Kim v Minister for Immigration and Border Protection

Case [2016] FCA 959

FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration and Border Protection [2016] FCA 959

File number: NSD 1033 of 2014
Judge: GLEESON J
Date of judgment: 16 August 2016
Catchwords:

MIGRATION – request for declaration that applicant is an Australian citizen – whether applicant has become citizen by virtue of being “ordinarily resident” in Australia throughout first ten years of his life within the meaning of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”) – meaning of “ordinarily resident” in the Citizenship Act – declaration that applicant is an Australian citizen

ADMINISTRATIVE LAW – delegate of Minister for Immigration and Border Protection cancelled notice

PRACTICE AND PROCEDURE – application for relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth)

Legislation:

Australian Citizenship Act 2007 (Cth)

Judiciary Act 1903 (Cth)

Bankruptcy Act 1966 (Cth)

Migration Act 1958 (Cth)

Nationality and Citizenship Act 1948 (Cth)

Income Tax Act 1976 (NZ)

Migration Regulations 1994 (Cth)

Cases cited:

Geothermal Energy NZ Ltd v Inland Revenue Commissioner [1979] 2 NZLR 324

Lee v Minister for Immigration and Citizenship [2011] FCA 1458; (2011) 199 FCR 336

Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194

Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251

Macquarie Dictionary Online

Halsbury’s Laws of England (5th ed. as at 15 August 2016) Vol 37 (2013) at [117]
Date of hearing: 19 July 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 144
Counsel for the Applicant: Mr S Lloyd SC with Mr B Mostafa
Solicitor for the Applicant: Fragomen
Counsel for the Respondents: Mr GR Kennett SC with Mr MJ Smith
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 1033 of 2014
BETWEEN:

SHAUN GUNN YOUNG KIM

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

HEATHER PEHALINGON IN HER CAPACITY AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

16 AUGUST 2016

THE COURT  DECLARES THAT:
The applicant is an Australian citizen by reason of the operation of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth). 

THE COURT ORDERS THAT:

1.The parties are granted liberty to apply within seven days for further orders to give effect to the Court’s reasons.

2.The first respondent pay the applicant’s costs of the proceeding.

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


REASONS FOR JUDGMENT

GLEESON J:

  1. The applicant seeks a declaration that he is an Australian citizen by virtue of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) (“Citizenship Act”). Additionally, he seeks relief in respect of a decision, made on or about 11 September 2014 by the second respondent, to cancel a notice, given to the applicant by a delegate of the first respondent on 19 January 2012, stating that he is an Australian citizen.

  2. Section 12(1) of the Citizenship Act provides:

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Details
AGLC
Kim v Minister for Immigration and Border Protection [2016] FCA 959
Case
[2016] FCA 959
Decision Date

CaseChat Overview and Summary

The case of Kim v Minister for Immigration and Border Protection involved the applicant, born in Australia, seeking a declaration that he is an Australian citizen by virtue of being "ordinarily resident" in Australia throughout the first ten years of his life. The legal dispute centred on the interpretation of "ordinarily resident" under section 12(1)(b) of the Australian Citizenship Act 2007 (Cth) and whether the applicant satisfied this criterion during his time in South Korea with his parents. The matter was heard in the Federal Court of Australia.

The central legal issue was whether the applicant was "ordinarily resident in Australia throughout the period of 10 years beginning on" his birth date, considering the temporary absence from Australia for medical reasons. The court needed to determine if the applicant met the definition of "ordinarily resident," which allows for some absences, based on the nature and extent of those absences and the intention of the applicant or his parents to return to Australia.

The court examined the evidence and circumstances of the applicant's time in South Korea, finding that the parents' intention to return to Australia was clear and consistent. The parents left their possessions in Australia, maintained contact with friends and the Church, and did not establish a home in South Korea. The court concluded that the parents' actions and intentions demonstrated that the applicant was "ordinarily resident in Australia" during the period of absence, satisfying the requirements of the Citizenship Act. The court found the applicant met the criterion of being "ordinarily resident" throughout the first ten years of his life.

The court ordered that the parties be granted liberty to apply within seven days for further orders to give effect to the Court's reasons and that the first respondent pay the applicant's costs of the proceeding.

