Abbas and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 1339
•8 August 2025
Abbas and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 1339 (8 August 2025)
Applicant:Mohsin Abbas
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/6680
Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:8 August 2025
Decision:The Tribunal affirms the reviewable decision.
...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
CITIZENSHIP – citizen of Islamic Republic of Pakistan – application for Australian citizenship – failure to satisfy general residence requirement – spouse of Australian citizen – discretion at s 22(9) of the Australian Citizenship Act 2007 (Cth) – whether close and continuing association with Australia during disqualifying absences – whether discretion enlivened – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021Cases
Hammad vMinister for Immigration, Citizenship and Border Protection [2022] FCA 833
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Kumar v Minister for Immigration and Border Protection (2015) 231 FCR 308
Minister for Immigration and Border Protection v Han (2015) 231 FCR 113
Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4651
Polo/Lauren Co LLP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
Statement of Reasons
INTRODUCTION
The Applicant, Mr Mohsin Abbas, has asked the Tribunal to review a decision by a delegate of the Respondent to refuse his application for Australian citizenship by conferral.
The hearing was held by video at the Tribunal’s Melbourne Registry on 4 August 2025. The Applicant was represented by Mr Keith James, a solicitor from MJ Legal. The Respondent was represented by Ms Samantha Liddy, a solicitor from Sparke Helmore Lawyers. The Tribunal was greatly assisted by the focussed submissions of both lawyers, which enabled the hearing to be concluded on the first listed hearing day.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND FACTS
The Applicant is a 39-year-old male citizen of the Islamic Republic of Pakistan (Pakistan).[1] He was raised and educated in Pakistan, married there in 2008,[2] and had three children with his wife who are currently between 10 and 15 years of age.[3] The Applicant’s father died in 2006. His mother, now in her 80s, continues to reside in Pakistan with other family members who help care for her.
[1] Exhibit R1, 74, 80.
[2] Ibid 82.
[3] Ibid 74.
The Applicant first arrived in Australia on 2 May 2017 under a Skilled Nominated (subclass 190) visa.[4] In June 2019, he registered a proprietary company in Australia as sole Director.[5] He and his wife had a fourth child in 2020 who was born in Australia.[6]
[4] This is a points-tested visa that lets workers who meet certain criteria, such as an eligible occupation and other criteria, live and work in Australia as permanent residents.
[5] Exhibit R1, 165-166.
[6] Ibid 74.
On 17 September 2022, the Applicant’s wife and three of their children were granted Australian citizenship.[7]
[7] Exhibit R1, 81.
A day later, on 18 September 2022, the Applicant applied for citizenship.[8] He acknowledged non-satisfaction of the general residence requirement[9] and instead sought to rely on a spousal discretion at s 22(9) of the Australian Citizenship Act 2007 (Cth) (the Act).[10]
[8] Ibid 38.
[9] Ibid 42.
[10] Ibid.
On 13 October 2022, approximately three weeks after lodging his citizenship application, the Applicant and his family left Australia for an extended stay in Pakistan.[11]
[11] Ibid 196; Exhibit R3.
Between January 2023 and June 2024, correspondence passed between the parties relevant to considering the Applicant’s intention to reside in Australia and whether he had a close and continuing association with Australia.[12]
[12] Ibid 168-195.
In November 2023 the Applicant was granted a Resident Return (subclass 155) visa.[13]
[13] This type of visa renews the travel rights of a holder’s permanent visa, allowing them to re-enter Australia as permanent residents after overseas travel.
On 8 August 2024, the citizenship application was refused by a delegate of the Respondent. This was because he did not satisfy the residence requirement at s 22(1)(a) and (c) of the Act and was found to be ineligible for other citizenship pathways.
On 3 September 2024, the Applicant sought review of the citizenship refusal decision.
LEGISLATIVE FRAMEWORK
Under s 21(1) of the Act, a non-citizen can apply to be an Australian citizen. If they do, pursuant to s 24(1), ‘the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Section 24(1A) of the Act provides that ‘The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)’.
