Malik, who is the third wife of Mohammed Shahid, and the sister of Fatima Shahid’s husband.
The question in this application
7 The immediate question in this application is a question of fact: namely, whether Mohammed Shahid was a parent of the applicant at the time of the applicant’s birth.
8 A large volume of evidence was adduced at the hearing that is capable of bearing on this question. In order to deal with that evidence efficiently, it is necessary to remain focused on the factual case that the applicant put forward. In the discharge of his onus to prove his case on the balance of probabilities, the applicant put forward a particular account of events. That account deals, of course, with events in the lead-up to the birth of the applicant. That account also deals, however, with events that transpired long after the applicant’s birth.
9 Evidence about subsequent events may be relevant because it demonstrates circumstances that shed light on the ultimate question whether Mohammed Shahid was a parent of the applicant at the time of his birth. Evidence as to subsequent events can shed light on this ultimate question by corroborating or undermining accounts of events closer in time to the applicant’s birth; it can also shed light on the question by affecting the credibility or reliability of the evidence given by witnesses in this proceeding.
10 The applicant’s case is that Mohammed Shahid was his father — and, thus, his parent — at the time of the applicant’s birth.
11 The applicant claimed that his biological father, Mohammed Younas, was physically unwell before and after the applicant’s birth. The applicant’s case was that, partly because his biological father was unwell, the applicant’s extended family agreed before the applicant was born that Mohammed Shahid would assume the role of being the applicant’s “father”. The applicant further claimed that Mohammed Shahid in fact assumed this role in relation to the applicant before and at the time of his birth. Though it was not strictly necessary for him to do so, the applicant also claimed that Mohammed Shahid had remained his father from the time of his birth until now.
12 There were two main evidentiary footings on which the applicant rested this case.
13 First, the applicant relied on evidence given by members of his family. This evidence was led to establish, as a matter of primary fact, that Mohammed Shahid entered into an arrangement with the applicant’s biological parents before the applicant’s birth to act as the applicant’s father. It was also led to establish facts about the course of the relationship between Mohammed Shahid and the applicant from that point onwards, and about how that relationship was perceived by other members of the extended family. Evidence from members of the family also reflected on the general living arrangements that obtained in the extended family. There was a significant amount of evidence from the applicant’s family members to the effect that the applicant’s family operated according to a “joint family system”, with Mohammed Shahid at its head. I will have more to say about the asserted joint family system in due course.
14 Secondly, the applicant relied on the expert evidence of Dr Adeem Suhail, an expert social anthropologist. The main factual points that the applicant sought to elicit from this evidence were –
(a) to explain the nature of the joint family system; and
(b) to establish that the joint family system was commonplace in Lahore at the time of the applicant’s birth.
15 Forensically, the applicant relied on Dr Suhail’s expert evidence for two further purposes. First, the evidence was relied upon as relevant to the Court’s assessment of the likelihood that the applicant’s family lived in a joint family system, and that Mohammed Shahid assumed the role of being the applicant’s parent by the time of his birth. Secondly, Dr Suhail’s evidence was relied upon to give content to the role of the head of a joint family, in support of the claim that, in that role, Mohammed Shahid acted as the parent of persons who were not his biological children — including the applicant.
Background
16 Before summarising the evidence of the witnesses, I will identify some surrounding circumstances that are established by the evidence.
17 Mohammed Shahid, the applicant’s biological uncle, was born in Pakistan and is now 70 years of age. He first arrived in Australia in 1977. He is an Australian citizen, having been granted citizenship in 1985.
18 In 1987, Mohammed Shahid was convicted in the County Court of Victoria of an offence under s 233B(1)(d) of the Customs Act 1901 (Cth) in relation to the importation of heroin. He was sentenced to a term of imprisonment of 14 years, with a non-parole period of eight years. In October 1991, he was released from prison on parole.
19 Based upon a movement history produced by the Australian Department of Home Affairs, I find that following his release on parole, Mohammed Shahid left Australia in March 1992, and returned more than eight years later in October 2000. He then served a further period of imprisonment on account of a breach of his parole conditions, and was released from prison on parole for a second time in January 2001. The movement history from the Department of Home Affairs shows that Mohammed Shahid left Australia again in February 2006, and returned on 18 May 2006.
20 The applicant was born in 1993 or 1994. The evidence as to his precise date of birth is not reliable.
21 Over the years, Mohammed Shahid signed a number of forms in support of applications that his first wife, Iffat Parveen, and their children be able to migrate to Australia. Those applications included the following –
(a) an application for migration dated 1 April 1996;
(b) a sponsorship for migration form dated 19 April 1996;
(c) an application for review dated 27 September 1996;
(d) a sponsorship for migration form dated 9 August 1999;
(e) an application for migration dated 14 April 2001; and
(f) a sponsorship for migration form dated 14 April 2001.
22 Mohammed Shahid gave evidence in cross-examination that he signed the above forms that apparently bear his signature. He said that he did not complete the forms himself but provided information to other persons who completed the detail in the forms on his behalf. The forms have the following common features. First, Mohammed Younas, who is said to be Mohammed Shahid’s brother and the applicant’s biological father, is not listed as one of the brothers and sisters of Mohammed Shahid in response to any of the questions in the forms which sought that information. Secondly, the applicant is not listed as one of the children of Mohammed Shahid and Iffat Parveen in circumstances where other evidence put before the Court on behalf of the applicant was that the applicant was brought up thinking they were his parents. Thirdly, in those forms which asked Mohammed Shahid to list his dependants, he did not list the applicant as a dependant. Fourthly, the residential address of Iffat Parveen was given in the 1996 forms as “591” Karim Block in Allama Iqbal Town, Lahore, Pakistan. In the 1999 form, it was given as “625” Karim Block. In the application form dated 14 April 2001, the address of Iffat Parveen was given as a different address in Rana Road, Township, Lahore, with the address for Mohammed Shahid for the period March 1992 to 26 October 2000 being given as the 625 Karim Block address.
23 In May 2006, an application for registration of the applicant for Australian citizenship by descent was received by the Australian High Commission in Islamabad. The application was signed by Mohammed Shahid and dated 16 May 2006. I find that as at that date Mohammed Shahid was in Pakistan. Above the signature of Mohammed Shahid was a declaration that the information he had supplied in the form was “complete, truthful and correct in every detail”. The applicant was identified by the family name “Shahid” and the given name “Hamza”. The application identified Mohammed Shahid’s second wife, Shabana Shahid, as the applicant’s “natural mother”, and stated that she was deceased. Shabana Shahid is not the applicant’s biological mother. Nor is she deceased. The May 2006 application for registration identified Mohammed Shahid as the applicant’s “natural father”. The applicant’s biological father, Mohammed Younas, was still alive at the time of the application, but later died in 2008. Some of this may be less misleading than appears, given what has been said in the United Kingdom about the broad compass of the term “natural parent”: see In re G (Children) [2006] 1 WLR 2305 at [33]–[37], quoted in Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The application also stated that Mohammed Shahid had been lawfully present in Australia between 27 October 2000 and 20 February 2006. An Australian landline was given as the contact telephone number for Mohammed Shahid.
24 A record book titled Register of Citizenship by Descent recorded the registration of the applicant as an Australian citizen on 31 May 2007, with his date of birth recorded as 4 October 1993. On the same day, a male named “Awais Shahid” with a date of birth recorded as 14 February 1988, and a female named “Momina Shahid” with a date of birth recorded as 4 October 1993 were registered in the book. Momina is a biological daughter of Mohammed Younas and Rubina Younas, and is the applicant’s sister. Notwithstanding that their dates of birth in the Register of Citizenship by Descent are the same, an issue arises on the evidence as to whether she and the applicant are in fact twins.
25 In February 2019, Mohammed Shahid pleaded guilty to dishonestly influencing a Commonwealth public official, contrary to s 135.1(7) of the Criminal Code. The particulars of the charge were that Mohammed Shahid made applications for Australian citizenship for 11 persons to the Australian High Commission in Islamabad containing false information, with the intention of dishonestly influencing a Commonwealth public official. The 11 persons included the applicant, “Awais Shahid”, and “Momina Shahid”, whose names were entered in the register on 31 May 2007. Mohammed Shahid was sentenced in the County Court of Victoria to 12 months’ imprisonment with a direction that he be released after three months on a recognizance release order in the sum of $3,000. Detective Leading Senior Constable Joanne Turner, who was the informant, gave evidence that Mohammed Shahid had pleaded guilty to one rolled-up charge, and that the focus of the investigation leading to the charge was the falsity of statements to the effect that he was the biological father of the 11 persons.
The evidence
26 Counsel for the applicant adduced evidence from five witnesses –
(a) Fatima Shahid;
(b) Mohammed Shahid;
(c) Rubina Younas;
(d) Detective Leading Senior Constable Joanne Turner; and
(e) Dr Adeem Suhail, the expert social anthropologist to whom I referred above.
27 The applicant was not called as a witness. It was not suggested by counsel for the Commonwealth that the applicant could give admissible evidence as to circumstances at the time of his birth, although counsel did submit that the applicant could have given evidence about subsequent events, and that it should be inferred that his evidence would not have assisted his case.
28 The evidence is that Mohammed Shahid’s first wife, Iffat Parveen, lives with him in Melbourne, and was living in Pakistan at the time of the applicant’s birth, but she did not give evidence. Counsel for the Commonwealth submitted that Iffat Parveen could have given relevant evidence, and that it should be inferred that her evidence would not have assisted the applicant’s case.
29 Counsel for the Commonwealth tendered parts of two affidavits that annexed various documents. No direct evidence-in-chief was adduced on behalf of the Commonwealth. Counsel for the Commonwealth also tendered parts of an Australian Federal Police record of interview, to which I will return in due course.
Fatima Shahid
Affidavit evidence
30 Fatima Shahid made an affidavit and was cross-examined by senior counsel for the Commonwealth. She was born in Lahore, Pakistan, and has resided in Australia since 2002, becoming an Australian citizen in about 2003.
31 Ms Shahid’s biological father is Mohammed Shahid and her biological mother is his first wife, Iffat Parveen. Her parents both reside in Melbourne as do her brothers Saif and Usman.
32 Ms Shahid stated that she was the applicant’s “non-biological sister”. She stated that she was around 12 years old when the applicant was born. At that time, she lived in Pakistan. She stated that she remembered that before the applicant was born her father travelled to Pakistan to care and provide for the applicant and his biological mother, Rubina Younas, because the applicant’s biological father, Mohammad Younas, was very ill and very limited in the activities that he could perform around the house.
33 Ms Shahid stated that she knew that her father supported the applicant “since he was born in every way, providing financially for food, clothes, education and everything else a father would provide for their child”. She stated that her father would also ensure that there were enough groceries in the house so that everyone could eat.
34 Ms Shahid stated that when the applicant was born, she also took care of him as a baby as she was the eldest daughter. She stated that she assisted Mohammed Shahid and the applicant’s biological mother, Rubina Younas, to change the applicant’s nappies.
35 Ms Shahid stated that her father “is the head of our joint family, and it is the custom in our culture that the head of the family takes care of everyone in the family”. She also stated that when the applicant arrived in Australia, he “lived with us”, and as the eldest daughter she took care of him as she would with any younger sibling, and that she still always supported the applicant as a brother in every way. In oral evidence, Ms Shahid stated that she considered the applicant to be her brother, and that she called him her brother.
Cross-examination
36 The questions put to Ms Shahid in cross-examination by senior counsel for the Commonwealth were not always clear. Ms Shahid confirmed her memory of her father travelling to Pakistan to care and provide for the applicant and his mother, referring to her “sweet memories”. She recalled an occasion when her father brought a big talking doll to Lahore for her as a gift. She stated that this was the occasion on which her father travelled to Pakistan to care and provide for the applicant and his mother. She also stated in respect of her father that “he always come and go, because he’s the main person to provide food and everything for us”. She could not remember how often her father came to Pakistan before the applicant was born.
37 Senior counsel for the Commonwealth put to Ms Shahid that her father travelled to Pakistan in March 1992, and that he had not travelled to Pakistan for many years prior because he had been imprisoned in Australia, to which she responded that she could not remember. Ms Shahid stated that the applicant’s mother was pregnant when her father came to Pakistan and gave her the doll. When pressed on this evidence on the basis that, on the assumption that the applicant was born in October 1993 the applicant’s mother could not have been pregnant at that time, Ms Shahid maintained her evidence that the applicant’s mother was pregnant when Mohammed Shahid arrived in March 1992, but also stated that she did not remember everything. Senior counsel then continued his cross-examination on this topic. In the result, Ms Shahid re-stated more than once her evidence, based on her memory, that her father came from Australia to Pakistan when the applicant’s mother was pregnant, and that this was the occasion on which he gave her the doll. Ms Shahid stated that her memory, to which she deposed in her affidavit, that before the applicant was born her father travelled to Pakistan to care and provide for the applicant and his mother was drawn from her memory of her father giving her the doll. Ms Shahid stated that she could not remember her father visiting Pakistan before that time.
