Ivany and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

Ivany and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 2422 (27 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9626
Re:Sydney Ivany
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:27 June 2024
Date of written reasons: 15 July 2024
Place:Canberra

For the reasons given orally on 27 June 2024 at the conclusion of the hearing of this matter:

for the purposes of s 21(2)(g) of the Australian Citizenship Act 2007 (Cth) (Act), the Tribunal is satisfied the Applicant is likely to maintain a close and continuing association with Australia should the application for conferral of Australian citizenship be approved; and

under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal sets aside the decision of a delegate of the Respondent on 28 November 2023 to refuse the application for conferral under s 24(1) of the Citizenship Act and remits the matter to the Respondent for reconsideration with a direction that the Applicant satisfies paragraph 21(2)(g) of the Citizenship Act.

........................[sgd]...............................................
Mr S. Webb, Member
Catchwords
AUSTRALIAN CITIZENSHIP – application for conferral of citizenship – permanent resident – absence from Australia – conferral refused – requirement for close and continuing association with Australia – applicable citizenship policy – relevant considerations – likely to maintain a close and continuing association with Australia – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth), s21, s24, s52
Cases
Minister for Immigration & Border Protection v Han [2015] FCAFC 79
Secondary Materials
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
Mr S. Webb, Member
15 July 2024

