Chaudhry and Minister for Immigration and Border Protection (Citizenship)

Dr Junaid Chaudhry sought review of a delegate's decision to refuse his application for Australian citizenship by conferral. The delegate had found that the applicant did not satisfy the general residence requirements under section 21(2)(c) of the *Australian Citizenship Act 2007* (Cth) and that it was not appropriate to exercise the Ministerial discretion available for spouses of Australian citizens under section 22(9) of the Act. The delegate was also not satisfied that the applicant would be likely to reside in, or maintain a close and continuing association with, Australia if his application were approved, as required by section 21(2)(g) of the Act. The matter came before Deputy President McDermott.

The court was required to determine whether the applicant was eligible for Australian citizenship by conferral. This involved considering whether the applicant had satisfied the general residence requirement as set out in section 21(2)(c) of the Act, specifically the conditions relating to the applicant's presence in Australia for four years immediately preceding the application, and for twelve months as a permanent resident immediately preceding the application, with allowances for absences. The court also had to consider whether the applicant met the criterion under section 21(2)(g) of the Act, which requires the applicant to be likely to reside in Australia or maintain a close and continuing association with Australia if granted citizenship.

The court found that the applicant did not satisfy the general residence requirement. The evidence showed that the applicant had been absent from Australia for 1213 days in the four years immediately before lodging his application, exceeding the twelve-month allowance under section 22(1A) of the Act. Furthermore, the applicant had been absent from Australia for 331 days in the twelve months immediately preceding his application, exceeding the ninety-day allowance under section 22(1B) of the Act. While the applicant was married to an Australian citizen, satisfying the initial condition for the spouse exception under section 22(9)(a), the delegate had not been satisfied that the applicant would likely reside in or maintain a close and continuing association with Australia. The court affirmed the delegate's decision.