Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCAFC 78
•18 June 2024
FEDERAL COURT OF AUSTRALIA
Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 78
Appeal from: Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1138 File number: NSD 1518 of 2023 Judgment of: MARKOVIC, DERRINGTON AND NESKOVCIN JJ Date of judgment: 18 June 2024 Catchwords: MIGRATION – appeal from judicial review of decision refusing to issue certificate of evidence of Australian citizenship – application for leave to amend notice of appeal – where proposed grounds of appeal raise factual issues not considered below – where proposed new grounds would fail in any event – no justiciable error by the primary judge identified – application and appeal dismissed Legislation: Australian Citizenship Act 2007 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Geothermal Energy NZ Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324
Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263
Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336
Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur (2023) 299 FCR 1
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 76 Date of hearing: 21 May 2024 Counsel for the Appellant: Mr N Li Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Clayton Utz ORDERS
NSD 1518 of 2023 BETWEEN: SIMRAT SINGH TATLA BY HIS LITIGATION GUARDIAN HARPAL KAUR GREWAL
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
MARKOVIC, DERRINGTON AND NESKOVCIN JJ
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The application for leave to amend the notice of appeal is refused.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
The learned primary judge had before her an application brought pursuant to s 39B of the Judiciary Act 1903 (Cth), by which the appellant, Ms Grewal, the litigation guardian of the infant, Simrat Singh Tatla (Simrat), sought a declaration that Simrat has been an Australian citizen since his tenth birthday. That relief was intended to support the setting aside of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) under the Australian Citizenship Act 2007 (Cth) (Citizenship Act) on 13 September 2022, to not issue to Simrat a Notice of Certificate of Evidence of Australian Citizenship. The learned primary judge declined to make the declaration.
The matter progressed below on the basis that whether or not a person satisfies the requirement of s 12(1)(b) of the Citizenship Act is an objective jurisdictional fact on which the Minister’s power to issue a notice under s 37(1) of that Act is conditioned. For that reason, on an application for review of a Minister’s refusal to issue a notice, the satisfaction of the requirement is a matter which can be determined by the Court on the basis of the evidence before it: Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263 [11] (Kim); Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 [89] – [90]. Neither party suggested that those authorities were wrongly decided and, in such circumstances, it is appropriate to proceed on the basis that they are correct.
At the commencement of the hearing of the appeal the parties agreed that the application for leave to amend and the appeal would be heard and considered concurrently, and that is how the matter progressed.
Background
Simrat was born in Australia on 25 December 2010.
At that time, his mother, Ms Grewal, was lawfully in Australia on a temporary basis pursuant to a Higher Education Sector (subclass 573) visa, and his father, Mr Tatla, was in Australia as Ms Grewal’s dependant.
On 2 April 2011, when he was little more than three months’ old, Simrat was taken by his parents to India and did not return to Australia until 30 November 2019. He had, therefore, lived overseas for a continuous period of approximately eight years, seven months and 28 days in the course of the first ten years of his life.
On 8 September 2011, Ms Grewal lodged an application for a further temporary visa: a Student (Temporary) (Class TU) Subclass 572 (Vocational Educational and Training Sector) visa (the 572 visa).
On 28 June 2013 she lodged her first application for a Temporary Business Entry (Class UC) Subclass 457 (Temporary Work (Skilled)) visa (the 457 visa). That application was subsequently refused on the basis that her proposed employer was not of a sufficient size to support the position for which she was nominated.
On 30 December 2013, Ms Grewal lodged an application for another 572 visa, and in it she stated that she intended to return to India after she completed her studies to set up her own business there. At the hearing before the learned primary judge in this matter, Ms Grewal testified that her statement to that effect was true.
In April 2015, Ms Grewal applied for a further 457 visa in which she named Simrat as an accompanying child. That application was subsequently withdrawn.
On 31 December 2015, Ms Grewal and her husband travelled to India for around five weeks. They returned to Australia albeit without Simrat.
On 15 November 2016, Ms Grewal applied for a further temporary visa: a Student (Subclass 500) visa. In that application she further stated that her intention was to return to India and work at a management level in “international reputed companies in India” after completing her studies.
On 17 February 2017, her application for that further visa was refused.
Ms Grewal sought review of the refusal of her application for the further student visa in the Administrative Appeals Tribunal (the Tribunal). In her application to the Tribunal she made it clear that her intention was to return to India and that she was only resident in Australia to further her education so as to form a basis for establishing a business and career in India. Again, before the learned primary judge, Ms Grewal testified that those statements were true.
