Kim v Minister for Home Affairs
[2020] FCCA 2528
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIM v MINISTER FOR HOME AFFAIRS | [2020] FCCA 2528 |
| Catchwords: CITIZENSHIP – Application for declaration of citizenship – whether the Applicant was ordinarily resident in Australia throughout the ten years following his birth – where absence from Australia – Australian Citizenship Act 2007 (Cth). |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 11 Australian Citizenship Act 2007 (Cth), ss.3, 12, 37 Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 18 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142 |
| Applicant: | HARAM KIM |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1927 of 2018 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 28 November 2019 30 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Yu (28 November 2019) Mr Berg (30 April 2020) |
| Solicitors for the Applicant: | Jacobs Legal |
| Counsel for the Respondent: | Mr Swan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the Applicant be amended to read “Haram Kim”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1927 of 2018
| HARAM KIM |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant, who was born in March 2006 in Campsie, NSW, of South Korean parents, filed an application on 11 July 2018 for review of a decision of a delegate of the Minister for Home Affairs dated 11 October 2017 affirming an earlier decision by a departmental delegate to refuse to give him evidence of Australian citizenship.
The application was made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The Applicant’s father was appointed his litigation guardian. In the absence of opposition from the Respondent, I granted an extension of time under s.11 of the ADJR Act. In a further amended application filed on 29 May 2019, the Applicant also seeks a declaration that he is an Australian citizen by operation of s.12(1)(b) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
The application was commenced in the Applicant’s birth name but, I have ordered that the name of the Applicant be amended to read “Haram Kim” consistent with the Applicant’s name change in March 2011 and confirmation that his preferred name is Haram Kim. As the Applicant’s parents have previously applied for protection visas, I will refer to them as “the father” and “the mother” or “the parents”. There are some inconsistencies in the evidence about the parents’ migration history prior to the birth of the Applicant. Movement records are not in evidence.
The Applicant’s father claimed that he first visited Australia as the holder of a tourist visa in 2002. It appears that he returned to Australia in 2003 as the holder of a multiple entry Subclass 956 Electronic Travel Authority (ETA) (Business Entrant – Long Validity) visa. According to the submission accompanying the Applicant’s application for evidence of citizenship (the s.37 submission), his father visited Australia three times between March 2003 and December 2003 and four times in 2004. The Applicant’s parents married in South Korea in December 2004. The father returned to Australia (on either a Tourist visa or a Subclass 956 visa) in December 2004 or January 2005. The father became an unlawful non-citizen on 10 April 2005. It appears that from 3 March 2003 and 7 May 2007 (the date of the decision in relation to his 2007 protection visa application) he spent all but 85 days in Australia.
According to the s.37 submission, the Applicant’s mother travelled to Australia as the holder of an ETA visitor visa three times between October 2004 and July 2005. According to the Applicant’s mother, she entered Australia as the holder of a Tourist visa in January 2005. She became an unlawful non-citizen on 10 October 2005.
The Applicant’s parents both claim that after the mother came to Australia they lived in rented accommodation at a particular address on Eighth Ave, Campsie, although the residential information the father provided to NSW Transport only showed that address from April 2007 to December 2009. They claim that they attended a Korean Catholic Church in Sydney and began carrying on their life as an “ordinary couple”. The Applicant was born in March 2006. His sister was born in 2008.
The Applicant’s parents were located at their residential address during a departmental field visit in November 2005. They were granted Bridging E visas to depart Australia. They did not depart. The protection visa application decision states that the father lodged a protection visa application in September 2006 with his wife as his dependant. Associated Bridging E visas were granted to them both. That application was deemed invalid in December 2006. Those bridging visas ceased on 11 January 2007.
On or about 15 January 2007 the parents lodged a valid protection visa application (PVA). The Applicant was not included in that application. The parents were granted bridging visas in connection with that application. The application was refused on or about 7 May 2007. They did not seek review. Their associated bridging visas ceased. Once again the parents became unlawful.
Because both his parents were present in Australia as unlawful non-citizens when the Applicant was born, he was an unlawful non-citizen from the time of his birth. He remained an unlawful non-citizen until March 2010.
According to the s.37 submission, in March 2010 the mother presented herself voluntarily at the Department seeking to depart Australia with her two children. They were granted Bridging E (Subclass 050) visas to facilitate their departure from Australia. They departed Australia for South Korea on 24 March 2010 with no right of return. The Applicant was four years old when he left Australia. They stayed in South Korea for over a year. The Applicant’s father remained in Australia at that time.
As discussed below, while in South Korea the Applicant’s mother took steps to change her name and the names of the two children and to obtain fresh South Korean passports in their new names. They returned to Australia on 1 April 2011 on ETA (Subclass 976) visitor visas issued in their new names. The Applicant was five years old when he returned. The Applicant twice briefly departed Australia with his mother in 2011 to extend their visitor visas. His last arrival in Australia was on 28 September 2011.
It appears from school reports provided to the Department that the Applicant did not begin any schooling in Australia until 2012, when he enrolled in kindergarten in a Sydney public school.
In the meantime, the Applicant’s father departed Australia on or about 12 December 2011. He travelled to South Korea. He changed his name while in Korea. He returned to Australia on 22 December 2011 with a passport and an ETA visitor visa in his new name.
On 23 December 2011 the Applicant’s mother applied (in Australia) for a Student (Subclass 573) visa in her new name, including her family members. They were all granted bridging visas. Student visas were granted on 17 January 2012.
The mother’s student visa was cancelled (apparently on 25 May 2015) on the basis that she was a not a genuine student. The visas of her family members (including the Applicant) were cancelled as a consequence under s.140 of the Migration Act 1958 (Cth) (the Migration Act). They all sought merits review of the cancellations by the Administrative Appeals Tribunal (the Tribunal) on 28 May 2015. They were granted bridging visas pending the outcome of the review.
The Applicant turned ten in March 2016.
According to a subsequent ministerial intervention submission, on 11 July 2016 the Tribunal found that it had no jurisdiction in relation to the consequential cancellations. It affirmed the decision to cancel the mother’s student visa. The associated bridging visas ceased on or about 9 August 2016. The Applicant (and his parents) remained in Australia as unlawful non-citizens.
Subsequently, the Applicant’s mother, with the assistance of a solicitor, made a request for ministerial intervention under s.351 of the Migration Act in relation to the cancellation of her student visa. Her evidence was that she started to take such action in May 2016. Her husband’s evidence was that the ministerial intervention request was made on 2 August 2017. The Respondent tendered a copy of a submission to the Minister dated 12 August 2016 in support of the mother’s ministerial intervention application which, I accept, was made in August 2016. The parents’ claims in support of that application are discussed below where relevant. On or about 15 August 2016 the Department assessed that the request did not meet the Minister’s guidelines. The application was finalised without referral to the Minister.
On 4 May 2017 the Applicant, through his present solicitor, made an application under s.37 of the Citizenship Act for evidence of his Australian citizenship. That application was deemed invalid on 8 May 2017. The Applicant made a subsequent (valid) application on 25 May 2017 (the s.37 application). On 12 July 2017 a delegate of the Minister refused the s.37 application. The delegate was not satisfied that the Applicant was ordinarily resident in Australia throughout the period of ten years commencing from the day of his birth and hence found that he did not acquire Australian citizenship by operation of law on his tenth birthday.
The Applicant requested an internal review of that decision. On 11 October 2017 another delegate of the Department affirmed the decision not to give the Applicant a notice stating that he was an Australian citizen. This decision is the subject of ground 1 in the further amended application. References to the delegate’s decision are references to the decision of 11 October 2017.
The evidence before the delegate was limited. It included copies and, where relevant, translations of the Applicant’s 2006 birth certificate; his October 2014 baptism certificate; his immunisation records from birth to February 2010; a certificate from the South Korean Consulate in Sydney recording his mother’s name change with a “permission date” of 29 October 2010; a copy of the mother’s passport issued in her new name on 8 November 2010; a certificate issued by the “overseas Korean Family Relation Registration Office” on 2 November 2016 recognising the Applicant’s name change with a “permission date” of 24 March 2011 and translation; a copy of pages from a South Korean passport issued in the Applicant’s new name on 25 March 2011; a family relation certificate from the South Korean Consulate in Sydney dated 2 November 2016 in the new names of the Applicant and his parents; school reports for the Applicant from a Sydney school commencing from kindergarten in 2012; a letter from, photographs of and copies of awards received by the Applicant from 2012 on; a copy of the mother’s then current driver’s licence; and an advice of lodgement of a rental bond in November 2016.
In support of the s.37 application the Applicant’s solicitor submitted to the Department that the Applicant had been ordinarily resident in Australia throughout the ten years from his birth having regard to factors relevant under the Social Security Act 1991 (Cth). The Applicant’s travel to Korea at the age of four was said to have been for a relatively short period of one year and six days at a time when he was too young to decide on his own. It was claimed that he had “no choice” but to follow his parents’ visa conditions and that when his mother left Australia in 2010 he had to leave too and that “it has always been the applicant’s parents’ intention to return the applicant child to live in Australia permanently at a later date when they can fulfil their visa conditions to enter Australia”. The submission claimed that the Applicant had spent most of his formative years in Australia and that he continued to build his school and social life here.