Orders

Orders of the court

1. The parties are granted liberty to apply within seven days for further orders to give effect to the Court’s reasons.

2. The first respondent pay the applicant’s costs of the proceeding.

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

Background

Background to the litigation

Mr Kennett SC submitted that in order to satisfy the requirement of “ordinarily resident … throughout” the relevant period, the applicant must show that he was “ordinarily resident in Australia” on every single day of the period. Mr Lloyd SC did not disagree with this proposition, but submitted that the question should be considered by looking back over the relevant 10 year period from the date that it ended.FACTSApplicant’s parents The applicant’s father is Jong Jin Kim (“father”) born on 25 January 1966 in the Republic of Korea (“South Korea”). The applicant’s mother is Mi Ja Shin (“mother”) born on 23 January 1968 in South Korea. At all relevant times, when in Australia, the applicant’s parents have been lawful non-citizens.Prior to the applicant’s birth The father first arrived in Australia on 23 April 1992. In the 23 year period since that date, the father has spent more than 18.5 years in Australia. After his initial arrival in Australia on 23 April 1992 on a subclass 660 visitor visa, on 19 May 1992 the father was granted a subclass 676 Tourist (Short Stay) visa valid until 22 July 1992. On 17 July 1992 the father was granted a subclass 680 visitor visa valid until 22 October 1992. The father left Australia on 3 September 1992. On 14 July 1995, the father was granted a subclass 676 Tourist (Short Stay) visa valid until 14 July 1996 to enter Australia and remain for up to three months from each date of arrival. As the holder of that visa, he entered Australia on 17 July 1995 and departed on 14 August 1995; and again entered Australia on 15 October 1995. On 15 January 1996, whilst in Australia, the father applied for a subclass 414 Specialist visa to work for Pacific Traveland Pty Ltd. Pending determination of that application, the father was granted a subclass 010 Bridging visa A. On 11 April 1996, the father was granted a subclass 414 visa valid until 25 April 1998, which permitted him to work in Australia. The father’s sister, Jong Ran Ko (“Jong Ran”) arrived in Australia in or around April 1997 and became an Australian citizen in 2006. Another sister, Jong Eui An (“Jong Eui”) first entered Australia in 1992 and became an Australian citizen in 1996. The mother’s friend, Ae Kyung Yim (“Ae Kyung”), arrived in Australia in or around February 1997 and has been an Australian citizen since 2004. In November 1997, the father purchased an apartment in Pyrmont, Sydney and started residing there. In 1998, he commenced attending the Macquarie Baptist Church, Macquarie Park (“Church”) and became involved with the Church’s youth group and worship team. On about 23 April 1998, the father applied for a subclass 457 Business (Long Stay) visa (“subclass 457 visa”). Pending the determination of that visa application, he was granted a bridging visa. On about 30 May 1998, the father leased the Pyrmont apartment to a tenant and moved in with his sister, Jong Eui. On 12 February 1999, whilst in Australia, the father was granted a subclass 457 visa with effect until 12 February 2003.

Evidence

Evidence Before The Court

Section 37 of the Citizenship Act provides relevantly:Evidence of Australian citizenship (1)A person may make an application to the Minister for evidence of the person's Australian citizenship. Notice (2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time. …Evidentiary status (5) A notice is prima facie evidence of the matters in the notice. Cancellation (6)The Minister may, by writing, cancel a notice given to a person under this section. The applicant was born in Australia on 29 December 2001 and spent the first 10 years of his life in Australia, except for the period of approximately 13 months between 5 November 2003 and 3 December 2004 when the applicant was in the Republic of Korea (“South Korea”) with his parents and his younger brother. Neither of his parents was an Australian citizen, or a permanent resident, at the time of the applicant’s birth and, accordingly, the applicant did not fall within s 12(1)(a) of the Citizenship Act. The Minister accepts that the applicant was “ordinarily resident in Australia throughout” the periods between his birth and 5 November 2003, and between 4 December 2004 and 29 December 2011(being his tenth birthday), on the basis that the applicant had his home in Australia throughout those periods. Ultimately, the Minister did not dispute the evidence presented by the applicant about the first 10 years of his life. In particular, the Minister accepted that the applicant’s parents intended (in the sense of hoped or desired) to return to Australia from South Korea while they were away from Australia in 2003 and 2004. The Minister also accepted that the parents’ conduct prior to their departure from Australia in November 2003, and while in South Korea, was consistent with that desire. The issue between the parties was whether that evidence demonstrates that the applicant was “ordinarily resident in Australia throughout the period of 10 years beginning on” 29 December 2001. The applicant contended that he satisfied both limbs of the definition of “ordinarily resident” throughout the first 10 years of his life, although he only needed to satisfy one limb in order to succeed in his case. The Minister argued that, between 6 November 2003 and 3 December 2004 (or at least until 1 October 2014, when the applicant was granted a visa that allowed him to return to Australia), the applicant did not satisfy either limb of the definition.LAW The matter is within the original jurisdiction of the Court by reason of s 39B(1A)(c) of the Judiciary Act 1903 (Cth).Ordinarily resident 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 basis of the evidence before the Court: Lee v Minister for Immigration and Citizenship [2011] FCA 1458; (2011) 199 FCR 336 (“Lee”) at [89]-[90]. In Lee, the applicant sought a declaration that he was an Australian citizen, relying on s 12(1)(b) of the Citizenship Act. In considering the meaning of s 12(1)(b), Foster J stated the following propositions, which were accepted by both parties in this case:(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]).

