Mohamed and Minister for Immigration and Citizenship (Citizenship)

[2025] ARTA 2076

Mohamed and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 2076 (15 October 2025)

Applicant/s:  Isam Eldin Akasha Mohamed

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:                2024/11276

Tribunal:General Member S Evans  

Place:Sydney

Date:15 October 2025

Decision:The Tribunal affirms the decision under review.

..................[SGD].......................

General Member S Evans 

Catchwords

CITIZENSHIP – Application for Australian citizenship by conferral – Applicant employed overseas - Applicant does not meet residence requirement – request to exercise spousal ministerial discretion - close and continuing association with Australia – intention to reside – decision affirmed

Legislation

Australian Citizenship Act (2007)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634

Secondary Materials

Citizenship Procedural Instruction (CPI) 8 – Residence Requirements and Discretions

Citizenship Procedural Instructions (CPI) 11 - Assessing likelihood to reside or continue to reside or maintain a close and continuing association with Australia

Statement of Reasons

1. Isam Eldin Amin Akasha Mohamed (the Applicant) is a citizen of Sudan who first arrived in Australia in August 2004. He currently holds a Resident Return (Subclass 155) visa. The Applicant’s wife and four adult children are Australian citizens. Since 2004, the Applicant has travelled to Australia on 19 occasions, usually staying for short periods before returning to work overseas. From September 2014 he has worked in Kampala, Uganda, where he is a resident and maintains a rental property.

2. On 27 September 2022 the Applicant lodged an application for Australian citizenship by conferral while he was in the United Arab Emirates.[1] In the Application, he requested the exercise of the ministerial discretion contained in subsection 22(9) of the Australian Citizenship Act 2007 (the Act) as the spouse of an Australian citizen (the spousal ministerial discretion). The spousal ministerial discretion provides the discretion to deem time that an applicant has spent outside of Australia as time that the applicant was present in Australia. 

   [1] T3 43.

3. After lodging his application, the Minister for Immigration and Citizenship (the Respondent) requested further information and evidence from the Applicant in relation to the exercise of the discretion, which was provided.  

4. On 13 December 2024 a delegate of the Respondent decided not to exercise the spousal ministerial discretion and the Applicant’s application was refused (the reviewable decision). The Applicant seeks review of this decision at the Tribunal.

   APPLICABLE LEGISLATION AND POLICY

5. Paragraph 21(4)(d) of the Act provides that an applicant must satisfy the general residence requirements in s 22 of the Act, the special residence requirements in s 22A or 22B of the Act, or the defence service requirement in s 23 of the Act at the time of making an application for citizenship.  

6. There is no evidence that the Applicant satisfied the special residence requirements in s 22A or 22B of the Act, or the defence service requirements in s 23 of the Act at the time of his application.

7. Section 22(1) of the Act provides that 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.

8. Subsection 22(1A) permits parts of the 4-year period in which an applicant is offshore to be taken as periods in which the applicant was present in Australia, provided the absences are less than 12 months. As the total periods in which the Applicant was not in Australia in the 4 years before making his citizenship application was 25 months, the deeming provision provided in s 22(1A) does not apply to the Applicant.

9. The relevant 12-month period referred to in s 22(1)(c) is between 26 September 2021 and 26 September 2022.  The Applicant’s movement history records confirm he was onshore for approximately 3 months between 26 September and 8 December 2021 and was offshore for approximately 9 months between 8 December 2021 and 26 September 2022.[2]

   [2] ST3.

10. Subsection 22(1B) permits part of the 12-month period in which an applicant is offshore to be taken as periods in which they were present in Australia, provided the absences are less than 90 days and that the person was a permanent resident during each period of absence:

    (a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

    (b) the total period of the absence or absences was not more than 90 days; and

    (c) the person was a permanent resident during each period of absence;

    then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

11. As the total of the periods in which the Applicant was not in Australia in the 12 months before making his citizenship application was approximately 9 months, the deeming provision in s 22(1B) does not assist the Applicant.

12. The Applicant does not satisfy the general residence requirement in s 22 of the Act as he does not satisfy s 22(1)(a) and (c).

13. Subsection 22(9) of the Act sets out the spousal ministerial discretion: 

    (9) 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.

14. It is common ground that the Applicant satisfies the criteria in paragraph 22(9)(a)-(c). The issue in contention Is whether he had a close and continuing association with Australia during the periods that he was not present in Australia, such that paragraph 22(9)(d) is satisfied. 

15. Departmental policy provides guidance for decision makers when considering the exercise of the spousal ministerial discretion. The Tribunal is not bound to strictly apply policy, but as it is government policy it should be considered unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3] Citizenship Procedural Instruction 8 – Residence Requirements and Discretions (CPI 8) provides guidance in relation to the exercise of the spousal ministerial discretion. CPI 8 relevantly provides that the ministerial discretion can only be applied to periods when the applicant had a close and continuing association with Australia during that period.

