Kim v Minister for Immigration and Border Protection
[2016] FCA 959
•16 August 2016
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:
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.
Section 12(1) of the Citizenship Act provides:
Citizenship by birth
(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.
Section 3 of the Citizenship Act defines “ordinarily resident” 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 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]).
In Lee, Foster J did not give separate consideration to what is required to demonstrate that a person “has his or her home in” a particular country. At [98], Foster J stated that a person’s “permanent abode is the place where he or she regularly or customarily lives”. Foster J relied, for this statement on the decision in Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194, which concerned the meaning of “ordinarily resident” in the Bankruptcy Act 1966 (Cth).
The Macquarie Dictionary Online defines “home” to mean, relevantly:
noun1. a house, or other shelter that is the fixed residence of a person, a family, or a household.
2. a place of one’s domestic affections.
….
5. the place or region where something is native or most common.
6. any place of existence or refuge: a heavenly home.
7. one’s native place or own country.
The Macquarie Dictionary Online defines “abode” to mean:
noun 1. a dwelling place; a habitation.
2. continuance in a place; sojourn; stay.
and “permanent”, relevantly to mean:
adjective1. lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding.
In Geothermal Energy NZ Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324 at 341, in the context of the Income Tax Act 1976 (NZ), the Supreme Court found the word “home” to have the following broad meaning:
“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 …
Senior counsel for the applicant, Mr Lloyd SC, submitted that “permanent abode” has the meaning given by Foster J in Lee. It requires the identification of an habitual living place. Mr Lloyd SC submitted that “home” overlaps to some degree with “permanent abode” but includes an aspect of a person’s sense of belonging to a place, so that the notion of intention is important to the concept of a “home”.
The Minister did not dispute the correctness of Foster J’s proposition but submitted that it was not sufficient to identify the country of a person’s “permanent abode”.
The parties eschewed the suggestion that it is necessary for a person to have a dwelling place in Australia for that person to have “his or her home in” Australia, or that it was necessary to have a dwelling place in Australia for Australia to be the country of a person’s “permanent abode”.
Senior counsel for the Minister, Mr Kennett SC, submitted that it is difficult to draw a distinction between the two limbs of the Citizenship Act’s definition of “ordinarily resident”. He noted that the second limb contains a requirement of permanency in the words “permanent abode” and that the express reference in the second limb to temporary absences says something about the kinds of absences that are consistent with having a “home”. The written submissions on behalf of the Minister contended that “it is difficult to see how Australia can be said to be a person’s country of ‘permanent abode’ if his or her permission to remain in Australia is only temporary in nature”.
Mr Kennett SC also contended that the word “home” carries a notion of physical presence, either a current presence or a past and future presence.
Mr Kennett SC accepted that a temporary absence from a country is not necessarily inconsistent with a person having his or her home in the country, although the absence must be of a duration and for a purpose and in circumstances which are not inconsistent with a conclusion that the person has his or her home in the country.
Mr Kennett SC accepted that a person may be able to demonstrate that a person could have “his or her home in” Australia without permission to remain in Australia permanently. That proposition is reflected in the Minister’s concession that the applicant was ordinarily resident in Australia throughout the first 10 years of his life, apart from his time in South Korea.
However, Mr Kennett SC argued that, if outside Australia, a person who has his or her home in Australia must have the intention to return and the capacity to carry out that intention. For most non-citizens, that means having either a visa to return to Australia or a confident expectation of obtaining a visa. Thus, the absence of a visa is very important to the question of a person’s capacity to call Australia home.
Mr Kennett SC did not dispute the legal proposition that the power to grant a visa under s 65 of the Migration Act 1958 (Cth) (“Migration Act”) is not at large: the Minister must grant a visa if he is satisfied that the criteria for its grant are met: Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251 at [25].
Mr Lloyd SC observed that, where s 12(1)(a) covers the case of a person having a parent who is a “permanent resident”, s 12(1)(b) is necessarily addressed to the case of a person born in Australia to parents neither of whom is an Australian citizen or permanent resident. Section 5 of the Citizenship Act defines “permanent resident” to include, among other people, a person present in Australia and holding a “permanent visa”. Section 3 of that Act provides that “permanent visa” has the same meaning as in the Migration Act. At all relevant times, s 30(1) of the Migration Act provided that “a visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely”. This is in contrast to a temporary visa (Migration Act s 30(2)).