Section 24(2) of the Act provides that the Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible under ss 21(2)-(7).
Under s 21(2)(c) of the Act, an applicant must satisfy either the general residence requirement under s 22, the special residence requirements at ss 22A or 22B, or the defence service requirement at s 23 of the Act at the time of their application. The following is required to satisfy the general residence requirement:
General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Section 22(9) of the Act is a discretion that can be applied in certain circumstances, enabling periods spent overseas to be deemed as periods a person was present in Australia:
Ministerial discretion — spouse, de facto partner or surviving spouse or de facto partner of Australian Citizen
If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Section 52(1)(b) of the Act is the source of the Tribunal’s jurisdiction to review decisions made by the Minister or their delegate under s24 of the Act.
The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPIs) (reissued 26 February 2021) provide guidance for decision-makers exercising power under the Act. As held in Drake,[14] decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’ The Tribunal has not identified any reason why the Policy and the CPIs should not be applied. In doing so, the Tribunal is mindful it is not bound by either and must not exercise delegated powers inflexibly. CPI 8 titled ‘Residence Requirements and Discretions’ and CPI 11 titled ‘Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia’, are relevant to the present case.
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, [645] Brennan J.
Factors informing an assessment about the closeness and continuity of a person’s association with Australia are non-exhaustive. These are considered in the relevant statutory context and turn on the specific circumstances of each case.[15] CPI 11 refers to things such as the frequency, duration, and reason for overseas absences, the living arrangements of an applicant and their family, any property ownership, business dealings, sources of income, payment of taxes in Australia, education or caring arrangements for children / others, and evidence of community participation. Importantly, s 22(9) refers to an association ‘with Australia’, rather than with Australians.
[15] Hammad vMinister for Immigration, Citizenship and Border Protection [2022] FCA 833, [19] (Abraham J).
ISSUE
The Applicant fails to satisfy the general residence requirement because he exceeded permissible periods of absence at ss 22(1A)-(1B) of the Act in the four years prior to his citizenship application. He also does not qualify under the special residence or defence service requirements.
The only Ministerial discretion invoked by the Applicant is s 22(9) of the Act. It is undisputed he satisfies the first three conjunctive requirements. The determinative issue, therefore, is whether he had ‘a close and continuing association with Australia’ during periods of disqualifying absence. If he did, the Tribunal then considers whether to exercise the discretion at s 22(9) in his favour.[16]
EVIDENCE
[16] Kumar v Minister for Immigration and Border Protection (2015) 231 FCR 308, [20] (Edmonds J).
Documentary evidence
The Tribunal has considered the Applicant’s undated Statement of Facts, Issues and Contentions (‘SFIC’),[17] Respondent’s SFIC dated 26 March 2025, and Applicant’s reply to the Respondent’s SFIC dated 26 March 2025.
[17] A SFIC is routinely lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides are aware of and have an opportunity to answer each other’s case. See, for example: Stevens v Repatriation Commission [2018] FCA 1866.
The following documents were taken into evidence at the hearing:
(a)Documents from the Respondent numbering 350 pages.[18]
(b)Supplementary documents from the Respondent numbering 9 pages.[19]
(c)Further and better particulars were requested by the Tribunal during the hearing about overseas travel undertaken by the Applicant and his family. This was provided by the Respondent in the form of a Movement History for each family member dated 4 August 2025.[20]
(d)Documents from the Applicant relating to his tax affairs in 2024, shipping details of goods imported from Pakistan, and eBay records about sales made through his company from late-2021 to mid-2023.[21]
(e)During the hearing the Tribunal directed the Applicant provide any evidence he may have about his employment ceasing in Pakistan by no later than Wednesday 6 August 29025. Nothing was received by the Applicant or Mr James by that date and, on 7 August 2025, the Tribunal informed the parties it would hand down its decision the next day. At 3:53 pm on 7 August 2025, Mr James emailed the Tribunal with a letter from the Applicant’s employer in Pakistan dated 5 August 2025. No explanation was provided about why the Applicant did not provide documents he referred to during the hearing that were more proximate to his employment ceasing almost three years ago. Notwithstanding the lateness of this letter and Mr James’ failure to contact the Tribunal to seek an extension of time, it is information that was requested by the Tribunal and has been taken into evidence.[22]
[18] Exhibit R1.
