Columbus and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3314

Columbus and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3314 (17 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8636
Re:Mr Victor Columbus
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:17 September 2024
Place:Melbourne

The Tribunal affirms the decision under review.
.................................[sgd].......................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – where applicant has a spouse who is an Australian citizen – whether applicant has a close and continuing association with Australia – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Amendment (2016 Measures No. 1) Regulation 2016 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Regulations 1994 (Cth) as amended by Customs and Migration Legislation
Cases
Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 662
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 90
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4651
See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tran and Minister for Immigration and Border Protection [2014] AATA 957
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Yang and Minister for Immigration and Border Protection [2017] AATA 364
Secondary Materials
Australian Citizenship [Policy Statement]
CPI 8 – Residence Requirements and Discretions
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Ms A E Burke AO, Member
17 September 2024
INTRODUCTION

Mr Columbus (the Applicant) seeks the review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) made on 20 October 2022, refusing the application for Australian citizenship by conferral. The Respondent determined that Mr Columbus did not meet the residence requirements of s 22(1) of the Australian Citizenship Act 2007 (Cth) (the Act) and refused to exercise the Ministerial discretion under s 22(9) of the Act.
Mr Columbus is a 69-year-old American citizen who first arrived in Australia on 9 November 1992 for work purposes. On 4 April 2018, Mr Columbus became a permanent resident of Australia and on 28 August 2023 was granted a Resident Return (subclass 155) visa.
On 16 October 2022, Mr Columbus lodged an application for Australian citizenship by conferral offshore and sought Ministerial discretion on the grounds set out in subsection 22(9) of the Act, as he is the spouse of an Australian citizen.
On 20 October 2022, a delegate of the Minister for Home Affairs (the Minister) refused to grant Mr Columbus Australian citizenship under s 24(1) of the Act, on the basis that he did not satisfy the "general residence requirement" in s 22 of the Act as required by s 21(1)(b) of the Act. The delegate found:
I acknowledge that you have an Australian spouse. However, Departmental records indicate that you had been outside Australia for 1081 days in the 4 years prior to lodging your application for Australian citizenship on 16/10/2022. Therefore, I must assess whether you had a close and continuing association with Australia while overseas in order to satisfy the requirements of subsection 22(9)(d) above. I have considered the following information contained in your application and Departmental systems to assess whether you had a close and continuing association with Australia during the relevant periods spent overseas:
 In the 4 year period before applying for citizenship, you were outside Australia for 1081 days.
 I am satisfied that you became a permanent resident of Australia on 04/04/2018.
 I am satisfied that you were in a relationship with Ms Robson Anne ROBSON (DOB: 16/10/1971) at the time of your application and in the relevant 4 year period prior to lodgement.
 I am satisfied that the relationship between you and your spouse is genuine and continuing based on the evidence provided.
 You have shown evidence of ownership of properties in Australia
For the purposes of demonstrating how you maintained a close and continuing association with Australia while overseas, you have declared your close connection to your Australian citizen spouse, family-in law and friends. I acknowledge that you have an Australian citizen spouse who has been residing with you overseas, as well as extended Australian citizen family-in-law residing in Australia. However, subsection 22(9)(d) requires you to have a close and continuing association with Australia, not just Australians. Therefore, I am not satisfied that your familial ties alone equates to a close and continuing connection to Australia during your overseas absences.
In assessing whether you have had a close and continuing association with Australia while overseas, I find that you have not provided documentary evidence of maintaining an Australian business or employment in Australia, or temporary work overseas for an Australian based company or organisation during the relevant periods of your overseas absences. I note that you have provided a written statement declaring that your ongoing employment requires you to occasionally travel between Australia and the United States for business purposes. However, this evidence weighs lightly in my assessment as I am not satisfied that business-related return visits to Australia equates to a close and continuing association with Australia as you have not demonstrated how your associations to Australia have been maintained during your overseas absences while working in an overseas position. Furthermore, there is no evidence of your active participation in Australian community-based activities or organisations during your relevant overseas absences.
You have not paid any Australian income tax in the 4 years prior to lodgement.
I have considered your movements in and out of Australia in the past eight years. Most of your return visits to Australia have been for a short duration. They do not form a pattern that would suggest that you have migrated to Australia for the purpose of residence in Australia. This in conjunction with the 380 days you had spent in Australia in the four years prior to making an application for Australian citizenship does not portray a close and continuing association with Australia for the purposes of applying the Ministerial discretion. In the previous 4 years, you had only spent 241 days in Australia.
After considering the evidence you have provided with your application and information held in the departmental systems I have given less weight to this evidence for Ministerial discretion consideration. I find that this evidence is insufficient when it is taken into consideration with your minimal presence in Australia in the relevant four-year period.
On 17 November 2023, Mr Columbus applied to the Administrative Appeals Tribunal (AAT) for a review of the Decision, stating:
Mr Columbus applies for review of the decision of the delegate of the Minister dated 20 October 2023 not to approve his application for Australian citizenship (Decision) pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (Act). Mr Columbus applies on two grounds, namely:
2.1. the delegate failed to consider, or give any, or any appropriate weight to relevant information provided by Mr Columbus to the delegate for the purposes of making the Decision; and
2.2. Mr Columbus' circumstances justify the Tribunal exercising its discretion under s22(9) of the Act in his favour to allow him to satisfy the general residence requirement pursuant to s 21(4)(d) of the Act.
The first ground is that information before the delegate which was relevant to the exercise of the Delegate's discretion under s 22(9) of the Act was not considered, or given any, or any appropriate weight in the reasons for the Decision. This information includes, but is not limited to, the below:
3.1. Mr Columbus' inability to return to Australia for a significant period due to border restrictions in response to the COVID-19 pandemic. The failure to consider this is apposite in circumstances where the delegate placed great emphasis on his absence from Australia for 1081 days in the four years before lodging his citizenship application on 16 October 2022, during which time international travel was not possible for long periods. In the two years prior to and during the first approximately 9 months after the outbreak of the COVID-19 pandemic Mr Columbus spent most of his time in Australia.
3.2. Mr Columbus's inability to return to Australia was after receiving medical advice not to fly due to injuries he sustained in an ATV accident which occurred in Australia in 2018, and which required ongoing medical treatment, physiotherapy, and finally surgery which was carried out in the United States in January 2023.
3.3. Mr Columbus' longstanding and deep ongoing relationships with friends in Australia, including those who have assisted with looking after properties owned by Mr Columbus and his wife in Australia.
