Ismail and Minister for Immigration and Border Protection (Citizenship)

This matter concerned an application for review of a decision to refuse to approve the applicant becoming an Australian citizen. The applicant did not meet the general residence requirements stipulated in section 22 of the Act, having been physically present in Australia for 401 days out of the four years immediately preceding his application, and for less than 12 months in the period immediately before applying. The applicant also did not meet the criteria under subsections 22(1A) and 22(1B) due to extended absences from Australia.

The primary legal issue before the court was whether the applicant could satisfy the general residence requirement through the exercise of the discretion provided by section 22(9) of the Act. This discretion allows periods spent overseas by a permanent resident, who is the spouse of an Australian citizen, to be counted as periods of permanent residence in Australia, provided the applicant maintained a close and continuing association with Australia during those absences. The court was required to determine if the applicant had indeed maintained such an association.

The court reasoned that the applicant met the initial criteria for section 22(9), being the spouse of an Australian citizen and a permanent resident. In assessing the crucial element of a "close and continuing association with Australia," the court considered various factors outlined in the Citizenship Policy, including the applicant's Australian citizen children, his long-term relationship with his Australian citizen spouse, and his intention to reside in Australia. The court found that these factors, particularly in light of the applicant's prior establishment of a home in Australia and his employment with an Australian company requiring overseas travel, demonstrated a sufficient close and continuing association.

Consequently, the court set aside the original decision and substituted a finding that the applicant met the general residency requirement under section 22 of the Act. The court was convinced that the applicant was likely to reside in Australia if granted citizenship, thus satisfying section 21(2)(g) as well. Subject to all other eligibility criteria being met, the applicant's application for Australian citizenship was to be granted.