At the conclusion of the hearing in this application, I gave an oral decision with supporting reasons.
Subsequently, the Applicant, Ms Ivany, requested reasons for the decision as she had been given the following information by the Minister’s Department:
I refer to your application for Australian citizenship, lodged with the department on 21 May 2019. Departmental records indicate that you departed Australia on 20 February 2020 and to date have not returned, nor have you provided an intended return date to the Department.
Section 24(5) of the Australian Citizenship Act 2007 states the Minister must not approve the applicant becoming an Australian Citizen at a time the person is not present in Australia.
We acknowledge that you have an Australian citizen spouse. However, despite having an Australian citizen spouse, you are not eligible to have Ministerial discretion – spouse applied in your circumstances [sic]. Therefore, we are prohibited under subsection 24(5) of the Australian Citizenship Act 2007 to approve your application while you are outside Australia.
Please provide evidence of travel itinerary or return tickets to show your return date to Australia.
We do not have the legal capacity to defer making a decision on an application and cannot postpone finalising an application indefinitely.
Written reasons for the decision follow. The written reasons expand upon and accord with, but do not change, the reasons given orally.
Facts
Ms Ivany is a Canadian citizen.[1]
[1] T4, folio 33; T31, folio 168.
She first entered Australia on 30 November 2013[2] on a Working Holiday (class TZ) (sub-class 417) visa granted on 30 August 2013.[3] On 14 May 2018, Ms Ivany was granted an Employer Nomination Temporary Residence Transition (class EN) (subclass 186) visa.[4] On 20 May 2023, she was granted a Resident Return (class BB) (subclass 155) visa.[5]
[2] T30, folio 167.
[3] T31, folio 169.
[4] Ibid.
[5] Ibid.
In 2016, Ms Ivany married Sebastian Lach (aka Ivany).[6] Mr Ivany acquired Australian citizenship on 10 April 2019. [7]
[6] T1, folio 13
[7] T12, folio 97.
On 21 May 2019, Ms Ivany lodged an application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (Act).[8]
[8] T4.
On 20 December 2019, Ms Ivany resigned from employment by Silver Raven Pty Ltd “to travel around Australia and Canada”.[9]
[9] T12, folio 103.
On 28 January 2020, Ms Ivany and her husband purchased airline tickets to travel from Sydney to Toronto on 20 February 2020.[10]
[10] T10, folio 83.
On 12 February 2020, an officer of the Minister’s Department informed Ms Ivany an Appointment for Australian citizenship – Interview with Standard test was booked for 6 March 2020.[11] The appointment was rescheduled to occur on 13 February 2020.[12]
[11] T8.
[12] T9.
During the citizenship interview, Ms Ivany advised that she intended to “go over seas for an extended period of time leaving on 20/02/2020”.[13]
[13] T11, folio 92.
On 18 February 2020[14], an officer of the Minister’s Department invited Ms Ivany to provide further information:
The following information may be relied upon to assess whether you are not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.
Please provide a written statement regarding your current circumstances and whether you intend to reside in Australia or maintain a close and continuing association with Australia. Please also attach supporting evidence with your statement.
In your response, please specify your date of return to reside permanently in Australia. If this overseas relocation is temporary, please provide supporting evidence.
…
A copy of subsection 21(2) and 24(5) of the Act is at Attachment A.
…
[14] Ibid.
Subsections 21(2) and 24(5) are in the following terms:
21 Application and Eligibility for Citizenship
…
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
…
24 Minister’s Decision
…
Person not present in Australia
(5) If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
On 18 and 19 February 2020, Ms Ivany sent a letter and supporting materials to the Minister’s Department.[15] Ms Ivany explained that she and her husband intended “travelling to Canada temporarily” for the purposes of a vacation and “to spend some quality time with my mother”.[16] She stated:
My husband and I intend to stay in Canada for approximately 3 months, or until I receive the appointment for my Australian citizenship ceremony.
[15] T12.
[16] Ibid, folio 104.
On 16 April 2020, Ms Ivany wrote to the Minister’s Department and stated:
I just wanted to let you know that we are having a hard time estimating when we will arrive back into Australia because of the COVID-19 pandemic. We had planned to arrive back in Australia in April (this month) but it is not safe to travel at the moment. I hope you will understand that we will be flying back into Australia once it is safe to travel again.[17]
[17] T13, folio 105.
On 10 June 2020, Ms Ivany lodged a change of postal address with the Department (from an address in Liverpool, New South Wales, to an address in Riverwood, New South Wales).[18]
[18] T14.
On 10 April 2021, Ms Ivany lodged a written request “to attend my citizenship ceremony virtually/overseas” and stated:
Currently I am in Canada, and I am unable to come back to Australia due to Covid-19. I have already passed by Australian Citizenship interview and Standard Test.
My husband is an Australian citizen, and I have previously lived in Australia for over 6 years. My husband and I want to reside permanently in Huskisson, NSW. We are currently pregnant (can provide evidence if necessary), and therefore I cannot travel and risk getting myself sick with a weakened immune system due to pregnancy, and cannot self-isolate in a very expensive hotel in Australia for 2 weeks. Once the boarders [sic] open up we will be coming back to Australia to live permanently.[19]
[19] T16.
On 13 April 2021, the Minister’s department sent Ms Ivany a form to complete “in order to be considered for a citizenship ceremony outside Australia”.[20]
[20] T17.
On 14 April 2021, Ms Ivany provided the duly completed form, in which she reiterated her intention to return to Australia and stated:
I am requesting ceremony outside Australia because I am 8 weeks pregnant and unable to travel. I cannot risk being infected with the Covid-19 virus while pregnant. It is also very expensive to isolate in Australia in the hotels.
…
We have not booked any flights because covid happened and all the boarders [sic] were closed. Then my mother got sick and I needed to support her. My mother is well now… We have been trying to become pregnant for over 5 years and I had a miscarriage previously, so I had a lot of fear about travelling with the virus. Now that I am pregnant I cannot risk getting sick. If things change with the virus before the baby is born, we would love to give birth to our baby in Australia. If things don’t change then we’ll have the baby here in Canada and then fly back to Australia once we have recovered from the birth. As you can understand, things have been very “unknown” with the virus and international travel, we have just been going month to month to see what happens.[21]
[21] T18, folios 117 and 119.
In oral evidence, Ms Ivany explained she was not vaccinated against the Covid-19 virus for reasons relating to her pregnancy.
On 2 May 2021, Ms Ivany wrote a letter to the Minister’s Department in respect of a virtual citizenship ceremony which had been scheduled for 29 April 2021, stating:
On 12 April, 2021 I called immigration and explained my situation, they advised me to email… and attach all necessary documents and they will reassess my application. I followed their advice, and I got an email back on April 22, 2021 saying I have a virtual citizenship ceremony on 29 April, 2021….
I am currently 10 weeks pregnant and I cannot fly internationally and risk getting sick with covid. When I logged into my appointment and the lady from immigration notified me that my application has not yet been approved it caused me a lot of stress…[22]
[22] T19.
On 4 May 2021, the Minister’s Department requested additional information from Ms Ivany:
During previous correspondence in relation to your application, the Department requested that you provide evidence of your intention to reside and evidence that you maintain a close and continuing association with Australia.
You were advised that a mandatory requirement for the conferral of Australian citizenship is prescribed at paragraph 21(2)(g) of the [Act]…
You were given examples of evidence and factors that may contribute to a close and continuing association with Australia.
Additionally, Subsection 24(5) provides that if a person has made an applications [sic] in accordance with subsection 21(2), (3) or (4) then they must be present in Australia at the time of the decision unless:
-    They were assessed as meeting a special residence requirement; or
-    They have an Australian citizen spouse and have maintained a close and continuing association with Australia despite being absent.
We acknowledge your responses to departmental correspondence, outlining the reasons for not being able to return to Australia due to COVID-19 situation and your health concerns.
We note, you have provided some evidence in support of your request to process your application while you are offshore, including evidence of your spouse Australian citizenship.
In order to consider your request, we invite you to provide further documentary evidence:
-    Please provide evidence that the family’s relocation is temporary: where are your family household goods/furniture/vehicles?...
-    Have you and/or your husband been employed in Canada since your departure from Australia on 20 February 2020?...
-    What is your current living arrangement in Canada?...
-    You stated your husband will continue his business in Sydney upon your return in Australia. What is the nature of the business?
-    Please provide evidence in support of your participation in the Australian community…
-    You may also wish to provide a medical certificate/evidence in support of your claims that you are unable to travel due to your current pregnancy/health concerns
…[23]
[23] T22, folios 133-4.
On 5 May 2021, Ms Ivany provided a written response[24] and supporting materials[25] to the Department, stating that:
(a)she and her husband retained furniture, vehicles and personal belongings in storage in Huskisson;
(b)she and her husband have not been employed and have had no income since arriving in Canada;
(c)they purchased a house in Canada for investment and residential purposes in which they will live until they return to Australia;
(d)Mr Ivany has a registered business in Australia installing workstations, with clients who look forward to his return;
(e)They are in frequent contact with real estate agents in Huskisson NSW; and
(f)public health advice is not to travel outside the country and being pregnant puts Ms Ivany at higher risk, noting her previous miscarriage.[26]
[24] T23.
[25] T24.
[26] T23, folios 137-8.
There is no evidence before the Tribunal the Minister’s Department provided a response to this information.
On 1 September 2021, Ms Ivany wrote to the Minister’s Department expressing frustration about not receiving approval for a virtual citizenship ceremony and asking: “please let me do the virtual ceremony as soon as possible so I can stop stressing about this application during the last few months of my pregnancy”.[27]
[27] T25.
On the materials given to the Tribunal, it appears the Minister’s department did not respond to this request.
On 21 January 2022, Mr Ivany’s Australian business registration was cancelled.[28]
[28] Exhibit 3.
On 16 March 2022, Ms Ivany wrote to the Minister’s Department, providing information about the birth of her son and making a further request for a virtual citizenship ceremony.[29]
[29] T26, folios 155-7.
On 9 May 2023, the Minister’s Department wrote to Ms Ivany seeking additional information:
Evidence of the applicants intended date of return to Australia
Confirm the applicant’s return date to Australia with evidence of travel itinerary or return tickets. We are prohibited under subsection 24(5) of the [Act] to approve an application where the applicant is outside Australia. …
If the Applicant cannot return to Australia, let us know why with supporting evidence.