Ms Grewal’s application to the Tribunal, which was heard in 2018, was unsuccessful. She subsequently sought judicial review of that decision in the Federal Circuit and Family Court of Australia (Division 2), but it too was refused. An appeal from that decision has been filed in this Court, though its status is unknown.
On 30 November 2019, Simrat returned to Australia on a tourist visa with Ms Grewal’s mother and he has remained here ever since.
Relevant legislation
For present purposes it is relevant to note that s 12(1) of the Citizenship Act provides:
12 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.
For s 12(1)(b) the expression “ordinarily resident” is defined by s 3 of the Act as being:
ordinarily resident: 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.
The power of a Minister to issue a notice of citizenship is found in s 37 which provides:
37 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.
(3) The notice must:
(a) be in a form prescribed by the regulations; and
(b) contain any other matter prescribed by the regulations.
Identity
(4)The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person.
…
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 concepts of “permanent abode” and “home” as they are used in s 12(1) are not defined though it may be inferred that they are intended to have their ordinary meaning: Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459 [7] (Sidhu). In the primary judge’s reasons (at [12]) reference was made to the dictionary definitions of those terms and it is appropriate to repeat them:
“Home” is relevantly defined in the Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) to include “1. 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 [and] 6. any place of existence or refuge: a heavenly home”. “Abode” is defined as: “1. a dwelling place; a habitation [or] 2. [c]ontinuance in a place; sojourn; stay”.
In Sidhu, Katzmann J identified the principles relevant to the determination of whether a person is ordinarily resident in Australia pursuant to s 12(1)(b). They were cited with approval by the Full Court in that matter, Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur (2023) 299 FCR 1, 6 – 7 [30], as follows:
The primary judge derived eight propositions (at [19]-[26]) concerning the meaning and application of the definition of “ordinarily resident” from her consideration of Lee and Kim:
(a)The concept of “ordinarily resident” allows for some absences, depending on the nature and extent of the absences.
(b)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.
(c)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.
(d)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.
(e) The use of the word “throughout” imports a notion of continuity of constancy.
(f) A person may be ordinarily resident in Australia even if they are homeless.
(g)A person need not be lawfully resident in Australia to be “ordinarily resident” here.
(h)The term “permanent abode” means no more than the place where a person “regularly or customarily” lives (Kim at [33]).
In the first instance decision in Sidhu, Katzmann J also observed (at [27] – [28]) that to be “ordinarily resident” in Australia a person did not need to have permission to reside here, and that s 12(1)(b) of the Citizenship Act is broad enough to include a person who is living in Australia either under a temporary visa or even a non-citizen who has never held a valid visa or whose visa has expired. Her Honour also emphasised (at [29]) that 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 period” including any periods of temporary absence.
Findings of the primary judge
It is evident that before the primary judge the case articulated on behalf of Simrat was that he satisfied subparagraph (b) of the definition of “ordinarily resident” and, in that respect, it was sought to be established that his permanent abode was in Australia even if he was temporarily absent from the country. In support of that contention it was said that Ms Grewal and Mr Tatla were, at all times, ordinarily resident in Australia in the period from December 2010 till December 2020, being the first ten years of Simrat’s life and, it follows, that he was as well. As the primary judge observed, it was then said that, although Simrat lived in India, it was always intended that he would return to live with his parents in Australia such that his absence was appropriately characterised as merely temporary. It was further said that the family plan was that Simrat would remain in the care of his grandparents for two to three years while Ms Grewal completed her studies and obtained a Temporary Work (Skilled) (subclass 457) visa, but that the plan was disrupted by Ms Grewal’s inability to obtain such a visa and that this caused Simrat’s time in India to be extended.
In the primary judge’s reasons, her Honour considered the lengthy history of Ms Grewal’s numerous visa applications and the grounds that she advanced in attempting to satisfy the requirements for those visas. Those grounds included her stated intentions to return to India at the conclusion of her studies. Her Honour then addressed whether Simrat was ordinarily resident in Australia, but concluded that he was not.
The first significant factor in that determination was that, in the first ten years of his life he had spent some 87% of his time in India. In this respect her Honour concluded that there was an absence of any strong element of continuity in relation to Simrat’s presence in Australia.
Secondly, the objective circumstances indicated that Simrat had little connection with Australia until he returned at the age of eight. During that time his parents had only visited him twice.
Thirdly, her Honour concluded that the evidence pointed against the proposition that Australia was the place of his permanent abode.
