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

[2025] ARTA 1337

Manase and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2025] ARTA 1337 (8 August 2025)

Applicant/s:  Salina Ane Lepeka Manase

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2024/5588

Tribunal:Senior Member S. Webb

Place:Canberra

Date:8 August 2025

Decision:The decision under review is set aside and the application is remitted to the Minister for reconsideration with the direction the Tribunal is satisfied Ms Manase meets the eligibility threshold in s 21(2)(g) of the Australian Citizenship Act 2007.

Statement made on 08 August 2025 at 5:45pm

Catchwords

AUSTRALIAN CITIZENSHIP – application for conferral – permanent resident in Australia from childhood – marriage to non-citizen in Australia – removal of husband to New Zealand – relocation of family – no pathway for husband to return to Australia – applicant unlikely to reside in Australia – likelihood of maintaining a ‘close and continuing association with Australia’ – weight of relevant prospective considerations – decision set aside

Legislation

Australian Citizenship Act 2007 (Cth), ss 21, 24

Cases

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] 3245
Hamad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833
Judd v Minister for Immigration and Border Protection [2017] FCA 827

Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50

Secondary Materials

CitizenshipProcedural Instructions – CPI 11: Assessing likelihood to reside, or continue to reside in, or maintain a close and continuing association with Australia

Statement of Reasons

1. This application is for review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse Salina Manase’s application for conferral of Australian citizenship. The application was refused as the delegate was not satisfied that she is likely to reside in, or to continue to reside in Australia, or to maintain a close and continuing association with Australia. Ms Manase cavils with this conclusion.

2. Ms Manase was 2 years old when she first arrived in Australia with her family on 2 July 1991 under a Preferential Family (subclass 104) permanent visa.[1] She is a Tongan citizen.[2] Presently, she holds a 5-Year Resident Return (subclass BB155) visa, granted on 13 October 2020.[3] She has 3 siblings who are Australian citizens and a large extended family, including aunts, uncles, nieces, nephews and cousins who reside in Australia. Members of her family are buried in Canberra.

   [1] Exhibit 1, T2, 13.

   [2] Ibid, T4, 53.

   [3] Exhibit 6, TB1(a).

3. Ms Manase spent her childhood in Canberra, where she attended school. On leaving school she obtained employment in Canberra. She was employed by Telstra for 13 years, from 2005 to 2018 when her position was made redundant. She was involved in the Polynesian community and in Uniting Church activities, and she has a social network of friends and associates in Australia.

4. In 2013, Ms Manase married a non-citizen who was residing in Australia. Her husband is a citizen of New Zealand. Ms Manase and her husband have 4 school-age children who were born in Australia and are Australian citizens.[4]

   [4] Exhibit 1, T3, 26-29.

5. Despite short periods in which she was absent from Australia (including three short visits to New Zealand “to visit family” in 2015, 2018 and 2019),[5] she resided in Canberra until 18 October 2020, when she departed for New Zealand.[6] The family members Ms Manase visited in New Zealand have not been identified.

   [5] Ibid, T3, 38.

   [6] Exhibit 6, TB2(a), 4.

6. Subsequently, Ms Manase returned to Australia for brief periods on 3 occasions:

   (a)5 September 2023 to 23 September 2023 (for a family funeral);

   (b)28 November 2023 to 1 December 2023 (to sit the Australian citizenship test); and

   (c)23 January 2025 to 14 February 2025 (on the death of a family member).[7]

   [7] Ibid, 3.

7. By her own account, Ms Manase’s circumstances changed after she applied for conferral of Australian citizenship on 10 June 2020.[8] Ms Manase explained she had no intention of leaving Australia at that time.

   [8] Exhibit 1, T3.

8. On 26 August 2020, her husband was returned to New Zealand following cancellation of his Special Category 444 visa under s 501(3A) of the Migration Act 1958 (Cth)).[9]

   [9] Exhibit 6, TB1(b) and TB2(f).

9. Ms Manase explained her husband’s departure from Australia was difficult: she did not want to leave her home in Australia, but she wanted to keep her family together. On her evidence, she considered it was in her children’s best interests to reunite the family and join her husband in New Zealand. Her evidence on this point was not challenged. I accept she was reluctant to move to New Zealand and only did so on the expectation her husband would be allowed to return to Australia in 3 to 5 years and the move would be temporary.