If the applicant does not know their return date or intends to continue to be outside Australia, their application may be approved if they can show they satisfy one of these exemptions or special circumstances:
-    the special residence requirement, or
-    the Australian spouse, de facto partner, or surviving spouse or de facto partner discretion, or
-    the Australian interdependent relationship discretion …
…
Evidence of intention to reside or link with Australia
To be approved the Minister must be satisfied the applicant will:
-    reside, or continue to reside, in Australia, or;
-    maintain a close and continuing association with Australia
Provide a statement written by the applicant with supporting evidence to support one or both of the above points.
…[30]
[30] T27, folio 162.
On 12 June 2023, Ms Ivany provided the Minister’s Department with information and supporting materials,[31] including the Australian citizenship certificate issued on 10 May 2023 for her son[32]. She stated:
My husband and son are both Australian citizens. We intend to live and raise our son in Australia. My brother is a permanent resident of Australia, and I am very close to him, it is hard for us to be apart. Together my husband and I have family and friends in Australia, Aunts and Uncles and cousins, my husband’s godchildren as well. It hurts us to be away from them for so long but we had no choice. We are coming back to Australia as soon as possible. My husband had a successful business in Australia in which he will continue once we arrive again. We also flipped properties in Australia and we intend to continue that as well.
We intend to return to Australia as soon as possible. We had plans to arrive in Australia in May 2023 but we have to finish a project we are working on here in Canada before leaving. At this time, we do not have out flight tickets booked to Australia. We have a storage unit in Australia in which our belongings are being held there…
…
I have completed my interview and my test, my medical and everything already for my citizenship. I only need to do the ceremony. Please let me complete a virtual ceremony, so I can have this done, as it has stressed out myself and my family for over 4 years. I do not understand why it has not been approved yet as my husband of 7 years (10 years of being together) is an Australian citizen, and now my son.[33]
[31] T28.
[32] T1, folio 14.
[33] T28
On 28 November 2023, a delegate of the Minister issued a decision under s 24(1) of the Act, refusing Ms Ivany’s application for conferral of Australian citizenship on the ground that she did not meet the criteria in s 21(2)(g) of the Act.[34] The delegate stated:
[I] am not satisfied that the evidence you have provided would demonstrate that you intend to live in Australia, or that you will have close and continuing ties to Australia.
As such, I am not satisfied that your intentions to live in Australia or maintain close and continuing ties to Australia have been met.
…
I am prohibited from approving your application for conferral of citizenship if subsections 24(3), (4) (4A), (5), (6) or (7) of the Act apply to you.
Not assessed as I am not satisfied that you are likely to reside, or continue to reside in Australia, or maintain a close and continuing association with Australia.
[34] T3.
On 16 December 2023, Ms Ivany lodged an application for review of this decision by the Tribunal.[35]
[35] T1.
In the course of the Tribunal proceedings, on 18 April 2024, Ms Ivany provided further information about her relevant circumstances, including:
My Personal Timeline – Why I have Not Been Present in Australia:
1.    In February 2020, I departed Australia amidst the onset of the global COVID-19 pandemic, only to witness the nation undergo stringent lockdown measures in response to the crisis. During this period, my focus shifted as my husband and I welcomed the birth of our first child … in November 2021, a profound moment that redirected our priorities and plans.
2.    Following the easing of travel restrictions in February 2022, we eagerly began preparations to return to Australia. However, our intentions were abruptly interrupted when my husband’s father fell gravely ill with cancer in Poland. Faced with the urgent need to provide support and care, we made the difficult decision to journey to Poland in July 2022.
3.    [Mr Ivany’s] father passed away that month (July 2022). Our time in Poland was consumed by the emotional demands of organizing his funeral, settling his affairs, and navigating the intricate paperwork that followed. It was a period of profound loss and transition. We left Poland while the paperwork was not yet completed, knowing we need to return once everything was finalized.
4.    Upon our return to Canada in October 2022, we found ourselves grappling with the aftermath of our bereavement, alongside the practical challenges of resolving administrative matters, including [Mr Ivany’s] necessary surname change in Poland. These endeavours demanded considerable time and attention, delaying our plans for relocation to Australia.
5.    In July 2023, amidst our ongoing efforts to reconcile our personal affairs, we were blessed with the news of my [second] pregnancy. Determined to address outstanding obligations in Poland before arrival of our child, we returned once more in October 2023, where we diligently completed the necessary procedures, albeit amidst the joyful anticipation of impending parenthood.
6.    Our son … entered the world on 20 March 2024, completing our family.
… I assure you that our intent and desire to establish our permanent residence in Australia remain unwavering. Our investments reflect strategic financial decisions rather than indications of permanence or allegiance. While living in Australia we had purchased and sold 2 properties in Canada, and 5 properties in Australia for investments. While living in Canada we have purchased and sold 4 properties for investments. We just have not had the opportunity personally to move back to Australia due to COVID, family loss, and the birth of our children….[36]
[36] Exhibit 2.