The underlying rationale for that latter conclusion were the numerous instances on which Ms Grewal had, in the period from 2010, stated that she intended to return to India after completing her studies. For the purposes of her applications for student visas, she was required to satisfy the Minister that she intended to return to India after completing her course or courses. That she did on numerous occasions, in writing and emphatically. It was relevant that Mr Tatla was aware of what Ms Grewal had written on all occasions. Such statements were the antithesis of what she needed to establish for the purposes of demonstrating that Simrat was ordinarily resident in Australia during that period; namely that she and Mr Tatla were ordinarily resident during that time.
Nevertheless, the primary judge accepted that, for at least some time, Ms Grewal and Mr Tatla did intend to bring Simrat back to Australia. Specifically, at [63] of her reasons, her Honour held:
63I am prepared to accept that at the time they applied for a 457 visa in 2013 and again in 2015 Ms Grewal and Mr Tatla intended to bring Simrat back to Australia to live. …
However, her Honour then determined that their intention changed and, by early 2017, they had abandoned the intention to settle Simrat in Australia. Continuing at [63] her Honour said:
… On the other hand, I am not satisfied that was always their intention and by early 2017, at least, they appear to have abandoned the idea. The failure to seek a suitable sponsor is inconsistent with the claim made in Ms Grewal’s affidavit that she was desperate to bring Simrat back to Australia as soon as possible. The inference is irresistible that, if she and her husband were intent on settling Simrat here, rather than in India, she would have done all she could to find a suitable sponsor. There is force, too, in the Minister’s submission that, if Mr Tatla were also desperate to bring Simrat back to Australia, he would have had a better recall for detail than his evidence revealed. I conclude that the reason Simrat returned to Australia in 2019 was that his paternal grandparents were in poor health and, as she admitted in cross-examination, Ms Grewal was worried they would not be able to look after him for much longer. I do not accept Ms Grewal’s evidence that she would have tried to bring Simrat back earlier on a tourist visa if she had known before then that that was an option.
Although, before the learned primary judge, Ms Grewal and Mr Tatla asserted that even from 2017, they intended to stay in Australia permanently and for that reason Simrat’s permanent abode was in Australia, that was clearly rejected. Ms Grewal had stated on too many occasions that she had intended to return to India on completion of her studies. At [62] of her Honour’s reasons she made the following finding:
62But Ms Grewal stood by her earlier statements about her intention to live and work in India and to reunite with her son there. And Mr Tatla did not say they were false. In these circumstances, I do not see how I can put any weight on the statements they made in their affidavits to the opposite effect.
Her Honour further found that the reason Simrat returned to Australia in 2019, was that his paternal grandparents were in poor health and Ms Grewal was worried that they would not be able to look after him for much longer. That conclusion also told against the proposition that he was ordinarily resident in Australia.
As it had not been established that Simrat’s permanent abode was in Australia, he was not shown to be within subparagraph (b) of the definition of “ordinarily resident” and the application was dismissed.
Does the new ground of appeal raise factual issues not considered below?
In most if not all circumstances, a party will not be entitled to raise a new ground on appeal which involves a factual issue which, had it been raised at trial, could have been addressed by contradicting evidence. The principle was succinctly stated in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 by Mason P (with whom Gleeson CJ and Priestley JA agreed). His Honour said at 645:
Since this is an appeal by way of re-hearing, the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (at 7-9). A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial.
The ground of appeal disclosed in the proposed amended notice of appeal
The application for leave seeks to amend the notice of appeal by abandoning the existing grounds and substituting it with the following single ground:
The primary judge erred by failing to find that each of the homes that the appellant’s parents maintained in Australia between 25 December 2010 to 25 December 2020 was also the appellant’s home within the meaning of subpara (a) of the definition of “ordinarily resident” in s 3 of the Australian Citizenship Act 2007 (Cth).
On its face, this was a different case to that advanced to the judge at first instance. There, it had been submitted that Simrat had satisfied subparagraph (b) of the definition of “ordinarily resident” because his parents, Ms Grewal and Mr Tatla, had their permanent abode in Australia for the ten years after he was born and, because of that, it was his permanent abode as well. The case now sought to be advanced on appeal is that Simrat satisfied subparagraph (a) of the definition of “ordinarily resident” because his “home” was in Australia at the same location of his parents’ home.
