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

This matter concerned an application for citizenship by conferral made by Mr Fricke to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute centred on whether Mr Fricke met the general residence requirement for citizenship, specifically whether he had a close and continuing association with Australia during the relevant period of absence. The decision was made by Senior Member A Poljak.

The legal issues before the Tribunal were whether Mr Fricke satisfied the general residence requirement under section 21 of the *Australian Citizenship Act 2007* (Cth), and if not, whether the discretion provided under subsection 22(9) of the Act was enlivened and should be exercised in his favour. Specifically, the Tribunal had to determine if Mr Fricke had a close and continuing association with Australia during the four years preceding his application, despite being absent from the country for substantial periods.

The Tribunal found that Mr Fricke did not meet the cumulative requirements of subsection 22(1) of the Act, as he was only present in Australia for 12 days during the relevant four-year period. However, it was not disputed that he met the criteria in paragraphs 22(9)(a)-(c), being married to an Australian citizen, not present in Australia during the relevant period, and a permanent resident. The core of the decision rested on paragraph 22(9)(d), which requires a close and continuing association with Australia. The Tribunal was persuaded by the evidence of Mr Fricke and his wife that they intended to reside in Australia in the future, accepting their evidence that they wished to resettle in Australia within the next three years. Despite the uncertainty surrounding Mr Fricke's current role in completing a project in Manhattan, the Tribunal was satisfied that he would likely reside in Australia or continue to maintain a close and continuing association with Australia, as he had in the past.

Consequently, the Tribunal found that Mr Fricke had demonstrated a close and continuing connection with Australia in the four years preceding his application and was likely to reside in Australia or maintain such an association should citizenship be granted. The decision under review was set aside and remitted with a direction that the spousal discretion under subsection 22(9) of the Act was enlivened and should be exercised in favour of the applicant, deeming him to have met the general residence requirement.