[19] Exhibit R2.
[20] Exhibit R3.
[21] Exhibit A1.
[22] Exhibit A2.
In his email on 7 August 2025, Mr James also attached a statement from the Applicant dated 5 August 2025. No explanation was provided about why it was prepared after the hearing ended on 4 August and the Tribunal reserved its decision. The Applicant was not given leave for post-hearing submissions or to add a new statement. It is not appropriate to resume the hearing, re-open the evidence, and provide an opportunity for cross-examination on this statement, including because it largely repeats aspects of his evidence during the hearing. The Tribunal declines to accept the document into evidence.
Movement records
The Applicant accepts that movement records in evidence accurately reflect his overseas travel. These disclose he first arrived in Australia on 2 May 2017 and stayed for 17 days.[23] He has since departed Australia on eight occasions, most recently on 2 October 2024. He returned to Australia on 3 August 2025, which is the afternoon prior to the current hearing and followed a 10-month absence in Pakistan. The Applicant has spent most of his time since 2017 in Pakistan, including for extended periods up to 17 months. His wife and children have spent periods of between four and seven months living with him in Pakistan since 2017, in addition to shorter visits.[24]
[23] Exhibit R1, 196-197.
[24] Exhibit R3.
Applicant’s written claims
In a letter dated 8 January 2023 the Applicant stated (errors in original):[25]
[25] Exhibit R1, 90.
I am living in Australia and running my own business by the name of [business name redacted]. I am not employed in Pakistan.
My Australian based business…requires me to source soft furnishing products from overseas and that is the reason for my future travels if any.
The work I mentioned in the request for expedition letter is not that I need to return to travelling for work in Pakistan. I need to travel overseas for my business in Australia for sourcing products. It is the requirement of my Australian based business.
I have already provided you a personal statement on 16 January 2023 in which I mentioned that my employment in Pakistan ended at the end of last year. I am not working in Pakistan.
Now I am giving my full time to the company I am running here in Australia and putting all my efforts to grow this business. I have attached the tax returns of the previous years.
We live in our own house in Australia. When my family travels with me our home is left unoccupied. I have attached the utility bills as evidence.
My children are enrolled in an Australian school and we try traveling during the school holidays. It was not a planned long visit but we had to extend it due to some family circumstances there. The return ticket as an evidence is attached. The school was informed and I have attached evidence of communication with their school teachers. They are not enrolled in a school overseas. They have been learning through the learning apps and google classroom during their stay overseas.
We have a family house overseas where my mother and brothers live, we stay in the same house when we travel overseas.
We are living in Australia and we intend to live in Australia.
…
In a letter dated 16 January 2023 to the Respondent, the Applicant stated:[26]
I was working in Pakistan before my family moved to Australia in 2017,1 could not quit my job because of the contract with the company and I've been financially supporting my family through that job as my wife could not find a job.
I had to travel quite often because of the nature of my job but I've been frequently visiting my family and my family has been visiting me. My contract ended at the end of last year and now I'll be only focusing on my business in Australia that I started in 2019. We have now planned to live permanently in Australia and I'll be returning to Australia with my family on 10 Feb 2023.
[26] Ibid 171.
In a letter dated 18 September 2023 to the Respondent, the Applicant stated:[27]
I submitted my application for Australian citizenship on 18 Sep 2022 and still waiting for my interview and test date. On Home Affairs website the processing time is 9 months and it’s been 12 months since I have submitted my application.
My work requires me to travel overseas but I have been delaying my visits since past few months, so it won’t affect my processing time. It is affecting my work so it is requested to please expedite my application.
[27] Ibid 176.
