'Close and continuing’ association with Australia for the purpose of citizenship

In, CMGM (name redacted), the applicant is a national of Mexico and entered Australia in February 2013 as the holder of a temporary Partner (Class UF) visa and was granted a Partner (Migrant) (Class BC) visa on 20 May 2014.  The applicant made the application for Australian citizenship by conferral on 20 April 2017 but was refused on the basis that the residence requirement in s 21(2) of the Act was not met.

Relevant Legislation

Section 21(2)(c) relates to the residency requirement and provides that an applicant must satisfy –

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.

Section 22(9) allows ministerial discretion to be exercised and states –

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:

 the person was a spouse or de facto partner of that Australian citizen during that period; and

the person was not present in Australia during that period; and

the person was a permanent resident during that period; and

the Minister is satisfied that the person had a close and continuing association with Australia during that period.

AAT Considerations

Whether the applicant meets the special residence requirement

The applicant must have been present in Australia for a period of four years immediately before the day the application was made, pursuant to s 22(1)(a) of the Act, and present in Australia as a permanent resident for a period of 12 months before the application was made, pursuant to s 22(1)(c) of the Act.

The AAT found that the total period of the applicant’s absence was more than 12 months.  Hence, the AAT was not satisfied that the special residence requirement was satisfied.  The Applicant relies on the discretion set out in s 22(9) of the Act.

Whether the applicant had a close and continuing association with Australia

Factors that are relevant to the consideration of s 22(9) include:

·         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]

·         evidence of active participation in Australian community-based activities or organisations.

The applicant has two children who are Australian citizens.  She has a long-term relationship with her Australian citizen spouse.  The applicant does not have extended family in Australia. 

The AAT accepted the applicant’s evidence that she travelled to Mexico to be with her extended family in order to gain assistance in caring for her children.  As the applicant’s spouse was unable to spend equal amount of time overseas due to work commitments, the Tribunal accepts that it was always the couple’s intention that the applicant would return to Australia.

The AAT was satisfied that the applicant maintained close and continuous association with Australia during the periods of her absence from Australia.  She sought to establish residence in Australia prior to her departure, she engaged in employment in Australia and ceased only to care for her two children.  She formed and maintained friendships in Australia other than with relatives and participates in activities in relation to her children. 

Decision

The decision was set aside and the matter remitted to the respondent with the direction that the applicant satisfied the requirements of s 22(9) of the Act and satisfied s 21(2)(c) of the Act.

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