In a subsequent submission of 22 June 2017 in support of the Applicant’s s.37 application, the Applicant’s solicitor advised the Department that the mother had stated that “the main reason for her to depart Australia with her son, [the Applicant], in 2010 was that her son was not be (sic) able to enrol in a school in Australia due to their illegal visa status”, that she claimed they stayed with her parents in Korea temporarily for about a year and did not have a home or permanent dwelling there; and that the Applicant had attended pre-school in Korea “for about one year but it is difficult to obtain the evidence as it happened a long time ago 2010/2011”. The mother was also said to have claimed that the Applicant had missed “school time” for about a year due to the travel to Korea. The submission explained that the Applicant and his mother had visited New Zealand twice in 2011 to extend their visitor visas. The fact that the parents did not own a significant asset in Australia was attributed to the fact that “they lost their savings due to a visa scam”. There was no elaboration of this claim to the Department.
The decision of 11 October 2017
In a “record of finding of fact” the delegate noted that at the time the Applicant was born, s.10 of the then applicable Australian Citizenship Act 1948 (Cth) (the 1948 Act) provided that a person born in Australia acquired citizenship by birth if at the time of the birth that person had a parent who was an Australian citizen or permanent resident. The delegate found that neither of the Applicant’s parents met this requirement and that the Applicant did not acquire Australian citizenship at that time.
The delegate referred to s.12(1)(b) of the Citizenship Act and acknowledged that the application for evidence of Australian citizenship had been lodged in the expectation that the Applicant would satisfy this provision.
The delegate summarised the Applicant’s visa history, observing that his parents were unlawful non-citizens at the time of his birth and that he did not hold any visa from the time of his birth until a Bridging E (Subclass 050) visa was issued to him (as a dependant of his mother) on 12 March 2010. He departed Australia on 24 March 2010 and returned under a different name on 1 April 2011 with his mother and sister, as the holder of an ETA visitor visa. He departed Australia twice in 2011 “to facilitate the validity of his visa”. His last arrival was on 28 September 2011.
The delegate also recorded that the Applicant was granted a bridging visa in association with his mother’s student visa application on 23 December 2011 and granted a student visa (as a dependant of his mother) on 17 January 2012, that the student visa was cancelled on 25 May 2015 and that he held a bridging visa in association with the application for review of the cancellation decision. The delegate noted that the Applicant’s mother made an unsuccessful application for ministerial intervention in August 2016 following cancellation of her student visa.
The delegate referred to the supporting documents and information provided to the Department, to the applicable law and to the Department’s citizenship policy. She acknowledged that temporary absences from Australia did not necessarily mean that Australia had ceased to be the permanent place of residence of a person, but was of the view that it was relevant to consider whether the person retained the right to return to Australia during any such absence.
As the Applicant was a minor, in considering whether he was “ordinarily resident” in Australia throughout the ten year period, the delegate took into account his position “with reference to the circumstances of his parents”.
The delegate accepted and “placed weight” on the fact that the Applicant was resident in Australia for almost nine of the first ten years of his life, but found that this was “mitigated” by the fact that for four of those years he did not hold any visa to remain in Australia and for the remainder of the period he held temporary or bridging visas. The delegate also noted that the Applicant was “offshore and subject to three year exclusion period” from 24 March 2010 to 30 March 2011 and had periods of unlawfulness after his return to Australia.
The delegate found that the terms and conditions of the visas held by the Applicant and his parents indicated that they had a temporary purpose in entering and remaining in Australia which was “not reflective of persons either being, or having an intention to be, ordinarily resident”. The delegate was of the view that the significant periods of unlawfulness engaged in by the family for over five years (in the ten year period) during which time no visas were held or visa applications lodged, further indicated a likelihood that they did not view Australia as their permanent home during this period.
In particular, the delegate had regard to the evidence that for the first four years of his life (until 12 March 2010) the Applicant and his parents did not hold visas allowing them all to be lawfully present in Australia. The delegate also observed that on their departure from Australia the Applicant, his mother and sister were subject to a three year exclusion period. She placed weight on the fact that it was unlikely that the family expected that they would be granted a visa to return to Australia. She considered that they “could not have reasonably believed that [the Applicant] would be ordinarily resident in Australia during that period” and placed significant weight on the fact that the family would have believed it unlikely that the Applicant would have been granted another visa during that time.
The delegate acknowledged that a person may travel overseas during the ten year period from birth, but stated that the person must retain a “sufficient enough connection” with Australia that it could be said that he or she continued to ordinarily reside in Australia at all times during the ten years. However the delegate considered that absences from Australia must be of a temporary nature and that there was an expectation that the home of the person during those temporary absences was still considered to be in Australia.
The delegate had regard to the fact that no evidence had been presented that demonstrated that the Applicant retained a connection with Australia during the time he was out of the country and subject to the exclusion period, or that the family maintained a permanent residence in Australia before or during this period. The Applicant was not enrolled in school at that time and neither parent had presented evidence of employment to which they would be expected to return.
Significant weight was placed on the fact that the Applicant did not have a valid visa to return to Australia when he departed on 24 March 2010 and was not guaranteed the grant of another visa to return due to the three year exclusion period applicable on his departure. Although the delegate acknowledged that decision-makers have a discretionary power to waive such exclusion period in certain circumstances, she found that in the Applicant’s case the exclusion period had been “circumvented entirely” by the family’s change of name while in South Korea. The delegate concluded that this was done with “the intention of disguising their previous migration record”. The delegate also considered that the family’s change of name was “reflective of the fact that they had not established a permanent home, regular employment or significant ties within the community prior to their departure”.
The delegate accepted that it was possible that a person who resided in Australia for a special or temporary purpose also had another purpose associated with that temporary residence, such as developing a pathway to permanent residency. Based on the parents’ visa history, the delegate acknowledged that it was possible that his parents resided in Australia with such an intention and that the grant of a student visa to the Applicant’s mother may be indicative of an intention to follow such a pathway. The delegate placed some weight on this visa application and grant, but found that it had been mitigated by the fact that the mother’s student visa was cancelled on the basis that she was found not to be a genuine student. The delegate also found that although the Applicant’s parents had applied for a permanent visa after his birth (a protection visa which was refused in 2007), she was unable to give this any weight in the assessment of whether or not the Applicant was ordinarily resident in Australia during his first ten years, as his parents had not included him in this application.
It was acknowledged that the Applicant, or his parents on his behalf, may have continued to wish for him to be resident in Australia after his 2010 departure from Australia and during the exclusion period and that the subsequent visitor and student visa applications supported this. However the delegate found that “desiring to be resident” in a particular place “does not give a factual basis as to whether or not a person was actually ordinarily resident in a particular place during an extended period of absence”. The delegate placed significant weight on the fact that during the 12 month period from the Applicant’s first departure from Australia in 2010 until a visitor visa was granted to him in 2011 he did not retain any right to re-enter Australia. The delegate found that the Applicant could not be considered to have been ordinarily resident in Australia during this period of absence.
The delegate recognised that the Applicant had enrolled in school in Australia in 2012 and had then continued his education in Australia in accordance with Australian education requirements. She noted that he had provided a number of supporting documents in relation to his education and sporting endeavours and accepted that, as a result, he was likely to have made friends and to have ties to the school and to sporting teams. While she placed significant weight on these documents as evidence of the Applicant’s integration into the Australian community, the delegate noted that no such evidence had been provided in relation to the period from the Applicant’s birth in 2006 through to his commencement at school in 2012.
On balance, the delegate was satisfied that the Applicant was not ordinarily resident in Australia throughout the ten years from his birth. Accordingly she found that he did not meet the definition of an Australian citizen in the Citizenship Act and was not a person who was eligible to be given a notice stating that he was an Australian citizen. The delegate affirmed the decision not to give the Applicant a notice stating that he was an Australian citizen.
Judicial review proceedings
After a mistaken application for review by the Administrative Appeals Tribunal was withdrawn, the Applicant sought judicial review of the delegate’s decision by application filed in this court on 11 July 2018. That application relied solely on s.5 of the ADJR Act and the jurisdiction conferred on this court under that Act.
The application was made outside the period of 28 days after the date on which the delegate’s decision was furnished to the Applicant. As indicated, the Applicant sought and was granted an extension of time under s.11 of the ADJR Act.
The Applicant now relies on a further amended application in which, in addition to seeking review of the delegate’s decision, he seeks a declaration that he is an Australian citizen.
Ground 1
Ground 1 in the further amended application is as follows:
1. The Respondent’s delegate (the delegate) erred by asking itself the wrong question and misapplying the law in determining whether the Applicant was an Australian citizen by birth pursuant to s.10(2)(b) of the Australian Citizenship Act 1948 (Cth) (the 1948 Act) and s.12(1)(b) of the Australian Citizenship Act 2007 (Cth) (the 2007 Act).
Particulars
a. The delegate, in her decision dated 11 October 2017, found that the Applicant had not been ordinarily resident in Australia throughout the 10 years from the date of his birth for reasons including the following.
i. Although the Applicant has been resident in Australia for almost 9 out of the first 10 years of his life, for the duration of 4 of those 9 years, the Applicant held no visa and for the remainder of that 10-year period, the Applicant held either temporary or bridging visas.
ii. The terms and conditions of the visas held by the Applicant in the first 10 years of his life indicate that they had a temporary purpose in entering and remaining in Australia, which was not reflective of persons either being, or intending to be ordinarily resident.
iii. The period during which the Applicant remained in Australia without holding a valid visa to do so indicated a likelihood that the Applicant’s family did not view Australia as their permanent home.
b. In making the findings above at (a) the delegate misdirected herself as to the relevant question, which was whether, as a matter of fact, the Applicant had been ‘ordinarily resident’ (as defined in s.3 of the 2007 Act) in Australia throughout the 10 years from the date of his birth.
c. The delegate did not give proper, genuine, and realistic consideration to the evidence provided to her by the Applicant’s parents in support of the Applicant’s application for evidence of Australian citizenship.
a. The terms of the statutory definition of ‘ordinarily resident’ in s.5(3)(e) of the 1948 Act and s.3 of the 2007 Act are capable of being construed such that persons who intend to and in fact reside in Australia on a permanent basis, even while holding a temporary visa or no visa, can satisfy the definition of being ‘ordinarily resident’.
d. The matters referred to above in (a)-(c) were material to the determination of whether the Applicant was an Australian citizen by birth and continued to be an Australian citizen at the time of the delegate’s decision. Consequently the delegate’s decision was affected by jurisdictional error.
