See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 1327

See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1327 (15 May 2020)
Division:GENERAL DIVISION
File Number: 2018/6902
Re:Pei Fen See
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:15 May 2020
Place:Perth

The Reviewable Decision, being the decision dated 5 November 2018 to refuse the Applicant’s application for Australian Citizenship, is set aside. The matter is remitted to the Respondent for reconsideration with the direction that the Applicant had a close and continuing association with Australia during the four years prior to her application for citizenship. Accordingly, she should be considered as having been present in Australia as a permanent resident during that period in accordance with the discretion provided for in
s 22(9) of the Australian Citizenship Act 2007 (Cth).
.....................[sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
CITIZENSHIP – eligibility – application for citizenship by conferral – refusal of citizenship – failure to meet general residence requirement – whether a close and continuous association with Australia – spouse of Australian citizen – long periods of absence in four year period immediately before citizenship application – whether discretion should be exercised to treat Applicant as having been present in Australia as a permanent resident during periods of absence – reviewable decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(c), 22(1), 22(1A), 22(1B), 22(4A), 22(11), 22(9), 22(9)(a), 22(9)(b), 22(9)(c), 22(9)(d), 24(1), 24(1A), 52(1)(b)
CASES
Judd v Minister for Immigration [2017] FCA 827
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Tran and Minister for Immigration and Border Protection [2014] AATA 957
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Yang v Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
15 May 2020
BACKGROUND TO THE APPLICATION

The Applicant is 26 years of age and was born in Singapore (PT2, page 9). She first travelled to Australia when she was approximately 21 months old (PT7, page 68).
She later migrated to Australia with her family in 2000 when she was approximately seven years old (PT2, page 10). The Applicant became a permanent resident on 11 March 2000 (PT7, page 69; T8, page 76).
The Applicant attended primary school, high school to year 12, and university in
Western Australia where she completed a bachelor’s degree (Exhibit A1, page 2; Exhibit A2, page 2 and attached documentation regarding secondary schooling;
PT5, pages 43-47).
The Applicant met her husband, an Australian citizen, in 2012 and they married in 2015 (Exhibit A1, page 2, Exhibit A2, page 2, PT5, page 38). They have a daughter who is an Australian citizen, born in 2017 (PT5, page 51).
The Applicant’s husband returned to Indonesia to work in 2014 and they became engaged at the end of 2014. He asked the Applicant to join him for a few years while he was working there (letter from Applicant’s spouse dated 3 April 2019 in Exhibit A2), which she did.
On 16 April 2018, the Applicant lodged an application for Australian citizenship by conferral (T4, pages 12-30). The application was made pursuant to s 21(1) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) which provides that, “A person may make an application to the Minister to become an Australian citizen”.
However, due to accompanying her husband overseas, the Applicant was absent from Australia for a total of 894 days in the in the four years prior to lodging her citizenship application. In the 12 months prior to lodging her citizenship application the Applicant was absent from Australia for 173 days (T8, page 76).
Consequently, together with her application for Australian citizenship, the Applicant submitted a letter from her migration agent dated 13 April 2018 stating that the Applicant was seeking Ministerial discretion with respect to the residence requirement on the basis that she was the spouse of an Australian citizen (T5, page 31).
On 5 November 2018 a delegate of the Respondent decided to refuse the Applicant’s application for Australian citizenship by conferral (T7, pages 68-75) (the Reviewable Decision). The decision was made under s 24 of the Citizenship Act, which provides:
(1)If a person makes an application under section 21, the Minister must,
by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
The basis for the refusal was that the Applicant did not satisfy the general residence requirements under s 21(2)(c) of the Citizenship Act. The delegate decided that Ministerial discretion could not be applied to assist the Applicant to meet the general residence requirements because the delegate was not satisfied that the Applicant had a close and continuing connection with Australia during her periods of absence. Specifically,