In the course of the appeal it was submitted that no new case was being raised and that a live issue before the primary judge had been that Simrat was ordinarily resident in Australia by reason of the first limb of the definition. Reference was made to the opening submissions filed by each party and, it is correct that those documents indicated, either expressly or impliedly, that an issue in dispute between the parties was that Simrat had his “home” in Australia for the first ten years of his life. In particular, the Minister’s submissions identified in stark terms why no conclusion could be reached to that effect, particularly given the period of over eight years during which Simrat lived in India.
However, regardless of the matters which were raised in the initial opening submissions, it is apparent that by the hearing’s end, the proposition that Simrat was “ordinarily resident” in Australia because he had his home here for ten years was no longer pursued. The case advanced in closing submissions was that during the ten-year period, Ms Grewal and Mr Tatla intended to remain in Australia permanently and, therefore, they had their permanent abode here with the consequence that Simrat’s permanent abode was also in Australia. It was in that context that the intention of Simrat’s parents as to whether he should live in India or Australia was said to be relevant. Such matters related to issues of Simrat’s permanent abode and not to the location of his home. It is evident that at the conclusion of the hearing the appellant did not advance to the primary judge a claim that Simrat was ordinarily resident here because his home was here.
Whenever an issue arises as to whether a point or issue sought to be advanced on an appeal had been taken at trial, it is necessary to consider the actual substance of the hearing at first instance. The parties can litigate as they see fit in relation to the issues at trial. That may be by adhering strictly to the issues raised in the pleading, or by moving well beyond them. If both parties consent to the latter course, either expressly or implicitly, they cannot be heard to complain on appeal that an issue addressed at trial was beyond the scope of the pleadings. However, only those matters which were actually in issue between the parties and which were open for the trial judge to determine, can be the subject matter of an appeal. It is not possible for a party to seek to litigate on appeal an issue which, although raised in the pleadings, was not the subject of evidence before the primary judge or was abandoned during the trial. Relatedly, it is not an appellable error for a primary judge not to decide a matter or question which was not “in issue” at the hearing’s conclusion.
The particular issue which the appellant seeks to raise on appeal arises at a more granular level than appears in the written opening submissions. Whilst it might be accepted that in the opening submissions reliance was placed on Simrat satisfying the first limb of the definition of “ordinarily resident”, the most that was advanced in support of that was that he lived with his grandparents in India temporarily whilst Ms Grewal completed her studies and that he remained in India longer than was intended because she was unable to obtain a visa on which Simrat could be included as a family member. It was also said that Simrat’s parents had made provision in the places where they lived to accommodate Simrat.
However, for the purpose of the new ground of appeal, the appellant sought to assert that Simrat had been prevented from returning to Australia by reason of his parents’ economic circumstances, and the primary judge had erred in not considering that point. Although the Court was taken to several parts of the appeal book as allegedly supporting the submission that this factual issue was raised below, none could be detected. On the contrary, it is clear that the point agitated below was that Simrat did not return to Australia due to Ms Grewal’s inability to obtain an appropriate visa and the difficulties that would have been encountered because Ms Grewal was undertaking courses of study and was also working for 20 hours per week.
On the Minister’s behalf it was submitted that this new explanation as to why Simrat did not return to Australia contains allegations of new facts which, had they been properly raised below, could have been investigated. For instance, had the alleged economic hindrances to bringing Simrat to Australia been in issue, discovery or production of Ms Grewal’s and Mr Tatla’s financial records could have occurred. Such documents might have revealed their income and available capital resources. Similarly, numerous questions in relation to these matters could have been asked in cross-examination of the witnesses. Ms Grewal and Mr Tatla could have been cross-examined about their economic circumstances including what amounts were they earning, what childcare was available to them, and why Mr Tatla, who was not on a student visa, was unable to take care of his child. As it was, none of these matters were relevant at the hearing because no real case was advanced that Simrat’s “home” was in Australia and that it was only economic circumstances which prevented him actually living here.
A further aspect of the newly proposed ground of appeal is whether Ms Grewal and Mr Tatla actually kept a “home” for Simrat in the places where they resided, and that too raises new factual questions which might have been considered at trial. Had the issue been adequately raised before the primary judge, questions could have been asked of Ms Grewal and Mr Tatla about why, if Australia was in fact Simrat’s home, he was not brought to Australia earlier than 2019, or what steps they had taken in order to secure his presence here. Moreover, each could have been cross-examined as to how they could have regarded the places in which they lived as being Simrat’s home in circumstances where he had never been there or only been there for three months. It would have also been relevant to assess what, if any, of Simrat’s possessions were located in Australia and at the place where his parents lived, and what connection he had to it. Conversely, cross-examination could have occurred about the circumstances of his life in India with his grandparents. Again, these are all issues which would have been relevant had the issue of whether Simrat was a resident under the first limb of the definition been squarely raised below.