3.4. Mr Columbus employed property managers and gardeners to maintain his properties in Australia while he and his wife were not residing in them due to their being unable to return to Australia due to COVID-19 travel restrictions and health issues.
The second ground is that Mr Columbus had a close and continuing association with Australia in the relevant period before his application for citizenship such that discretion under s 22(9) of the Act should be exercised in his favour. Reasons for this will expanded on in future submissions and evidence. The reasons include, but are not limited to, the below:
4.1. Mr Columbus is and has been married to an Australian woman since 2013, whose immediate family resides in Melbourne, Australia. Mr Columbus maintains close relationships with his wife's family and extended family in Australia.
4.2. Mr Columbus maintains close relationships with friends in Australia, whom he speaks to frequently and has visited regularly (noting visits were more difficult in recent years due to COVID-19 travel restrictions and Mr Columbus' health condition that prevented flying).
4.3. Over the course of at least six years, Mr Columbus has sold assets in the United States to move funds to Australia. Since 2017, Mr Columbus has transferred approximately $2,362,000 from the United States into Australian bank accounts to fund the purchases of, and renovations for, two properties in Australia.
4.4. Mr Columbus intends to reside in Australia for the long term. This is consistent with the financial arrangements he has been making over the past six years and the substantial renovations he and his wife have undertaken to their Australian properties, which they now intend to reside in.
4.5. When Mr Columbus and his wife are not resident in one of their properties, Mr Columbus employs property managers and gardeners to look after and maintain his properties.
4.6. While Mr Columbus works for an American company, his employer has significant ties to Australian business and Mr Columbus' work has involved travel between the United States and Australia.
4.7. Mr Columbus is a member of community groups in Australia including the Sport Shooting Association of Australia, the Moonee Valley Racing Club, and the Friends of the Shrine.
At the hearing of this application on 19 August 2024, Mr Columbus was represented by Mr Mark Goldblatt and Ms Kelly Butler of Counsel instructed by Ms Chloe Lawrence-Hartcher of Colin Biggers & Paisley Lawyers, and Mr Joshua Lessing of Counsel instructed by Ms Elizabeth Hsu of Sparke Helmore Lawyers, represented the Respondent.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
(a)Did Mr Columbus meet the "general residence requirement" in section 21(4)(d) of the Act at the time of the application for Australian citizenship?
(b)If not, can Mr Columbus receive Ministerial discretion under section 22(9) of the Act?
LEGISLATIVE AND POLICY BACKGROUND
Section 24 of the Act states:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
...
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(4) of the Act provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering
from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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) understands the nature of the application at the time the person made the application; and
(d) 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
(e) 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
(f) is of good character at the time of the Minister’s decision on the application.
Section 22 of the Act refers to the “general residence requirement” in the following terms:
(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.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence; then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Section 22(9) of the Act provides the following Ministerial discretion.
If the person is the spouse, defacto partner or surviving spouse or defacto 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 defacto 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.
The Department of Immigration and Border Protection (the Department) developed the Citizenship Policy (the Policy) to support the Act. The introduction to the Policy provides the following guidance regarding its role:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
Chapter 11 of the Policy Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia provides:
Procedural Instruction
The purpose of this Instruction is to set out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were to be approved.
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
‘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
Living arrangements and citizenship/migration status in their current country of residence
A person’s living arrangements and citizenship/migration status in their country of residence (whether that is Australia or elsewhere) may be indicators of their intention to reside in that country and whether they could act on that intent.
Authority to reside in a particular place could be derived from the citizenship of that country, or by a visa or other form of permission that allows the person to reside and work in the country long-term (that may be extended if for a fixed period) or indefinitely.
Factors that may indicate a person intends to reside in a particular place or will maintain a close and continuing association with that place include but are not limited to:
Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;
Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country. For example:
What is the person’s source of income? Are they subject to an employment contract and what arrangements do they have in relation to that contract? If the contract is for a defined period of time, do they have an option of extending the contract? Have they indicated they would they do so? Do they operate a business that requires their physical presence or could they run that business remotely? Do grandparents or other relatives provide childcare so the parent/s can work?
If the person has been caring for an elderly or sick relative, what arrangements would be made for the care of that relative if the person becomes an Australian citizen? Does the relative still need care or are they recovered or have they died?
What are the schooling arrangements for their child/ren and what are the implications of or plans to change those arrangements? For example, if the child is enrolled in a school that had a long waiting list and requires prepayment of fees, is there an intention to leave the child in that school and what would be the care arrangements for the child?
Is the child at a stage of their education where relocation would have an adverse impact and so the parent claims any relocation will occur after the child has completed that stage (for example, if the child has entered a program equivalent to year 11 and 12)?
Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?
Frequency and reasons for absences from Australia if the person resides in Australia. For example:
A person’s absences from Australia would not ordinarily be of concern if they were of a temporary nature, such as when the person was:
undertaking temporary work overseas for an Australian based company or organisation, or an aid agency;
accompanying a spouse or de facto partner who was employed by the Commonwealth at an Australian Embassy, High Commission or Consulate;
participating in Australian cultural activities;
promoting Australia overseas; or
enrolled at an overseas university where equivalent studies are not available in Australia;
A person’s absence/s from Australia because they have continued to work in the same overseas position or for the same employer they had prior to obtaining permanent residence may be an indicator that they have not been residing in Australia and are unlikely to do so;
What has been the person’s motivation for international relocations? Is the person motivated to pursue life opportunities, career or financial advancement regardless of location or are they primarily motivated to pursue those opportunities in Australia?
An intention to remain temporarily overseas for work related reasons is not fatal to the application if the decisionmaker is satisfied that the applicant has a genuine intention to reside in Australia at the end of that period;
Departmental movement records may be used to establish periods of residence. Passenger cards, where available, may assist in identifying reasons for being outside Australia.
Participation in the Australian community. For example:
Participation in a community group that provides services or engages in activities of benefit to the community;
Membership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.
Note: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes. For example, distinction could be made between activities to improve the facilities of a golf club for the benefit of the community, and playing golf at that club.
The applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.
EVIDENCE

The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and numerous statements from Mr Columbus, Ms Robson, Mr Columbus friends, employer and medical practitioners.