Ground 1 was not addressed in the Applicant’s written submissions of 24 February 2020 or in oral submissions on 30 April 2020. The focus of the Applicant’s ultimate submission was that the court should make a declaration that he was an Australian citizen as sought in ground 2. However the solicitor for the Applicant confirmed in a post-hearing note that he relied on earlier written submissions filed on 11 July 2019 in relation to ground 1.
The Applicant submitted that the delegate had asked the wrong question and misapplied the law in determining whether he was an Australian citizen by birth pursuant to s.10(2)(b) of the 1948 Act and s.12(1)(b) of the Citizenship Act and that this amounted to an error of law (see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58). The Applicant accepted that it must be shown that such error was material, in the sense that it resulted in him being deprived of the possibility of a successful outcome, as considered in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [72].
Section 12(1) of the Citizenship Act provides:
(1) A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
“Ordinarily resident” is defined in s.3 of the Citizenship Act as follows:
a person is taken to be ordinarily resident in a country if and only if:
(a) he or she has his or her home in that country; or
(b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.
However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.
Section 37 of the Citizenship Act relevantly provides:
(1) A person may make an application to the Minister for evidence of the person’s Australian citizenship.
(2) The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.
The Applicant submitted that the judgment of Gleeson J in Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263; [2016] FCA 959 at [27] stood for the principle that a person was not precluded from acquiring Australian citizenship pursuant to s.12(1)(b) of the Citizenship Act simply because his or her residence in Australia had been pursuant to the holding of a temporary visa or no visa at all, and that the relevant question for the decision-maker in determining whether an applicant was “ordinarily resident” within the s.3 definition required consideration of the substance of that applicant’s connection to Australia (see Kim at [33]).
It was contended that the delegate had to consider whether, as a matter of fact, the Applicant had his home in Australia or whether Australia was his country of permanent abode, even during his temporary absences. The Applicant acknowledged that as he had, at all material times, been a minor under the care and control of one or both parents, the intentions of his parents in entering and taking steps to remain in Australia were relevant to this determination.
The Applicant submitted that the delegate had erred in placing significant weight on the fact that he did not hold a visa when he was present in Australia for the first four years of his life and held temporary and bridging visas at other times (see Kim at [27]). This submission was put on the basis that the delegate had failed to appreciate that the Applicant was not legally precluded from acquiring Australian citizenship pursuant to s.12(1)(b) of the Citizenship Act simply because his residence in Australia had been pursuant to the holding of a temporary visa or no visa at all.
It was submitted that the delegate had effectively equated the Applicant’s holding of a temporary visa or no visa at all during his residence in Australia to a temporary purpose in entering or residing in Australia, without due consideration of the substance of the family’s connection with Australia. It was also noted that the internal review of the delegate’s decision of 12 July 2017 had not been finalised until October 2017. The Applicant suggested on this basis that the delegate conducting the internal review had, or ought to have had, access to the evidence submitted in support of his mother’s ministerial intervention request. The submission incorrectly suggested that the ministerial intervention request was made in August 2017.
In addition, the Applicant took issue with the delegate’s finding that his and his family’s name changes to circumvent the imposition of an exclusion period on application for a visa to re-enter Australia were also reflective of the family not having established a permanent home, regular employment or significant ties with the community prior to their departure from Australia. It was suggested that the delegate had apparently not turned her mind to the “potential” underlying reason for the name changes. This was said to be that the family had their home in Australia and considered Australia to be their country of permanent abode and that they were determined to remain here despite the fact that no member of the family held a visa to remain at the time of their departures to and returns from South Korea in 2010 and 2011. This was also said to be a misapplication of the law.
Such suggested misapplication of the law was said to be material to the exercise of jurisdiction on the basis that had the delegate correctly applied the law, the outcome of the decision may well have been different. It was submitted that it was open to the court to quash the decision.
The Respondent addressed ground 1 in both written and oral submissions. The Applicant did not take issue with the Respondent’s characterisation of this ground as essentially a contention that the delegate had misunderstood the effect of s.12(1)(b) of the Citizenship Act and the decision of Gleeson J in Kim and had failed to appreciate that the Applicant was not legally precluded from being ordinarily resident in Australia because at various points he held a temporary visas or no visa at all.
The Respondent submitted that this ground proceeded on a misreading of Kim and that the delegate had not misdirected herself as to the relevant question and had not reasoned that simply because the Applicant did not hold a visa or held only a temporary or bridging visa he could not, for that reason, be ordinarily resident at that time. Rather, the delegate was said to have asked the right question in giving consideration to the “substance” of the Applicant’s connection with Australia, consistent with Kim and having regard to the evidence in that respect.
The Respondent pointed out that in so far as the Applicant submitted that the delegate erred in failing to have regard to information provided to the Department in support of the mother’s ministerial intervention application, this was not a pleaded issue and the Applicant did not put such evidence before the delegate. The issue of a potential underlying reason for the name changes was also not pleaded.
The Respondent also submitted that even if the delegate misunderstood or misapplied the law as contended for in ground 1, this would not overcome or affect the delegate’s finding that the Applicant was not “ordinarily resident” in Australia between March 2010 and March 2011 (while he was in South Korea) and hence that he was not “ordinarily resident” in Australia “throughout” the ten year period after his birth. Thus, it was submitted that any error of the nature contended for in ground 1 would not be “material” in the sense considered in Hossain (also see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3), which the Applicant accepted was necessary in the present context.
Consideration
The part of the delegate’s decision the subject of ground 1 is as follows:
I have placed weight on the fact that Master Kim was resident in Australia for almost nine of the first ten years of his life, however this has been mitigated by the fact that, for four years Master Kim did not hold a visa to remain in Australia, and for the remainder of the 10 year period, held temporary and bridging visas as shown below:
·3 March 2006 to 11 March 2010 - onshore unlawful
·12 March 2010 to 24 March 2010 - Bridging visa (subclass 050)
·24 March 2010 to 30 March 2011 - Offshore and subject to three year exclusion period
·30 March 2011 to 23 December 2011 (subclass 976) (arrived 1 April 2011)
·23 December 2011 to 17 January 2012 - Bridging visa (subclass 010)
·17 January 2012 to 25 May 2016 - Student visa (subclass 573)
·25 May 2016 to 31 May 2016 - onshore unlawful
·1 June 2016 to 08 August 2016 - Bridging visa (subclass (050)
·09 August 2016 to current - onshore unlawful
The terms and conditions of the visas held by Master Kim and his parents indicate that they had a temporary purpose in entering and remaining in Australia, which is not reflective of persons either being, or having an intention to be, ordinarily resident. The significant periods of unlawfulness engaged in by the family (over five years), during which no visas were held or visa applications lodged, further indicates a likelihood that the family did not view Australia as their permanent home during this period.
In Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458 at [102] Foster J stated that the word “throughout” in s.12(1)(b) of the Citizenship Act imports a notion of continuity or constancy and that the requirement of “ordinarily resident” must be satisfied at all times for the whole of the period, albeit that temporary absences from Australia are accommodated within the definition of ordinarily resident in s.3 of the Citizenship Act.
Gleeson J stated in Kim at [27] that s.12(1)(b) of the Citizenship Act is “broad enough to encompass a person who meets the requirements of “ordinarily resident” but whose residence is pursuant to a temporary visa, or is unlawful”. Her Honour accepted that s.12(1)(b) of the Citizenship Act was not based on “permission to reside” in Australia or an applicant’s visa status, but rather on parental status at birth or, as relevant in this case, ordinary residence (see Kim at [32]). While recognising the relevance of an absence of permission to “enter” Australia, her Honour continued at [33]:
… I do not mean to suggest that the absence of a visa on a particular day is likely to be determinative of whether a person has his or her home in the relevant country on that day, or whether the person has his permanent abode in the relevant country on that day. Both limbs of the definition of “ordinarily resident” are concerned with the substance of a person’s connection with the relevant country …
Nonetheless, as the Respondent pointed out, on the evidence before the Court in Kim, Gleeson J accepted (at [134]) that “the permanency of the applicant’s home in Australia, from the time of his birth, was affected by his visa status”. This indicated an acceptance that visa status is relevant (albeit not determinative) in a consideration of whether a person is ordinarily resident in Australia.
Read in context, it is clear that after having regard to concessions made by counsel for the Minister in Kim (described at [22]-[24]) and the language of s.12 of the Citizenship Act, Gleeson J was observing (at [27]) that simply because a person was an unlawful non-citizen or in Australia as the holder of a temporary visa, this did not, of itself, mean that the person was not “ordinarily resident” in Australia at that time. Depending on the particular circumstances of the case, such a person might be “ordinarily resident” at that time.
As the Respondent submitted, the delegate recognised this possibility and did not proceed on the basis that the Applicant could not be ordinarily resident in Australia because he was an unlawful non-citizen or a temporary visa holder during the first ten years of his life. Rather, the delegate had regard to the substance of the Applicant’s connection to Australia throughout that period, consistent with Kim at [33] and Lee at [102]. The delegate placed weight on the Applicant’s physical residence in Australia for almost nine of the first ten years of his life and had regard to such other evidence as was before her relevant to the Applicant’s connection to Australia, but also took into account the fact that he either held no visa or a temporary or bridging visa while in Australia. It was open to the delegate to have regard to the Applicant’s visa status in considering the substance of his connection to Australia.
