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 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 59 Date of hearing: 4 May 2023 Counsel for the Appellant: Mr P Knowles SC and Ms N Gollan Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr D Godwin Solicitor for the Respondent: Teleo Immigration Lawyers ORDERS NSD 90 of 2023 BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Appellant AND: GURNOOR SINGH SIDHU BY HIS LITIGATION REPRESENTATIVE RANJIT KAUR Respondent order made by: LOGAN, BURLEY AND MCEVOY JJ DATE OF ORDER: 15 August 2023 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 Master Gurnoor Singh Sidhu was born in Australia on 21 March 2010. 2 Shortly after his 10th birthday Master Sidhu's father, Mr Sukhdeep Singh Sidhu, applied under s 37(1) of the Australian Citizenship Act 2007 (Cth) for evidence of Master Sidhu's Australian citizenship. The timing of that application was not coincidental. At the time of Master Sidhu's birth neither his father nor his mother was an Australian citizen or an Australian permanent resident. They were each citizens of the Republic of India. Thus, the only basis for Master Sidhu's attainment of Australian citizenship by birth was if, in the terms of s 12(1)(b) of the Citizenship Act, he was "ordinarily resident in Australia throughout the period of 10 years beginning on the day [he was] born". 3 Initially that application was successful, with a certificate evidencing citizenship issuing on 3 June 2020. However, within but a few weeks of that occurrence there would seem to have been second thoughts within the department presently administered by the Minister for Immigration Citizenship and Multicultural Affairs about the correctness of the administrative conclusion which had led to the issuing of that certificate. A notice of intention to cancel the evidentiary certificate was given to Master Sidhu's father. On 2 October 2020, a delegate of the Minister concluded that Master Sidhu was not eligible for Australian citizenship and cancelled the evidentiary certificate accordingly. Although internal review of that decision was sought on behalf of Master Sidhu, that proved unsuccessful. On 24 February 2022, another delegate of the Minister decided to affirm the cancellation decision. 4 Master Sidhu, by his mother Ms Ranjit Kaur, as his litigation representative, then invoked the original jurisdiction conferred on the Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) so as to seek a declaration that he had been an Australian citizen since his 10th birthday and a related order giving effect to that declaration. On 7 December 2022, the Court made such a declaration, reserving liberty to apply in the event that any consequential order was necessary: Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459. 5 The Minister has appealed against the granting of that declaratory relief on the grounds that the primary judge erred in finding that Master Sidhu was ordinarily resident in Australia throughout the period of 10 years from his birth and, therefore, in holding that he had been an Australian citizen since his 10th birthday by reason of the operation of s 12(1)(b) of the Citizenship Act. 6 The Minister submitted that the primary judge made the following errors: (a) a misapplication of s 12(1)(b) of the Citizenship Act by giving determinative weight to the issue of subjective intention; (b) to the extent subjective intention was a relevant factor, focusing exclusively upon the intention of Master Sidhu's parents; and (c) to the extent the subjective intentions of Master Sidhu's parents were relevant, mischaracterising the evidence on this issue and focusing exclusively on the parents' future intention, rather than their present intention throughout the relevant 10 year period. 7 A necessary statutory prism though which to view whether there is any merit in these allegations of error is supplied by the definition of "ordinarily resident", found in s 3 of the Citizenship Act: A person is taken to be ordinarily resident in a country if and only if: (a) he or she has his or her home in that country; or (b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country. However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only. 8 Self-evidently as a matter of ordinary English usage, the employment by Parliament in this definition of the emphatic conjunction, "if and only if" means that, subject only to the qualification found in the second sentence of the definition, the apparently alternative criteria specified in the first sentence in the definition are exhaustive of the circumstances in which a person may be taken to be "ordinarily resident" in a country. 