On 4 June 2024, Ms Ivany was granted a further Resident Return (subclass 155) visa, which stipulates she must not arrive after 4 June 2025.[37]
[37] Exhibit 4.
Ms Ivany and Mr Ivany gave oral evidence and were cross-examined during the hearing of this application. They gave evidence about their intentions to:
(a)to return to Australia by February 2025— although no firm arrangements have been made;
(b)to purchase airline tickets closer to the time in order to avoid risks of flight interruptions, as occurred in the Covid-19 pandemic;
(c)to acquire suitable investment property in the Huskisson/Jervis Bay area – discussions with real estate contacts have already commenced, but property prices are high at the moment and no suitable property has yet been identified;
(d)to reside in Huskisson, New South Wales: initially in a short-term rental property after the expensive summer holiday period if no suitable investment property has been acquired; and
(e)to enrol their children in a preferred pre-school in Huskisson— although the enrolment process has not commenced (the eldest child was born in November 2021) and Ms Ivany is not aware if there are places available.
In her evidence, Ms Ivany explained she and her husband presently own two buildings in Canada through a private company from which they derive rental income. Their renovation of the buildings is complete. They have a building manager, and the buildings are tenanted. On her evidence, the buildings will either be sold as a package or retained as an investment: their return to Australia is not contingent on the sale of the buildings, as they have sufficient financial resources to return without selling them, but a sale will give them funds to make further property investments in Australia. Ms Ivany also gave evidence they own the house in which they presently reside and, when they return to Australia her mother will live in the house. Ms Ivany explained the reason for the present delay returning to Australia is that her youngest son, an infant, has a large birthmark on his forehead which requires specialist assessment following an MRI scan which has been arranged. On her evidence and the evidence of Mr Ivany they have vehicles, household items and personal effects in storage in Huskisson, including furniture and valuable items in a safe.
Issues and law
The Tribunal’s jurisdiction is conferred by s 52(1)(b) of the Citizenship Act:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a) …;
(aa) …;
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
…
(3) For the purposes of the Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):
(a) the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and
(b) the Tribunal must not review any exercise of the power or any failure to exercise the power.
Relevantly, s 24 is in the following terms:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), …[38]
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2)….
…
(5) If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
[38] Subsections 21(3), (4), (4A), (5), (6), (7) and (8) are not applicable in the circumstances of Ms Ivany’s case.
Subsection 21(2) is in the following terms:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
…
As can be seen, the Minister’s power to approve or refuse to approve a person becoming an Australian citizen under s 24(1) is subject to limits set out in s 24(1A). The Minister has no discretion to approve a person to become an Australian citizen if the Minister is not satisfied the person meets the applicable eligibility criteria. By operation of s 24(2), the Minister may refuse to grant approval under s 24(1) even if the relevant eligibility criteria are met. Where an applicant for conferral of Australian citizenship is absent from Australia, the Minister must not approve conferral unless one of the three exceptions are satisfied.
As these matters were squarely raised with Ms Ivany by the Minister’s Department in the course of assessing her application for conferral of Australian citizenship, they were before the Minister’s delegate who decided to refuse the application, and they are before the Tribunal on review of that decision. For the purposes of reviewing a refusal decision under s 24(1) of the Citizenship Act, the Tribunal may exercise all the powers and discretions conferred upon the decision maker, and it is subject to the same limits.
The Minister’s Department has promulgated policies of relevance to this review. These are set out in the Australian Citizenship Policy Statement (Policy)[39] and Citizenship Procedural Instructions (CPI).
[39] T34.
CPI11 provides a framework for “Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia”.[40]
[40] T35.
Under s 21(2)(g) and s 3.2 of CPI 11, it is clear only one arm of the alternative thresholds must be met: the decision-maker must be satisfied, if the application were to be approved, either the person is likely to reside or continue to reside in Australia, or the person is likely to maintain a close and continuing association with Australia. Section 3.1 of CPI 11 highlights the prospective nature of these considerations for the purposes of s 21(2)(g) and the retrospective nature of the consideration required for the purposes of s 22(9) in respect of a period during which the person was not present in Australia.
Section 3.2 of CPI11 sets out the following guidance:
Likely to reside or continue to reside in Australia
The words comprising the phrase ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