It follows that s 12(1)(b) 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.
In support of this construction, Mr Lloyd SC referred to the Nationality and Citizenship Act 1948 (Cth) (“1948 Act”), which preceded the Citizenship Act. Section 10 of that Act provided that a person born in Australia was an Australian citizen by birth, except if, at the time of the person’s birth:
(a)his father was not an Australian citizen and possessed the immunity from suit and legal process which is accorded to an envoy of a foreign country accredited to His Majesty; or
(b)his father was an enemy alien and the birth occurred in a place then under occupation by the enemy.
Thus, under the 1948 Act, it was not necessary to satisfy a test of ordinary residency in order to obtain citizenship by birth. Nor was it necessary to have permission to reside in Australia.
The concept of “ordinarily resident” was used in the 1948 Act in other contexts. Section 5(3) of that Act provided that a person shall be deemed to be ordinarily resident in a country if:
(i)he has his home in that country; or
(ii)that country is the country of his permanent abode notwithstanding that he is temporarily absent therefrom,
but he shall be deemed not to be so resident if he resides in that country for a special or temporary purpose only.
The definition of “ordinarily resident” in the Citizenship Act is narrower than this definition. In particular, it uses the words “if and only if”. The language of “notwithstanding” in the 1948 Act indicates that the second limb of the definition in that Act was directed to a case when a person was absent from the country of which he was deemed to be ordinarily absent. The language of “even if” in the definition of “ordinarily resident” in the Citizenship Act creates the possibility that the second limb may apply when considering the position of a person present in the country in which he is taken to be “ordinarily resident”.
I accept Mr Lloyd SC’s submission that s 12(1)(b) is not concerned with permission to reside in Australia. That proposition is supported by the absence of express reference to that matter, in contrast to the reference to “permanent resident” in s 12(1)(a). It is further supported by the absence of express reference to that matter in the definition of “ordinarily resident”. It is fortified by the legislative history which shows that, in the Citizenship Act, the legislature chose to move, from a broad test for citizenship by birth subject to limited exceptions, to a test that is based on parental status at birth or ordinary residency rather than a test that based on some other question or questions of status. It is also fortified by the contrast between the definition of “ordinarily resident” in the Citizenship Act and the common law meaning of “resident”, by which a person may reside on premises as a guest, or as a trespasser or otherwise unlawfully: Halsbury’s Laws of England (5th ed. as at 15 August 2016) Vol 37 (2013) at [117].
Even so, I also accept that 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.
Mr Lloyd SC also submitted that, once it is accepted that a person has his or her home in a particular country, it is necessary to consider whether facts or circumstances caused that position to change. I accept that submission. Once it is accepted that temporary absences, such a holiday, would be unlikely to affect the facts concerning the location of a home, 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.
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.
FACTS
Applicant’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.
In early 1999, the father sold the Pyrmont apartment. Around this time, he moved to live with Jong Ran at her home in Dural.
The mother first arrived in Australia on 31 January 2001 on a subclass 976 Electronic Transfer Authority (Visitor) visa valid until 3 July 2001.
The applicant’s parents became engaged in Australia in February 2001. Around that time, the father introduced the mother to the reverend at the Church, Reverend Stephen Hyong Choi (“Reverend Choi”). The mother also first met Ae Kyung around this time, through the father.
Around the time of his engagement, the father rented an apartment in Campsie, Sydney and started residing there. On 10 February 2001, the mother returned to South Korea to plan her wedding and the father joined her there on 8 March 2001.
The applicant’s parents married in South Korea in March 2001. On 3 April 2001, they returned to Australia and started residing at the Campsie apartment. On 8 April 2001, they held a wedding reception at the Novotel Hotel, Homebush. Approximately 200 friends and relatives attended the reception.
In around late April 2001, the mother started attending the Church, and joined the Church’s women’s prayer group and women’s association.
On 3 July 2001, the mother applied for a subclass 457 visa as a dependent of the father. In connection with that application she was granted a subclass 010 Bridging A visa. As part of the subclass 457 visa application, the mother was required to undergo a chest x-ray examination. As she was pregnant with the applicant, the mother decided to wait until after the applicant’s birth before having the x-ray examination.
During the pregnancy, the mother was informed that the applicant was having problems with the development of his kidneys.
In August 2001, the applicant’s parents moved to rented accommodation at Epping. In November 2001, the father purchased a car for about $29,000.