38 In relation to the family home in Lahore, Ms Shahid stated in cross-examination that at the time the applicant was born, she, her mother, the applicant’s mother, her father, and her siblings lived in the one house as a “joint family” and that her uncle was very ill. She stated that it was common in Pakistan for extended families to live together in the one house, and that it was common for members of the extended family to help with looking after the children in the house. She agreed that her father had helped with raising the applicant, just as she and other members of her extended family had done.
39 As for the position of her father as head of the family, Ms Shahid agreed that he was the main provider because he had the income and money to provide support, whereas the applicant’s biological father Mohammed Younas did not have money or income because he was ill.
40 As to her relationship with the applicant, Ms Shahid stated that she did not refer to him as her cousin. Because they stayed in the one house as one family, she always saw the applicant to be a brother. Ms Shahid also gave evidence that she regarded a fourth child of Mohammed Younas and Rubina Younas, whom I understand to be Talal Younas, also to be a “brother” on the basis that he was a member of the same wider family, although she was clearly less familiar with him, having not met him in person.
Assessment
41 I consider Ms Shahid to have been an honest and straightforward witness. Her memory of some events was clearer and more detailed than of other events. This is unsurprising, given that some of the relevant events occurred 30 years ago, when Ms Shahid was around 12 years old. As one might expect, Ms Shahid’s memory of events occurring around that time was tied to key moments that would have had significance to a 12-year-old child: for example, her father bringing her home a particular doll. I formed the impression that she was doing her best to recall the circumstances that obtained in her family at the relevant times, and that she was being honest in the way she conveyed those matters to the Court.
42 Nevertheless, Ms Shahid’s evidence was, in some respects, unreliable. This is true, most clearly, of Ms Shahid’s evidence that her father returned from Australia to Pakistan while Rubina Younas was pregnant with the applicant, so that he could care and provide for the applicant and his mother. As became apparent during cross-examination, Ms Shahid could not be correct about Mohammed Shahid coming from Australia to Pakistan while Rubina Younas was pregnant with the applicant, but she maintained her evidence on this point. This leads me to have some reservations about the quality of her recollection of the details of particular events.
43 I accept Ms Shahid’s evidence as to the general arrangements that existed over time in the joint family system. On more specific matters, such as the comings and goings of particular individuals, or who lived where at particular times, I consider that Ms Shahid’s evidence must be tested against the evidence of other witnesses, and the objective evidence, to ascertain its reliability.
Mohammed Shahid
Affidavit evidence
44 Mohammed Shahid made two affidavits, and was cross-examined by senior counsel for the Commonwealth.
45 In his first affidavit, Mohammed Shahid stated that before the applicant was born, he gave an undertaking to his brother, Mohammed Younas, that he would take care of the applicant and his brother’s other children. He said he did this because Mohammed Younas was very sick with kidney disease and had limited mobility.
46 Mohammed Shahid stated in his first affidavit that under his culture, he was considered to be the head of the household and was expected to, and did, support the entire joint family, as his brother Mohammed Younas could not. He said that he provided significant support for the applicant’s biological mother, Rubina Younas, when she was pregnant with the applicant. He said that he paid for medical expenses related to the pregnancy, and that he provided financially for whatever was needed because his brother was unable to support the family.
47 Mohammed Shahid said in paragraph [9] of his first affidavit that he was “in Pakistan for approximately four weeks before [the applicant’s] birth, to be there for him and Rubina”. In his second affidavit, he corrected this, stating that upon reviewing his movement records he recalled that he left Australia for Lahore in March 1992, and returned to Australia in 2000.
48 In his first affidavit, Mohammed Shahid said that he was at the hospital with Rubina Younas when the applicant was born, and that Mohammed Younas was not at the birth because he was unwell. Mohammed Shahid stated that he “stayed with them for around 6-8 weeks”, and that during this time, he paid for all of the expenses and hospital bills related to the care of Rubina and the applicant.
49 Mohammed Shahid stated that there was a practice in Pakistan that when a child is born in your family (including what in Australia one would call your extended family) you make a donation to charity. Mohammed Shahid stated that he paid this donation when the applicant was born.
50 Mohammed Shahid stated that he used to pick the applicant up when he cried as a baby to try and soothe him. He said that he also changed his nappies and took him to the local park. He said that he undertook all of the normal caring duties that a father would perform for his child. This included taking the applicant to the doctor if he was sick, and taking the applicant to be circumcised approximately 40 days after his birth. Mohammed Shahid said that he went in place of Mohammed Younas because the latter was so physically unwell.
51 Mohammed Shahid stated that after he returned to Australia following the applicant’s birth, he would travel back and forth between Pakistan and Australia as frequently as he was able to. He stated that it all depended upon how much leave he could get from his job. He stated that at that time he was working at Repco Motor Parts. He said that he continued to send money to his family in Lahore through money exchange shops, amounting to approximately $300 every month, which was a significant sum when converted to rupees.
52 Mohammed Shahid said that before his own biological children came to Australia in around 2002, his family and his brother’s family all lived together. He said that he continues to support Rubina Younas who lives in the family home in Lahore.
53 Mohammed Shahid stated that the applicant did not find out that he was not his biological father until he confirmed information that the Australian Border Force had given to the applicant.
54 Mohammed Shahid stated that in all respects he regarded the applicant as his son, and that he had supported the applicant as a father financially and emotionally at the time of his birth, and ever since.
Cross-examination
55 At the commencement of the cross-examination of Mohammed Shahid, counsel for the applicant informed the Court that Mohammed Shahid was content to give evidence in English, but there might be occasions when he might be assisted by an interpreter. In the early part of the cross-examination, it was clear that Mohammed Shahid understood and could speak English to some extent. However, I formed the view that some nuances of expression appeared to be lost, causing some confusion. The hearing was then adjourned until after lunch, and an interpreter then assisted Mohammed Shahid for the balance of his evidence.
56 At times, Mohammed Shahid presented as being haughty in giving his evidence. He appeared to take exception to being cross-examined about some matters relating to his criminal history, and remonstrated when taken meticulously through many documents in the nature of immigration applications that bore his signature. On two occasions when the witness was being argumentative, I informed him of his obligation to answer questions. The witness’s capacity to engage from time to time in argument with the cross-examiner informs my assessment that the witness was very much alive to the issues that were being explored in cross-examination.
57 Some of the cross-examination of Mohammed Shahid involved compound propositions, sometimes using double negatives. All questions of this type had to be interpreted before Mohammed Shahid was required to answer. At one point the interpreter stated: “The client has just said one thing I need to tell you is ask a straight question: don’t ask here and there.” Having said that, not all the cross-examination of Mohammed Shahid was of this character.
58 Mohammed Shahid accepted that he was in Pakistan from March 1992 until 2000, save for a period of three weeks in 1996 when he travelled to New York. It was put to Mohammed Shahid that when he left Australia for Pakistan in March 1992, Rubina Younas could not have been pregnant with the applicant, who was born in 1993 or 1994. Mohammed Shahid accepted that this was not possible. Mohammed Shahid denied that he stated that when he went to see Rubina Younas in 1992 that he did so when she was pregnant.
59 When Mohammed Shahid was taken in cross-examination to paragraph [9] of his first affidavit (see [47] above) he stated that there seemed to be a mistake, because the applicant was born in 1994, and “obviously, in 1992 this must not have been possible”. Mohammed Shahid stated that he did not read his first affidavit before he signed it, and that there was no translator present. He also said that he did not understand the affidavit and that he did not have his glasses when he signed it. He said that he signed it in a lawyer’s office and, “I thought that the lawyers were handling it so I thought that was enough. I didn’t even know I could get an interpreter”. Mohammed Shahid also denied reading his second affidavit before signing it. There was also some uncertainty in Mohammed Shahid’s answers as to whether he swore or affirmed the two affidavits to be true and correct, or whether he just signed them.
60 Mohammed Shahid was referred to his plea of guilty to the offence of dishonestly influencing a Commonwealth public official. He accepted that his dishonest intent was to have the Secretary believe, wrongly, that he was the natural or biological father of 11 applicants for citizenship, including the applicant to this proceeding. Mohammed Shahid was taken to the sentencing remarks of His Honour Judge O’Connell in the County Court of Victoria. It was put to Mohammed Shahid, and I understood him to accept, that it was not submitted on his behalf at the sentencing hearing that the applicant was his non-biological child, or that he was the applicant’s non-biological parent since birth. Mohammed Shahid accepted that what had been put on his behalf at the sentencing hearing was that he had assumed the obligation of assisting Mohammed Younas’s children because, in effect, Mohammed Younas had died.
61 Mohammed Shahid was taken to an application for registration of Australian citizenship by descent for the applicant which Mohammed Shahid signed. Mohammed Shahid denied filling out the whole document, stating that somebody else did, probably a relative. Mohammed Shahid denied reading the document before he signed it, and denied reading the declaration that the information supplied in the document was “complete, truthful and correct in every detail”, claiming that this was due to a “lack of English”. Mohammed Shahid stated that he could read the document, but did not understand the meaning of a lot of the words.
62 Mohammed Shahid accepted that the name given to the applicant in the form, “Hamza Shahid”, was incorrect. Mohammed Shahid stated that the address given for the applicant in the form was his parents’ address, and I understood his evidence to be that the applicant lived there from time to time. As for the applicant’s mother’s name nominated in the form, “Shabana Shahid”, Mohammed Shahid accepted that this person was his second wife whom he divorced in 1992. Mohammed Shahid accepted that the information was false, because Shabana Shahid was not the natural mother of the applicant.
63 Mohammed Shahid was taken to a copy of a birth certificate ostensibly issued by the City District Government of Lahore, Pakistan. The document stated that it was issued on 6 March 2006. Mohammed Shahid accepted that he was in Pakistan on that date. The birth certificate stated the child’s name as “Hamza Shahid”, and stated the date of birth as 4 October 1993. Mohammed Shahid stated that the applicant’s date of birth “could be 1994”, but he was not sure. Mohammed Shahid was named as the father, and Shabana Shahid was named as the mother. When it was put to Mohammed Shahid that the birth certificate was a concocted, fake document, he said, “You could say that”. However, he then attempted to resile from that answer, suggesting that the document may have been authentic, but that the information in it was wrong. Mohammed Shahid denied being involved in obtaining the birth certificate, stating that his brother-in-law, namely a brother of his first wife Iffat Parveen, acquired it.
64 Mohammed Shahid was questioned about three different addresses in Pakistan that had been attributed to the applicant. Mohammed Shahid stated that the applicant lived at all three homes. I understood his evidence to be that he owned two of the three homes that were near to each other, and that his parents owned the third home that was about 12 kilometres away from the other two. The substance of Mohammed Shahid’s evidence was that under the joint family system in Pakistan, each of the three homes was considered to be the applicant’s home. He gave evidence of the adults within the family moving between the homes from time to time, and that he himself might stay in different homes on any given night. He also stated that his own biological children moved between the three homes.
65 Mohammed Shahid was also asked about the financial arrangements in his family up to the present day. As I have noted, in his first affidavit, Mohammed Shahid had deposed that he still sends approximately $300 every month to his family in Lahore through money exchange shops. Mohammed Shahid said that he continues to send money to his family, including to Rubina via his third wife, Mona Malik. It was put to Mohammed Shahid that he no longer provides financial support to Rubina, but he denied this.
66 Mohammed Shahid was cross-examined about a number of applications for migration to Australia that were made on behalf of members of his family. Now, Mohammed Shahid was not cross-examined about the entire history of his attempts to secure Australian visas for his family. It is worth noting that a Department of Immigration and Multicultural Affairs Minute dated 12 January 1998 was in evidence that stated that Iffat Parveen had been unsuccessfully sponsored by Mohammed Shahid in 1981, 1984 and 1992 to come to Australia. Those applications were not addressed during cross-examination. The applications that were addressed were those that occurred after the birth of the applicant. These were contained in a series of Australian government forms signed by Mohammed Shahid and members of his family.
67 The first application was dated 1 April 1996 and bore the stamp of the Australian High Commission in Islamabad with a date of 3 April 1996. Mohammed Shahid is listed in this application as the “main applicant”, and he accepted that he had signed it. Now, as an Australian citizen, he had no need of a visa to enter Australia. The form itself would seem to envisage that he should have been listed as the spouse of the main applicant, Iffat Parveen — the form requires the details of a spouse to be provided even if “the spouse is your sponsor” for migration. In any event, Mohammed Shahid was listed as the main applicant, and the form must be interpreted accordingly.
68 Below the space allotted for the signatures of the applicants, the application form states that “[t]his Declaration must be signed by any other person … who has helped the applicant(s) complete this form”. The space for the signature of any such person is marked “N/A”. Further, in a space titled “Declaration” on the same page, a box is ticked to assert that “I declare that … I did not receive assistance in completing this form”. Mohammed Shahid stated during cross-examination that he did not fill out this form, and instead a “friend” did. It is unnecessary for me to make a finding as to whether Mohammed Shahid in fact filled out this form, though the features I have pointed out suggest that he did. It is unnecessary to do so because Mohammed Shahid accepted during cross-examination that he gave the “friend” information so that he could fill in the form. Mohammed Shahid therefore accepted that the information in the form reflected the information that he volunteered in response to the relevant questions. Senior counsel for the Commonwealth took Mohammed Shahid to a part of the form that required the applicant to “[g]ive details of ALL your and/or your spouse’s children under 18 years of age whether or not in your care and legal custody”. In response, Mohammed Shahid listed three children: Fatima Shahid, Hina Shahid, and Awees Shahid. He explained that Fatima Shahid and Hina Shahid are his daughters with Iffat Parveen, and that Awees Shahid was his son with Shabana Shahid, who was also known as Asad. Senior counsel for the Commonwealth put to Mohammed Shahid that he did not identify any of Rubina Younas’s children, including the applicant, as his children when asked to give details of all of his children under 18 years of age. Mohammed Shahid accepted that he did not give the person who prepared this application information that the applicant and his sister were his children at that time. Mohammed Shahid also accepted that, when asked to list “all [his] brothers and sisters”, he had not identified Mohammed Younas.
