Judd and Minister for Immigration and Border Protection (Citizenship)

Judd and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 239 (28 February 2017)
Division:GENERAL DIVISION
File Number: 2016/1776
Re:Jasper Judd
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:28 February 2017
Place:Sydney

The decision under review is affirmed.
................[sgd]........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – general residence requirements – ministerial discretion where general residence requirements not met – close and continuing association with Australia – family connection – return visits – intention to reside in Australia – assets remaining in Australia – community participation – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 20, 21(1)-(2), 22(1)-(9)
CASES
Drake v MIEA (1979) 24 ALR 577
Hneidi v MIAC (2010) 182 FCR 115; 265 ALR 292; 114 ALDR 26; [2010] FCAFC 20
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Legislative instrument IMMI 13/056
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
28 February 2017

The applicant seeks to have set aside the decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) dated 16 November 2015 to refuse the Applicant’s application to become an Australian citizen by conferral and to substitute for that a decision that his application to become an Australian citizen is approved.
THE LAW
Section 20 of the Australian Citizenship Act 2007 (Cth) (the Act) provides:
A person becomes an Australian citizen under this Subdivision if:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen – the person makes that pledge.
Section 21(1) permits a person to make an application to the Minister to become an Australian citizen. Section 21(2)-(8) sets out alternative eligibility requirements depending on the circumstances of the applicant.
Section 21(2) sets out the general eligibility requirements. The relevant criteria in this case are 21(2)(c) and (g), being the criteria that the Delegate concluded the Applicant failed to meet:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:...
(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...
(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...
Section 22(1) sets out the general residence requirement as follows:
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.
It is not in dispute that the applicant does not satisfy s 22(1)(a) or (c) of the Act. There was no issue that he does satisfy s 22(1)(b). The applicant was granted permanent residency on 6 July 2007. The applicant left Australia with his wife and children on 2 January 2013. He did not return to Australia until July 2016. The applicant applied to become an Australian citizen on 29 June 2015. He was not present in Australia for the period of four years immediately before the day he made the application as required by s 22(1)(a) (the four year period). He was physically present in Australia for a total of 482 days in that period and absent for 979 days. He was not present in Australia as a permanent resident for the period of 12 months immediately before the day he made the application as required by s 22(1)(c).
Section 22(4A) to (11) set out a number of circumstances in which the Minister has discretion to deem an applicant to be within Australia. Relevantly, section 22(9) provides:
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 applicant’s spouse was an Australian citizen during the four year period. He satisfies s 22(9)(a). He also satisfies s 22(9)(b) and (c).
The first issue for the Tribunal to determine is whether it should exercise the discretion pursuant to s 22(9)(d), to deem the applicant to have been in Australia for the four years immediately before the day he applied for citizenship and as a permanent resident during the 12 months immediately before he applied. The applicant was a permanent resident throughout the four year period. In this case it is not necessary to consider the four year period and the one year period separately. The question to determine is whether the Tribunal is satisfied that the applicant had a close and continuing association with Australia during the four year period.
The Australian Citizenship Policy (Policy) set out the relevant policy guidelines. The current policy is dated 1 June 2016.
It is well established that where the Tribunal is not under a statutory duty to regard itself as bound by the policy, the policy is a relevant consideration, although a decision maker must be careful to focus on the statutory criteria and not abdicate his or her statutory duty.[1]
[1] Hneidi v MIAC (2010) 182 FCR 115; 265 ALR 292; 114 ALD 26; [2010] FCAFC 20; Drake v MIEA (1979) 24 ALR 577
Relevantly, the Policy provides:
Ministerial discretion - Spouses and de facto partners (s22(9) and s22(10))
…
Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
·the applicant was the spouse or de facto partner of a person who was an Australian citizen and
·the applicant was a permanent resident and
·the applicant had a close and continuing association with Australia.
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
·evidence that the person migrated to and established a home in Australia prior to the period overseas
·Australian citizen children
·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 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 s22(9)(d) 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.
In relation to section 21(2)(g), the Policy provides:
Likely to reside, or continue to reside in Australia
Intention to reside should be investigated further in situations where:
·the applicant has spent significant periods outside of Australia since becoming a permanent resident or
·has requested a citizenship test or citizenship ceremony be conducted overseas.
If a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia.
Officers should note that the applicant must meet either likely to reside, or continue to reside, in Australia OR maintain a close and continuing association with Australia, not both, to meet requirements of this provision.
Maintain a close and continuing association with Australia
Factors that may contribute to a close and continuing association with Australia include:
·Australian citizen spouse or de facto partner
·Australian citizen children
·length of relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·return visits to Australia
·periods of residence in Australia
·intention to reside in Australia
·employment in Australia (for example, public or private sector)
·ownership of property in Australia and
·evidence of income tax payment in Australia
If the Tribunal decides to exercise its discretion in accordance with s 22(9)(d) and deems the applicant to have been within Australia during the four year period and as a permanent resident during the 12 months period, and therefore satisfies s 22(1)(a) and (c), it then has to consider whether the applicant satisfies either limb of s 21(2)(g) of the Act.
BACKGROUND
The following material provides a context for the consideration of the issues. These facts are largely taken from an affidavit of the Applicant dated 20 July 2016.
The Applicant, his wife and four children were born in the UK. The Applicant graduated with an Honours Masters degree from Cambridge University and is a member of the Institute of Chartered Accountants in England and Wales. He held various accounting and finance positions across a number of organisations between September 1983 and February 2002.
In February 2002, he commenced employment with the British division of an ASX listed company as the General Manager for Finance and Administration (with responsibility for the central finance and treasury in the Northern Hemisphere).
On 22 March 2002, the Applicant entered Australia for five days with a Subclass 956 Electronic Travel Authority (Business Entrant - Long Validity).
In 2003 the applicant purchased an investment property in London.
In March 2003, the Applicant was promoted to the position of Chief Financial Officer (CFO) of a European based division of the company. Between 20 and 23 May 2003, he travelled to Australia again.
On 19 August 2003, the Applicant and his family were granted Subclass 457 Business (Long Stay) visas valid until 19 August 2007. In September 2003, the Applicant was promoted to Group Financial Controller, which had been contingent upon him obtaining the Subclass 457 visa.
On 16 September 2003, the Applicant entered Australia on his Subclass 457 visa.
Upon arrival, the Applicant rented an apartment, purchased a car, and opened a bank account with the Commonwealth Bank of Australia (CBA), which he maintains. In November 2003, the Applicant leased a house.
On 16 December 2003, the Applicant’s family moved to Australia. His children started attending school in Australia and became involved in local sporting and extracurricular activities. The Applicant was involved with his children’s activities where possible, and also made friends while interacting with other parents at sporting and social events. He made a number of overseas trips for his work.
In 2005 the applicant purchased a ski lodge in the French Alps.
In November 2006, his family moved to a new house in Australia.
In January 2007, the Applicant was offered the permanent role of CFO for the European based division of the company. The Applicant considered the offer carefully, but ultimately decided to turn it down. In doing so, an important consideration was that his children and family had settled within the Australian community and he and his wife wanted to make Australia their permanent home.
Following his rejection of the promotion, the Applicant took steps to convert his status from a temporary resident to a permanent one, despite the detrimental impact this had on his compensation package and tax status. That involved the Applicant, on 27 April 2007, applying for a Subclass 856 Employer Nomination Scheme visa.
In June 2007, the Applicant transferred his entire UK pension held across 3 accounts, totalling AUD$339,912.35 into an Australian superannuation account. He also made a non-concessional contribution of AUD$600,000 into his Australian superannuation fund.
On 6 July 2007, the Applicant and his family became permanent residents of Australia upon being granted Subclass 856 visas. The company then started making superannuation contributions into a company superannuation account that was managed by the same funds manager as the applicant’s personal superannuation account.
On 18 July 2007, the Applicant purchased his family’s first home in Australia for $3,175,000.
In August 2007, the Applicant was promoted to Acting Group CFO, an Executive Committee member position in which he had responsibilities for leading the business globally together with seven to nine other people. In February 2008, he became the head of Strategy and in March 2010 became the Head of Innovation. As a consequence of his role, the applicant was required to travel extensively (between 3-6 months a year).