Applicant’s birth: December 2001
On 29 December 2001 the applicant was born at Ryde Hospital, Eastwood, NSW.
At all times when in Australia, until he turned 10 years old, the applicant was a lawful noncitizen.
By operation of s 78(2) of the Migration Act, the applicant was taken to be granted, at the time of his birth:
(1)a subclass 457 visa, with effect until 12 February 2003, due to his father then holding a subclass 457 visa; and
(2)a subclass 010 Bridging A visa, due to his mother then holding a subclass 010 Bridging A visa.
The applicant was born with bilateral hydronephrosis. On 25 February 2002, the applicant was diagnosed with bilateral grade 5 vesicoureteric reflux and commenced taking Keflux, an oral antibiotic medication, to manage his condition.
Dr Il Song Lee (“Dr Lee”) commenced treating the applicant shortly after his birth, and has been treating him (when in Australia) since that time. He gave the applicant fortnightly prescriptions for Keflux, and when he was told by the applicant’s mother that the family was going to Korea for medical treatment, Dr Lee issued a Keflux prescription to cover the period between their arrival in Korea and seeing a doctor there.
On 20 March 2002, the mother was granted a subclass 457 visa as a dependent of the father with effect until 12 February 2003. By then, she had completed the required chest x-ray examination.
A medical report dated 22 April 2002 regarding the applicant which recorded “findings … consistent with acute pyelonephritis or … reflux nephropathy” and suggested a Micturating Cysto-Urethrogram (“MCU”) “for further evaluation”.
A medical report dated 6 August 2002 regarding a Renal Dimercaptosuccinic Acid (“DMSA”) scan undergone by the applicant showed findings “consistent with either pyelonephritis or scarring”, and a further scan was recommended in 12 months.
On 21 January 2003, Dr Ralph Cohen (“Dr Cohen”), a specialist in paediatric general and urological surgery, issued a letter regarding medical treatment required by the applicant.
On 11 February 2003, the applicant attended an office of the Department with his parents. An officer of the Department recorded the grant of a subclass 457 visa to the applicant (with effect until 12 February 2003).
On 11 February 2003, the applicant and his mother applied for a subclass 686 Tourist (Long Stay) visa (“subclass 686 visa”). The applicant and his mother were both granted subclass 010 Bridging A visas on the same day in respect of that substantive subclass 686 visa application.
On 12 February 2003, the father’s subclass 457 visa ceased and the subclass 010 Bridging A visa came into effect. On 17 February 2003, the father was granted a subclass 686 visa valid until 12 May 2003.
Applicant’s brother’s birth: March 2003
On 27 March 2003, the applicant’s brother, Amor Jae Young Kim (being the applicant’s only sibling) (“brother”), was born at Sydney Adventist Hospital, Wahroonga, New South Wales.
At all times when in Australia, until he turned 10 years old, the brother was a lawful non-citizen. Save for the period between 6 November 2003 and 3 December 2004 the brother has lived in Australia throughout his life.
By operation of s 78(2) of the Migration Act, the brother was taken to be granted, at the time of his birth, a subclass 686 visa due to his father then holding a subclass 686 visa which was in effect until 12 May 2003 and a subclass 010 Bridging A visa due to his mother then holding a subclass 010 visa in respect of her application for a substantive subclass 686 visa.
The brother was born with bilateral hydronephrosis and bilateral vesicoureteric reflux.
On 6 May 2003, the father was granted a further subclass 686 visa valid until 15 August 2003. On 19 July 2003, the father departed Australia, returning on 26 September 2003 on a subclass 976 Electronic Travel Authority visa granted on 24 September 2003 and valid until 7 April 2004.
Between 16 August 2003 and 23 September 2003, whilst the applicant was in Australia, the applicant’s father was in South Korea without a visa allowing his entry to Australia.
In around late September 2003, the mother took the applicant to obtain his fortnightly prescription for Keflex and the brother to get his six month vaccination from Dr Lee. At that time Dr Lee and the mother had a conversation to the following effect:
[The mother] said: Amor is not drinking or eating more than 20 millilitres a day.
[Dr Lee] said: Just keep a watch on his progress but don’t worry too much.
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.
The car was damaged in an accident on 29 October 2003. Ki Seong agreed to collect the car from a repair shop near Greenacre when it was repaired. In about December 2003, Ki Seong changed the registration and insurance of the car into his name.