Mr Columbus’ statement of 20 July 2023 in response to the delegates request for additional details, he states:
I have a longstanding relationship with the Pratt family (my Employer) and Anthony Pratt to whom I provide personal and corporate advice. I visit Mrs. Pratt (Jeanne) at her residence in Studley Park Road, Kew upon my return to Australia as I have had a thirty-one-year friendship (not work related) with her and with her husband Richard Pratt until his death in 2006. I view Jeanne as a confidante and up until a turn in her health an advisor. In fact, at one time, the staff of Raheen reported to me and I represented her with all household employees from the gardeners to the nannies. I have also assisted in the selection and construction of the Pratt family security vehicles and was extensively involved in the latest building extension made to Raheen,
…..
My Spouse and I left Australia in 2020 for the United States to attend contractual closings of real estate sales contracts. These properties were sold to fund our life and future retirement in Australia and are surplus to our life/work Commitments in the USA. In the United States, the seller must be physically present to sign original contracts in person. In addition, we wanted to be present for the birth of our first grandchild from my daughter Amanda. We expected to be away from Australia for only a few months, however, the Australian borders closed and international flights ceased for several years. Air New Zealand our choice carrier to Australia did not begin operations to Australia until 31st December 2022, due to the Covid pandemic.
Mr Columbus witness statement of 23 February 2024:
Samantha and I were living in Australia for almost a year before we left in August 2020, At that time, Samantha and I travelled from Australia to the United States to attend contract closings for the sale of real estate that we had organised. In the United States, the seller must be physically present to sign original contracts in person. In addition, we wanted to be in the United States to be present for the birth of our first grandchild, as my daughter Amanda was due to give birth at the beginning of February 2021. My Granddaughter Isabelle was born on 2 February 2021.
When we left Australia in 2020, I expected to be away from Australia for only a few months. I would have returned to Australia earlier than May 2023, however, Samantha and I were unable to do so for three main reasons:
a. both Samantha and I had health conditions for which we were given advice not to undertake travel by plane;
b. travel restrictions and limitations imposed by response to the Covid-19 pandemic prevented us from returning earlier; and
c. my work commitments in the United States.
…
While I was in Australia in 2018, I had an accident while driving an ATV vehicle and sustained injuries to my spine. I was treated with physiotherapy for a period of time but I ultimately needed surgery.
...
In addition, Samantha was unable to travel by plane due to her own medical condition, which was caused by an injury to her nasal cavity and orbital globe occurred before Christmas in 2020.
We were advised by her doctor that Samantha should not fly after that injury due to the risks of cabin pressurisation exacerbating her condition. On doctor's advice, Samantha was unable to fly between December 2020 and around May 2023 following a surgery to treat the injury in November 2022. During that time, we drove everywhere instead of flying. We are almost always together, and I would not have just left her and flown alone...
…
For personal reasons, I chose not to receive any vaccination for Covid-19. I was therefore not eligible to return to Australia after 6 July 2022 at the earliest.
In addition to receiving medical advice not to fly and our ability to travel being significantly restricted by Covid-19, in early 2023 I was required to be in the United States due to work commitments. During this period, I negotiated a new contract on behalf of Pratt Industries with the Steelworkers Union in Grand Rapids, Michigan to replace one which was due to expire on 30 April 2023.
Mr Columbus witness statement of 12 July 2024:
As noted above at paragraph 4(c) above, I paid income tax in Australia for three financial years between 1998 – 2001. During this period, I was the highest paid employee of Visy and my wages were approximately as follows:
a. $530,000 AUD full time annualised salary in 1999;
b. $766,300 AUD full time annualised salary in 2000; and
c. $1,055,500 AUD full time annualised salary 2001.
…
My wife Samantha and I consider our properties in Australia to be our real homes. Unlike the properties we have in the United States, we have never rented out our Australian properties or listed them on AirBnB or any other accommodation site or with any rental agency. This is because we keep our personal belongings and items of sentimental value at our Australian properties.
Ms Robson witness statement of 23 February 2023:
Victor and I had been living in Australia for around a year when we left Australia for the United States in August 2020. We needed to go to the United States to be there for contract closings for real estate sales we had organised. We also wanted to be present for the birth of our first grandchild in February 2021,
Victor and I would have returned to Australia earlier than May 2023, but I was unable to take plane trips essentially up until that time. Victor and I are almost always together and because I could not travel on plan, he stayed with me io the United States until we could both travel together back to Melbourne.
Mr Columbus movement history with respect to Australia is as follows:
Arrival to Australia      Departure from Australia
15 Aug 2024
16 May 2024              24 Jun 2024
11 May 2023              27 Feb 2024
17 Oct 2019               26 Oct 2020
13 Feb 2019               10 April 2019
19 Sep 2018               23 Oct 2018
4 April 2018                19 May 2018
21 Sep 2017               18 Oct 2017
12 May 2017              12 July 2017
1 Feb 2017                 22 Feb 2017
23 Aug 2016               1 Sep 2016
8 July 2016                 22 Aug 2016
22 Jan 2011               2 Feb 2011
12 Sep 2000               8 Dec 2000
25 July 2000               1 Sep 2000
25 April 2000              13 July 2000
25 Nov 1999               7 April 2000
31 Aug 1999               24 Nov 1999
27 July 1999               30 July 1999
9 Nov 1992                 16 Nov 1992
CONTENTIONS
Mr Columbus
Mr Columbus conceded he was absent from Australia for all 365 days in the 12-month period immediately before applying for citizenship and therefore does not meet the general residence requirements in section 22(1) of the Act. Mr Columbus further conceded that none of the exceptions for overseas absences in sections 22(1A) or (1B) apply to him.
Counsel for Mr Columbus submitted it was accepted Mr Columbus satisfied section 22(9)(a) to (c) of the Act and the only issue in contention was therefore if Mr Columbus had ‘a close and continuing association with Australia’ during the relevant period to be able to satisfy the residence requirements.
Counsel for Mr Columbus submitted whether a person has ‘a close and continuing association with Australia’ is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including the factors listed in the Australian Citizenship Policy Statement (Policy) and the applicable Revised Australian Citizenship Procedural Instructions (CPI) drawing the Tribunal’s attention to the matter of Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 90 at [36] – [37].
Counsel for Mr Columbus then took the Tribunal to the matter of Minister for Immigration and Border Protection v Han [2015] FCAFC 79, the Full Court of the Federal Court reviewed the legislative history of section 22(9) of the Act to consider its purpose and meaning and held at [51] – [54]:
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…
… It is equally evident, however, that it 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.
Counsel for Mr Columbus submitted decisions of the Tribunal have been consistent with the Full Court’s approach in construing section 22(9) in light of this purpose. For example, they noted the matter of Taher and Minister for Immigration and Border Protection [2013] AATA 917 held at [31]:
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.