    [3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634.

16. CPI 11 – Assessing likelihood to reside or continue to reside or maintain a close and continuing association with Australia (CPI 11) provides guidance on the meaning of a ‘close and continuing relationship with Australia’.[4] CPI 11 states that the words comprising the phrase ‘likely to maintain a close and continuing association’ are 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, or near together, in space, time, or relation;

    ·‘continuing’ as to last or endure;

    ·‘association’ as the act of associating … connection or combination.

    [4] T25 764-722.

17. CPI 11 also states:

    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 that a close and continuing association with immediate/extended family or other social relationships or networks in Australia, on its own, may not be a sufficient factor to meet this requirement, although each case must be considered on its own merits.

18. CPI 11 provides that an applicant may demonstrate that they are participating in the Australian community, although they are not residing in Australia. 

19. Paragraph 21(4)(e) of the Act provides that an applicant must be likely to reside or continue to reside in Australia or to maintain a close and continuing association with Australia if the application for citizenship were approved. As the Applicant lodged his application from overseas, CPI 11 requires consideration of whether the Applicant is likely to return to Australia should his application be approved. If he is unable to demonstrate that he is likely to reside in Australia, he may provide evidence to demonstrate he will maintain a close and continuing association with Australia if the application were to be approved.

    Issues to be determined

20. The issues to be determined by the Tribunal are:

    (a)whether to exercise the spousal ministerial discretion provided in s 22(9) of the Act; and if so

    (b)whether 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, satisfying s 21(4)(e) of the Act.

    Evidence and consideration

21. In a statement dated 4 September 2024, the Applicant writes that since September 2023 he has been employed as the managing director of a company based in Uganda, where he currently resides. He also holds a United Arab Emirates residency permit as a requirement of his employment. He says that he accepted the role in Uganda in order to meet his financial obligations, which include paying the mortgage on his family home in Canberra, where he plans to retire.

22. The Applicant said his circumstances have compelled him to work outside Australia and it is a sacrifice he has made for the financial stability of his family. His wife is currently undergoing cancer treatment and he is committed to her care. In a statement provided by the Applicant he writes that Australia has always been his home, and he intends to return permanently to Australia when his work obligations and family needs allow, and aims to retire in 6 to 9 years.[5]  At the hearing the Applicant clarified that he now planned to continue working overseas for another three years, having brought forward his retirement on account of his wife’s ill health.   

    [5] T20 701-702.

23. The Applicant’s wife, Dr Wadeisa Ghada Mohamed, provided a written statement and gave evidence at the hearing. Dr Mohamed lives at the family home in Canberra and in her statement she writes that her husband’s emotional and practical support has been essential to her care and quality-of-life. She writes that she and her husband share strong connections to Australia.

24. Dr Mohamed notes that her husband maintains private health insurance cover in Australia and holds a Medicare card, which she submits reflects his reliance on the Australian system of care and support. She also notes he has Australian bank accounts and holds an ACT drivers’ licence, which she contends reflect his ongoing practical and legal ties to life in Australia. Dr Mohamed says she and her husband are committed to building their life together in Australia, and will remain in Canberra where they have established close bonds in the community.

25. Dr Mohamed’s evidence was that her husband is active in the Australian Sudanese community and regularly participated in the community’s cultural celebrations. He also supports community members, including elderly people and newly arrived families, and members of the Sudanese community regularly seek his advice.

26. Dr Mohamed regards her husband’s overseas employment as a sacrifice, not a preference on his part. She confirmed that he accepted the overseas position out of financial necessity. His income was required to meet the cost of their children’s educations, mortgage payments on their family home and to provide for their family’s financial future. She said his employment sustains their household in Australia, and his heart remains firmly tied to Australia where he intends to retire permanently with them.

27. In her oral evidence, Dr Mohamed said her husband takes every opportunity he has to visit his family in Australia and every year since 2007 he has spent 4 to 6 weeks in Australia. Their family try to see each other as much as possible, and sometimes she and their children spend time with the Applicant in other countries including the UAE, Egypt or Uganda.

28. The Applicant’s four adult children have prepared a joint statement and gave evidence at the hearing. They speak to the sacrifices that the Applicant has made to support them, and the strength of their relationship with him and his ties to Australia. They told the Tribunal that the Applicant had worked and lived overseas in order to ensure they could be raised and educated in Australia.

