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

This matter concerned an application for Australian citizenship by conferral. The applicant, Mr. Chimnani, sought to have the general residence requirements waived under section 22(9) of the *Australian Citizenship Act 2007* (Cth) due to his de facto spouse being an Australian citizen. The applicant had spent only 35 days in Australia during the four-year period preceding his application, having been overseas for the majority of that time for work purposes. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs opposed the application. The case was heard by Linda Kirk SM.

The primary legal issue before the Tribunal was whether it was satisfied that the applicant had a close and continuing association with Australia during the relevant period, as required by section 22(9)(d) of the Act, to warrant the exercise of discretion to waive the general residence requirements. The applicant did not dispute that he failed to meet the standard residence requirements under sections 21(2)(c) and 22 of the Act, having been absent from Australia for 1,426 days out of a possible 1,461 days in the four years prior to his application. He also could not rely on the deeming provisions in sections 22(1A) or 22(1B) as his absences exceeded the prescribed limits.

The Tribunal considered the legislative history of section 22(9), which indicates that while spouses of Australian citizens must generally meet the same criteria as other applicants, there is a discretion to waive residence requirements if a close and continuing association with Australia can be demonstrated. The Tribunal acknowledged the applicant's strong connection to Australia, including his relationship with his Australian citizen de facto spouse and his stated intention to return and contribute to the Australian community. However, the Tribunal found that the applicant's overseas employment and business activities, even those involving Australian entities, did not establish the requisite close and continuing association with Australia for the purposes of the discretion under section 22(9)(d). The Tribunal therefore affirmed the decision to refuse citizenship.