Australian Immigration Daily News

What is the proper interpretation of the Australian Citizenship Act? 

More specifically, how is section 12(1)(b) of the Act, which enables a person to acquire “citizenship by birth” if they are “ordinarily resident in Australia throughout the period of 10 years beginning on the day” the person is born (even if a parent of the person is not an Australian citizen or permanent resident) to be applied? 

Is it ok for the person seeking citizenship to live in another country for a period of time during the first 10 years after she/he is born? If it is, under what circumstances?  Must the person have a visa allowing her or him to return to Australia during the times that she/he is living outside Australia? 

These “thorny” issues of interpretation were raised by a case that was decided yesterday, 16 August 2016 by Judge Gleeson of the Federal Court: Kim v Minister for Immigration and Border Protection  (2016) FCA 959. 

The background of the case was that the applicant was born in Australia in December 2001.  At the time of the applicant’s birth, his father was the holder of a 457 visa, and his mother held a Bridging Visa A.  

About 2 years after he was born, the applicant’s parents had another son.  This son had a significant medical condition that required surgery.  As the applicant’s parents were not covered by Medicare, they could not afford to pay for the surgery for the applicant’s brother in Australia; however, as they were still covered under the Korean National Healthcare Scheme, the parents were able to afford the surgery in Korea.  

Consequently, the family left their possessions with friends in Australia, and returned to South Korea.  They remained there for over a year, from November 2003 until December 2004.  There was also a period of approximately a year during this time when the applicant, his mother and his brother did not have any type of visa which would have allowed them to re-enter Australia.  

So, against this background, was the applicant “sunk”?  Was it the case that he did not spend the entire 10 year period following his birth in Australia continuously, did he fail to satisfy the requirement of section 12(1)(b) of being “ordinarily resident” in Australia “throughout” the 10 year period after his birth.  

At first blush, you might think that would be the case, right? How can you be “ordinarily resident” in Australia throughout a particular period of time if you are in fact absent from Australia for more than a year during that period.  Not possible? 

Well, like so much of migration law, there is more to interpretation of the legislation than meets the eye, and things are seldom what they seem! 

The outcome of this case turned on the definition of the term “ordinarily resident”, which appears in section 3 of the Act.  Under that definition, a person can in fact be ordinarily resident in Australia even if is absent from Australia for some time.  Section 3 states that a person is taken to be ordinarily resident in Australia if she or he has her or his “home” in Australia or if Australia is the country of the person’s “permanent abode” even if she/he is temporarily absent from Australia. 

Surprising? 

So how exactly do you judge whether someone is indeed “ordinarily resident” in Australia for the purpose of determining whether they meet the requirements for citizenship under section 12(1)(b)? 

The starting point is the case of Lee v Minister for Immigration and Citizenship (2011) FCA 1458. 

In that decision, the following principles were stated: 

• The concept of “ordinarily resident” does allow for a person to be absent from Australia for periods of time, depending on the nature and extent of the absences;
• The question of whether a “temporary absence” from Australia would prevent a person from being considered to be “ordinarily resident” in Australia for the purposes of determining eligibility for citizenship is a “question of fact and degree”;
• The person’s intentions about returning to live in Australia after a period of temporary absence are relevant to determining whether the person is “ordinarily resident” (or in the case of a minor child, the intentions of the child’s parents 

In the event, Judge Gleeson’s analysis of these matters led to the conclusion that the applicant was ordinarily resident in Australia, and thus was eligible for Australian citizenship.  

So what aspects of the evidence did Judge Gleeson find sufficient? 

These: 

• The applicant’s family had travelled back to South Korea for the special purpose of seeking medical treatment for the applicant’s brother, and not for the purpose of taking up residency in South Korea or leaving Australia permanently;
• The applicant’s parents held the intention of returning to Australia throughout the time that the family was in South Korea  (as established by the fact that they consistently expressed their desire to return to Australia as soon as possible);
• The applicant’s family continued to have a strong connection to Australia while they were absent in South Korea, as evidenced by the fact that they had left substantial possessions in Australia; maintained a mailing address in Australia; and maintained contacts with their friends and church in Australia;
• The applicant’s family did not establish a home for themselves while in South Korea, but instead stayed with relatives the entire time;
• The applicant’s parents did not secure permanent employment while they were in South Korea;
• The family returned to Australia, collected their possessions and resumed the life they were living here as soon as they could after the applicant’s brother had recovered from his surgery. 

The case illustrates that determining whether an applicant for citizenship is ordinarily resident in Australia is dependent on the particular facts of the case.  And it also shows that one need not have a physical “dwelling” in Australia in order for Australia to be one’s “home” or “place of permanent abode”.  Nor is it essential that one even hold a visa which would allow lawful re-entry to Australia during periods of absence! 

So the long and short of it is: it definitely is possible to be “ordinarily resident” in Australia without even being here! 

Legal definitions are a wonderful thing, ain’t they? They can be so powerful that they bend the fabric of reality! 

What would Einstein think?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.