An Albanian man should be granted citizenship by “descent” despite DNA tests confirming no biological link to his Australian father, a tribunal has ruled.
Kristi Xhafer, 22, an Albanian citizen who was born in the town of Ohrid in what is now North Macedonia, was previously the subject of an unsuccessful citizenship application in 2004.
At the time, the child’s application was rejected on the basis of DNA results that showed he was not related to the man identified as his father, the late Sakir Dzafer, an Australian citizen who travelled frequently between Europe and Australia between 1981 and 2019.
To qualify for Australian citizenship by descent, the person is required to have an Australian citizen parent at the time of birth — a provision previously understood by officials to mean “biological parent … consistent with the relevant dictionary meanings” accorded to the word “descent”.
That changed in 2011, however, when the full bench of the federal court — hearing appeals in two similar cases from the Administrative Appeals Tribunal (AAT) involving a young Chinese boy and a Fijian woman — held that the word “parent” in the Citizenship Act was to be given its “ordinary meaning” and was not confined to “biological parentage”.
“We can discern no relevant justification for holding, as the Tribunal did … that a person can only be a ‘parent’ within the meaning of [the Citizenship Act] where it can be established that he or she has a relevant genetic link to the applicant,” the federal court said in that case, H v Minister for Immigration and Citizenship.
“If the Minister’s argument in this case were accepted, a person could be treated as a citizen from birth and believe himself to be a citizen, only to find years later, based on DNA test undertaken for other reasons, that under the law he is not and never was a citizen.
“As a practical matter, we do not consider that parliament would have intended the likely unfortunate results of the Minister’s construction. The practical effect of this construction would be to accord the science of genetics a status that parliament has not given it.”
Citizenship guidelines subsequently issued by the Department of Home Affairs instruct decision-makers that “determination of whether a person is a parent is therefore a question of fact and should be made on a case-by-case basis and in consideration of all the relevant information in the circumstances, including biological, legal and social factors”.
Mr Xhafer once more applied for citizenship in December 2024 but was rejected, this time “based upon the insufficiency of evidence overall, including documentary evidence in the form of a birth certificate, and the marriage certificate of Mr Dzafer and Mrs Adeline Xhafer, the applicant’s mother”.
Further DNA testing undertaken in the course of the new application also confirmed that Mr Dzafer was not the biological father of Mr Xhafer.
He sought a review in the Administrative Review Tribunal (ART), which on Wednesday set aside the decision and remitted it back to the Minister for reconsideration “with the direction that the applicant satisfies the requirements” of the Citizenship Act.
ART general member Stewart Fenwick accepted there was sufficient “evidence of marital relationship and support” to make a “finding that Mr Dzafer can be understood as being the applicant’s parent at the time of birth”.
“There is no need to dwell here on biological parentage,” he said.
“The evidence overall indicates to my satisfaction that Mr Dzafer is not the applicant’s biological father. I note that given the indication of the duration of pregnancy in the documentation, this only reinforces the scientifically based conclusion when compared with [Mr Dzafer’s] movement records.”
His mother, in a statement to the tribunal, said that her late husband “provided me with continuous support throughout the entire period of my pregnancy for my child … including financial support and emotional support during the pregnancy” and “showed continuous devotion to me and our aforementioned child”.
“Mrs Xhafer explained that she wed in an arranged marriage, and had only met Mr Dzafer the day before the ceremony,” Mr Fenwick noted.
“She understood that he had an Australian pension and was looking for a wife. When the DNA results were put to her, she refuted them as incorrect.”
Mr Xhafer and his mother both gave evidence at the hearing, with the help of an interpreter in the Albanian language.