In that context, the delegate considered that the “terms and conditions” of the temporary and bridging visas held by the Applicant and his parents indicated that they had a temporary purpose in entering and remaining in Australia which was “not reflective of persons either being or having an intention to be ordinarily resident in Australia”. This recognised the legal limitations on the actual visas held by the Applicant. It was not the sole basis for the delegate’s decision.
The delegate also had regard to the fact that there were significant periods of unlawfulness in the first four years of the Applicant’s life during which time no visas were held or visa applications lodged by or for him. This was also said to indicate a “likelihood” that the family did not view Australia as their permanent home during this period. In addition, the delegate referred to the absence of any evidence for the Applicant to show any connection or integration with the Australian community in the period in which he was largely unlawful or outside Australia from his birth in 2006 through to his commencement at school in 2012. However the delegate acknowledged the evidence of the Applicant’s integration into the Australian community from 2012 on. These were matters relevant to the assessment of whether the Applicant was ordinarily resident in Australia “throughout” the period of ten years beginning on the day he was born as provided for in s.12(1)(b) of the Citizenship Act.
The delegate had particular regard to the period the Applicant was outside Australia with no right of return and the absence of evidence of a connection to Australia or that the family maintained a permanent residence in Australia during this period. The delegate considered that the three year exclusion period was circumvented by the family’s name changes to disguise their previous migration history and also saw the name change as reflective of the fact that the family had not established a permanent home, regular employment or significant community ties before their departure from Australia.
It has not been established that the delegate misdirected herself as to the relevant question or misapplied the law by proceeding on the basis that simply because the Applicant was unlawful or held a temporary visa he could not have been ordinarily resident at that time or throughout the ten year period after his birth. In considering whether the Applicant had been ordinarily resident in Australia throughout the ten years from the date of his birth, the delegate considered the substance of his connection to Australia throughout that period, including (but not limited to) the visas he and his family held and periods of unlawfulness and what that might say about their intention to reside in Australia, as well as the other evidence before her as to the Applicant’s connection to Australia.
The Applicant also contended that the delegate did not give proper, genuine and realistic consideration to the evidence provided in support of his application for evidence of Australian citizenship. In so far as this contention reflected the submission that persons who intended to and in fact resided in Australia on a permanent basis while holding a temporary visa or no visa could satisfy the definition of ordinarily resident, as discussed above, the delegate did not proceed on the basis that this was not the correct construction of the definition of “ordinarily resident” in s.3 of the Citizenship Act.
In written submissions the Applicant alleged generally that the delegate had failed to give “due consideration” to the substance of the Applicant’s connection with Australia. However, as indicated, the delegate did consider the substance of the Applicant’s connection with Australia but, on the evidence before her, was not satisfied that the connection was such as to demonstrate that the Applicant was ordinarily resident here throughout the ten year period after his birth.
I am not persuaded by the Applicant’s suggestion that the delegate erred in failing to access the evidence that had been submitted to the Department in support of his mother’s ministerial intervention request. As the Respondent submitted, this was not a pleaded issue. The delegate recorded the fact of the ministerial intervention request in describing the family’s migration history. However the ministerial intervention request was made on behalf of the mother (with the Applicant and other family members as dependants) in relation to the cancellation of her student visa. That was a different application to the application before the delegate for evidence of the Applicant’s citizenship. There is no evidence that the Applicant sought to rely on any material provided in relation to his mother’s ministerial intervention request (which was made and finalised in 2016) in support of his application under s.37 of the Citizenship Act. There is also no evidence that the Applicant requested the delegate to consider any material that had been provided in relation to the ministerial intervention request.
The delegate had regard to the documents and information provided to the Department in support of the s.37 application for evidence of citizenship. She acknowledged that there were supporting documents in relation to the Applicant’s education and sporting endeavours from 2012 on and placed significant weight on those documents as evidence of his integration into the Australian community. However she also had regard to the fact that no such evidence had been provided in relation to the period from his birth in 2006 through to his commencement at school in 2012. On the evidence before the delegate, only a limited assessment of the substance of the Applicant’s connection to Australia during that earlier period could actually be undertaken. When regard is had to the delegate’s decision as a whole, it is clear that the delegate dealt with that period on the evidence before her. The delegate did not fail to give proper, genuine and realistic consideration to, or fail to have regard to, evidence before her such as to establish legal error on the basis contended for in this ground.
In written submissions the Applicant also submitted that the delegate failed to consider a potential underlying reason for the family’s name changes. This was not a pleaded issue. The Applicant was at all times legally represented and had (and took) the opportunity to file an amended application on more than one occasion. In any event, it is apparent from the delegate’s decision that the delegate expressly considered the reason for the name changes in finding that the exclusion period was “circumvented entirely” by the name changes with the intention of disguising the family’s previous migration record as well as observing that the name changes were not reflective of the family having a prior permanent home, regular employment or significant community ties in Australia. In so far as the Applicant now suggests some other view that the delegate could have taken in relation to the motivation of the family, the possibility that a different view could have been taken in relation to the reason for the name changes does not mean that the delegate was obliged to take such other view. No error of the nature contended for in ground 1 of the application is made out on this basis.
Finally, in so far as ground 1 refers to s.10(2)(b) of the 1948 Act (which was in effect before the Citizenship Act commenced on 1 July 2007), item 4(2)(b) in Part 2 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) provides that paragraph 12(1)(b) of the Citizenship Act relevantly applies to “a person born before the commencement day who, immediately before that day, has not been ordinarily resident in Australia throughout the period of 10 years beginning on the day the person was born”.A note to this provision states that its effect is that the period for which the person has been ordinarily resident in Australia before the commencement day will be counted under the Citizenship Act. No issue was taken in relation to the delegate’s references to the 1948 Act and the Citizenship Act.
Ground 1 is not made out. Hence it is unnecessary to consider the Respondent’s submission (which the Applicant did not address in submissions) that any error of the nature contended for in ground 1 would not overcome the delegate’s finding in relation to the period the Applicant was outside Australia.
Ground 2
Ground 2 in the further amended application is as follows:
2. Further and in the alternative, the Court ought to find that the Applicant is an Australian citizen based on the evidence before it, and make orders giving effect to this findings.
Particulars
a. The question of whether the Applicant was ordinarily resident in Australia for the first 10 years of his life is a jurisdictional fact which is objectively capable of identification and determination on the evidence presented in the application to this Court.
b. The evidence presented in the affidavits of Mr [Applicant’s father] and Ms [Applicant’s mother] (the Applicant’s parents) demonstrate the following.
i. The Applicant was born in Australia on 3 March 2006.
ii. The Applicant was, at all material times, a minor under the care and control of his parents.
iii. The Applicants parents had, notwithstanding the fact that they arrived and remained on a Tourist visa, held an intention to make Australia their country of permanent abode and taken steps to do so. These steps included (but were not limited to) conceiving and giving birth to the Applicant, establishing a household, engaging with their local community, making plans for their future and making attempts to regularise their immigration status via a broker of agent named Mr … An.
iv. That the Applicant and his parents attempts to regularise their immigration status were frustrated by the fraudulent conduct of Mr … An.
v. That the Applicant has lived in Australia for some 9 out of the first 10 years of his life commencing from the date of his birth.
vi. That the Applicant has, at all material times, considered Australia to be his country or permanent abode.
The court has jurisdiction in relation to the ADJR claim (see ss.3, 5 and 8(2) of the ADJR Act and s.10 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act). The Citizenship Act issue may be seen as arising out of a common substratum of facts and, in any event, is within the jurisdiction of this court under s.18 of the FCCA Act as a matter which, as a matter of practical judgement, is associated with another federal matter (the ADJR claim) for which jurisdiction has been conferred (see Lee at [50] and Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [23] in relation to s.32 of the Federal Court of Australia Act 1976 (Cth) which is in similar terms to s.18 of the FCCA Act). The two matters raised in these proceedings both relate to the citizenship of the Applicant and the determination of whether he was ordinarily resident in Australia throughout the first ten years of his life. As to the court’s power to grant declaratory relief in such a case, see Hudson v Sigalla (No 3) [2016] FCCA 2140 at [6]-[10] in relation to s.16 of the FCCA Act and Orison Pty Ltd v Strategic Minerals Corporation NL; Cross & Ors v Devenish-Meares & Ors (1988) 81 ALR 183; [1988] FCA 274 per French J in relation to the equivalent provision in s.21 of the Federal Court of Australia Act.
In support of this ground the Applicant relied on the material in the courtbook that was before the delegate in relation to the s.37 application, affidavits sworn by his father on 29 October 2018 and 5 March 2019 and an affidavit sworn by his mother on 29 October 2018. Both parents were cross-examined.
As pointed out in Lee at [89]-[90] and Kim at [11], whether a person satisfies the requirements of s.12(1)(b) of the Citizenship Act is a jurisdictional fact to be determined by the court on the evidence before it. In Kim at [12], Gleeson CJ summarised relevant propositions as stated by Foster J in Lee (which are not in dispute in these proceedings) as follows:
(1) The concept of “ordinarily resident” allows for some absences, depending on the nature and extent of the those absences (at [57]);
(2) Whether a person is ordinarily resident in Australia is a question of fact and degree (at [97]);
(3) Whether a temporary absence from Australia prevents a person from being “ordinarily resident” in Australia is a question of fact and degree (at [99]);
(4) Whether, at the time of departure and during the temporary absence, the person “intends to return to live in Australia after the temporary absence is relevant to determining” whether he or she is “ordinarily resident” in Australia during the absence (at [99]);
(5) In the case of a minor, the question whether he or she is ordinarily resident in Australia within the meaning of the Citizenship Act will generally be determined by reference to the position of the parents (at [100]). To the extent that subjective intention is to be attributed to the applicant for the purpose of assessing where he was ordinarily resident for the first 10 years of his life, it is the intention of his parents that must be considered (at [153]).
