Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133

Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133 Appeal from: Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459

File number(s): NSD 90 of 2023

Judgment of: LOGAN, BURLEY AND MCEVOY JJ

Date of judgment: 15 August 2023

Catchwords: ADMINISTRATIVE LAW – Citizenship – appeal from declaration of primary judge of this Court – where primary judge declared that Australian-born child of foreign nationals had been an Australian citizen since his 10th birthday by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) – where parents had resided in Australia for many years on a series of temporary visas and child travelled to India at the age of four months to be cared for by his grandparents while his mother was studying in Australia – where the child remained in India for five years and 10 months while his parents lived and worked in Australia – whether primary judge erred in holding that throughout the first 10 years of his life the child was "ordinarily resident" in Australia as defined by s 3 of Citizenship Act – no error by the primary judge – appeal dismissed

Legislation: Australian Citizenship Act 2007 (Cth) ss 3, 12(1)(b), 37(1) Judiciary Act 1903 (Cth) s 39B(1A)(c)

Cases cited: Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263; [2016] FCA 959 Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458 Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459