10. Ms Manase retains a bank account and Telstra shares in Australia, but she retains no other assets in Australia. Her personal possessions have been either transported to New Zealand or gifted to family members in Australia. She held an Australian Capital Territory driver’s licence[10] and, on 13 August 2021, she was issued a New Zealand driver’s licence.[11]

    [10] Exhibit 1, T4, 50.

    [11] Ibid, 48-49.

11. On 2 January 2024, 21 February 2024 and 21 March 2024, Ms Manase was invited to provide further information to the Minister’s Department in support of her application, including evidence of her intended return to Australia.[12] On 11 April 2024, Ms Manase provided an itinerary for a flight to Australia on 7 July 2024.[13] She did not board this flight and return to Australia at that time. On 23 January 2025, Ms Manase travelled to Australia following the death of her father-in-law. She returned to New Zealand on 14 February 2025.

    [12] Ibid, T10, T13, T15.

    [13] Ibid, T14.

12. On 31 January 2025, Ms Manase made the following statutory declaration:

    I declare that I will be move moving from New Zealand and residing at … Evatt [in the Australian Capital Territory] from the 28^th April 2025.

13. On 5 February 2025, she met with a Deputy Principal of a secondary school to discuss enrolment of her two oldest children.[14] She provided the Tribunal with documentation of offers of enrolment for each of her children in ACT primary and secondary schools in the 2025 school year.[15] The children did not take up the offers of enrolment. On Ms Manase’s evidence, her children continue to attend schools in New Zealand.

    [14] Exhibit 5.

    [15] Ibid.

14. Ms Manase gave evidence that her husband was advised earlier this year that there is no viable pathway for him to obtain a visa to returned to Australia. She explained that, consequently, as she does not want to separate her children from their father and break up the family, there is no real prospect of her family returning to live in Australia in the near future. This is despite her avowed desire and her intention to do so as soon as possible. Her extended family members reside in Australia, and she has no other family in New Zealand. She explained she and her husband do not associate with members of his extended family who reside in different parts of New Zealand.

15. I accept this is a difficult issue for Ms Manase: she is in a cleft stick.

16. On the one hand, the strength of her continuing ties with family members and a social network of friends in Australia, and her desire to return, can readily be accepted. This is amply demonstrated by Ms Manase’s evidence during the hearing, which was emotional at times, and by the letters of support from family members, friends and associates in Exhibit 3. She explained that she considers Australia, and Canberra in particular, to be her home and her country: it is the place of her childhood, where she went to school, grew up and worked for many years. I accept she sees herself as Australian and describes herself as ‘an Aussie’ temporarily living in New Zealand.

17. On the other hand, the strength of Ms Manase’s commitment to her immediate family and keeping the family together can readily be accepted. This is consistent with her decision to follow her husband to New Zealand even though, on her evidence, she was reluctant to leave Australia. She described positive relationships between her children and their father which she is not prepared to break by returning to Australia with her children but without her husband.

18. Ms Manase’s application for conferral of Australian citizenship is to be determined under the general eligibility criteria set out in s 21(2) the Australian Citizenship Act 2007 (Cth):

    General eligibility

    (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.

19. The Minister contends Ms Manase satisfies the criteria in ss 21(2)(a)-(f), but the requirement in s 21(2)(g) is not met. In the Minister’s submission, in the particular circumstances of her case, it is unlikely Ms Manase will reside in Australia and, on the available evidence, she is unlikely to maintain a close and continuing association with Australia. The Minister asserts the letters of support on which Ms Manase relies, are evidence of her connection with Australians, but these do not show that she is likely to reside in Australia or to maintain a close and continuing association with Australia.

20. As can be seen, s 21(2)(g) is comprised of 3 limbs which are not conjunctive. In order for Ms Manase to satisfy the requirement in s 21(2)(g), it is necessary for only one limb to be met. The first two limbs relate to the prospective likelihood of Ms Manase residing in Australia. The third limb relates to the likelihood of her maintaining a close and continuing association with Australia.

21. The Minister’s Department has promulgated policies of relevance to this review. These are set out in the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPI).

22. The CPI policy lacks the force of legislation. Nevertheless, as has often been accepted, in the matrix of relevant considerations in the particular case, the Tribunal may have regard to the policy and, without being bound, may adopt it unless there is a good reason not to do so.[16]

    [16] Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50, [54]; GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] 3245 (GJDB), [19]-[23], citing Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

23. CPI11 provides a framework for “Assessing likelihood to reside, or continue to reside in, or maintain a close and continuing associationwith Australia”.[17]

    [17] Exhibit 1, T20, 108.