The case before the primary judge was conducted on the basis that Simrat’s permanent abode was in Australia where his parents lived and that his absence was primarily due to Ms Grewal being unable to secure an appropriate visa, but that was rejected. It is not now possible to trawl over the remnants of the trial which dealt with those issues, so as to pick and choose shreds of evidence from which to weave a new factual case which was not proffered to the trial judge for determination.
It follows that to the extent that the proposed new ground of appeal relies upon the assertion that Simrat’s home was in Australia and that Simrat did return to Australia because his parents were not financially able to keep him here, leave to raise it must be refused.
Yet a further proposed new ground
During the appeal, counsel for the appellant perceived the difficulty that reliance on Ms Grewal’s and Mr Tatla’s economic circumstances posed for the application for leave to amend. Consequently, he sought to advance a broader submission, being that the explanation for Simrat’s absence from Australia was Ms Grewal’s general circumstances. The difficulty here is that the lack of particularity with which that proposed new ground was advanced, renders it impossible to know whether all aspects of it were appropriately raised below. One might surmise that, had it been a matter which had been raised below, its nature and scope could be detected from the oral submissions made to the primary judge at the conclusion of the hearing. A perusal of the transcript, however, reveals that no case was advanced that Simrat’s home was in Australia and that he was prevented from living here by reason of his parents’ general circumstances. On the contrary, the case advanced to the trial judge was on the basis of the second limb of the definition of “ordinarily resident” and, whilst he lived in India, he had a permanent abode in Australia because at all times his parents intended to bring him here. Though it is true that submissions were made that Simrat’s presence in India resulted from Ms Grewal’s inability to obtain a suitable visa, no claim was advanced that those circumstances affected any conclusion as to the location of Simrat’s home. Had that been advanced, a wide range of additional material would have become relevant and a broad range of issues would have arisen for cross-examination. In this respect, a further difficulty is that the precise basis of the appellant’s newly formulated complaint was not appropriately articulated. There was no clear identification of the “circumstances” which hindered Simrat’s parents from bringing him to Australia and it is impossible to ascertain what might have been relevant to ascertaining why Simrat was unable to travel to Australia.
It follows that the alternative case sought to be advanced on appeal by the proposed amendment was not raised below or it does not appear with sufficient clarity that the Court can be satisfied that it does not impermissibly raise new factual matters which could have been dealt with at first instance.
It can be accepted that the question of Simrat’s parents’ intention about whether he should move to Australia was somewhat in issue on the case made to the primary judge. There, the question was whether Simrat’s permanent abode was in Australia at the place which his parents occupied and, for that reason, a relevant issue was his parents’ intention as to whether they intended to reside permanently in any particular place. It was said that their intention as to where they resided determined the location of Simrat’s residency. The consideration of their intention also involved the reasons as to why Simrat was not brought to Australia earlier than 2019. In this context, a difficulty for the proposed appeal is that the primary judge made relevant findings on the issue of why Simrat did not come to live in Australia, and they were that, from at least early 2017, Ms Grewal intended to return to India to be with Simrat and he was only brought to Australia once his paternal grandparents were unable to continue to care for him. Those findings negate the conclusion that he remained in India only as a consequence of his parents’ personal circumstances. Unless that finding as to the intention of Simrat’s parents and as to the reason Simrat subsequently came to Australia can be overturned, the proposed new ground will fail. The veracity of that finding is considered below but it is sufficient to say here that it is unassailable.
It follows that the proposed new ground which the appellant seeks to advance was not raised below and, had it been, additional evidence might have been available to meet it. It follows that it cannot now be raised on appeal.
Conclusion as to the factual difficulties with the proposed new grounds of appeal
All of the formulations of a possible new ground of appeal which were advanced on behalf of the appellant suffer from the fatal defect that they raise factual issues which, had the specific ground been raised at first instance, other evidence could have been called or the trial could have been conducted differently. For that reason, the application for leave must be rejected.
The proposed new claim would fail in any event
It is, with respect, not surprising that counsel who appeared at the first instance hearing of this matter did not seek to agitate that Simrat’s “home” was in Australia for the first ten years of his life. It does not appear to be in doubt that the word “home” in the definition of “ordinarily resident” has other than its ordinary meaning. That being so, there are few authorities which consider its meaning. However, one helpful authority that does is the decision in Geothermal Energy NZ Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324, 341, where Beattie J held that “home” has a broad meaning and described it in the following manner:
“[H]ome” 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. …
That passage was cited with approval by Gleeson J in Kim at [16].