69 The second application to which Mohammed Shahid was taken was dated 15 May 1996, and stamped by the Australian High Commission in Islamabad on 20 May 1996. Mohammed Shahid accepted that his signature appeared on this form. This time, his signature appears next to the words “Signature of spouse”. Iffat Parveen is the main applicant. Mohammed Shahid stated again that he did not prepare this form, and that a neighbour had instead — the same person who filled out the previous application form. Nevertheless, he accepted that he provided information to the neighbour to complete the form.
70 Mohammed Shahid was taken to the section of the form requiring the applicant to “[g]ive details of ALL your and/or your spouse’s children under 18 years of age”. Again, the three names given are Fatima Shahid, Hina Shahid, and Awees Shahid. Senior counsel for the Commonwealth put to Mohammed Shahid that he had not provided the person who filled out the form information that the applicant and his sister were his children because he did not identify them as his children. Mohammed Shahid’s responses were evasive, but he eventually seemed to state that whatever was written was correct, but that if he had known what the question was, he would have included Rubina Younas’s children. Mohammed Shahid was taken to a section of the form calling for details of “[a]ll your spouse’s children (including from previous marriages/relationships)”. In this context, Mohammed Shahid is the relevant “spouse”. Again, only Fatima Shahid, Hina Shahid and Awees Shahid are listed.
71 In the same application form, under the heading “Additional information”, the following text appears: “I am informing you that I am expecting a new baby in the 1st week of July 1996 and I hope that baby should be included in the VISA. PLEASE NOTE & Inform.” Mohammed Shahid accepted that the “new baby” being referred to was Saif. Mohammed Shahid accepted that he had provided his neighbour with information about this child. Mohammed Shahid further accepted that when Saif was born, he was included in the family visa application, as was Usman when he was born in 1997. He additionally accepted that the applicant and his sister were never included in the visa application.
72 Mohammed Shahid was also taken to a form titled “Sponsorship for migration to Australia” dated 9 August 1999. Mohammed Shahid’s signature appears on this form as the signature of the sponsor. During cross-examination, Mohammed Shahid accepted that the person who filled out this form obtained the information in the form from him. In response to the first question, which asked “How many people are included in this application?”, one adult is listed alongside “1+3=4” children. The numeral “1” is joined by a line to the text “BORN ON 31-7-97. (NOT FILLED IN PREVIOUS FORM 40.)”. Mohammed Shahid accepted that this showed him updating the Australian government after the fourth child was born, because he wanted that child to come to Australia with him. A similar update appears later in the form, in response to a question about Mohammed Shahid’s dependants. Senior counsel for the Commonwealth put to Mohammed Shahid that he did not include the applicant among his children or dependants because he did not regard the applicant as his child or dependant. Mohammed Shahid responded that he wanted to include the applicant, but that he elected not to do so because he feared that doing so would cause the application to fail, in light of the difficulties and confusion that had attended his earlier attempts to obtain a visa for Iffat Parveen.
73 Senior counsel for the Commonwealth put to Mohammed Shahid that the next relevant event after the completion of the 9 August 1999 form occurred in October 2000, when Mohammed Shahid returned to Australia and was arrested for breach of his parole conditions. Mohammed Shahid accepted these propositions. Mohammed Shahid was taken to a letter dated 24 November 2000 from an officer of the Australian High Commission Migration Office in Islamabad to Iffat Parveen, informing her that her application for a permanent entry visa to Australia had been unsuccessful.
74 Mohammed Shahid was then taken to another form titled “Sponsorship for partner migration to Australia”, which was signed by him and dated 14 April 2001. Mohammed Shahid was taken to a question that asked whether he had any dependants. The form records Mohammed Shahid’s dependants as his father, mother, two brothers and three sisters. Mohammed Shahid was equivocal on whether he was the source of the information in this form, though he accepted at one point that the form was translated for him before he signed it.
75 The third application to which Mohammed Shahid was taken was titled “Application for migration to Australia by a partner”. Mohammed Shahid accepted that he had signed this document, and I note he had dated it 14 April 2001. In “Part J” of the form, which deals with help provided to applicants in filling out the form, it is stated that a person named “Talat Mahmood” assisted in the completion of the form. Mohammed Shahid stated that this person was a friend. The main applicant identified in the form is “Iffat Shahid” or Parveen, with Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid also listed as accompanying persons. The date given below Iffat Parveen’s declaration is 23 April 2001, but nothing turns on this. Question 37 of the application form requested details of “[a]ll” of Iffat Parveen’s children. The names provided are Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid. Mohammed Shahid accepted that, in response to a question asking for all of Iffat Parveen’s children to be identified, only her biological children were identified. He also accepted that he may have been the source of the information reflected in that response.
76 Senior counsel for the Commonwealth then took Mohammed Shahid to a question in the same form asking for details of “ALL” of the family of the main applicant’s partner — the partner being, in this case, Mohammed Shahid. Mohammed Shahid accepted that he was the source of the information reflected in the response to this question, which listed Fatima Shahid, Hina Shahid, Mohammed Saif Shahid and Usama Shahid as “[a]ll” of his children. Notably, the applicant and his sister were not included in the form as either children or dependants, nor was Asad (or Awees) Shahid, another biological child of Mohammed Shahid. Mohammed Younas was not listed among Mohammed Shahid’s siblings. When it was put to him that the reason he had not included the applicant among his children was that he did not regard the applicant as his child at the time, Mohammed Shahid stated that the reason he had omitted the applicant was that, at the time, the applicant’s father was alive. In response to further questions, Mohammed Shahid stated that he had promised Mohammed Younas when he was sick that he, Mohammed Shahid, would look after the applicant.
77 Mohammed Shahid accepted that in 2002, Iffat Parveen and her four biological children with Mohammed Shahid migrated to Australia.
78 Senior counsel for the Commonwealth also took Mohammed Shahid to a transcript of an interview between the applicant and officers of the Department of Home Affairs, identified on the transcript as “Ange” and “Dave”, which took place on 8 September 2021. Counsel for the applicant objected to this line of questioning, on the basis of s 44 of the Evidence Act 1995 (Cth). I overruled the objection for reasons I subsequently published: see Younas v Commonwealth of Australia (Evidentiary Ruling) [2024] FCA 357. Senior counsel for the Commonwealth took Mohammed Shahid to various parts of that transcript in which the applicant told the departmental officers that Mohammed Shahid had recently told him that Mohammed Shahid was not, in fact, his biological father, but his biological uncle who had begun to look after the applicant when he was six years old because his parents had died. Mohammed Shahid did not accept that he said these things to the applicant or that, as a matter of fact, he had only begun to take care of the applicant at some point after his birth.
Re-examination
79 Amongst other things, Mohammed Shahid was asked in re-examination why he did not list the applicant as one of his children in the various migration forms to which he had been taken, and responded by stating that the questions in the forms were concerned with biological children.
80 Counsel for the applicant obtained leave to cross-examine Mohammed Shahid in re-examination, pursuant to s 38 of the Evidence Act. The application for leave to cross-examine was not opposed. The tenor of much of the cross-examination of Mohammed Shahid by counsel for the applicant was to put his instructions as to the circumstances in which Mohammed Shahid made his two affidavits in the proceeding. Mohammed Shahid gave evidence that he had a number of meetings and telephone calls with the lawyers for the applicant, and that they recorded in the affidavits what he had told them. He said that he had not asked for an interpreter to assist him in that process. Although his evidence was not always clear, Mohammed Shahid did say at one point that he read his first affidavit from top to bottom, and that his answer to the contrary in cross-examination by senior counsel for the Commonwealth was due to a lapse in memory. He also accepted that, contrary to earlier evidence, he did sign his first affidavit in front of a lawyer. As to his second affidavit, Mohammed Shahid accepted that he signed that affidavit before the applicant’s lawyer, who had driven to his house for that purpose. He accepted that evidence to the contrary given in cross-examination by senior counsel for the Commonwealth was not true, stating that when he gave that evidence his “brain wasn’t working”.
Assessment
81 In closing submissions, counsel for the applicant submitted that Mohammed Shahid was not a credible witness, and that all of his evidence should be rejected as unreliable, except to the extent it was corroborated by other evidence that the Court accepts, or is about an uncontentious matter. Counsel for the applicant submitted that a coherent approach to this finding also required the Court to reject every prior representation Mohammed Shahid has made, subject to the same proviso as to corroborating evidence and uncontentious matters. The force of the submission was therefore that prior representations made by Mohammed Shahid as to the composition of his family in forms, such as visa application forms, could not be relied upon. On this basis, the applicant submitted that there was no need to reconcile different aspects of Mohammed Shahid’s evidence.
82 On the hypothesis that the Court did find it necessary to reconcile Mohammed Shahid’s evidence in some way, counsel for the applicant made the following submissions, which were targeted at the significance of the fact that Mohammed Shahid had not identified the applicant as among his children or dependants in the visa application forms I have identified. After marrying Iffat Parveen in 1981, Mohammed Shahid made four visa applications: in 1981, 1984, 1992, and 1996. The 1996 visa application (which is addressed in my summary of Mohammed Shahid’s evidence during cross-examination) was initially rejected on the basis that the delegate did not accept that the marriage between Mohammed Shahid and Iffat Parveen was genuine. Upon merits review, a crucial finding of the delegate concerning Iffat Parveen’s name (and the meaning of the honorific term “Begum”, which the delegate misunderstood) was overturned, but the application was still refused. For this reason, a further application was required, and it was made in 2001. Based on this history of attempts by Mohammed Shahid to obtain a visa for Iffat Parveen to come to Australia, the applicant submitted that Mohammed Shahid would have understood that to add the applicant to his list of children or dependants for the 2001 visa application would have created an inconsistency that would prejudice the success of that application. For this reason, the applicant submitted, Mohammed Shahid “had to ‘maintain a lie’”, being that the applicant was not among his children. Additionally, the applicant submitted that this course of events was consistent with the way the applicant put his case, which was directed to the time of birth, not events occurring much later, and was consistent with the fact that Mohammed Shahid did not make a visa application for Asad, despite there being no dispute that Mohammed Shahid was Asad’s parent at the time of his birth.
83 The Commonwealth took a different position on the evidence of Mohammed Shahid. Rather than submitting that all statements, past and present, made by Mohammed Shahid should be put to one side, the Commonwealth submitted that the Court should reach the more nuanced conclusion that Mohammed Shahid was prepared to lie, and did lie, when he thought that doing so would be to the advantage of himself and his objectives. In the Commonwealth’s submission, this approach left untouched many pieces of evidence, including the visa application forms, where it could be said that the omission of the applicant as a child of Mohammed Shahid did not advance his objectives.
84 I accept the Commonwealth’s submissions on the proper approach to the evidence of Mohammed Shahid. 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.
85 Some aspects of Mohammed Shahid’s evidence were corroborated. These include his role as the head of the joint family, and certain family details, such as whether the applicant and Momina Yasir are twins. However, even in some of these details, Mohammed Shahid’s evidence changed from time to time, and it was difficult to ascertain when he was being candid.
86 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.
Rubina Younas
87 Rubina Younas made an affidavit with the assistance of an interpreter, and was cross-examined, also with the assistance of an interpreter.
Affidavit evidence
88 The applicant is one of four biological children of Rubina Younas and her late husband Mohammed Younas. Rubina Younas lives in Lahore in one of the houses to which Mohammed Shahid referred in his evidence. Mohammed Shahid’s third wife, Mona Malik, also lives in the house, occupying a different floor.
89 Ms Younas referred to her late husband’s ill health throughout much of his life. She stated that Mohammed Shahid was the main provider and breadwinner for the family.
90 Ms Younas stated that before the applicant was born, she and her husband, together with Mohammed Shahid, agreed that Mohammed Shahid would look after the applicant as the applicant’s father. She stated that she did not remember exactly when this conversation took place but believed it was in her eighth or ninth month of pregnancy when they were all together in Lahore. Ms Younas stated that when the applicant and her other children were born, they all knew her and her late husband as their auntie and uncle, and knew Mohammed Shahid as their father.
91 Ms Younas stated that when the applicant was born, she was living together with her children, Mohammed Shahid, and his children as one big joint family in the house in which she now lives. She stated that this is very normal in Pakistan. Ms Younas stated that she shared problems and issues with Mohammed Shahid both before and after her husband’s death, as he was the backbone of the family. She stated that Mohammed Shahid looked after her emotionally and financially, and that he contributed absolutely everything to the applicant as a father would.
