Understanding the Australian Citizenship Act Assessment Answer

Parties

• Party 1 Appellant – Minister
• Party 2 Respondent – Gurnoor Singh Sandhu, Ranjit Kaur

Timeline

• Mr Sidhu and Ms Kaur provided affidavit evidence in support of the application, and each provided oral testimony when the Minister requested that they come for cross-examination.
• Mr Sidhu's evidence was accepted by the principal court wherein the questions were answered in such a manner due to the visa limitations.
• Mr. Sidhu started school here the following month and resided in Australia ever since, notwithstanding what was indicated on his arrival passenger card.
• The evidence indicated was well adjusted and incorporated into the community of Australia.
• There was no dispute with the permanent residence of Master Sidhu. It was now in Australia and normally living here for a minimum of 1 year as of October 2016.1

Summary

Australian Citizenship Act 2007 (Cth)

Section 3 – Stating Australia and their citizen having been an individual under the Act before commencement and should not be ceased from being an Australian Citizen.

Section 12(1)(b) – The individual should be an ordinary resident of Australia and should be at least 10 years of age.

Section 37(1) – The individual can draft and send an application to the Minister with the necessary annexures for attaining the Australian Citizenship, as per Section 4. Therefore, the applicant can refer to Section 46 to comply with the application requirements.2

Minister’s Legal Arguments:

1. The primary judge made a mess with the interpretation that Master Sidhu was ordinarily a resident of Australia for ten years from birth. In such context, the situation resulted that Master Sidhu has been a citizen of Australia since his tenth birthday due to the existence of Section 12(1)(b) of the Citizenship Act 2007 (Cth).

2. A misapplication of Section 12(1)(b) of the Act to the extent of subjective intentions that were a significant factor and relied on Master Sidhu's parents' purpose.

3. The subjective intents of Master Sidhu's parents were significant, but they mischaracterized the evidence and focused solely on the future intentions of the parents, and not the current intention, throughout the entire crucial 10-year period.

Decision and Legal Reasoning:

The Federal Court established no misapplication of Section 12(1)(b) of the Act, and the Minister's complaints of mistake in the main judge's reasons are not supported.

The use of the emphatic conjunction "if and only if" by Parliament in this definition states that the qualification in the second statement within the definition, can be considered the alternative criteria within specifications in the former sentence of the definition that are considered to be exhaustive of the circumstances.3 Herein, an individual can be considered an "ordinarily resident" residing within the country.

Question 2:

The Legal System of Australia is based on common law implying that the laws are founded on precedents or previous court decisions. The courts are extremely important in the development and interpretation of the law. The Federal Court of Australia is considered to be the superior court of record, having the court of law and equity. This visits all capital cities and other parts of Australia on occasion. The court has comprehensive jurisdiction that encompasses practical civil disputes that arise under the federal law of Australia, along with the summary and indictable criminal proceedings.4 On appeal to the higher court, the Australian Constitution is interpreted by the High Court by applying legal concepts and precedents to the language of the Constitution.

The most fundamental rule of statutory interpretation compels courts to consider problematic phrases or sections in their context—in the context of the entire legislation in the way, the provisions of the Australian Citizenship Act 2007 (Cth) were interpreted for the best possible outcomes. The courts devised specific standards that defined the relevance of preambles and titles, among other things while assessing the intrinsic substance (items within the act). In recent years, statutory interpretation laws have deemed the weight to be attributed to certain elements of acts.

The Australian Federal Court closely eyed the considerations of the trial court wherein the primary judge directed to two previous cases having been decided in the original jurisdiction. This concerns the literal interpretation of "ordinarily resident" as per Section 3 of the Act as per Lee v Minister for Immigration and Citizenship (2011)5 and Kim v Minister for Immigration and Border Protection (2016).6 It was specifically examined and attempted to apply the remarks made in these instances about the concept of "ordinarily resident" to her findings of fact.

In view of the mistakes that the Minister claimed the primary judge made, the Federal Court offered two remarks concerning her Honor's assertion, both of which are based on a thorough reading of her Honor's reasons for judgment. Furthermore, the importance of looking at the physical position of the child was focused wherein any movements from place to place, and the

purposes and circumstances of such movements for the determination of the intentions as to where the parents wanted to reside was emphasized about the first 10 years of a child's life born in Australia.7

The lower judge's grounds for judgments were that this comment should not be interpreted apart from the rest of the primary judge’s reasons. In consideration of the primary judge’s reasons for judgment, it entirely seems to reveal the multi-factorial analysis. This shall be grounded in the propositions as to the literal interpretation of Section 12(1)(b) of the Act that the primary judge displayed a proper and relevant understanding of the role that cultural considerations might play in child care.8

Furthermore, it would be inaccurate to state that the primary court relied solely on Master Sidhu's parents' intentions in deciding that he met the criteria of the Citizenship Act section 12(1)(b). While her Honour stated that the attention must be on his parents, it is clear that her Honour's examination considered more than just the intentions of the parents. Thereafter, this cannot be maintained that the primary judge made a mess to consider the parents' wishes. The Minister acknowledges that doing so is permissible under the law. In each circumstance, the amount of weight to be given to purpose will be a matter of fact and degree.