In terms of the Applicant’s claim that tax payments in Australia are relevant to his close and continuing association, the records he submitted disclose the following:
(a)He registered a company on 2 June 2019 as sole Director.[28]
(b)In the tax year ending 30 June 2020 the Applicant’s company earned no income and paid no tax.[29] The description of main business activity on his company tax return is ‘Fast food retailing’.[30] An open-source document from the Australian Tax Office shows that the industry code stated on this tax return (45120) relates to fast food retailing.[31] The answer ‘N’ for no is given to questions about whether the Applicant had any overseas transactions or interests.[32]
(c)In the tax year ending 30 June 2021 the Applicant’s company reported earnings of under $18,000 while claiming over $38,000 in deductions.[33] The description of main business activity is again ‘Fast food retailing’ and with the same industry code (45120).[34] A business loss of over $20,000 is reported, which is carried forward to later income years. The answer ‘N’ for no is again given to questions relating to ‘any transactions or dealings with international related parties (irrespective of whether they were on revenue or capital account’.
(d)In the tax year ending 30 June 2022 the Applicant’s company reported earnings of under $58,000 in earnings, claimed exactly the same amount in expenses, and paid no tax.[35] The description of main business activity is again ‘Fast food retailing’ and with the same industry code (45120).[36] The answer ‘N’ for no is again given to questions relating to ‘any transactions or dealings with international related parties (irrespective of whether they were on revenue or capital account’. The Applicant also lodged a personal tax return for the first time, in which he reported paying himself just over $24,500 in income from his company.[37] When offsets were applied, he was not required to pay personal tax.
(e)In the tax year ending 30 June 2023 the Applicant’s company reported earnings of under $25,000 while claiming about $41,000 in deductions. This resulted in a further loss of about $16,000, increasing aggregate losses to over $36,500.[38] The description of main business activity is again ‘Fast food retailing’ and with the same industry code (45120).[39] The answer ‘N’ for no is again given to questions about ‘any transactions or dealings with international related parties (irrespective of whether they were on revenue or capital account’. The Applicant’s personal tax return reported no income and a deduction attributable to the cost of managing tax affairs was claimed.[40] He did not pay personal tax.
(f)In the tax year ending 30 June 2024 the Applicant’s company reported earnings of about $137,000 and over $181,000 in expenses. This resulted in a further loss of just under $45,000, which increased aggregate losses to just under $81,000.[41] The Applicant reported salaries of just under $122,000 as an expense.[42] He lodged a personal tax return reporting $66,666.00 in income. When PAYG Withholding Credits were applied he received a refund of around $8,000.[43]
(g)The Applicant relies on shipping documents showing that he imported bedding goods in early 2021 and mid-2022 from the textile company that employed him in Pakistan. Records from eBay report about $40,000 in net sales from 15 October 2021 to 30 July 2023.[44]
[28] Ibid 165-66.
[29] Ibid 91-95.
[30] Ibid 93.
[31] Business Industry Codes 2021
[32] Exhibit R1, 94.
[33] Ibid 96-102.
[34] Ibid 98.
[35] Ibid 103-109.
[36] Ibid 105.
[37] Ibid 117-125.
[38] Ibid 110-116.
[39] Ibid 112.
[40] Ibid 128-134.
[41] Exhibit A1, 139-146.
[42] Ibid 146.
[43] Ibid 147.
[44] Exhibit R1, 195-196.
Other documents relied on by the Applicant include:
(a)A concession card he used to obtain a reduced application fee for the current application by claiming: ‘I hold a current health care card, pensioner concession card, Commonwealth seniors health card or other relevant card’.[45]
(b)Expired Victorian driver’s licence.[46] There is no evidence it was renewed.
