Bernabo Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 929

Bernabo Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 929 (22 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3755
Re:Luis Felipe Bernabo Fernandez
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 April 2021
Place:Sydney

The decision under review is affirmed.
.........[SGD].................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP - Citizenship by conferral - a close and continuing association with Australia - Citizenship Policy Instructions - impact of the COVID19 pandemic preventing return to Australia - general residency requirement - the relevant period - deep and meaningful connection
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth)
CASES
Le v Commissioner of Taxation [2021] FCA 303
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
PMYL and Minister for Immigration and Border Protection [2014] AATA 148
Li and Minister for Immigration and Border Protection [2015] AATA 270
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Yang and Minister for Immigration and Border Protection [2017] AATA 364
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Judd v Minister for Immigration [2017] FCA 827
Wang and Minister for Immigration and Border Protection [2014] AATA 555
Lin v Minister for Immigration and Citizenship [2009] FCA 494
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
SECONDARY MATERIALS
Citizenship Policy Instructions
Macquarie Dictionary
REASONS FOR DECISION
Chris Puplick AM, Senior Member

On 26 May 2020 a delegate of the Minister’s (the Respondent) made a decision to refuse an application by Mr Luis Felipe Bernabo Fernandez (the Applicant) for citizenship by conferral which had been lodged on 10 March 2020.
The basis for the Respondent’s decision was that the Applicant failed to satisfy the requirement of section 22(9) of the Australian Citizenship Act 2007 (Cth) (the Act) because he did not have a close and continuing association with Australia during a relevant period proscribed.
On 23 June 2020 the Applicant applied to this Tribunal for a review of that decision and the matter was heard on 1 April 2021. The hearing was conducted using the “impersonalising, technologically capricious, audio-visual medium of Microsoft Teams”[1] platform in accordance with the Tribunal’s COVID19 protocols.
[1] Le v Commissioner of Taxation [2021] FCA 303 per Logan J.
MATTERS OF FACT
The Applicant holds citizenship of both Chile and Spain. His first arrival in Australia was in March 2006 and on 10 June 2009 he was granted a permanent resident visa. His current visa status is that of holding a Return Resident visa (subclass 155).
The Applicant married Neftis Madrid in January 1992[2] and the couple have two children, Philippe and Luciana. In 2007 the entire family emigrated from Colombia to Australia where they settled in Canberra. In 2014 Neftis Madrid and Luciana became Australian citizens,[3] as Philippe had in 2012.[4] The Applicant states that “due to work commitments I couldn’t apply together with them and postponed it to a later day.”[5]
[2] Marriage certificate at Applicant’s Submissions Tab [2l].
[3] Tribunal documents at [71],[53].
[4] Ibid at [52].
[5] Explanatory letter of Applicant (undated). Applicant’s Submissions at Tab [1c].
CITIZENSHIP
Citizenship is a fundamental bedrock of the Australian polity. “The conferral of citizenship is a privilege”[6] which both confers rights and engenders obligations. It is a thing of legal status and a thing of value.[7] It is not to be bestowed lightly.[8]
[6] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
[7] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
[8] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
For persons not born with Australian citizenship, it may be acquired in a number of ways as specified in the Act.
One of those ways is citizenship by conferral.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[9] The Minister must make a decision on the application and either approve or refuse it.[10] An applicant must meet certain qualifications a specified in the Act[11] and, if they do, they must then undertake and pass the Citizenship Test[12] (unless they are exempted from so doing[13]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[14] before their citizenship is granted finally.
[9] Act s. 21(1).
[10] Act s. 24(1).
[11] Act s. 21(2)
[12] Act s. 23A.
[13] Act ss. 21(3)(d); 21(4)-21(8).
[14] Act s. 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[15] They are not relevant in these proceedings.
[15] Act ss. 24(40-24(6).
Eligible applicants for Australian citizenship by conferral must meet the requirements set out in subsection 21(2) of the Act which provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
To be successful in an application for citizenship by conferral an applicant must satisfy all of the criteria set out in that subsection.
Section 21(2)(c) imposes a “general residency requirement” which is set out in section 22 of the Act as follows:
(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.
The impact of this section is enlivened by the date on which a person makes an application for citizenship by conferral. The applicant applied for citizenship on 10 March 2020 and therefore the 4 year period commenced on 10 March 2016. During the 4 year period, the applicant was absent from Australia for a total of 1,294 days (relevant period), he was present in Australia for only 167 days.
It is obvious that the Applicant does not meet the statutory requirements of this section and this is not a matter of any dispute between the parties.
However, section 22(9) of the Act recognises the special status of applicant who have an Australian spouse. It provides:
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.
