Federal Court of Australia

Tatla by his litigation guardian Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1138

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Simrat Singh Tatla is 12 years old. He is the son of foreign nationals. Although he was born in Australia, for more than eight of the first 10 years of his life he lived in India with his paternal grandparents.

2    Section 12(1) of the Australian Citizenship Act 2007 (Cth) provides that a person born in Australia is an Australian citizen if and only if, at the time of their birth, one of their parents is an Australian citizen or a permanent resident (s 12(1)(a)) or the person is “ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born” (s 12(1)(b)). Section 37 of the Citizenship Act enables a person to make an application to the Minister for evidence of Australian citizenship (s 37(1)) and the Minister to give the person a notice stating that the person is an Australian citizen at a particular time (s 37(2)).

3    On 16 February 2021, Simrat’s mother, Harpal Kaur Grewal, lodged an application for evidence of Australian citizenship, claiming that Simrat was born in Australia and had lived here for the first 10 years of his life but had also travelled overseas.

4    On 22 April 2021, a delegate of the Minister was not satisfied that Simrat had been ordinarily resident in Australia throughout that period and so refused to provide such evidence.

5    On 17 May 2021, Ms Grewal applied to the Minister for a review of that decision. At the invitation of the Minister’s Department, she submitted additional documents in support of the application. But the review application was equally unsuccessful. Another Ministerial delegate affirmed the original decision on 13 September 2022.

The application for judicial review

6    About 10 weeks later, on 22 November 2022, Ms Grewal applied to this Court for an extension of time to lodge an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the apparent belief that that Act gave her a right of review and that she had 35 days in which to exercise that right. At the time, she was unrepresented. The Minister agreed to an extension of time and an order was made on 13 February 2023 granting that extension. Later, Mr Godwin of counsel agreed to appear for her (pro bono), and the application under the ADJR Act was not pursued. Instead, on 6 April 2023 she filed an amended application seeking relief under s 39B of the Judiciary Act 1903 (Cth). The relief Ms Grewal seeks is a declaration that Simrat has been an Australian citizen since his 10th birthday.

7    Section 39B(1A)(c) of the Judiciary Act gives this Court original jurisdiction in any matter arising under any laws made by the Commonwealth Parliament, other than criminal matters. This is a matter arising under such a law because the right or duty in question owes its existence to an Act of the Commonwealth Parliament: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ); LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581–2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). The Act, of course, is the Citizenship Act.

8    The application is supported by affidavits of Ms Grewal and Simrat’s father, Gurpreet Tatla, both affirmed on 6 April 2023. An earlier affidavit affirmed by Ms Grewal on 15 December 2022 was not read. Both Ms Grewal and Mr Tatla were cross-examined. The Minister relied on an affidavit affirmed by Aaron Marcus Moss, a lawyer with Clayton Utz, the solicitors acting for the Minister in this proceeding. The evidence contained in Mr Moss’s affidavit traced the visa status of Simrat’s parents and included statements each of them made on incoming and outgoing passenger cards and other documents that could bear on their intentions. Those documents provided the basis for a good deal of the cross-examination.

The issue

9    Neither of Simrat’s parents is an Australian citizen or permanent resident. Nor were they at the time Simrat was born. Both are Indian nationals who have lived in Australia on a succession of temporary visas since before Simrat was born. The question in this case is whether, despite his lengthy absence from Australia, Simrat was “ordinarily resident” in Australia throughout the first 10 years of his life.

The relevant principles

10    “Ordinarily resident: is a defined term in the Citizenship Act. Section 3 of the Citizenship Act provides that:

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.

11    It follows that in order to succeed Ms Grewal must prove one of two things for the duration of the relevant period: either that Simrat’s home has been in Australia or that Australia has been his permanent abode and that his absence in India, though prolonged, was only temporary.

