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

This matter concerned an application for Australian citizenship by conferral made by Mr Gan, who sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to dismiss his application. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Gan met the general residence requirements for citizenship by conferral, and if not, whether any ministerial discretions were applicable.

The primary legal issue was whether Mr Gan satisfied the general residence requirements as stipulated in section 22 of the relevant Act. Specifically, the Tribunal had to consider whether Mr Gan was present in Australia as a permanent resident for the 12 months immediately preceding his application for citizenship, and if his absence of 155 days, due to COVID-19 related travel restrictions in Malaysia, could be excused under the provisions for overseas absences.

The Tribunal found that Mr Gan did not meet the general residence requirement under section 22(1)(c) of the Act, as he had been absent from Australia for 155 days in the 12 months immediately before his application, exceeding the allowable 90-day absence. While Mr Gan explained his extended absence was due to visiting his unwell father in Malaysia and subsequent COVID-19 lockdown preventing his return, the Tribunal was not satisfied that these circumstances warranted the exercise of any ministerial discretions. Consequently, the Tribunal concluded that Mr Gan's application for review had no reasonable prospect of success and was dismissed pursuant to paragraph 42B(1)(b) of the AAT Act.