9 For the reasons that follow we have concluded that there has been no misapplication of s 12(1)(b) of the Citizenship Act and the Minister's allegations of error in the reasons of the primary judge are not made out. The relevant facts 10 Before the primary judge, evidence in support of the application was given on affidavit by Mr Sidhu and Ms Kaur, each of whom gave oral evidence following a request by the Minister that they attend for cross-examination. The Minister introduced documentary evidence of movements into and out of Australia, related incoming or outgoing passenger cards, and of their and Master Sidhu's visa status from time to time. On the basis of this evidence the primary judge made particular findings of fact. The findings themselves were not challenged on the appeal; only, because of the alleged errors, the conclusion ultimately drawn that Master Sidhu satisfied s 12(1)(b) of the Citizenship Act, because he was "ordinarily resident in Australia throughout the period of 10 years beginning on the day [he was] born". In these circumstances, it is both appropriate and convenient to reproduce the findings of fact made by the primary judge (at [31] – [48]). 11 Mr Sidhu and Ms Kaur arrived in Australia in 2009 so that Ms Kaur could study. Mr Sidhu obtained work as a "trolley pusher" the following year. 12 On 11 March 2010 (10 days before Master Sidhu was born), Mr Sidhu's parents arrived in Australia to help look after their then imminently to be born grandchild. They told Ms Kaur that they would look after Master Sidhu for as long as she liked. He was their first grandchild. 13 Mr Sidhu wanted Master Sidhu to live in Australia and "have a good future". On 4 August 2010, however, when Master Sidhu was but four months old, his grandparents suggested taking him back to India so they could look after him while Ms Kaur was studying. Mr Sidhu and Ms Kaur agreed. At the time they were living in a group house with five other people. Mr Sidhu was working irregular hours and was on call. Ms Kaur was a full-time student. They were in financial straits, struggling to make ends meet, could not afford a place of their own, and it was difficult in all the circumstances to look after a baby. Most of Ms Kaur's Indian classmates sent their babies to India to be cared for by their grandparents. Mr Sidhu believed Master Sidhu would return "by about 2013". 14 On his outgoing passenger card, Master Sidhu was described as a "visitor or temporary entrant". His "country of residence" was recorded as "Indian" [sic]. 15 His parents remained in Australia. They found separation from their son very difficult. Ms Kaur repeatedly entreated her husband to bring him back. 16 On 15 June 2011, Ms Kaur applied for a Student (Temporary) Visa. Mr Sidhu was named in the application as a member of the same family unit. Master Sidhu was not. But that was not because his parents did not regard him as a member of the family. Ms Kaur explained in her affidavit that when their visas were going to expire she asked her migration agent to extend Master Sidhu's visa but he told her that could not be done "because Gurnoor is offshore". The agent told her that once she received a visa she could add him when he came to Australia. 17 On 19 July 2012, Ms Kaur made a further application for a Student (Temporary) Visa. This time both Master Sidhu and his father were named as members of the same family unit. That same year, Mr Singh and Ms Kaur started looking for "a place for [themselves]". In November 2012 they found a "home" in West Ryde, which they leased for six months and shared with another couple. 18 In 2013, Mr Singh and Ms Kaur leased a two bedroom unit in their own name and purchased furniture for the unit, including a Queen bed so that Master Sidhu could sleep with them, as was the custom in India. That was the first time they had space for Master Sidhu in their home. 19 On 2 February 2013, an application for a tourist visa was made on behalf of Master Sidhu. That application listed Master Sidhu's "usual country of residence" as India and recorded his "current residential address" as an address in India. Both Mr Sidhu and Ms Kaur signed the visa application. 20 On 17 March 2013, Master Sidhu returned to Australia, accompanied by his paternal grandparents. This was 956 days (2 years, 7 months and 12 days) after he had left in 2010. His incoming passenger card, dated 17 March 2013, which was completed by his father, indicated that: (1) he did not intend to live in Australia for the next 12 months; (2) his usual country of residence was India; (3) he intended to stay in Australia for six months; and (4) the main reason for his trip was to visit friends or relatives. 