Khan and Minister for Home Affairs (Citizenship)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse the Applicant's application for Australian citizenship by conferral. The refusal was based on the Applicant's failure to meet the general residence requirements stipulated in section 22 of the *Australian Citizenship Act 2007* (Cth). The Applicant, a Pakistani citizen and orthopaedic surgeon, had been a permanent resident in Australia since 2014, but had spent significant periods working in Malaysia on a "fly in and fly out" basis, leading to extended absences from Australia.

The primary legal issue before the Tribunal was whether the Applicant satisfied the general residence requirements for Australian citizenship by conferral. Specifically, the Tribunal had to determine if the Applicant's absences from Australia complied with the limitations set out in section 22(1)(a) and section 22(1)(c) of the *Australian Citizenship Act 2007*. These provisions require an applicant to have been absent from Australia for no more than 12 months in the four years immediately preceding the application, and no more than 90 days in the 12 months immediately preceding the application. The Tribunal also considered the potential application of section 22(9), which allows for Ministerial discretion to treat periods of absence as periods of presence in Australia for spouses, de facto partners, or surviving spouses or de facto partners of Australian citizens, provided certain conditions are met.

The Tribunal reasoned that the Applicant did not satisfy the general residence requirements. Departure and arrival records confirmed the Applicant was absent from Australia for a total of 944 days in the four years prior to his application, exceeding the 12-month limit under section 22(1)(a). Furthermore, his absence of 256 days in the 12 months immediately before his application exceeded the 90-day limit under section 22(1)(c). The Tribunal noted that residency is of paramount importance in determining citizenship applications, as evidenced by the Explanatory Memorandum to the *Australian Citizenship Bill 2005*, which emphasises the need for applicants to have spent a reasonable period living in Australia to understand its way of life and the commitment of citizenship. While the Applicant's wife and children were Australian citizens, and he had a close association with Australia, the Tribunal found that the statutory requirements for absence were not met, and therefore the discretionary power under section 22(9) was not engaged in this instance as the primary residence requirements were not satisfied. The Tribunal affirmed the decision of the delegate to refuse the application for citizenship.