It is conceded by the Respondent that the Applicant meets the conditions set out in sections 22(9) (a) to (c).[16]
[16] Respondent’s Statement of Position at [7].
This then leaves simply one matter for determination: does the Applicant meet the requirements of section 22(9)(d), did he have a “close and continuing association with Australia during that period” (the relevant period)?
Immeasurable judicial and Tribunal ink has been spilled assessing what constitutes a “close and continuing association” and emphasis is placed upon the precise wording of the section which requires that that association be “with Australia” and not just with an Australian or Australians.
POLICY AND AUTHORITY
There is an interesting legislative history behind the introduction of subsection 22(9) into the Act which was discussed at length by the Full Federal Court in Han.[17] The Explanatory Memorandum for the original Bill stated, in relation to subsection 22(9):
However, it is recognised that 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.[18]
[17] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [48]-[56].
[18] Explanatory Memorandum: Australian Citizenship Bill 2005 (Cth) at 29. The 2005 Bill became the 2007 Act.
And further that the government had made changes:
requiring a spouse of an Australian citizen to meet the same requirements for Australian citizenship by conferral as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia.[19]
[19] Ibid at 2.
The Court went on to characterise this provision as an ameliorative one when it said:
[51] One of the obvious purposes of the Act, which is manifest in ss 21 and 22(1), is to specify the criteria which have to be met for a person to obtain Australian citizenship by conferral. Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.
…
[54] …It is equally evident, however, that it [s 22(9)] was intended to ameliorate this policy by conferring a discretion upon the Minister to “waive” part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.[20]
[Emphasis added].
[20] Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [51] and [54]. Emphasis added.
A similar point was made in Taher where the Tribunal said:
It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.[21]
[21] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [31].
In making determinations under the Act, the Tribunal also takes account of the Citizenship Policy Instructions (CPI) which further amplify this advice, in particular CPI 11 effective as from 17 April 2019.[22] Unlike previously published departmental policy documents, the CPIs do not contain, in their present iteration, any set of indicia by which a “close and continuing association” is to be assessed. At best they provide some examples of what might be indicative of “participation in the Australian community”; factors related to the living arrangement of the applicant in their current country of residence and some examples which “would not ordinarily be of concern” related to frequent absences overseas of a person ordinarily resident in Australia.
[22] CPI 11: Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.
In relation to both the such Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[23] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[24]
[23] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[24] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
As stated above, this application turns upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement. There are two elements in this, the length of time which is a matter of fact and the degree to which she has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haque that “[w]hether Mr Ul Haque had ‘a close and continuing association’ … is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions.”[25] The Tribunal went on to say that “while physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia.”[26]
[25] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
[26] Ibid at [50].
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
CPI 11 states:[27]
‘maintain’ as to keep in existence or continuance; preserve; retain;
‘close’ as near, or near together, in space, time, or relation;
‘continuing’ as to last or endure;
‘association’ as the act of associating … connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/ extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
[27] Tribunal documents at [151]. CPI 11 at 3.2.
The Macquarie Dictionary,[28] among its many definitions of the word “close” refers to:
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[28] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32) and ‘continuing’ (def 3 and 6).
“Continuing” is defined as:
3. to last or endure.
…
6. to go on with or persist in: to continue an action.
In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
·     ‘close’ means ‘having a strong or immediate relation or connection’;
·     ‘continuing’ means ‘to remain in existence or unchanged’; and
·     ‘association’ means ‘the act or an instance of associating; fellowship or companionship’.[29]
[29] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
The Instructions make it clear that the check-lists which they provide, list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also stress the necessity of each case being determined on its own particular merits and terms.
As the Tribunal has noted, with so many of the key concepts in the Act, the Act itself contains no precise definition of what this formulation means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately, there is no unanimity on that point and different decision-makers have come to different conclusions. What is clear however is that:
[30] Whether the applicant had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.[30]
[30] PMYL and Minister for Immigration and Border Protection [2014] AATA 148.