On 1 November 2003, the father took various possessions to the homes of Ae Kyung and his sisters for safe keeping. The possessions included whitegoods and electrical appliances, kitchen equipment, furniture, clothes, photo albums and frames and other paperwork.
The father also changed the family’s mailing address to the address of Jong Eui. He arranged mail redirection for three months and updated their mailing address with Westpac and ANZ banks to be the address of Jong Eui.
On 5 November 2003, the applicant along with his father, mother and brother departed Australia.
Between about 13 October 2003 and 5 November 2003, the parents repeatedly expressed their intention to return to Australia as soon as possible after the brother’s intended surgery.
Stay in South Korea: November 2003 to December 2004
Between 6 November 2003 and 1 October 2004, the applicant was in South Korea without a visa allowing him to enter Australia. For the same period, neither the mother nor the brother held a visa allowing them to enter Australia.
Upon their arrival in South Korea, the applicant, his parents and brother stayed at the home of the applicant’s maternal grandmother, the applicant’s uncle and the uncle’s family.
In mid-November 2003, the mother took the applicant and his brother to a local doctor to obtain medical prescriptions required by them.
In early December 2003, the father commenced temporary casual work for Boomerang Travel in Seoul, South Korea. The father secured this role with the assistance of his brother, and worked an average of 14 hours per week for that business.
On 23 December 2003, the mother took the applicant and his brother to see Dr Jieun Lee at Inha University Hospital (“hospital”). Between 5 January and 14 February 2004, the brother received treatment at the hospital, including surgery. Between 29 January and 9 February 2004, the applicant also received treatment at the same hospital. He was admitted to recurrent urinary tract infection. No surgery was required as oral medication was effective.
In March 2004, the mother telephoned Dr Lee in Australia and spoke with him about the brother’s surgery. She expressed her intention to return to Australia once the brother had completely recovered.
On 7 April 2004, the father’s subclass 976 visa ceased. Between 8 April 2004 and 3 October 2004 the applicant’s father did not hold a visa allowing him to enter Australia.
On or about 9 April 2004, at an appointment at the hospital, the applicant and his brother were advised that they had sufficiently recovered so as to be able to be cared for by a private doctor.
On 19 April 2004, the applicant, his parents and brother moved to the home of the applicant’s paternal grandmother, Hyo Woo Lee (“grandmother”). The grandmother was suffering from a severe condition of diabetes, which restricted her mobility. She needed general day-to-day care around the house and there were no other family members able to look after her. The parents moved to the grandmother’s home to look after her as there were no other care options available at the time. The need to care for the grandmother delayed the parents’ plans to return to Australia.
Around this time, the father ceased working for Boomerang Travel as the mother found it difficult to look after the grandmother at the same time as the applicant and his brother. The father had conversations with friends and with Reverend Choi, explaining that his return to Australia was being delayed by the need to care for his mother.
The mother also spoke with Reverend Choi’s wife by telephone. She explained that they wanted to return to Australia quickly but that the grandmother was unwell. The mother also spoke with her friend, Ae Kyung, by telephone, explaining that her plan to return to Australia was getting delayed by the need to care for the grandmother. Mrs Choi gave evidence that she and the mother “kept in regular contact while [the mother] was away from Australia”.
In May 2004, the mother telephoned Dr Lee in Australia again, saying that they would return to Australia as soon as the grandmother recovered.
In about May or June 2004, the father spoke with Jon Eui’s husband, Gabriel, about a potential job in Australia, working as a tour guide for Premier World Pty Ltd (“Premier World”). The father spoke with Sung Moon An of Premier World who said that the father had been recommended by Gabriel and that he (Sung Moon) trusted Gabriel’s judgment.
In or around July 2004, Jong Eui and Gabriel visited South Korea for two or three weeks to see the grandmother. The father and Jong Eui discussed care arrangements for their mother, and the father expressed his wish to return to Australia as soon as possible. Jong Eui said that she thought they would have to look at placing their mother in a nursing home.
On 5 August 2004, the grandmother was admitted to hospital. She remained hospitalised for 49 days during which she had her left toe, and then her left leg from the knee below, amputated. While she was in hospital, the father attended to her needs, performing tasks such as assisting with feeding and showering. The evidence was that, in South Korea, it is common for family members to perform tasks such as these even though the person being cared for is in hospital.