92 Ms Younas stated that both Mohammed Younas and Mohammed Shahid were at the applicant’s birth. She said that as soon as the applicant was born, Mohammed Shahid assumed the role of his father, cradling him if he was crying, changing and buying his nappies and helping her bathe him almost every night. She said that under the joint family system everyone who was able to take care of the baby did so, naming Mohammed Shahid as well as Fatima Shahid, who was aged 12 at the time of the applicant’s birth. She also said that Mohammed Younas took care of the applicant when he was well enough to do so.
93 Ms Younas said that Mohammed Shahid took the applicant to the doctor if he was sick and covered all the hospital and medical expenses associated with his care. She said that several months after the applicant’s birth, Mohammed Shahid hired nannies who did most of the chores such as changing the applicant’s nappies. She stated that when the applicant was a toddler, Mohammed Shahid would carry the applicant on his shoulders and go for a walk in the neighbourhood. They would play cricket outside in the street and fly kites together.
94 Ms Younas said that as the applicant became older, Mohammed Shahid enrolled him at both school and into a Madrassa, which is a religious institute to assist in learning the Quran. She said that Mohammed Shahid was very invested in the applicant’s education and ensured that he was tutored on the weekends. She said that when Mohammed Shahid was in Australia, he and the applicant spoke weekly.
95 Ms Younas stated that as a baby the applicant called Mohammed Shahid “Baba”, which is an endearing word for father, and that he still calls him by that name. She described the applicant and Mohammed Shahid as having a natural father and son relationship. She said that Mohammed Shahid and the applicant share a parent–child bond like any other parent and child.
96 On the financial side, Ms Younas described Mohammed Shahid as the sole breadwinner. She said that her husband did not earn an income because he could not work due to his deteriorating health. She said that, as such, Mohammed Shahid was responsible for paying for all expenses, including household bills and groceries, both before and after the applicant’s birth.
Cross-examination
97 In cross-examination, Ms Younas stated that she had four children, named Hamza Younas, Momina Yasir (known before her marriage as “Momina Younas”), Mohammed Taha, and Talal Younas (also known as “Awais Younas”).
98 With respect to the applicant’s name, Ms Younas said that the applicant has always been called Hamza Younas. Ms Younas said that she and her husband, Mohammed Younas, had given the applicant the name “Hamza Younas” because his father’s name was “Younas”. Ms Younas accepted that the applicant was aware that his name was “Hamza Younas”, and that the other children knew their names. Ms Younas said that none of her biological children knew that Mohammed Younas was called “Mohammed Younas”. She also said, however, that everybody in the joint family used to call him “Younas”, and seemed to accept in this context that all the children understood that Mohammed Younas’s name was “Mohammed Younas” when they were old enough to understand.
99 Ms Younas was taken to the transcript of the interview between the applicant and officers of the Department of Home Affairs that took place on 8 September 2021. Specifically, Ms Younas was asked about the applicant’s representation in that interview that he and his sister Momina are twins. Ms Younas stated that the applicant and Momina are not twins: the applicant was born on 18 July 1994, and Momina was born on 19 November 1995. Ms Younas clarified that Mohammed Taha and Talal Younas were twins, born in December 1997.
100 Senior counsel for the Commonwealth also asked Ms Younas questions about the circumstances of the applicant’s birth. Ms Younas said that Mohammed Younas was present at the clinic when the applicant was born, and that Mohammed Shahid was also there and that he took Mohammed Younas back home because he had a fever. Ms Younas agreed that Mohammed Shahid was wrong to say in his first affidavit that Mohammed Younas had not been present at the birth of the applicant.
101 Ms Younas was also asked questions about how long Mohammed Shahid stayed with her and her husband after the birth of the applicant. While there was some initial confusion, I understood Ms Younas to maintain that Mohammed Shahid lived with her, her children and her husband as part of a joint family system situated at 625 Karim Block. Ms Younas said that Mohammed Shahid lived permanently at 625 Karim Block, but sometimes went to the 591 Karim Block address. Senior counsel for the Commonwealth put questions to Ms Younas based on a record of an interview conducted by an Australian government official with Mohammed Shahid and Iffat Parveen on 22 May 1998. That record, which was subject to an evidentiary limitation that I will identify later, states that “[s]ince returning to Pakistan in 1992 [Mohammed Shahid] has lived with his wife … [f]irst at his family’s home 591 Karim Block … from 1992 - 1994; then in a place of their own at 625 Karim Block from 95-96”. Ms Younas said that 591 Karim Block was a guesthouse, and that Mohammed Shahid did not stay at 591 Karim Block in the period after the applicant was born, but occasionally visited that residence.
102 During her cross-examination, Ms Younas also stated that she had in her possession a “birth document” for the applicant, being a document that is given by the local government corporation in exchange for the “paper” that is given when a child is born in a hospital (or, perhaps, a private clinic) in Pakistan. That birth document, however, was not put into evidence.
103 Ms Younas maintained her evidence that the applicant had only ever known Mohammed Younas as his uncle, and Mohammed Shahid as his father. Ms Younas also said that the applicant used to call her and her husband “auntie” and “uncle”. Relatedly, Ms Younas was asked questions about whether the applicant was aware that Mohammed Younas was his biological father, as Fatima Shahid had been aware. Ms Younas said that, while Fatima Shahid was aware of this fact, the applicant and the other children were not aware, the biological parentage of the applicant being a secret.
104 Ms Younas said that the biological parentage of the applicant and the other children of Mohammed and Rubina Younas was a secret because there was a desire to take those four children overseas. Ms Younas gave evidence that she did not tell the applicant who his biological father was because there was a plan for Mohammed Shahid to bring the applicant to Australia for a better life. Ms Younas said that this plan was the same thing as the agreement that she referred to in her affidavit. Ms Younas said that this agreement was made by Mohammed Shahid and Mohammed Younas, and that she was informed of it later, though it was unclear whether this meant she was informed only after the applicant’s birth.
105 In this context, Ms Younas said that when the applicant was admitted to school, he was admitted as “Hamza Shahid”. Ms Younas said that “Hamza Shahid” was not the applicant’s name, but that he was admitted to school under that name “because we have to get him – he has to go overseas”, specifically Australia.
106 Ms Younas further stated that she and Mohammed Younas went to register the applicant’s birth together, but that Mohammed Shahid did not accompany them.
107 As for the joint family system, Ms Younas accepted that the male in the extended family with the most money supports other members of the family, whether that be a biological father, a grandfather, or a sibling. In this particular joint family, Ms Younas accepted that Mohammed Shahid inhabited the role of head of the household because he had the most money. Ms Younas also accepted that Mohammed Younas took care of the applicant as a baby, when he was well enough to do so, and that Fatima Shahid similarly helped.
Assessment
108 Ms Younas gave evidence in a direct and straightforward manner. I accept her evidence on many uncontroversial aspects of the case. I also accept her evidence on several issues that were attended by more confusion, such as whether the applicant and Momina Yasir are twins.
109 On some of the key factual issues before the Court, however, I am not able to attach great weight to Ms Younas’s evidence. At one point in her evidence, Ms Younas said via the interpreter that “because of the blood relationship” between Mohammed Shahid and the applicant, the latter “should get a permission to stay” in Australia. In this respect, Ms Younas did not strike me as a wholly disinterested witness who was endeavouring solely to recount her recollection of critical events. Ms Younas’s evidence displayed an awareness that her biological son’s right to remain in Australia turned on the precise question before the Court. I take that into account when assessing her evidence on issues that touch directly on that question.
110 Accordingly, I consider that Ms Younas’s evidence on key, contested issues must be approached with a degree of caution. It must be weighed against the objective circumstances, and the inherent probabilities that arise on those circumstances. Some of these key, contested issues include the existence and content of any agreement that Mohammed Shahid would be the parent of the applicant, as well as the nature of the relationship between the applicant and his biological parents. As I will explain, the need for caution is evidenced by Ms Younas’s evidence that the biological parentage of the applicant was a “secret” — a position difficult to reconcile with other established facts. Further, the existence of a plan that Mohammed Shahid would be a parent of the applicant, while his biological parents would not, is also difficult to reconcile with the objective circumstances both at that time, and later. On these key issues, I am not able to accept the evidence of Ms Younas.
Dr Adeem Suhail
111 As I have mentioned, counsel for the applicant called as an expert witness Dr Adeem Suhail, who is an Assistant Professor of Social Anthropology at Franklin & Marshall College in Lancaster, Pennsylvania. One of Dr Suhail’s primary areas of expertise is transnational kinship networks in South Asia, specifically Pakistan, where he has spent more than 30 months for field-based ethnographic data collection.
112 Dr Suhail was provided with a letter of instructions from the applicant’s solicitors that set out some background facts. The following factual assumptions in the letter of instructions appear to be central –
3. While his mother was pregnant, it was agreed between [the applicant’s] father and mother that his paternal uncle, Mohammed Shahid, would take over the duties as head of household and be a father to [the applicant] and his siblings. This was due to the fact that the applicant’s biological father had serious health conditions.
4. [The applicant] instructs that Mohammed Shahid was the head of household and paid for all expenses including utilities and food both prior to and following [the applicant’s] birth.
5. Growing up, [the applicant] instructs that he was told by his family that Mohammed Shahid was his father and that one day he would go to Australia to live with him and his siblings. His biological mother and father represented themselves to [the applicant] as his aunt and uncle.
113 Dr Suhail was initially asked to address four questions and one topic –
(1) What is the structure/s of family in Pakistan?
(2) What is the kinship system in Pakistan?
(3) To what extent was the family structure described in the background section of his letter of instructions prevalent in Lahore, Pakistan, in 1994? In particular, to what extent would extended family members take on parental duties for children?
(4) Having regard to his answers to the above questions, was Mohammed Shahid a non-biological parent of the applicant at the time of the applicant’s birth?
(5) Any other matters which Dr Suhail, in his professional opinion, considered relevant.
114 In a report dated 4 December 2023, Dr Suhail addressed the four questions as follows. It is clear from Dr Suhail’s cross-examination that the responses to most of the questions he was asked were concerned with generic circumstances.
(1) What is the structure/s of family in Pakistan?
115 Dr Suhail stated that the dominant family structure in Pakistan is patriarchal or male-dominated where a father is often the primary earner in the family and is the ultimate figure of authority in the family. Dr Suhail stated that another important feature of the Pakistani family is the “Joint-Family System” or the “Extended Family Structure”. Generally speaking, in Pakistan what constitutes a “family” is not a Euro-American style nuclear family with parents and their biological or non-biological children constituting a family unit. Rather, owing to both traditional as well as more proximate socio-economic factors, a family typically may include paternal grandparents, uncles and aunts, and their children. Usually, this unit would also occupy the same family home and share mutually in the responsibilities, be they economic contributions or pertaining to household work, raising children, and so on. Dr Suhail stated that often the person who is the primary breadwinner for the family, who is usually the eldest adult male in the family in the wider sense, takes on all the authority for making decisions germane to the extended family unit and thus acts as a type of paterfamilias, even concerning his parents and younger siblings.
(2) What is the kinship system in Pakistan?
116 Dr Suhail referred to the kinship system in Punjab, which he described as patriarchal. He stated that as with all patriarchal systems of kinship, women are generally removed from the structure of power in the family, and the “line of descent” does not accrue by reference to them.
117 Dr Suhail stated that under the kinship system in Pakistan, if a male in the family dies or is incapacitated in such a way that he cannot take care of his offspring, it is generally expected that a financially stable male member of the family, or the extended kinship group, would take on the role of the father. Dr Suhail stated that paternity in this regard entails financial responsibility as well as moral authority and the right to make important decisions on behalf of the children. Dr Suhail stated that these two functions, financial support and moral authority, are constitutive of the Pakistani social sense of fatherhood.
(3) To what extent was the family structure described in the background section of his letter of instructions prevalent in Lahore, Pakistan, in 1994? In particular, to what extent would extended family members take on parental duties for children?
118 Dr Suhail stated that extended family members take on parental duties in Pakistan fairly regularly, given political, medical, economic, and sociological instabilities in Pakistan. He stated that anyone who is familiar with the sociological context of Pakistan can without any hesitation attest to the fact that non-biological parenting is normative in Pakistani society and is often indistinguishable from biological parenting.
119 Dr Suhail referred to a situation where one person becomes the paterfamilias: where the family invests in the person, and the person then assumes the position of the head of the family, and sends remittances to the family to sustain the household. He referred to this situation giving rise to the re-arrangement of what it means to be a “parent”, a “father”, the structure of the family, and the relationship between (on the one hand) the children in a “joint-family system” in which multiple male siblings live in the same house, and (on the other hand) the one uncle, father or paterfamilias who works to support the whole while everyone else chips in with what they can. He qualified these opinions, however, by emphasising that often such arrangements are temporary, occurring for instance in a time of crisis.
(4) Having regard to his answers to the above questions, was Mohammed Shahid a non-biological parent of the applicant at the time of the applicant’s birth?
120 Dr Suhail expressed the opinion based upon the information provided to him that Mohammed Shahid and the applicant have a non-biological parent–child relationship, which was not “exceptional” or “unheard of” in the Pakistani social context.