12    “Permanent abode” and “home” are not defined terms and it may be inferred that Parliament intended these terms to carry their ordinary meaning: Sidhu by his litigation representative Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1459 at [7]. “Home” is relevantly defined in the Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) 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 [and] 6. any place of existence or refuge: a heavenly home”. “Abode” is defined as: “1. a dwelling place; a habitation [or] 2. [c]ontinuance in a place; sojourn; stay”. “Permanent” means “lasting or intended to last indefinitely, remaining unchanged; not temporary, enduring, abiding”.

13    There is limited authority on the meaning and application of the relevant statutory provisions. I summarised the principles developed in the authorities in Sidhu at [19]–[29]. They were not then in dispute, nor were they in the present case. In Sidhu I found in favour of the applicant and the Minister appealed. Last month the Full Court dismissed the appeal: Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by his litigation representative Kaur [2023] FCAFC 133. As I said in Sidhu at [19]–[26], s 12(1)(b) is to be interpreted having regard to the following principles:

First, the concept of “ordinarily resident” allows for some absences, depending on the nature and extent of the absences.

Second, 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.

Third, 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.

Fourth, 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.

Fifth, the use of the word “throughout” imports a notion of continuity of constancy.

Sixth, a person may be ordinarily resident in Australia even if they are homeless.

Seventh, a person need not be lawfully resident in Australia to be “ordinarily resident” here.

Eighth, “permanent abode” means no more than the place where a person “regularly or customarily” lives …

14    In Sidhu I went on to observe (at [27]–[28]) that it was clear from the last two principles that to be “ordinarily resident” in Australia a person does not need to have permission to reside in Australia and s 12(1)(b) is broad enough to include a person who is living in Australia either under a temporary visa or even a non-citizen who never held a valid visa or whose visa has expired.

15    The authorities from which the principles were drawn are Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 (Foster J) and Kim v Minister for Immigration and Border Protection (2016) 248 FCR 263 (Gleeson J).

16    I emphasised in Sidhu at [29], picking up on the remarks of Foster J in Lee at [102] and [166], that 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. Generally the focus in the case of a minor is on the intentions of the parents. Nevertheless, all relevant circumstances must be taken into account.

The applicant’s case

17    In a nutshell, the applicant’s case is that Simrat’s parents have made Australia their home for more than a decade since Simrat’s birth. They always intended to obtain permanent residence here and made no plans to live anywhere else. Furthermore, they always intended that Simrat would return to live with them in Australia and his absence in India was merely temporary. Their plan was that Simrat would remain in the care of his grandparents for two to three years while Ms Grewal completed her studies and obtained a Temporary Work (Skilled) (subclass 457) visa (457 visa). Their plan was thwarted when they were unable to obtain that visa or another visa on which Simrat could be included as a family member. Consequently, Simrat’s time in India was extended for far longer than they intended.

The evidence in support of the application

18    The evidence from Simrat’s parents was as follows.

Arrival in Australia and decision to take Simrat back to India

19    Ms Grewal arrived in Australia on a Higher Education Sector visa (subclass 573) in May 2008. In early April 2009, she travelled to India where she married Mr Tatla, returning to Australia on 25 April 2009. At the time, Ms Grewal was studying for a Certificate III in Hospitality Management (which Ms Grewal referred to in her affidavit as “Commercial Cookery”) and supporting herself through casual work. She completed the course later that year and in 2010 began studying for a Diploma in Business Administration.

20    Mr Tatla travelled to Australia on 27 March 2010 as his wife’s dependent. He initially worked three days a week as a trolley pusher and cleaner at Blacktown Shopping Centre while doing some “small carpentry jobs” for a contractor.

21    Ms Grewal and Mr Tatla lived together in a five-bedroom house in Quakers Hill, owned by a friend, which they shared with seven or eight others. After Simrat was born, they continued to live in the house in Quakers Hill, all three of them sleeping in a bed Ms Grewal had purchased.

