Recently the Federal Court of Australia, one of the highest authorities available to appellants, reviewed a decision in the case of the Minister for Immigration, Citizenship and Multicultural Affairs v Kaur [2023] FCAFC 133.
The case concerned the son of Mr and Mrs Kaur, the appeal was brought to bear by the Minister through his department and appealed against a previous decision by a single judge of the Federal Court.
The department was appealing the previous decision that the child of Mrs Kaur, who was born in Australia, was an Australian citizen and had been since his 10th birthday when his father applied for confirmation of his Australia citizenship under the Australian Citizenship Act (Cth) 2007. Under section 12, a child born in Australia who was ordinarily a resident in Australia for a period of ten years since the date of birth is an Australian citizen.
Initially, the Department had provided the boy with a certificate of citizenship on 3 June 2020. However, the citizenship certificate issued was subsequently cancelled.
The department was relying on the fact that the boy had been born to foreign nationals not Australian citizens and had lived overseas for almost six years under the care of his grandparents from when he was a baby. Hence, the Department claimed in the appeal that the child did not live ordinarily in Australia as was necessitated by law.
In this latest judgement the Federal Court stated that the boy was ordinarily a resident in Australia and that his stay overseas was only temporary and for a special purpose which was to live temporarily under his grandparents’ care and this arrangement was never considered to be permanent. In fact, Mrs Kaur gave testimony that she believed her son would be back in Australia to live permanently with them by about 2013.
The appeal was dismissed by Justices Logan, Burley and McEvoy and the son of Mr and Mrs Kaur retained his Australian citizenship.
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