121 No objection was taken to the admissibility of Dr Suhail’s opinion that Mohammed Shahid was a parent of the applicant. However, I give the opinion no weight because I do not regard it as being a product of the exercise of any expertise, and because the question is a question of fact for the Court to decide based upon the evidence that is before the Court.
122 The applicant also tendered a supplementary expert report of Dr Suhail dated 7 March 2024. In this report, Dr Suhail essentially restated his opinions on various issues, in light of having read the affidavit evidence of Rubina Younas and Fatima Shahid.
Cross-examination
123 Dr Suhail was cross-examined by counsel for the Commonwealth.
124 One topic addressed in cross-examination was Dr Suhail’s experience and areas of specialisation. Dr Suhail stated that his research focused on kinship ties across country borders, as well as issues of urban ecology. Dr Suhail explained that urban ecology is the study of the ways in which urban spaces have developed, and how that interacts with forms of human life.
125 It was put to Dr Suhail that, when he said he had spent more than 30 months in Pakistan for field-based ethnographic data collection, his field research consisted of being a polio vaccinator in Karachi. Dr Suhail accepted that this was part of his field research, but stated that his research also involved working with local hospitals, and trips to Balochistan, including five months of research in urban environments. Dr Suhail accepted that he had never written about the topic of joint family systems, but maintained that he had conducted academic research into that topic, and had expertise in it.
126 Dr Suhail was also asked questions about the nature of joint family systems in Lahore. Over the course of my reasons, I will point out some of Dr Suhail’s specific evidence on this subject. In general terms, however, Dr Suhail explained that a joint family system in Pakistan generally involves multiple generations of an extended family operating together as a single economic and social unit. In this way, Dr Suhail contrasted the joint family system with nuclear families.
127 Dr Suhail was also taken to articles cited in his first report. Counsel for the Commonwealth asked Dr Suhail about which parts of these articles he relied upon in expressing the opinions contained in his report. It was put to Dr Suhail that these articles either did not relate to the issues canvassed in his report, or that they did not support the specific propositions for which they were cited. Dr Suhail explained that he cited the articles to show from where he derived ideas, and he did not claim that the articles were necessarily the sources of precise propositions apparent in his reports — these propositions drew both on the academic sources cited, and on Dr Suhail’s own expertise and experience.
Assessment
128 Dr Suhail gave evidence in a straightforward manner. In my opinion, he was doing his best to assist the Court by providing his perspective on the factual issues in the case, to the extent he was able to do so.
129 I accept Dr Suhail’s evidence about social conditions in Pakistan. I consider that Dr Suhail has clear expertise in this area, derived from academic study, field work, and other forms of personal experience.
130 While some of the concepts deployed in Dr Suhail’s reports and academic work are somewhat esoteric, I do not think that this affects the reliability of his evidence on the more workaday issues of fact that are before the Court. Dr Suhail gave clear evidence about the functioning of joint family systems in Pakistan generally, and Lahore specifically. I accept this evidence, and consider that it sheds light on the social phenomenon that is, in some ways, at the heart of this case.
131 I have already explained why I do not attach any weight to Dr Suhail’s evidence on the ultimate issue in this case. Dr Suhail’s evidence is best viewed as providing helpful, but ultimately generic, background information against which the specific evidence concerning the arrangements in the applicant’s family can be assessed.
The applicant’s submissions
132 The applicant characterised his factual case as a “mosaic” — a case that depended on the combination of all the evidence that casts light on what happened at and shortly after the time of his birth. The applicant placed particular emphasis on the following evidence –
(a) Rubina Younas’s evidence as to Mohammed Shahid’s involvement in the daily activities of parenting a newborn baby, including that Mohammed Shahid cradled the applicant, bought and changed his nappies, bathed him, and took him to the doctor;
(b) the evidence of Ms Younas and Fatima Shahid that Mohammed Shahid financially supported the applicant from the time of his birth, and took financial responsibility for the joint family as a whole;
(c) Ms Younas’s evidence that Mohammed Shahid took the applicant to be circumcised;
(d) Ms Younas’s evidence that Mohammed Shahid supported her emotionally, including at the time of the applicant’s birth, and shared a “beautiful bond” with the applicant from his birth, which was manifested by Mohammed Shahid playing games with the applicant as a child and the applicant calling Mohammed Shahid by telephone weekly even after Mohammed Shahid returned to Australia;
(e) Ms Younas’s unchallenged evidence that the applicant called Mohammed Shahid “Baba”, the Urdu word for “father”, since the applicant was a baby; and
(f) the evidence of Ms Younas and Ms Shahid that Mohammed Shahid was the head of the joint family.
133 The applicant also relied on various pieces of circumstantial evidence, which the applicant submitted support the conclusion that Mohammed Shahid was his parent at the time of his birth. These pieces of circumstantial evidence included records of Mohammed Shahid’s movements between Pakistan and Australia, which showed that he was in Pakistan at the time of the applicant’s birth, as well as Mohammed Shahid’s statement on the applicant’s citizenship application form that he was the “natural parent” of the applicant.
134 As to the evidence concerning his name, the applicant submitted that it was of no consequence whether he went by the name “Hamza Younas” or “Hamza Shahid” at any point in time. The applicant drew attention to the fact that Asad Shahid, Mohammed Shahid’s biological son, had gone by names other than Asad Shahid while growing up under the impression that people other than his biological parents were his parents. The applicant submitted on this basis that what name a person goes by at any given time is not a meaningful indicator of who that person’s parents are.
135 The applicant also made submissions concerning a “plan” to bring the applicant to Australia, a possibility that the Commonwealth had raised at trial. The applicant submitted that the existence of any such plan in fact underlines the depth of commitment that Mohammed Shahid had to giving the applicant a better life. The applicant further submitted that no adverse inference could be drawn from the fact that Mohammed Shahid organised for some of his undoubted children to be brought to Australia, but not the applicant, since this did not reflect on the intense commitment that Mohammed Shahid evinced towards the applicant.
136 The applicant submitted that the Court should not accept that Mohammed Shahid assumed responsibility for the applicant only after Mohammed Younas had died. The applicant characterised the basis of this proposition as being an apparent statement from Mohammed Shahid to the applicant that his parents died when he was six, which was recorded in the transcript of interview between the applicant and a Home Affairs official dated 8 September 2021. Yet, the applicant submitted, this was inconsistent with the fact that Rubina is still alive, and the fact that Mohammed Younas did not die until 2008, when the applicant was about 14 or 15. Further, the applicant submitted that this view of the case was wholly based on inferences drawn from events that occurred years after the applicant’s birth, in a way that did not challenge the “available direct evidence” of what occurred.
The Commonwealth’s submissions
137 The starting point of the Commonwealth’s submissions was that the applicant bore the onus of proof to establish his case, which he should be required to discharge in line with the principles essayed in Briginshaw v Briginshaw (1938) 60 CLR 336 and reflected in s 140 of the Evidence Act. The Commonwealth submitted that the significance of a determination of parentage, as well as the significance of a determination of Australian citizenship, rendered the subject matter of the applicant’s burden significant, such that clearer and more cogent evidence may be required to discharge the applicant’s onus.
138 Dealing with the ultimate factual question in dispute, the Commonwealth made the following submissions on the evidence –
(a) objective evidence as to the interactions between Mohammed Shahid, along with other family members, and the wider world strongly points to the conclusion that Mohammed Shahid was not the applicant’s parent at the time of his birth;
(b) in accordance with Jones v Dunkel (1959) 101 CLR 298, inferences arise from the fact that there were witnesses whom the applicant failed to call, and documents that he failed to tender;
(c) the evidence of Fatima Shahid was limited, and did not directly reflect on whether the applicant called Mohammed Shahid his father as a child;
(d) Mohammed Shahid’s evidence in court was unreliable, but his historical statements and objective evidence as to his conduct are relevant, and undermine the applicant’s case;
(e) the evidence of Rubina Younas “evolved substantially” on the issue of the alleged agreement. The Commonwealth characterised Ms Younas’s initial evidence as being that there was an agreement that Mohammed Shahid would be the applicant’s father in light of Mohammed Younas’s illness, and her subsequent evidence as being that the agreement was made as a means of securing for the applicant the right to come to Australia; and
(f) the concept of a “head of the household” cannot be conflated with the concept of a “parent”, nor does the fact that a person undertakes duties that are typically undertaken by a parent necessarily render that person a parent.
139 The Commonwealth made submissions by reference to a series of visa applications made on behalf of Mohammed Shahid’s family members, which did not include the applicant. The Commonwealth submitted that these applications show that Mohammed Shahid did not acknowledge the applicant as his own, as he omitted the applicant when asked to identify his children and dependants. The Commonwealth also submitted that the applications show that Mohammed Shahid did not, by his conduct, treat the applicant as he did his biological children: Mohammed Shahid sought to enable his biological children to migrate to Australia, but not the applicant.
140 As to the Jones v Dunkel inferences it urged, the Commonwealth submitted that the Court should draw inferences from the applicant’s failure to give evidence himself, from his failure to call Iffat Parveen or other children besides Fatima Shahid as witnesses, and from his failure to tender his “birth document”. The Commonwealth submitted that, while the applicant could not give evidence about conduct before or at the time of his birth, he could give evidence about subsequent events, which may cast light on the question of parentage at the time of birth.
Consideration
Framing the issue for consideration
141 The sole question in this case is whether Mohammed Shahid was “a parent” of the applicant at the time of the applicant’s birth. In H v Minister, Moore, Kenny and Tracey JJ held at [130] that “the question whether a particular person qualifies as a parent within [the] ordinary meaning” of that term is a “question of fact”. Nevertheless, as the Full Court acknowledged in Minister for Immigration, Citizenship and Multicultural Affairs v Su [2024] FCAFC 68 at [21] (Wheelahan, Cheeseman and Hespe JJ), determining whether one person is the parent of another requires an “evaluative exercise”.
142 To describe the required exercise as “evaluative” is not to say that the question depends on a personal value judgement. Rather, the point is to draw a distinction between questions of primary fact and the question whether Mohammed Shahid was the applicant’s parent at the time of his birth. The distinction was described by Viscount Simonds to be one between “the finding of a specific fact” and “a finding of fact which is really an inference from facts specifically found”: Benmax v Austin Motor Co Ltd [1955] AC 370 at 373. In other words, the distinction is “between the perception and evaluation of facts”: Benmax at 373.
143 As the statements of Viscount Simonds show, the distinction is sometimes cast as one between “primary facts” and “inferences”. It is perhaps more conceptually accurate, however, to cast the distinction as one between primary facts and factual conclusions reached as the outcome of a process of “evaluation or appraisal” that “depends upon measuring” those primary facts against a legal standard or “norm”: see, in a different context, Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 213 (Windeyer J). More recently, Gageler J has described this general process as one involving “evaluative conclusions reached … in the application of broad legal standards to findings of primary fact”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [40].
144 The question whether Mohammed Shahid was a parent of the applicant at the time of his birth calls for an evaluative conclusion in this sense. In short, the legal process involved requires me to make findings of primary fact as to the events that transpired, the conversations that were had, and the intentions that were held and expressed at the relevant times. From there, the question becomes whether, on those primary facts as found, the position Mohammed Shahid inhabited at the time of the applicant’s birth amounts to being “a parent” for the purposes of s 10B(1) of the 1948 Act.
The requisite standard
145 The applicant bears the onus of proving his case on the balance of probabilities. The parties made submissions about the significance of s 140 of the Evidence Act and the principles essayed in Briginshaw in this context.
146 Section 140(2) of the Evidence Act provides that the Court, in deciding whether it is satisfied that the case has been proved on the balance of probabilities, must take into account “the nature of the cause of action”, “the nature of the subject-matter of the proceeding”, and “the gravity of the matters alleged”.
147 In this case, the subject matter of the proceeding concerns questions of parenthood and, consequently, Australian citizenship. In a variety of legal contexts, courts have recognised that parenthood is a deeply significant status, which brings wide-ranging legal consequences: see G v H (1994) 181 CLR 387 at 391 (Brennan and McHugh JJ) and 399 (Deane, Dawson and Gaudron JJ); Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; 286 FCR 459 at [148] (Lee J). In my view, the significance of a finding of parenthood does vary between contexts. I do not equate the seriousness of the finding that the applicant seeks with a finding that a man is the biological father of a child previously thought to be the child of a different union. Nevertheless, the finding urged by the applicant in this case is significant. One source of that significance in this case comes from the “important consequences” that attach to being an Australian citizen: see Lieu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 758 at [27] (McElwaine J).
148 For these reasons, I accept the Commonwealth’s submission to the extent that, while the applicant bears the onus of proving his case on the balance of probabilities, what suffices to meet this standard of proof, which requires the Court to reach a state of actual persuasion of the existence of the fact in issue, must be calibrated to the significance of the finding which the applicant seeks. Nevertheless, to be clear, the applicant’s burden is to establish his case on the balance of probabilities, and not some higher standard.