21 Notwithstanding what was recorded on the incoming passenger card, the primary judge found that his parents had no plans to send him back to India. Ms Kaur told her husband that "we will keep him with us in Australia and we can send him to childcare when I am studying or at my college". She intended to add Master Sidhu to her student visa. But these intentions were thwarted when she and her husband realised that Master Sidhu was too attached to his grandparents and friends in India. This turn of events was, her Honour found, understandably distressing for them. Ms Kaur deposed: Unfortunately, Gurnoor had become very attached to his grandparents. We tried to get him to sleep in the bed with us but every night he started crying – some times the whole night we didn't sleep. He was sleeping for a few minutes and then started to cry again because he missed sleeping with his grandparents. He also missed playing with friends in the neighbouring houses. I know this as he would point at surrounding houses and say the name of the neighbour in India. He was calling me Ranjit rather than mum. He was refusing to eat from me. He would only eat from my father or mother-in-law. My husband decided to send him back to India for a while with my husband's parents. I thought if we kept him here in Australia at that time he could become very sick from crying and not sleeping and not eating. 22 In the result, and contrary to their intention and desire, Master Sidhu remained in Australia for only about four months. He departed Australia for India with his paternal grandparents on 13 July 2013. Master Sidhu's outgoing passenger card indicated that his "country of residence" was India and that he was a "visitor or temporary entrant". 23 Mr Sidhu and Ms Kaur remained in Australia. As Mr Sidhu put it in his affidavit, they felt they had no choice but they believed that when he got older he would recognise him and his wife as his parents and settle with them. Neither parent contemplated a future for their son in India. 24 In 2014, Ms Kaur travelled to India for a month to be with her son for his fourth birthday. At that stage Master Sidhu did not seem ready to return to Australia with his mother. He would not sleep with her on her side of the bed. He would not take food from her unless she "bribed him with treats". She tried in vain to convince him to come back with her. 25 In 2015, Ms Kaur travelled to India again, this time with her husband. By then Master Sidhu was addressing his parents as "mum" and "dad". Sometimes he would sleep with his mother in the same bed. He would accept food from her. Both parents felt he was ready to return to Australia and when they were due to return here, Master Sidhu told them he would like to "come", too. But Master Sidhu would not leave without his grandparents and, for various reasons, the grandparents were unable to leave at that time. 26 In about October 2015, Ms Kaur completed her studies. In December that year, she began work as a chef. Not long afterwards, she and her husband applied for work visas, sponsored by her employer. Until that time, she held a succession of student visas. At the time of the decision to cancel the notice of evidence of Master Sidhu's citizenship they held Temporary Work (Skilled) visas. She and her husband also applied for a Migrant (subclass RN-187) visa, which is a visa that allows skilled workers nominated by their employers in regional Australia to live and work in Australia permanently. Ms Kaur testified that it was in about December 2015 that she and her husband finally decided to stay here "to be [a] permanent resident". That testimony accorded with the content of her representations to the Department in response to the notice of intention to consider cancellation of the evidentiary notice. 27 On 15 October 2016, Master Sidhu returned to Australia on a visitor's visa, accompanied by his paternal grandparents. His incoming passenger card, completed by his father, indicated that: (1) he did not intend to live in Australia for the next 12 months; (2) his usual country of residence was India; (3) he intended to stay in Australia for three months; and (4) the main reason for his trip was visiting friends or relatives. 28 Mr Sidhu's evidence, which the primary judge accepted, was that he answered the questions in this way because of the terms of his visa. Her Honour found that, while he and his wife were not sure how well Master Sidhu would settle, his parents' intention and expectation was that he would stay here permanently. The following month he started school here. And, despite what was recorded in his incoming passenger card, Master Sidhu has lived in Australia ever since. Her Honour considered that the evidence suggested that he had adjusted well and had integrated into the Australian community. Her Honour concluded that there could be no doubt that Australia was Master Sidhu's permanent home now and that he had been ordinarily resident here at least since he returned in October 2016. The reasoning of the primary judge 29 At trial, the primary judge was taken to two cases earlier decided in the original jurisdiction in relation to the meaning of "ordinarily resident" in s 3 of the Citizenship Act: Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 and Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263. Her Honour expressly considered, and sought to apply to the findings of fact which she made, the statements made in these cases concerning the meaning of "ordinarily resident". 30 The primary judge derived eight propositions (at [19]-[26]) concerning the meaning and application of the definition of "ordinarily resident" from her consideration of Lee and Kim: (a) The concept of "ordinarily resident" allows for some absences, depending on the nature and extent of the absences. (b) Whether a person is ordinarily resident in Australia is a question of fact and degree. So, too, is the question whether a temporary absence from Australia prevents a person from being "ordinarily resident" in Australia. (c) Whether at the time of departure and during the temporary absence, the person "intends to return to live in Australia after the temporary absence is relevant to determining" whether they are "ordinarily resident" in Australia during the absence. (d) Whether a minor is "ordinarily resident" will generally be determined by reference to the position of the parents and, to the extent that a subjective intention is to be attributed to the person for the purpose of assessing whether they are "ordinarily resident" for the first 10 years of their life, it is the parents' intention that must be considered. (e) The use of the word "throughout" imports a notion of continuity of constancy. (f) A person may be ordinarily resident in Australia even if they are homeless. (g) A person need not be lawfully resident in Australia to be "ordinarily resident" here. (h) The term "permanent abode" means no more than the place where a person "regularly or customarily" lives (Kim at [33]). 31 The Minister did not gainsay the accuracy of these derived propositions. Nor, subject to what follows, do we. 32 Instead, the Minister's submission was that her Honour had deviated from them in her consideration of the facts as found by her. That deviation, and the inspiration for the three alleged errors, were said to be evident in the way in which the primary judge had, at [52], stated: "The focus must be on the intentions of Gurnoor's parents." 33 In light of the errors that the Minister submitted had been made by the primary judge, we make two observations about this particular statement by her Honour, each of which is grounded in reading her Honour's reasons for judgment as a whole. 34 The first observation is that this statement by the primary judge was not just responsive to but took up a submission made to her by the Minister as well as, expressly, the following statement made by Foster J in Lee, at [153]: The physical whereabouts of the applicant during the first 10 years of his life and the circumstances in which and the purpose for which he moved from place to place in that period need to be carefully examined in order to determine what the intentions of his parents were as to where they wanted to live. 35 Foster J was not, in this passage from Lee, seeking to render the subjective intentions of a child's parents determinative in relation to the ordinary residence of their child. Neither was the primary judge in citing them. Rather, with respect to acquisition under the Citizenship Act of citizenship by birth, Foster J was emphasising the need, in relation to the first 10 years of the life of a child born in Australia, to look to the child's physical whereabouts, any movements from place to place and the purpose and circumstances of such movements in order to determine intentions as to where the parents wanted to live. The factual context in which Foster J made this statement in Lee is also important. The facts in Lee included that in the 10 year period following the applicant's birth, he departed Australia with one or both of his parents on 10 separate occasions and was absent for approximately four years in total, with the longest continuous absence being more than two years. Further, the evidence in Lee also disclosed that the applicant and his mother had visited Canada and New Zealand during the relevant 10-year period for the purpose of investigating the possibility of the family settling permanently in those countries. 36 Having referred to this passage from Lee and to the Minister's submission to her Honour that, generally, the focus in relation to the "ordinary residence" of minors is on the intentions of the parents, the primary judge added that a reason for this surely was that "a child of tender years has no control over where he or she lives". We respectfully agree. 37 The second observation about the statement in [52] of the primary judge's reasons for judgment is that this statement is not to be read in isolation from the balance of her Honour's reasons. Consideration of her Honour's reasons for judgment as a whole reveals a multi-factorial analysis, grounded in the propositions as to the meaning of s 12(1)(b) of the Citizenship Act, which her Honour distilled from Kim and Lee but also displaying (at [55]) a perfectly proper and relevant understanding of the role which cultural considerations might play in relation to the care of a child. 38 The primary judge expressly took into account, as the Minister's submission to her had invited, that Master Sidhu was absent from Australia for lengthy periods of time following his birth, in all totalling more than five years. Her Honour expressly accepted (at [56]) the Minister's submission that, in the first five years of his life, Master Sidhu's primary connection was to India, not Australia. Having so done, her Honour noted (at [56]) that neither the length of the absence nor Master Sidhu's connection to India informs the purpose or intended duration of his absence from Australia and does not undermine his parents' intentions. Her Honour observed that the same was true of what was recorded in the passenger movement cards. 39 The primary judge also found (at [60]), apparently with reference to visits to Australia by Master Sidhu on and from when his parents had initially taken up their own rented accommodation in West Ryde in November 2012, that these occurred at times when his home in Australia was "well established". Resolution of the Appeal 40 As we have mentioned, the citizenship eligibility requirement in s 12(1)(b) of the Citizenship Act provides that a person born in Australia, whose parents are not Australian citizens or permanent residents, is an Australian citizen if and only if the person is "ordinarily resident" in Australia throughout the period of 10 years beginning on the day the person is born. This provides for a backward-looking test, involving an evaluation of whether, over that 10 year period, it may be said that the requirements of the definition of "ordinarily resident" set out in s 3 of the Citizenship Act are satisfied. 41 In the absence of any definition supplied in the Citizenship Act, the primary judge set out at [7] the Macquarie Dictionary definition of "home" (8th Ed, Macquarie Dictionary Publishers, 2020): "Home" is relevantly defined to include: 1. a house, or other shelter that is the fixed residence of a person, a family, or a household. 2 a place of one's domestic affections. … 6. any place of existence or refuge: a heavenly home. 42 The primary judge found that "permanent" is relevantly defined in the Macquarie Dictionary to mean "lasting or intended to last indefinitely, remaining unchanged; not temporary, enduring, abiding". "Abode" is defined to mean "1. a dwelling place; a habitation" or "2. Continuance in a place; sojourn; stay". 43 In the primary judge's summary of the eight propositions concerning the meaning and application of the definition of "ordinarily resident" to be derived from Lee and Kim, propositions (a) – (e) are taken from the decision of Foster J in Lee (Kim at [12]), and propositions (f) – (h) are taken from the reasoning of Gleeson J in Kim (who also adopted the propositions set out in Lee) at [32] and [33] respectively. Her Honour additionally set out at [29] the following: The requirement for ordinary residence "throughout" the relevant period requires "a strong element of continuity" and must be satisfied "at all times for the whole of the period" including any periods of temporary absence: Lee at [102] and [166]. All the relevant circumstances must be taken into account. In general, where the person in question is a minor, the focus is on the intentions of the person's parents. 44 In his submissions, the Minister sought to elaborate upon the distinction between the two limbs of the definition in s 3 of "ordinarily resident". He submitted that on the one hand a "home" not only includes a "house or other shelter that is the fixed residence of a person, a family, or a household", it is also a "place of one's domestic affections". He submitted that the latter of these properly involves consideration of the subjective intentions of the person as to where they live or belong. By contrast, he submitted that a person's "permanent abode" does not incorporate the same subjective or emotional connection and should be understood to mean "a dwelling place; a habitation" and a permanent abode is not "temporary" but is "enduring, abiding". 45 In in his first argument on appeal, the Minister submitted that the error of the primary judge lies in focusing only upon the intention of Master Sidhu's parents in ascertaining where he had been ordinarily resident. He submitted: The error of the primary judge was to focus only upon the intention of Master Sidhu's parents. For at least the first five years of his life, it could not be the case that Master Sidhu had his "home" in Australia. He was not present in Australia for almost all of that time. Further, as the primary judge accepted, during that period, Master Sidhu's primary connection was to India not Australia (J[56]). Further, it is clear that for this five year period, Master Sidhu's "permanent abode" was not located in Australia. The dwelling where he resided on a permanent basis was with his grandparents in India and for at least part of that time his parents did not maintain suitable accommodation for him to live in Australia. 46 It is not necessary for present purposes to dwell upon whether or not Master Sidhu had Australia as his permanent abode within s 3(b) of the definition of "ordinarily resident". In our view it is apparent from the reasons of the primary judge at least at [56] and [59] that her Honour was satisfied that Master Sidhu's circumstances satisfied s 3(a) of the definition in that his home had been Australia throughout the period of 10 years from when he was born, notwithstanding that he had been removed to India for a "temporary purpose". Master Sidhu has filed no notice of cross appeal contending that the primary judge ought to have reached her conclusion on a different basis. 47 For the following reasons, we do not accept that the Minister's first argument is made out. 48 First, it is incorrect to say that the primary judge focused only on the intention of Master Sidhu's parents in concluding that he satisfied the requirements of s 12(1)(b) of the Citizenship Act. Whilst at [52] her Honour noted that the focus must be on his parents, it is plain, as we have explained at [37]–[39] above, that her Honour's analysis not only took into account the parent's intentions. In this context her Honour's consideration also included: (a) aspects of the evidence going to cultural matters relevant to the Indian/Australian community, finding that its typical in Indian culture for grandparents to take the role of looking after babies whose parents are not able to care for them in Australia (at [55]); (b) Master Sidhu's lengthy absence from Australia in India with his grandparents and his movements to and from Australia (at [56]); (c) the evidence of Master Sidhu's parents' visa status (at [60]); and (d) evidence of Master Sidhu's parents' connections with the Australian community (at [59]). 49 Secondly, it cannot be said that the primary judge erred in taking into account the intentions of the parents. The Minister accepts that to do so is appropriate as a matter of law. In each case it will be a question of fact and degree as to how much weight is to be placed on intention. In the present case, in the period when Master Sidhu was an infant and then a very young child, it was unexceptional that the Court would take into account his parent's intentions as important for determining the location of his home. 50 Thirdly, the acceptance by the primary judge that during his first five years Master Sidhu's primary "connection" was to India is not necessarily determinative that he was not ordinarily resident in Australia during his first 10 years. Indeed, the Minister's submission tends to distract attention from the statutory question, which is not whether he is connected with somewhere else, but whether he was ordinarily resident in Australia. 51 As we have mentioned, the primary judge's findings demonstrate that she took into account Master Sidhu's significant period of absence in India, but did not consider that to be determinative, as she explained: [56] It is true that Gurnoor was absent from Australia for lengthy periods of time. Indeed, he was absent in toto for more than five years. Further, I accept the Minister's submission that in the first five years of his life Gurnoor's primary connection was to India, not Australia. But a lengthy absence is not necessarily inconsistent with a person having his or her home in Australia: Kim at [22]. Importantly, neither the length of the absence in this case nor Gurnoor's connection to India tells one anything about the purpose or intended duration of his absence from Australia. The fact that he formed a connection with India does not undermine his parents' intentions. Nor does the fact that passenger movement cards completed on Gurnoor's behalf recorded that he was a resident of India and a visitor to Australia. Equally, I give no weight to the fact that the visa applications made by Ms Kaur did not include their son. Ms Kaur's evidence, which was not challenged and I accept, was to the effect that the only reason he was not included was that she was advised by her migration agent that that was not possible while Gurnoor was "offshore". She deposed: Our visas were going to expire in April 2011. It took until October 2011 before we finally received another visa. By that time, I was studying again so we could not return to India. I asked my Migration Agent Sunjay Deswal to extend Gurnoor's visa with us. The agent replied, "you cannot because Gurnoor is offshore." He said "once you get a visa you can then add him when he comes to Australia". [57] It is abundantly clear from the evidence that Gurnoor was only removed from Australia for a temporary purpose which arose from the exigencies of his family's situation when he was but a baby: to be cared for by his grandparents in India while his mother was studying and until his parents were in a position to look after him themselves. The fact that the period was longer than the parents envisaged does not alter the nature of the arrangement or its purpose. A permanent arrangement is one which lasts or is intended to last indefinitely. Mr Sidhu and Ms Kaur always intended that their son would return to live with them as soon as practicable. When they moved into the apartment in 2013, their intention was that he would stay with them. Although they decided to allow him to return to India with his grandparents, their intention never changed. 