FEDERAL COURT OF AUSTRALIA Lee (By his Next Friend Lee) v Minister for Immigration and Citizenship [2011] FCA 1458 Citation: Lee (By his Next Friend Lee) v Minister for Immigration and Citizenship [2011] FCA 1458 Parties: SAMUEL LEE (BY HIS NEXT FRIEND EUI GI LEE) v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 62 of 2011 Judge: FOSTER J Date of judgment: 16 December 2011 Catchwords: ADMINISTRATIVE LAW – request for issue of a certificate under s 37 of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) evidencing the applicant's Australian citizenship – a delegate of the Minister for Immigration and Citizenship declined to issue the certificate – judicial review proceedings brought by applicant in respect of the delegate's decision – declaratory relief also sought – whether the applicant has become a citizen by virtue of being "ordinarily resident" in Australia throughout the first ten years of his life within the meaning of s 12(1)(b) of the Citizenship Act – consideration of the meaning of "ordinarily resident" in the Citizenship Act Legislation: Acts Interpretation Act 1901 (Cth), s 25D Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(h), 5(3) and 6 Australian Citizenship Act 2007 (Cth), ss 3, 4, 12(1)(b), 37, 38, 46, 47 and 52 Judiciary Act 1903 (Cth), s 39B(1A) Australian Citizenship Regulations 2007, reg 10 and Sch 2 Cases cited: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 cited Dornan v Riordan (1990) 24 FCR 564 cited Julius v Bishop of Oxford (1880) 5 App Cas 214 applied Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited Restom v Battenberg (2007) 4 ABC(NS) 474 cited Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 followed Re Vassis; Ex parte Leung (1986) 9 FCR 518 followed Ward v Williams (1955) 92 CLR 496 applied Date of hearing: 10 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 170 Counsel for the Applicant: Mr MA Robinson Solicitor for the Applicant: Mark A Cruice Counsel for the Respondent: Mr JD Smith Solicitor for the Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 62 of 2011 BETWEEN: SAMUEL LEE (BY HIS NEXT FRIEND EUI GI LEE) Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: FOSTER J DATE OF ORDER: 16 DECEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. Eui Gi Lee, the next friend of the applicant, pay the respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 62 of 2011 BETWEEN: SAMUEL LEE (BY HIS NEXT FRIEND EUI GI LEE) Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: FOSTER J DATE: 16 DECEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is 11 years of age. It is the applicant's case that he was born in Australia (at Royal North Shore Hospital at St Leonards, a suburb of Sydney) on 22 March 2000. 2 On 15 December 2010, the applicant's solicitor made application on his behalf to the respondent (the Minister) that the Minister give to the applicant a notice pursuant to s 37 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) in the prescribed form evidencing the applicant's Australian citizenship. 3 The applicant's formal application (Form 119) was submitted to the Department of Immigration and Citizenship (DIAC) under cover of a letter from the applicant's solicitor to DIAC dated 29 November 2010. The formal application appears to have been signed by the applicant's next friend in this proceeding, Eui Gi Lee (Mr Lee) who claims to be the applicant's father. The formal application is dated 13 December 2010. 4 Accompanying the application were the following documents: (a) A reference from a church apparently attended by Mr Lee, his wife (Hanna Kim) and the applicant; (b) Photocopy extracts from various passports issued by the Republic of Korea (Korea) to Mr Lee, Maria Kim, Hanna Kim and the applicant; (c) A certified copy of the applicant's Birth Certificate; (d) A document described as "Family relation certificate" dated 5 February 2008 from a city administration in Korea; (e) A DIAC electronic receipt in respect of a visa application made on behalf of the applicant on 24 November 2008; (f) Certain documents relating to the immunisation of the applicant; and (g) A bundle of documents in respect of the applicant's attendance and performance at an independent Christian school located in Ryde, NSW. 5 In his covering letter dated 29 November 2010, the applicant's solicitor contended that the applicant had automatically by operation of law become an Australian citizen because, as a person born in Australia, he was ordinarily resident in Australia throughout the period of 10 years beginning on the day that he was born (s 12(1)(b) of the Citizenship Act). 6 On 22 December 2010, a delegate of the Minister (the delegate) refused to provide the requested evidentiary notice. On 10 January 2011, the delegate provided a Statement of Findings dated that day by way of explanation of her decision to refuse the applicant's request. 7 The applicant is dissatisfied with the delegate's decision. He has brought an application in this Court for judicial review of the delegate's decision. Insofar as his application for judicial review is concerned, the applicant relies upon ss 5(1)(h), 5(3) and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B(1A) of the Judiciary Act 1903 (Cth) (s 39B). The precise decision challenged is the delegate's decision made on or about 10 January 2011 to refuse to provide to the applicant evidence of his Australian citizenship pursuant to s 37 of the Citizenship Act. 8 In addition to his application for judicial review of the delegate's decision, the applicant seeks a declaration that he is an Australian citizen. In support of that claim, the applicant adduced evidence before me, most of which was not before the delegate when she made her decision. 9 These Reasons for Judgment determine both the applicant's judicial review application and his claim for declaratory relief. The Delegate's Decision 10 The delegate's decision was notified by letter dated 10 January 2011. Attached to that letter was a Statement of Findings dated the same day. 11 The letter from the delegate to the applicant's solicitor was in the following terms (omitting formal parts): APPLICATION FOR EVIDENCE OF AUSTRALIAN CITIZENSHIP Dear Mr Cruice, I am writing about Master Samuel LEE's application for Evidence of Australian Citizenship that was lodged with the Department on 15th December 2010. The Section 37 of the Australian Citizenship Act 2007 (the Act) sets out the current requirements for evidence of Australian citizenship. As a person authorised to make determinations under Section 12 of the Act, I have considered Master Samuel Lee's application and found that he did not become a citizen by operation of law under Section 12(1)(b). Master Samuel Lee's application cannot be finalised because: (A) He is found not to be an Australian citizen. I have attached a statement of findings for your information. 12 The attached Statement of Findings is a document comprising three pages. The document is broken into four principal sections. These are: (1) Background and Legal Framework (including a subsection entitled "Relevant Legislation"). (2) Evidence Used. (3) Findings of Fact. (4) Decision. 13 Under the first of these headings (Background and Legal Framework) the delegate recorded that the applicant was born in Australia on 22 March 2000 at Royal North Shore Hospital, St Leonards, NSW and that on 15 December 2010 he lodged his s 37 application. Under the subheading "Relevant Legislation", the delegate referred to s 12 and said: Section 12(1)(b) is an operation of law provision. Although there is no decision to be made to approve or refuse citizenship, a finding of fact can be made on whether a person satisfies the requirements of Section 12(1)(a) or (b) of the Act. 14 The delegate then set out the definition of "ordinarily resident" from s 3 of the Citizenship Act and those parts of Ch 1 and Ch 2 of the Australian Citizenship Instructions (ACI) which deal with the meaning of the phrase "ordinarily resident". In this section, the delegate said: B. The Australian Citizenship Instructions state: Ordinarily resident in Australia over 10 years since birth. Section 3: Definitions: The term ""ordinarily resident" is a person 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 resident if he or she resides in that country for a special or temporary purpose only. This provision operates regardless of the migration or citizenship status of the parent(s). Relevant considerations in assessing ordinarily resident include: • the length of physical residence in Australia; • whether the applicant considered that their home was in Australia for the first ten years of their life; • the nature and extent of any periods of absence from Australia; and • the nature and extent of ties with Australia such as presence of family, attendance at school, club memberships. Temporary absences from Australia do not necessarily mean that Australia has ceased to be the permanent place of residence. The person does not need to be in Australia on their 10th birthday for this provision to apply. 15 In section 2, the delegate listed the evidence to which she had regard in coming to the decision which she made. In this section, the delegate listed all of the documents comprising the applicant's s 37 application. She also specifically mentioned the Citizenship Act, the ACI and a certified copy of the applicant's Birth Certificate. 16 Sections 3 and 4 of the delegate's Statement of Findings are in the following terms: 3. FINDINGS OF FACT 3.1 Master Samuel Lee was born in St Leonard's, NSW, and Australia on 22 March 2000 to parents Hanna Kim and Eui-Gi Lee who at the time of his birth were not Australian citizen or a permanent resident. 