Counsel for Mr Columbus submitted there was no definition of ‘close and continuing association’ in the Act but noted the matter of Judd v Minister for Immigration and Border Protection [2017] FCA 827 where Justice Perry held at [14]:
…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 and 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”.
Counsel for Mr Columbus submitted while physical presence in Australia may be a factor in establishing a close and continuing association, it is ultimately one of many factors to be considered by the Tribunal. Counsel submitted in adopting the ‘multi-factorial’ approach and assessing the facts and circumstances of the relevant individual, the Tribunal has previously found persons to have established a close and continuing association with Australia in circumstances where they were not physically present in Australia for most of the four-year period before lodging their application.
Counsel for Mr Columbus submitted in the matter of:
(i)Tran and Minister for Immigration and Border Protection [2014] AATA 957, although the applicant Ms Tran had spent only 38 days in Australia in the preceding four-year period before her citizenship application, she was found to have a close and continuing association with Australia based on other factors that demonstrated her strong connection. The evidence showed Ms Tran and her husband’s investments and financial affairs were entirely based in Australia. In addition, Ms Tran had worked in the Australian Embassy in Hanoi and continued to maintain contact with friends there and had learnt about Australian culture. She had also completed studies to help find employment in Australia and was preparing for her family’s permanent relocation to Australia.
(ii)See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327, although the applicant Ms See was absent from Australia for a total of 894 days in the four years before lodging her citizenship application, the Tribunal nevertheless found she had a close and continuing association with Australia. Ms See grew up in Australia and her husband and daughter were Australian citizens. She returned regularly to Australia while living abroad to visit family and friends. The family intended to reside in Australia, owned property they intended to live in, and had maintained health and car insurance. While Ms See did not pay income tax in the four-year period leading up to her application and only demonstrated minimal participation in community-based activities, Ms See was ultimately held to have demonstrated the requisite connection.
(iii)In Musleh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4651, the applicant Ms Musleh had spent only 118 days in Australia in the four-year period prior to lodging her application. Despite this, the Tribunal held she had demonstrated a close and continuing association with Australia. The factors weighing in favour of her close association with Australia included that Ms Musleh and her husband owned four properties in Australia and that she had undertaken extensive work to find her son a place at university in Australia. While Ms Musleh had not paid income tax in the relevant period and there was no evidence of any active participation in the community, the Tribunal nevertheless held the majority of the indicia in the Policy had been met and that the discretion pursuant to s 22(9) should be exercised.
Counsel for Mr Columbus contended the below factors weigh strongly in favour of the Tribunal exercising its discretion under s 22(9) of the Act in finding that Mr Columbus has a ‘close and continuing association’ with Australia.
Spouse who is an Australian citizen
Mr Columbus is and has been married to Ms Robson, an Australian citizen, since 2013.
Since they became romantically involved in 2009, Mr Columbus and Ms Robson have been inseparable. They do everything together and share many mutual hobbies and interests. Their only time apart has been when Mr Columbus has been away on business for brief periods of time.
Mr Columbus and Ms Robson intend to live permanently in Australia. During the relevant period, the couple arranged for extensive renovations to be undertaken to their Australian properties so that the couple could live in them. They have also transferred substantial sums of money to their Australian bank accounts in anticipation of living in Australia permanently.
Reasons for extended absence from Australia.
In assessing Mr Columbus’ connection to Australia, the Tribunal should, in exercising its discretion, consider an important relevant factor to be that Mr Columbus and his wife were unable to be physically present in Australia for a significant portion of the four-year period leading up to Mr Columbus’s citizenship application for compelling reasons. These reasons included:
(1) On medical advice, Ms Robson was unable to fly between December 2020 and May 2023. Importantly, evidence from Ms Robson and her doctor demonstrates that she sustained an injury to her nasal cavity and orbital globe while undertaking a test for Covid-19 before Christmas in 2020. She was then advised not to travel by plane due to risks associated with changes in altitude and cabin pressure. On doctor’s advice, she did not travel by plane again until six months after she had undergone her surgery to address her injuries as advised by her doctors.
Ms Robson did not fly for the entirety of the period between her injury in December 2020 and the couple’s flight home to Australia in May 2023. Understandably, Mr Columbus chose to remain with his wife and the couple exclusively travelled together by land for the period Ms Robson was unable to fly.
(2)On medical advice, the Applicant himself was unable to fly between January 2023 and around May 2023.
(3) In the period from March 2020 until at least July 2022, travel to Australia from the United States was severely restricted as a result of government measures in response to the Covid-19 pandemic.
(4) Mr Columbus had work commitments in the United States that required his presence.
Counsel for Mr Columbus submitted these factors fall squarely within the category of circumstances that the discretion under section 22(9) of the Act is intended to address. As the discretion recognises that co-habitation by spouses remains the normal position and, where a non-citizen spouse chooses to stay 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. In choosing to remain with his wife, who was physically unable to safely return to Australia, Mr Columbus made exactly the type of decision section 22(9) contemplates and provides relief in respect of.
Accordingly, Counsel for Mr Columbus submitted Mr Columbus’s extended absence from Australia in the four-year period up to the date of his application should be given little if any weight.
Strong connection to Australia through employment with Visy / Pratt Industries
Mr Columbus has worked directly for Australian citizens and Australian owned companies in the United States and Australia since 1992, his work has involved travel and regular communication between the United States and Australia.
Pratt Industries, Mr Columbus’s current employer, has significant ties to Australian business and is owned and run by an Australian citizen, Anthony Pratt. Pratt Industries is the American arm of Visy, which is an Australian paper, packaging and recycling company that was established in Melbourne, Australia in 1948. Pratt Industries was a wholly owned subsidiary of Visy with all financials rolling back to its Australian parent company until 2006, when, for regulatory reasons, it became an American company.
For more than 32 years, Mr Columbus has worked at different points for Visy / Pratt Industries both in Australia and the United States. This work involved regular travel to Australia and routine communications and meetings with Australian-based colleagues. Through this work, Mr Columbus developed a nuanced understanding of and appreciation for Australian culture and, in particular, Australian business practices and industrial and human resources policy issues.
In the four-year period leading up to Mr Columbus’s lodging his application for citizenship:
(1) While in the United States, he attended remote conferences with his Australian-based colleagues approximately once a month.
(2) In 2019 and 2020, he lived in Melbourne for almost a year and assisted with planning, design and security arrangements as part of renovations being undertaken at Raheen, Kew, which is the Pratt family home.
