Yang v Minister for Immigration and Border Protection

This matter concerned an application for Australian citizenship by conferral made by Ms Yang, a citizen of the People's Republic of China, who is married to an Australian citizen. The Minister for Immigration and Border Protection refused her application on the grounds that she did not meet the general residence requirements stipulated in section 21(2)(c) of the *Australian Citizenship Act 2007* (Cth). Ms Yang sought review of this decision, arguing that she maintained a close and continuing association with Australia that warranted consideration. The Administrative Appeals Tribunal was tasked with determining whether the decision to refuse citizenship should be affirmed.

The primary legal issues before the Tribunal were whether Ms Yang had demonstrated a "close and continuing association with Australia" during the periods she was absent from the country, and consequently, whether the discretion available under section 22(9) of the Act was enlivened. This discretion allows for the approval of citizenship applications even where the general residence requirements are not met, provided certain conditions are satisfied. The Tribunal was required to interpret the meaning of "close and continuing association" and assess the evidence presented by Ms Yang against the criteria outlined in the Citizenship Policy and relevant case law.

The Tribunal considered the ordinary meaning of "close and continuing association" and the factors listed in the Citizenship Policy, which include having Australian citizen children, a long-term relationship with an Australian citizen spouse, extended family in Australia, regular return visits, intention to reside in Australia, and ownership of property. The Tribunal noted that the assessment of whether an applicant has such an association is a qualitative one, requiring an objective evaluation of all circumstances, with the applicant's periods of physical presence in Australia being highly relevant. In this instance, the Tribunal found that Ms Yang had not established a close and continuing association with Australia during her periods of absence, and therefore the discretion under section 22(9) was not enlivened.

Even if the discretion had been enlivened, the Tribunal indicated it would not have been exercised in Ms Yang's favour. The Tribunal affirmed the delegate's decision to refuse the application for Australian citizenship by conferral.