(c)Documents relating to mortgage registration in Victoria for two residential properties purchased in 2020 and 2023.[47]
(d)Electricity / gas / telecommunications accounts in the name of the Applicant’s wife. These are for monthly billing periods between November 2022 and April 2023 and disclose charges of about $45 for electricity, $50 for gas, and $95 for ‘unlimited internet’.[48] The gas account for a two-month billing period between March and May 2023 surged to $353.62, suggesting that the residence was unoccupied during earlier periods.[49]
(e)A chain of emails dated 12-13 October 2022 between the Applicant’s wife and schoolteachers.[50] These relate to the Applicant’s wife informing the school that 13 October 2022 would the children’s ‘last day for this year’ because of overseas travel.
(f)A welcome letter from an early education and care service in late-2023 inviting the Applicant’s wife to attend a welcome session.[51]
(g)A Student Identification Card from a suburban school for the Applicant’s eldest child with an expiry date of April 2024.[52]
(h)A 2023 email from a tertiary institution relating to an enrolment application by the Applicant’s wife.[53] During oral testimony she said this was not proceeded with.
[45] Ibid 9.
[46] Ibid 78.
[47] Ibid 83-84,189-194.
[48] Ibid 135-148.
[49] Ibid 149-150
[50] Ibid 158-162, 167.
[51] Ibid 152-154.
[52] Ibid 151.
[53] Ibid 163.
Oral evidence
The Applicant and his wife gave oral evidence by video conference using Microsoft Teams and were cross-examined. Their testimony was given under affirmation, in English, and unassisted by an interpreter. The Applicant’s wife’s evidence was clearer and more precise. Both witnesses, however, had a relatively good recall of detail.
Applicant’s evidence
The Applicant recalled he and his wife decided to make Australia their home in or about 2017. He contextualised this decision by reference to two objectives. The first was to establish a home here and settle their children into school. The second was for the Applicant to establish a business that could cater for their future financial needs. In terms of the former, the Applicant recalled his wife and children moved to Adelaide first in 2017, then to Melbourne in 2018 to access support from her family. In terms of the latter, he referred to registering an Australian company in 2019.
The Applicant explained that his ability to spend time in Australia since 2017 was constrained by fulltime employment in Pakistan with a textile company. He said this ended in late 2022, following which he intended to reside permanently in Australia and focus on improving his Australian e-commerce business. When asked for documents relating to his Pakistani employment contract ending in late 2022, the Applicant initially said he did not have this. In response to further questions, he thought he may have some post-employment records, would check, and provide these to the Tribunal as directed by Wednesday 6 August 2025. When asked to clarify when his aspiration to reside more permanently in Australia commenced, the Applicant could not recall.
The Applicant said his four children attend school in Australia except when living with him in Pakistan. He referred to the purchase of a residential property in Australia in 2020 close to their school. This was sold in 2023, and another home purchased in the same suburb. The Applicant said he engages in the children’s school and extra-curricular activities whenever in Australia.
The Applicant said his ability to return to Australia as a non-citizen was impacted by the COVID Pandemic. This included during his wife’s pregnancy and their youngest child’s birth. He said becoming an Australian citizen may prevent him experiencing similar consequences if there is a comparable future event.
In terms of his business in Australia, the Applicant said he imports soft furnishings / bedding products exclusively so from the textile company he worked for in Pakistan. He accepts that he did not pay company or personal taxes in the four years prior to his citizenship application and his company incurred losses. The following summary was not contested:
COMPANY TAX PAID PERSONAL INCOME TAX PAID COMPANY PROFIT / LOSS (Running total) Tax Year 30 June 2020 NIL NIL NIL Tax Year 30 June 2021 NIL NIL $20,476 (loss) Tax Year 30 June 2022 NIL NIL $20,476 (loss) Tax Year 30 June 2023 NIL NIL $36,530 (loss) Tax Year 30 June 2024 NIL $13,376 $80,996 (loss)
When asked why company tax returns consistently refer to his business as engaged in ‘Fast food retailing’, the Applicant believes this is a ‘mistake’ by his accountant. When asked about Australian Tax Office industry code ‘42140 – Manchester and Other Textile Goods Retailing’, the Applicant agreed this accurately reflects his business activity. When asked about salaries of just under $122,000 he claimed as a company expense in 2024, the Applicant said this was paid to him and his wife. When asked about records he provided regarding eBay sales of around $40,000 between 15 October 2021 and 30 July 2023, the Applicant said he is ‘struggling to understand the market’ and ‘trying to set up an online store’ but ‘it’s going slowly’. He said of the goods imported from his former employer in Pakistan, only about 30-35% were sold and the rest is ‘still in a warehouse’ The Applicant claimed to presently derive all his income from this business and referred to the use of service providers such as Australia Post, couriers, and an accountant as relevant to establishing his close and continuing association with Australia.
The Applicant said his wife’s mother and her two sisters support his family in Australia when he is not here. His own mother and two brothers live together in Pakistan. Four other siblings and more distant relatives live nearby. The Applicant and his family stay in his mother’s house when in Pakistan and contribute to her care. The Applicant claims not to own property in Pakistan. He estimated that he has spent about 7-8 months in Pakistan during 2024-2025 but could not recall when.
When put to the Applicant that his claims about having a close and continuing association with Australia centre predominantly on the relationship with his wife and children, rather than other ties in Australia he responded: ‘that is enough for us to show a close and continuing association’. When asked about other community engagement he referred to attendance at a Melbourne gym where he swims.
The Applicant claimed that lodging a citizenship application seeking an exercise of discretion, only a day after his wife became an Australian citizen, was coincidental.
Evidence of Applicant’s wife
The Applicant’s wife, who the Tribunal will refer to as Ms AA, was the only other witness called to give evidence. This is summarised as follows:
(a)Ms AA said she initially relocated to Adelaide with her children and then moved to Melbourne for family support. One of her sisters arrived in Australia in 2013, the other in 2016, and her mother in 2017. Ms AA also referred to ‘some friends’.
(b)Ms AA said she has found separation from her husband difficult at times, particularly during COVID travel restrictions. She and the children visit him in Pakistan whenever possible, which is mostly during school holidays but also includes longer stays of about 5-6 months in duration.
(c)Ms AA said she and the Applicant make joint decisions about the children. When the Applicant is in Australia he gets involved with their school and extra-curricular activities. They also make joint decisions about house purchases.
(d)When asked if she has any involvement in the Applicant’s business, Ms AA said she manages online sales.
APPLICATION OF THE LAW AND POLICY
At pp 28-29 of the Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) (EM), the then Minister for Citizenship and Multicultural Affairs stated that s 22(9) of the Act was intended to widen the discretion relating to the general residence requirement by enabling ‘interdependent partners of an Australian citizen to count certain time spent overseas as a permanent resident, as time spent in Australia’. The Minister emphasised it was not intended, however, to replace the policy expectation ‘that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person’. The following circumstances were referred to in the EM:
… in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
The discretion at s 22(9) rests on several conjunctive requirements. It does not require an Australian citizen partner to have held citizenship throughout the entirety of an applicant’s absence from Australia or have been in the applicant’s company for the duration of the disqualifying absence.[54] The fact Ms AA only became an Australian citizen the day prior to the Applicant lodging his own citizenship application and did not reside with him for the duration of his disqualifying absences, is therefore not determinative.
[54] Minister for Immigration and Border Protection v Han (2015) 231 FCR 113, [56] (Flick, Murphy, Griffiths JJ) (‘Han’).
Their Honours in Han also noted other powers the Minister could rely on:[55]
…equally importantly, the Minister retains a residual discretion under s 24(2) to refuse to approve a person becoming an Australian citizen notwithstanding that the person has established eligibility under, relevantly, s 21(2). That residual discretion is available to the Minister in an appropriate case if he or she considers that an applicant for citizenship is “gaming” the system by lodging an application for citizenship immediately after their spouse has become an Australian citizen. Of course, each case will necessarily depend upon its own particular facts.
(Emphasis added).
[55] Ibid [42].
The term ‘close and continuing association’ is not defined in the Act and should be given its plain English meaning within the relevant statutory context. As an adjective, ‘close’ is variously defined as something near in space, time, or relationship. The word ‘continuing’ means something enduring or remaining unchanged. ‘Association’ refers to a connection or link. As the Full Court has previously noted, however, dictionary definitions are not conclusive in questions of statutory interpretation.[56]
[56] Polo/Lauren Co LLP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 at 273 [24] (Black CJ, Jacobsen and Perram JJ).
Physical location is relevant to assessing whether a person has a close and continuing association with Australia. The Applicant has few lengthy periods of residence here. Movement records disclose:
(a)He was only in Australia for just over two weeks in May 2017 when his wife and children initially moved here;
(b)He spent about nine weeks in Australia in 2018;
(c)He spent about three months in Australia in 2019;
(d)He was absent from Australia for all of 2020. The Tribunal accepts his ability to travel was impacted at times by COVID restrictions;
(e)He spent about six months in Australia in 2021; and
(f)He spent about five months in Australia in 2022.
The Applicant has expressed an intention in the context of his citizenship application to live in Australia more permanently once his employment in Pakistan ceased. This can be probative to the question of whether he has a ‘close and continuing association’ with Australia,[57] but turns on the facts of his case:
(a)The Applicant claimed in a letter dated 8 January 2023 that he was ‘living in Australia and running [his] own business’. Movement records show, however, he was overseas on that date, had departed Australia about three months earlier on 13 October 2022, and did not return until 6 May 2023.
(b)The Applicant claimed in a letter dated 8 January 2023 letter that an earlier request to expedite his citizenship application was unrelated to ‘work in Pakistan’ because his employment there ceased at the end of 2022. There is a letter from a textile company in Pakistan dated 5 September 2022 stating he was employed at that time as their ‘marketing manager exports’.[58] At the Tribunal’s request the Applicant lodged a further letter from this company dated 5 August 2025 stating that his employment ceased on 21 December 2022. It was not explained why documents more proximate to his ceasing employment almost three years ago was not provided. Even if he had provided more contemporaneous evidence, it does not change the fact that his intention to live more permanently in Australia and focus exclusively on his company remains unrealised.
(c)In a letter dated 16 January 2023 the Applicant claimed the nature of his job required frequent travel overseas to source goods for his Australian business. On current evidence, however, he has only imported goods on a few occasions and only from the textile company that employed him in Pakistan. The Applicant has also contextualised his travel to Australia as ‘visits’ to see his family:
I've been frequently visiting my family and my family has been visiting me…My contract ended at the end of last year and now I'll be only focusing on my business in Australia that I started in 2019. We have now planned to live permanently in Australia and I'll be returning to Australia with my family on 10 Feb 2023.
[57] Judd v Minister for Immigration and Border Protection [2017] FCA 827 [10] (Perry J).
[58] Exhibit R1, 86.
The Applicant has purchased residential property in Australia with his wife. Movement records, utility bills, and other documents suggest the residence was unoccupied for extended periods. There is no evidence of property ownership overseas. The Applicant said he and his family always stay in his mother’s home when in Pakistan.
There is a dearth of records to persuasively establish when the Applicant’s children were enrolled in Australian schools. The few available state they were taken out of school in October 2022 for extended overseas travel. This occurred within a few weeks after the Applicant lodged his citizenship application. He and his family then remained in Pakistan until May 2023.
Both parties relied on previous Tribunal decisions. There is no equivalent to judicial comity or doctrine of stare decisis in the Tribunal, however, and each case turns on its facts. For example, the Applicant’s reliance on Guillen Manzanilla[59] relates to a case involving the female spouse of a male Australian citizen. She lived overseas for family support and other reasons while her husband lived and worked in Australia. The applicants in Vasiunina[60] and See[61] were also female spouses of male Australian citizens. In Vaisunina, a different provision of the Act is involved (s 21(2)(g)). The Applicant in See lived in Australia since the age of seven, completed tertiary study here, had extensive family, social, and community connections in Australia, and accompanied her husband during his work overseas. These circumstances reflect the type of scenario envisaged in the policy example discussed in the EM for the current Act. The Applicant also invokes the Tribunal’s decision in Musleh.[62] The Applicant in that matter was again a non-citizen wife of an Australian citizen living in Saudi Arabia, who accompanied her husband during extensive employment overseas. The factual matrix in these cases is significantly dissimilar to the current case, as are the facts in the case cited by the Respondent.[63]
[59] Guillen Manzanilla and Minister for Home Affairs (Citizenship) [2019] AATA 962.
