Gorbunkova and Minister for Home Affairs (Citizenship)

The Administrative Appeals Tribunal (AAT) considered the application of Ms Gorbunkova for Australian citizenship by conferral. Ms Gorbunkova, a citizen of Azerbaijan, arrived in Australia in 2008 and was granted a permanent partner visa in 2013. She applied for citizenship in February 2018, seeking Ministerial discretion regarding the general residence requirement due to her marriage to an Australian citizen. The Minister's Delegate refused her application, finding she did not meet the required periods of presence in Australia, even with the discretion for absences related to a spouse.

The primary legal issue before the Tribunal was whether Ms Gorbunkova satisfied the general residence requirement under section 22 of the *Citizenship Act*, specifically whether the Ministerial discretion under section 22(9)(d) could be applied to deem her absences from Australia as time spent onshore. This required the Tribunal to determine if she had a "close and continuing association with Australia" despite significant periods spent overseas. The Tribunal also considered whether any prejudice would arise from denying her application.

The Tribunal reasoned that Ms Gorbunkova failed to meet the statutory requirements for presence in Australia. In the four years preceding her application, she was absent for 1,372 days, exceeding the allowable 12-month absence under section 22(1A). Similarly, in the 12 months before applying, she was absent for 321 days, exceeding the 90-day limit under section 22(1B) for permanent residents. While acknowledging her marriage to an Australian citizen, her Australian citizen children, and her extended family in Australia, the Tribunal found these factors insufficient to establish a "close and continuing association" as required by section 22(9)(d). The Tribunal noted that her husband's overseas work commitments and his stated lack of interest in fly-in, fly-out employment in Australia indicated a lack of settled intention to reside in Australia at the time of the application.

The Tribunal affirmed the decision of the Minister's Delegate to refuse the application for Australian citizenship. It concluded that Ms Gorbunkova was not prejudiced by this decision, as she remained a permanent resident and could reapply for citizenship upon returning to Australia and demonstrating she met the requisite criteria, including a close and continuing association with the country.