Gorbunkova and Minister for Home Affairs (Citizenship)

Gorbunkova and Minister for Home Affairs (Citizenship) [2019] AATA 853 (13 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6872
Re:Svetlana Alekseyevna Gorbunkova
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Member S Barton

Date:13 May 2019
Place:Perth

The decision under review is affirmed.
................................[sgd]........................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirement – application of Ministerial discretion – whether close and continuing association with Australia – whether migrated to and established home in Australia – Australian citizen children – extended family in Australia – long term relationship with Australian citizen spouse – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(1A), 21(2), 21(2)(c), 22(1B), 23, 24(1), 52(1)(b)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Li and Minister for Immigration and Border Protection (2015) 150 ALD 348
Taher v Minister for Immigration and Border Protection [2013] AATA 917
UI Haque and Minister Immigration and Citizenship (2013) 139 ALD 376
Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943
Yang v Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 7A
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) – cl 22
REASONS FOR DECISION
Member C Edwardes
Member S Barton
13 May 2019
INTRODUCTION

This is an application for the review of a decision of a delegate of the Respondent

(the Minister’s Delegate). This decision, made on 30 July 2018 (T15 179-186, R1), refused the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the general residence requirements under s 22 of the Citizenship Act at the time of the Minister’s Delegate’s decision.
Citizenship by conferral (that is, where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Citizenship Act.
BACKGROUND
The Applicant is a 32 year old citizen of Azerbaijan who arrived in Australia on

18 March 2008, and who was granted a Partner (Permanent) (subclass 100) Visa (Permanent Partner visa) on 1 June 2013. She currently holds a Resident Return BB155 (Permanent) Visa (T16 188, R1).
The Applicant applied for conferral of Australian citizenship on

7 February 2018 (T4 12-49, R1).
Her application indicated that she was seeking Ministerial discretion relating to the residential test, on the basis that she was the spouse of an Australian citizen.
The Minister’s Delegate stated (T15 179-187, R1):
General residence requirement (section 22 of the Act)
To satisfy the general residence requirement an applicant must meet all of the following three requirements set out in the Act:
1)the applicant was present in Australia for the period of 4 years immediately before applying for citizenship – paragraph 22(1)(a)); and
2)the applicant must not have been present in Australia as an unlawful non-citizen at any time during that 4 year period – paragraph 22(1)(b); and
3)the applicant was present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship -paragraph 22(1)(c).
According to departmental records you were present in Australia for four years immediately before making your application.

Overseas Absences
Sub-section 22(1A) of the Act allows for absences from Australia of up to 12 months within the 4 years immediately before applying for citizenship.
Departmental records indicate that you were absent from Australia for a total of 1,372 days in the 4 year period immediately before applying for citizenship. As you were absent for more than 12 months you have exceeded the allowable absences provided in sub-section 22(1A) and cannot be considered to have been present in Australia for the period of 4 years immediately before making your application. Therefore, you do not meet the requirement of paragraph 22(1)(a) of the Act.
…
•Paragraph 22(1)(b) of the Act provides that the applicant must not be present in Australia as an unlawful non-citizen at any time during the 4 year period immediately before making an application for citizenship.
…
•Paragraph 22(1)(c) of the Act provides that the applicant must have been present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship.
According to departmental records you became a permanent resident on 1 June 2013.

Overseas Absences
Sub-section 22(1B) of the Act allows for absences from Australia of up to 90 days within the 12 months immediately before applying for citizenship providing the person remains a permanent resident throughout this time.
Departmental records indicate that you were absent from Australia for a total of 321 days in the 12 month period immediately before applying for citizenship. As you were absent for more than 90 days you have exceeded the allowable absences provided in sub-section 22(1B) and cannot be considered to have been present in Australia for the period of 12 months immediately before making your application. Therefore, you do not meet the requirements of paragraph 22(1)(c) of the Act.
…
I have considered the information contained in your application and that [sic] contained on departmental systems and I can see no evidence that any of the partial exemptions set out in subsection 22(2) apply to you.
I have considered whether any of the Ministerial discretions set out in subsections 22(4A), (5), (5A), (6), (9), (10) or (11) could be applied to assist you to meet the general residence requirements, however I have no evidence to support the application of any of these discretions in your circumstances.
I have assessed your request to be considered under the Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen. Subsection 22(9) of the Act outlines the requirements to be met in order for periods offshore to be considered as time spent onshore. Pursuant to subsection 22(9)(d) of the Act, the Minister is to be satisfied that the person had a close and continuing association with Australia. Based on the information provided, you indicate that you will return to Australia permanently after July 2020. In addition, departmental records indicate you have only spent 89 days in Australia in the four years prior to lodging your application compared to 1,372 outside of Australia. In the year prior to lodging your application, you had only spent 44 days in Australia. Subsequently, I am not satisfied you meet close and continuing ties, even though you may have an Australian partner and that his extended family reside in Australia. Therefore, the Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen will not be applied.
You have provided no evidence that you satisfy the special residence requirements in sections 22A (persons engaging in activities of benefit to Australia) and 22B (persons engaged in particular kinds of work requiring regular travel outside Australia) of the Act, or that you have completed defence service relevant to section 23 of the Act.
(Original emphasis.)
The Applicant applied to the General Division of the Administrative Appeals Tribunal

(the Tribunal) on 24 November 2018 for a review of the Delegate’s decision (T2 4-10, R1).
In her application, the Applicant claimed that the Delegate’s decision was incorrect, and accordingly outlines the reasons for this claim (T2 7):
The applicant made a citizenship application seeking a discretion under Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen. The delegate chose not to apply the discretion as the delegate was not satisfied that the applicant had a close and continuing association with Australia. The applicant is married to an Australian citizen and has two minor children who are Australian citizens. The applicant’s spouse is employed outside Australia and, to keep the family together, the applicant and her children reside with her husband outside of Australia. The applicant has substantial family ties with Australia. That a wife and mother has made a decision to keep the family united in the place of her husband’s employment is self-sacrificing and commendable. Significant weight should be given to her family connection with Australia.
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Citizenship Act.
RELEVANT LEGISLATION AND POLICY
Section 21(2) of the Citizenship Act sets out the general eligibility criteria for a person to become an Australian citizen. Relevantly, s 21(2)(c) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the general residence requirement (see s 22) or the special residence requirement

(see ss 22A or 22B); or satisfies the defence service requirement (see s 23), at the time the applicant made the application.
Section 22(1) of the Citizenship Act states:
(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.
Sections 22(1A) and 22(1B) of the Citizenship Act state:
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 Citizenship Act states:
Ministerial discretion — spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9)If the person is the spouse, de facto partner or surviving spouse or de facto 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 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 Australian Citizenship Policy (the Policy) provides guidance relating to general residence requirements. The Tribunal notes the case Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake). In that case, Brennan J stated (at 642):
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Justice Brennan explained further (at 645) how the Tribunal might apply government policy when reviewing decisions, stating:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The Policy provides assistance to the Tribunal in determining which elements may be considered to satisfy s 22(9)(d) of the Citizenship Act. The Policy at Chapter 7A outlines the following non-exhaustive list of considerations regarding Ministerial discretion for spouses and de facto partners (s 22(9) and s 22(10)) of the Citizenship Act:
·evidence that the person migrated to and established a home in Australia prior to the period overseas;
·Australian citizen children;
·a long term relationship with Australian citizen spouse or de facto partner;
·extended family in Australia;
·regular return visits to Australia;
·regular periods of residence in Australia;
·intention to reside in Australia;
·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas;
·ownership of property in Australia;
·evidence of income tax paid in Australia over the past four year [sic] and
·evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d) of the Citizenship Act, Chapter 7A of the Policy further states that more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
ISSUE
The issue for determination by the Tribunal is whether the Applicant had satisfied

s 22(1)(9) of the Citizenship Act as of 30 July 2018.
EVIDENCE
The application for review was heard on 30 April 2019 in Perth. The Applicant appeared by telephone from the Republic of Korea, and was represented by Mr Ross, a Registered Migration Agent. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·Exhibit A1 – Applicant’s submissions dated 14 January 2019 with the following Addendums:
oAddendum 1: Acknowledgement of receipt of an application for Australian Citizenship (conferral);
oAddendum 2: Notification of refusal of an application for Australian Citizenship (conferral);
oAddendum 3: Passport biodata page of the Applicant;
oAddendum 4: Passport biodata page of the Applicant’s husband;
oAddendum 5: Verification of registration of marriage between the Applicant and the Applicant’s husband;
oAddendum 6: Passport biodata pages and birth certificates for the Applicant’s children;
oAddendum 7: Decision of Taher v Minister for Immigration and Border Protection [2013] AATA 917;
o
Addendum 8: Statutory declaration of the Applicant’s husband signed on

9 January 2019, and certificate of employment for the Applicant’s husband;
oAddendum 9: Statement by the Applicant, undated;
oAddendum 10: Statement by various family members in support of the Applicant; and
oAddendum 11: Decision of Vasiunina v Minister for Immigration and Border Protection [2018] AATA 943.
·Exhibit A2 – Hearing Certificate dated 1 February 2019;
·Exhibit R1 – T documents (T1-T19, 1-223);
·
Exhibit R2 – Statement of Facts, Issues and Contentions (SoFIC) dated

28 February 2018; and
·Exhibit R3 – Hearing Certificate dated 8 February 2019.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to and analysed below.
The Applicant contends (A1 3):
…
Under policy, enabling a family unit to remain together can be considered of benefit to Australia particularly if there is evidence of an imminent intention for the family unit to domicile themselves in Australia.
Seven examples of personal ties that may be considered substantial are situations where the applicant:
•    has a history of long term residence in Australia prior to the last 5 years, particularly, if the applicant has spent their formative years in Australia or has spent a significant amount of time in Australia since first being granted a permanent visa. Under policy, the greater the proportion of their life in Australia since first being granted a permanent visa, the more weight this should be given
•    has been living outside Australia with an Australian citizen partner or, in the case of a minor child, Australian citizen parent, who has previously lived in Australia. Such situations should be given considerable weight as their Australian citizen partner or parent has an automatic right of entry to Australia
•    has been living in Australia for more than 12 months in the last 5 years, including as a temporary resident
•    has one or more Australian citizen minor children living in Australia (including at boarding school) where no legal impediment to access exists
•    has been living overseas with their family unit, including Australian citizen minor children, and the applicant provides evidence of imminent plans to return to Australia with their family to live (this tie should be given considerable weight)
•    has personal assets in Australia, for example family home or single investment property – although ownership of a family home or investment property in Australia may help substantiate a personal tie, whether there was a benefit to Australia will depend on whether it is occupied, for example, by a close family member or actively being rented
•    has close family members (that is, of a type for which family reunion might be available under the Family Stream of the Migration Program) who have substantial residence in Australia and are Australian permanent residents or Australian citizens.
(Original emphasis.)
The Respondent contends (R1 5-8):
Residence requirement – s 22(1)(a) not met
15)The residence requirement in s 22(1)(a) requires that an applicant be present in Australia for the period of 4 years immediately before the day the person made the application. The respondent contends that the applicant does not satisfy this requirement because she was only present in Australia for a total of 89 days in the four years immediately prior to her application (T16).

The applicant therefore fails to satisfy s 22(1)(a) of the Act, even taking into account the allowable 12 months absence under s 22(1A) of the Act.
16)The residence requirement in s 22(1)(c) requires that an applicant be present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application. The respondent contends that the applicant does not satisfy this requirement because she was only present in Australia for a total of 44 days in the 12 months immediately prior to her application (T16). The applicant therefore fails to satisfy s 22(1)(c) of the Act, even taking into account the allowable 90 day absence under

s 22(1B) of the Act.
17)The respondent accepts that the applicant satisfies the residence requirement in s 22(1)(b) of the Act.
18)Furthermore, the applicant has not provided any evidence to the Tribunal, and otherwise does not appear to presently contend, that she satisfies any of the special residence requirements or defence service requirements under ss 22A and 22B of the Act or s 23 respectively.
The spouse discretion – s 22(9)
19)The applicant seeks the exercise of the Ministerial discretion under s 22(9) of the Act. In order for the discretion to be enlivened, the applicant must meet the preconditions in ss 22(9)(a)-(d).
20)The respondent accepts that the applicant satisfies ss 22(9)(a)-(b) as:

(a) she has been married since 2013 to an Australian citizen and (b) has been absent from Australia for substantial periods in the four years preceding the application (T16).
21)Turning to s 22(9)(c), the discretion is only available to treat a period as one in which the person was present in Australia as a permanent resident if the person was a permanent resident during that period. Subsection 5(1) of the Act provides that a person is a permanent resident at a particular time if

(and only if), relevantly:
a.    the person is present in Australia at that time and holds a permanent visa at that time; or
b.    both:
i.the person is not present in Australia at that time and holds a permanent visa at that time; and
ii.the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia…
22)As the applicant entered Australia on a permanent visa on 1 June 2013, she became a permanent resident on that day. Therefore, if the discretion is enlivened, the Tribunal would be able to treat all of her periods of absence as if they were periods in which she was present in Australia as a permanent resident, that is, the respondent accepts that s 22(9)(c) is met.
23)The respondent contends that the applicant does not satisfy the precondition in s 22(9)(d) of the Act.
24)In considering whether the applicant meets the requirement in s 22(9)(d), and having regard to the Policy, the applicant must be able to demonstrate to the Tribunal that she had a close and continuing association with Australia during the periods she was absent from Australia. The respondent contends that there [sic] insufficient evidence before the Tribunal to support a conclusion that the applicant had a close and continuing association with Australia. Whilst the limited evidence before the Tribunal confirms that the applicant’s husband and two children are Australian citizens, and have visited Australia for short periods since 2013, the respondent contends (by reference to the factors in the Policy) that there is no evidence that the applicant:
a.      Migrated to and established a home in Australia prior to the period overseas;
b.      Regularly returned to Australia;
c.      Regularly resided in Australia;
d.      Has been on leave from employment in Australia while accompanying their spouse or partner overseas;
e.      Owns property in Australia;
f.       Paid income tax in Australia over the past four years; and
g.      Participated in any Australian community based activities or organisations.
25)In line with the Policy (p. 96), the respondent contends that less weight should be given to those factors as the applicant has not been physically present in Australia for at least 365 days in the four years immediately before making the application, nor has she been present in Australia as a permanent resident for at least 90 days. This is particularly so where the applicant’s presence in Australia over the relevant four year period has totalled a mere 89 days.
26)The respondent contends that whilst the applicant has provided evidence that she has maintained a close and continuing association with her husband and his family (Australian citizens) in the four years immediately before the Citizenship Application (and continues to do so) “that does not, of itself, constitute a ‘close and continuing association with Australia’”.
27)In the event that the Tribunal is satisfied that the applicant meets the preconditions in s 22(9), which is not conceded, the Tribunal would then have to consider whether the discretion in s 22(9) should be exercised.

The discretion is unconfined except insofar as it is informed by the subject matter and the scope and purpose of the relevant statutory provisions.
28)In the circumstances of this case, the respondent contends that there is no good reason to exercise the discretion in the applicant’s favour.

The respondent contends that given the importance of physical presence to a close and continuing association with Australia, that the discretion should not be exercised in favour of the applicant in circumstances where she has only spent 89 days in Australia during the relevant period. The respondent further contends that the applicant has provided no good reason as to why the discretion should be exercised in her favour, nor has she identified any hardship that she would experience should the discretion not be exercised.
(Original emphasis and footnotes omitted.)
HEARING

Mr Ross, as the representative for the Applicant, opened by stating that the Applicant had a close and continuing association with Australia. Mr Ross stated that the Applicant had extended family in Australia; was married to an Australian citizen; and had children who were Australian citizens. He conceded she had not paid tax and did not own property in Australia.
Mr Burgess, as the representative for the Respondent, opened by relying on his SoFIC. Mr Burgess claimed that the Applicant had spent very little physical time in Australia over the past four years. He conceded the Applicant satisfied the provisions of s 22(9)(a-c) of the Citizenship Act. He claimed the majority of cases in relation to matters of citizenship supported the Policy. Mr Burgess contended that the Applicant had made only some visits to Australia whilst she was overseas; and further that she had no employment, property, or tax connections to demonstrate that she had a connection to Australia. In the view of Mr Burgess, community was an integral connector to establishing a close and continuing association with Australia for the requisite period.
In evidence, the Applicant stated:
·She met her husband in Azerbaijan in 2006. He was working overseas at the time.
·She visited Australia intermittently whilst in a relationship with her husband prior to their marriage, and would reside in his parent’s house during those visits.
·Some of her stays in Australia were for a period of three months.
·Her husband decided that his pay and employment opportunities were far better overseas, factors which he considered important for securing the financial future of both the Applicant and himself.
·Her children were born overseas in 2013 and 2016.
·Family support in Australia was very strong from her extended family.
·Azerbaijan offered very limited opportunities in terms of lifestyle, employment and education for her children.
·She had demonstrated some knowledge of the history of Australia.
·Her husband had previously owned various properties in Australia including a house and apartments, but had sold them sometime between 2010 and 2012.
·She had not lived in any of those properties.
·She had never worked in Australia.
·She holds a degree in Physics from a university in Azerbaijan.
·The family will be permanently returning to Australia in 2020, as the children’s education is her and her husband’s primary concern.
Under cross-examination the Applicant stated:
·She had never owned or rented property in Australia.
·She accepted that since her arrival in 2008, she had been granted a Permanent Partner visa in 2013, and is currently in possession of a Resident Return visa.
In evidence, the Applicant’s husband stated:
·He had previously owned three properties in Perth, and had subsequently sold them due to financial and property tenant considerations.
·He had arrived in Australia with his family when he was 15 year old, in 1997.
·He possesses qualifications in electrical engineering. Having completed his qualifications in 2006 he travelled to Azerbaijan to visit his father, who was working overseas at the time.
·Whilst in Azerbaijan he was offered employment, and through a friend met his future wife, the Applicant. He worked overseas because of employment opportunities and better pay.
·He returned to Australia with the Applicant in 2009, and took employment for approximately 18 months on a fly-in, fly-out basis. The Applicant stayed at his parents’ house during this time. Once this contract was completed, he left Australia for approximately 10 years to work overseas as pay and employment opportunities were far better.
·
He decided not to seek employment in Australia because he had no interest in

fly-in, fly-out employment, or in living in mobile camps.
·His return to Australia is driven primarily by a desire to provide a solid education for his children. He has good connections in Perth within his industry to secure a head office position.
·He stated that the renewal of the Applicant’s visa was beginning to be an administrative nightmare, as the result of the time it takes to go through the process.
CONSIDERATION
In determining whether the Applicant satisfies s 22(1)(9)(d) of the Citizenship Act at the time that the Minister made his decision, the Tribunal must take into account a number of considerations. These are outlined below.
Does the Applicant satisfy the requirements of s 22(1)(9) of the Citizenship Act?
The Applicant made an application for citizenship by conferral on 7 February 2018

(T8 99, R1). In the four years prior to that date, she spent only 89 days in Australia

(T4 28-40, R1 6). She was absent for 1,372 days (T15 181, R1). She therefore failed to satisfy ss 22(1)(a) and (1A) of the Citizenship Act.
The Applicant also fails the s 22(1)(c) test of the Citizenship Act as she was only in Australia for 44 days in the 12 month period prior to when the Applicant made her application.
The Tribunal accepts that the Applicant satisfies s 22(1)(b) of the Citizenship Act.
The Tribunal has been asked to consider the Applicant’s application under s 22(9)(d) of the Citizenship Act. She contends the elements in her favour are:
·her marriage and long term relationship to an Australian citizen;
·her relationship with her Australian extended family;
·having two children who are Australian citizens, one of whom attends boarding school in Australia; and
·her regular returns to Australia.
The Tribunal accepts the Respondent’s submission that s 22(9)(a)-(c) of the

Citizenship Act has been satisfied (R2). The Tribunal accepts that s 22(9)(d) has two steps to enliven the use of that provision, and notes the Respondent’s contention that

s 22(9)(d) of the Citizenship Act has not been satisfied.
The Tribunal notes there is no definition of the phrase ‘close and continuing association’ in the Citizenship Act. The Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) relating to s 22(1)(9) ‘Ministerial discretion – spouse, widow or widower of Australian citizen’ states (at [cl 22]):
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result, this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
Did the Applicant migrate and establish a home in Australia prior to the period overseas?
The Applicant arrived in Australia on 18 March 2008. She is a citizen of Azerbaijan and is married to an Australian citizen, her husband, who she met in 2006. Prior to her marriage in 14 January 2013, she lived in a de-facto relationship with the same partner (A1 1).
On 1 June 2013, the Applicant was granted a Permanent Partner visa. She and her husband have two children, aged five years and two years. The two children are Australian citizens.
There is documented evidence supporting the Applicant’s contention of her husband’s employment overseas (T5 61, 73 and 75, R1).
The Applicant’s submission states the eldest child is waitlisted to attend a school in Western Australia (T13 127-128, R1).
The Tribunal understands why the Applicant has spent large periods of time overseas, largely being her desire to reside with her husband while he is employed outside of Australia with their children (T2 7).
The Tribunal accepts the Applicant regularly returns to Australia. However it is for the Tribunal to determine whether these returns are in fact in the Applicant’s capacity as a visitor, or as a resident who has established a home in Australia. This is an important point in order to assess whether the Applicant has a close and continuing association with Australia.
The Tribunal will now examine the application against the following criteria, outlined in

the Policy (T19 215, R1).
Australian citizen children
The Tribunal accepts that the two children from the Applicant’s marriage are Australian citizens. This, in itself, does not mean that the Applicant has a close and continuing association with Australia, however it does weigh in favour of the Applicant.
Long term relationship with Australian citizen spouse or de facto partner
The Tribunal accepts that the Applicant and her husband have a long term relationship. They have maintained a de facto, and later marriage, relationship since 2006.

The Tribunal is satisfied on the evidence before it that this is a long term relationship, spanning over 13 years. The Tribunal weighs this factor in favour of the Applicant.
Extended family in Australia
The Applicant has a large extended family in Australia on her husband’s side, who live predominantly in the northern suburbs of Perth, Western Australia. Several members of the family have attested that they communicate with her on a daily basis through Skype and WhatsApp (A1, Addendum 10).
The Tribunal notes the following statement signed by 10 members of the family (A1, Addendum 10):
We miss Shaun, Svetlana and the two girls so much but understand their decision to keep the family together is the most important part of being a happy family. Working overseas is a temporary commitment that Shaun has made to get ahead financially. We have always known they will return to Australia and we are so happy to hear the news that Shaun’s current work contract will be the last one overseas and they will be returning to Australia by middle 2020.
The Tribunal weighs this factor in favour of the Applicant.
Regular return visits to Australia
The Tribunal notes the following dates, during which the Applicant has spent time in Australia since 2013 (A1, Addendum 9):
·31 May 2013 – 22 June 2013;
·23 September 2014 – 19 October 2014;
·7 March 2016 – 26 March 2016;
·14 May 2017 – 14 June 2017;
·25 January 2018 – 10 February 2018.
However, the Application for Citizenship shows the following travel patterns of the Applicant in the period between 2013 to 2018, where she visited family in Azerbaijan and travelled for holiday and leisure (T4 12-49, R1):
·22 June 2013 – 3 July 2013 (12 days in Thailand for holiday and leisure);
·15 May 2014 – 21 June 2014 (38 days in Azerbaijan visiting family);
·21 April 2015 – 23 April 2015 (3 days in Laos for holiday and leisure);
·27 July 2015 – 21 August 2015 (26 days in Azerbaijan visiting family);
·12 June 2016 – 25 June 2016 (14 days in Thailand for holiday and leisure);
·17 February 2017 – 27 February 2017 (11 days in Vietnam for holiday and leisure);
·3 April 2017 – 25 April 2017 (23 days in Azerbaijan visiting family);
·5 May 2017 – 12 May 2017 (8 days in Thailand for holiday and leisure);
·12 May 2017 – 14 May 2017 (3 days in Malaysia for holiday and leisure);
·14 June 2017 -- 24 June 2017 (11 days in Thailand for holiday and leisure);
·20 August 2017 to 29 August 2017 (10 days in Thailand for holiday and leisure);
·28 September – 21 October 2017 (24 days in Thailand for holiday and leisure).
The Tribunal notes that the Applicant spent a total of 183 days between 2013 to 2018 on travel overseas to holiday destinations and to visit family. During the same period, she visited Australia for 112 days. The Tribunal therefore concludes this factor does not weigh in favour of the Applicant.
Regular periods of residence in Australia
The Applicant’s significant absence from Australia for the four year period prior to her application for citizenship is attributed to her desire to be with her husband whilst he is working overseas. The Applicant has stated that her priority is to keep the family together. The Tribunal accepts this is an acceptable reason for her absence and commends her for her decision to put her interests in family above other priorities.
However, the Tribunal notes that in the context of the requisite period the Applicant’s periods of residence are limited, and could be considered as returns to Australia as a visitor rather than as a person seeking to establish a secure bond with Australia.
This factor weighs against the Applicant.
Intention to reside in Australia
The Applicant’s husband stated in a Statutory Declaration that at the end of his current contract in 2020 he and his wife will return to Australia (A1, Addendum 8). The Applicant’s intentions are clearly tied to the employment opportunities of her husband.
Given the clear statement by her husband to return to Australia in 2020, the Tribunal is satisfied that the intention of the Applicant is to return with her husband at the same time. The Tribunal finds that this factor weighs in favour of the Applicant.
The person has been on leave from employment in Australia while accompanying their spouse or partner overseas
There is no evidence to indicate that the Applicant is currently on leave from employment in Australia. The Tribunal is satisfied that no weight can be attached in the Applicant’s favour.
Ownership of property in Australia
The Applicant owns no property in Australia. The Tribunal is satisfied that no weight can be attached in the Applicant’s favour.
Evidence of income tax paid in Australia over the past four years
The Applicant has not been employed in Australia and has paid no tax. The Tribunal is satisfied no weight can be attached in the Applicant’s favour.
Evidence of active participation in Australian community based activities or organisations
The Applicant has no active participation in the Australian community. The Tribunal is satisfied no weight can be attached in the Applicant’s favour.
Having considered all the factors before the Tribunal, it accepts that the factors are not exhaustive, and that an aggregated approach is required in assessing whether the Applicant has a close and continuing association with Australia. On the Tribunal’s assessment there are factors which support her application, factors which can only be given no or limited weight in supporting her application, and factors which weigh against her application.