(3) He undertook ad-hoc work and provided strategic advice to Mr Pratt and the Pratt family.

A letter of support from Mr Pratt confirms the strong association between Mr Columbus employment with Visy / Pratt Industries and Australia. Mr Pratt writes:
For the last 32 years, Mr. Columbus has worked for either of or both Pratt Industries, based in Georgia, USA and Visy, based in Melbourne, Australia - making him the second longest serving employee across both companies.
During this time, I have worked closely with Mr. Columbus and have found him to be someone of the highest integrity. He is committed to his work, his family and contributing to the broader community.
…
Visy is Australia's largest private manufacturing business, with over 7,200 employees and 100 factories across Australia and New Zealand. As Chairman of Visy, I value and appreciate Vic Columbus' regular advice on the matters in which he works on in Australia, including industrial relations and human resources.
Accordingly, Counsel for Mr Columbus submitted Mr Columbus’s contribution to Visy / Pratt Industries over the last 32 years and his longstanding association with Australia through his work with those companies should weigh strongly in favour of the Tribunal exercising its discretion under section 22(9) of the Act.
Properties in Australia
Mr Columbus and his wife own two properties in Australia:
(1) a residential home in Moonee Ponds, Melbourne (Moonee Ponds Property); and
(2)a country holiday house in Mount Dryden near Halls Gap (Mt Dryden Property).
It is Mr Columbus’ intention to live permanently in Australia in the Moonee Ponds Property and the Mt Dryden Property.
In relation to the Moonee Ponds Property, whilst Mr Columbus was in the United States during the relevant period:
(1) He employed over a dozen people to maintain the garden and the property.
(2) He had (and continues to have) a gardener from Jim’s Mowing come on a weekly or monthly basis (depending on the season).
(3) He had (and continues to have) a plumber from Rosehill Plumbing, arranged for him to do repairs, put in new flooring and a new fireplace.
(4) He arranged for renovations to be undertaken to the house. This involved the Applicant being in regular contact with dozens of tradespeople that he employed to undertake this work.
(5) He arranged for friends to drop by and check on the house on a regular basis.
(6) He paid rates to the City of Moonee Valley, charges for utilities, insurance, and other costs.
In relation to the Mt Dryden Property, while Mr Columbus was in the United States during the relevant period:
(1) He arranged for friends to regularly visit the property to check on it.
(2) He also arranged for renovations to be undertaken to the house. This involved him being in regular contact with dozens of tradespeople.
(3) He paid rates to the Northen Grampians Shire Council, charges for utilities, insurance, and other costs.
Mr Columbus has demonstrated that during the relevant period, he was pro-active in managing his Australian properties and that this required him to be in regular contact with Australian-based people and businesses. As a result, Mr Columbus also made substantial and regular payments to Australian-based people and businesses. These factors should weigh strongly in favour of the Tribunal determining that he had a close and continuing association with Australia during the relevant period.
Contrary to the reasoning of the Minister in the Decision, the fact that Mr Columbus and Ms Robson also own properties in the United States should not weaken the extent to which his association with Australia is demonstrated via his ownership and management of his Australian properties.
Mr Columbus and his wife own the below properties in the United States:
(1) three adjacent parcels of land in the Rocky Mountains, Wyoming (Wyoming Property);
(2) a residential property near in Greensboro, Georgia; and
(3) a country property near Monticello, Georgia (Monticello Property).
The evidence shows that the properties in the United States are intended as secondary residences and have primarily been retained for purposes that either do not bear upon, or actually strengthen, Mr Columbus’ case for establishing an association with Australia.
The evidence from Mr Columbus and Ms Robson demonstrates that the primary reasons they have retained ownership of those properties are:
(1) in respect of the Wyoming and Monticello Properties, for the purpose of the ‘Armageddon’ geological project that Ms Robson and Mr Columbus are working on, which they anticipate will ultimately benefit Australian students, researchers, universities, and museums; and
(2) in respect of all properties, so that the couple may pass the properties in the United States on to their grandchildren, who live in the United States.
The Wyoming and Monticello Properties which have primarily been retained for the purposes of the ‘Armageddon’ geological project should, if anything, be considered to bolster Mr Columbus’s association with Australia. Evidence from Mr Columbus and Ms Robson demonstrates that it is their intention that those properties be used to benefit people from Australia and museums and universities in Australia.
Dinosaur remains, minerals, and metals have been identified at the Wyoming Property. For over seven years the couple have been working to enable the Wyoming Property to be excavated and researched. Their plan was (and remains) to work exclusively with Australian and New Zealand universities and museums to identify and excavate the remains, minerals, and metals and to give students the opportunity to be involved. A lab and storage facility for the objects recovered from the Wyoming Property has been created at the Monticello Property.
Accordingly, Counsel for Mr Columbus submitted the fact of the couple retaining properties in the United States should not weaken any assessment of the strength of Mr Columbus’s association with Australia.
Engagement with friends and community organisations
Mr Columbus maintained (and continues to maintain) close relationships with friends in Australia, whom he speaks to frequently and sees regularly.
While staying in the United States, Mr Columbus ensured that he kept in touch with his Australian friends and stays up to date with what was happening inside Australia. He did this by:
(1) Keeping in touch on a regular basis by email and telephone.
(2) Sending gifts and Christmas hampers.
(3) Having his friends stay at his properties in Australia when it was convenient for them to do so.
(4) Arranging for friends to check his properties to ensure they were safe and maintained.
The Counsel for Mr Columbus contended that letters of support from Ms Marris, Mr Hamiliton, Mr and Mrs Perry, Mr Shellie and Ms Schroeder-Shellie, and Ms Mansfield confirm that Mr Columbus has maintained his social connections with his Australian friends during the relevant period. The submitted by way of example.
Ms Marris writes:
I’m writing this letter to support the Australian Citizenship application for Victor Columbus. I’ve was fortunate enough to meet Victor through his Australian wife and have had the privilege of knowing him for over 15 years professionally and personally. This relationship has been nurtured during Australian in person meetings and via phone calls and emails.
Victor has been kind enough to apply his extensive business expertise as my business mentor providing invaluable advice, guidance, and introductions.
Most recently he has generously sponsored the publication of my new book…
Mr Hamilton writes:
Whilst Vic travelled and worked in the United States and Australia, and I moved on from Visy, we kept in regular contact via email and phone over the years with a fair degree of frequency. He has on numerous occasions posted me items from the States and sporadically sent our children gifts over the years. When he has returned to Melbourne, we have made it a point to catch up and have even gone on hunting trips together.