Decision

Reasons for decision

On 29 September 2003, the mother took the applicant and his brother to see Dr John Won (“Dr Won”) for a second opinion regarding the brother and also for a consultation regarding the applicant who then had a cough, fever and runny nose. At this time Dr Won said words to the following effect to the mother regarding the brother: “It’s likely that Amor has the same condition as Shaun, he should undertake a MCU …”Decision to travel to South Korea for brother’s surgery: October 2003 A report in relation to a micturating cysto-urethrogram undertaken by the brother, dated 9 October 2003, recorded a finding of “[b]ilateral vesco-ureteric reflux (grade 4 on the left and grade 3 on the right)”. On about 13 October 2003, the parents saw Dr Won, who advised them that the brother required surgery, as well as a DMSA renal scan to determine the required Keflex dose. Dr Won told them that the surgery would be expensive, and probably more than the costs of the caesarean the mother had at the brother’s birth. The parents decided to return to South Korea to obtain medical surgery for the brother. The basis of that decision included the parents’ beliefs that:(1)the brother’s condition was severe and, without surgery, he could lose his kidneys;(2)the parents could not afford the surgery in Australia as they were ineligible for Medicare;(3)they could afford the surgery in South Korea as they still had coverage under the Korean National Healthcare Scheme. At this time, the parents both considered that their home (and the home of their two children) was Australia. The parents’ intention was to return to Australia, and resume residence in Australia, in early 2004 or as soon as the brother’s health improved. Their intention was to reside in South Korea only temporarily. The parents decided to leave their possessions with family and friends to hold for them until their return to Australia. Thereafter, they had conversations with the father’s sisters and the wife’s friend, Ae Kyung, who agreed to take care of their possessions while the applicant, his parents and his brother were in South Korea. In those conversations, the parents expressed their intention to return to Australia as soon as possible. Jong Ran understood that she was being asked to keep the possessions safe for a short period until her brother (the father), his wife and his two boys returned to Australia. On 15 October 2003, a report was issued in relation to a renal dimercaptosuccinic acid scan undertaken by the brother which showed that he likely had scarring at the lower pole of his right kidney laterally. On around 21 October 2003, the father spoke with his sister, Jong Eui, about what to do with his car while he was away. The father accepted his sister’s offer to see if her husband’s friend, Ki Seong Kim (“Ki Seong”), who owned a radiator shop, could look after it. Subsequently, Ki Seong agreed to use the car while the father was away. The basis of the agreement was that the father would be away for a few months, that Ki Seong would make the loan repayments on the car, and that the registration and insurance details would be changed to Ki Seong’s name.

Ratio Decidendi

Legal Principle Established

On 7 March 2011, the parents registered a business name “Cociana Cleaning”. In July 2011, they started trading as Cociana Cleaning.CONSIDERATION The evidence demonstrates that:(1)The applicant, his parents and brother left Australia in November 2003 to obtain medical treatment for the brother, which they did not consider they could afford in Australia. The purpose of travelling to South Korea was a special purpose, and not a purpose of taking up residency in South Korea or a purpose of leaving Australia permanently;(2)Having decided to leave Australia to obtain that medical treatment, the parents consistently expressed their desire to return to Australia and to resume living in Australia, as soon as possible having regard to the brother’s medical condition;(3)The parents left a substantial volume of possessions in Australia, which were stored by the father’s sisters and the mother’s friends, to await their planned return to Australia;(4)The parents maintained a mailing address in Australia, being the address of Jong Eui;(5)The parents also maintained contact with friends and the Church in Australia while they were in South Korea;(6)The parents did not establish a home in South Korea during the period between November 2003 and December 2004, but stayed with relatives; (7)The father did not have permanent employment in South Korea. In May or June 2004, the father commenced taking steps to secure employment in Australia;(8)There is no suggestion that the mother had permanent employment in South Korea. At the time, she had two small children for whom she provided care. She also had a role in providing care for her mother-in-law;(9)Once the purpose of the brother’s medical treatment had been satisfied, the parents’ plans to return to Australia were delayed by the need to provide care for the grandmother;(10)The applicant, his parents and brother returned to Australia promptly after a nursing home was found for the grandmother. They found accommodation, collected their possessions, recommenced their activities at the Church and generally resumed the life that they had been living prior to November 2003. This included sending the applicant to pre-school and, in due course, to school. During the period from the applicant’s birth, the applicant’s parents held a series of temporary visas. As Mr Kennett SC put it, when they left Australia in November 2003, they were not leaving behind a particularly settled existence. However, with the sole exception of the cancellation of the mother’s visa on 4 October 2004, there is no evidence that the parents were unable to obtain visas to enter Australia on any of the numerous occasions that they sought a visa. Concerning visas allowing them to enter Australia during the period 6 November 2003 to 3 December 2004:(a)the father did not have a visa between 8 April 2004 and 3 October 2004, a period of about six months;(b)the mother did not have a visa between 6 November 2003 and 30 November 2004 (except between 2 and 4 October 2004), a period of about 13 months;(c)the applicant and his brother did not have visas between 6 November 2003 and 1 October 2004, a period of about 11 months.