The Tribunal is guided by the Policy, but not to the point of diminishing the effect of the Act. Consistency in decision-making is an important outcome, but that does not mean that it should be applied rigidly. The Tribunal notes the following in Drake (at 640):
[The Minister’s] discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.
In aggregate, the evidence does not satisfy the Tribunal that the Applicant has a close and continuing association with Australia. The Tribunal is satisfied that although the Applicant has been visiting Australia, it has been for limited periods and therefore her association with Australia is not close.
The Tribunal finds that nature of the Applicant’s connection with Australia is closer to that of a visitor, than that of a resident.
Should the Tribunal exercise the discretion in the Applicant’s favour?
The Tribunal is required to look at all the circumstances of the application as a whole in order to determine whether the Applicant’s reasons for not meeting the residence requirements require the need to exercise the discretion.
The Tribunal did conclude that there are some factors in the Policy that are favourable to the Applicant, and others which are not favourable. In consideration of the evidence as a whole, the Tribunal is satisfied that when looking at the Applicant’s circumstances in aggregate, the Applicant did not have a close and continuing association with Australia during the relevant period, and consequently the Tribunal finds that the Applicant does not satisfy s 22(9)(d) of the Citizenship Act.
The Tribunal cannot find on the evidence available before it that the Applicant satisfies the prerequisite of having close associations with Australia, other than her relationships with her husband’s family. Whilst her children are Australian citizens, this in itself does not mean that the Applicant has a close association with Australia.
The Tribunal notes the case UI Haque and Minister for Immigration and Citizenship (2013) 139 ALD 376 (Ul Haque) (at [45]):
The words that make up the phrase “close and continuing association” are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating … connection or combination”.
In Ul Haque, the Tribunal also stated (at [44]):
Whether or not [the applicant] has a “close and continuing association” ... is a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions.
In Yang v Minister for Immigration and Border Protection [2017] AATA 364, Senior Member Cotter remarked (at [34-35]):
On behalf of the Minister, it is submitted that a close relationship with Australian family members does not equate to a close and continuing association with Australia.
I accept the Minister’s submission on that point. It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia.
The only relevant evidence before the Tribunal is the Applicant’s connection to family. A close and continuing association to Australia is broader than just having family connection. It requires embracing the values, culture, and the institutions of the country in such a way that, in the view of the Tribunal, can only be attained through long term presence in Australia.
In Li and Minister for Immigration and Border Protection (2015) 150 ALD 348, Senior Member Taylor stated (at [63]):
The cases to which I have referred in paragraphs 24 to 37 above emphasise the potential significance of an applicant being able to point to a significant period of actual Australian residence. Without such a period of residence it is hard to arrive at satisfaction that an applicant can demonstrate the required “close and continuing association with Australia”. The delegate alluded to the combined significance of Mr Li’s failure to spend any significant periods in Australia, and his asserted, but unsubstantiated, general intention about his retirement residence, as not conducing to satisfaction that Mr Li had a close and continuing association with Australia. I have come to the same view. Mr Li’s evidence has not satisfied me that his association with Australia, despite the various elements of his connection with Australians and Australia, should be regarded as a “close and continuing” association with Australia.

In this case, the Applicant has extended family connections but has a limited connection to Australia.
The Tribunal determines that there is no prejudice to the Applicant in denying this application. She is a permanent resident, and whilst renewal can be at times tedious and frustrating, it is not a reason to approve the citizenship application. The Applicant can apply at any time for citizenship on her return to Australia, after meeting the requisite criteria and demonstrating her close and continuing association to Australia. Her evidence to the Tribunal indicates a clear intention to return to Australia once her husband’s work commitments overseas are completed.
DECISION
For the reasons above, the Tribunal affirms the decision of the Minister’s Delegate.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.................................[sgd].......................................
Associate
Dated: 13 May 2019

Date(s) of hearing: 30 April 2019

Representative for the Applicant: Mr M Ross

Representative for the Respondent:

Solicitors for the Respondent:

Mr A Burgess

Sparke Helmore Lawyers

[2019] AATA 853

13 May 2019

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