In August 2008, the Applicant transferred his personal superannuation funds to a self-managed superannuation fund (SMSF).
During their time in Australia, the applicant’s wife was heavily involved with charities including in particular Stewart House and Bear Cottage. They both financially supported the Juvenile Diabetes Research Foundation, including raising $10,427 in donations in April 2009 and $7,573 in February 2011.
In November 2009, the Applicant’s wife and 4 children applied for citizenship which was granted by conferral on 24 June 2010. The Applicant did not apply because he did not meet the "general residence requirement”. At that time, “an Executive Manager of an S&P/ASX All Australian 200 listed company" was not prescribed in the relevant instrument for the purposes of section 22B (which waived the general residence requirement for such persons if their work required them to travel extensively).[2]
[2] This was introduced via legislative instrument IMMI 13/056 dated 29 May 2013: see schedule C item 1(e).
In 2011, after a three year wait, the Applicant was accepted into the Australian Club. He involved himself in club activities and he has continued to maintain his membership and pay his annual fees.
Towards late 2011, the applicant said that he anticipated being made redundant by the company and planned, together with his wife, to temporarily return to the UK because their parents were becoming quite elderly and required care.
In February 2012, he was made redundant from the company. He had accrued share rights as an employee. He held the shares as they vested in the two-and-a-half year period that followed his redundancy. The proceeds of the vested shares (approximately $1.1 million) were then invested in his Australian superannuation fund. The applicant claims those funds are for his retirement in Australia.
In February 2012, the Applicant enrolled in a Diploma in Fine Arts with the Julian Ashton Art School in Sydney. He completed the diploma in December 2012 and has since maintained a secondary career as a portrait artist. He said that he keeps a close eye on the Archibald Prize held by the Art Gallery of New South Wales.
The Applicant also involved himself regularly at a tennis club near his home in Sydney.
On 21 May 2012, the Applicant was issued with a tax assessment for the 2010/2011 financial year. The Applicant paid $410,842.90 in tax for that year.
In October 2012, the Applicant and his wife sold their Sydney property so that they could purchase a property in the UK. The applicant claims that they decided to leave their other Australian assets (such as the superannuation) in Australia to fund their accommodation and living upon their return. He said that they decided that when they returned, they would also sell their UK property and return the funds to Australia at that point. The Applicant then arranged for his superannuation to be managed by a funds manager. He discussed the fund quarterly with an advisor.
On 31 October 2012, the Applicant was granted a Subclass 155 Five Year Resident Return visa, which was valid until 31 October 2017.
On 2 January 2013, the Applicant and his wife and family returned to the UK as planned. Sometime after moving the applicant purchased a home in the UK.
In April 2013, the Applicant filed his UK tax return which indicated that he was domiciled outside of the UK since the date of his permanent residency in Australia. He did the same on 6 April 2014 and 6 April 2015 as well.
On 15 April 2013, the Applicant created a new superannuation account in Australia and transferred his superannuation funds into it.
On 24 May 2013, the Applicant was issued with a notice of assessment for the 2011/2012 financial year, and the Applicant paid $1,326,919.15 to the ATO in tax. In that financial year, the Applicant also made charitable contributions totalling $48,906 to Australian charities.
On 3 February 2014, the Applicant confirmed to his solicitors that he was domiciled in Australia and intended to return in June 2019 when his youngest daughter finished her secondary education. His Australian assets comprised superannuation of AUD$1.5M and cash/cash equivalents of $1.1M.
On 11 February 2014, the Applicant was issued a notice of assessment by the ATO for the 2012/2013 financial year. The Applicant paid $41,860.87 in tax.
On 25 March 2014, the Applicant made a non-concessional contribution of $150,000 into his Australian superannuation account. He had told his financial planner that he was planning to return to Australia in the future.
On 21 May 2015, the Applicant was issued a notice of withholding tax by the ATO for the 2013/2014 financial year, and the Applicant paid $1,507.25 in tax. He had earned interest from term deposits with CBA and dividend income from his company shares.
On 28 May 2015, the Applicant received a valuation report from his super fund valuing his superannuation portfolio at $1,925,304.51.
The applicant and his family returned to Australia on 5 July 2016. He travelled to Fiji for a family holiday and returned to Australia on 18 July 2016. The applicant’s daughter who has finished high school is remaining in Australia, staying with friends, for a gap year.
CONSIDERATION
Is the Tribunal satisfied that the applicant had a close and continuing association with Australia during the four year period?