24. The lead cases addressing the interpretation of this phrase turn on construction of the ministerial discretion in s 22(9) of the Act. In Judd v Minister for Immigration and Border Protection[18] (Judd), Perry J said:

    The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated. While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”. [Citations removed.]

    [18] [2017] FCA 827, [14].

25. Abraham J returned to this issue in Hamad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] and said:

    The purpose of s 22(9) is to enliven a discretion to treat a period of time when an applicant for citizenship is outside of Australia as time spent in Australia, in circumstances where a decision-maker is satisfied as a matter of fact that such an association has been established. Given the requirements for citizenship, the Citizenship Act approaches an application on the basis that time spent in Australia is prima facie indicative of a close association with Australia.

    [19] [2022] FCA 833, [16].

26. It can be accepted, generally, a consistent interpretation should be applied. Nevertheless, the language of each provision must be considered in the legislative context in which it appears. The discretion conferred in s 22(9) (and s 22(11)) of the Act relates directly to the general residence requirement in s 21(2)(c) and s 22(1), which requires a person to be present in Australia for a period before the application for conferral of Australian citizenship was made. The discretion allows a decision maker to treat a period in which the person was absent from Australia as a period in which they were present for the purposes of s 22(1).

27. The eligibility threshold in s 21(2)(g) has a different character. It is an essential precondition to eligibility for conferral of Australian citizenship. The decision-making threshold is one of satisfaction. This is not a discretion: either the decision-maker is satisfied or not. It has a prospective character which requires a decision-maker to determine if the person is likely to reside in Australia, or to maintain a close and continuing association with Australia, should the application be approved. While this does not require certainty, it is unlikely to be met by mere possibility, alone. Consistent with its prospective character, a positive determination the person is likely to reside in Australia, or to maintain a close and continuing association with Australia should the application be approved turns on material addressing relevant factors in the particular circumstances of the case.

28. Factors that may be relevant are set out in s 3.6 of CPI11. These include:

    (a)pre-existing connection with Australia;

    (b)employment status;

    (c)financial (including payment of tax);

    (d)overseas employment or business;

    (e)family relationships;

    (f)return travel to, and periods of residence in, Australia;

    (g)primary residence and migration status in foreign country;

    (h)intention to reside in Australia; and

    (i)plans to return to Australia.

29. The policy formulation of relevant factors does not limit factors which might be relevant in any case, and it does not determine the relative weight to be given to any relevant factor. As is noted, each case must be assessed on its facts.

30. The word ‘reside’ is not defined in the Act and its meaning depends upon the context in which it is used. The ordinary meaning of ‘reside’ includes (Macquarie Dictionary) to dwell permanently or for a considerable time; to have one’s abode for a time; to be present habitually in.

31. In s 3.4 of CPI11, ‘reside’ is stated to mean “the person’s home in which they ordinarily live is in Australia”. While the Act does not give any special meaning to the word ‘reside’, it does give meaning to the term ‘ordinarily resident’:

    a person is taken to be ordinarily resident in a country if and only if:

    (a) he or she has his or her home in that country; or

    (b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

    However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

32. The conception of a person’s ‘home’ turns on present or past circumstances informed by objective and subjective factors. This is distinguished from the focus of the enquiry in s 21(2)(g) which has a prospective character. For the purposes of s 21(2)(g) of the Act, the word ‘reside’ should be interpreted on the basis of its ordinary meaning.

33. The legislative threshold in s 21(2)(g) does not specify a temporal restriction on when the person is likely to reside in Australia. The prospective nature of the language in s 21(2)(g) involves a hypothesis of which Perry J observed in Judd’s case at [10]:

    It is not in issue that the reference to a “close and continuing association” in s 21(2)(g) does not require the person to maintain a personal presence in Australia. Nor does s 21(2)(g) impose a temporal restriction in that the Tribunal can be satisfied that residence in Australia is likely “even though it is only ‘likely’ some years in the future”, notwithstanding that it may be more difficult to establish that residence is likely where a long period is envisaged before the possible time at which residence will commence.

    [Citations removed.]

