Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1459
•7 December 2022
FEDERAL COURT OF AUSTRALIA
Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459
File number: NSD 308 of 2022 Judgment of: KATZMANN J Date of judgment: 7 December 2022 Catchwords: ADMINISTRATIVE LAW — Citizenship — application for judicial review of decision affirming decision to cancel certificate of evidence of Australian citizenship provided by Minister with respect to Australian-born child of foreign nationals — where parents had resided in Australia for many years on a series of temporary visas and child travelled to India at the age of four months to be cared for by his grandparents while his mother was studying in Australia, whether child an Australian citizen by virtue of s 12(1)(b) of Citizenship Act 2007 (Cth) — where the child remained in India for five years and 10 months while his parents lived and worked in Australia, whether throughout the first 10 years of his life the child was “ordinarily resident” in Australia as defined by s 3 of Citizenship Act in that Australia was his “permanent abode” and his absence was temporary Legislation: Australian Citizenship Act 2007 (Cth) ss 3, 12, 37
Migration Act 1958 (Cth) ss 3, 30
Judiciary Act 1903 (Cth) s 39B
Federal Court of Australia Act 1976 (Cth) s 21(1)
Migration Regulations 1994 (Cth), Sch 2, cl 572.223
Cases cited: Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263
Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 62 Date of last submissions: 9 October 2022 Date of hearing: 4 October 2022 Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Teleo Lawyers Counsel for the Respondent: Mr P Knowles SC Solicitor for the Respondent: Mills Oakley ORDERS
NSD 308 of 2022 BETWEEN: GURNOOR SINGH SIDHU BY HIS LITIGATION REPRESENTATIVE RANJIT KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
7 DECEMBER 2022
THE COURT DECLARES THAT:
1.Gurnoor Singh Sidhu has been an Australian citizen since his 10th birthday by reason of the operation of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth).
THE COURT ORDERS THAT:
2.The respondent pay the applicant’s costs.
3.There be liberty to apply within seven (7) days in the event that further orders are required to give effect to the declaration.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KATZMANN J
Section 37 of the Australian Citizenship Act 2007 (Cth) relevantly provides that a person may make an application to the Minister for evidence of their Australian citizenship (s 37(1)); the Minister may give the person a notice stating that they are an Australian citizen at a particular time (s 37(2)), which is prima facie evidence of the matters in it (s 37(5)); and the Minister may, by writing, cancel the notice (s 37(6)). This case is concerned with the exercise of the power in s 37(6) in the case of a child who was born in Australia but who spent most of the first six years of his life in the care of his grandparents in India.
Background
Master Gurnoor Singh Sidhu is 12 years old. He was born on 21 March 2010 to Indian nationals. At that time his mother was on a student visa (Class TU subclass 572) and his father was a dependant on that visa.
Section 12(1) of the Citizenship Act provides that:
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.
“Permanent resident” and “ordinarily resident” are defined terms. “Permanent resident” is defined in s 5 as follows:
(1)For the purposes of this Act, a person is a permanent resident at a particular time if and only if:
(a)the person is present in Australia at that time and holds a permanent visa at that time; or
(b)both:
(i)the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c)the person is covered by a determination in force under subsection (2) at that time.
Section 3 provides that “permanent visa” has the same meaning as in the Migration Act 1958 (Cth). The meaning given to “permanent visa” in the Migration Act is that of a visa to remain in Australia indefinitely, in contrast to a temporary visa which is a visa to remain during a specified period, until a specified event happens, or while the holder has a specified status: Migration Act, s 30.
“Ordinarily resident” is defined in s 3 of the Citizenship Act in the following way:
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.
“Permanent abode” and “home” are not defined terms. It can therefore be taken that Parliament intended that the ordinary meanings of the terms apply. “Permanent” is relevantly defined in the Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) to mean “lasting or intended to last indefinitely, remaining unchanged; not temporary, enduring, abiding”. “Abode” is defined to mean “1. a dwelling place; a habitation” or “2. Continuance in a place; sojourn; stay”. “Home” is relevantly defined to include:
1a 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.
…
6.any place of existence or refuge: a heavenly home.