3.2 Our records show that while Master Samuel Lee was born in Australia he spend [sic] a significant period of time outside of Australia (Period spent overseas: 3 years and 11 months, this period includes long and short periods spent overseas. 3.3 In addition Master Samuel Lee spent a period of 2 years and 7 months outside Australia at one time. 4. DECISION After evaluating all the information available, I am not satisfied that Master Samuel Lee was ordinarily resident in Australia for the first ten years of his life. Therefore, Mr Samuel Lee did not satisfied [sic] Section 12(1(b) of Australian Citizenship Act 2007, for that reason he did not acquire citizenship by operation of law. 17 The decision recorded in the letter from the delegate to the applicant's solicitor dated 10 January 2011 and in par 4 of the accompanying Statement of Findings was not, in terms, a refusal to provide the requested evidentiary notice. The decision in the letter was described as a determination by the delegate that the applicant did not become a citizen by operation of law under s 12(1)(b) of the Citizenship Act. In par 4 of the Statement of Findings, the delegate said that she was not satisfied that the applicant was ordinarily resident in Australia for the first 10 years of his life. She held that, for that reason, he did not meet the criteria laid down in s 12(1)(b) and thus did not become an Australian citizen by the operation of that section. 18 The effect of these "decisions", however, was that the delegate refused to give to the applicant the requested s 37 notice. 19 The applicant has approached his application in this Court on the basis that the decision made by the delegate on 10 January 2011 was, in substance, a decision to refuse to give that notice. The Minister was content to deal with the matter on this basis. 20 It is necessary to say a little more about the contents of the applicant's solicitor's covering letter and the formal s 37 application. 21 In his letter, the applicant's solicitor, on behalf of the applicant and apparently on the instructions of Mr Lee and Hanna Kim, asserted the following facts and matters, namely that: (a) The applicant was born at St Leonards on 22 March 2000. (b) The applicant's parents are Mr Lee (d.o.b. 20-10-1964) and Hanna Kim (d.o.b. 20-01-1966). (c) At the time of the applicant's birth, his parents were residing in Australia temporarily as the holders of student visas. Both Mr Lee and Hanna Kim are and always have been citizens of Korea. (d) Mr Lee and Hanna Kim initially arrived in Australia together on 16 July 1997. Hanna Kim held an Australian student visa. Mr Lee held a visitor visa. Later he obtained a student visa. Upon the expiry of their student visas, Mr Lee and Hanna Kim returned to Korea. This was in about July 2001. The applicant accompanied them when they returned to Korea on this occasion. Subsequently, all three returned to Australia as visitors. (e) All three remained in Australia as visitors until 4 December 2001. However, between 11 April 2001 and 4 December 2001, Hanna Kim and the applicant returned to Korea on several occasions. 22 Using the passport of Maria Kim and drawing on the recollections of Mr Lee and Hanna Kim, a schedule of arrivals and departures was prepared and furnished to the delegate. 23 The schedule furnished by the applicant's solicitor suggested that the applicant and his mother left Australia on 6 September 2005, returned to Australia on 15 November 2005, again left Australia on 14 December 2005, returned to Australia on 31 January 2006, again left Australia on 4 March 2006 and returned to Australia on 21 December 2007. DIAC records tendered before me demonstrate that the applicant and his mother left Australia on 6 September 2005 and, in the case of the applicant, did not return until 22 December 2007. Hanna Kim did not return until 30 January 2008. Other minor discrepancies exist between the schedule of arrivals and departures furnished by the applicant's solicitor in his covering letter and DIAC records in respect of the applicant and Maria Kim tendered before me. 24 In his covering letter to DIAC dated 29 November 2010, the applicant's solicitor said that, from about January 2004, the applicant and his mother travelled to and from Australia approximately every three months. He said that Ms Kim used her sister's Korean passport (a passport in the name of "Maria Kim") in order to obtain a visa as she had not been successful in obtaining one using her own name and passport. He said that the applicant had applied for an Australian visa using his own passport. 25 The applicant's solicitor asserted that the applicant had spent a total of 6 years and 8 months in Australia between 22 March 2000 and 22 March 2010. He went on to say that the applicant had spent approximately 6 months in Canada, 3 months in New Zealand and a total of 2 years and 7 months in Korea during the same period. 26 The applicant's solicitor then made submissions setting out the applicant's subjective views as to his residence and the nature and extent of his ties to Australia. 27 The formal s 37 application specified Mr Lee and Hanna Kim as the applicant's parents. In the form, Mr Lee's birthplace was said to be Seoul, Korea. Ms Kim's birthplace was said to be Moon Kyung, Korea. Ms Kim's date of birth was given as 20 January 1966. 28 The extracts from the passports of Mr Lee, Maria Kim and Hanna Kim furnished to DIAC do not cover the entire period between 22 March 2000 and 22 March 2010. Indeed, in the case of each of those persons, it is clear that there was more than one passport in force during that period. In each case, an extract from only one passport was provided. 29 The Birth Certificate in respect of the applicant provided to the delegate as part of the applicant's s 37 application was a certified copy of a Birth Certificate issued by the Registry of Births, Deaths and Marriages (NSW) on 15 May 2000. It shows the child as Samuel Lee born on 22 March 2000 at Royal North Shore Hospital, St Leonards. It shows his mother as Hanna Kim, aged 34 years. The certificate specifies Ms Kim's place of birth as Kimcheon, South Korea. The certificate shows the child's father as Mr Lee, aged 35 years. Mr Lee is shown as having been born in Seoul, South Korea. The certificate also specifies that Mr Lee and Hanna Kim were married in Seoul, South Korea, on 3 September 1997. 30 The Family Relation Certificate forming part of the applicant's s 37 application records that Mr Lee was married to Hanna Kim and that they have one child, Samuel Lee, the applicant. 31 It appears that the delegate also had regard to certain DIAC records in order to determine with accuracy the total period spent by the applicant outside Australia. The fact that the delegate had regard to those records is made clear by the introductory words used by her in [3.2] of her Statement of Findings. 32 As will be apparent from my analysis of relevant DIAC records later in these Reasons, the findings of fact made by the delegate in [3.2] and [3.3] of her Statement of Findings were incorrect. DIAC records establish that the applicant spent a total of 1,518 days outside Australia in the period between 22 March 2000 and 22 March 2010. This is approximately 4 years and 58 days. Those records also establish that the longest continuous period spent by the applicant outside Australia was 837 days, which is approximately 2 years and 107 days. This is the period between 6 September 2005 and 22 December 2007. 33 Therefore, if the DIAC records are accepted as accurately reflecting the movements of the applicant in the relevant period, the delegate proceeded upon the basis that the applicant had spent less time overseas overall than he in fact did but, on the other hand, also proceeded on the basis that his longest single absence was slightly longer than in fact it was (2 years 7 months v 2 years 3½ months). 34 For the purpose of considering the applicant's s 37 application, the delegate appears to have accepted that: (a) The applicant is the Samuel Lee referred to in the certified copy Birth Certificate provided to DIAC as part of that application. (b) Mr Lee and Hanna Kim are the applicant's parents. (c) Mr Lee was born in Seoul, Korea, on 20 October 1964. (d) Hanna Kim was born in Korea on 20 January 1966. (e) Hanna Kim has a sister who was born in Korea on 23 May 1971. (f) From time to time, Hanna Kim applied for and obtained Australian visas in the name of "Maria Kim". (g) From time to time, Hanna Kim travelled to and left Australia using the passport of her sister, Maria Kim. (h) In the period commencing with his birth and ending with his return to Australia on 22 December 2007, the applicant was constantly with his mother. In that period, he was regularly not with his father, on some occasions for lengthy periods. 35 The matters listed at [34] above were not matters of controversy before the delegate. 36 The delegate concluded that she was not satisfied that the applicant was ordinarily resident in Australia for the first 10 years of his life. She then said: Therefore, [the applicant] did not satisfied [sic] s 12(1)(b) of the Australian Citizenship Act, 2007 … 37 There were two reasons for the delegate's decision. The first was the fact that, during the relevant 10 year period, the applicant spent a significant period of time outside Australia. The delegate said "3 years and 11 months" but DIAC records show 4 years and almost 2 months—a longer period by about three months. The second basis was the delegate's finding that the applicant spent a period of 2 years and 7 months out of Australia at one time. This is a period which exceeds the period demonstrated by DIAC records by about 3½ months. 38 Once the delegate had concluded that the applicant did not meet the criteria laid down in s 12(1)(b) it followed that she would refuse to give the applicant the s 37 notice which he had requested. This is what she did. The Applicant's Case Judicial Review 39 The applicant submitted that the delegate's decision is infected by several errors of law. These errors were articulated in the grounds of review specified in the applicant's application in this Court and in the submissions made by Counsel on his behalf both in writing and orally at the hearing. In the succeeding few paragraphs, I shall briefly describe the grounds upon which the applicant relied in order to vitiate the delegate's decision. 40 First, it was said that the delegate failed to have regard to the applicant's application. The factual finding that the applicant spent 2 years and 7 months outside Australia in a single period of absence was incorrect and not supported by any evidence or material before the delegate. That finding was a central finding made by the delegate. The delegate based her decision on the existence of a particular fact and that fact did not exist. That circumstance engages the ground of review specified in s 5(1)(h) of the ADJR Act. The ground of review specified in s 5(1)(h) is that there was no evidence or other material to justify the making of the decision. Those concepts are further explained in s 5(3) of the ADJR Act. 41 Second, Counsel for the applicant submitted that the same factual error resulted in the constructive failure on the part of the delegate to exercise the jurisdiction which she was called upon to exercise once the applicant had made his s 37 application. 42 Third, it was submitted on behalf of the applicant that the delegate misunderstood or misapplied s 12(1)(b) of the Citizenship Act. He argued that this is made clear from the delegate's failure to discuss the meaning of the phrase "… ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born". 43 Fourth, it was said that the delegate failed to take into account relevant considerations viz the ACI and the policy of the Minister in relation to s 37 applications. The delegate mentioned the ACI but did not discuss or apply it. A failure to take into account a relevant consideration constitutes jurisdictional error. 44 Fifth, Counsel argued that the applicant had a legitimate expectation that the Minister's policy reflected in the ACI would be applied. To fail to act in accordance with that policy without notice to the applicant rendered the delegate's decision void. It constituted a denial of procedural fairness. 45 Sixth, it was submitted that the delegate failed to give proper, genuine and realistic consideration to matters that she was required to take into account viz the ACI. 46 Seventh, Counsel contended that the issue of whether the applicant became an Australian citizen by operation of law because he was, as a matter of fact, "… ordinarily resident in Australia throughout the period of 10 years beginning on the day [he] was born" is properly characterised as a jurisdictional fact. The delegate proceeded as if that issue was to be resolved by her "finding" a matter whereas, according to Counsel: … the question was one of objective fact capable of identification and determination on the facts as presented in the applicant's application. 47 The delegate declined to accept that the applicant is an Australian citizen. The applicant contended that the delegate's decision is invalid and should be set aside. 48 In his Amended Application for an Order of Review the applicant claimed the following relief: 1. An order or writ declaring void or setting aside the respondent's decision made 10 January 2011. 2. An order or injunction restraining the respondent and his officers, servants and agents from taking any action as a result of or relying on the respondent's decision made 10 January 2011. 3. A declaration that or to effect that the applicant is an Australian citizen. 4. An order or writ or an injunction to effect that the respondent is to issue or cause to be issued to the applicant a notice or evidence of his Australian citizenship pursuant to section 37 of the Australian Citizenship Act 2007 (Cth). 5. Alternatively, that the respondent provide the applicant with a statement of the reasons for the decision made 10 January 2011 pursuant to section 47(3) of the Australian Citizenship Act 2007 (Cth). 6. Further or other orders. 7. Costs. 49 At the hearing, the applicant abandoned his claim for the relief claimed in par 4 of his Amended Application (Transcript p 2 ll 35–37). Declaratory Relief 50 The form of the applicant's Amended Application for an Order of Review suggests that his whole case is based upon judicial review principles anchored in ss 5(1)(h), 5(3) and 6 of the ADJR Act and s 39B. But, as I have already mentioned at [8] above, the applicant also seeks a declaration from this Court that he is an Australian citizen. That claim is an entirely separate case from his judicial review claim. For the applicant to succeed in that case, he must persuade the Court that: (a) He was born in Australia; and (b) He was ordinarily resident in Australia throughout the period of 10 years beginning on the day he was born within the meaning of s 12(1)(b) of the Citizenship Act. 51 Should he get over those hurdles, he must then persuade the Court that it should, in the proper exercise of its discretion, make the declaration which he seeks. 52 Put more precisely, the applicant's case is that: (a) He was born at Royal North Shore Hospital, St Leonards, NSW, on 22 March 2000; and (b) Throughout the period from 22 March 2000 to 22 March 2010 he had his home in Australia or throughout that period Australia was the country of his permanent abode even if he was temporarily absent from Australia. In deciding these questions, the Court must keep in mind that a person is taken to be not "ordinarily resident" in a country if he or she resides in that country for a special or temporary purpose only. 53 In my judgment, facts which are required to be found in connection with the applicant's claim for a declaration must be found according to the ordinary civil standard ie the balance of probabilities. Consideration (Judicial Review) 54 Section 12(1)(b) of the Citizenship Act provides: 12 Citizenship by birth (1) A person born in Australia is an Australian citizen if and only if: … (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. 55 In the Citizenship Act, Australian citizen has the meaning given by s 4 of that Act. One of the bases for becoming an Australian citizen within the meaning of the Citizenship Act is by the operation of s 12(1)(b) (which is in Pt 2, Div 1 of that Act). 56 In the Citizenship Act, ordinarily resident is defined as follows: ordinarily resident: 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. 57 The concept of "ordinarily resident" in a country is different from "being present" in that country. It allows for some absences, depending upon the nature and extent of those absences. 58 Section 37 of the Citizenship Act provides: 37 Evidence of Australian citizenship (1) A person may make an application to the Minister for evidence of the person's Australian citizenship. Note: Section 46 sets out application requirements (which may include the payment of a fee). Notice (2) The Minister may give the person a notice stating that the person is an Australian citizen at a particular time. (3) The notice must: (a) be in a form prescribed by the regulations; and (b) contain any other matter prescribed by the regulations. Identity (4) The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person. Note: Division 5 contains the identity provisions. Evidentiary status (5) A notice is prima facie evidence of the matters in the notice. Cancellation (6) The Minister may, by writing, cancel a notice given to a person under this section. 59 Section 46 provides that an application of the kind made by the applicant in the present case must be on the approved form, must contain the information required by the form, must be accompanied by any other information or documents prescribed by the regulations and must be accompanied by the prescribed fee. 60 Regulation 10 of the Australian Citizenship Regulations 2007 provides that a s 37 notice must be given in accordance with the form in Sch 2. After reciting the name and date of birth of the s 37 applicant, the operative part of that form is in the following terms: I, the Minister administering the [Citizenship Act] give notice that the abovenamed is an Australian citizen and that citizenship was acquired on [date of acquisition or birth]. 61 In the case of a person who acquires Australian citizenship by the operation of s 12(1)(b) of the Citizenship Act, the only official document he or she would ever obtain or be given which evidences his or her citizenship is a notice under s 37 of the Citizenship Act. 62 Section 37 does, however, have general operation. Anyone who claims to be an Australian citizen, whether by birth or on any other of the many available bases, may request a s 37 notice. Section 37(4) prohibits the Minister from giving such a notice unless he or she is satisfied of the identity of the person. The notice is only prima facie evidence of the matters in the notice and may be cancelled (subs (5) and subs (6) of s 37). It may also be required to be surrendered (s 38). 63 Apart from the requirement that the Minister be satisfied of the identity of the s 37 applicant, s 37 does not specify any other matters of which the Minister must be satisfied or which the Minister is bound to take into account before giving the notice contemplated by the section. However, given the form of the notice and the evidentiary significance of the notice, the Minister must be satisfied that the applicant is, in fact, an Australian citizen as at the date specified in the notice. If, as in the present case, the claim to be an Australian citizen is based upon the engagement of s 12(1)(b), then the Minister must be satisfied that the applicant has met the requirements of s 12(1)(b). 64 It is the applicant's contention that, if, as a matter of fact and law, an applicant for a s 37 notice has met the requirements of s 12(1)(b), then the Minister must issue the requisite notice. "May" in s 37(2) should be interpreted as "must". There is no residual discretion to refuse to give the notice if the s 12(1)(b) and s 37(4) requirements have been met. The question of whether a public officer to whom a power is given by the use of the word "may" is bound to use the power upon any particular occasion is generally to be answered by a consideration of the context of the particular provisions or from the general scope and objects conferring the power (Julius v Bishop of Oxford (1880) 5 App Cas 214 at 235, cited with approval by the High Court in Ward v Williams (1955) 92 CLR 496 at 505). In Ward v Williams, the High Court continued (at 505–506): One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them "[they] appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised" (1880) L.R. 5 AC, at p. 225). 65 In the present case, the power to issue a s 37 notice has been conferred on the Minister for the benefit of persons who are Australian citizens and who wish to obtain evidence to prove that status. If an applicant for such a notice claims to be an Australian citizen by virtue of the operation of s 12(1)(b) of the Citizenship Act, that person must satisfy the Minister that the requirements of s 12(1)(b) have been met. 66 Section 47 of that Act is in the following terms: 47 Notification of decisions (1) If the Minister makes a decision under this Act in relation to a person, the Minister must give the person notice of the decision. Child (2) If the person is a child, the Minister satisfies the requirement in subsection (1) if the Minister gives a parent of the child notice of the decision. Reasons for adverse decision (3) If the decision is an adverse decision, the notice must include the reasons for the decision. Form of notice (4) The Minister must give the notice in the manner prescribed by the regulations (which includes electronic form). Procedural defect does not affect validity of decision (5) A failure to comply with subsection (3) or (4) does not affect the validity of the decision. 67 Section 25D of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) provides: 25D Content of statements of reasons for decisions Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. 68 In Dornan v Riordan (1990) 24 FCR 564 at 567, the Full Court said that the requirement to give reasons and to comply with s 25D of the Interpretation Act would not be breached by a failure to deal with every argument that may have been raised before the decision-maker or with every possibility that could be adverted to. It is enough if the findings and reasons deal with the substantial issues upon which the decision turned. At 568, the Full Court cited with approval the following passage from the judgment of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507: The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206–207, serve to confirm my view that s 13(1) of the ADJR Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation." 69 Section 52 of the Citizenship Act specifies those decisions which may be reviewed on their merits by the Administrative Appeals Tribunal. A decision to decline to issue an evidentiary notice under s 37 is not such a decision. There is no formal merits review structure in place in respect of such a refusal. For this reason, an applicant for a s 37 notice who is dissatisfied with a decision by the Minister to refuse to issue such a notice must resort to judicial review in order to attack the decision. Ground 1—Failure to Have Regard to the Application 70 An error of fact made in the process of reasoning which led to a decision will not necessarily evidence a failure to have regard to the material before the decision-maker. DIAC records showed that the applicant spent a total of 4 years and nearly 2 months outside Australia, of which 2 years and 3½ months was the longest single absence. The error identified by the applicant is the finding as to the duration of that single absence. An error of some 3½ months was made. However, the applicant has not demonstrated that the critical aspect of the finding which the delegate made in [3.3] of her Statement of Findings was the precise duration of that absence: In particular, the applicant has not demonstrated that the 3½ months difference was at all critical to the decision. I think that the essence of the finding in [3.3] is that the applicant was absent from Australia for a period of almost 2½ years, a relatively long period when account is taken of the fact that the applicant was between 5½ and 7½ years of age at the time. 71 The listing of the "evidence used" in s 2 of the Statement of Findings puts the lie to the proposition that the applicant failed to have regard to the applicant's application. I reject this proposition advanced on behalf of the applicant. 72 Section 5(1)(h) and s 5(3) of the ADJR Act are in the following terms: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: … (h) that there was no evidence or other material to justify the making of the decision; … (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 73 Section 5(1)(h) is not engaged in the present case. The delegate was not required to refuse the applicant's s 37 application only if a particular matter was established and there was no evidence or other material from which he or she could reasonably be satisfied that the matter was established (s 5(3)(a)). Nor did the delegate base her decision on the basis that the applicant's longest single absence from Australia was 2 years and 7 months (rather than "almost 2½ years" or "2 years and 3½ months"). The essence of the finding which was made is that the applicant was absent from Australia for a relatively long period, a period which was not compatible with the notion that Australia was his home or permanent abode and a period which was not a temporary absence. Ground 2—Constructive Failure to Exercise Jurisdiction 74 This contention is based upon the same fundamental proposition upon which Ground 1 was founded—the error concerning the longest single absence. The postulated factual error does not amount to jurisdictional error. The exercise of power was not conditional on proof of a single absence from Australia of 2 years and 7 months. Ground 2 must be rejected for the same reasons as I have rejected ground 1. Ground 3—Error in Interpreting s 12(1)(b) 75 In s 1.1B of her Statement of Findings, the delegate set out the substance of the definition of ordinarily resident for the purposes of s 12(1)(b). She went on to include some guidelines from the ACI. Beyond making the findings recorded in [3.2] and [3.3], she did not discuss the statutory definition or the ACI guidelines. She did not have to. She found that the applicant had spent a long time outside Australia in the relevant period. She concluded from that fact, and from the relatively long single absence, that the definition was not met. She was not satisfied that the applicant had made Australia his home or permanent residence throughout the relevant 10 year period. For that fundamental reason, the delegate was not satisfied that the applicant is an Australian citizen and is therefore someone to whom a s 37 notice should be given. 76 The brevity of the delegate's Statement of Findings does not demonstrate the alleged error of interpretation. Indeed, the applicant did not identify any alleged error. 77 Ground 3 must be rejected. Ground 4—Failure to Take into Account Relevant Considerations 78 The applicant submitted that: (a) The delegate was obliged to take into account the ACI. In particular, she was bound to take into account the guidelines extracted by the delegate in s 1.1B as to what are, according to the guidelines, "relevant considerations" when called upon to consider whether a person was ordinarily resident in Australia throughout the period described in s 12(1)(b). (b) The failure to take into account those guidelines constituted jurisdictional error. 79 In support of these propositions, the applicant relied upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]–[84] (pp 351–352); and Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1. But those cases make clear that the ground of failure to take into account a relevant consideration is only made good if the consideration is one which the decision-maker is bound to take into account. Here, that is not the case. The ACI are only guidelines to which the decision-maker may have regard if he or she wishes. They are not required to be taken into account by the Citizenship Act or by any other statute or regulation. The particular material in the ACI which the applicant contends was ignored was the material listed in the ACI as material likely to assist the decision-maker to determine whether the requirements of the statutory definition of "ordinarily resident" set out in s 3 of the Citizenship Act had been met in the case of the present applicant. 80 The first paragraph of the Introduction to the ACI provides: The role of the ACI is to support the Australian Citizenship Act 2001. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegates' powers under the Act. 81 Ground 4 is rejected. The delegate was entitled to take into account relevant parts of the ACI but was not obliged to do so. Ground 5—Legitimate Expectation and Procedural Fairness 82 The policy which is said not to have been applied is the statement in the ACI of what might be regarded as relevant considerations by a decision-maker called upon to determine whether a person was "ordinarily resident" in Australia. 83 The applicant argued that the delegate did not take the listed matters into account. There is no evidence to support this contention. She set out the relevant extract from the ACI in s 1.1B of her Statement of Findings. She did not mention them again. But there is no evidence that she did not take into account all of the material which comprised the applicant's s 37 application. 84 In the end, however, it was the lengthy absences from Australia which drove her decision to refuse to give the applicant the requested s 37 notice. 85 In any event, the question whether the applicant was ordinarily resident in Australia throughout the relevant 10 year period is a question to be determined by interpreting the phrase as defined and then relating the facts as found to that interpretation. 86 There is no scope for the mandatory intrusion of policy. 87 This ground is also rejected. Ground 6—Failure to Give Appropriate Consideration 88 This ground should be rejected for the same reason that Ground 4 was rejected. Whatever the extent of the consideration that is required to be given to a criterion or matter to which a decision-maker is obliged to have regard, in the present case, the delegate was not bound to take account of or have regard to the ACI. Ground 7—Jurisdictional Facts 89 The applicant argued that the question of whether the applicant was ordinarily resident in Australia throughout the period from 22 March 2000 to 22 March 2010 (which is the relevant period for the purposes of s 12(1)(b) of the Citizenship Act) is a jurisdictional fact. 90 The Minister accepted this proposition. The Minister also accepted that the Court can determine the question for itself, upon the basis of the evidence before it. 91 The Minister, however, submitted that it does not follow that there was no warrant for the delegate to have made her own determination on this issue nor does it follow that, in the event that the Court should find for the applicant on this question, the applicant would be immediately entitled to a s 37 notice. The proper remedy would be to remit the matter to the Minister for reconsideration of the applicant's s 37 application. The decision-maker would then need to be satisfied as to the applicant's identity (s 37(4)). 92 As noted at [49] above, the applicant does not now seek a mandatory order directed to the Minister requiring him to give to the applicant the requested s 37 notice. 93 I will consider this issue in the next section of these Reasons. Consideration (Declaratory Relief) 94 I have set out the relevant terms of s 12(1)(b) of the Citizenship Act at [54] above. I have also extracted the definition of the expression ordinarily resident at [56] above. 95 It follows that the applicant is an Australian citizen within the meaning of the Citizenship Act if he was ordinarily resident in Australia throughout the period of 10 years beginning on the day when he was born. 96 The history of the antecedent statutory provisions to the current s 12(1) was discussed by O'Loughlin J in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 311–314. 97 In the bankruptcy context, the Court has considered the expressions "resident" and "ordinarily resident". The observations made in that context are apposite to the present context. In Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197, Lockhart J held that those expressions are not technical terms and have their ordinary English meaning. Whether a person is ordinarily resident in Australia is a question of fact and degree (Re Taylor at 197). 98 A person's permanent abode is the place where he or she regularly or customarily lives (Re Taylor at 198). As Lockhart J went on to say in Re Taylor (at 198): There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression "ordinarily resident in" connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene (supra) and Lysaght (supra). As Lord Warrington said in Levene (at 232): "'Ordinarily resident' means according to the way a man's life is actually ordered." The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231. 99 Whether a temporary absence from Australia prevents a person from being "ordinarily resident" in Australia is a question of fact and degree (Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 525 per Burchett J). Whether, at the time of departure and during the temporary absence, the debtor intends to return to live in Australia after the temporary absence is relevant to determining whether he or she is "ordinarily resident" in Australia during the absence (Re Vassis at 525). This observation is of particular importance in the present case. 100 In the case of a minor, the question of whether such a person is ordinarily resident in Australia within the meaning of the Citizenship Act will generally be determined by reference to the position of the parents. In a case such as the present, where the applicant always accompanied his mother wherever she went in the period from the date of his birth up to 22 December 2007 and generally remained with both his parents thereafter, the Court will pay particular attention to the status of the applicant's mother. This is not to say that the position of the applicant's father is irrelevant, particularly if the marriage of the parents remained intact at all relevant times and if both parents were involved in decisions as to the movements to be undertaken by the child. 101 In Restom v Battenberg (2007) 4 ABC(NS) 474 at [9], Stone J noted that, in Re Taylor and Re Vassis, significant weight had been placed by Lockhart J and Burchett J on statements made in incoming and outgoing passenger cards. The Minister submitted that, in the present case, the passenger cards completed by the applicant's mother from time to time revealed that the only reason the applicant ever came to Australia was for a holiday or to be reunited with his father. The Minister also submitted that, in any event, the applicant's travel history does not support a conclusion that he had his home in Australia or that Australia was his permanent abode throughout the first 10 years of his life. There was nothing permanent or fixed about his living in Australia. 102 Section 12(1)(b) requires that the citizenship aspirant be ordinarily resident throughout the relevant period. That word imports a notion of continuity or constancy. The requirement must be satisfied at all times for the whole of the period. Temporary absences are accommodated within the definition of ordinarily resident. The Relevant Facts (Ordinary Residence) 103 Neither the applicant nor his mother gave evidence before me. Mr Lee swore an affidavit on 30 March 2011 which was read and relied upon at the hearing. Mr Lee was cross-examined by Counsel for the Minister. 104 Mr Lee said that he is a citizen of Korea who was born on 20 October 1964. He said that he is married to Hanna Kim who is also a citizen of Korea. Hanna Kim was born on 20 January 1966. Mr Lee arrived in Australia for the first time on 16 July 1997. He said that he was accompanied by his wife, Hanna Kim, when he arrived in Australia. 105 As I have already mentioned, searches have been made of DIAC records for movement records of Hanna Kim (d.o.b. 20-01-1966) but no movement records in respect of that person have been found. In addition, there was no documentary evidence before me that Hanna Kim ever held an Australian visa in her own name. Mr Lee asserted that, when he and his wife arrived in Australia on 16 July 1997, he held a visitor visa and she held a student visa. 106 DIAC records tendered in evidence before me corroborated the fact that Mr Lee first entered Australia on a visitor visa. 107 Mr Lee also asserted that, on a number of occasions, his wife had entered and departed from Australia using her sister's passport. Her sister is said to be called Maria Kim. Her date of birth is said to be 23 May 1971. 108 Subsequently, Mr Lee obtained a number of Australian visas. Some were student visas, some were visitor visas, some were tourist (long stay) visas and some were bridging visas. 109 DIAC records also establish that, between 11 December 2001 and 15 February 2011, thirteen Australian visas were issued to "Maria Kim (d.o.b. 23-05-71)". Those visas were student visas, tourist (long stay) visas or bridging visas. 110 By early 2011, both Mr Lee and Maria Kim were apparently in Australia under bridging visas (WE-050). 111 Mr Lee said that, between 16 July 1997 and early 2001, with the exception of a seven day trip to Indonesia taken by him, both he and his wife remained in Australia continuously. 112 DIAC records confirmed that this was so in the case of Mr Lee but there was no record in the name of Hanna Kim or Maria Kim that corroborated his assertion in the case of his wife. 113 The applicant was born in this period. His date of birth is 22 March 2000. 114 Mr Lee said that, in the period 1998 to early 2001, whilst in Australia, he: (a) Worked as a cleaner in Chatswood, NSW. (b) Obtained an Australian tax file number. (c) Established his own cleaning business, initially conducted as a sole trader and ultimately through a proprietary company. (d) Rented residential premises in Chatswood and Willoughby, NSW. (e) Obtained a NSW Driver's Licence in 1998 which he has maintained up to the present time. 115 In par 13 of his affidavit, Mr Lee said: In February 2001 our student visas expired and we returned to Korea. We departed Australia on 26 January 2001. Sam was aged 10 months. We remained in Korea for about two weeks. We stayed with my wife's parents but also spent time with my parents. 116 DIAC records show that the applicant left Australia on 25 January 2001 and returned to Australia on 12 February 2001. This was the first time that the applicant left Australia. He had been here since birth (309 days). He was away from Australia for 18 days. 117 DIAC records show that Mr Lee left Australia on 7 February 2001 and returned to Australia on 12 February 2001. The movement records in respect of Maria Kim show that she first arrived in Australia on 15 December 2001. There were no available movement records in respect of Hanna Kim. I find that Mr Lee left Australia on this occasion on 7 February 2001 not on 26 January 2001 and that he left after his wife and son had already departed. 118 Mr Lee said that, by February 2001, he was living and working in Australia. He said that: "… [he] felt very settled here. Australia had become my home". I think that the latter statement is an exaggeration. 119 On 11 March 2001, the applicant again left Australia. He had only remained here for 27 days on this occasion. He returned to Australia on 12 May 2001. He was therefore absent for 62 days. Mr Lee did not accompany the applicant on this occasion. 120 In paragraph 15 of his affidavit, Mr Lee said: 15. On 11 April, 2001 my wife and Sam again departed Australia as their visas were about to expire. It was a very difficult situation for me as I did not wish to be apart from my wife and son. However, I could not leave Australia. I had no where to live in Korea and no job there. I wanted to continue working in Australia as this was where I had established my home. Fortunately our separation was brief and my wife and son returned to Australia after only four weeks away. During the time they were in Korea they again stayed with my wife's parents. My wife obtained evidence to support an application for Australian permanent residence which I intended to make in Australia, based on a sponsorship from an Australian cleaning company. However I did not make the application because it was too expensive and as I had also overstayed my visa I thought my application might not be approved. 121 During the period that the applicant was away from Australia in the period March to May 2001, Mr Lee also left Australia. He departed on 11 April 2001 and returned on 18 April 2001. Mr Lee has not left Australia again since returning on 18 April 2001. I do not accept his evidence in par 15 of his affidavit to the effect that he did not go to Korea in April 2001. I am also sceptical of his assertions to the effect that, in 2001, he and his wife contemplated making an application for permanent residence in Australia but did not do so. If this assertion is true, however, it tends to support the view that the family did not intend or expect to be able to stay in Australia permanently. 122 In pars 16, 17 and 18 of his affidavit, Mr Lee said: 16. I have not departed Australia since my last arrival date, which was 11 February 2001. I had my cleaning business in Australia which I was developing and a nice home in which to live. I had purchased household furniture and a family car. I had made friends, principally through the church that I had joined some years before. I liked the Australian climate which was mild compared to the weather in Korea. By 2001 I had established a good life. I had become a father. I had adjusted to Australia and with each passing year my life in Korea became more of a distant memory. Certainly, I had lost all inclination to ever return there. 17. My wife and Sam returned to Australia on 11 May 2001. Again our separation was brief and they resumed living with me in Willoughby. They returned to Korea on 17 July 2001 and stayed until 24 August 2001. While they were away I found new and larger accommodation in Chatswood. They lived with me in Chatswood until 25 November 2001 at which time they returned to Korea. 18. As was their usual practice, for the brief periods they were visiting Korea my wife and son stayed with my wife's parents. 123 The applicant left Australia again on 16 July 2001 and returned to Australia on 25 August 2001. He was therefore absent for 40 days on this occasion. He had remained here for 65 days between 12 May 2001 and 16 July 2001. 124 The applicant left Australia again on 24 November 2001 and returned to Australia on 15 December 2001. He had, therefore, been in Australia for 91 days between 25 August 2001 and 24 November 2001 and absent from Australia for 21 days between 24 November 2001 and 15 December 2001. 125 The applicant remained in Australia continuously from 15 December 2001 until 7 February 2003 (a period of 419 days). DIAC records confirm that a person travelling on the passport of Maria Kim arrived in Australia on 15 December 2001 and left again on 21 January 2002. A person using the passport of Maria Kim returned to Australia on 5 August 2003 and stayed here until 30 January 2004 when she again left Australia. I am unable to say, on the evidence before me, whether the person who left Australia on 21 January 2002 using the passport of Maria Kim was Maria Kim or Hanna Kim. I infer that the person who used that passport on 5 August 2003 was Hanna Kim. I do so because 5 August 2003 is one of the days when the applicant came back to Australia. 126 DIAC records show that the applicant left Australia on 7 February 2003 and did not return to Australia until 5 August 2003 (an absence of 179 days). Those records also show that he left Australia on 30 January 2004 and did not return until 6 April 2004 (an absence of 67 days). 127 A person travelling on the passport of Maria Kim also returned to Australia on 6 April 2004. I again infer that that person was Hanna Kim. 128 Both the applicant and a person travelling on the passport of Maria Kim left Australia once again—on this occasion on 5 July 2004. They remained away until 24 August 2004 (an absence of 50 days). I again infer that Hanna Kim used her sister's passport for these journeys. 129 In par 19 to par 23 of his affidavit, Mr Lee said: 19. On 14 December 2001 my wife and Sam returned to Australia after a few weeks in Korea. They remained in Australia for over a year. We were very settled in Australia. Sam was speaking English and my business was improving. However, in early 2003 my wife became fearful of being caught without a visa. She did not want Sam to be put in detention and this period became a difficult one for us as I wanted both her and Sam to remain in Australia. As it turned out she and Sam departed Australia in the hope that, like on previous occasions, their absence from Australia would be brief. 20. While in Korea my wife applied for visas to enable her to return to Australia but she was refused because she had significantly overstayed her last visa. She and Sam were eventually able to return to Australia on 4 August 2003. They stayed until 31 January 2004. Over the next 12 months they travelled to and from Australia on three occasions, spending about an equal amount of time in each country. 21. In the period commencing 22 March 2000 and ending 22 March 2010 the longest single period of time spent by my wife and Sam outside Australia was 27 months – from 6 September 2005 to 21 December 2007. During this period they spent approximately six months in Canada (from 11 September 2006 to 7 March 2007), where they stayed with a Korean family in Toronto. Sam was enrolled in a local Kindergarten there. My wife worked in a take-away shop. I did not want to leave Australia so there was no question of me travelling to Canada. As my wife's Canadian visa was valid for only 6 months she returned to Korea on 7 March 2007. She and Sam stayed with her parents for the 9 months they were in Korea. As Sam was school-aged my wife enrolled him in school. 22. The only other country my wife and Sam visited, apart from Canada, was New Zealand. They visited New Zealand on two occasions. The first occasion was from 15 November 2005 until 14 December 2005. The second time was from 31 January 2006 to 4 March 2006. 23. My wife travelled to New Zealand because she wanted to investigate whether it might be possible for us to live there as I have a brother who is a citizen of New Zealand. My wife and son stayed with my brother in Auckland for the duration of their two visits. However, as I did not want to leave Australia they returned to Korea after a few weeks. 130 DIAC records establish that, on 22 September 2004, both the applicant and a person travelling on the passport of Maria Kim left Australia and remained out of Australia until 8 December 2004 (an absence of 77 days). They both left Australia again on 13 January 2005 and stayed away until 29 June 2005 (an absence of 167 days). 131 On 6 September 2005, both the applicant and a person travelling on the passport of Maria Kim left Australia. On this occasion, they remained out of Australia for well over 2 years (837 days). The applicant did not return to Australia until 22 December 2007. A person travelling on the passport of Maria Kim did not do so until 30 January 2008. 132 I infer that the person using the passport of Maria Kim on all these journeys was Hanna Kim. 133 Mr Lee purported to give evidence as to the applicant's current subjective desires. I admitted that evidence subject to relevance. 134 In par 29 and par 30 of his affidavit, Mr Lee said that: 29. I have lived in Australia since 1997. I initially came to Australia because I was looking for a better country than Korea in which to live. Since my arrival I have undertaken study here, found a place in which to live, commenced a family and established a business. I have a tax file number. I have had dealings with many organisations in Australia and formed relationships with many Australians. I joined a local church and have remained a member of the church congregation for some fourteen years. I enrolled my son in school. I have leased a number of properties. I have purchased household goods and other items. I have opened and operated both personal and business bank accounts. I have paid tax. I believe I have become totally settled in Australia have made a permanent home for myself and my family. 30. I have no home or property in Korea. I have not been back to Korea since 2001. I have no job or business there. I have no continuing relationships with people in Korea. Apart from the presence of family members neither I nor my wife have had any continuing association with Korea. This is so even though my wife has visited Korea at those times when she had to leave Australia. She only did so in order to spend more time here. 135 When cross-examined, Mr Lee said that: (a) He knew that, after first arriving in Australia, his wife (Hanna Kim) had travelled to Australia under the name Maria Kim. (b) He knew that his wife had travelled with the applicant to Canada and stayed there together for six months. (c) He knew that, after leaving Canada, his wife and the applicant had returned to Korea. (d) He knew that his wife and the applicant then travelled to New Zealand from Korea twice, eventually returning to Korea. (e) His wife's date of birth was 6 January 1967. (f) The trips to Canada and New Zealand from Korea took place in the period between 6 September 2005 and 22 December 2007. (g) He did not see his wife and son for over 2 years between September 2005 and December 2007. (h) The applicant travelled to Australia in December 2007 accompanied only by an airline employee. His mother was not with him. (i) Apart from the period between 22 December 2007, when the applicant returned to Australia, and 30 January 2008, when Hanna Kim returned to Australia, the applicant had spent his whole life with his mother. Wherever she went, he went. 136 Certain documents were shown to Mr Lee during his cross-examination. Broadly speaking, those documents comprised visa applications and supporting documents in respect of the applicant and Maria Kim. Mr Lee disavowed all knowledge of the contents of these documents and could not explain certain anomalies revealed by these documents. 137 The documents which he was shown were pp 20, 29 and p 31 in the affidavit of Katherine Nicole Hooper affirmed on 19 April 2011. Those documents are three folios within Annexures "A" to "D" to Ms Hooper's affidavit (pp 4–38 of that affidavit). 138 Annexures "A" to "D" to Ms Hooper's affidavit establish that: (a) On 22 November 2001, Hanna Kim applied to DIAC on behalf of the applicant for a long stay visa. (b) On 13 March 2002, that application was refused. The principal reason given for that refusal was that the applicant's mother (Hanna Kim) had not provided to DIAC certain documents requested by it and had become impossible to contact. The documents requested by DIAC comprised evidence as to the applicant's financial means and a letter from his father allowing him to stay in Australia. Hanna Kim had apparently told DIAC that she wanted the visa because she "… would like to stay longer [in Australia] to travel around Australia and to spend some time with her friend who is coming to visit". (c) In late 2003 (probably late October 2003), Hanna Kim applied for a long stay visa using the name and date of birth of "Maria Kim", her younger sister. She requested a stay until 18 April 2004. On that application, she answered question 12 ("In the last 5 years, have you, or have any children included in this application, visited or lived outside your country of usual residence for more than 3 consecutive months?"), "No". (d) As part of that application, Hanna Kim produced to DIAC two documents. These were: (i) An English translation of a letter in the following terms: To: Department of Immigration To whom it may concern, I give my full permission for my son (Samuel LEE) to stay in Australia for about 4 – 6 months. I would like to ask for your consideration. From Yi Ki LEE Samuel's Father (ii) An English translation of a document in the following terms: FAMILY REGISTER [Extract Translation] 1. Child's Name: Samuel LEE Sex: Male Date of Birth: March 22, 2000 Resident No: 000322-3185416 Father's Name: Yi Ki LEE Mother's Name: Maria KIM 2. Father's Name: Yi Ki LEE Sex: Male Date of Birth: January 01, 1966 Korean I.D. No.: 660101-1538911 3. Mother's Name: Maria KIM Sex: Female Date of Birth: May 23, 1971 Korean I.D. No.: 710523-2716018 This is to certify that the above is not at variance with the original family register on file at this Ward Office. November 07, 2003 HEAD of HEUNGDUK-MYUN WARD OFFICE /Official Seal Affixed/ Contact Phone No: 063) 560-2561 Person in Charge: Yoon OK NAH (e) Hanna Kim entered Australia from Korea on 13 October 2001. She claimed at that time on her incoming passenger card that she was a visitor to Australia for the purpose of holidaying here. She also said on that card that she did not intend living in Australia for the next 12 months. (f) Hanna Kim left Australia on 7 February 2003. (g) A person purporting to be Maria Kim left Australia on 6 September 2005. The outgoing passenger card signed in the name of "Maria Kim" on 6 September 2005 was signed by Hanna Kim. 139 Many extracts from the records kept and maintained by DIAC were tendered before me. No objection was taken to those records. It is likely that those records are accurate and reliable. I find, as a general proposition, that the DIAC records tendered in evidence before me are likely to be reliable. Where the contents or import of those records conflict with the assertions of Mr Lee in his affidavit, I prefer the records as a reliable source of relevant information. 140 In his affidavit, Mr Lee purports to give evidence about the feelings and emotions of the applicant. In particular, he purports to give evidence as to the applicant's subjective view as to where his permanent home is. Evidence of that type should have been given by the applicant if it was to be given any weight. He was 11 years of age at the time of the hearing and could have testified. I propose to give no weight to the assertions made by Mr Lee as to his son's feelings, thoughts and emotions. 141 Hanna Kim did not give evidence. There is no suggestion that she was, for good reason, unable to do so. I was told that Hanna Kim was present in Court throughout the hearing. There are many matters in the applicant's life which could have been explained by evidence from Hanna Kim. 142 There are some disquieting features of the evidence in this case. 143 First, in the Movements Schedule forming part of the bundle of documents submitted to the delegate in connection with the applicant's s 37 application, it was suggested that the applicant had returned to Australia in 2006 and remained here for approximately five weeks. This suggestion is not corroborated by any DIAC records. Furthermore, Mr Lee made clear in par 21 of his affidavit that the applicant and Hanna Kim had remained out of Australia throughout the period from 6 September 2005 until 22 December 2007. 144 Second, in both the materials furnished to the delegate and in evidence before me, Mr Lee said that both he and his wife, Hanna Kim, had remained in Australia continuously from the date of their arrival on 16 July 1997 until 2001. The only exception to that state of affairs was the one week trip to Indonesia in 1998 which Mr Lee took alone. The certified copy of the applicant's Birth Certificate dated 15 May 2000 which was furnished to the delegate contained a statement to the effect that Mr Lee and Hanna Kim were married in Seoul, Korea on 3 September 1997. If the other assertions to the effect that both Mr Lee and Hanna Kim were in Australia continuously from 1997 until 2001 are correct, then the statement in the Birth Certificate of the applicant as to the date of the marriage between Mr Lee and Hanna Kim cannot be correct. I infer that one or other or both of Mr Lee or Hanna Kim was the source of the information recorded in the Birth Certificate. 145 Third, the passport information furnished to the delegate was incomplete and did not give a full picture of the way in which Hanna Kim had entered and left Australia from time to time in the period from 2001 to 2007. In addition, the revelation made by the applicant's solicitor to the delegate that Hanna Kim had travelled on her sister's passport from time to time was not a full and frank exposition of the use which Hanna Kim appears to have made of her sister's passport, her sister's name and her sister's identity. 146 Fourth, in evidence before me, Mr Lee stumbled over the answer to the question: Q: What is your date of birth? and gave an answer in respect of the question: Q: What is your wife's date of birth? A: 6 January 1967. That is not the date of birth of Hanna Kim according to every other piece of evidence in the case. I found it curious, to say the least, that Mr Lee would stumble over his own birthday and apparently not remember his wife's birthday. 147 Fifth, it is quite clear that Hanna Kim has told lies to Australian immigration authorities on many occasions over the years. She has masqueraded as her sister, Maria Kim, in visa applications and travelled on many occasions using her sister's passport. 148 Sixth, in documents accompanying one visa application, the material which I have extracted at [138(d)] above was included. That material suggested that another Mr Lee (Yi Ki Lee) is the real father of the applicant and that Maria Kim, Hanna Kim's sister, is the real mother of the applicant. It is obvious that the evidence generally given before me and the contents of those documents cannot both be true. Mr Lee was evasive when asked about these documents. 149 These disquieting features of the evidence suggest that I should be cautious in accepting the uncorroborated assertions of Mr Lee and the unsupported contentions of his solicitor. In making findings in relation to this part of the case, I have looked closely at the evidence and approached the case brought forward on behalf of the applicant with a fair degree of caution. 150 The question of whether Mr Lee and Hanna Kim are the biological parents of the applicant is not an irrelevant question in the present proceeding. If I should hold that they are the biological parents of the applicant, that holding lends credence to the proposition that he was born at Royal North Shore Hospital on 22 March 2000, as Mr Lee alleges. If, however, his real parents are Yi Ki Lee and Maria Kim, question marks arise as to the veracity of his entire case. 151 I am inclined to think that Mr Lee and Hanna Kim are the biological parents of the applicant and that he was born at Royal North Shore Hospital, St Leonards, as is alleged on his behalf in the present proceeding. I think that the evidentiary material that tends to suggest otherwise is generally not reliable and has been created for particular purposes at various times which suited the aspirations of Mr Lee and Hanna Kim. 152 Accordingly, I find that Mr Lee and Hanna Kim are the biological parents of the applicant and that he was born on 22 March 2000 at Royal North Shore Hospital, St Leonards, NSW. 153 In the first 10 years of his life, all decisions as to where the applicant would physically be taken and where it was intended that he should live were made by his parents. Those decisions were reflected in the movements which he undertook in that period. For the first 7 years and 9 months of that period, he went wherever his mother went. 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. To the extent that any subjective intention is to be attributed to the applicant for the purpose of assessing where the applicant was ordinarily resident in the first 10 years of his life, it is the intention of his parents that must be considered. The applicant did not have the capacity in that period to give effect to any decision of his own as to where he would live. 154 The findings made at [152]–[153] above mean that the applicant had the potential to engage the operation of s 12(1)(b) in his favour. Whether he has done so or not will depend upon whether he can establish, on the balance of probabilities, that he was ordinarily resident in Australia throughout the period from 22 March 2000 to 22 March 2010. 155 There is little doubt that, for most of the time since 1997, Mr Lee and Hanna Kim have wanted to leave Korea and settle elsewhere in the world. Australia was and currently is one of the potential candidates for their permanent home. Mr Lee has lived here for most of the last 14 years. He has not left Australia since 18 April 2001. His absences in the period between 1997 and April 2001 have been of short duration. The evidence establishes that he has worked in Australia for some time and, in recent years, has established his own cleaning business. He lives in rented premises. He has moved from one set of premises to another from time to time, as required. However, the family has never applied for permanent residence here. 156 Hanna Kim, on the other hand, has spent significant periods of time outside Australia. In the period between 1997 and late 2001, there is very little information as to her movements. In particular, no DIAC records as to her movements in this period have been located. The reason for this is not clear, although it may well be because she gave false information to the authorities as to her date of birth. She has passed herself off as Maria Kim whenever it suited her to do so. 157 However, a reasonably detailed picture of her movements can be reconstructed for the period beginning 15 December 2001. Given the concessions made by the applicant's solicitor in the applicant's s 37 application concerning Hanna Kim's use of her sister's identity and the acceptance by Mr Lee that this had occurred systematically, I infer that most of the travel movements of the person travelling as Maria Kim evidenced in DIAC records were movements of Hanna Kim. I find as a fact that all of the movements which coincided with travel by the applicant were in fact journeys undertaken by Hanna Kim. 158 In summary form, the relevant DIAC records show that, in the relevant 10 year period, the applicant spent approximately 5 years and 310 days in Australia and approximately 4 years and 55 days out of Australia. The longest continuous period outside Australia was 2 years and 3½ months. This occurred in the period between 6 September 2005 and 22 December 2007. 159 The applicant departed Australia on ten separate occasions in the relevant period. Three of those occasions were for periods of two months or more and two others were for periods of six weeks or so. 160 The evidence also disclosed that Hanna Kim and the applicant spent six months in Canada in late 2006 and that the applicant went to school in Canada during this period whilst his mother worked there. Apparently, Hanna Kim believed that she would be eligible to obtain residence in Canada. I find that, had she been able to do so, Hanna Kim would have settled in Canada. The applicant would have done likewise (he was about 6½ years of age at the time). 161 When the applicant and Hanna Kim left Canada, they returned to Korea, not to Australia. They used Korea as the stepping off point for their next country of interest, New Zealand. 162 After the Canadian venture, the applicant and Hanna Kim made two trips to New Zealand where Mr Lee apparently has a brother. These trips were made during the applicant's longest absence from Australia. They occupied several months. After their time in New Zealand came to an end, the applicant and Hanna Kim returned to Korea. They did not come to Australia again until late 2007 or early 2008. 163 It is consistent with the aspirations of Mr Lee and Hanna Kim to leave Korea and find a better life that they contemplated settling in Canada and, when that proved impossible or unattractive, turned their ambitions to New Zealand. As far as New Zealand is concerned, Mr Lee conceded that they looked at the possibility of relocating there permanently. 164 I find that Mr Lee and Hanna Kim seriously contemplated settling in both Canada and New Zealand and that no firm decision to finally settle in Australia had been made until at least late 2007 or early 2008. I am far from convinced that such a decision was made even then. The fact that Mr Lee remained in Australia continuously after 18 April 2001 is not inconsistent with that finding. It is likely, and I find, that he remained here using Australia as a base from which to finance his wife's investigations into the prospect of living in Canada and, later on, in New Zealand. 165 The passenger cards completed by Hanna Kim, masquerading as Maria Kim, repeatedly suggested that her purpose for coming to Australia was to have a holiday here. Several of the visas granted to each of Mr Lee, Hanna Kim and Samuel Lee were tourist visas. 166 In the relevant period, the question of whether the applicant was ordinarily resident in Australia must be determined by reference to whether his parents were ordinarily resident here. As I have mentioned at [102] above, the requirement laid down in s 12(1)(b) of the Citizenship Act is that the applicant be ordinarily resident throughout the relevant period. This implies a strong element of continuity. The requirements of the section will not be satisfied merely by establishing that an applicant has spent the majority of the relevant 10 year period in Australia. What is required is that the necessary connection be in place throughout the relevant period. 167 I find that the applicant's parents did not establish a permanent abode here until at least late 2007 or early 2008 (if they ever did) and that they did not intend to settle here permanently until at least that time. Further, I find that, throughout the period from 6 September 2005 until late 2007, the applicant's parents were looking to settle elsewhere, namely in Canada or New Zealand. 168 In those circumstances, I have come to the conclusion that the applicant was not ordinarily resident in Australia throughout the 10 year period following his birth within the meaning of s 12(1)(b) of the Citizenship Act. Conclusion 169 The applicant has failed to make good any of the grounds for review advanced by him in respect of the delegate's decision. In addition, the applicant has failed to establish that he was ordinarily resident in Australia throughout the relevant period for the purposes of s 12(1)(b) of the Citizenship Act. Indeed, I think that the evidence establishes that he was not ordinarily resident here throughout that period. His application must, therefore, be dismissed with costs. 170 There will be orders accordingly. I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 16 December 2011