Mr and Mrs Perry write:
As we continued to develop our friendship with Victor, we have met socially, where we frequent smaller, regional communities and access their restaurants and small businesses. Victor has also been kind enough to allow us, and our growing family, to stay at their property and enjoy the rural lifestyle. Peter and Victor communicate regularly, as Peter often attends to Victor’s property to ensure everything is safe, well-maintained, and secure.
Mr Shellie and Ms Schroeder-Shellie write:
Despite geographical distances, Mr Columbus and Ms Robson maintained regular contact with us up to this day! Over the years, our bond has only grown stronger, extending to include our respective families. We have visited them in the United States various times, and we are frequently visiting them at their properties here in Melbourne, Victoria. We consider them as one of our best friends.
Mr Columbus contended in addition to maintaining strong personal relationships with Australians based in Australia, he has been a member of several community groups in Australia since 2017, including the Sporting Shooting Association of Australia; Moonee Valley Racing Club; and Friends of the Shrine.
Mr Columbus contended that while in the United States during the relevant period, he maintained his memberships with each of these groups and participated as a member, through his payment of regular membership fees, receiving and reading communications from the organisations, and participating in membership votes.
Accordingly, Counsel for Mr Columbus contended the weight of the evidence supports the Tribunal finding that, through Mr Columbus’ personal relationships and community engagement, he had a close and continuing association with Australia in the four-year period before lodging his citizenship application.
Counsel contended that the evidence clearly demonstrates Mr Columbus has a very long and enduring relationship with Australia from both work and personal connections. That indeed the evidence of his Australian wife was that Mr Columbus loves Australia more than she does and contended it would be hard for the Tribunal to find a more deserving applicant for discretion to be exercised under section 22(9) of the Act than Mr Columbus.
Minister for Immigration and Multicultural Affairs
The Respondent contended that Mr Columbus clearly does not satisfy s 22(1)(a) of the Act, and does not contend otherwise, because that criterion requires him to have been present in Australia for the period of four years immediately before the day on which he made the application.
The Respondent submitted having applied for citizenship on 16 October 2022, the four-year period in question for Mr Columbus commenced on 15 October 2018.
The Respondent submitted from the 15 October 2018, Mr Columbus was cumulatively absent from Australia for a total of 1084 days, in excess of the total period of absence of 12 months allowed under s 22(1A) of the Act; in other words, he was in Australia for 378 days. Accordingly, Mr Columbus cannot be taken to have been present in Australia during this period for the purposes of satisfying s 22(1)(a) of the Act.
The Respondent accepted that Mr Columbus satisfies section 22(1)(b) of the Act, as according to his visa records, he has held a valid visa during each period of stay in Australia since 4 April 2018.
However, the Respondent contended that Mr Columbus fails to satisfy section 22(1)(c) of the Act, as he was not present in Australia as a permanent resident for the period of 12 months immediately before the day he made the application, having departed Australia on 26 August 2020 and not returning until 11 May 2023. The Respondent submitted as Mr Columbus was absent for the entire 12 months immediately before the date of application, the 90-day leeway for compliance with section 22(1)© provided in section 22(1B) of the Act does not assist his ability to satisfy the residency requirements.
The Respondent contended unless Mr Columbus attracts a favourable exercise of the spousal discretion under s 22(9), such that he satisfies the general residence requirement under sections 22(1)(a) and (c), he cannot satisfy the eligibility criteria for citizenship. The spousal discretion allows the Minister to 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.
The Respondent accepted that Mr Columbus meets section 22(9)(a)-(c) of the Act as he has been married to an Australian citizen since 12 October 2013 which was prior to the commencement of the four-year period immediately before the application (section 22(9)(a)). Further, Mr Columbus was not in Australia during the relevant periods, and he was a permanent resident for the relevant periods.
Therefore, the Respondent submitted the determinative issue in relation to whether the spousal discretion should apply to ‘cure’ the above relevant periods, is whether Mr Columbus had a close and continuing association with Australia during the relevant periods (section 22(9(d)).
The Respondent contended the Federal Court has relevantly found that:
a. The purpose of s 22(9) is to “to qualify or ameliorate the strictness of the general residence requirement”, including that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship, by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated;
b. The connection needs to be of such a nature as to warrant a departure from the strict application of the residence requirements; and
c. The expression “close and continuing association” should be given its ordinary meaning, and it requires that there be more than some evidence of a relevant association. It is to be objectively assessed and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”, using a multifactorial approach.
The Respondent submitted in Taher and Minister for Immigration and Border Protection [2013] AATA 917, Senior Member Fice said:
The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s 22(1), even when allowances are made for overseas absence as provides in subsections (1A) and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia. It is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.
The Respondent contended it is well established that the Tribunal as a decision-maker will generally apply policy unless there are cogent reasons not to do so. Chapters 8 and 11 of the Revised Citizenship Procedural Instructions (CPIs) provide guidance for decision makers regarding the residence requirements and discretions, and the assessment of whether an applicant is likely to reside in or maintain a close and continuing association with Australia.
The Respondent submitted the period of time for considering the close and continuing association is the four years prior to the application for citizenship, Mr Columbus’ future intention with respect to returning to and residing in Australia is not the issue to which the “close and continuing association with Australia” requirement in section 22(9)(d) is directed.
The spousal discretion – application to the present case
The Respondent contended that Mr Columbus did not have a close and continuing association with Australia in the relevant period so as to warrant an exercise of the spousal discretion in section 22(9), for the following reasons.
First, Mr Columbus has not paid tax in Australia in the four years prior to making his application for Australian citizenship. He has paid tax in the USA.
Second, he remains employed by Pratt Industries, which is an American company “founded in the USA some 30 years ago” based in Georgia, USA. During the relevant period, the applicant was required to be in the US due to work requirements. His current employment contract is until 30 September 2026. Until the end of that contract, he will be required to travel to the United States for his employment obligations.
Overall, despite Pratt Industries being a wholly owned subsidiary of an Australian company, and Mr Columbus having worked with Australians in the past, it is contended his employment situation during the relevant period weighs strongly against a close and continuing association with Australia.
Third, as noted by the delegate, while Mr Columbus does own properties in Australia, they are managed by property managers and maintained by gardeners. He also owns two properties in the Unites States, which he apparently resided in for three out of the four years prior to making his application for Australian citizenship (and where he presumably resided in the years prior to the relevant period as well).
Fourth, the fact Mr Columbus has transferred money to Australia is of little significance when the bank accounts can be managed from the USA.