The factors set out in the Policy are not comprehensive but are a useful starting point for considering whether the applicant had a close and continuing association with Australia during the four year period. It is appropriate to consider all the factors listed, including those the applicant does not satisfy. The consideration is limited to the four year period unless otherwise stated.
The applicant was in Australia for 482 days as a permanent resident within the four year period, before he left Australia in January 2013. Being longer than the 356 days and 90 days specified in the Policy, more weight should be given to the factors listed in the Policy than if he had been present for lesser periods.
The applicant migrated to and established a home in Australia from the end of 2003. He purchased a home in 2007 for $3,175,000 which he sold before departing in January 2013. He has four Australian citizen children who left Australia in January 2013. He has a long term relationship with his Australian citizen spouse whom he married in 1991. She became an Australian citizen in November 2009.
The applicant’s family was in Australia from 16 December 2003 until 2 January 2013. He has no other family in Australia. He has not made regular return visits to Australia since leaving on 2 January 2013. He returned in July 2016 with some family members, which the Tribunal finds was primarily because of the Tribunal hearing. He resided in Australia before 2 January 2013.
The applicant stated that he intends to reside in Australia after his daughter finishes her secondary education in 2019, “sometime in about 2020”, and described what he and his wife proposed to do when they return.
The applicant’s four children have continued their education in the UK. At the time of the hearing, the eldest child was about to start full-time work in London, having completed university. The third child was in Australia for a gap year, awaiting her A level results. She had applied to university in the UK and “may” apply in Australia. The applicant said that he and his wife had talked about their children not coming to Australia. The applicant and his wife did not consider it their job to hold them back once they leave their full-time education. What the children will do is difficult to predict, but the applicant said that he has the firm intention to return here.
The respondent accepted that the applicant’s stated intention was to return to Australia.
The applicant pointed to several aspects of his conduct, before and after departing Australia in 2013, which he claims are consistent with that intention:
·He had transferred his UK pension, bought a home, moved his family and “developed deep connections” with the Australian community.
·He turned down a promotion that would have required him to leave Australia.
·He has maintained that he is a permanent resident despite negative tax consequences.
·He and his wife wanted to return to the UK temporarily to look after their elderly parents.
·The applicant left Australia on a resident return visa and has stated in his UK tax returns that he is domiciled outside the UK.
·He has several bank accounts and a substantial superannuation account in Australia. He has contributed to the superannuation account since departing Australia in 2013. He will use those funds when he “retires” in Australia.
·He has maintained his membership of the Australian Club “which only makes sense if his absence was only intended to be temporary”.
The Tribunal gives little weight to the applicant’s transferring his UK pension fund and refusing the position in 2007. Those were decisions he made when he was forging a career with the company in Australia. His circumstances changed. He was made redundant and decided to return to the UK. He has been establishing a new business career in the UK since he returned.
The following findings are based on the applicant’s written evidence. He founded and became CEO of a strategic management consultancy company in February 2014. In around January 2015, he became a non-executive chairman of a company that produces group art prints and museum products. Around the same time, he was appointed a non-executive director and chairman of a London Stock Exchange (LSE) listed company with net assets of over 600 million pounds. In February 2016, the applicant was appointed a non-executive director of a LSE listed company with net assets of over 400 million pounds.
The applicant claimed that the 2013 move was a temporary move, prompted by the need to care for his and his wife’s aging parents. His evidence was that his wife said that it would be best to stay in the UK until their youngest child completed her secondary studies.
The applicant said at the hearing that one reason they went back in 2013 was that they had two children in school and it was difficult to spend time in the UK with his mother and his in-laws. Once all the children have left school, he and his wife will have more flexibility.