In or around September 2004, Jong Ran visited South Korea for two or three weeks to see the grandmother. During that time, the father had a discussion with Jong Ran and their brother, Jong Myung Kim, which was similar to the July 2004 conversation with Jong Eui about their mother’s care arrangements.
In early September 2004, the mother began to prepare to return to Australia. She sent 10 boxes of possessions to Jong Eui’s house in Epping.
In around mid-September 2004, the father also began to take steps to return to Australia. He telephoned Ki Seong and told him that he and his family would be returning to Australia shortly and would no longer require the car. Ki Seong agreed to keep the car and to continue to meet the remaining car loan repayments.
On 22 September 2004, the grandmother was discharged from hospital and, on 23 September 2004, she moved to a nursing home and the applicant, his parents and brother returned to the maternal grandmother’s home.
On 30 September 2004, Premier World lodged a subclass 457 nomination application to sponsor the father to work for them in Australia. The father also lodged an associated visa application for a subclass 457 visa for himself and for each of the mother, the applicant and the brother as a dependent of his father.
That day, the mother telephoned her friend, Ae Kyung, to say that she would be coming back to Australia soon. She also telephoned Reverend Choi and his wife and said “we will be home soon”.
On 2 October 2004, the father rang a friend who ran a travel agency and asked him to arrange airline tickets and visas to return to Australia.
The Minister agreed that the applicant and his brother held visas which would have allowed him to enter Australia between 2 October 2004 and 30 November 2004. The mother was also granted a subclass 976 Electronic Travel Authority (Visitor) visa.
On about 4 October 2004, the father was granted a subclass 976 Electronic Travel Authority (Visitor) visa. The applicant, his parents and his brother attended Incheon Airport to fly to Sydney that day. At the airport, a Korean Airlines staff member informed the mother that her visa was cancelled because she had a “pending health clearance”. As a result, the applicant, his parents and his brother returned to the maternal grandmother’s home.
Between 5 October 2004 and 29 November 2004, the applicant’s mother did not hold a visa allowing her to enter Australia.
On 5 October 2004, the applicant, his parents and his brother moved to the home of the mother’s sister where they stayed until they departed South Korea on 4 December 2004.
On 14 October 2004, the father entered Australia, returning to South Korea on 21 November 2004. During his stay in Australia, the father resided at the home of Jong Eui and looked for a home for his family.
On about 19 October 2004, the mother had a health examination for the purpose of obtaining an Australian visa.
On 10 November 2004, the father obtained a “Certificate III in Tourism (Guiding)” from the Career Training Institute of Australia, in preparation for his employment with Premier World.
On 30 November 2004, the applicant, his parents and his brother were granted subclass 457 visas valid until 30 November 2006.
Return to Australia: December 2004 to December 2011
The applicant returned to Australia with his parents and brother on 4 December 2004. On arrival, they stayed at the home of Jong Eui for about one week.
Shortly after, the father started working as a tour guide with Premier World.
On 10 December 2004, the applicant, his parents and his brother moved to rented accommodation in Eastwood. On 11 December 2004, they collected their possessions which had been kept by Jong Eui, Jong Ran and Ae Kyung.
Thereafter, the Minister accepts that the applicant had his home in Australia throughout the remainder of the first 10 years of his life. Accordingly, it is unnecessary to set out in detail the facts which demonstrate this to be true. Broadly speaking, the applicant lived with his parents and brother in various homes in Eastwood and Epping; he attended preschool at the KU Eastwood Preschool and primary school at St Therese Catholic Primary School in Denistone.
The family has had various subclass 457 visas which have permitted the father to work in Australia. In August 2009, the family were granted subclass 573 Higher Education Sector visas, valid until 5 September 2013.
Dr Lee continued to treat the applicant and his brother, seeing them every couple of months. In around December 2004, he referred them to a nephrologist and to the Royal North Shore Hospital reflux clinic.
After returning to Australia, the applicant and his brother also saw doctors whom they had seen in the past, including Dr Cohen and Dr Won.
The family recommenced their activities with the Church. In 2007, the parents became deacons of the Church.
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.
Based on the evidence that the father had been able to obtain visas to enter Australia on many occasions before 5 November 2003, and in the absence of any evidence to the contrary, in my view, it is probable that he could have obtained visas to enter Australia at any time during the period 8 April 2004 and 3 October 2004, had he sought a visa. The same applies to the applicant and his brother.