(6) The use of the word “throughout” imports a notion of continuity or constancy (at [102]).
It is apparent that the Applicant relies heavily on the affidavit evidence of his parents and their cross-examination on 28 November 2019 in support of his application for a declaration that he is an Australian citizen. It was submitted that his mother’s evidence had been uniform in evidencing an intention that her stay in Korea was temporary and that the residence in Australia where her husband lived remained her home. It appears, however, that the present counsel for the Applicants did not have the benefit of a transcript of the hearing of 28 November 2019 when preparing the Applicant’s written submissions. Those submissions relied on and quoted notes said to have been presented to counsel (presumably by his instructing solicitor) as to the parents’ evidence in cross-examination. These differ from the transcript in some not insignificant respects. Counsel for the Respondent took the court to the transcript. I have had regard to the transcript.
The Respondent pointed out that the Applicant, who was approximately 13½ years old at the time of the hearing and could have testified (see Lee at [140]), did not give evidence in support of his application for a declaration. In so far as the Respondent intended to invite the court to draw an adverse inference from this failure, the cited remarks of Foster J in Lee at [140] related to whether weight should be given to assertions made by the father of an 11 year old as to his son’s feelings, thoughts and emotions. However, in relation to the issue of assessing whether the applicant in Lee was ordinarily resident in Australia throughout the first ten years of his life, his Honour stated at [153]:
In the first 10 years of his life, all decisions as to where the applicant would physically be taken and where it was intended that he should live were made by his parents. Those decisions were reflected in the movements which he undertook in that period. For the first 7 years and 9 months of that period, he went wherever his mother went. The physical whereabouts of the applicant during the first 10 years of his life and the circumstances in which and the purpose for which he moved from place to place in that period need to be carefully examined in order to determine what the intentions of his parents were as to where they wanted to live. To the extent that any subjective intention is to be attributed to the applicant for the purpose of assessing where the applicant was ordinarily resident in the first 10 years of his life, it is the intention of his parents that must be considered. The applicant did not have the capacity in that period to give effect to any decision of his own as to where he would live.
I draw no adverse inference from the absence of evidence from the Applicant himself (also see Kim at [12](5)). The evidence in this case is that for the whole of the first ten years of his life the Applicant lived wherever his mother lived. In such a case the court will have regard to the intention of his parents and, as suggested in Lee at [100], pay particular attention to the status and intention of the Applicant’s mother, although that does not mean that the position of the father is irrelevant.
The Applicant’s case before the court is that he was ordinarily resident in Australia from the time of his birth until the age of ten; that the periods in which his parents were in Australia unlawfully were a consequence of his parents acting on the advice of a Mr An, who was said to have been a fellow church member and a visa broker who defrauded them but who died in 2014; and that the intention of the parents was always that Australia was their home and the Applicant’s permanent abode throughout this period, even during the Applicant’s absence from Australia.
Counsel for the Applicant suggested that there were three central issues in relation to this ground: the credibility of his parents (including their claim about the alleged fraud of Mr An); the consequences of the periods in which he was an unlawful non-citizen while in Australia; and the nature in law of his one year absence from Australia with his mother.
It was submitted that the parents gave reasonably consistent and credible evidence in cross-examination, in particular about the asserted fraud of Mr An. The Applicant contended that the court should be satisfied that his visa history and that of his parents had been “contaminated” by the “purported migration agent” (Mr An) acting in a way to benefit himself, rather than in the interests of his clients. It was contended that the court should accept that the parents’ intention was that the stay in South Korea was temporary and was to stop the Applicant from falling behind in his schooling (rather than being indicative of a lack of an intention to return to Australia on a permanent basis) and that Australia remained their permanent abode.
The Respondent submitted that it should be borne in mind that the evidence of witnesses (such as the Applicant’s mother and father) who had some interest in the outcome of litigation should be approached carefully (see Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74 at [81]-[82]; Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148 at 155; [1991] FCA 352). The parents’ interest in this case was said to be an interest in a favourable outcome for their son.
In any event, it was submitted that the parents’ claims over time had not been consistent and that the court should not be satisfied that they were truthful witnesses in relation to their intention and the alleged fraud of Mr An.
The fact that the parents have an interest in a favourable outcome for their son does not mean that they are not to be believed. However, I accept that in the present context, statements of purpose or object or state of mind “must be tested closely and received with caution” (see Imperial Bottleshops at 155). As discussed further below, I have considerable concerns about the credibility of the Applicant’s parents in relation to both the asserted fraud of Mr An and as to their intentions and circumstances relevant to whether the Applicant was ordinarily resident in Australia “throughout” the ten years from his birth, particularly in the period he was outside Australia in 2010 to 2011.
Whether a person is ordinarily resident in Australia is a question of fact and degree. Limited evidence has been provided in support of the contention in the particulars that at the time of the Applicant’s birth the parents had an intention to make Australia their country of permanent abode and had taken steps to do so. They had arrived on temporary visas which expired. They were both unlawful non-citizens at the time of the Applicant’s birth. There is little evidence of the steps they are said to have taken to establish a household, engage with the local community and make plans for their future.
In their affidavits and cross-examination the parents sought to assert that they had been the victim of visa fraud perpetrated by the late Mr An, an alleged “visa broker”. It is pleaded that they were attempting to regularise their visa status and that of the Applicant and that this attempt was “frustrated” by the alleged fraud. In their evidence it was claimed that the family also lost their savings. The mother claimed this was an amount of $100,000, while the father claimed it was approximately $65,000. Aspects of the parents’ claims about the asserted visa fraud were elaborated on in their cross-examination.
The parents sought to attribute responsibility for their failure to hold visas, and hence the Applicant’s unlawful status for the first four years of his life, to acting on the advice of Mr An on the basis that the father understood that Mr An would obtain a 457 visa for him, but did not do so. In addition, it was claimed that Mr An told the Applicant’s parents to return to Korea to change their names to assist them in obtaining future visas, although it was not explained how this amounted to fraud on the parents.
As the Respondent submitted, this aspect of the Applicant’s case raised an allegation of serious misconduct said to have been perpetrated by Mr An on the Applicant’s family. It is common ground that there is no suggestion of third party fraud stultifying the administrative decision-making process in the sense considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [47]-[49] and the Applicant did not assert fraud on the basis considered in Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142. Nonetheless, fraud must be clearly proved (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362-363 per Dixon J).
It is of concern that, despite the present claim about the significant impact of this alleged past fraud both on visa status and on the family’s savings, there was no claim made about any such fraud or any mention of Mr An in connection with the mother’s 2016 application for ministerial intervention. Nor was any allegation of fraud affecting visa status raised when the Applicant lodged the s.37 application in 2017 or while the application was before the Department.
That is so notwithstanding that in 2016 the parents engaged a firm of solicitors to lodge the mother’s application for ministerial intervention following the cancellation of her student visa. The Respondent put in evidence the written submission provided in support of that application. It set out in some detail the family’s past history in Australia and was supported by considerable documentation. It included a submission that the Applicant had been ordinarily resident in Australia for the first ten years of his life and would be an Australian citizen within s.12(1)(b) of the Citizenship Act. The Applicant’s parents each swore statutory declarations in support of the ministerial intervention application. There was no reference to Mr An or to any visa fraud.
In cross-examination the father’s evidence was that he had spoken to his then solicitor five or six times about the ministerial intervention application, that he had explained everything important about his migration history to the solicitor, and that there was nothing important missing from the application. He confirmed that his statutory declaration contained all the matters that he thought the Minister should know about. Similarly, the mother confirmed that they had discussed their past migration history with the solicitor and that there was nothing missing from the application which she felt should have been included.
The Applicant’s current solicitors prepared the 2017 s.37 application for evidence of citizenship which is the subject of the delegate’s decision. The cover letter of 3 May 2017 set out in detail the family migration history. The parents also both confirmed that they had discussed their past migration history with their present solicitor and that the cover letter contained everything that they thought was important about their history in Australia. There is no reference in that cover letter to Mr An or to any fraud being perpetrated on the Applicant’s family.
I acknowledge that in a letter providing further information to the Department dated 22 June 2017, the Applicant’s solicitor did observe that the Applicant’s parents had lost their life savings due to a “visa scam”. This was said to explain the fact that they did not own any significant assets in Australia. However such claim was not elaborated on or related in any way to the parents’ intentions or actions concerning visa status, visa applications or residence in Australia while the application was before the Department.
Nor was any such claim raised in the original application for review in these proceedings. On the evidence before the court it appears that the first time a claim of fraud by Mr An was raised squarely was in the parents’ affidavits which were sworn and filed in late October 2018.
The late raising of such a serious claim in circumstances where one would have expected it to be raised earlier, at least in the context of the Applicant’s application to the Department for evidence of Australian citizenship, suggests that this claim may be a recent invention made only after the Department had refused the Applicant’s proof of citizenship application, both initially and on review, and that the parents were attempting to bolster the Applicant’s prospect of success in this proceeding.
Further, the parents’ evidence about Mr An is unclear and inconsistent. There is no evidence that Mr An was a migration agent or that he held himself out as such. Rather, he is referred to by name and described as a “visa broker” who attended the same church as the Applicant’s parents. The Applicant’s father claimed that Mr A was paid to lodge a 457 visa application for him in or around 2005. There is no claim or evidence to suggest that the father was in a position to meet the criteria for such a visa, which would have required sponsorship by an employer for a nominated skilled position. Nor is there or any claim that thereafter the parents made any enquiries at all of Mr An as to the progress of any visa application prior to 2010.
