Kim v Minister for Home Affairs - [2020] FCCA 2528

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM v MINISTER FOR HOME AFFAIRS

[2020] FCCA 2528

Catchwords:
ADMINISTRATIVE LAW – Review of decision of delegate of Minister not to provide Applicant with evidence of Australian citizenship – whether delegate asked the wrong question or misapplied the law.

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
Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth), ss.140, 351

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74

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
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Hudson v Sigalla (No 3) [2016] FCCA 2140
Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation (1991) 22 ATR 148
Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263; [2016] FCA 959
Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66
Orison Pty Ltd v Strategic Minerals Corporation NL; Cross & Ors v Devenish-Meares & Ors (1988) 81 ALR 183; [1988] FCA 274
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2528
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Justice Barnes considered an application by Kim (whose name was subsequently amended to Haram Kim) seeking review of a decision by a delegate of the Minister for Home Affairs. The dispute concerned the delegate's refusal to provide the applicant with evidence of Australian citizenship, a decision the applicant challenged on grounds of administrative error.

The central legal issues before the Court were whether the delegate had asked the wrong question or misapplied the relevant law in assessing the applicant's claim to citizenship. Specifically, the Court was required to determine whether the applicant had been ordinarily resident in Australia throughout the ten years following his birth, as stipulated by the *Australian Citizenship Act 2007* (Cth), taking into account any absences from Australia.

Justice Barnes reasoned that the applicant had not established that he was ordinarily resident in Australia for the requisite ten-year period. The Court applied the principles governing the determination of ordinary residence under the *Australian Citizenship Act 2007* (Cth), which requires a factual assessment of the applicant's habitual place of abode. Having found that the applicant failed to meet this criterion, the Court concluded that the delegate's decision was not vitiated by error.

Consequently, the Court ordered that the applicant's name be amended to Haram Kim and dismissed the application.

Orders

Orders of the court

ORDERS

1. The name of the Applicant be amended to read “Haram Kim”.

2. The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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