Taken with the dictionary definitions referred to above, a person’s home is the place that they habitually use as their house or shelter, such that it is the place of their domestic activities around which their day-to-day activities revolve. To a very great extent that involves a factual inquiry as to the relevant person’s actual modality of living. Whilst it may be that the person’s intention could be relevant in some cases, such as where circumstances indicate that there is more than one place that might be their home, at the very least what is required is that the person live at the place which is their home. Here, that critical requirement was not remotely satisfied. For over eight years of the relevant period Simrat lived with his paternal grandparents at their house in India which was his home for the period during which he was there. His whole life revolved around his presence there and it was where he slept and ate, where he grew up until past the age of eight, from where he did his schooling, and from where he lived his life. No amount of intention or hope that he should live in Australia on the part of his parents could alter that.
In circumstances where Simrat lived at his grandparents’ home in India for over eight of the first ten years of his life, it could not be said that he was ordinarily resident here on the basis that he had his home in Australia throughout the period of 10 years beginning on the day on which he was born. It is apparent that for those eight years his home was in India. Necessarily, even if leave were given to raise the new ground, it would fail in any event.
Challenge to the conclusion that Ms Grewal intended to return to India
The appellant sought to overcome the fact of Simrat’s absence from the locations where his parents lived during the first ten years of his life which were said to be his homes, by recourse to the claim that his absence was temporary. A similar issue had been relevant before the primary judge which was directed to whether his permanent abode was in Australia. However, the primary judge had held that his absence from Australia during those ten years was not temporary in nature, but that he was living in India for most of that time. That conclusion was reached partly from the finding that Ms Grewal did not intend to reside permanently in Australia, but rather, she was here for the temporary purpose of undertaking further study and that she always intended to return to India to be with Simrat and to work. The relevant findings by the primary judge appear at [53] of her reasons where she said:
Ms Grewal maintained in cross-examination that she had told the truth to the AAT. She also accepted that it was not her intention in 2018 to bring Simrat back to Australia. In cross-examination she agreed that she left Simrat in India because she intended to return to India to be with him. And she accepted that it was not her intention that, if he came back to Australia, she would return to India without him.
Such a conclusion would deny Simrat the ability to assert that he had his home in Australia for the required period or that he was ordinarily resident here throughout it. Necessarily, in order to be successful on the appeal, the appellant would need to overturn the primary judge’s finding as to the nature of his presence in India. However, the difficulty in that respect is that the learned primary judge’s conclusion on this topic is more than solidly supported.
In the course of Ms Grewal’s cross-examination before the primary judge she claimed that she had told the truth to the Tribunal in 2018 at the hearing before it when she said that it was her intention to return to India at the completion of her studies. In that cross-examination, the following exchange occurred in relation to written submissions to the Tribunal which were signed by and filed on behalf of Ms Grewal:
MS HEGER: Bear with me a moment. In the second last dot point on the page, it says:
After completing intended studies, I would gain enough knowledge and skills to start my own business. I trust that I would have the skills, knowledge and experience to head start my career in India.
Do you see that?
THE WITNESS: Yes.
MS HEGER: All right. So as at the time of this document, that is, February 2018, you intended to return to India after you completed your studies?
THE WITNESS: Yes.
…
THE WITNESS: Yes.
THE INTERPRETER: No. If we say that we won’t go to India, then, obviously, they will not give us visa. So we have to tell them that we are to go back.
MS HEGER: Well, I will ask you again. Was it the truth or not: what you said here in this document?
THE WITNESS: This is truth. Yes.
THE INTERPRETER: Yes.
MS HEGER: So it was the truth?
THE WITNESS: Yes.
MS HEGER: Okay. And on the next page, page 5, do you see the third bullet point
there – no, the fourth bullet point. It says:
I’ve left my son in India. The reasons behind the same include the fact that I always intend to return to my home country, India.
Do you see that?
THE WITNESS: Yes.
MS HEGER: All right. Well - - -
THE WITNESS: Yes.
MS HEGER: Was that the truth at the time of this document, that is - - -
THE WITNESS: Yes.
MS HEGER: - - - February 2018?
THE WITNESS: Yes.
Necessarily, the learned primary judge was entitled to rely upon Ms Grewal’s evidence before her that not only had she previously indicated that she intended to return to India at the completion of her studies to be with Simrat, but that those statements were true.
Before this Court it was submitted that Ms Grewal subsequently gave inconsistent evidence with the above and that the learned primary judge should not have accepted her initial version.
Although, given what has been said above, it is not strictly necessary to determine the point, it is not possible to perceive that Ms Grewal intended anything other than what is recorded in the passages cited above. Certainly, there was no submission on behalf of the appellant to suggest that the learned primary judge’s methodology in assessing the evidence of Ms Grewal was erroneous. It was only said that her evidence should not have been taken “so highly”. However, Ms Grewal had sworn that her previous statements of intention to return to India were true and no submissions were made suggesting that the primary judge’s forensic approach in assessing that testimony was inappropriate. Indeed, to do so would be a difficult task to undertake on behalf of Ms Grewal as the litigation guardian. The starting point would have to be that Ms Grewal was deliberately telling untruths for the purposes of securing a visa and, in particular, when she was giving evidence under oath before the Tribunal. It would also involve the submission that she was further telling those untruths before the primary judge when she gave the evidence in the above passages. Even if it were possible to overcome that hurdle, the second submission must be that although she is a witness who is not worthy of credit, she should be believed on a different version of her evidence. With respect, there is no possible basis for undermining the primary judge’s finding in relation to Ms Grewal’s state of mind at the relevant time. Not only was no credible basis for doing so established, the evidence from the transcript indicates that only one finding was open. The appellant’s case in this respect does not establish any doubt about the primary judge’s finding.
The appellant also seemed to challenge the primary judge’s conclusion that Ms Grewal “accepted that it was not her intention that, if he [Simrat] came back to Australia, she would return to India without him”. The point being made by the primary judge in this respect was that Ms Grewal’s desire was to be with her son wherever he was. As he was in India, that was where she intended to go. The primary judge’s conclusion is supported by Ms Grewal’s evidence before the primary judge. Her evidence was:
MS HEGER: But what I am suggesting is if he came back to – it wasn’t your intention that if he came back to Australia you would leave and go back to India, was it? That is, leave him in Australia while you went to India.
THE INTERPRETER: No, no.
In reliance upon the assertion that the primary judge’s finding in relation to this was in error, it was submitted that Ms Grewal had indicated her intention to return to India to be with Simrat. The part of the transcript relied upon was as follows:
MS HEGER: And that’s why you left your son there: because you intended to return to India to be with him at this time. Correct?
THE WITNESS: Yes.
There was some confusion in the submissions on this issue. The appellant seems to cavil with the proposition that she agreed that she left Simrat in India because she intended to return to India to be with him, although that is precisely what she said. By the tenor of her evidence it was axiomatic that if he were not in India she would not go there. Again, there was no foundation established as to why the primary judge should not have accepted the sworn evidence of Ms Grewal on this issue as well.
Necessarily, the challenges to the factual findings of the primary judge made at [53] of her reasons fail. First, because those findings are entirely in accordance with the evidence. Secondly, no reason has been shown as to why the primary judge should not accept Ms Grewal’s sworn evidence. Thirdly, because the appellant does not say Ms Grewal is a dishonest or untruthful witness.
A further challenge was made to the primary judge’s conclusion at [63] of her reasons that the reason that Simrat returned to Australia in 2019 was that his paternal grandparents were in poor health and that Ms Grewal was worried that they would not be able to look after him for much longer. Although this conclusion was in some way contested, it was only faintly so and, indeed, in the face of Ms Grewal’s own evidence her Honour’s finding was entirely supportable. In the course of cross-examination the following appeared:
MS HEGER: Well, what I’m suggesting to you is that the reason you sought to bring Simrat out in 2019, is because you were worried about your husband’s parents health; is that right?
THE INTERPRETER: Ye. Yes, otherwise it would have been maybe later.
Subsequently, Ms Grewal claimed that she might have brought Simrat out earlier than 2019 had she been aware of the existence of an option to acquire a tourist visa. That part of the transcript read as follows:
MS HEGER: And what I’m suggesting to you is that even if you had found out the tourist visa option earlier than 2019, you wouldn’t have acted on that because you were quite content for Simrat to stay with the grandparents in India?
THE INTERPRETER: No, we would have tried anyway. That is why we were for 457 visa again and again.