…
Since neither of his parents was an Australian citizen or permanent resident at the time he was born, Gurnoor could only have been an Australian citizen if he satisfied the terms of s 12(1)(b) of the Citizenship Act. That means that Australia must have been the country of his permanent abode from 21 March 2010 until 20 March 2020 (the relevant period) even if he was temporarily absent from Australia at any time during that period.
A little over two months after his 10th birthday, Gurnoor’s father, Sukhdeep Singh Sidhu, applied to the relevant authorities for evidence of Australian citizenship on the ground that Gurnoor acquired Australian citizenship automatically when he turned 10.
The application was successful. Gurnoor was found to be an Australian citizen by his 10th birthday and a certificate of evidence was issued on 3 June 2020. Seven weeks later, however, on 22 July 2020, a notice of intention to consider cancelling evidence of Australian citizenship was sent to Mr Sidhu and, on 2 October 2020, after affording him an opportunity to be heard, a delegate of the Minister cancelled the certificate of evidence, finding that Gurnoor was not an Australian citizen and therefore ineligible to be issued with a notice of evidence of Australian citizenship.
An application for review of the cancellation decision was unsuccessful. On 24 February 2022, the Minister, through another delegate, decided to affirm the decision to cancel the certificate.
The proceeding
This is an application for judicial review of that decision under s 39B of the Judiciary Act 1903 (Cth). An application of this kind is within the Court’s original jurisdiction by reason of s 39B(1A)(c) of the Judiciary Act, which gives the Court original jurisdiction in any matter arising under any laws made by the Commonwealth Parliament, other than a criminal matter: Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263 at [10] (Gleeson J). This is a matter arising under the Citizenship Act, because the right or duty in question owes its existence to that Act: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ); LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581–2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
By his litigation representative, his mother Ranjit Kaur, Gurnoor applies for a declaration that he has been an Australian citizen since his 10th birthday and an order giving effect to that declaration. The Court’s power to grant declaratory relief derives from s 21(1) of the Federal Court of Australia Act 1976 (Cth). He contends that the decision to cancel the evidence was erroneous because, contrary to the opinion reached by the administrative decision makers, he was ordinarily resident in Australia throughout the first 10 years of his life and is therefore an Australian citizen by operation of s 12(1)(b) of the Citizenship Act.
The application was supported by affidavits affirmed by each of Gurnoor’s parents on 19 September 2022. Ms Kaur and Mr Sidhu were both cross-examined but no question arose as to their credit. The Minister relied on an affidavit affirmed by Edwin Jack Taylor, the solicitor with the carriage of the matter at the firm acting for the Minister. The purpose of that affidavit was to put before the Court the documentary evidence relating to the parents’ visa history. Other documents were tendered at the hearing by both parties.
The issue
The issue for determination is whether Gurnoor was ordinarily resident in Australia throughout the first ten years of his life.
The argument
Mr Godwin of counsel, who appeared for Gurnoor, submitted that Gurnoor was ordinarily resident in Australia throughout that time despite his lengthy absences in India because his parents lived here and had always intended that he would live with them. He submitted that his absences in India were never intended to be permanent. Rather, he was living there for a temporary or special purpose, namely childcare, while his mother completed her studies, and he had no intention of “taking up residency” in India.
Mr Godwin relied principally on the judgment in Kim. In that case, a child of South Korean parents who was born in Australia and spent most of the first 10 years of his life in Australia was found to be “ordinarily resident” in Australia despite an absence of 13 months when he lived with his parents in the Republic of Korea (South Korea) initially to enable the family to obtain medical treatment for his younger brother and later to care for his grandmother. During that time the child’s father obtained work in South Korea and his Australian visa lapsed. For about six months he held no visa allowing him to enter Australia. When the family returned to Australia, each of the children and their father entered the country on a visitor’s visa. For periods of time when they were living in South Korea, neither parent held a valid visa to enter Australia. In concluding that the applicant in that case was ordinarily resident in Australia throughout the first 10 years of his life, her Honour said at [135]–[138]:
135In 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.
136It 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.
137In 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.
138I 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.
The legal principles
There was no dispute about the relevant principles. The first five, set out below, were accepted by the parties in Kim and set out in the judgment in that case (at [12]), and were mostly derived from the judgment of Foster J in Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336. The additional three are drawn from Kim and I did not understand them to be controversial. Certainly the Minister did not submit that any of the statements of principle in Kim were wrong or that the case was wrongly decided.
First, the concept of “ordinarily resident” allows for some absences, depending on the nature and extent of the absences.
Second, whether a person is ordinarily resident in Australia is a question of fact and degree. So, too, is the question whether a temporary absence from Australia prevents a person from being “ordinarily resident” in Australia.
Third, 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 they are “ordinarily resident” in Australia during the absence.
Fourth, whether a minor is “ordinarily resident” will generally be determined by reference to the position of the parents and, to the extent that a subjective intention is to be attributed to the person for the purpose of assessing whether they are “ordinarily resident” for the first 10 years of their life, it is the parents’ intention that must be considered.
Fifth, the use of the word “throughout” imports a notion of continuity of constancy.
Sixth, a person may be ordinarily resident in Australia even if they are homeless.
Seventh, a person need not be lawfully resident in Australia to be “ordinarily resident” here.
Eighth, “permanent abode” means no more than the place where a person “regularly or customarily” lives (Kim at [33]).
The last two matters are important. It is clear that, to be “ordinarily resident” in Australia a person does not need to have permission to reside in Australia. Moreover, as Gleeson J put it in Kim at [27], s 12(1)(b) is broad enough to encompass a person who is living in Australia under a temporary visa or as an “unlawful” non-citizen. Gleeson J explained in Kim at [32]:
[S]ection 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 is 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].
At [33] her Honour went on to say:
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.
The requirement for ordinary residence “throughout” the relevant period requires “a strong element of continuity” and must be satisfied “at all times for the whole of the period” including any periods of temporary absence: Lee at [102] and [166]. All the relevant circumstances must be taken into account. In general, where the person in question is a minor, the focus is on the intentions of the person’s parents.
The facts
The facts were largely uncontroversial. Based on the evidence presented to the Court, I make the following findings.
Mr Sidhu and Ms Kaur arrived in Australia in 2009 so that Ms Kaur could study. Mr Sidhu obtained work as a “trolley pusher” the following year.
On 11 March 2010 (10 days before Gurnoor was born) Mr Sidhu’s parents arrived in Australia to help look after him. They told Ms Kaur that they would look after Gurnoor for as long as she liked. He was their first grandchild.
Mr Sidhu wanted Gurnoor to live in Australia and “have a good future”. On 4 August 2010, however, when Gurnoor was but four months old, his grandparents suggested taking him back to India so they could look after him while Ms Kaur was studying. Mr Sidhu and Ms Kaur agreed. At the time they were living in a group house with five other people. Mr Sidhu was working irregular hours and was on call. Ms Kaur was a full-time student. They were in financial straits, struggling to make ends meet, could not afford a place of their own, and it was difficult in all the circumstances to look after a baby. Most of Ms Kaur’s Indian classmates sent their babies to India to be cared for by their grandparents. Mr Sidhu believed Gurnoor would return “by about 2013”.
On his outgoing passenger card, Gurnoor was described as a “visitor or temporary entrant”. His “country of residence” was recorded as “Indian” [sic].
His parents remained in Australia. They found separation from their son very difficult. Ms Kaur repeatedly entreated her husband to bring him back.
On 15 June 2011 Ms Kaur, applied for a Student (Temporary) Visa. Mr Sidhu was named in the application as a member of the same family unit. Gurnoor was not. But that was not because his parents did not regard him as a member of the family. Ms Kaur explained in her affidavit that when their visas were going to expire she asked her migration agent to extend Gurnoor’s visa but he told her that could not be done “because Gurnoor is offshore”. The agent told her that once she received a visa she could add him when he came to Australia.
On 19 July 2012 Ms Kaur made a further application for a Student (Temporary) Visa. This time both Gurnoor and his father were named as members of the same family unit. That same year Mr Singh and Ms Kaur started looking for “a place for [themselves]”. In November 2012, they found a “home” in West Ryde which they leased for six months and shared with another couple.
In 2013 Mr Singh and Ms Kaur leased a two bedroom unit in their own name and purchased furniture for the unit, including a Queen bed so that Gurnoor could sleep with them as was the custom in India. That was the first time they had space for Gurnoor in their home.
On 2 February 2013, an application for a tourist visa was made on behalf of Gurnoor. That application listed Gurnoor’s “usual country of residence” as India and recorded his “current residential address” as an address in India. Both Mr Sidhu and Ms Kaur signed the visa application.
On 17 March 2013 Gurnoor returned to Australia, accompanied by his paternal grandparents. This was 956 days (2 years, 7 months and 12 days) after he had left in 2010. His incoming passenger card, dated 17 March 2013, which was completed by his father, indicated that:
(1)he did not intend to live in Australia for the next 12 months;
(2)his usual country of residence was India;
(3)he intended to stay in Australia for six months; and
(4)the main reason for his trip was to visit friends or relatives.
Notwithstanding what was recorded on the incoming passenger card, his parents had no plans to send him back to India. Ms Kaur told her husband that “we will keep him with us in Australia and we can send him to childcare when I am studying or at my college”. She intended to add Gurnoor to her student visa. But these intentions were thwarted when she and her husband realised that Gurnoor was too attached to his grandparents and friends in India. This turn of events was understandably distressing for them. Ms Kaur deposed:
Unfortunately, Gurnoor had become very attached to his grandparents. We tried to get him to sleep in the bed with us but every night he started crying – some times the whole night we didn’t sleep. He was sleeping for a few minutes and then started to cry again because he missed sleeping with his grandparents.
He also missed playing with friends in the neighbouring houses. I know this as he would point at surrounding houses and say the name of the neighbour in India. He was calling me Ranjit rather than mum. He was refusing to eat from me. He would only eat from my father or mother-in-law.
My husband decided to send him back to India for a while with my husband's parents. I thought if we kept him here in Australia at that time he could become very sick from crying and not sleeping and not eating.
In the result, and contrary to their intention and desire, Gurnoor remained in Australia for only about four months. He departed Australia for India with his paternal grandparents on 13 July 2013. Gurnoor’s outgoing passenger card indicated that his “country of residence” was India and that he was a “visitor or temporary entrant”.
Mr Sidhu and Ms Kaur remained in Australia. As Mr Sidhu put it in his affidavit, they felt they had no choice but they believed that when he got older he would recognise him and his wife as his parents and settle with them. Neither parent contemplated a future for their son in India.
In 2014 Ms Kaur travelled to India for a month to be with her son for his fourth birthday. At that stage Gurnoor did not seem ready to return to Australia with his mother. He would not sleep with her on her side of the bed. He would not take food from her unless she “bribed him with treats”. She tried in vain to convince him to come back with her.
In 2015 Ms Kaur travelled to India again, this time with her husband. By then Gurnoor was addressing his parents as “mum” and “dad”. Sometimes he would sleep with his mother in the same bed. He would accept food from her. Both parents felt he was ready to return to Australia and when they were to return, Gurnoor told them he would like to “come”, too. But Gurnoor would not leave without his grandparents and, for various reasons, the grandparents were unable to leave at that time.
In about October 2015 Ms Kaur completed her studies and in December she began work as a chef. Not long afterwards, she and her husband applied for work visas, sponsored by her employer. Until that time she held a succession of student visas. At the time of the decision to cancel the notice of evidence of Gurnoor’s citizenship, they held Temporary Work (Skilled) visas. She and her husband also applied for a Migrant (subclass RN-187) visa, which is a visa that allows skilled workers nominated by their employers in regional Australia to live and work in Australia permanently. Ms Kaur testified that it was in about December 2015 that she and her husband finally decided to stay here “to be [a] permanent resident”. That testimony accorded with the content of her representations to the Department in response to the notice of intention to consider cancellation the notice.
On 15 October 2016 Gurnoor returned to Australia on a visitor’s visa, accompanied by his paternal grandparents. His incoming passenger card, completed by his father, indicated that:
(1)he did not intend to live in Australia for the next 12 months;
(2)his usual country of residence was India;
(3)he intended to stay in Australia for three months; and
(4)the main reason for his trip was visiting friends or relatives.
