Applying for an Australian Citizenship as an Ordinarily Resident in Australia
The Applicant, who was born in March 2006 in Campsie, NSW of South Korean parents, filed an application on 11 July 2018 for review of a decision of a delegate of the Minister for Home Affairs dated 11 October 2017 affirming an earlier decision by a departmental delegate to refuse to give him evidence of Australian citizenship.
The Applicant’s father was appointed as a litigation guardian. In a further amended application filed on 29 May 2019, the Applicant also seeked a declaration that he is an Australian citizen by operation of s.12(1)(b) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
Background Facts of the Australia CItizenship Applicant’s Parents
Father’s Australian Migration History
First came on a tourist visa in 2002
Visited three times between March to December 2003 (ETA) (Business Entrant – Long Validity)
Four times in 2004 (ETA) (Business Entrant – Long Validity)
Jan 2005 – one time only (ETA) (Business Entrant – Long Validity)
Unlawful from 10 April 2005
12 December 2011 – departed Australia
Changes his name
22 December 2011 – returned to Australia with a new passport and ETA visitor visa under new name
Mother’s Australian Migration History
Visit three times between October 2004 and July 20005 (ETA)
Jan 2005 - came back to Australia on a Tourist visa
Unlawful from 10 October 2005
24 March 2010 – departed Australia with Bridging Visa E
Changed her name the name of the two children to obtain fresh South Korean passports in their new names
1 April 2011 – came back to Australia on ETA visitor visa issued under new name
2011 – departed twice to extend their visitor visa
28 September 2011 – last arrival
Facts that are the same between Mother and Father
Nov 2005 – granted with BVE to depart Australia but did not
September 2006 – applied for protection visa
December 2006 – deemed invalid
11 January 2007 – bridging visas E cased
15 January 2007 – lodged a valid protection visa (applicant was not included)
7 May 2007 – refused and did not seek review
35 days from 7 May 2007 – bridging visas E ceased again and became unlawful
23 December 2011 – the Applicant’s mother applied (in Australia) for a Student (Subclass 573) visa in her new name, including her family members.
17 January 2011 – granted with student visas
25 May 2015 – student visa was cancelled on the basis that she was not a genuine student
28 May 2015 – sought merits review
March 2016 – applicant turned ten
11 July 2016 – AAT affirmed the decision.
9 August 2016 – associated bridging visas ceased. The Applicant (and his parents) remained in Australia as unlawful non-citizens.
12 August 2016 – made Ministerial Intervention
15 August 2016 not referred to Minister
4 May 2017 – applied for Evidence of Australian citizenship
8 May 2017 – deemed invalid
25 May 2017 – made a valid application
12 July 2017 – the application was refused as the delegate was not satisfied that the Applicant was ordinarily resident in Australia throughout the period of ten years commencing from the day of his birth and hence found that he did not acquire Australian citizenship by operation of law on his tenth birthday.
11 October 2017 – the Department affirmed the decision not to give the Applicant a notice stating that he was an Australian citizen.
The Ground of Argument 1
The Respondent’s delegate (the delegate) erred by asking itself the wrong question and misapplying the law in determining whether the Applicant was an Australian citizen by birth.
Simply because a person was an unlawful non-citizen or in Australia as the holder of a temporary visa, this did not, of itself, mean that the person was not “ordinarily resident” in Australia at that time. Depending on the particular circumstances of the case, such a person might be “ordinarily resident” at that time.
The delegate placed weight on the Applicant’s physical residence in Australia for almost nine of the first ten years of his life and had regard to such other evidence as was before her relevant to the Applicant’s connection to Australia, but also took into account the fact that he either held no visa or a temporary or bridging visa while in Australia. It was open to the delegate to have regard to the Applicant’s visa status in considering the substance of his connection to Australia.
In that context, the delegate considered that the “terms and conditions” of the temporary and bridging visas held by the Applicant and his parents indicated that they had a temporary purpose in entering and remaining in Australia which was “not reflective of persons either being or having an intention to be ordinarily resident in Australia”. This recognized the legal limitations on the actual visas held by the Applicant. It was not the sole basis for the delegate’s decision.
The delegate also had regard to the fact that there were significant periods of unlawfulness in the first four years of the Applicant’s life during which time no visas were held or visa applications lodged by or for him. This was also said to indicate a “likelihood” that the family did not view Australia as their permanent home during this period. In addition, the delegate referred to the absence of any evidence for the Applicant to show any connection or integration with the Australian community in the period in which he was largely unlawful or outside Australia from his birth in 2006 through to his commencement at school in 2012.
In considering whether the Applicant had been ordinarily resident in Australia throughout the ten years from the date of his birth, the delegate considered the substance of his connection to Australia throughout that period, including (but not limited to) the visas he and his family held and periods of unlawfulness and what that might say about their intention to reside in Australia, as well as the other evidence before her as to the Applicant’s connection to Australia.
Does Ground 1 make out? No.
The Ground of Argument 2
Further and in the alternative, the Court ought to find that the Applicant is an Australian citizen based on the evidence before it, and make orders giving effect to these findings.
Applicant was born in Australia. His parents established a household, engaged with the local community, made plans for their future, made attempts to regularize their immigration status via broker of an agent named Mr. A
Applicant was at all times a minor under the control of his parents
Applicant’s parents left frustrated due to the fraudulent act of MR. A
Applicant has at all material times considered Australia to be his permanent abode.
In short, the Court looks at all the evidence on the balance of probabilities. The Court actually looks at evidence in detail, going back to passenger cards the Applicant’s mother completed back in 2011 where she declared Korea as her country of residence.
Having regard to the substance of the Applicant’s connection with Australia and the intention of his parents, I accept that he was ordinarily resident in Australia from December 2011 onwards. The difficulty for him is that it has not been established that he was ordinarily resident in Australia “throughout” the period of ten years beginning on the day that he was born.
Although the Applicant’s mother claimed that while in South Korea she was in constant contact with friends and the church community in Australia and talked to her friends about her wish to return to Australia there is no corroborative evidence in this respect.
Does Ground 2 make out? No
As the Applicant was not ordinarily resident in Australia throughout the period specified in section 12(1)(b) of the Citizenship Act his application for a declaration must be dismissed.
What can we learn?
When assessing whether the Applicant is ordinarily resident in Australia, the Applicant’s migration history will be looked at extensively from all the applications the Applicant as well as his parents made before turning 10 years old. This case reflects extensively on Glesson J’s statement in K (name redacted) at [27] and [33]:
Citizenship Act 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”[27]
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.
How Can Agape Henry Crux Help You
If you want to find out more about your eligibility or need advice on your Australian citizenship applicationr, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
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