Despite the best efforts of counsel for the appellant, the evidence before the primary judge supported the primary judge’s conclusions. Unlike in many cases, here the evidence relied upon by the learned primary judge in making her findings was sworn testimony of the party now seeking a contrary conclusion. Importantly, nothing was identified which suggested that any error existed in the primary judge’s factual analysis of this issue. Indeed, no basis was advanced for reaching a contrary conclusion other than Ms Grewal also made some slightly inconsistent remarks. No case was made that some alternative finding was more consistent with Ms Grewal’s evidence as a whole or other known circumstances. Rather, the case sought to be made was that the Court should not accept Ms Grewal’s direct evidence on a point, but make a different finding relying on inferences from less direct evidence. No basis for doing that was established.
As a matter of practical reality, the insurmountable difficulty for the appellant is that, in order for Ms Grewal to obtain a number of the visas which she did, she was required to assert and establish her intention to return to India at the completion of her studies. She did that on multiple occasions and emphatically. However, for the purposes of the present application, being to establish that Simrat’s home was always in Australia, she needs to assert and establish that it was always her intention to remain in Australia and make her home here. Necessarily both cannot be true. The primary judge was entitled to accept one version of her statements as her Honour did.
A further difficulty for success on this appeal is that it would need to be shown that Ms Grewal’s sworn evidence to the primary judge, and the evidence which she had given previously, was untrue and deliberately so, but that she ought now be believed on an alternative version of facts. Nothing was identified as suggesting that the primary judge erred in not following that course.
It follows that the appellant has no prospects of succeeding on the proposed new ground of appeal regardless of how it might be formulated.
Absence of justiciable error
A further major submission made on behalf of the Minister in opposition to the application for leave was that the proposed appeal identified no justiciable error by the primary judge. Rather the appellant’s approach was to circumvent the primary judge’s decision without identifying error and then articulating a different basis on which it is said that Simrat was ordinarily resident in Australia.
The principles on which appellate courts proceed are not in doubt and were articulated in the Minister’s written submissions as follows:
6.The exercise of the court’s appellate jurisdiction in this case is governed by Div 2 of Pt III of the Federal Court of Australia Act 1976 (Cth) and involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Branir) at [20] per Allsop J, with Drummond and Mansfield JJ agreeing; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 (Aldi) at [45] per Perram J. The appellate court must conduct a “real review” of the trial and the primary judge’s reasons: Lee v Lee (2019) 266 CLR 129 at [55] per Bell, Gageler, Nettle and Edelman JJ, citing Fox v Percy (2003) 214 CLR 118 at [25] per Gleeson CJ, Gummow and Kirby JJ and Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550 at [43] per French, Bell, Keane, Nettle and Gordon JJ. The task of the appellate court is the correction of error: Branir at [22]. As such, for the appellate court to vary or reverse the decision of the primary judge, it is necessary for an appellate court to demonstrate error in the primary judge’s findings or conclusion: Branir at [21].
7.Error is not demonstrated merely because the appellate court disagrees with the primary judge: Aldi at [45]. And, conversely, it is unnecessary for the primary judge’s decision to be characterised as “plainly” or “obviously” wrong: Aldi at [6]-[7]. Instead, what constitutes an error for these purposes depends on the nature of the impugned findings or conclusions by the primary judge: Branir at [24] to [25].
In the written submissions filed on behalf of the appellant, it was suggested that the “better reading” of the evidence was that Ms Grewal’s plans were to bring Simrat back to Australia. On that basis it was submitted that Simrat was relevantly ordinarily resident in Australia because he had his home here in accordance with paragraph (a) of the definition of “ordinarily resident”. Although it might be accepted that this case is not one involving the exercise of discretion, such that there is only one real answer to the issue in dispute, to suggest that a different conclusion is the “better reading” is an insufficient identification of error on which to found an appeal.
When pressed during the appeal, counsel for the appellant submitted that the primary judge’s error was the failure to determine that Simrat was ordinarily resident in Australia under the first limb of the definition when that issue had been raised. As mentioned above, that issue was not put to the primary judge for determination.
As the appeal progressed, counsel for the appellant sought to articulate some appellable error in the primary judge’s reasons, though he was not able to do so by reference to any specific matter. In any event, given what has been said above in these reasons, there is no need to reach a conclusion in relation to this particular issue.
Conclusion
In the circumstances there is no basis on which to doubt the primary judge’s finding. The appeal on the proposed new grounds cannot succeed. It follows that the application for leave to amend must be dismissed and the appeal must be dismissed with costs.
The Court acknowledges that Mr Li, counsel for the appellant, appeared on a pro bono basis. The Court is grateful for the assistance he provided in carefully presenting the appellant’s case.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Derrington and Neskovcin. Associate:
Dated: 18 June 2024
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