Kim v Minister for Immigration and Border Protection [2016] FCA 959

Kim v Minister for Immigration and Border Protection [2016] FCA 959

The applicant was ordinarily resident in Australia throughout the first 10 years of his life because, despite the approximately 13-month stay in South Korea, he continued to have his home in Australia and Australia remained the country where he regularly or customarily lived. The South Korean stay was for special and temporary purposes, namely medical treatment for his brother and later care for his grandmother; the parents consistently intended to return to Australia, maintained possessions, contacts and a mailing address in Australia, did not establish a home in South Korea, and returned promptly when able. The absence of visas during parts of the stay did not materially alter that...

Jurisdiction
Australia
Judgment Date
16 August 2016
Procedural Posture
Application for Declaration of Australian Citizenship and Related Relief Under S 39 B(1 A)(c) of the Judiciary Act 1903 (cth) / Final Judgment
Outcome
Application allowed; declaration made that the applicant is an Australian citizen by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth).
Legal Topics
['citizenship by Birth' 'ordinarily Resident in Australia' 'jurisdictional Fact' 'declaratory Relief' 'cancellation of Evidence of Australian Citizenship']
['migration' 'citizenship' 'administrative Law' 'practice and Procedure'] ['citizenship by Birth' 'ordinarily Resident in Australia' 'jurisdictional Fact' 'declaratory Relief' 'cancellation of Evidence of Australian Citizenship']

Case Brief

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Procedural Posture

Application for Declaration of Australian Citizenship and Related Relief Under S 39 B(1 A)(c) of the Judiciary Act 1903 (cth) / Final Judgment

Legal Issues

  1. 1 ['Whether the applicant became an Australian citizen under s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) by being ordinarily resident in Australia throughout the first 10 years of his life.' 'Whether the applicant had his home in Australia, or Australia was the country of his permanent abode, during his approximately 13-month absence in South Korea between 5 November 2003 and 3 December 2004.' 'Whether the absence of visas permitting return to Australia during parts of the South Korean stay prevented the applicant from being ordinarily resident in Australia.' "Whether relief should be granted in relation to the cancellation of the applicant's notice of evidence of Australian citizenship."]

Ratio Decidendi

The applicant was ordinarily resident in Australia throughout the first 10 years of his life because, despite the approximately 13-month stay in South Korea, he continued to have his home in Australia and Australia remained the country where he regularly or customarily lived. The South Korean stay was for special and temporary purposes, namely medical treatment for his brother and later care for his grandmother; the parents consistently intended to return to Australia, maintained possessions, contacts and a mailing address in Australia, did not establish a home in South Korea, and returned promptly when able. The absence of visas during parts of the stay did not materially alter that...

Court Disposition

Application allowed; declaration made that the applicant is an Australian citizen by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth).

Orders

  • ['The Court declares that the applicant is an Australian citizen by reason of the operation of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth).' "The parties are granted liberty to apply within seven days for further orders to give effect to the Court's reasons." "The first respondent pay the applicant's...