Fifth, although Mr Columbus appears to have some extended family and friends in Australia, the requirement set out in section 22(9)(d) refers to a close and continuing relationship with Australia, not just with Australians (which includes family in Australia). Further, while Ms Robson has consanguine family in Australia, Mr Columbus’ consanguine family appears to be exclusively located in the United States.
Sixth, and significantly, Mr Columbus’ Australian-citizen wife has resided in the United States with him during his long periods of absence from Australia. It does not appear that she has any employment connection with Australia, having resided in the US since 2008. It does not appear that she works for an Australian company or organisation. Rather, she and Mr Columbus apparently own a software company headquartered in the USA with no tangible connection to Australia, beyond a claimed aspiration to work with Australian and New Zealand universities and museums to identify and excavate fossils, minerals and metals on the Wyoming property.
The Respondent submitted as the Tribunal observed in Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 662, [63] (emphasis added):
The above decisions, and the references to the intention of Parliament as expressed in the Explanatory Memorandum, indicate that the intended purpose of the spousal discretion in section 22(9) of the Act is to ameliorate the strictness of the general residence requirement for non-citizens who accompany their Australian citizen spouse overseas so they can maintain their cohabitation when the spouse is working in the host country. The circumstances of the Applicant are the inverse of the situation contemplated by the Explanatory Memorandum. That is, the Applicant (the non-citizen) relocated to the UAE so he could undertake a lucrative employment opportunity and he was accompanied by his Australian citizen spouse so that they could continue to cohabit. The Tribunal therefore finds that the Applicant’s circumstances are not within the intended scope of the spousal discretion.
Seventh, the fact and extent of Mr Columbus’ overseas periods are highly relevant considerations. That circumstances may have kept him away from Australia for longer than intended do not detract from the difficulty in establishing a close and continuing association with Australia, when the vast majority of the time during the relevant period was spent living in the United States. Noting that during the relevant four-year period, Mr Columbus was only in Australia 378 days (just over 25% of that period), with no time being spent in Australia during the 12-month period prior to submitting his application for citizenship.
Mr Columbus chose to depart Australia in August 2020, during the peak of COVID-19 related restrictions in Victoria, and after months of increasing restrictions and announcements affecting international travellers. In those circumstances, the fact that Mr Columbus nevertheless chose to depart Australia tends against a close and continuing association with Australia.
Eighth, Mr Columbus’ return trips to Australia are of such a short length as to suggest a visit rather than a return to a principal place of residence.
Ninth, the evidence regarding Mr Columbus’ ‘involvement in community associations’ discloses a minimal level of participation in those groups.
Mr Columbus’ considerable period of absence from Australia during the relevant period and the limited evidence of engagement in Australian community-based activities or organisations weigh strongly against him having the requisite association. The Respondent submitted as was noted in Taher, [47] – [48]
On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.

The Respondent submitted the fact pressed by Mr Columbus that he had an Australia wife added no value to his claim for discretion as it is a requirement of section 22(9) of the Act.
The Respondent contended the determination in the matter of Hahn was not a way for individuals with Australian spouses to avoid the residency requirements. That Mr Columbus needed to demonstrate a close and continuous relationship with Australia and not just Australians. Although Ms Robson is an Australian, she has lived and worked in the United Sates for a considerable period of time and there was no realistic prospect that Mr Columbus was going to be retiring from work anytime in the foreseeable future. The Respondent contended the period of Mr Columbus’ absence from Australia was so significant it could not be found he had a close and continuing relationship with Australia.
The Respondent contended in all the circumstances, that Mr Columbus did not have a close and continuing association with Australia during the relevant period and the spousal discretion should not be exercised so as to ameliorate the otherwise strict residence requirements.
CONSIDERATION
There is no dispute nor doubt that Mr Columbus does not satisfy section 22(1)(a) of the Act as he has not spent the required days in Australia, nor that Mr Columbus does satisfy section 22(9)(a) to (c) as he is married to Australian spouse and has been for 11 years.
The parties also concur that Mr Columbus applied for citizenship on 16 October 2022 and therefore the four-year period immediately before the day of making the citizenship application on 15 October 2018. In the relevant period Mr Columbus was in Australia for 378 days, exceeding the total period of absence of 12 months allowed under section 22(1A) of the Act. Additional Mr Columbus was not in Australia at all in the 12-month period prior to submitting his application for citizenship by conferral.
What is in dispute is whether Mr Columbus has a close and continuing relationship with Australia, in order to grant him a favourable exercise of the spousal discretion under s 22(9) such that he satisfies the general residence requirement of the Act.
The Tribunal was positively persuaded that Mr Columbus has a love affair with Australia and an Australian. There seemed to be no dispute to this proposition but as numerous decisions before have made clear, the bar Mr Columbus has to climb are his close and continuing ties to Australia, not just Australians.
As pointed out by both Counsels, there is no definition of 'close and continuing association with Australia’ within the Act and again, as highlighted in submissions, no consistent approach has been established in the case law. Distilled down, it would appear the Tribunal must make a determination of fact based on an individual’s circumstances, considering but not limited to the factors outlined in the citizenship policy. As a guide, the Tribunal turned to the determination in Yang and Minister for Immigration and Border Protection where Senior Member Cotter described the Tribunal’s approach to determining the question of whether a person had a ‘close and continuing association’ with Australia for the purposes of section 22(9) of the Act:
Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy. The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”, or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied. What is required is:
... a qualitative assessment of the ultimate significance (of) an applicant's circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant's periods of Australian presence were highly relevant considerations.
The factors in CPI 11 listed in [16] above are relevant considerations when undertaking a qualitative assessment of whether the Applicant’s circumstances demonstrate a ‘close and continuing association with Australia.’ The CPI makes it clear that the factors listed may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They also emphasise the need for each case to be assessed on its individual merits.
Of significance when arriving at a positive determination that an individual has demonstrated a close and continuous relationship with Australia; as noted in Yang above and in numerous other Tribunal determinations; is actual physical presence in Australia for significant periods of time.
The Tribunal considered the evidence did not demonstrate that Mr Columbus had spent any significant periods of time in Australia. Whilst it is true Mr Columbus has travelled to Australia on numerous occasions, much of his time here has been for short visits. As Senior Member Cotter noted in Yang, SM Britton observed in Ul Haque and Minister for Immigration and Citizenship ‘while physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia’. Similarly, in the matter of Kim, DP Constance noted that “(p)hysical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia”.