22    Simrat lived in Australia until 1 April 2011. He was then three months and eight days old. On that day, his parents took him to India to see Mr Tatla’s parents, who lived by themselves in a three-bedroom house, not far from Ms Grewal’s parents. Before they left Australia, Ms Grewal and Mr Tatla discussed their situation with Mr Tatla’s parents. They came to an agreement that Mr Tatla’s parents would look after Simrat while Ms Grewal and Mr Tatla tried to obtain a 457 visa and settle permanently in Australia. Simrat’s grandparents told them: “It will be difficult for you to care for him so it is better that you leave him with us”. Ms Grewal thought this was a good idea as it would enable Simrat to learn from his grandparents about his culture and language. Mr Tatla also thought it was a good idea because “[he] wanted to be well settled in Australia before bringing Simrat back”.

23    The following month Ms Grewal and Mr Tatla returned to Australia alone, leaving Simrat in India with his paternal grandparents. Ms Grewal deposed that at the time she expected Simrat would remain in India for two to three years and return to live with them once she obtained a 457 visa. Similarly, Mr Tatla testified that he intended to leave Simrat in India until they were granted a 457 visa.

24    Ms Grewal and Mr Tatla missed their son very much. Ms Grewal talked to her husband’s parents most days to see how Simrat was going and planned to return to India as soon as possible to see him.

25    Ms Grewal completed her Diploma in Business Administration in June 2011. In September that year she commenced studies for both a Diploma of Information Technology (which she completed in November 2013) and an Advanced Diploma of Management (which she completed in September 2012).

26    Also in September 2011, Ms Grewal applied for a Vocational Education and Training Sector visa (subclass 572) and listed Simrat as a non-accompanying child. She testified that “we wanted to put him in 457 always and not in the student visa”.

Trip to India in 2013

27    Ms Grewal and Mr Tatla travelled again to India on 25 January 2013, staying for about four weeks on this occasion. Simrat called his parents “mum” and “dad”. Once again, they agreed to leave Simrat behind.

28    When they returned from India, they spoke to Simrat and Mr Tatla’s parents every day. Simrat asked them when he was coming to Australia to be with them. Mr Tatla told him: “After we are settled you can come”. They purchased a car and moved to a three-bedroom house, which they shared with one other person. They also purchased a number of household goods including furniture.

First application for a 457 visa (June 2013)

29    On 28 June 2013, Ms Grewal applied for 457 visa. Her sponsor was Shree Ganesha Foods, with whom she had been employed since September 2011. Simrat was listed on the application as an accompanying child as Ms Grewal intended to bring Simrat back to Australia. But the application was refused on 3 December 2013. According to Ms Grewal the reason given for the refusal was that her employer “was not of a sufficient size to support the position [she] was nominated for”.

30    Ms Grewal testified that in around December 2013 she had a conversation with the owners of Shree Ganesha in which they told her that they were growing the business and would take it interstate by 2015 or as soon as possible.

Subsequent student visa applications

31    Towards the end of 2013, Ms Grewal commenced studies for an Advanced Diploma in Network Security. On 31 December 2013, she applied for another subclass 572 visa. She did not include Simrat in this application. This visa was granted.

32    The following year, Simrat started school at “St Kabir Academy”, an English school in India.

33    Ms Grewal deposed that “we still wanted to try and get a subclass 457 visa before bringing Simrat back to Australia”. She recalled that her migration agent (a Mr Sandhu) advised her that she could re-apply for a 457 visa once her employer had “sufficient turnover” to support her position.

34    In 2015, Ms Grewal completed her Advanced Diploma in Network Security and commenced a Diploma of Accounting. On 25 March 2015, she applied for, and was granted, yet another subclass 572 visa. Simrat was not included in this application either.

Second application for a 457 visa (April 2015)

35    In April 2015, Ms Grewal again applied for a 457 visa, including Simrat as an accompanying child. By this time, she had been promoted to “production manager” at Shree Ganesha. But the application was withdrawn on 25 September 2015 on the advice of Mr Sandhu that it would not be successful because Shree Ganesha was still too small.

36    In October 2015, Ms Grewal and Mr Tatla moved into another three-bedroom house, which they also shared with one other person. They purchased beds and other furniture, a washing machine, and a barbeque.