The joint family system
149 I am satisfied that, in Lahore and other parts of Pakistan, families structure their living arrangements in ways that can differ from typical patterns in Australia. Specifically, I accept the evidence of Dr Suhail that, in Pakistan, extended families (comprising parents, their children, uncles, aunts, cousins and grandparents) often live together as a single household. In other words, I accept that “joint family systems” exist in Pakistan, and are widespread in Lahore. I did not understand this proposition to be seriously challenged by the Commonwealth.
150 Nor did I understand the Commonwealth to challenge the proposition that, typically, a joint family is headed by a man who takes responsibility for, and exercises authority over, the joint family as a whole. Dr Suhail said, and I accept, that the male head of the household is often the person who is the primary income-earner for the family. The responsibilities of the head of the household include the responsibility to support the family financially. I accept that the authority of the head of the household includes moral authority in some religious and cultural matters, as well as the authority to make or influence certain decisions on behalf of members of the joint family. I also accept that, in a joint family system, there is an unspoken expectation that members of the family help to raise the children in the joint family to the extent that they are able.
151 One factual issue in this case was whether the applicant’s family lived in a joint family system, which at least comprised the applicant, his biological parents and siblings, Mohammed Shahid, Iffat Parveen, and their biological children. I am satisfied that some form of joint family system was in place in the applicant’s family at the relevant times. The applicant drew attention to the evidence of Rubina Younas and Fatima Shahid to the effect that such a joint family system did exist, and that Mohammed Shahid was at its head. As a general proposition, I see no reason to reject this evidence. It is consistent with the evidence concerning Mohammed Shahid’s role as the primary breadwinner for the extended family, and with the evidence concerning Mohammed Younas’s illness and inability to provide for his immediate family financially.
152 Some doubt may attach to whether all members of the joint family lived at the same address for the whole time the joint family system was in operation. As a starting point, I note that Dr Suhail gave expert evidence that whether a joint family lives under one roof “depends” and may vary from place to place, and that it is merely “fairly common” for a joint family to live under the one roof. In other words, Dr Suhail gave evidence that it is not a necessary feature of a joint family system that all members live together in one house. The joint family constitutes a single “household” in a broader sense, in that it forms a single unit in terms of social, cultural, and financial matters. Nevertheless, it is relevant to the ultimate issue in this case to examine the evidence as to where different members of the joint family lived at different times.
153 Fatima Shahid gave evidence that before moving to Australia, she only ever lived at 625 Karim Block. She said that she did not remember the 591 Karim Block address at all.
154 Rubina Younas, who gave her current address as 625 Karim Block, said that she lived with Mohammed Younas, her biological children, Mohammed Shahid, and his biological children with Iffat Parveen, in the same house from when the applicant was born in 1994 until 2002.
155 Also before the Court is evidence of previous representations that have been made about where various members of the family lived. These include –
(a) the record of an interview with Mohammed Shahid and Iffat Parveen on 22 May 1998, which states that “[s]ince returning to Pakistan in 1992 [Mohammed Shahid] has lived with his wife … [f]irst at his family’s home 591 Karim Block … from 1992 - 1994; then in a place of their own at 625 Karim Block from 95-96” — noting that this evidence was subject, by consent of the parties, to a limitation under s 136 of the Evidence Act precluding use of the assertions it contains for an opinion purpose;
(b) letters to and from Mohammed Shahid and Iffat Parveen in 1996 in connection with the review of the refusal of an Australian visa for Iffat Parveen, which state their address as 591 Karim Block;
(c) the letter to Iffat Parveen and Mohammed Shahid dated 8 May 1998 from the Australian High Commission Migration Office in Islamabad, which is addressed to them at 591 Karim Block;
(d) a letter dated 21 July 1998 to Mohammed Shahid from the Migration Internal Review Office, addressed to him at 591 Karim Block, which is marked with the following notation dated 21 July 1998: “sent by registered mail to the address given in the review form (address given at iw proved to be incorrect)”, with “iw” perhaps an abbreviation for “interview”;
(e) the letter dated 26 November 1998 to Iffat Parveen from the Australian High Commission Migration Office in Islamabad, which is addressed to her at 625 Karim Block; and
(f) the birth certificate of the applicant containing the false information that gives his address as 591 Karim Block.
156 There is also evidence about a third location, which is a house in a township outside Lahore, where members of the family may have spent time.
157 The evidence as to where different members of the family lived at different times is confused. Fatima Shahid and Rubina Younas gave clear and simple evidence that they lived at 625 Karim Block from the birth of the applicant until 2002. Further, I consider it possible that Mohammed Shahid provided inaccurate information about his address in the past, to facilitate the migration of Iffat Parveen to Australia. On this subject, I prefer the evidence of Rubina Younas and Fatima Shahid. Their evidence was clear, and consistent with at least some of the contemporaneous documents suggesting that Mohammed Shahid and Iffat Parveen lived at 625 Karim Block. Further, neither Rubina Younas nor Fatima Shahid appears to have been privy to any of the contemporaneous representations made about where various members of the family lived. They were thus not involved in any representations that may explain the inconsistencies in the evidence on this subject. In view of this, I consider it likely that Rubina Younas and Fatima Shahid gave reliable evidence on this topic, which was not influenced by any perceived need to explain away inconsistencies in the record. I therefore find, on the balance of probabilities, that 625 Karim Block was the primary residence of all members of the joint family from the birth of the applicant until 2002.
The “arrangement” or “plan”
158 Of critical importance to the applicant’s case was the claim that, before he was born, it was agreed that Mohammed Shahid would be his father, and that this agreement was put into action. It is important to emphasise that although the ultimate factual issue raised by the applicant is directed to a point in time, namely the time of the applicant’s birth, the applicant’s case was put on a much more extensive basis, thereby inviting scrutiny of a broad range of circumstantial evidence. Based on all the evidence, I am not satisfied that any such agreement was entered into before the applicant’s birth.
159 The only witnesses who gave direct evidence as to the existence of this agreement were Mohammed Shahid and Rubina Younas.
160 As I have already explained, the applicant and the Commonwealth were agreed that Mohammed Shahid’s evidence could not be relied upon. I therefore place no weight on any evidence given by Mohammed Shahid as to the existence of this plan.
161 In her affidavit, Rubina Younas deposed at paragraph [9] as follows –
Before Hamza was born, my husband and I, together with my husband’s brother, agreed that Mohammed Shahid Humayun would look after Hamza as Hamza’s father. I do not remember exactly when this conversation took place but I believe it was in my eighth or ninth month of pregnancy and we were all together in Lahore. This agreement was made because my husband was sick and we wanted Hamza, along with our other children, to have better opportunities in life.
…
162 Initially, then, Rubina Younas’s evidence was that she was party to an agreement with Mohammed Shahid and Mohammed Younas that Mohammed Shahid would be the applicant’s father. In context, Ms Younas also asserted that this agreement was made in a conversation to which she was a party, and which occurred in Lahore in the eighth or ninth month of her pregnancy.
163 During cross-examination, Ms Younas said that the agreement was in fact made by Mohammed Shahid and Mohammed Younas, and that she had been informed of it later. In my view, this is inconsistent. Even accepting that Ms Younas was doing her best to assist the Court, it is clear that her recollection of this agreement is not clear, and that she has been confused at different times as to whether she was even party to the conversation in which the agreement was made. Further, if I accept her modified evidence that she was informed of the agreement later, this means that there is currently no reliable direct evidence before the Court from anyone who was privy to the agreement. This observation simply goes to show that the evidence about the alleged agreement is relatively scant, and it is not possible to place significant weight on Ms Younas’s evidence about it without some reservations.
164 Ms Younas’s evidence evolved during cross-examination in one other respect. As appears above, Ms Younas deposed in her affidavit that “[t]his agreement was made because my husband was sick and we wanted Hamza, along with our other children, to have better opportunities in life”. During cross-examination, however, Ms Younas emphasised that the “plan” between Mohammed Younas and Mohammed Shahid was that Mohammed Shahid would be the applicant’s father so that the applicant could later come to Australia. Ms Younas also said that the plan was formed partly because of Mohammed Younas’s ill health. In that sense, her evidence under cross-examination was largely consistent with paragraph [9] of her affidavit, in that the relevant plan was devised partly due to Mohammed Younas’s ill health, and partly to secure a better life for the applicant (which, it became apparent in cross-examination, meant a life in Australia). To the extent that the Commonwealth submitted that Ms Younas’s evidence on this topic changed in some more fundamental way, I am not persuaded by that submission.
165 There are several related issues that are also relevant to the question of whether any agreement or plan existed.
The applicant’s name
166 First, there is the issue of the applicant’s name. I have already set out the evidence of Rubina Younas on this issue. The relevant points to note are that Ms Younas accepted that the applicant’s name is, and always has been, “Hamza Younas”, and that the applicant was aware of his name. There was no suggestion that the applicant went by any other name as a child. Further, her evidence was that the applicant received this name when she and Mohammed Younas gave it to him, which they did because Mohammed Younas was his father. This evidence, which I accept, establishes that at around the time of the applicant’s birth, Rubina Younas and Mohammed Younas were the people who were the parents of the applicant, because they named their newborn child; further, this evidence shows that Rubina Younas and Mohammed Younas considered Mohammed Younas to be the applicant’s father.
167 Dr Suhail gave evidence that the kinship system in Punjab is patrilineal, or agnatic, in form. He explained that under such a system, kinship traces through the line of the male members of the community, and that this male line determines questions of lineage, honour and inheritances. Dr Suhail said that a feature of the patrilineal kinship system in Punjab is that patrilineal descent determines a person’s family name. In other words, people take their family name from their father, who took it in turn from his father. When asked whether the name of a person’s biological father determines that person’s family name, Dr Suhail reiterated that patrilineal descent determines the family name. In the context of his other evidence about fatherhood in Punjab, I did not understand Dr Suhail to accept that biological fatherhood always determines a person’s family name, but rather that family names are determined by the identity of a person’s father, in the way that the concept of fatherhood is understood in Punjab.
168 In this context, it is significant that at least three, and possibly all four, of Mohammed Younas’s biological children were given the name “Younas”. The biological children of Mohammed Shahid were correspondingly given the name “Shahid”. As Rubina Younas said during cross-examination, the applicant was given the name “Younas” because his father was called “Younas”.
169 Further, Rubina Younas’s evidence was that Mohammed Younas was called “Younas” by everybody in the joint family, and she eventually accepted that when they were old enough to understand, the children (including the applicant) knew that his name was Mohammed Younas.
170 Rubina Younas also gave evidence that the applicant was admitted to school under the name “Hamza Shahid”, despite that not being his real name, effectively as a means of facilitating his eventual migration to Australia. I accept Ms Younas’s evidence on these subjects.
Involvement at the birth
171 There was also a significant amount of evidence dealing with the involvement of Mohammed Shahid in the applicant’s life around the time of his birth. This is relevant in its own right, but also because it can shed light on whether there subsisted any plan that Mohammed Shahid would be a parent of the applicant.
172 Fatima Shahid gave evidence that her father had supported the applicant “since he was born in every way, providing financially for food, clothes, education and everything else a father would provide for their child”. She also deposed to the fact that her father was (and remains) “the head” of the joint family, and that “it is the custom in our culture that the head of the family takes care of everyone in the family”. Ms Shahid was around 12 years old when the applicant was born, and I consider it likely that she would have had a general understanding of her father’s role as the head of the household by that age. I therefore accept her evidence that Mohammed Shahid supported the applicant financially from the time of his birth, together with the other members of the wider family.
173 Rubina Younas gave evidence that Mohammed Shahid was intimately involved in significant events around the time of the applicant’s birth. Ms Younas deposed that, immediately after the applicant’s birth, Mohammed Shahid cradled the applicant if he was crying, changed and bought his nappies and helped her bathe him almost every night. Ms Younas also stated that Mohammed Shahid took the applicant to the doctor when he was sick and paid for his medical care, as well as the wages of nannies, nappies for the applicant, and other essential items. Ms Younas further stated that, as a reflection of the joint family system, “everyone who was able was taking care of the baby”, including Mohammed Shahid, Fatima Shahid, and Mohammed Younas. I accept this evidence. It accords with the evidence of Fatima Shahid, and also with the expert evidence of Dr Suhail concerning the workings of joint family systems.
Mohammed Shahid’s relationship with the applicant
174 It is relevant to note Rubina Younas’s evidence that, as a baby, the applicant called Mohammed Shahid “Baba”, which is an endearing word for father, and that he continues to call him by that name. The evidence also established that the applicant has a close relationship with Mohammed Shahid in the various ways I have already mentioned in passing. I accept Ms Younas’s evidence on this topic, and I will discuss its significance in due course.
Mohammed Shahid’s relationships with other children
175 In assessing the nature of the relationship between the applicant and Mohammed Shahid, it is relevant also to consider the relationship of Mohammed Shahid with the other biological children of Rubina Younas and Mohammed Younas. The evidence was that Mohammed Shahid was intended to be the father of each of those other children, as he was for the applicant. The nature of Mohammed Shahid’s relationships with those other children can cast circumstantial light on what was considered a parental bond within the context of the applicant’s particular joint family.