29. The Applicant’s children said that the Applicant loves Australia, holds Australian values, and regards the country as his home. His greatest wish is to return permanently to Australia. He has worked overseas to ensure they can be raised and educated in Australia, and they have been able to succeed in their respective careers because of the sacrifices that he has made on their behalf. It was also submitted that the war in Sudan, which is been underway since April 2023, has destroyed any possibility of security or stability in the country making Australian citizenship a necessity for their father.  

30. Evidence was also heard that the Applicant had provided financial and practical support for his son’s rugby team, including part funding for the team to tour New Zealand.

31. Amad Mohamed of the Sudanese Australian Advocacy Network writes that the Applicant has maintained a long-standing involvement with the Australian Sudanese community, and has contributed to the community over a long period of time. The Applicant is regarded as a community elder and widely respected for his generosity and integrity. The Applicant also contributes by providing financial, social and moral support to the broader the broader Sudanese Australia community. Correspondence confirms he remains actively engaged when he is overseas.

32. Hamoda Dayein is a friend of the Applicant’s family and a former executive member of the Sudanese Community in Canberra. He vouches for the Applicant’s active and valued membership of the Sudanese community. He describes the Applicant as a generous contributor of both time and resources to community initiatives. 

33. The Applicant has provided a letter from Dr Fatin Gabriel and Mr Nazmi Gabriel dated September 2025. They confirm they have a close relationship with the Applicant, who they have known for ‘decades,’ and that he has visited their home in Queensland many times.

34. The Applicant maintains a close relationship with each member of his family in Australia, as demonstrated by their statements and evidence at the hearing. I accept that they are a close family, and they appreciate the Applicant’s overseas employment has provided them with financial security and afforded them many opportunities. The Applicant has provided evidence of having limited, but long-standing connection with a number of Australians outside his immediate family. I accept that the Applicant is well known by members of the Australian Sudanese Community to which he has contributed. 

35. The Applicant submits that his family relationships alone are sufficient to demonstrate a close and continuing association with Australia. CPI 11 provides that the requirements to maintain a close and continuing association refers to an association with Australia, not Australians. CPI 11 also states that a close and continuing association with immediate family or other social relationship or networks on its own, may not be a sufficient factor to meet this requirement, although each case must be considered on its own merits. The Applicant submits that the wording of the policy is such that family and other networks may  be sufficient to demonstrate a close and continuing association with Australia, and that his continuing association with his immediate family and the Sudanese community is sufficient to meet this requirement.

36. CPI 11 identifies other factors that may be relevant when considering a close and continuing relationship with Australia. Relevantly, the Applicant has regularly returned to Australia since first arriving in 2004, as demonstrated by his overseas movement records. When he is in Australia, he stays with his family. The Applicant owns property in Australia, and the policy provides that maintaining a property in Australia is indicative of an intention to reside in Australia. While the Applicant has not paid income tax in Australia, he is not required to do so. I do not accept that the Applicant’s drivers’ licence, access to Medicare or maintaining his private health insurance coverage are persuasive indicators of a close and continuing association with Australia.

37. The Applicant visited Australia on two occasions in the four-year period before lodging his application. One of those visits was for one month in April and May 2019. In total, he was not present in Australia for 25 months in the four years prior to making his application. He has provided some evidence in support of having established ties to the community beyond his family, almost exclusively related to the Australian Sudanese community. Although he claims some continuity of contact with community members when he is outside Australia, there is a dearth of specific evidence to support his participation in Australian community groups when overseas. 

38. The Applicant has held a rental agreement for a property in Uganda from 2014. In August 2021, when he applied for a travel exemption permit during the overseas travel ban associated with COVID-19, the Applicant cited the reason for the request was to return to work in the place in which he was ‘ordinarily a resident’.[6] 

    [6] ST, 29.

39. Overall, I am satisfied that the Applicant has a close and continuing relationship with his family, but, having regard to CPI 11, I do not consider the strength of these relationships he has with his wife and children – all of whom are Australian citizens - to establish a close and continuing association with Australia. While other factors, most notably his involvement with the Australian Sudanese community support the Applicant’s claim, the sum of the evidence is insufficient to demonstrate he maintained a close and continuing association with Australia during his period of absence from Australia – particularly in the context of the Applicant’s extensive periods outside of Australia.

40. For these reasons, I am not persuaded that the Applicant had a close and continuing relationship with Australia during his periods of absence from Australia and the spousal ministerial discretion should not be exercised in his favour. It follows that the Applicant does not satisfy 21(4) of the Act and the reviewable decision will be affirmed.

    DECISION

41. For the reasons outlined above, the reviewable decision is affirmed.

Date(s) of hearing:	29 September 2025
Solicitors for the Applicant:	Mr Ray Turner, Ray Turner Immigration Lawyers
Solicitors for the Respondent:	Mr John O’Connell, HWL Ebsworth Lawyers