Trip to India in early 2016 and subsequent visa applications

37    On 31 December 2015, Ms Grewal and Mr Tatla travelled to India for around five weeks. Simrat was five years old at this time. On their return, they engaged a new migration agent, Harjinder Singh, who advised them that after Ms Grewal had completed her studies she would be more likely to obtain a 457 visa.

38    In November 2016, Ms Grewal commenced a Bachelor of Business and, on 15 November 2016, Ms Grewal applied for a Student (subclass 500) visa and listed Simrat as a non-accompanying child. She claimed she did so because her migration agent advised her that she would have a better chance of obtaining a visa by not including Simrat. Her application was refused on 17 February 2017. She applied to the Administrative Appeals Tribunal (AAT) for review of that decision on its merits. Her application was unsuccessful. She then applied to the Federal Circuit and Family Court (Division 2) for judicial review of that decision. That application was dismissed. She has appealed to this Court but, as far as I am aware, the appeal is yet to be heard.

Simrat’s return to Australia

39    On 30 November 2019, Ms Grewal’s mother travelled to Australia with Simrat on a tourist visa. Ms Grewal testified that the migration agents she had consulted before 2019 had not mentioned this option. Mr Tatla gave similar evidence.

Was Simrat ordinarily resident in Australia for the first 10 years of his life?

40    Simrat was then eight years and 11 months old. He had lived overseas for a continuous period of eight years, seven months and 28 days the first 10 years of his life. His incoming passenger card continued to record his country of residence as India. It also stated that he did not intend to live in Australia for the next 12 months and that the intended length of his stay was two months. Yet he did not return to India. He has lived in Australia for the past three years and nine months in the property rented by his parents at Quakers Hill and attends the local public primary school.

41    I am not satisfied that Simrat was ordinarily resident in Australia throughout the 10 years since he was born.

42    First, the duration of his absence in India was very long. It represented 87% of the statutory period.

43    Second, as the Minister submitted, the objective circumstances indicate that Simrat had little connection with Australia until he returned at the age of eight. At no time in the long interval since he had left did he travel to Australia. His parents only visited him twice, in 2013 and 2016.

44    Third, the contemporaneous evidence points against the conclusion that throughout the relevant period Simrat’s home was in Australia or that Australia was his permanent place of abode.

45    Fourth, neither Ms Grewal nor her husband was an impressive witness and their evidence in this proceeding was difficult to reconcile with earlier statements they had made about their intentions.

46    When Ms Grewal applied for a subclass 572 visa in December 2013, for example, she told Mr Sandhu, who completed the application on her behalf, that she intended to return to India after she completed her studies. She agreed in cross-examination that Mr Sandhu explained to her that in order to be eligible for a student visa she needed to demonstrate that she only intended to stay in Australia for the duration of her studies. Her application records that she intended to depart Australia on 3 February 2015, after completing her course. It also includes the following statement (without alteration save for the substitution of lower for upper case):

India is now majot supplier of IT solutions to whole world. I need to be fully skilled in Information Technology and start up my IT business in India. I am student of Pacific Institute since 2010 and have trust in their quality of education. India has a big market to provide IT based products and services. I will use my skills to cater to the Indian market.

47    Ms Grewal testified that she told Mr Sandhu the truth and that the information recorded in the application was correct. In particular, she agreed that she wanted to start a business (albeit not an IT business) and that it was her intention, as at December 2013, to set up this business in India.

48    Mr Tatla was included in the application and was a signatory to it. In cross-examination, he testified that their migration agent advised them that Ms Grewal should indicate in her application that she intended to return to India because, otherwise, she would “not be able to complete her studies”. He said that they followed the advice of their agent, “whatever he said to fill … we did it”.

49    In her 2016 application, under the heading “Genuine temporary entrant” (where applicants are informed that “[a]ll student visa applicants are required to provide information in support of their application to demonstrate that they meet the Genuine Temporary Entrant criteria”), Ms Grewal wrote:

I have completed vocational sector study and wish to progress to the higher education. I have acquired the basic skills at vocational level in management and administration fields and advancing my business skills to higher level by studying Bachelor of Business. My goal is to get business skills to work in management and administration fields at management level with the International reputed companies in India after completing my proposed studies.

