How Can Court Rulings Shape Your Citizenship Journey?

Court decisions in immigration and citizenship disputes do more than settle the parties' arguments; they clarify how laws are interpreted and applied. When judges define terms like “ordinarily resident”, their interpretation becomes a guiding precedent that benefits others. People in similar situations can rely on these rulings to understand their rights, gather the right evidence and present their cases confidently. This case shows how a family relying on temporary visas could obtain recognition of their child’s Australian citizenship by proving that Australia remained the child’s permanent abode even after years spent overseas. Understanding how courts reason about temporary absences, parental intent, and resident status helps future applicants anticipate questions and prepare stronger applications.

What circumstances led to the legal challenge?

The child (the applicant) was born in Australia on 21 March 2010 to parents who held a student visa and their dependent visa. Because neither parent was an Australian citizen or permanent resident (PR), the child could only gain citizenship if he was “ordinarily resident in Australia” during the first ten years of his life.
When the child was 4 months old, the grandparents offered to take him to India so his mother could complete her studies. The parents were living in a crowded share house, working irregular hours and facing financial strain. They expected the child to return to Australia by about 2013. The outgoing passenger card listed him as a visitor with India as his country of residence.
The child returned to Australia in March 2013, but despite the parents’ intention to keep him, he remained deeply attached to his grandparents in India and was returned after about 4 months. The child stayed in India for several more years while his parents worked and studied in Australia. The parents visited India, attempting to persuade him to return, but he was unwilling to leave without his grandparents.
By 2013, the parents leased their own unit and bought furniture, including a bed for the child. In 2015, the parents completed their studies and obtained skilled work visas. They decided to settle permanently in Australia and applied for a permanent visa.
The child returned to Australia in October 2016 on a visitor’s visa with his grandparents. The incoming passenger card again recorded India as his usual country of residence, but the parents intended him to stay permanently. He enrolled in school and has lived in Australia ever since.
When the child turned 10, his father applied for evidence of citizenship, arguing that the child became an Australian citizen automatically under s 12(1)(b) of the Australian Citizenship Act 2007. The authorities initially agreed and issued a certificate in June 2020. Seven weeks later, a delegate of the Minister cancelled it, finding the child was not a citizen because he had not been ordinarily resident in Australia. A review confirmed the cancellation in February 2022, leading to a judicial review in the Federal Court.

How did the court assess “ordinary residence” in this case?

What legal principles apply?

The court noted eight principles from prior cases like Kim and Lee, including:

A person can still be ordinarily resident in Australia despite some absences, depending on their nature and extent.
Whether a person is ordinarily resident is a question of fact and degree.
For minors, the parents’ intentions about where the child’s home is are crucial.
The residence must continue throughout the ten-year period.
A person can be ordinarily resident without permission to live permanently in Australia.

How did the evidence support the child’s residency?

The parents consistently viewed Australia as home, were embedded in the local Sikh community and planned for the child to return when possible. Their intention never changed, even when the child stayed longer in India than expected.
The child’s absence was for a temporary, special purpose: childcare while the mother studied and until the parents became financially stable. Although the absence lasted over five years, it was not intended to be permanent.
When the child returned in 2016, he enrolled in school and settled permanently. The court noted that by then, there was no doubt Australia was his permanent home.
The court gave little weight to the fact that the child entered on a visitor visa or that the passenger card listed India as his usual residence. These did not reflect the parents’ intention and were often completed to comply with visa conditions.

What conclusion did the court reach?

Justice Katzmann found that the child remained ordinarily resident in Australia throughout his first ten years. The lengthy absence in India did not outweigh the parents’ intention and the temporary purpose of that absence. The judge emphasised that “Australia was the place where [the parents] regularly or customarily lived” and it was the place to which they expected their son to return. The court declared that the child “has been an Australian citizen since his 10th birthday”. Consequently, the cancellation of the citizenship certificate was overturned, and costs were ordered against the Minister.

How can you prepare and address the Genuine Temporary Entrant (GTE) requirement?

The court observed that, during the relevant period, the parents held student visas and later work visas that required them to be genuine temporary entrants (GTE). Although this did not prevent them from considering Australia home, it highlights the importance of understanding and meeting the GTE criterion when applying for temporary visas. GTE assessments consider your circumstances, ties to your home country and intent to stay temporarily. Here are practical tips:

Document reasons for your stay (study, work or training) and show plans to depart after completing them. Provide evidence of employment prospects or family commitments in your home country.
Property ownership, ongoing business interests or family responsibilities can demonstrate your intention to return. This is particularly important when seeking subsequent visas.
If you need to leave Australia during your visa, explain the purpose and expected duration of your absence. In this case, the parents explained that their child’s absence was for childcare while they pursued studies.
Evidence such as leases, utility bills, employment records and community involvement can help prove where your permanent abode is.
Immigration laws are complex. Consulting an experienced professional before lodging applications or seeking judicial review can help ensure you meet requirements, such as the GTE, effectively.

In summary, a few takeaways from this case are:

Even long absences overseas can be considered temporary if the parents always intended the child to return and regarded Australia as home.
Holding a student or visitor visa does not automatically prevent a child from being considered an ordinarily resident.
Keep detailed records of your movements, visa applications, living arrangements and reasons for travel; they can prove your ongoing connection to Australia.
When applying for student or work visas, be prepared to show genuine temporary intent and provide evidence of ties to your home country.
If a citizenship or visa decision seems incorrect, judicial review may provide relief. Courts can overturn administrative decisions when evidence shows the decision maker misapplied the law.

How Can Agape Henry Crux Help You

Every case is unique, and small details can make a big difference. Speak to an Accredited Specialist in Immigration Law for tailored advice to your case before it is too late. You can book a Migration Planning Session to schedule a time with one of our immigration lawyers to seek professional advice by calling 02-83105230 or emailing us at info@ahclawyers.com.

We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.

Client Testimonials

….we call it Support Network

Navigating the immigration law process may be difficult, so our former clients have agreed to share their experiences through telephone chats, emails, and in-person meetings.

These are their stories…

Featured