The Tribunal found the obvious concern that the applicant and his wife had about their parents’ welfare which caused them to move back to the UK in 2013 is inconsistent with the applicant’s evidence about their parents’ current situation. In his affidavit he stated the following. His mother now has 24 hour care and his in-laws are relatively self-sufficient. He and his wife have spent quite a bit of time with their parents, and assuming that their parents are alive when they return to Australia, they will make regular visits to the UK “to stay in contact with them”.
The Tribunal takes into account that the applicant has maintained that he is a permanent resident despite negative tax consequences and stated in his UK tax returns that he is domiciled outside of the UK. That evidence was not challenged. The applicant has a subclass 155 five year resident return visa which is valid until 31 October 2017. Given the expense and effort the applicant has made pursuing his application for citizenship, the Tribunal accepts that the applicant would not do anything to jeopardise maintaining whatever migration right he has to Australia. Declaring that he was a resident of the UK in his UK tax returns may not have assisted that objective.
The strongest link the applicant has with Australia since leaving in January 2013 is his financial link – his superannuation and bank accounts. He said that he had not sort advice about its portability outside Australia, he did not know whether he would lose benefits if he moved it, or whether he could access the funds anywhere in the world after the account reaches pension phase, or the implications of accessing funds held overseas. The Tribunal did not find his claimed lack of knowledge about his superannuation fund, to be persuasive.
The applicant has significant wealth in the UK, France and Australia. The Tribunal does not accept that a person of his wealth, qualifications, and experience in finance would not have a detailed knowledge of what he could or could not do with his Australian superannuation funds. He has regular discussions with a financial planner. He has made decisions in the past to move his funds.
The Tribunal finds that the applicant was conscious that his case was stronger if his funds in Australia were not readily available to him outside Australia.
The applicant’s legal representative said during submissions that the applicant could access his superannuation funds on reaching preservation age in November 2016. The legal representative submitted that the applicant will leave the money in Australia until he retires and returns to Australia.
The applicant did say that he knew that he could transfer money from bank accounts held in Australia to UK accounts without difficulty. That would apply to his Australian bank accounts, subject to the terms and conditions applying to those accounts.
The Tribunal accepts that the applicant has retained and added to his superannuation fund and bank accounts in Australia which is consistent with being able to access and use the funds when he is in Australia or making payments overseas in Australian dollars, subject to the funds being available at the time.
The applicant has not been on leave from employment in Australia while accompanying his spouse overseas.
The applicant owns no real property in Australia, having sold the family home in October 2012 before departing.
The applicant has paid income tax in Australia as set out earlier in this decision. The amount has decreased significantly in recent years, consistent with the applicant no longer living and working in this country.
The applicant was active in the Australian Club after he became a member in 2011 until he departed Australia in January 2013, and maintains his membership. He was active in a tennis club which was near his home. He completed a diploma in fine arts. He contributed to and raised funds for a charity.
The only continuing link from those activities since January 2013 is his membership of the Australian Club. The respondent submitted that because of the exclusiveness of the Australian Club, apparent from the fact that the applicant was on the waiting list for three years, it is not a community based organisation. No supporting analysis of what was meant by that phrase was provided. In the absence of argument and in the context of this case, it is unnecessary to consider that submission.
The list of considerations set out in the Policy is not comprehensive. The Tribunal is not limited to those matters listed. The Australian Club is a private club in Australia. The Tribunal considers that membership and activities undertaken as a member are relevant to its consideration. It is however not a matter to which the Tribunal gives significant weight given the lapse of time since the applicant was actively involved and it is not apparent that the activities benefited anyone beyond the members of the club.
For the same reason, the Tribunal takes into account that the applicant completed a Fine Arts Diploma in Australia and does not need to consider the respondent’s submission that it does not indicate active participation in the Australian community. At the least, it demonstrates participation in the arts community in Australia, although the benefit may have been limited to the applicant. The Tribunal gives little weight to the applicant’s ongoing interest while overseas in the Archibald Prize.