the delegate stated that (PT7, page 69):
I have taken into consideration the information provided and your marriage to an Australian citizen. I have assessed the information provided in the statement provided, indicating that you and your family have relocated to Indonesia as your partner is employed as part of a family business. You have also indicated that your residential address at the time of lodgement was in Indonesia. Consideration was given in relation to being in a relationship with an Australian citizen and having family members who are Australian citizens. However, as you are residing offshore for the purpose of accompanying your partner, who’s [sic] employment is based in Indonesia, I am not satisfied that your ties are with Australia. Therefore,

the Ministerial discretion has not been applied.
On 27 November 2018, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (Tribunal), seeking review of the Reviewable Decision dated 5 November 2018 (T2, pages 3-8).
The Reviewable Decision in this application is reviewable by the Tribunal because
s 52(1)(b) of the Citizenship Act provides that the Tribunal has jurisdiction to review decisions made under s 24:
(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;…
In her application, the Applicant gave the following explanation as to why she thought the Reviewable Decision was wrong (PT2, page 6):
I applied for Australian citizenship by conferral, seeking Ministerial discretion.
My case officer is not satisfied that my ties are with Australia. I strongly disagree with her decision. I have provided strong evidence that I indeed have strong ties with Australia. I believe the decision is flawed.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by Member Fitzgerald on 3 October 2019.
The Applicant was represented by a Migration Agent, Mr Boon Eng Loh. The Respondent was legally represented by Mr Ashley Burgess.
The Applicant gave evidence at the hearing and was cross-examined by Mr Burgess.
Member Fitzgerald ceased to be a member of the Tribunal on 5 March 2020, and at that time she had not delivered a decision with respect to this application.
By a direction made on 18 March 2020 pursuant to s 19D(2)(a) of the AAT Act,
the Tribunal was reconstituted to comprise Senior Member Dr M Evans-Bonner.
The parties attended a telephone directions hearing before the Senior Member on
25 March 2020 to discuss how the application should proceed. With the consent of the parties, it was directed that the application would be determined by the Senior Member based off the transcript of the 3 October 2019 hearing, and on the papers filed with the Tribunal to date.
The materials admitted into evidence at the hearing were:
(a)Applicant’s Second Statement of Facts, Issues and Contentions (SFIC) dated
17 April 2019, filed with the Tribunal on 25 June 2019 (Exhibit A1).
The SFIC refers to attachments but none were received by the Tribunal;
(b)Applicant’s SFIC dated 17 April 2019 with the attachments absent from Exhibit A1 (Exhibit A2);
(c)submission from the Applicant’s Migration Agent dated 8 February 2019, attaching six letters of support (Exhibit A3);
(d)Applicant’s hearing certificate (Exhibit A4);
(e)Section 37 (T-documents) numbered T1 to T11 and comprising 111 pages (Exhibit R1);
(f)Respondent’s SFIC dated 5 June 2019 (Exhibit R2);
(g)Respondent’s hearing certificate (Exhibit R3); and
(h)Direction made by the Tribunal on 13 March 2019 (Exhibit T1).
This Tribunal notes that Exhibits A4, R3 and T1 were not required to be admitted into evidence. Nevertheless, these Exhibits have been listed to accurately record the documents admitted into evidence at the hearing.
RELEVANT LAW
General eligibility requirements for citizenship
Subsection 21(2) of the Citizenship Act sets out general eligibility requirements for citizenship. It provides:
(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.
General residence requirement
Subsection 22(1) Citizenship Act sets out when a person satisfies the general residence requirement:
(1)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.
(Original emphasis.)
Exemption for overseas absences
Subsection 22(1A) of the Citizenship Act provides an exemption for overseas absences:
(1A)If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
Next, s 22(1B) of the Citizenship Act provides a similar exemption for absences during the 12-month period specified in s 22(1)(c) of the Citizenship Act:
(1B)If:
(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.
Spousal discretion
Subsections 22(4A) through to 22(11) of the Citizenship Act set out Ministerial discretions. Subsection 22(9) of the Citizenship Act is relevant to this application because it provides for a spousal 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.
In Taher and Minister for Immigration and Border Protection [2013] AATA 917 (Taher),