176 During cross-examination, Mohammed Shahid struggled to name one of the biological sons of Rubina Younas and Mohammed Younas other than the applicant. Specifically, when asked to name Rubina’s biological children, Mohammed Shahid could name the applicant, his sister Momina, and his brother “Taha Younas”, whom I take to be Mohammed Taha. Mohammed Shahid could not, however, confidently name Talal Younas. He initially called him “Awais Younas”, and appeared not to recall that his name was formally “Talal Younas”. When explaining this apparent difficulty, Mohammed Shahid stated that he had trouble “[b]ecause before that’s what I had heard, that the parents had named ‘Awais’, but now I can see that they hadn’t”.
177 I would make several observations about this evidence. First, Mohammed Shahid’s apparent inability to remember the full or formal name of Talal Younas is not a matter affected by Mohammed Shahid’s lack of credibility as a witness — it is a matter contrary to his perceived interest, not something that was in any way self-serving. Secondly, Rubina Younas gave evidence that Talal Younas was known as “Awais Younas”, though not in his “papers”. This shows that Mohammed Shahid was not entirely mistaken about the name by which Talal Younas commonly went, just about his formal name. Thirdly, it is notable that Rubina Younas, who is said by the applicant to be the aunt of himself and Talal Younas, could clearly and confidently identify that Talal Younas was known as “Awais Younas”, but that his name was formally “Talal Younas”. This is difficult to square with the proposition that Mohammed Shahid is, and has always been, a parent of Talal Younas, but that Rubina Younas was in the position of an aunt. Fourthly, it is significant that Mohammed Shahid stated that “the parents” of Talal Younas had given him his name. This indicates that there is at least one sense in which Mohammed Shahid considered that a person he claimed to be his child had parents who were different from, and did not include, Mohammed Shahid himself. Fifthly, the fact that Mohammed Shahid was unsure of the name of a person he claimed was his child casts light on the nature of the relationship that, in the context of this joint family, he considered to suffice to render him the parent of someone other than his own biological children.
Mohammed Shahid was not a “parent” of the applicant at the time of his birth
178 I stated at the outset that the word “parent” in s 10B(1) of the 1948 Act is not defined. As such, its meaning must be discerned by reference to the ordinary meaning of the word “parent” in light of the text, structure, purpose and context of the Act as a whole. The question whether at the time of the applicant’s birth Mohammed Shahid was his parent is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand: Masson v Parsons at [29] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
179 H v Minister concerned a cognate provision in s 16(2) of the 2007 Act. Counsel for the Commonwealth accepted that the reasoning in H v Minister applies to s 10B(1) of the 1948 Act. In H v Minister, the Full Court was called upon to construe s 16(2) of the 2007 Act, and said at [127] –
There is nothing in the legislative object, the legislative text, or the legislative structure of the Citizenship Act that requires the Court to conclude that, in the specific context of s 16(2), the word “parent” only can mean biological parent. Indeed, these considerations indicate that the better view is that the word “parent” in s 16(2) has the meaning it bears in ordinary contemporary English usage.
180 At [129], the Full Court said that “[b]eing a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological” factors. While these factors may all align in many cases, the Full Court also said at [129] that “[t]ypically, 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”.
181 From a more practical point of view, the Full Court acknowledged at [130] that evidence as to conduct after birth may be relevant as confirming parentage at the time of birth.
182 What does it mean to treat another person as “one’s own”? On the facts that I have found, the present case raises this question in a most acute form. Plainly enough, a person will not relevantly acknowledge another as his or her “own” by acknowledging that other as the person’s “own” sibling, cousin, grandchild, nephew, or niece. The thrust of the Full Court’s reasoning in H v Minister is that, typically, a person will be the parent of another if the person recognises that other person as his or her own child. Lest it be thought that this formulation results in a circular inquiry — in which a court will determine whether a person is a parent of a child by asking whether that other person is a child of the parent — the Full Court gave further guidance. The Full Court explained that parentage is typically a matter of “intense commitment” to another, which is expressed by how the parent acknowledges and treats his or her child.
183 The question in this case is whether Mohammed Shahid was a parent of the applicant at the time of his birth. Since Mohammed Shahid is not the applicant’s biological father, the applicant put his case on the basis that, at the time of his birth, Mohammed Shahid acknowledged the applicant as his own in the relevant sense. The case that the applicant put forward was that this relationship obtained not just at the moment of his birth, but throughout his childhood years and into his adulthood.
184 The question I must decide is whether, on the facts as I find them, Mohammed Shahid’s relationship with the applicant at the time of his birth was marked by the relevant “intense commitment” that was expressed through Mohammed Shahid acknowledging and treating the applicant as his own, in the relevant sense. For the following reasons, I am not persuaded that Mohammed Shahid was a parent of the applicant at the time of his birth in this sense.
185 I have expressed my findings of primary fact at [149]–[177] above. In short, I am satisfied that the applicant was born into an extended family that lived according to a joint family system, with Mohammed Shahid at the head of the family. The role of the head of the household under a such a system was variously referred to at trial as that of “breadwinner”, “head of the family”, or “paterfamilias”. As Dr Suhail expressed it, “[t]he family has … invested in this person to be their … father … to take care of them … to be responsible for them”.
186 I accept that the head of a joint family may be described as the “father” of that family, and may even be referred to as “father” or “Baba” by some members of the family. Nevertheless, in my view, the head of a joint family of this kind is the “parent” of all members of the joint family in a different, looser, sense from the sense the word “parent” bears in s 10B(1). An example of the difference can be seen in Mohammed Shahid’s relationship with Talal Younas. Mohammed Shahid said, and I see no reason to doubt, that he was considered to be Talal Younas’s father, despite having difficulty in recalling his name correctly because Talal Younas and Mohammed Taha were “very young” when Mohammed Shahid came to Australia. This hardly bespeaks an intense commitment on Mohammed Shahid’s behalf towards Talal Younas in the sense contemplated in H v Minister. This evidence illustrates the point that being the “paterfamilias” of the joint family does not suffice to render Mohammed Shahid the “parent” of each child in the joint family within the meaning of s 10B(1).
187 The applicant’s case, however, was not simply that Mohammed Shahid’s role as the “father” of the joint family thereby rendered him the “parent” of all children of the family within the meaning of s 10B(1). Rather, the applicant’s case was that Mohammed Shahid had agreed, before his birth, to be the applicant’s father, in effect, in place of his biological father. The applicant’s case continued that this agreement was put into effect, and the applicant knew his biological parents, Mohammed Younas and Rubina Younas, as his uncle and aunt, and Mohammed Shahid and his first wife Iffat Parveen as his father and mother.
188 The first thing to say is that, because of what I have already said about Mohammed Shahid’s role as the “father” of the joint family, I do not attach much weight to the fact that the applicant may have called Mohammed Shahid “Baba”, meaning “father”. Doing so could just as easily be a reflection of Mohammed Shahid’s role as the “paterfamilias” as of any agreement that was put into action.
189 As I have mentioned, essentially the only direct evidence as to the existence of the agreement or plan came from Rubina Younas. In my view, Ms Younas’s account must be weighed against the objective circumstances as I have found them. I am not persuaded on the balance of probabilities that, before the applicant was born, any agreement was entered into that Mohammed Shahid would be a parent of the applicant. There are several sets of circumstances that lead me to this conclusion.
The applicant’s name
190 I consider the evidence as to the applicant’s name to be very significant. This evidence bears on the existence of the claimed “agreement” or “plan”. It also bears directly on the question of whether, at and around the time of the applicant’s birth, he was considered to be the child of Mohammed Shahid in place of Mohammed Younas, or otherwise one of the children in a large joint family with Mohammed Shahid as its head.
191 First, the fact that Rubina Younas and Mohammed Younas named the applicant at least suggests that they were acting as parents of the applicant shortly after his birth.
192 Secondly, the fact that Mohammed Shahid did not take part in naming the applicant or registering his birth suggests in itself that Mohammed Shahid was not acting as a parent of the applicant shortly after his birth.
193 Thirdly, the fact that the applicant knew his name was “Hamza Younas”, and knew that Mohammed Younas’s name was “Mohammed Younas”, make it unlikely in light of the relevant patrilineal naming conventions that the applicant did not know that Mohammed Younas was at least his biological father. This is inconsistent with the existence of the agreement, since on Rubina Younas’s evidence, the practical working out of the agreement was that the children only knew Mohammed Younas and Rubina Younas as their uncle and auntie, and were not aware even of a direct biological link. On this topic Fatima Shahid gave no evidence, and Iffat Parveen was not called. In circumstances where the evidence of Mohammed Shahid was inherently compromised, I draw the inference that any evidence of Fatima Shahid and Iffat Parveen on this topic would not have assisted the applicant’s case. This, combined with the other circumstantial evidence to which I refer, affects whether I accept the evidence of Rubina Younas on this topic.
194 Fourthly, the fact that the applicant was named “Hamza Younas” is significant, in light of the patrilineal naming conventions that obtain in Punjab. Children in Punjab are named after their fathers. The fact that the applicant was named “Younas” shows that those naming him considered Mohammed Younas to be the applicant’s father. The fact that the applicant was not named “Shahid” shows that Mohammed Younas and Rubina Younas did not consider Mohammed Shahid to be the applicant’s father at that time. This is inconsistent with a pre-existing agreement, which was being put into practice after the applicant’s birth, that Mohammed Shahid would be his father.
195 Fifthly, it is significant that the applicant was later attributed the name “Hamza Shahid” for certain purposes, being notably his admission to school, and his registration as an Australian citizen. This fact suggests, in context, that it would be clear to members of the applicant’s community that, if the applicant were the child of Mohammed Shahid, he would have been named “Hamza Shahid”. This intensifies the significance of the fact that the applicant was not given this name at birth. It makes it less plausible that there was a plan existing since before the applicant’s birth for him to be Mohammed Shahid’s child so that he could ultimately emigrate to Australia. That is less plausible because, if such a plan existed, it might have been put into effect by Mohammed Shahid naming the applicant “Hamza Shahid”. But that is not what occurred, and this name was only adopted later, suggesting both that the name itself was accepted by the relevant persons to send a signal about parenthood, and also that the plan to secure the migration of the applicant to Australia as the child of Mohammed Shahid was only formed later, well after the applicant’s birth.
196 Sixthly, the evidence on this topic provides one reason to be cautious about the evidence of Rubina Younas. Ms Younas gave evidence that the fact that she and her husband were the biological parents of their biological children was a “secret” that was unknown to any of the children in the joint family except Fatima Shahid. For the reasons I have already pointed out, this position cannot be sustained in view of the fact that the applicant knew he was called “Hamza Younas”, knew from some stage that his supposed uncle was called “Mohammed Younas”, and must be taken to have been aware that names in Punjab follow the paternal line. I do not accept Ms Younas’s evidence on that question — indeed, it gives me pause with respect to her evidence on related questions. The evidence as to the “secret” was tied to the question of the existence of a plan, since the tenor of Ms Younas’s testimony was that the plan was for Mohammed Shahid to be the applicant’s father, and for Mohammed Younas and Rubina Younas not to be the applicant’s parents, and that the plan was carried out by keeping the children unaware of their biological parentage. It follows from what I have said that I do not accept, at least in any wholesale way, Ms Younas’s evidence as to what the plan was, and how it was given effect.
Mohammed Shahid’s role within the joint family system
197 In that context, it is important to reflect again on the role of Mohammed Shahid within that family structure. As the head of the joint family and the person with the most money, there was an expectation that Mohammed Shahid would provide financially for the family. As a member of the joint family, Mohammed Shahid was also subject to the general expectation to contribute to the raising of the family’s children to the extent he could. For those reasons, the joint family system itself set an expectation that Mohammed Shahid would help with the raising of the applicant financially and otherwise, to the extent that he could. The evidence of Fatima Shahid and Rubina Younas on this topic simply confirms that Mohammed Shahid acted in accordance with this expectation. That being so, there is no reason to infer from Mohammed Shahid’s conduct in this regard that there was some agreement that he would be a parent of the applicant. As the Commonwealth submitted, the joint family system rendered any such agreement superfluous: there was already an expectation that Mohammed Shahid would act in the way that he did, regardless of whether he was a parent of the applicant. For those reasons, I do not consider that Mohammed Shahid’s conduct in looking after the applicant as a small child makes it more likely that he had agreed to be a parent of the applicant in the sense required by s 10B(1) of the 1948 Act.
Mohammed Shahid’s presence at the applicant’s birth
198 The evidence as to Mohammed Shahid’s presence at the birth of the applicant is in a slightly different category. There is no evidence before the Court suggesting that Mohammed Shahid was expected to be at the birth merely because of his position in the family. It might be relevant, then, to the existence of an agreement or plan that Mohammed Shahid was at the birth. The evidence as to whether and why Mohammed Shahid was present at the birth of the applicant was in some respects unsatisfactory. Fatima Shahid stated that she remembered that “before Hamza was born [her] father travelled to Pakistan to care and provide for Hamza” because of Mohammed Younas’s inability to do so. I have already explained that Ms Shahid maintained that Rubina Younas was pregnant when Mohammed Shahid came to Pakistan. Based on the movement records of Mohammed Shahid that were in evidence, this recollection is not correct if it asserts that Mohammed Shahid came from Australia to Pakistan while Rubina Younas was pregnant with the applicant. Those movement records establish that Mohammed Shahid departed Australia on 28 March 1992, and did not return until 27 October 2000. Irrespective of whether the applicant was born in October 1993 or July 1994, these records do not allow for Mohammed Shahid to have travelled to Pakistan from Australia while Rubina Younas was pregnant with the applicant. For this reason, I do not place weight on Ms Shahid’s evidence that Mohammed Shahid came to Pakistan for the purpose of being present at the birth. I am satisfied that Mohammed Shahid was already living in Pakistan at around that time, without any need to travel there for such a purpose.