34. These are matters for evidence.

35. From February 2021, Ms Manase has lived with her husband and children in New Zealand. She is presently residing there. Ms Manase’s decision to keep her family together and follow her husband to New Zealand weighs against finding she is likely to reside in Australia in the near future. This is underscored by her evidence her husband has been advised there is no viable pathway for him to obtain a visa which would allow him to return to Australia. By her own account, since February 2021, her children have been and are presently attending schools in New Zealand. There is no evidence Ms Manase has any real or coherent plan to return to reside in Australia. In these circumstances, even though Ms Manase considers Australia to be her home and she aspires to return to live in Australia at some point in the future, the likelihood of her residing in Australia if her application for conferral of Australian citizenship is approved is remote.

36. It is possible at some point in the future Ms Manase might return to reside in Australia, perhaps once her children reach adulthood or if a legal pathway opens to allow her husband to return to Australia. Presently, however, without relevant supporting evidence pointing to the likelihood of her residing in Australia, the possibility of such an eventuality occurring is highly speculative and not sufficient to surpass the threshold in the first two limbs of s 21(2)(g).

37. For the purposes of this application, I am not satisfied Ms Manase is likely to reside in Australia if the application were to be approved. Consequently, the first two limbs of s 21(2)(g) are not met.

38. The third limb of s 21(2)(g) requires satisfaction Ms Manase is likely to maintain a close and continuing association with Australia.

39. The phrase ‘close and continuing association with Australia’ has no special meaning under the Act. Section 3.5 of CPI11 sets out the following instructions:

    The words comprising the phrase ‘likely to maintain a close and continuing associationwith 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.

1. That the words carry their ordinary meaning is unexceptional.[20] Nevertheless, the nature of the person’s proximity to Australia must be assessed and the eligibility criterion applied in the statutory context. The policy goes further:

   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.

   While not defined in legislation, the purpose of this part of the requirements is that the applicant demonstrates that they are participating in the Australian community, although they are not residing in Australia. This may include, but is not limited to:

   -     participation in a community group that provides services or engages in activities of benefit to the Australian community;

   -     undertaking education or profession-based studies with an Australian institution; or

   -     membership of a board or committee of a club, charity or other entity that provides services, recreational or educational opportunities in Australia.

   Note: membership of a club or other body in itself is not likely to amount to participation in the Australian community; nor is usage of a club’s facilities for private purposes when in Australia. For example, a person who is outside Australia may still contribute to activities to improve the facilities of a golf club for the benefit of the community by donating funds, participating in fundraising activities, or donating their time and skills in other ways, such as through computer-based work or time serving on a committee.

   [20] Judd, [14].

2. The policy prescription requires an applicant to demonstrate that they are participating in the Australian community. This goes beyond the express language of s 21(2)(g) which turns on satisfaction it is likely the person will maintain a close and continuing association with Australia. The policy cannot limit the meaning of the statute.[21] While participation in activities of the kinds referred to in the policy might be relevant matters to consider when determining if such an association is likely, the policy does not amount to a rule, such that lack of participation is necessarily dispositive. All relevant facts must be considered when determining if the person is likely to maintain a close and continuing association with Australia.

   [21] GJDB, [22].

3. Ms Manase resided in Australia from 2 July 1991, when she was 2 years old, to 18 October 2020. Her siblings are Australian citizens, residing in Australia with their families. Her parents and a sibling are deceased and buried in Canberra. Members of her extended family, including uncles, aunts, nephews and nieces, reside in Australia.

4. Ms Manase’s four children (who are presently between 8 and 15 years old) were born and raised in Australia until their departure in October 2020.

5. Ms Manase was educated in primary and secondary schools and colleges in Canberra. After school, she was employed by Australian businesses, including 13 years employment by Telstra which ended with a redundancy package in 2018. Even though the details of her employment and her tax records are not in evidence, in her Telstra employment, at least, it is likely she was paid wages and employer superannuation contributions. There are no Australian Taxation Office records in evidence of tax Ms Manase paid on any taxable income. She presently has no employment in Australia and is seeking employment in New Zealand.

6. Ms Manase owns Telstra shares in Australia, although the details of her shareholding are not in evidence. There is no evidence Ms Manase retains superannuation accounts in Australia, but on the history of her employment in Australia it may be inferred that she does. She has a bank account with the Commonwealth Bank of Australia which was opened in 2023. There is evidence members of her family in Australia provide financial assistance to Ms Manase in New Zealand.

7. Ms Manase self-identifies as an Australian: she described herself as an Aussie living temporarily in New Zealand.

8. As the letters of support in evidence confirm, Ms Manase has an extensive network of family, friends, associates and connections in the Polynesian community in Australia. I accept that Ms Manase maintains a close connection with members of her family and her social and community network in Australia, using social and electronic media multiple times each week.

