Kim v Minister for Immigration and Border Protection

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.