In contrast, the mother’s evidence is that her husband did not tell her about Mr An until after the Applicant was born in 2006. There is no evidence as to whether the mother (or the Applicant) was supposed to be included in the suggested 457 application. The parents’ evidence does not support the contention that at the time of the Applicant’s birth they were making plans to regularise their visa status in Australia that were thwarted by the fraud of Mr An.
The Applicant’s parents claimed that they had never themselves applied for protection visas, that they had no knowledge of any application for a protection visa in their names and using their passports, but that they had discovered recently that Mr An had in fact applied for protection visas for them in 2007.
There is, however, evidence before the court that two protection visa applications in the parents’ former names have been lodged. The first, in 2006, was invalid, but the parents were granted associated bridging visas. A second valid application was received on 15 January 2007. Copies of this application and the delegate’s PVA decision were tendered by the Respondent. The Applicant was not included in the 2007 protection visa application. No migration agent was disclosed in the application. It stated that correspondence in relation to the application was to be sent to the father, although the form also named an authorised recipient (not a Mr An). The address given in the application form was the Campsie address at which the parents now claim they lived at that time. The application was accompanied by copies of the parents’ original passports which were sighted by the Department. The parents have acknowledged that these were copies of their passports. The parents denied, however, that they had signed this protection visa application form. The mother claimed that her signature had been copied.
The Department addressed a registered post letter dated 7 May 2007 to the Applicant’s father at the Campsie address at which he claimed he was then living, advising him that his application for a protection visa of 15 January 2007 had been refused and that the decision included his wife.
In the decision in relation to the 2007 PVA, the delegate recorded that after the father (with the mother as a dependant) lodged a protection visa application on 15 January 2007 visa: “They were granted associated BVEs on 14 March 2007 after they attended the requisite interviews” (emphasis added). This would suggest that the parents did have some knowledge of the fact of a 2007 visa application.
When confronted with this evidence in cross-examination, the father agreed that he had attended a meeting at some time in 2006 or 2007 at the Department of Immigration. He claimed that this was in the company of Mr An and that he had never otherwise attended an interview with the Department, including in relation to any protection visa application. He asserted that this meeting was in relation to a 457 visa application, of which there is no evidence.
In contrast to his evidence in cross-examination, in his affidavit the father did not claim to have had any meetings or contact with Mr An about his visa status between the initial contact with him in 2005 and early 2010. It was only in cross-examination that he agreed that he had attended the Department in 2006 or 2007 and then said that this was with Mr An in relation to a 457 visa.
In cross-examination the mother denied having attended any meeting or interview with her husband at the Department of Immigration in 2007, although she subsequently volunteered that she had “once” met Mr An, when they went to the Department to get a stamp in her passport in 2007.
It is not clear whether the meeting the delegate referred to was in relation to bridging visas or was a protection visa interview. In any event, I do not find persuasive the suggestion of counsel for the Applicant that in the absence of a record of any 2007 departmental interview, the court should infer that if it had been before the court it would not have assisted the Respondent. It is the father who now asserts that the only departmental meeting he attended was in relation to a 457 visa.
There is no evidence as to the basis on which any Subclass 457 (Temporary Work (Skilled)) visa application for the father was to have been made or was made. I find the parents’ claims in this respect unconvincing. This also raises concerns about the credibility of their evidence about their intention at the time of and during the Applicant’s 2010-2011 absence from Australia and the purpose of the travel to South Korea.
I am prepared to accept that the Applicant’s father had some migration advice and/or assistance in 2006 to 2007, although he does not claim that Mr An was a migration agent. However, even assuming that a Mr An provided such assistance, the evidence does not establish fraud on the parents in connection with the 2007 protection visa application or otherwise. Taken at its highest, the recent claim about a 457 application appears to be a claim that, regardless of whether the father was legitimately entitled to a visa which could lead to permanent residence (as to which there is no claim or evidence), Mr An promised to assist in procuring a visa for the father to address his (and hence his family’s) unlawful status, but that he did not succeed in doing so.
The Mr An claim was raised very late. The evidence before the court is unclear and unconvincing and not supported by any documentary material. I am not satisfied that the Applicant’s parents were the victims of fraud perpetrated on them by a now deceased Mr An which in some way thwarted their attempt to regularise their visa status or that of the Applicant. Even taking the parents’ evidence at its highest and setting aside any credibility concerns, the evidence before the court is simply insufficient for the court to be satisfied of any alleged fraud, having regard to the high threshold for a claim of fraud of any kind to be made out (see Briginshaw; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66; Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114; and SZFDE). The parents’ evidence in this respect also casts doubt on the credibility of the claims about the purpose of and their intentions at the time of and during the Applicant’s absence from Australia.
Aspects of the Applicant’s mother’s evidence raised in relation to her absence from Australia with her children were also of concern in relation to her credibility. When cross-examined about why she had departed Australia for Korea in 2010 and why she changed her name and returned to Australia under a new name, the mother claimed that Mr An had told her to do so. She ultimately agreed that this process was an attempt to mislead the Department of Immigration into granting her a visa, but reiterated that Mr An had told her to do so. When it was put to her that she was willing to tell people things that were not strictly true in order to get a benefit for herself, she conceded a past willingness to mislead others in order to obtain a benefit. Such concession casts doubt on her credibility.
Further, early in the questioning of the Applicant’s mother about passenger cards she had completed when entering and leaving Australia at various times (copies of which were annexed to the affidavit of Katherine Louise Evans affirmed on 14 March 2019), she volunteered evidence about why she had written South Korea on those cards as her country of residence and that of the Applicant, before any questions had been asked about this issue. When questioned about why she gave that evidence, she conceded that she had spoken to her husband over the lunch adjournment about some of the questions that had been asked in his cross-examination. Although the mother did not accept that this was the case, it appeared that she was attempting to pre-empt the questions and to volunteer evidence that she thought would assist the case. This is unsatisfactory.
Despite my concerns about the credibility of the parents’ claims in relation to Mr An and the absence in Korea, I have considered such objective evidence as there is in relation to the first four years of the Applicant’s life (from his birth in March 2006 to his departure from Australia in March 2010).
While the ministerial intervention application apparently included some supporting statutory declarations (referred to in the submission to the Minister from the Applicant’s mother’s then solicitor which was tendered by the Respondent in these proceedings) those documents are not in evidence in these proceedings and the Applicant did not seek to rely on affidavit evidence from anyone outside the family. There is no affidavit evidence from any third party witnesses, such as friends, or people from the local community or church (which Mr An was also said to attend) who perhaps could have given evidence as to the intention and activities of the Applicant’s family and their integration into the community, their understanding of the Applicant’s family’s place of residence and their intention, if any, to return to South Korea or to reside in Australia throughout the ten year period in issue.
The parents’ evidence about the period from March 2006 to March 2010 was that the Applicant’s father initially came to Australia as the holder of a tourist visa. He described himself at that time as visiting Australia. He re-visited Australia holding a business visa. The Applicant contended that that father’s entries into Australia in 2002 and 2003 were consistent with the behaviour of a person who was contemplating the possibility of permanent migration to Australia. That may be so, but it has not been established that at that time he was ordinarily resident here. However I accept that he remained in Australia for all but 85 days between March 2003 and May 2007 as recorded in the 2007 protection visa decision. There is no evidence or suggestion that he departed Australia in the first ten years of the Applicant’s life, except for his brief visit to Korea in December 2011.
After their marriage, the Applicant’s mother entered Australia separately in January 2005 as the holder of a visitor visa (although she may have also have visited in 2004). Visitor visas are temporary, short-term visas. Entering Australia on such a visa is not indicative, in itself, of a person intending to remain in Australia or to reside here long-term (but see Kim at [27]). The parents remained in Australia after their visas expired and were unlawful non-citizens for some time (other than when holding bridging visas to depart or in association with their 2006 and 2007 protection visa applications). The Applicant was an unlawful non-citizen until March 2010.
However, it was contended that the Applicant’s parents’ early intention of making Australia their country of permanent abode was evidenced by the fact that they had established a household together and had become involved in the local Korean church community shortly after the mother’s arrival. Their brief evidence in this respect was unchallenged.
From the time of the Applicant’s birth until 24 March 2010 the Applicant (and his parents) lived in Australia in various rented premises (three addresses in that period were disclosed by the father to NSW Transport). The father’s affidavit evidence about his employment was that he worked as a welder at various work places to support his family. The parents did not put any other evidence as to employment before the court, notwithstanding the period of time they have been in Australia. Nor is there any evidence of family ownership of assets in Australia. The wife’s affidavit evidence is simply that she was primarily a housewife raising the two children. Another child was born in 2008 and it is not in dispute that the family attended a local church.
I have borne in mind that, given the Applicant’s age prior to his 2010 departure from Australia, it is unsurprising that limited evidence would be available in relation to his integration into the Australian community in this early period of his life, in contrast to the documentary evidence about his integration into Australian society after he started school here in 2012 (the year after his return from Korea).
In considering the substance of the Applicant’s connection to Australia it is not irrelevant to have regard to the fact that the Applicant did not hold any visa to lawfully remain in Australia from the time of his birth to 2010 and that for much of that period his parents were not lawfully in Australia. However, I have also had regard to the fact that, as pointed out in Kim, s.12(1)(b) of the Citizenship Act is not concerned with permission to reside in Australia, but depends on ordinary residence. As Gleeson J stated in Kim at [27], s.12(1)(b) of the Citizenship Act is broad enough to encompass a person who meets the requirements of “ordinarily resident”, but whose residence is pursuant to a temporary visa or who is unlawful.