9. Since departing in October 2020, Ms Manase has briefly returned to Australia on 3 occasions, two of which were for family events and the third was to undertake her citizenship test. She explained she is not able to afford to visit Australia more frequently, particularly with her children, but she would like to do so if she could. I note that at least one visit was supported, at least in part, by a family member in Australia.

10. The Minister asserts these factors are not sufficient to support a positive determination Ms Manase is likely to maintain a close and continuing association with Australia if her citizenship application is approved.

11. I do not agree.

12. The weight of uncontested evidence supports a finding that, having spent most of her life in Australia and all of her formative years from the age of two, Ms Manase has developed a close association with Australia. As the facts clearly reveal, she has strong familial and experiential roots in Australia. She has close associations with the Polynesian community in Australia. This is so even though she is presently residing in New Zealand with her husband and their children. Had her husband not been returned to New Zealand, I accept she would not have departed Australia to reside there. Ms Manase’s close association with Australia and her participation in the Australian community is shaped by her extensive family and social network, albeit without evidence of ongoing or prospective employment or participation in community organisations in Australia. I accept the evidence of Tevita Ma’ilei, an elder of the Uniting Church from 1987 to 2020, that Ms Manase was:

    Always an active participant in church and community activities, Sunday school, sports, singing, multi-cultural festivals, food preparations and normal activities.[22]

    [22] Exhibit 3, letter of Tevita Ma’ilei, 23 September 2024.

13. I am satisfied, prospectively, the likelihood of Ms Manase maintaining a close and continuing association with Australia is informed by her childhood, education, family and significant social, community, cultural and employment experiences in Australia. Having heard Ms Manase’s evidence, it is clear enough these experiences continue to play a significant role in her life and in her self-identification as an Australian who considers Australia as her home. I accept her evidence about the close family, community and social connections she maintains in Australia. Her evidence that the only family she has in New Zealand is her husband and their children, and that they do not associate with members of her husband’s extended family in New Zealand, was not contested and can be accepted. Ms Manase’s extended family is located in Australia, including her siblings and their families, as well as the graves of family members.

14. Ms Manase’s desire and her intention to return to reside in Australia in the future was powerfully expressed, and I accept it. Nevertheless, as she acknowledged, presently, she has no plan or intention to return to reside in Australia without her children and her husband. This impacts upon the practicality of her desire and her prospective intention to return at some point in the future. With the passage of time, Ms Manase might find employment and develop social networks in New Zealand, and such an eventuality might contextualise or diminish the likelihood of her maintaining a close and continuing association with Australia, such that the statutory threshold might not be met. Presently, in the context of this application, an atrophic eventuality of that kind is speculative and not supported by evidence.

15. Considering all relevant factors in her case, on balance, I am satisfied the strength of Ms Manase’s familial and social ties to Australia, and the enduring connection she has with Australia having been raised in Australia from the age of two and having developed experiential, social and cultural roots in Australia, are likely to continue. On Ms Manase’s evidence, it is clear she places a high value on family connection which is reinforced by the Polynesian community and culture in which she grew up in Australia. It is this which was cleft when her husband was returned to New Zealand: the value she places on maintaining close connections with siblings and members of her extended family and community in Australia, and the value she places on keeping her immediate family, her husband and her children, together.

16. In these circumstances and for the purposes of this application, I am satisfied it is more probable than not that Ms Manase is likely to maintain a close and continuing association with Australia. Viewed objectively, the evidence of Ms Manase’s background in Australia, and related familial, community, church, employment and social factors, which weigh in favour of this finding, are not out-weighed by any counter-veiling factors.

17. From this it follows I am positively satisfied the threshold in the second limb of s 21(2)(g) is met. This means she meets the eligibility criterion in s 21(2)(g) and her application is not barred by operation of s 24(1A) of the Act. Consequently, Ms Manase’s application for conferral of Australian citizenship is remitted to the Minister for further consideration with the direction Ms Manase meets the threshold in s 21(2)(g) of the Act.

    Decision

18. The decision under review is set aside and the application is remitted to the Minister for reconsideration with the direction the direction the Tribunal is satisfied Ms Manase meets the eligibility threshold in s 21(2)(g) of the Act.

Date of hearing:	14 July 2025
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Anthony Westenberg
Solicitors for the Respondent:	Sparke Helmore Lawyers