at [18]-[20], Senior Member Fice explained that:
18.The opening paragraph of s. 22(9) makes it clear that where a person is in a spousal or de facto relationship with an Australian citizen at the time the person makes an application for Australian citizenship, the Minister may exercise a discretion to treat the period that person has spent overseas as a period where the person was present in Australia as a permanent resident.
19.The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s. 22(1), even when allowances are made for overseas absences as provided for in subsections (1A) and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia. It is not a dispensation from meeting the general residence requirement. It simply permits that requirement to be met by alternative means.
20.Furthermore, the only days which may be counted as days spent in Australia when a person was outside of Australia are those days when the person was a permanent resident of Australia…
Senior Member Fice further explained in Taher, at [30] – [31], that:
30.On the introduction of the Australian Citizenship Bill 2005, which it was proposed would replace the Australian Citizenship Act 1948, the Explanatory Memorandum accompanying the Bill explained that the proposed new subsection (9) provided for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen. The Explanatory Memorandum then said:
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship.
This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
31. It appears that the intention was to remove the presumption of cohabitation by requiring spouses of Australian citizens to meet the residency requirements; just as any other applicant is required to do. However, it also appears to have been recognised that cohabitation by spouses remains the normal position and, where a non-citizen spouse chooses to adopt that position with the Australian citizen spouse who is outside of Australia, the non-citizen spouse may be entitled to treat that period outside of Australia as if the person was present in Australia, provided the person was a permanent resident throughout that time.
(Emphasis added.)
In Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 (Sabumei) at [21]-[22], Senior Member Walsh also referred to the Explanatory Memorandum to the Citizenship Act:
22.It is clear from the EM that, unlike former s 13(9) of the 1948, s 22(9) of the Citizenship Act is intended to require spouses of Australian citizens to meet the same criteria as other adult applicants for Australian citizenship, including the “residence” and “close or continuing association with Australia” requirements. The EM acknowledges that, in some circumstances, the spouse of an Australian citizen may have difficulty meeting the residence requirements (for example, where they accompany their Australian citizen spouse overseas), hence the inclusion in s 22(9) of a discretion to waive all or part of the residence requirements for the spouse of an Australian citizen who can demonstrate a “close and continuing association with Australia”: see Re Sapranov and Minister for Immigration and Citizenship [2011] AATA 126 at [28] to [30] and Taher at [29] – [30].
(Emphasis added.)
Close and continuing association
The meaning of a “close and continuing association” was considered in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 (Ul Haque) by Senior Member Cotter at [45]:
45.The words that make up the phrase “close and continuing association” are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close” as “having a strong or immediate relation or connection”, “continuing” as meaning “to remain in existence or unchanged” and association as “the act or an instance of associating; fellowship or companionship”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”, “continuing” as “to last or endure” and “association” as “the act of associating ... connection or combination”.
In Judd v Minister for Immigration [2017] FCA 827 Perry J stated at [14] that the expression “close and continuing association” should be given its ordinary meaning.

Perry J also stated that a “broad” and “multi-factorial approach” should be applied to determine whether a person had a close and continuing association to Australia during relevant periods of absence:
14.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: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). 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”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. 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”.

Having a close connection with family members in Australia will not, in the absence of other evidence, be enough to demonstrate a close and continuing connection with Australia. See, for example, Ul Haque where Senior Member Britton observed, at [52], that:
52. Mr Ul Haque has a close and continuing relationship with his wife and daughter, both of whom, as Australian citizens, have a close and continuing relationship with Australia. But, although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia.
Similarly, in Yang v Minister for Immigration and Border Protection [2017] AATA 364 (Yang), Senior Member Cotter stated, at [34]-[35]:
34.On behalf of the Minister, it is submitted that a close relationship with Australian family members does not equate to a close and continuing association with Australia.
35.I accept the Minister’s submission on that point. It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia”.
(Original emphasis.)
Citizenship Policy
The Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 (Citizenship Policy) (page 1) “…provides guidance on the interpretation of, and the exercise of powers under, the Act…”.
It is appropriate for the Tribunal to apply the Citizenship Policy in this application.
As stated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645 the Tribunal should apply government policy when reviewing decisions unless there are cogent reasons not to do so:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The Citizenship Policy provides guidance in relation to the “close and continuing association with Australia” criterion in s 22(9) of the Citizenship Act. It sets out relevant factors that may demonstrate this connection (pages 95-96):
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 [sic] and
·     evidence of active participation in Australian 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.
Exercising the discretion
Whether an Applicant has “a close and continuing association” during relevant periods of absence is a question of fact to be objectively assessed having regard to the relevant factors listed in the Citizenship Policy (see Ul Haque at [44]).
Further, the Tribunal agrees with the following comment from Senior Member Ettinger in Tran and Minister for Immigration and Border Protection [2014] AATA 957 at [40] regarding how these factors should be weighed:
40.I am mindful that the above list [of factors from the Citizenship Policy] is not exhaustive, and that it is not a matter of ticking boxes, but rather taking a holistic view of the Applicant’s situation in considering whether she is able to demonstrate that she has a close and continuing association with Australia.
(Original emphasis.)
ISSUES
The Applicant is over the age of 18 and is a permanent resident of Australia
(thus satisfying the eligibility criteria in ss 21(2)(a) and (b) of the Citizenship Act).
Next, s 21(2)(c) of the Citizenship Act requires a person to satisfy the general residence requirement set out in s 22(1) of the Citizenship Act to be eligible to become an Australian citizen. This requires a person to be present in Australia for a period of four years immediately before the day they made the application, not to be present as an unlawful
non-citizen, and to have been present as a permanent resident for the period of
12 months immediately before the day they made the application.
However, the Applicant does not meet the general residence requirement under s 22(1) of the Citizenship Act because, as noted in the background section above, she was absent for a total of 894 days in the four years prior to her citizenship application, and 173 days in the 12 months prior to her citizenship application.
Consequently, the Applicant is seeking an exercise of Ministerial discretion under s 22(9) of the Citizenship Act. This subsection permits the Minister to treat a period (or periods) of absence as one in which the person was present in Australia as a permanent resident if they satisfy the criteria in subsections (a) to (d) of s 22(9) of the Citizenship Act.
It is not in contention that the Applicant satisfies the criteria in subsections (a) to (c) of
s 22(9) of the Citizenship Act. She was the spouse of an Australian citizen during the relevant periods of absence (s 22(9)(a)); she was not present in Australia during the relevant periods (s 22(9)(b)); and she was a permanent resident during the periods of absence
(s 22(9)(c)).
It is the final criterion in s 22(9)(d) of the Citizenship Act that is in contention. Specifically, whether the Tribunal (standing in the shoes of the Minister) is satisfied that the Applicant had a close and continuing association with Australia during the periods she was absent from Australia.
DID THE APPLICANT HAVE A CLOSE AND CONTINUING ASSOCIATION WITH AUSTRALIA?
The Tribunal will now consider each of the factors from the Citizenship Policy to determine whether the Applicant had a close and continuing association with Australia during her periods of absence in the four years prior to her application for citizenship.
Migration to and establishment of a home in Australia prior to the period overseas
The Applicant migrated to Australia with her family when she was approximately seven years old. She recalled all the family’s belongings being shipped from Singapore, as well as the family’s dog, when they migrated to Australia. The Applicant stated that she and her family became involved in their local church and made friends with families they met through the school community (Exhibit A2).
The Applicant recalled the “family homes” she lived in as being “the backdrop to many milestones of my formative years” (Exhibit A2, page 2). She attended primary school, completed high school to year 12, and completed a bachelor’s degree at a university in Western Australia. The Applicant made close friends at school and at university, and these friends have provided letters of support for the Applicant (see letters attached to Exhibit A2 from Judy, Julia and Pearl; see also letter from Thiam in Exhibit A2).
In her final year of university, the Applicant moved into her own property. The Applicant met her husband in 2012 at university, and after completing university lived with her husband in a property he owned in Western Australia. After completing university,

she was employed in the finance industry for approximately one year before moving overseas with her husband.
In summary, the Applicant’s situation is typical of many young people growing up in Australia. As noted above, she migrated to Australia when she was approximately seven years of age, spending her formative years in Australia. She completed primary and secondary school in Australia, as well as obtaining a university degree, found employment, and met and married her Australian citizen husband before going overseas with him. Accordingly, the Tribunal finds that the Applicant migrated to, and made a home in Australia. This factor weighs in favour of the Applicant having a close and continuing association with Australia.
Australian citizen children and long-term relationship with Australian citizen spouse
As noted above, the Applicant met her Australian citizen husband in 2012. They married in Australia in 2015. Their marriage took place in a church in the suburb the Applicant grew up in (PT5, page 38).
The Applicant and her husband have a daughter who is an Australian citizen, born in 2017 (PT5, page 51).
This factor also weighs in favour of the Applicant having a close and continuing association with Australia.
Extended family in Australia
The Applicant’s family reside in Australia. Her mother, brother and sister are Australian citizens (PT5, pages 56-64). Her father is a permanent resident (PT5, page 64). All these family members reside in Australia except for the Applicant’s brother who is working in Singapore (transcript, page 20). The Applicant’s mother-in-law and two sisters-in-law are also Australian citizens and reside in Australia (transcript, page 6).
Additionally, the Applicant returned to Australia for the birth of her daughter in 2017 due to her “support system” from family and friends being there (Exhibit A2, page 2), staying in Australia for 243 days (transcript, page 13). This, in the Tribunal’s opinion, is also indicative of a close and continuing association with Australia.
The Tribunal appreciates, after considering the commentary from Ul Haque and Yang stated above, that being close to family members in Australia is not by itself sufficient to establish a close and continuing association with Australia, and that other factors from the Citizenship Policy that demonstrate such a connection will also need to be established.
Nevertheless, based on the facts discussed at paragraphs [52] and [53] above, the Tribunal finds that this factor weighs slightly in favour of the Applicant having a close and continuing association with Australia.
Regular return visits to Australia and regular periods of residence in Australia
As noted above, the Applicant resided in Australia from the time she migrated in 2000 with her family, until relocating to Indonesia with her husband in 2015 (PT5, page 35).
The Applicant described this move overseas as being sudden due to her father-in-law becoming ill and her husband being required to move back to manage the family business (transcript, pages 17 and 19).
After relocating to Indonesia with her husband, the Applicant visited Australia approximately three times per year (see movement records attached to Exhibit A2).
As would be expected, the Applicant was in Australia for longer periods of time prior to the Applicant relocating with her husband to Indonesia, for example, in 2014, she spent periods of 69 days, 33 days, 65 days and 88 days in Australia. After relocating with her husband to Indonesia in 2015, the Applicant spent shorter periods of time in Australia including nine day, seven day and 10 day visits in 2015; seven day, 12 day and 25 day visits in 2016;
a 16 day visit in 2017, followed by a 243 day visit later in 2017 commencing approximately two months before the birth of the Applicant’s child (movement records in Exhibit A2; transcript, pages 12-13).
One of the Applicant’s school friends, Pearl, who provided a reference in support of the Applicant, described the Applicant settling back into her life in Perth when she visited
(in Exhibit A2):
Whenever she [the Applicant] returns, she goes back to her normal life here, living in the suburbs and spending time with family and friends. We continue to maintain our friendship and would often meet up when she is back, doing domestic activities attune to living as a local in Perth, such as grocery shopping or driving around in her car that she keeps parked in her family’s home.
Another of the Applicant’s friends stated she and the Applicant attended exercise classes together following the birth of the Applicant’s daughter (letter from Judy in Exhibit A2).
In summary, the Applicant resided in Australia from 2000 until relocating to Indonesia with her husband in 2015. She regularly returned to Perth to visit family and friends approximately three times per year, and the Tribunal accepts that she quickly settled back into her Australian life during these visits. Consequently, this factor tends to weigh in favour of the Applicant having a close and continuing association with Australia.
Intention to reside in Australia
The Applicant stated that it has always been her and her husband’s intention to move back to Perth in the “near future” for their children’s schooling. She further stated that,
“the decision to follow my husband was to keep our family together” (Exhibit A2, page 3).
At the hearing, the Applicant stated that she agreed with her husband that they would return to Australia in the next two and a half years when her daughter is in the early years of primary school (transcript, page 18).
The Applicant’s husband stated in a letter to the Tribunal dated 3 April 2019 (in Exhibit A2):
…The plan has always been to move back when our children enter school, currently the aim is latest 2021 if not earlier.
I plan to resume work… in Perth when we move back in 2021 and hopefully start up my own business.
I hope you can exert your discretion for my wife’s stay requirements as we were trying to keep our family unit together.
This intention to return to Perth was also noted in written references from the Applicant’s school and other family friends that were before the Tribunal. The Applicant’s friend Julia said in her written reference, “Even though Pei Fen and her husband currently need to be in Jakarta for her husband’s work, Pei Fen has told me her hope is to move back to Australia in the near future and to raise her daughter here among her family and friends” (in Exhibit A2). A friend of the family whose daughter went to school with the Applicant, Thiam, stated that the Applicant, “lives in Indonesia at the moment because her husband currently works there, but she looks forward to returning to Perth as a family when her daughter is older”. Another friend of the family who has known the Applicant and her parents since 2002 also stated in his letter of reference that the Applicant “and her husband have expressed intention to live permanently in Australia and raise their children in Perth which
[the Applicant] has long regarded as home” (in Exhibit A2).
The Applicant also stated that her child is enrolled in an Australian play school (see letter from play school in Exhibit A2) “in preparation to transition her smoothly back into the Australian education system when she returns”. She has not yet been enrolled in a school in Australia, however the Applicant would like her child to attend the same high school that she did (transcript, page 18). The Applicant also filed confirmation that her daughter has been vaccinated in accordance with the Australian vaccination schedule, which she stated was in preparation for school (see immunisation history statement in Exhibit A2).
Her child’s regular general practitioner and a specialist are also based in Perth (letter from specialist in Exhibit A2), and her child’s health records are registered in Australia
(see letter from My Health Record in Exhibit A2). The Applicant’s child’s cord blood and tissue is also stored in Australia (see certificate in Exhibit A2).
The Applicant and her husband have maintained a car and car insurance, as well as continuing to pay private health insurance in Australia (Exhibit A2, page 4; see also health and car insurance certificates in Exhibit A2).
Although no clear return date has been nominated for the Applicant, her husband and child to return to Australia, the Tribunal finds that the evidence discussed above shows a strong intention to reside in Australia in approximately the next one to three years.
This factor weighs in favour of the Applicant having a close and continuing association with Australia.
Applicant on leave from employment in Australia while accompanying spouse overseas
The Applicant is not on leave from employment in Australia. She resigned from her employment in the finance industry to accompany her husband overseas and is currently working in the area of marketing for her husband’s company in Indonesia (transcript, page 19).
The Tribunal finds that this factor tends to weigh against the Applicant having a close and continuing association with Australia.
Ownership of property in Australia
The Applicant and her husband stay at either of their parent’s homes when they visit Australia. They have dedicated bedrooms where they keep clothing, toiletries and keepsakes. They both own investment properties in Perth, and the Applicant’s husband also owns a property in another Australian state. They intend to move into the Applicant’s husband’s rental property when they return to Perth (Exhibit A2, pages 4-5). The Applicant also stated that the properties were a part of a plan to move back to Australia and to provide a form of income while she and her husband sought employment (transcript,