Mr Sidhu’s evidence, which I accept, was that he answered the questions in this way because of the terms of his visa. While he and his wife were not sure how well he would settle, his parents’ intention and expectation was that he would stay here permanently. The following month he started school here. And, despite what was recorded in his incoming passenger card, Gurnoor has lived in Australia ever since. The evidence suggests that he has adjusted well and is integrated into the Australian community. There could be no doubt that Australia is his permanent home now and that he has been ordinarily resident here at least since he returned in October 2016. The Minister did not suggest otherwise.
The question, however, is whether Gurnoor was ordinarily resident throughout the first 10 years of his life.
Consideration
In arguing against the application, the Minister emphasised the length of Gurnoor’s absences from Australia during that period and submitted that, on that account alone, they could not be described as temporary. He also relied on the information in the passenger movement cards to argue that Gurnoor was a resident of India and a visitor to Australia, the kind of visas he used to enter Australia, and the fact that he had no permission to enter Australia for most of the first six years of his life. The Minister submitted that Gurnoor did not maintain a residence in Australia. He also emphasised the evidence of the parents about the reasons for returning Gurnoor to India in 2013. He distinguished Kim, upon which Mr Godwin relied, on the facts.
I accept that the facts in this case are different from Kim. For a start, in that case the period of the child’s absence from Australia was substantially shorter than it was here. But on the basis of the law as it was stated in Kim, and which the Minister did not argue was wrong, I am persuaded that throughout the relevant period Gurnoor was “ordinarily resident in Australia” within the meaning of s 12(1)(b) of the Citizenship Act.
The focus must be on the intentions of Gurnoor’s parents.
The Minister submitted that the reason the focus is generally on the intentions of the parents in the case of a minor is that children typically live with their parents during the first 10 years of their lives. That was the position in Kim and Lee. But I do not accept that that is the only reason for the general approach. Another, surely, is that a child of tender years has no control over where he or she lives. In the first 10 years of his life, all decisions as to where Gurnoor would be taken and where he would live were made by his parents. In such circumstances, Foster J observed in Lee at [153]:
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.
Thus, in the case of a young child, if a question arises as to whether the child’s absence from Australia is temporary and the child’s absence was the result of the execution of the parents’ purpose or a decision taken by the parents, then the focus is necessarily on the parents’ intentions. In effect, the parents’ intentions are attributed to the child.
In the present case there is also a cultural element. As I mentioned earlier, most of Ms Kaur’s classmates who had children sent their babies to India with their grandparents. She explained in her affidavit that “[i]t is quite typical in Indian culture for grandparents to take on this role, whilst the parents dedicate their time to studies”. This evidence was not challenged or contradicted.
It is true that Gurnoor was absent from Australia for lengthy periods of time. Indeed, he was absent in toto for more than five years. Further, I accept the Minister’s submission that in the first five years of his life Gurnoor’s primary connection was to India, not Australia. But a lengthy absence is not necessarily inconsistent with a person having his or her home in Australia: Kim at [22]. Importantly, neither the length of the absence in this case nor Gurnoor’s connection to India tells one anything about the purpose or intended duration of his absence from Australia. The fact that he formed a connection with India does not undermine his parents’ intentions. Nor does the fact that passenger movement cards completed on Gurnoor’s behalf recorded that he was a resident of India and a visitor to Australia. Equally, I give no weight to the fact that the visa applications made by Ms Kaur did not include their son. Ms Kaur’s evidence, which was not challenged and I accept, was to the effect that the only reason he was not included was that she was advised by her migration agent that that was not possible while Gurnoor was “offshore”. She deposed:
Our visas were going to expire in April 2011. It took until October 2011 before we finally received another visa. By that time, I was studying again so we could not return to India. I asked my Migration Agent Sunjay Deswal to extend Gurnoor’s visa with us. The agent replied, “you cannot because Gurnoor is offshore.” He said “once you get a visa you can then add him when he comes to Australia”.