[60] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
[61] See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327.
[62] Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4651.
[63] Columbus and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 3314.
CONCLUSION
The discretion at s 22(9) of the Act is not interchangeable with the general residence requirement. If the discretion is enlivened, it can ease the strict application of s 22 of the Act. This requires several conjunctive requirements to be met, including whether an Applicant has a close and continuing association with Australia.
The Applicant applied for Australian citizenship a day after Ms AA and three of their children became citizens in 2022. The Tribunal does not accept this was coincidental given the extensive information required for such applications. He falls well short of the general residence requirement because of overseas absences exceeding permissible limits at ss 22(1A)-(1B) of the Act. Movement records disclose few lengthy periods of residence in Australia prior to his citizenship application. He has spent most of the time since 2017 living and working in Pakistan and helping care for his ageing mother. A close association with Pakistan, however, does not preclude him from concurrently having a close and continuing association with Australia. The factors weighing in favour of this, however, must be weighted against those that do not.
The Applicant’s claim that s 22(9) of the Act is enlivened largely centres on Ms AA’s citizenship, the investment they made in residential property in Melbourne, his children’s school attendance, and an aspiration to grow his business. Much of this relates to the close and continuing association Ms AA and her children have with Australia rather than the Applicant. His association is more in the nature of a visiting husband and father. Ms AA and their children have also visited him for extended periods in Pakistan where he predominantly lived and worked. The Tribunal accepts the Applicant may have felt this arrangement better enabled him to provide financially for his family. The facts in this case, however, weigh against the persuasiveness of his claims about settling permanently in Australia and focussing exclusively on his business.
The Tribunal accepts the Applicant’s children are enrolled in an Australian school. There is a dearth of evidence about periods of enrolment, however, and movement records disclose they have travelled to Pakistan for extended periods during Australian school terms.
The Applicant has not provided any supportive statements from Australian citizens or others with a permanent right to remain here. This could have included the friends Ms AA referred to, Australian service providers for his business, or relating to his broader association with Australian community life.
The tax and import records relied on by the Applicant’s do not persuasively weigh in support of his application. He appears to have run this business from Pakistan for much of the time since 2019 and its development during the last six years is modest. His wife manages online sales in Australia. Moreover, the Applicant’s claims about his business activities in Australia remain somewhat opaque. This includes because of unresolved questions around the type of business referred to in his Australian company tax returns.
The Applicant’s aspiration for a more permanent life in Australia remains unfulfilled. He did not meaningfully act on this after his employment in Pakistan ceased in late 2022. He returned recently from a 10-month stay in Pakistan only the day prior to this hearing.
The Tribunal was unpersuaded by the Applicant’s claim that a grant of citizenship will prevent future family separation if a comparable COVID event reoccurs. This is speculative.
DECISION
Having considered factors advanced by the Applicant about the closeness and continuity of his association with Australia, the Tribunal is not satisfied this is established. He may be able to live more permanently in Australia in future and reapply for citizenship when he either satisfies the general residence requirement or a permissible exception. In the interim he retains a permanent visa and can continue to leave and return as best suits his needs.
It follows that the Tribunal affirms the reviewable decision.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC
……………[sgd]…………………….
AssociateDated: 8 August 2025
Date of hearing: 4-5 August 2025 Advocate for the Applicant:
Solicitors for the Applicant:
Mr Keith James
MJ Legal
Advocate for the Respondent:
Solicitors for the Respondent:
Ms Samantha Liddy
Sparke Helmore Lawyers
0
12
0