-    ‘likely’ as probably or apparently going or destined (to do, be, etc.) – the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
-    ‘reside’ as to dwell permanently or for a considerable time; have one’s abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
The person’s intention to reside in Australia should be investigated if the applicant has indicated they will:
-    Be outside Australia during processing of their application, for example, they have asked to take the citizenship test or pledge overseas; or
-    Reside outside Australia after obtaining citizenship, for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.
Past international movements may also indicate that a person’s intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered in the light of evidence about the person’s intended residence. If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.
Likely to maintain a close and continuing association with Australia
The words comprising the phrase ‘likely to maintain a close and continuing association with Australia’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
-    ‘maintain’ as to keep in existence or continuance; preserve; retain;
-    ‘close’ as near together, in space, time, or relation;
-    ‘continuing’ as to last or endure;
-    ‘association’ as an act of associating … connection or combination.
-    It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means the close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
Reasons for decision
There is no controversy Ms Ivany satisfies the eligibility grounds in sections 21(2)(a), (b), (c), (d), (e), (f) and (h) of the Citizenship Act. The Minister’s case was directed to the thresholds in s 21(2)(g) of the Act.
Ms Ivany has been outside Australia since she departed on 20 February 2020 with her husband for a holiday in Canada. There is no controversy during this period she has not resided or continued to reside in Australia.
Nevertheless, Ms Ivany has repeatedly and consistently stated her intention to return to and reside in Australia in her communications with the Minister’s Department and in the course of these proceedings.
She has provided cogent explanations for not returning to Australia which reflect events beyond her control, including the Covid-19 pandemic and related public health restrictions, advice and risks in respect of international travel. It is probable Ms Ivany’s perceptions of the risk of international air travel were sharpened by her decision not to obtain vaccination against the Covid-19 virus in the context of her pregnancy, and by her previous miscarriage. In all likelihood these factors and the birth of her first child changed Ms Ivany’s focus somewhat. In the circumstances, it is not surprising she and her husband sought out income generating opportunities in Canada, drawing on their experience and business model of ‘flipping properties’.
It is very clear, as the Minister submits, Ms Ivany made a choice to remain in Canada once the Covid-19 travel restrictions were lifted in 2022. The family matters which then arose in respect of Mr Ivany’s father in Poland (and matters relating to his estate and affairs), and Ms Ivany’s second pregnancy delayed her intention to return to Australia. On the oral evidence, it is also clear Mr and Ms Ivany’s property investment activities in Canada and the medical issue affecting their second child are also factors which impede their avowed intention to return to Australia.
The oral evidence given by Ms Ivany and Mr Ivany about their changed circumstances and their continuing intentions to return to and reside in Australia weighs in favour of concluding Ms Ivany is likely to return to reside in Australia. The documentary evidence in respect of family members, friends and associates in Australia, and the storage of household and personal items in storage in Huskisson, adds weight in favour of such a finding. Further weight is added by Ms Ivany paying for and being granted a further Resident Return (subclass 155) visa and the status of her husband and child as Australian citizens. Nevertheless, the absence of concrete plans and arrangements, and the choices Ms Ivany has made in response to changed circumstances, particularly after Covid-19 restrictions were lifted in 2022, are a counterweight in the balance.
On balance, it is possible, even likely, Ms Ivany will return to reside in Australia at some point of time in the future if her application for conferral of Australian citizenship is approved, although when that might occur is very unclear. On the available evidence, no real plan has crystallised, and no concrete arrangements have been made for Ms Ivany to reside in Australia. This uncertainty raises a question of satisfaction about the likelihood of her doing so. While s 21(2)(g) does not impose a temporal restriction, satisfaction requires evidence sufficient to establish Ms Ivany is likely to reside in Australia should her application be granted. The timing of Ms Ivany’s intention to return to reside in Australia appears to hinge on matters of convenience and favourable business opportunities. This does not impinge upon the likelihood of Ms Ivany residing in Australia in the future, rather it lends support to the likelihood of that eventuality in or about the early part of 2025, before the arrival limit in her current Resident Return visa is reached on 4 June 2025.