As accepted by Mr Columbus, he was present for just 378 days (and absent for 1,084 days) in the four years before his citizenship application, and for 0 days (absent 365 days) in the 12 months preceding the application. Whilst Mr Columbus has advanced numerous explanations for his absences during this time frame, which the Tribunal does not dispute, they were for considerable periods of time during the request period in question.
The Tribunal considered that Mr Columbus physical absence for considerable periods in the lead up to his citizenship application is a significant factor for consideration and weigh against a finding he had close and continuous ties to Australia.
The evidence indicated that Mr Columbus and Ms Robson’s lives during the relevant period were anchored in the United States through work and family ties. Mr Columbus’ own evidence indicated he was required to be present in the United States for work and for the completely reasonable want to interact with his children and grandchildren. Ms Robson’s evidence was that she was required to be present in the United States to continue her important field work. Both Mr Columbus and Ms Robson describe themselves as inseparable, the Tribunal had no cause to doubt this.
Whilst Mr Columbus has extended family in Australia and numerous friends, the evidence clearly demonstrated Mr Columbus’ significant family ties, notably children and grandchildren, are in the United States.
The Tribunal accepts that Mr Columbus has significant property and assets in Australia. The Tribunal accepts Mr Columbus has significant property and assets in the United States.
The Tribunal accepts Mr Columbus has not paid income tax in Australia but has contributed to the Australian economy in numerous ways. The Tribunal accepts Mr Columbus has paid income tax and contributed to the US economy in numerous ways.
The Tribunal does not consider either of these factors, properties and payment of taxes, weight for or against establishing whether Mr Columbus has a close and continuing relationship with Australia. Mr Columbus obviously spends time at numerous residences, paying taxes where he is required.
The Tribunal concurred with the Respondent’s submission that Mr Columbus’ circumstances were analogous to that of the matter in Chimnani where senior Member Kirk observed:
The Act is to ameliorate the strictness of the general residence requirement for non-citizens who accompany their Australian citizen spouse overseas so they can maintain their cohabitation when the spouse is working in the host country.
Mr Columbus’ situation seems to be the reverse of the intention of the Act as Mr Columbus is in the United States for work and Ms Robson has accompanied him there.
The Tribunal does not consider Mr Columbus’ employment with Visy / Pratt Industries demonstrates any close and continuing relationship with Australia. Pratt Industries is a wholly owned American company based in Georgia. Mr Columbus’s own evidence is he is contracted to Pratt Industries until 2026, providing strategic advice on industrial relations for United States employees. Mr Columbus’ own evidence provided he is required to be physically present in the United States to attend hearings with the National Labor Relations Board and union negotiations. Mr Columbus’ long-term employment with a United Sates Company, which the Tribunal readily acknowledges is owned by a prominent Australian family, does not by extension demonstrate Mr Columbus has a close and continuing association with Australia.
The Tribunal had no evidence to dispute it was Mr Columbus’ intention to retire to Australia. However, the evidence before it was that Mr Columbus had not retired and had no intention of retiring anytime soon, having only recently extended his employment contract with Pratt Industries until 2026.
The Tribunal considers Mr Columbus’ close connection to the Pratt family demonstrates he has a connection to Australians but not Australia.
The Tribunal considered the ‘elephant in the room’ in Mr Columbus’ circumstances was the impact of covid restrictions and the decision by Mr Columbus and Ms Robson to seek an exemption from the restrictions to return to the United States. The Tribunal accepted that Mr Columbus had a genuine need to return to the United Sates and that Mr Columbus and Ms Robson could not have predicted their subsequent health issues or the length of the pandemic.
The Tribunal could then not comprehend why Mr Columbus applied for his citizenship knowing he had not been in Australia for the 12 months before his application, and that he had made no effort to return to Australia from the 6 July 2022 when the borders were reopened to everyone.
Mr Columbus’ belief he could not return to Australia without being invited back having sought an exemption to leave was not born out by any evidence before the Tribunal. Additionally, Mr Columbus’ belief he had been invited back to Australia when he received a standard letter from the Department of Immigration advising him his Visa was about to expire again was not borne out by the evidence. This confusion on Mr Columbus’ part could have easily been solved by a call to the Department of Immigration or the various Australian representatives in the United States. Mr Columbus and Ms Robson both advised the Tribunal it was this letter that prompted Mr Columbus to apply for citizenship. What the letter clearly advised was Mr Columbus could seek to re-apply for his Visa and / or apply for citizenship. The Tribunal was not persuaded a standard letter from the Department advising Mr Columbus of his Visa status gave rise to demonstrating he had a close and continuing relationship with Australia.
Whilst the Tribunal did not doubt Mr Columbus had paid his membership dues for several clubs and read their newsletters, it did not find this amounted to community engagement as such to demonstrate a close and continuing relationship with Australia.
The Tribunal accepted Mr Columbus’ evidence of his genuine desire to become a citizen, but this again did not demonstrate a close and continuing relationship with Australia. Mr Columbus was aware he would not meet the residence requirements when he made his application for citizenship and he would need to seek exemption from the Minister, under the so-called spouse clause. As there was no urgency for Mr Columbus to seek citizenship, he could have waited until he had been in Australia for a longer period before he applied to demonstrate he does intend to retire to Australia and live here on a permanent basis.
The Tribunal was not persuaded, in all the circumstances, that Mr Columbus should be granted an exemption to the residency requirements.
While the Tribunal’s decision will be profoundly disappointing and unsatisfactory to Mr Columbus, it in no way detracts from the obvious connection and affection he has for Australia, and we would encourage him to make a further application for Australian citizenship at a time when he is eligible for its conferral under the Act.
DECISION
On the evidence before the Tribunal, Mr Columbus has failed to demonstrate that he had a ‘close and continuing association with Australia’ during the period 4 years immediately before the day he made the application for Australian citizenship by conferral.
Accordingly, it follows it is not appropriate for the Tribunal to exercise the discretion under s 22(9) and affirms the decision under review.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke

..............................[sgd]..........................................
Associate
Dated: 17 September 2024

Date of hearing: 19 August 2024

Counsel for the Applicant: Mr Goldblatt and Ms Butler

Solicitors for the Applicant: Colin Biggers & Paisley Lawyers

Counsel for the Respondent: Mr Lessing

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	19 August 2024
Counsel for the Applicant:	Mr Goldblatt and Ms Butler
Solicitors for the Applicant:	Colin Biggers & Paisley Lawyers
Counsel for the Respondent:	Mr Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers