Phan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for Australian citizenship by conferral made by Dr Hoang Cong Phan. The dispute arose when a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Dr Phan's application on the basis that he did not meet the residence requirement. Dr Phan sought review of this decision before the Tribunal.

The legal issues before the Tribunal were whether Dr Phan met the general eligibility requirement for citizenship by conferral under subsection 21(2)(c) of the *Australian Citizenship Act 2007* (Cth), specifically the general residence requirement or either of the special residence requirements. The Tribunal was also required to consider whether there was any statutory basis to exempt Dr Phan from meeting these requirements.

The Tribunal reasoned that its authority was derived from statute and it did not possess a general power to exempt individuals from meeting the legislative requirements for citizenship. Therefore, the Tribunal was bound to apply the eligibility criteria as set out in the Act. The Minister contended that Dr Phan failed to satisfy the general residence requirement due to an extended absence from Australia, totalling 555 days in the four-year period prior to his application, and 359 days in the 12 months preceding it, even accounting for allowable absences. Dr Phan acknowledged his absence since 1 March 2020, attributing it to COVID-19 international travel bans, which prevented his return to Australia after travelling to Vietnam to assist family members with visa applications for their attendance at his PhD graduation. The Minister also argued that a discretionary power under section 22(6) of the Act did not apply, as Dr Phan had been a permanent resident prior to his application and the section concerned circumstances where an applicant was not a permanent resident during the 12 months before applying.

The Tribunal affirmed the delegate's decision to refuse the grant of Australian citizenship to Dr Phan, finding that he did not meet the necessary residence requirements as stipulated by the *Australian Citizenship Act 2007*.