Bae and Minister for Immigration and Border Protection (Citizenship)

This case concerned an application for Australian citizenship by Ms. Bae, who was refused on the grounds that she did not satisfy the general residence requirement under section 22(1) of the *Australian Citizenship Act 1948* (Cth). The Minister for Immigration and Border Protection was the respondent. The matter was heard by Linda Kirk SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether Ms. Bae met the general residence requirement, which necessitates being present in Australia for four years immediately preceding the application, with no more than 12 months of absence during that period. This involved interpreting the meaning of "absent from Australia" within the context of the Act, particularly in relation to the deeming provision in section 22(1A). The Tribunal had to consider whether periods when Ms. Bae was not physically in Australia, but held only temporary visitor visas and lacked any residence rights or established continuing connection, constituted "absence" for the purposes of the citizenship application.

The Tribunal reasoned that the phrase "absent from Australia" implies more than simply not being physically present. It requires an intention to return to Australia and a continuing connection with the country. Ms. Bae had made numerous short visits to Australia on visitor visas to see her children, returning to her permanent home in South Korea after each visit. The Tribunal found that during the period between 27 January 2013 and 17 June 2013, when she was not in Australia and before she obtained her permanent residency, she could not be considered "absent" in the legal sense because she had not established any residence rights or a continuing connection to Australia during her prior temporary stays.

Consequently, the Tribunal was not satisfied that Ms. Bae met the general residence requirement under section 22(1) of the Act. The decision of the delegate of the Minister to refuse her application for Australian citizenship was affirmed.