The Tribunal accepts that the applicant has Australian friends whom he met while living in Australia, including several who visited him at his homes in the UK and France, and who he has seen in London. The respondent submitted that a close relationship with Australians does not equate to a close relationship with Australia. The Tribunal considers that those ongoing friendships have some relevance to its consideration but does not give significant weight to them.
The Tribunal considers that it is significant that the applicant was working for the company and based in Australia until February 2012, that is for several months within the four year period.
The applicant referred to instrument IMMI 13/056 and argued that if that had been in force when the applicant’s wife and children obtained their citizenship, he would have met the “special residence requirement” and been able to become a citizen. The applicant argued that that instrument demonstrated legislative recognition that Executive Managers of ASX200 companies have travel commitments that require them to frequently travel outside Australia.
The Tribunal does not consider that IMMI 13/056 assists in determining whether to exercise the discretion “to treat a period as one in which the person was present in Australia as a permanent resident”. The Tribunal is considering the application made in June 2015 and whether the applicant had a close and continuing association with Australia during the four year period before the application was made. It is unfortunate for the applicant that the relevant provision was not in force while he could benefit from it.
Is the Tribunal satisfied that the Applicant is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved?
The Tribunal does not accept that the matter of their parents’ circumstances will not be a very important, if not decisive, consideration in any future decision the applicant and his wife make about moving to Australia. While the applicant said that his firm intention is to move to Australia “in about 2020” after their youngest daughter finishes her secondary studies in June 2019, any decision to move will depend on the circumstances he then faces, including the circumstances of his mother and his in-laws. The Tribunal finds that the applicant down played the significance of those circumstances because they do not assist his claim that he has a firm intention to return at a specified time.
The applicant has also established a significant business career in the UK since his return, including non-executive directorships of two LSE listed companies. He said that he would seek some directorships when he returned to Australia.
On the evidence before it, the Tribunal is not satisfied that the applicant is likely to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved. His personal and business links with the UK are significant. Whether he will wish to return to Australia “in about 2020” will depend on the circumstances he faces at that time.
CONCLUSION
The Tribunal accepts that the applicant had a close association with Australia from 29 June 2011 until he left in January 2013. However, he was absent from Australia entirely from 2 January 2013 until the end of the four year period, almost two and a half years. He provided no explanation for that absence. The Tribunal accepts that he was establishing a new business career in the UK, and his family, including his elderly mother and his wife’s elderly parents were there. He did travel to his home in France during that period. Those matters do not demonstrate a close and continuing association with Australia.
Taking into account all the matters discussed above, and giving more weight to the listed factors because the applicant was lawfully and physically present in Australia for more than 356 days in that period as a permanent resident, the Tribunal does not accept that the applicant had a close and continuing relationship with Australia during the four year period such that the Tribunal should treat the period of the applicant’s absence from Australia as one in which he was present as a permanent resident.
The applicant does not satisfy the general residence requirements in s 22(1)(a) and (c).
For the above reasons, the decision under review is affirmed.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.......................[sgd].................................................
Associate
Dated: 28 February 2017

Date of hearing: 17 August 2017

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Mr J Tew; Fragomen

Counsel for the Respondent: Mr A Markus

Solicitors for the Respondent: Mr D Erbel; Australian Government Solicitor

[2017] AATA 239

28 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Jurisdiction

Date of hearing:	17 August 2017
Counsel for the Applicant:	Mr P Reynolds
Solicitors for the Applicant:	Mr J Tew; Fragomen
Counsel for the Respondent:	Mr A Markus
Solicitors for the Respondent:	Mr D Erbel; Australian Government Solicitor