page 16). As noted in paragraph [69] above, the Applicant and her husband have also continued to own and maintain a car, including paying car insurance (Exhibit A2, page 4, and see attached insurance certificate).
Although ownership of property is, in the Tribunal’s opinion, not necessarily indicative of a close and continuing association with Australia, in these circumstances, where the ownership of the properties is linked to a desire to re-settle in Australia, this factor weighs slightly in favour of the Applicant having a close and continuing association with Australia.
Payment of income tax in Australia over the past four years
The Applicant has not paid income tax in Australia during the four years she has been overseas. The Applicant’s representative submitted that this was because any income the Applicant earnt from her rental properties was below the income tax threshold (transcript, page 6).
Nevertheless, the lack of a payment of any income tax in Australia tends to weigh against the Applicant having a close and continuing association with Australia.
Active participation in Australian based activities or organisations
The Applicant is a member of her university and high school alumni groups. With respect to her high school alumni association, the Applicant stated that she receives
“frequent updates about the happenings in our school community as well as invitations to many events” (Exhibit A2, page 5). In the Tribunal’s opinion, these types of memberships are bestowed to all graduates, and there is no evidence of active participation by the Applicant.

The Applicant did, however, participate in a mothers’ group following the birth of her daughter in 2017 for approximately four months. She stated that after this time many of the mothers returned to work but maintained active communication with each other through participation in a Facebook mothers’ group (Exhibit A2, page 5).
At paragraphs [58] and [59] above, the Tribunal referred to letters from two of the Applicant’s school friends. In summary, the Applicant’s friend, Pearl, stated that when she returns to Perth the Applicant returns to her normal local activities as if she is living in Perth. Her other friend, Judy, described attending exercise classes with the Applicant following the birth of the Applicant’s daughter.
The Tribunal finds that the Applicant has had minimal participation in Australian based activities and organisations in the four years prior to her citizenship application, which weighs only slightly in favour of her having a close and continuing association with Australia.
CONCLUSION
Most of the factors above weigh in favour of the Applicant having a close and continuing association with Australia during her periods of absence. The Tribunal finds that she satisfies s 22(9)(d) of the Citizenship Act because she had a close and continuing association with Australia during her periods of absence in the four years prior to her application for citizenship.
This means that the Applicant meets the pre-requisite to the exercise of the discretion contained in s 22(9) of the Citizenship Act. She should be considered as having been present in Australia as a permanent resident during the relevant periods of absence.
The delegate of the Respondent who made the Reviewable Decision decided that the Applicant did not have the required close and continuing association with Australia and consequently did not assess the other eligibility criteria relevant to the Applicant’s application (PT7, page 70).
Therefore the correct or preferable decision is to set aside the Reviewable Decision and remit the matter to the Respondent with the direction that the Applicant satisfies the close and continuing association criterion in s 22(9)(d) of the Citizenship Act, so that the Respondent can consider the other eligibility criteria that were not assessed.
DECISION
The Reviewable Decision, being the decision dated 5 November 2018 to refuse the Applicant’s application for Australian Citizenship, is set aside.
The matter is remitted to the Respondent for reconsideration with the direction that the Applicant had a close and continuing association with Australia during the four years prior to her application for citizenship. Accordingly, she should be considered as having been present in Australia as a permanent resident during that period in accordance with the discretion provided for in s 22(9) of the Citizenship Act.

I certify that the preceding 82 (eighty–two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......................[sgd]................................................
Associate
Dated: 15 May 2020

Date of hearing: 3 October 2019

Representative for the Applicant:
Mr Boon Eng Loh

Solicitor for the Applicant: Partner Australia Pty Ltd

Counsel for the Respondent: Mr A Burgess

Solicitor for the Respondent: Sparke Helmore Lawyers

Date of hearing:	3 October 2019
Representative for the Applicant:	Mr Boon Eng Loh
Solicitor for the Applicant:	Partner Australia Pty Ltd
Counsel for the Respondent:	Mr A Burgess
Solicitor for the Respondent:	Sparke Helmore Lawyers