Although the mother had her visa cancelled on 4 October 2004, there is no evidence that she could not have obtained a visa to enter Australia at any time during the period between 5 November 2003 and 1 October 2004 provided that she underwent the required health examination. The same applies to the period between 4 October 2004 and 30 November 2004.
Accepting that the permanency of the applicant’s home in Australia, from the time of his birth, was affected by his visa status, in my view, that home was reasonably well established. The applicant was a member of a family with a significant family and social network in Australia, with connections to a church as well as medical service providers, made necessary because the medical problems suffered by both the applicant and his brother from birth. His parents did not travel frequently outside Australia: after returning to Australia in April 2001 following her marriage to the father, the mother remained in Australia until 5 November 2003. In the period from 17 July 1995 until 4 November 2003, the father had spent a total of less than seven months (spread over four trips) outside Australia. Although the applicant’s parents did not own real property in Australia, that is not unusual and they owned significant possessions which were stored for their intended return to Australia.
In my view, the applicant did not cease to have his home in Australia when he left the country on 5 November 2003. Rather, he departed Australia for a special and temporary purpose which arose from the exigencies of his family’s situation, and on the basis of his parents’ firm intention to return to Australia without delay and as soon as possible. If it is necessary to consider the position on a day by day basis, the available evidence demonstrates that the position did not change materially from the date of the applicant’s departure until the date of his return.
It is true that the parents’ intention could have been thwarted by an inability to obtain the requisite visas but there is no evidence that this was a significant risk.
In particular, the applicant’s position did not materially change when his family’s plans were delayed by the need to care for his grandmother. While I accept that 13 months is a significant absence from Australia, I do not consider that duration to have caused the applicant to cease to have his home in Australia when the reason for the absence was, in substance, to enable his parents to attend to the care of his brother and his grandmother. A temporary change to living arrangements in order to attend to the care of other family members is not the kind of matter that would ordinarily indicate that a person has moved or given up their home, particularly when it is accompanied by an intention to resume the previous arrangements.
I also do not accept that the applicant’s lack of a visa (or his parents or brother’s lack of a visa) for periods while they were in South Korea materially affected his position because that situation substantially (or entirely, except in the case of the mother) reflected the absence of any need for a visa because of the supervening needs of the brother and the grandmother.
Accordingly, I am satisfied that the applicant was ordinarily resident in Australia throughout the period of 10 years beginning on the day that he was born, because he had his home in Australia throughout that period. For the same reasons, I am satisfied that the country of the applicant’s permanent abode was Australia while he was in South Korea, because throughout that period, Australia remained the country where he regularly or customarily lived.
RELIEF
Declaratory relief
Mr Kennett SC accepted that declaratory relief may be appropriate if s 12(1)(b) applies in this case. In my view, it is appropriate to make the declaratory relief sought.
Other relief: writ of certiorari
It follows, from the conclusion that the applicant was ordinarily resident in Australia throughout the period of 10 years beginning on the day that he was born, that the decision to cancel the applicant’s notice of evidence of citizenship was wrong. In particular, the second respondent was wrong to conclude that the applicant did not become an Australian citizen by the operation of s 12(1)(b) on 29 December 2011.
The Minister accepted that the Court’s finding that the applicant acquired Australian citizenship by operation of s 12(1)(b) necessarily entails that the notice should not have been cancelled.
However, the Minister submitted that this is not a sufficient basis for certiorari. The Minister further contended that:
(a)the issue or cancellation of a notice under s 37 is not a decision affecting legal rights (the notice being no more than prima facie evidence of what it asserts: s 37(5)) and therefore does not have any effect capable of being quashed by a writ of certiorari;
(b)if the Court were to hold that the applicant is an Australian citizen, certiorari would be unnecessary. The cancellation decision does not preclude a new application under s 37(1) or a further decision under s 37(2), which would necessarily be made in accordance with the Court’s reasons and any declaration.
The case having decided in the applicant’s favour, it is reasonable to expect that the Department of Immigration and Border Protection will do all things appropriate and necessary to give the applicant the benefit of the judgment, and without the necessity for the applicant to incur the inconvenience and any possible expense involved in making a further application for a s 37(2) notice. The parties should confer about whether the Department can give the applicant a new notice under s 37(2) or re-issue the notice previously given. In the event that further orders are required, I grant liberty to the parties to apply within seven days for those orders.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 16 August 2016
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Naturalisation
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Ordinary Residence
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Judicial Review
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