In both Li[31] and Vasiunina[32] the Tribunal discussed at some length the variety of opinions expressed regarding definitions of this key phrase.
[31] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]-[38].
[32] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]-[49].
As noted, there are many decisions on this point, the gravamen of which are that “close and continuing” is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are “enough” to satisfy the requirement of a close and continuing association,[33] although what “enough” might be is itself unclear. These authorities also support the Respondent’s proposition that this requirement of physical presence should be given more weight or consideration than the other three elements of subsection 22(9), although there is no authority for that in the actual wording of the legislation itself. Subsection 22(9)(d) is but one of four requirements, each of which must be met.
[33] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26].
In Nassif,[34] Kim[35], Taher[36] and Nicholls,[37] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[38]
[34] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[35] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[36] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[37] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[38] Ibid.
On the other hand, in Saba, the Tribunal said:
[47] I have already addressed the “more weight” guidance offered by the Australian Citizenship Instructions. That guidance neither says nor implies that a 365 day period of recent residence is a pre-condition to the statutory satisfaction contemplated by s 22(9)(d) of the 2007 Act. It is simply one factor that may inform the process of taking into account all relevant considerations.
[48] Similarly, too much can be made of the suggested utility of the distinction between association with Australia and mere association with family members. This point is made rather well by the factors identified in the Instructions themselves. There are eleven factors listed. Five of those factors (in which I would include the first factor relating to migration) are essentially concerned with personal relationships. Three of them are concerned with the either the objective fact of presence in Australia, or the subjectively intended place of residence. Two of them are concerned with property ownership and tax obligations. Only one factor, the last one listed, refers to participation in “Australian community based activities and organisations”. I do not mean to suggest by this categorisation of the examples described in the Instructions that any ordering of priority can be discerned from mere numerical comparisons. [39]
[39] Saba and Minister for Immigration and Border Protection [2014] AATA 579.
In Paula the Tribunal stated:
[31] The Instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.[40]
[40] Paula and Minister for Immigration and Citizenship [2012] AATA 543.
In Judd v Minister for Immigration[41] Perry J determined:
[14] The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration & Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
[41] Judd v Minister for Immigration [2017] FCA 827.
In Vasiunina[42] I said:
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
·does it mean merely a physical place on the face of the planet, a continent girt by sea?; or
·does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
…
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[42] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
Nevertheless, cases such as Wang have continued to stress the position that:
whilst a spouse may have a close and continuing association with Australian family that is not the same as a spouse having a close and continuing association with Australia.[43]
[43] Wang and Minister for Immigration and Border Protection [2014] AATA 555 at [27]. Emphasis in original.
In discussing the “close and continuing” aspects of paragraph 21(2)(g), Foster J in the Federal Court stated:
[108] … It is true, as Mr Potts submitted on behalf of the Minister, that the Tribunal did recite correctly the substance of the criteria laid down in s 21(2)(g) of the new Act (see [38] of the Tribunal’s reasons). But, in my view, the Tribunal did not go on to address the question of whether or not the applicant was likely to maintain a close and continuing association with Australia if his application for citizenship were to be approved. If, as Mr Potts submitted, the Tribunal confined itself to considering the question of residence as the only matter that could conceivably go to its assessment of the association limb contained in s 21(2)(g), then it failed to take into account a relevant consideration, namely, that two of the applicant’s children are citizens of Australia and are normally resident in Australia.
[109] Further, it probably also failed to pay due regard to the fact that the applicant owned a residential property in Australia and had done so since 2004.
[110] In my judgment, the association limb is directed to the future upon the basis that the hypothesis contained in the subsection (viz that the citizenship application is approved) comes to pass. Indeed, the same may be said of the first and second limbs of s 21(2)(g). For this reason, I do not think that the close association contemplated by s 21(2)(g) needs to be in existence at the time that the relevant citizenship application is made. Rather, the matter is to be tested upon the basis that the hypothesis comes to pass so that the word maintain, when used in the third limb of s 21(2)(g), is meant to be read as establish and keep.
[111] Although in s 21(2)(g) there may be some overlap between the first limb and the association limb and the second limb and the association limb, I am of the view that the association limb does not require that the applicant for citizenship maintain a personal presence in Australia. Indeed, in my view, the association limb is intended to cover at least the circumstance that the citizenship applicant is not likely to reside and not likely to continue to reside in Australia but is nonetheless likely to maintain a close and continuing association with Australia if the citizenship application were to be approved. That limb may also cover other circumstances.[44]
[44] Lin v Minister for Immigration and Citizenship [2009] FCA 494.
The approach open to the Tribunal to take in such matters was outlined by Senior Member Cameron in Mishra as follows:
[51] The discretion cast upon the decision-maker, in this case the Tribunal, under section 22(9)(d) of the Act is an open one; or, as submitted by the Applicant in his Statement of Facts, Issues and Contentions, “at large”. It has been observed that it is a discretion designed to afford latitude to such a decision-maker in the case of, amongst other things, the spouses of Australian citizens. If admitting such a person to Australian citizenship would accord with the public interest, for example, then there would be a good case to exercise the discretion in the Applicant’s favour.
[52] The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous, and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
[53] In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[45]
THE APPLICANT’S POSITION[46]
[45] Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479. Footnote omitted.
[46] Outlined in the Applicant’s Statement (dated 21 September 2020) and Explanatory Letter (undated) contained in the Applicant’s Submissions t Tabs [2a] and [1c] respectively.
As noted, the Applicant, his wife and children migrated from Colombia and settled in Canberra in 2007. They were involved actively in the Canberra arts and cultural community where the Applicant was involved in promoting activities with the Alliance Français, the French and other community film festivals and was one of three ACT Community Arts Officers. The activities of the family were used to promote the ACT government’s campaign to attract migrants to the Territory. The Applicant also represented Australia at international arts inter-agency meetings.
In 2016 the Applicant began working with Fundación Pianos Para Chile (Pianos for Chile Foundation) which works to provide pianos and associated musical support and education to poor regions of that country. He moved to Chile to undertake this work in 2016 intending to be there for approximately two years. However, the success of the project has been such that he remained based there making only occasional return visits to Australia in the years 2016 to 2020.[47] During this period he involved at least one significant Australian artist in the work of the Foundation in 2016 and 2018.[48]
[47] Tribunal documents at [143]-[146].
[48] Applicant’s Submissions at Tab [2d].
In 2020 it was decided that the scope of this project would be extended to Australia, but that decision has not yet been implemented and, in any event, falls outside the relevant period for consideration in these proceedings.[49]
[49] Letter of Alexandros Jusakos (President, Pianos for Chile Foundation), dated 9 February 20121.
During this period the Applicant’s wife moved to Sydney to support her daughter who was enrolled at the Newtown School of the Performing Arts from which she graduated and is now a professional musician. The Applicant’s wife works in the child care sector for the Inner West (municipal) Council. The Applicant’s son graduated from the University of Canberra with a degree in sports science and management and now works as a player/coach for the Gunghalin United FC team in Canberra.
The Applicant advises that his daughter has recently informed him that he is shortly to become a grandfather for the first time.
In August 2019 the Applicant renewed his return resident visa and was planning to return to Australia in July 2020 but was prevented from doing so as a result of the COVID pandemic and the suspension of Qantas and LANTAM flights between Santiago and Australia.
The Applicant asserts that throughout the relevant period he maintained close contact with his family members in Australia and that he returned on numerous occasions for short visits. During those visits he spent time in Sydney and in Canberra, as attested in evidence by his close friend Mr Ross Burdon who gave oral evidence to the Tribunal.
The Applicant has provided several references and letters of support from friends and acquaintances in Australia who have worked with him on various projects and all of which attest to his good character and commitment to Australia.
The Applicant informed the Tribunal that he does not own any property in either Australia or Chile; that he owns shares in Medibank Private but he has never earned any income in Australia and hence never paid any Australian income tax.
CONSIDERATIONS
In the first instance there is no way of overcoming the problem arising for the Applicant in terms of the length of time spent outside Australia during the relevant period. He was absent from the country for 1,294 days and present for only 167. Although the CPI make it clear that “an intention to remain temporarily overseas for work related reasons is not fatal to the application is the decision-maker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period”[50] the Tribunal cannot ignore the express intention of the legislation to put some qualifications in place and to indicate that there is a requirement to give weight to circumstances where absence from Australia is of a prolonged extent.
[50] Tribunal documents at [152].
Secondly, his residence overseas was a matter of choice on his part.[51] It arose from his admirable commitment to a programme designed to help underprivileged children in Chile, and his has every right to be proud of his achievements. For various family and economic reasons, his wife did not join him overseas at any time. However, it was the Applicant’s choice to extend his overseas absence beyond the initially contemplated two years.
[51] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [24].
Thirdly, although the Applicant’s record between 2007 and 2016 shows a deep and meaningful involvement with the Australian community, over and above any commitment to family, that cannot be established during the relevant period between 2016-2020. It is that period which must be considered by the Tribunal and not any earlier period.
Fourth, the Tribunal accepts that the Applicant has a deep and meaningful connection with his family in Australia, heightened by the prospect of grandfatherhood and attested to by letters of support from his wife, daughter and son, but the legislation requires proof of close and continuing association beyond the family into the community. That is not present.
As the Tribunal has noted, each case must be decided upon its own merits and not by some formulaic approach. Equally, “there is a potentially very wide range of different circumstances that might come before the Minister”[52] (or any delegated/alternate decision-maker). However, all of that wide range must comport to the same basis test of a close and continuing association “with Australia”.
[52] Idem.
In this instance the Tribunal cannot find that the requirement of section 22(9)(d) of the Act has been met.
It is thus not necessary for the Tribunal to progress to consideration of whether or not to exercise the discretion provided. It does not have a good reason to do so. In the original Tribunal decision in Kumar, it said:
The Act does not create a residual discretion to withhold approval – or exercise a veto – once it is established there is a close and continuing association. One does not become entitled to the benefit of the discretion because an association has been established unless there is a good reason to suggest the discretion should not be exercised. If the parliament had wanted to achieve that result, it would have said so.
This is, in reality, an exceptional power: a power to relieve someone of the consequences of failing to comply with the usual or general rule. The structure of the legislation suggests it is incumbent on the decision-maker to have a good reason to exercise the power, as opposed to creating a presumption in favour of the exercise of the power in the absence of a reason to the contrary.[53]
[53] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [18]
In any event, even if the Tribunal had been minded differently, the Applicant would have faced an insuperable barrier erected by section 24(5) of the Act which provides (emphasis added):
If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
The Applicant is not in Australia, through no fault of his own. Like many such applicants in the current circumstances he is prevented from returning to Australia as a result of the impact of the COVID19 pandemic. Unfortunately, there is no way to ameliorate the harsh impact of this statutory provision, it must prevail in all circumstances.
BY WAY OF AMELIORATION
Although this may be of cold comfort to the Applicant, there are two matters to be noted. In the first place he is the holder of a Return resident visa and is thus entitled to return to the country without let or hinderance as soon as that becomes physically possible. The second matter is that he is free to make a fresh application for citizenship when his circumstances change, that is when he has met the residency requirements and when he is onshore at the time of the ministerial decision.[54]
[54] Fenn v Minister Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Puplick

...................[SGD].....................................................
Associate
Dated: 22 April 2021

Date(s) of hearing: 1 April 2021

Applicant: In person

Solicitors for the Respondent: Sheetal Balakrishnan, Services Australia

Date(s) of hearing:	1 April 2021
Applicant:	In person
Solicitors for the Respondent:	Sheetal Balakrishnan, Services Australia