For the avoidance of any doubt, notwithstanding uncertainty about the likelihood of Ms Ivany residing in Australia, as will appear, I am satisfied Ms Ivany has maintained a close and continuing connection to Australia since departing on 20 February 2020 and she is likely to continue to do so should her application for conferral of Australian citizenship be approved.
On this point, it is necessary to consider and weigh the relevant factors.
Even though I accept the explanations Ms Ivany has given for delaying her return to Australia, these do not go to her maintenance of a close and continuing association with Australia.
The evidence given by Ms Ivany and her husband that they are able to live and conduct their property business model anywhere also does not go to Ms Ivany’s maintenance of a close and continuing association with Australia or the likelihood of this if her citizenship application were to be approved. In this context, the deregistration of Mr Ivany’s previous business and the cancellation of the business name registration in January 2022 do not go to Ms Ivany’s association with Australia. If anything is to be drawn from this eventuality, it would be that the deregistration might suggest a diminution of Mr Ivany’s association with Australia from which it could be inferred Ms Ivany’s association was also diminished, albeit vicariously. To the extent this bears on the likelihood of Ms Ivany maintaining a close and continuing association with Australia, only very slight weight can be given.
That said, during the period of their absence from Australia, I accept Mr and Ms Ivany have maintained business connections in Australia with business associates, previous clients, and employees, and in respect of real estate connections relevant to their interests in acquiring investment property opportunities in Australia, particularly in Huskisson. Even though these connections are with people in Australia, they represent and are reflections of Mr and Ms Ivany’s real estate investment business model and their prospective business interests in Australia, which are to be distinguished from Mr Ivany’s previous business in Australia installing workstations. Viewed in this context, these are matters which go to the likelihood of Ms Ivany maintaining a close and continuing association with Australia should her citizenship application be approved.
I note that the Minister’s policy as expressed in CPI 11 allows for consideration of the circumstances of every case. In the circumstances of this case, these connections weigh slightly in favour of Ms Ivany having maintained a close and continuing association with Australia and the likelihood she will do so, in prospect, if her application is approved.
Ms Ivany’s husband is an Australian citizen, as is her eldest son. Her husband was granted Australian citizenship on 10 April 2019, before she lodged her application for conferral of Australian citizenship on 21 May 2019. Her eldest son was granted Australian citizenship on 10 May 2023. Ms Ivany’s youngest son will likely be granted Australian citizenship. Ms Ivany has a brother who is a permanent resident in Australia as well as extended family members and social and business connections in Australia. Against this, Ms Ivany’s parents reside in Canada and her children are Canadian citizens by birth. These are contextual considerations which do not go directly to Ms Ivany’s maintenance of an association with Australia or the prospective likelihood of it, although they have vicarious relevance: that Ms Ivany’s immediate family, her husband, and children, will likely all be Australian citizens is an ‘association’ she has with Australia.
Ms Ivany presently has property holdings with her husband in Canada, but not in Australia. I note Ms Ivany has a superannuation account in Australia and she has retained contact with her previous employer, albeit she has no employment arrangements in Australia. On balance, in consideration of Mr and Ms Ivany’s real estate investment business model, this does not weigh for or against finding she is likely to maintain a close and continuing association with Australia if her citizenship application is granted.
The fact that Ms Ivany and her husband retain household items, personal effects, and vehicles in storage in Australia, to their continuing cost, weighs heavily in favour of their maintenance of a close and continuing association in Australia since departing in February 2020 and the likelihood that Ms Ivany will continue to maintain a close and continuing association with Australia should her citizenship application be granted.
By their own account, Mr and Ms Ivany have not made concrete plans to return to Australia in the immediate future. Their evidence suggests they expect to return around the end of 2024 or early in 2025. As I have said, the absence of a real plan and any concrete arrangements weighs against finding Ms Ivany is likely to reside in Australia in the immediate future, but this does not bear on the likelihood she will maintain a close and continuing association with Australia should her application for conferral of Australian citizenship be granted.
On balance, I am satisfied Ms Ivany has maintained a close and continuing association with Australia since departing on 20 February 2020 and she is likely to maintain such an association with Australia, prospectively, if her application for conferral of Australian citizenship is approved.
Weighing all these factors and considerations, and the thresholds set out in s 21(2)(g) of the Act, I am satisfied Ms Ivany meets the criteria in s 21(2)(g) and the eligibility criteria for conferral of Australian citizenship in s 21(2).