Question 3:

Dear Sophia Kouros

Greetings

This letter is in the context of the earlier discussion to make you aware of the Migration rules and regulations of Australia. The Migration Act 1958 (Cth) and the Migration Regulations 1994 provide the legal foundation for the implementation of visa requirements in Australia. The Migration Act 1958 (Cth) regulates Australian immigration, and the main goal of the Act is to govern the entry and residence of immigrants in Australia. This follows the departure or expulsion of aliens and other Australian individuals. The Act established Australia's universal visa (or entrance permission) system.9

Migration Regulations 1994 (Cth) identifies the compounds of security concern designated by the Council of Australian Governments. The instrument requires eligible non-citizens with a subclass 070 Bridging visa to obtain ministerial approval before beginning work.10

You need to cope with the mandatory conditions including:

• Documentation wherein a duly attested visa application with proper information, a valid passport with at least six months before expiration, and passport page photocopies is a must.
• Need for fulfillment of specific financial obligations.
• There should be health insurance throughout the stay.
• The individual should have a decent personality.
• The individual should not work in Australia unless in the home of the employer to whom the visa was issued.
• There should be maintaining good attendance and course progress during each study session.

For discretionary purposes:

The Visa requirements can be mandated by law at the time of visa issue or discretionary at the discretion of the Section 65 delegate. Furthermore, the decision to approve includes discretionary visa criteria. Once the visa is issued, the requirements are legally imposed and cannot be reopened in order to remove the condition from the visa.

To fulfill the criteria for a minimum length of specified employment, we expect you to cope with the number of regular work days or shifts in a 3-month (88 calendar days) or 6-month (179 calendar days) period as a full-time employee in that function and the industry would typically work.11

Requirements

Work for 5 days per week for continuously 3 or 6 calendar months. This should include the rate agreement working less than 5 days per week for a period exceeding 3 or 6 calendar months. This should include the rate agreement working multiple short periods of work in any combination of full-time, and part-time, or on a piecework rate it equates to 5 days each week for three or six calendar months.

• The individual does not need to complete three or six months of designated employment all at once or with the same company.
• The individual can be permitted to stretch their work hours across the duration of the existing visa.
• The individual can do specified tasks for a longer amount of time than the needed minimum.12
• In case of queries, feel free to reach out to me at any time of your choice.

Regards

BIBLIOGRAPHY

A. Articles/Books/Reports

B. Cases

Lee v Minister for Immigration and Citizenship (2011)

Kim v Minister for Immigration and Border Protection (2016)

C. Legislations

Migration Act 1958 (Cth)

Migration Regulations 1994

D. Treaties

E. Other

Reference

‘Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by His Litigation Representative Kaur [2023] FCAFC 133’, FEDERAL COURT OF AUSTRALIA (Web Page, 2023) .

‘Australian Citizenship Policy Statement as at 8 October 2020’ Homeaffairs (Web Page, 2020) .

‘Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by His Litigation Representative Kaur [2023] FCAFC 133’ Federal Court of Australia, (Web Page, 2023) .

‘Federal Court of Australia’, Attorney-General’s Department, (Web Page, 2023) .

‘Lee v Minister for Immigration and Citizenship’, Barnet Jade (Web Page, 2020) .

‘Kim v Minister for Immigration and Border Protection’, Barnet Jade (Web Page, 2023) .

‘Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by His Litigation Representative Kaur [2023] FCAFC 133 (2021)’, Federal Court of Australia, (Web Page, 2023)

‘Minister for Immigration, Citizenship and Multicultural Affairs v Sidhu by His Litigation Representative Kaur [2023] FCAFC 133 (2021)’ Federal Court of Australia, (Web Page, 2023)

‘Migration Act 1958’ AustlII, (Web Page, 2023)

‘Migration Regulations 1994’, Home – Parliament of Australia, (Web Page, 2023) .

‘Working Holiday Maker (WHM) Program Specified Work for Work and Holiday Visa (Subclass 462)’ Immigration and citizenship, (Web Page, 2021) .

‘Working Holiday Maker (WHM) Program Specified Work for Work and Holiday Visa (Subclass 462)’ Immigration and citizenship, (Web Page, 2021) .

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