(Emphasis added.)

50    In a submission made to the AAT in connection with Ms Grewal’s application to review the decision to refuse to grant her a subclass 500 visa, Ms Grewal made it clear that her intention was always to return to India. She insisted she was only resident in Australia in order to further her education to enable her to establish a business and career in India. She denied that she was using the student visa program as a means of maintaining an ongoing residence in Australia and stated that she had no intention of doing so. The submission bears the date 6 April 2018. Simrat was seven at this point.

51    In the Statement of Purpose, prepared in January 2017 when Simrat was six, which was incorporated into the submission, Ms Grewal stated, amongst other things:

I have plans to start my own business in India …

After completing intended studies, I would gain enough knowledge and skills to start my own business. I trust that I would have the skills; knowledge and experience to head start my career in India. I have never used student visa as a mean of maintaining de-facto residence …

I never intended to take advantage of any migration option to stay here permanently.

…

I have left my son in India. The reasons behind the same include the fact that I always intend to return to my home country, India …

My parents and my in-laws are having enough property and other financial assets that we can live a good life in India. The value of assets and other savings of my parents and in-laws is about INR 4 crores, which is equivalent to approximately AUD$1m. They are happy to help me financially to start my business. I also have my son, one sister, and three sisters-in-laws and their extended family members living in India. I have all the incentives to return home at the end of my stay in Australia.

I am working (Part Time) as Customer Service Manager since 2011 with Shree Ganesh Foods Glendenning, which is a major Indian food producing company in Australia. I wish to start the similar business in India and believe that my work experience combined with Business degree would definitely give me a head start. My employment can be verified from my employer, Ms. SunitaTalwar … Further, my employer is happy to provide any assistance needed to start my business in India.

(Emphasis added.)

52    Mr Tatla was aware of what she had written. Ms Grewal told him at the time.

53    Ms Grewal maintained in cross-examination that she had told the truth to the AAT. She also accepted that it was not her intention in 2018 to bring Simrat back to Australia. In cross-examination she agreed that she left Simrat in India because she intended to return to India to be with him. And she accepted that it was not her intention that, if he came back to Australia, she would return to India without him.

54    In cross-examination Ms Grewal also admitted that in 2012 she was not trying to bring Simrat back to Australia as soon as possible. She admitted that she had not engaged a migration agent for the purpose of applying for a 457 visa before 2013 and that she did not ask the migration agent she engaged in 2011 (to apply for a student visa) about applying for a 457 visa. She could not explain why she did not seek advice. Mr Tatla did not recall whether Ms Grewal saw a migration agent before 2013. He said that he asked Ms Grewal about a 457 visa application before that time but could not remember the details of any specific conversation. While Mr Tatla maintained that around this time they wanted to bring Simrat out to Australia, Ms Grewal accepted that in late 2013 and 2014 she was content to leave him in India.

55    The actions Ms Grewal took after the rejection of the first 457 visa application are inconsistent with the evidence she and her husband gave about wanting Simrat to return to Australia as soon as possible. For a start, after Ms Grewal’s first 457 visa application was refused because her employer was too small, she made no attempt to find work in a business large enough to be accepted as a sponsor. Later, in 2015, when she was advised by her migration agent that her application for a 457 visa would not succeed for the same reason, she again made no attempt to find work in a larger company. She testified that she remained at Shree Ganesha because the owners were in need (because they had a disabled daughter), that they begged her not to leave, and that they promised that their “company will grow and you will be looking after it”. Mr Tatla testified that he did not encourage her to find work at a larger company for similar reasons.