199 While Mohammed Shahid gave evidence that he was present at the birth, but that Mohammed Younas was not, Rubina Younas stated that both brothers were present. I do not accept Mohammed Shahid’s evidence, which was tainted by its inherent unreliability, and I prefer Rubina Younas’s evidence on this subject. During cross-examination, Ms Younas said that Mohammed Shahid took Mohammed Younas back home because he had a fever. Now, it may be consistent with this version of events to suppose that Mohammed Shahid was present at the birth as an additional supporter of Rubina Younas while she was in labour, in view of Mohammed Younas’s physical infirmity. Even if that were so, it would not support the existence of any agreement that Mohammed Shahid would be a parent of the applicant. However, that possible explanation for Mohammed Shahid’s presence was not the subject of any direct evidence, and I will not proceed on the basis that it explains his presence. It is just as likely that Mohammed Shahid was present at the birth for no other reason than to accompany his brother, Mohammed Younas. What is significant, however, is the fact that Mohammed Younas was present at the birth of the applicant which, in combination with other evidence supports a finding that he, and not Mohammed Shahid, was the father of the applicant at the time of his birth. Ultimately, the evidence as to any reasons for which Mohammed Shahid may have been present at the birth does not persuade me to accept that any agreement occurred that Mohammed Shahid would be a parent of the applicant, in light of all the other evidence.
200 For all of these reasons, I am not satisfied that Mohammed Shahid was party to an agreement before the birth of the applicant to be the father of the applicant, at least in the sense that Mohammed Shahid would be a “parent” of the applicant from the time of his birth and display the intense commitment connoted by that term within the meaning of s 10B(1). It seems likely that some sort of understanding was reached, at some point in time, that Mohammed Shahid would take particular care of the applicant in light of Mohammed Younas’s illness, but whatever the nature of that understanding, I am not satisfied that it was an agreement to be a “parent” within the meaning of s 10B(1).
Mohammed Shahid’s attempts to enable his family to migrate to Australia
201 Another aspect of the evidence that casts light on the nature of the relationship between Mohammed Shahid and the applicant is the evidence concerning Mohammed Shahid’s attempts to enable his family to migrate to Australia. These attempts spanned decades, from the 1980s until the early 2000s, and so spanned before and after the applicant was born. The evidence on this topic establishes two propositions.
202 First, when seeking to enable almost all of his family to migrate to Australia, Mohammed Shahid never attempted during this period to secure the migration of the applicant. In itself, this conduct illustrates that Mohammed Shahid acted as though his relationship with the applicant was different from his relationships with his biological children with Iffat Parveen.
203 Secondly, when asked to identify all of his children and dependants, Mohammed Shahid never identified the applicant. The significance of this evidence does not rest on its examination in isolation, but as part of the broader picture whereby Mohammed Shahid treated his biological children differently, thus undermining the applicant’s case that Mohammed Shahid considered the applicant to be his child.
204 From the birth of the applicant until the early 2000s, Mohammed Shahid systematically attempted to secure visas for Iffat Parveen and their biological children. Initially, those attempts extended to Fatima Shahid and Hina Shahid only, with the potential exception of Awais Shahid, as these were the only biological children of Mohammed Shahid and Iffat Parveen at the earlier points in time. When Saif Shahid and Usman Shahid were born in 1996 and 1997, respectively, each was encompassed within Mohammed Shahid’s attempts to secure visas. This suggests that Mohammed Shahid was attempting to secure visas to Australia for the whole of his family with Iffat Parveen. Yet at no stage in this period did Mohammed Shahid attempt to secure a visa for the applicant. Even putting to one side Mohammed Shahid’s contemporaneous representations as to his children, therefore, Mohammed Shahid’s conduct in itself distinguishes between his biological children and the children of Rubina Younas and Mohammed Younas. The inference from this conduct is that Mohammed Shahid did not consider the applicant to be the child of himself and Iffat Parveen in the same way as he considered Fatima Shahid, Hina Shahid, Saif Shahid and Usman Shahid to be.
205 When the application dated 1 April 1996 was completed, the applicant had been born. Mohammed Shahid was the source of the information in this form. When asked to “[g]ive details of ALL [his] and/or [his] spouse’s children under 18 years of age whether or not in [his] care and legal custody”, Mohammed Shahid listed all of his biological children with Iffat Parveen who by then had been born, but none of the biological children of Rubina Younas and Mohammed Younas, including the applicant. The same is true of the application dated 15 May 1996. I have already pointed out the following statement on the form: “I am informing you that I am expecting a new baby in the 1st week of July 1996 and I hope that baby should be included in the VISA. PLEASE NOTE & Inform.” In the form titled “Sponsorship for migration to Australia” dated 9 August 1999, Mohammed Shahid’s “new baby” was duly added to the request to migrate, as was his fourth child with Iffat Parveen. In the 2001 application for migration to Australia, which again asked for details of “ALL” of Iffat Parveen’s children, only her biological children were named. Mohammed Shahid was the source of that information. Taken together, these reflect a consistent pattern. Well after the applicant was born, when asked to identify all of his children, Mohammed Shahid consistently failed to identify the applicant. Repeatedly, over a period of many years, Mohammed Shahid therefore represented that the applicant was not one of his children, or one of Iffat Parveen’s children. This indicates that, at that time, Mohammed Shahid did not consider the applicant to be his child.
206 The applicant disputed that this was necessarily the implication to be drawn from these forms. As well as submitting that these documents should simply be ignored because Mohammed Shahid’s testimony as a witness was not credible, the applicant submitted that the better view was that Mohammed Shahid failed to identify the applicant because he feared that doing so would jeopardise his efforts to obtain visas for any of his family. This submission was based on the difficulties, which I have already outlined, in obtaining a visa for Iffat Parveen due to doubts about the authenticity of her marriage to Mohammed Shahid, and confusion about her name. The applicant submitted that it can be readily understood that to add the applicant to the 2001 visa application would create perceived inconsistencies with previous applications that might derail that application.
207 On the whole, I am not persuaded to place no weight on Mohammed Shahid’s pattern of conduct in this regard, especially coupled with the fact that at the relevant times Mohammed Shahid had not even identified the applicant as a dependant in official forms, and had made no other attempts to assist the applicant’s migration to Australia. The whole pattern of conduct supports an inference that Mohammed Shahid did not over that lengthy period of time consider the applicant to be his child.
208 In this context, it is worth making some observations as to the applicant’s eventual registration as an Australian citizen by descent. It could be argued that the fact that the Register of Citizenship by Descent lists the applicant’s name as “Hamza Shahid” is, in itself, evidence suggesting that Mohammed Shahid was a parent of the applicant, at least at that time. I am not persuaded by this line of argument for two main reasons. First, Mohammed Shahid’s second wife, Shabana Shahid, was named as the applicant’s natural mother, and was said to be deceased, both of which were false. Secondly, the applicant and the person named as “Momina Shahid”, who is plainly Momina Yasir, are said in the Register to have the same birth date. The evidence of Rubina Younas and, eventually, Mohammed Shahid was that the applicant and his sister are not twins, but that two of the applicant’s brothers, Mohammed Taha and Talal Younas, are twins. I infer that information was given to the Australian authorities that the applicant and his sister were born on the same day as part of the broader scheme to obtain citizenship for them by descent. I consider it likely that a need was felt to manipulate the birth dates of the various candidates for Australian citizenship by descent, so as to make it more plausible that Mohammed Shahid could have been the biological father of them all. For these reasons, I consider the Register of Citizenship by Descent to be wholly unreliable as evidence of the truth of anything asserted in it, including the applicant’s name. On the contrary, the attempts to secure citizenship for the applicant by the provision of false information in the manner described above tell against the existence of any genuine parent–child relationship between the applicant and Mohammed Shahid. That is because I consider the Register to be evidence of a conscious plan to mislead the Australian authorities as to the identities of candidates for citizenship, and as to their relationships with Mohammed Shahid. Given that Mohammed Shahid obtained registration for the applicant through what appears to be deliberate deception, the Register also suggests that there was no need for any plan to be formed before the applicant’s birth that Mohammed Shahid would genuinely be his father. The option of obtaining registration by making false statements was always there, and it appears that this option was in fact taken up.
Mohammed Shahid’s conviction for dishonestly influencing a Commonwealth public official
209 In 2019, Mohammed Shahid was convicted for dishonestly influencing a Commonwealth public official with respect to 11 citizenship applications. He pleaded guilty to that offence in respect of all 11 persons, of whom the applicant was one. During cross-examination, Mohammed 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 applicant. Nevertheless, Mohammed Shahid maintained that he was and is the applicant’s father.
210 As I have mentioned, the informant in relation to that prosecution was Detective Leading Senior Constable Joanne Turner. In her evidence, DLSC Turner stated that Mohammed Shahid had pleaded guilty to a single, rolled-up charge of dishonestly influencing a Commonwealth public official. Counsel for the applicant took DLSC Turner to various passages in a record of interview between three officers of the Australian Federal Police and Mohammed Shahid dated 7 April 2016. After having her memory refreshed by reference to these passages, DLSC Turner accepted that the allegations the subject of the charge against Mohammed Shahid concerned the falsity of representations as to his biological fatherhood of various persons. DLSC Turner also accepted that the focus of the police investigation at that stage was on the falsity of statements that Mohammed Shahid was the biological father of certain persons, and the investigation did not focus on whether it was possible that he could be their non-biological father.
211 Counsel for the applicant emphasised that the investigation leading to Mohammed Shahid’s conviction was directed to the question whether Mohammed Shahid had falsely represented that, relevantly, the applicant was his biological son. For this reason, it was submitted, the fact of Mohammed Shahid’s guilty plea and conviction do not shed any light on the question that is presently before the Court. It was submitted that the guilty plea and the conviction are entirely consistent with the applicant’s case, which is that Mohammed Shahid was, and is, the non-biological parent of the applicant. I accept this last submission, as far as it goes.
212 However, I also consider that the circumstances of the investigation and conviction do shed some light on the question presently before me, in the following way. Senior counsel for the Commonwealth submitted that it is relevant that, on the evidence before the Court, it appears that Mohammed Shahid never made any plea in mitigation of sentence that, despite not being the biological parent of the applicant, he should receive a lighter sentence because he had in fact been the non-biological parent of the applicant since birth. Senior counsel submitted that this would have been a highly relevant submission to have made. I accept this submission. I consider it significant that Mohammed Shahid did not suggest, as a matter relevant to his sentence, that he had in fact been the non-biological parent of the applicant since his birth pursuant to some arrangement with his late brother. I cannot be sure of the exact reasons why Mohammed Shahid did not raise this suggestion by way of plea in mitigation, and so I do not attach decisive weight to it. I simply consider this 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 applicant at the time of his birth.
Conclusion
213 For these reasons, I am not persuaded that Mohammed Shahid was a parent of the applicant at the time of his birth. The relevant relationship of parenthood upon which the applicant relied was claimed to exist between the applicant, and Mohammed Shahid. In the event, the applicant submitted that the evidence of Mohammed Shahid should not be accepted, and the applicant himself did not give evidence. The case put forward by the applicant cannot be reconciled with the objective circumstances. The applicant’s case is inconsistent with the fact that the applicant was named “Hamza Younas” by his biological parents, and after his biological father, within a society in which children are named after their “fathers”, as that term is understood by members of the society. This circumstance is squarely inconsistent with the applicant’s case that Mohammed Shahid would take the place of his biological father, Mohammed Younas. Further, the applicant’s case was inconsistent with the objectively established actions of Mohammed Shahid at the crucial times. Despite being repeatedly asked to name all of his and Iffat Parveen’s children and his dependants, Mohammed Shahid never identified the applicant as a child or a dependant. Nor did Mohammed Shahid attempt — until much later and in a very different context, which has had its own criminal ramifications — to help the applicant to migrate to Australia, despite repeated attempts to obtain visas for all of his biological children with Iffat Parveen. As I have noted, the preferable inference is that Mohammed Shahid did not, in these crucial years, consider the applicant to be his child. I am not satisfied that Mohammed Shahid expressed an intense commitment to the applicant at the time of his birth or in the years following it, and I am not persuaded that Mohammed Shahid considered the applicant one of “his own”, as he did with his four biological children with Iffat Parveen.
214 The totality of the evidence persuades me that the relationship between Mohammed Shahid and the applicant at the time of his birth, and for years thereafter, was of a different character. Mohammed Shahid was the head of a joint family with many children. While he was responsible for the children of the family in many ways, and assisted in raising them as a member of the joint family, Mohammed Shahid’s role as head of the family did not render him the “parent” of the applicant.
215 The application will be dismissed. I will hear the parties on the question of costs.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. |
Associate:
