Bernabo Fernandez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for citizenship by conferral before the Administrative Appeals Tribunal. The applicant, Bernabo Fernandez, sought to overturn a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for citizenship. The core of the dispute revolved around whether the applicant had demonstrated a close and continuing association with Australia during the relevant period, as required by the Citizenship Policy Instructions and the Migration Act.

The Tribunal was required to determine whether the applicant met the general residency requirement for citizenship by conferral, specifically focusing on the length of his absence from Australia during the period between 2016 and 2020. It also had to consider whether his overseas residence was a matter of choice, and whether his association with Australia, beyond his family connections, constituted a "close and continuing association" with the community as mandated by the legislation. The Tribunal also considered the impact of the COVID-19 pandemic on the applicant's ability to return to Australia.

The Tribunal reasoned that the applicant's prolonged absence from Australia, totalling 1,294 days out of a relevant period of 1,461 days, was a significant impediment to meeting the residency requirements. While acknowledging that work-related overseas stays were not automatically fatal, the Tribunal emphasised that the legislation intended to impose qualifications and give weight to extended absences. It found that the applicant's extended stay overseas was a voluntary choice, stemming from his commitment to a charitable program in Chile, and that this choice prevented him from establishing the required close and continuing association with the Australian community during the critical 2016-2020 period. Although the applicant had strong family ties in Australia, the Tribunal found that the legislation required evidence of broader community involvement, which was not sufficiently demonstrated. Consequently, the Tribunal concluded that the applicant had not met the requirements of section 22(9)(d) of the Act and therefore did not need to consider exercising any discretion.

The Tribunal affirmed the decision under review. It noted that the applicant, as the holder of a Return Resident visa, was entitled to return to Australia when physically possible and was free to make a fresh application for citizenship once he met the residency requirements and was onshore at the time of the ministerial decision.