As Foster J suggested in Lee at [97], the expression “ordinarily resident” is not a technical term and has its ordinary English meaning. Whether a person is ordinarily resident in Australia is a question of fact and degree. In Kim Gleeson J cited (at [16]) the Supreme Court of New Zealand’s remarks in Geothermal Energy NZ Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324 at 341 as to the broad meaning of “home” as:
“Home” is where the heart is; it is the location of the axis around which for the present, the normal course of one’s life revolves. Put another way, it is the place where the centre of gravity of one’s domestic life is to be found …
Importantly, according to Foster J, a person’s permanent abode is merely “the place where he or she regularly or customarily lives” (Lee at [98]). This was not disputed by the Respondent.
As indicated, I do not accept the claims of fraud on the parents. There is limited evidence as to the Applicant’s integration into the community and he was unlawful for the first four years of his life. While the Respondent pointed to the parents’ “visa status”, they did in fact take some limited steps to regularise their status in Australia and, whatever they thought was the exact nature of the 2006 and 2007 visa applications, it is apparent that the father understood that a visa application was being made in his name and both parents held bridging visas while those application were on foot.
Bearing in mind that s.12(1)(b) of the Citizenship Act is not concerned with permission to reside in Australia, I am prepared to accept that for the first four years of the Applicant’s life his parents viewed Australia as their home, that it was their permanent abode, that is, the place where they regularly or ordinarily lived (see Lee at [98]) and that at that time they were not in Australia for only a special or temporary purpose.
I have considered the period of absence from Australia in South Korea on this basis. Accepting for present purposes that the Applicant was ordinarily resident in Australia from his birth in March 2006 to his first departure from Australia on 24 March 2010, it is necessary to consider “whether the circumstances of an absence warrant a conclusion that what was previously a person’s home no longer bears that description” (Kim at [34]).
Under s.12(1)(b) of the Citizenship Act it is necessary for the Applicant to be ordinarily resident in Australia “throughout” the period of ten years after his birth. This imports a notion of continuity or constancy (Lee at [102]), although the concept of “ordinarily resident” allows for some absences, depending upon the nature and extent of those absences (Lee at [57]). The second limb in the definition of ordinarily resident in s.3 of the Citizenship Act expressly recognises that a country may remain the country of a person’s permanent abode even if he or she is temporarily absent from that country. As Foster J stated in Lee at [99]:
Whether a temporary absence from Australia prevents a person from being “ordinarily resident” in Australia is a question of fact and degree (Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 525 per Burchett J). Whether, at the time of departure and during the temporary absence, the debtor intends to return to live in Australia after the temporary absence is relevant to determining whether he or she is “ordinarily resident” in Australia during the absence (Re Vassis at 525). This observation is of particular importance in the present case.
This observation is also of particular importance in the present case. In considering whether Applicant was ordinarily resident in Australia during the time when, as a four year old, he went to South Korea with his mother and younger sister and stayed for over a year, it is also relevant to have regard to the fact that, as Gleeson J stated in Kim at [33]:
… an absence of permission to enter Australia may, depending on the circumstances, lead to a conclusion that a person is not “ordinarily resident” because that absence of permission is inconsistent with a finding that the person satisfies either of the limbs of the definition of “ordinarily resident”. However, I do not mean to suggest that the absence of a visa on a particular day is likely to be determinative of whether a person has his or her home in the relevant country on that day, or whether the person has his permanent abode in the relevant country on that day. Both limbs of the definition of “ordinarily resident” are concerned with the substance of a person’s connection with the relevant country, in contrast with the test based on status that appears in s 12(1)(a). I do not accept that the words “permanent abode” carry any greater meaning than the meaning identified by Foster J in Lee, that is, where a person “regularly or customarily” lives.
I have considered the evidence as to the purpose and duration of the travel to Korea and whether the Applicant (through his parents) had the intention to return to Australia to live here at the time of departure and during his absence (Lee at [99]) and the capacity to carry out that intention.
In that context, it is relevant to consider (as part of all the circumstances), the Applicant’s visa status and whether, as a non-citizen of Australia, he had a visa to return to Australia or a realistic expectation of obtaining such a visa (see Kim at [24]). I have paid particular attention to the status and intention of the mother with whom the Applicant always lived and who he accompanied to South Korea, although I have also had regard to the position of the father, who stayed in Australia during this time (Lee at [100]).
Prior to the March 2010 departure from Australia the mother obtained a bridging visas for herself and the children. Copies of the application form of 12 March 2010 and the Department’s decision record in this respect were put in evidence by the Respondent. It is of concern in relation to her credibility that the mother initially denied in cross-examination that she had applied for any visa in 2010, but when shown the bridging visa application form, conceded that she had made such an application. In that application form, the mother (who was an unlawful non-citizen at the time) sought a bridging visa on the basis that she was making arrangements to depart Australia for South Korea on 24 March 2010. She included the Applicant and his sister in the application. Bridging visas to facilitate their departure from Australia were granted on 12 March 2010.
At that time (as now), had the Applicant sought a visa to return to Australia, it is highly likely that the criteria for any such visa would have included a criterion that the Applicant satisfy public interest criteria (PIC), including PIC 4014. PIC 4014 was, relevantly, as follows:
(1) If the applicant is affected by the risk factor specified in subclause (4):
(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the departure.
…
(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:
(a) an unlawful non‑citizen; or
(b) the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.
While there were (and are) some exceptions to the operation of cl.4014(4) in cl.4014(5), these relate to persons who previously held a substantive visa. The Applicant was not such a person
On departure from Australia neither the Applicant nor his mother held any visa entitling either of them to return to Australia. They left Australia as the holders of Bridging E visas. Neither of them was guaranteed the grant of another visa to return within the usual three year exclusion period. The father conceded in cross-examination that he thought it would have been difficult for the Applicant and his mother to obtain a visa to return to Australia. It was only the name changes that circumvented the PIC 4014 restriction by hiding the family’s actual migration history when they applied for visitor visas to travel to Australia in 2011.
In so far as the parents now claim that the mother and children returned to South Korea on the advice of Mr An to change their names, this is to be seen in light of all the material before the court and my concerns about the parents’ credibility. It may well be that someone advised the parents that if they changed their names they could “get started all over again” by circumventing the usual three year limitation on further visa applications. However details of how this is said to amount to “fraud” on the parents are lacking. I am not satisfied that any such advice did amount to fraud on the parents, although it is clear that the parents were aware that such name changes were intended to mislead the Australia authorities by circumventing the imposition of any restriction on the application for or grant of visas to them as persons who left Australia on Bridging E visas having previously been unlawful non-citizens.
Given the Applicant’s age at the time in question, the evidence of his parents as to their intention is of relevance in determining whether he was ordinarily resident in Australia for the first ten years of his life (see Lee at [100] and [153] and Kim at [12]). Significantly, the parents’ present evidence about the reasons for the 2010-2011 absence from Australia and their intention at that time is inconsistent with earlier claims in that respect made by each of them and also by their lawyers.
The mother claimed in her affidavit that she travelled to South Korea in March 2010 with her children “because we could not enrol our children into primary school education in Australia”. Similarly, the father’s affidavit evidence was that he wanted to enrol his son into an Australian public school, but could not do so because of their visa status and that between March 2010 and April 2011 his wife and the two children travelled to South Korea “to enrol our son into primary education”. Both parents also referred in their affidavits to acting on Mr An’s advice.
The mother claimed that she and children stayed at her parents’ place in Korea, but that she did not look for property there and did not seek employment or involvement in the community because they did not intend to live in Korea or away from Australia. The mother’s evidence was that she believed that Australia was their true home. She deposed that while in South Korea in 2010-2011, she had frequent contact with friends and church members in Australia about her wish to return to Australia.
In the absence of affidavit evidence from any other people, the Applicant’s case before the court relies almost entirely on the affidavit evidence of his parents as to their circumstances in Australia and Korea and their intention as to where the family’s place of abode would be, in particular during the period in which the Applicant and his mother and younger sister were in Korea.
However in cross-examination both parents sought to retreat from their affidavit evidence. The father claimed that he did not send his son back to Korea to go to school and that his wife and children “only” returned to Korea because Mr An had suggested it because while they had no visa for the Applicant to enable him to go to school in Australia, he could go to Korea and change his name and then return to Australia.
In cross-examination the mother also claimed that the only reason she went back to Korea was not for the children to go to school, but: “Only to change our names; that’s all. Just for temporary stay”. She claimed that she knew she had no visa to return to Australia and that her husband had told her to change her name (on Mr An’s advice) as it was “getting difficult to get 457 visa so it’s better to change our names to get a – to start to get started all over again”. Initially the mother claimed she did not know she was doing something wrong and that the Department would still know who she was, but she ultimately agreed that she was trying to mislead the Department into granting her a visa because they would think she was a different person. She stated: “So now, yes, I agree, but then I just did exactly what Mr An said”. She claimed she had not made up the story about Mr An.
In contrast to the evidence in cross-examination, in the statutory declaration provided in support of her ministerial intervention application, the mother’s evidence was that the Applicant needed to go to school, but that they were not able to enrol him since they were illegal and that:
… therefore, there was no choice except going back to Korea. One year of life in Korea was kind of disaster First of all, [the Applicant] could not hang out with his peer group in school and the community as he spoke mainly in English and his Korean was poor. His peer group made a fun of him and teasing many time so he refused to go to school. I expected him to settle down as time goes but he did not want to. Then we come back to Australia and settle down again. …
While it is perhaps unsurprising that in the context of seeking ministerial intervention the Applicant’s mother did not claim that she returned to South Korea to change their names so that they could circumvent the usual three year exclusion period, her statutory declaration gives no support to any claim that she intended only to return to Korea on a temporary basis until able to obtain another visa. Rather, it suggests an intention to establish a home or permanent abode in Korea so the children could attend school, followed by a subsequent change of heart.