56    Although Ms Grewal claimed that her employer had grown in size since her last 457 visa application in 2015, she made no further application for a 457 visa (or its equivalent). The 457 visa was replaced by a new skilled migration visa (subclass 482) in March 2018. At one point in cross-examination, Ms Grewal said that her age had become a barrier because she understood that once she turned 45 she was not eligible for a 457 visa. But that explanation did not withstand scrutiny. Age was no barrier to the 457 visa or, for that matter, its replacement. In any event, Ms Grewal did not turn 45 until January 2021. In the end, she conceded that age was not the reason she made no further applications.

57    As it transpires, once her application for a subclass 500 visa was refused on 17 February 2017, Ms Grewal was precluded by s 48 of the Migration Act 1958 (Cth) (read with reg 2.12 of the Migration Regulations 1994 (Cth)) from applying for any kind of working visa. But she was evidently unaware of that.

58    Mr Tatla was not aware of whether Ms Grewal applied for a 457 visa in 2016 or 2017 and did not ask her what was happening with their application at this time. When it was put to him in cross-examination that he was not particularly concerned at this time with whether his wife obtained a 457 visa, he did not deny it. After a long pause he replied: “I can’t say anything”.

59    There were also inconsistent accounts about the length of time Ms Grewal intended to leave Simrat with his grandparents.

60    Ms Grewal’s evidence, confirmed in cross-examination, was that she intended to leave Simrat with his grandparents for two to three years. But in a statutory declaration she provided to the Minister, dated 11 March 2021, she said their plan had been to bring him back after a year or so. When this inconsistency was raised with her during cross-examination, she frankly conceded she could not remember what her intentions were in April 2011.

61    In short, the statements Ms Grewal made in support of her student visa applications are inconsistent with the statements she made in support of the present application. They cannot both be correct. When the position was squarely put to her in cross-examination, she prevaricated. Ultimately, she had no answer. It is, of course, possible that she was dishonest in her student visa application, although I was not invited to come to that conclusion. Mr Tatla suggested as much, saying that they were advised that if she did not state that it was her intention to return to India she would not be able to complete her studies. At one point Ms Grewal did, too. When asked which of her statements was correct (her submission to the AAT or her affidavit in this proceeding), she answered that “the statement” to the AAT was made “according to the student visa” and the affidavit “is for the 457 visa”. She added that “if we say that we won’t go to India, then, obviously, they will not give us [a] visa”.

62    But Ms Grewal stood by her earlier statements about her intention to live and work in India and to reunite with her son there. And Mr Tatla did not say they were false. In these circumstances, I do not see how I can put any weight on the statements they made in their affidavits to the opposite effect.

63    I am prepared to accept that at the time they applied for a 457 visa in 2013 and again in 2015 Ms Grewal and Mr Tatla intended to bring Simrat back to Australia to live. On the other hand, I am not satisfied that was always their intention and by early 2017, at least, they appear to have abandoned the idea. The failure to seek a suitable sponsor is inconsistent with the claim made in Ms Grewal’s affidavit that she was desperate to bring Simrat back to Australia as soon as possible. The inference is irresistible that, if she and her husband were intent on settling Simrat here, rather than in India, she would have done all she could to find a suitable sponsor. There is force, too, in the Minister’s submission that, if Mr Tatla were also desperate to bring Simrat back to Australia, he would have had a better recall for detail than his evidence revealed. I conclude that the reason Simrat returned to Australia in 2019 was that his paternal grandparents were in poor health and, as she admitted in cross-examination, Ms Grewal was worried they would not be able to look after him for much longer. I do not accept Ms Grewal’s evidence that she would have tried to bring Simrat back earlier on a tourist visa if she had known before then that that was an option.

64    I do not doubt that Ms Grewal and Mr Tatla love their son and wished to be permanently reunited with him at some point in time. In view of the irreconcilable conflict in the evidence, however, I am not persuaded that throughout the period in question their intention was that the reunion take place in Australia.

65    It follows that I am not satisfied that throughout the first 10 years of his life, Simrat was ordinarily resident in Australia. Accordingly, I am not satisfied that he is an Australian citizen by birth.

Disposition

66    The application must be dismissed. Costs should follow the event.

Associate:

Dated:    25 September 2023