From this it follows the decision of the Minister’s delegate under s 24(1) of the Act to refuse to approve conferral of Australian citizenship on Ms Ivany must be set aside.
As Ms Ivany is not presently in Australia and arrangements will be required to complete her application for conferral of citizenship, the matter will be remitted to the Minister with the direction Ms Ivany satisfies the requirements of s 21(2)(g) of the Citizenship Act. Subsection 24(5) precludes final approval of her application when she is not present in Australia.
The decision in these terms was confirmed in writing on the day of the hearing, following the oral decision at the conclusion of the hearing.
At this point, it is appropriate to comment on subsequent events, albeit not part of the decision.
Ms Ivany provided the Tribunal with a written communication from the Minister’s Department (paragraph [2] above). The written communication suggests Ms Ivany is “not eligible to have Ministerial discretion - spouse applied” and “[t]herefore, we are prohibited under subsection 24(5) of the [Act] to approve [Ms Ivany’s] application” while she is outside Australia.
There are 4 observations to make about this.
Firstly, the Department’s written communication does not refer to the Tribunal’s decision in Ms Ivany’s application and the direction issued under s 43 of the AAT Act. The communication does not, in terms, present as a decision, rather it provides information about the bar in s 24(5) of the Citizenship Act on approving an application for citizenship while the person is not in Australia, and it seeks further information from Ms Ivany.
Secondly, the reference to ‘Ministerial discretion – spouse’ is not explained. It is possible this refers to the discretion in s 22(9) of the Act for the purposes of s 24(5)(b). If that is correct, the bar on approving conferral of Australian citizenship on Ms Ivany will hold while she is outside Australia. The discretion conferred by s 22(9) is for the purposes of the ‘general residence requirement’ in s 22,[41] and it is not available in the circumstances of Ms Ivany’s case.
[41] Minister for Immigration & Border Protection v Han [2015] FCAFC 79 at [51] and [54].
Thirdly, the proposition the Minister’s Department does not have the “legal capacity to defer making a decision on an application and cannot postpone finalising an application indefinitely” is not explained. Ms Ivany’s application was lodged in 2019 and it was not decided by the Minister’s delegate until November 2023. Ms Ivany has given sworn evidence, which is corroborated by the evidence of Mr Ivany, that she intends to return to Australia in or before February 2025. In this context, while one can understand the request for Ms Ivany to provide information about her travel itinerary or tickets to return to Australia, the asserted lack of legal capacity lacks explication.
Lastly, in consideration of the long history of this application and the particular circumstances which have arisen, and Ms Ivany’s evidence of the timeframe for her return to Australia, some further latitude might be appropriate. The Tribunal’s decision resolves the question of Ms Ivany’s eligibility for conferral of Australian citizenship, but final approval of her application is only possible when she is present in Australia and, for that reason, it was necessary to remit the application to the Minister. The extent of any further latitude is a matter for the Minister, not the Tribunal.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

.....................[sgd]...................................................
Associate
Dated: 15 July 2024

Date(s) of hearing: 27 June 2024

Applicant: In person (by Video)

Solicitors for the Respondent: Ms L Butterfield, MinterEllison

[2024] AATA 2422

27 June 2024

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Jurisdiction

Date(s) of hearing:	27 June 2024
Applicant:	In person (by Video)
Solicitors for the Respondent:	Ms L Butterfield, MinterEllison