It is abundantly clear from the evidence that Gurnoor was only removed from Australia for a temporary purpose which arose from the exigencies of his family’s situation when he was but a baby: to be cared for by his grandparents in India while his mother was studying and until his parents were in a position to look after him themselves. The fact that the period was longer than the parents envisaged does not alter the nature of the arrangement or its purpose. A permanent arrangement is one which lasts or is intended to last indefinitely. Mr Sidhu and Ms Kaur always intended that their son would return to live with them as soon as practicable. When they moved into the apartment in 2013, their intention was that he would stay with them. Although they decided to allow him to return to India with his grandparents, their intention never changed.
The Minister pointed to Ms Kaur’s evidence that it was not until about December 2015 that she and her husband “finally decided to stay here to be the permanent resident of this wonderful country”. He submitted that, until then, Ms Kaur did not consider Australia to be her or her family’s home. He accepted that Gurnoor’s parents always intended at some stage that they would live together with their son in a single family unit, but argued the evidence does not suggest that it was intended that this would occur in Australia. He reminded the Court that it was a criterion of the various student visas issued to the parents that they were “genuine temporary entrants” (Migration Regulations 1994 (Cth), Sch 2, cl 572.223). He submitted that this suggests that, for at least some of the relevant period, neither Gurnoor nor his parents had their home in Australia or that Australia was not their “permanent abode”.
Properly understood, however, Ms Kaur’s evidence about the decision she and her husband made in about December 2015 was no more than a statement about their intention to change their visa status. Throughout the first 10 years of their son’s life, Gurnoor’s parents considered Australia to be their home and were ordinarily resident here. Australia was the place where they “regularly or customarily” lived (Kim at [33]) and Australia was the place to which they expected, and planned for, him to return. Ms Kaur’s evidence, which was not challenged and I accept, was that ever since they have lived in Australia they have been part of the local Sikh temple and have many friends in the Sikh community in Sydney and Bathurst. She listed them by name and address in her affidavit. She noted that they were all Australian citizens and permanent residents.
It is of no consequence that throughout the relevant period Gurnoor’s parents only held temporary visas. The same was true in Kim (see especially at [130]). Indeed, in Kim the Minister accepted that a person can have his or her home in Australia without permission to remain in Australia permanently (see Kim at [23]). The Minister made the same concession in the present case. For the reasons given in Lee and Kim and the evidence of Ms Kaur about the advice she received from her migration agent, I also put little weight on the fact that Gurnoor, himself, entered Australia on a visitor’s or tourist visa and, at other times, apparently had no visa. The Minister relied on the fact that Gurnoor did not have a visa or permission to reside in Australia for much of the time he was being cared for by his grandparents in India, drawing on the remarks of Gleeson J in the first sentence of [33] of Kim extracted above at [28]. But those remarks cannot be read in isolation, devoid of their context. In Kim the fact that neither parent had permission to enter Australia for a time during the first 10 years of their son’s life did not prevent her Honour from finding that their son was ordinarily resident in Australia throughout that period. During those times Gurnoor was without a visa, he had no need for one and had no difficulty obtaining one when the need arose (compare Kim at [138]). His home in Australia was “well established” (Kim at [134]).
Relief
The Minister did not suggest that declaratory relief was not available or inappropriate if the evidence established the necessary facts. I am satisfied that it is appropriate to make a declaration to give effect to my reasons. The declaration sought in the originating application was that Gurnoor “has been an Australian Citizen since his 10th birthday”. There was no debate about its terms. In those circumstances I will make such a declaration but I consider that the declaration should also identify the statutory basis.
The originating application also sought an order that “the Respondents (sic) give effect to the declaration”. It is not clear to me, however, that an order in those terms is necessary or appropriate. There is presently no reason to think that the Minister would not do all things necessary and appropriate to give effect to the declaration unless he was ordered to do so. In Kim at [144] Gleeson J observed that, since the case was decided in the applicant’s favour, it was reasonable to expect the Minister’s Department to 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” and urged the parties to confer about whether the Department could give the applicant a new notice under s 37(2) or reissue the previous notice. Her Honour reserved liberty to apply in the event that any further order was required. And I will do the same.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 7 December 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Citizenship
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Ordinary Residence
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Permanent Abode
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