Similarly, contrary to the father’s claim in these proceedings, in his statutory declaration provided in support of the ministerial intervention application he stated that when the Applicant reached school age:
… due to our VISA condition, [the mother] and my kids had to go back [to] Korea to enroll (sic) the school.
Unfortunately I heard sad news from my wife that [the Applicant] was not adapting to the new environment and was hurt by other kid’s bullying in the kindergarten because his Korean was not so good. After I heard that [the Applicant] was missing Australia and his friends, I (sic) considered coming back to Australia on a student visa. …
Both declarations suggest that at the time of departure and for some time thereafter the parents intended the travel to Korea to be for the long-term purpose of schooling the Applicant in his parents’ country of origin. The accompanying submission claimed that it was only after the Applicant was bullied and failed to adjust to school that the mother sought to return to Australia. This also suggests that the mother’s intention on departure, as advised to her solicitor in 2016, was that they make their home in South Korea and that the Applicant undertake schooling in South Korea, but that her intention (and that of her husband) subsequently changed.
In the submission in support of the s.37 application the Applicant’s lawyer submitted that the Applicant was ordinarily resident in Australia because he was born here and had been taken from Australia against his will and best interests as a child, that his stay in South Korea was a temporary absence because he had “no choice” but to follow his parents’ visa conditions and that when his mother left Australia in 2010 he had to leave too. It was submitted that it had always been the parents’ “intention to return the applicant child to live in Australia permanently at a later date when they can fulfil their visa conditions to enter Australia”. In a subsequent submission of 22 June 2017 the Applicant’s lawyer advised the Department that the mother had stated that the “main reason” for her to depart Australia with her son in 2010 was that her son was not able to enrol in a school in Australia due to their illegal visa status. The submission also stated that the mother said the Applicant attended pre-school in Korea for about one year (contrary to her claim in these proceedings that it was only for three months). There is no documentary evidence in this respect.
The Applicant’s mother agreed in cross-examination that (as had been claimed in her ministerial intervention statutory declaration) her son was bullied and did not adjust to pre-school in Korea. When asked if that was the reason she decided to come back to Australia, she claimed it was “not the main reason” and that they “changed our names and then we returned to Australia. That’s all. So while we’re waiting in Korea, we just sent our son to kindergarten”.
I do not accept the mother’s evidence in cross examination that the only reason she and the children returned to Korea was to change their names. It is inconsistent with the parents’ affidavit evidence and with what they claimed in support of the ministerial intervention application and, indeed, with the initial application for evidence of citizenship. Having regard to this and the credibility concerns outlined above, I cannot be satisfied that either of the Applicant’s parents is a completely reliable or truthful witness in relation to their intentions and circumstances in this period. I am of the view that I should be cautious in accepting their uncorroborated evidence where it is not supported by other independent evidence and is not corroborated by or consistent with other material before the court.
Although the Applicant’s mother claimed that while in South Korea she was in constant contact with friends and the church community in Australia and talked to her friends about her wish to return to Australia there is no corroborative evidence in this respect. Nor is there evidence that the father maintained a permanent residence in Australia, during this time to which it was intended that the family return. He notified NSW Transport of a move from the previous family home on Eighth Ave Campsie in December 2009. He notified of a further move in March 2011, shortly before the return of his wife and children.
Further, and significantly, the claim the Applicant was ordinarily resident in Australia while in Korea and that the absence was temporary or for a special or temporary purpose only, is not supported by what other evidence there is about the time the mother and children spent in Korea and what occurred during that time. In circumstances where the Applicant, his mother and sister departed Australia with no right of return and would, in the normal course of events, be subject to a three year exclusion period, it is difficult to see how they had any real intention or realistic possibility of returning to Australia, at least for that three year period, except by changing their names to circumvent the limitation period. However, if that was the mother’s intention when they travelled to Korea, one would have expected that there would be some explanation for the fact that the absence from Australia was for a period of over a year. There was no such explanation. The mother’s name change was not effected until 29 October 2010. A passport in her new name was issued on 8 November 2010. The Applicant’s name was not changed until 24 March 2011, about a year after he left Australia and shortly before he returned on a passport issued on 25 March 2011. There has been no explanation for this. It is consistent with an initial intention to reside long-term in Korea as their home for the purpose of the education of the Applicant.
The evidence as to the timing of the name changes and issue of fresh passports in the new names does not support the claim that the Applicant’s mother always intended that the stay in Korea should be temporary and that they intended to return to Australia which they always considered their home. Had that been the case, it might have been expected that (as with the father’s later visit to change his name) the mother’s stay in Korea with her children would have been relatively brief.
I am not persuaded that the 2010 departure from Australia was for a special or temporary purpose of changing the family’s names because of the exigencies of the family situation as was submitted or that the parents intended at that time or throughout the absence in Korea that Australia remained the Applicant’s permanent abode.
The fact that the Applicant’s father remained in Australia while his wife and children were in South Korea is not inconsistent with my view that in March 2010 when the mother and children went to Korea they did not intend to remain living in Australia. The father remained here, but was working to support the family financially. He did not maintain a permanent residence to which they returned. I find that the return to Korea was primarily so that the Applicant could go to school. I accept that the parents either were aware of, or later became aware of, the possibility of changing their names to circumvent the absence of any right to return to Australia and the usual three year limitation period and that when the Applicant was not happy at pre-school, they may have started to think about again making Australia their home. However there is no evidence to suggest that they acted on this promptly. It was not until December 2011 that the father returned to South Korea to change his name so that the whole family (in their new names) could be included in a visa application which could be seen as a step towards permanent residence.
Having regard to all the evidence, I am not satisfied that at the time of his departure from Australia or throughout his stay in Korea the Applicant’s parents intended that he return to Australia after a temporary absence, such that Australia remained his place of permanent abode during that absence. Rather, I am satisfied that the Applicant, his mother and sister returned to Korea so that the Applicant could undertake schooling in circumstances where the absence of a visa and his unlawful status meant that it would not be possible for him to enrol in a public school in Australia. In other words, the parents made an understandable conscious decision for the Applicant and his mother and younger sister to return to Korea for the purpose of schooling. Plainly, given the age of the Applicant, this was a long-term proposition. It is not supportive of a conclusion that at the time of departure the parents’ intention was that the mother and children would be departing Australia for a short-term temporary period and purpose.
In all of the circumstances it has not been established on the balance of probabilities that at the time of his departure from Australia in 2010 or throughout his time in Korea, the Applicant was ordinarily resident in Australia.
Nor has it been established that the Applicant was ordinarily resident in Australia on his April 2011 return to Australia on a visitor visa. Even if the parents were aware that they could utilise name changes and new passports to avoid the otherwise applicable restriction on applying for visas for the family if they wished to stay in Australia, it was not until December 2011 that the father took steps to change his name. Despite their new identities, the Applicant and his mother and sister returned to Australia as the holders of visitor visas, that is, temporary visas with very limited rights to remain in or reside in Australia. In considering the period from March 2010 to December 2011, I have not placed adverse weight on the fact that the mother declared Korea as her country of residence on passenger cards, given that, as she indicated in cross-examination, she was well-aware that this would be contrary to her visa status at that time. However the mother agreed in cross-examination that in September 2011 she thought of herself as being resident in Korea, even if she wanted to live in Australia. Further, contrary to the submission that the return to Korea was to stop the Applicant from falling behind in his schooling, there is no evidence that the Applicant (who turned five before they returned to Australia) attended pre-school or school in Australia in 2011. The evidence is that he did not start kindergarten in Australia until 2012.
However, I accept that the Applicant’s father made a brief visit to Korea in December 2011 for the purpose of changing his name and that on his return the Applicant’s mother applied for a student visa including all of the family. They were granted bridging visas in December 2011 and student visas in January 2012. I accept that the mother’s application for a student visa including all the family in December 2011 evidenced an intention to ordinarily reside in Australia and to make it the family’s home. While a student visa is only a temporary visa, it can be a pathway to a permanent residence. The mother’s student visa was ultimately cancelled on the basis that she was not a genuine student, but the family took action to challenge that decision and sought ministerial intervention before the present application was filed on behalf of the Applicant. After the Applicant commenced school in Australia in 2012 he was involved in educational and sporting activities and there is evidence that he integrated into the Australian community. I accept that from that time on he and his parents have seen Australia as their home.
Having regard to the substance of the Applicant’s connection with Australia and the intention of his parents, I accept that he was ordinarily resident in Australia from December 2011 onwards. The difficulty for him is that it has not been established that he was ordinarily resident in Australia “throughout” the period of ten years beginning on the day that he was born. In particular, I am not persuaded that his absence in Korea for over a year was for a special or temporary purpose during which time he was ordinarily resident was in Australia. Hence, even if the Applicant was ordinarily resident in Australia from his birth in March 2006 to his departure to Korea in March 2010, circumstances caused that position to change (see Kim at [34]) when he departed Australia.
Accordingly I am not satisfied that the Applicant had his home in Australia or that Australia was his country of permanent abode throughout the period of ten years from his birth.
As the Applicant was not ordinarily resident in Australia throughout the period specified in s.12(1)(b) of the Citizenship Act his application for a declaration must be dismissed.
I certify that the preceding one hundred sixty-one (161) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 September 2020
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