52 Fourthly, we do not accept the submission advanced by the Minister that absence for five years cannot, of itself, fall within s 3(a) of the definition of "ordinarily resident" because he cannot be said to have left Australia for a "special" or "temporary purpose". This submission arises from [57] of the reasons of the primary judge. 53 The reference to "temporary purpose" is not to the second sentence of the definition of "ordinarily resident" in s 3, but a passage in Kim at [135] where Gleeson J said that in her view the infant did not cease to have his home in Australia when he left the country (with his mother) but "rather, he departed Australia for a special and temporary purpose which arose from the exigencies of his family's situation, and on the basis of his parents' firm intention to return to Australia…". 54 It is plain that the primary judge was similarly weighing up the duration of Master Sidhu's absence from Australia as part of the factual matrix in determining whether such a lengthy period could be characterised, as had been characterised in Kim, as temporary. This was a matter that was open for her Honour to consider. It was not only the duration of the absence but also the purpose of the absence that was of significance, particularly having regard to the passage emphasised in [57] above. 55 In his second argument on appeal the Minister contends that in the circumstances of this case, to the extent subjective intention was a relevant factor, the primary judge erred by focusing exclusively on the intention of Master Sidhu's parents. The Minister submitted that whilst a relevant consideration will typically be the subjective intention of the parents, this general statement is apt in a case where the parents and the child live together in a single household. The weight attributed to each parents' subjective intention may vary where the child lives with only one parent and may vary yet further where a child lives with, and is cared for, by someone else in which case the intention of the care-giver is relevant. 56 In the present case the primary judge accepted that Master Sidhu's absence from Australia was the result of the execution of his parents' wishes (at [54]). It was accordingly appropriate to have regard to those wishes in considering intention. The primary judge made no finding that any other person's wishes would take precedence over those intentions. Nor do we accept the Minister's submission that the primary judge overlooked Master Sidhu's own capacity to develop a sense of belonging. Her Honour's reasons refer to Ms Kaur's evidence of Master Sidhu being unsettled in Australia when he came to live with his parents in March 2013, and their reluctant consent for him to return to India in July 2013 (at [43]). However, her Honour considered that it was his parents who made the decision as to where he would stay from time to time. 57 Finally, the Minister submitted that the primary judge mischaracterised the parents' intention in the present case because they themselves only had temporary visas and, more importantly, had no firm intention of remaining in Australia permanently. He submitted that properly understood, the evidence was that it was not until sometime after Master Sidhu was born that his parents formed a fixed view of Australia as their long-term home. Accordingly, to the extent that the subjective intention of his parents was a relevant consideration, the evidence did not permit a conclusion that throughout the relevant 10 year period they viewed Australia as their home or intended to live in Australia with their son. 58 The primary judge concluded that properly understood, Ms Kaur's evidence about the decision that she and her husband made in December 2015 was no more than a statement about their intention to change their visa status from temporary to permanent (at [59]). Her Honour found as a matter of fact that throughout the first 10 years of their son's life, Master Sidhu's parents considered Australia to be their home and were ordinarily resident there. The Minister submitted that this inference was not open on the facts as found. However, having heard Ms Kaur's oral evidence, her Honour interpreted the testimony that in December 2015 she had "finally decided to stay here to be [a] permanent resident" as being a declaration of her intention to have a change in visa status. That conclusion was open to the primary judge on the basis of the evidence that she heard. It is apparent that, whatever plans the parents might have had to live elsewhere, they were unformed and unexecuted. In this respect, the position is quite different to the facts in Lee. 59 Each of the Minister's allegations of error on the part of the primary judge having failed, the appeal should be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Burley and McEvoy. Associate: Dated: 15 August 2023