(a) Joint Hearing Bundle, including the parties' written submissions and excluding a written statement prepared on the Applicant's wife's behalf which was not adopted by that witness during the hearing (525 pages) (Exhibit 1); > > (b) Extract from the Department's Integrated Client Service Environment (ICSE), interval calculator citizenship dated on or about 7 July 2025 (one page) (Exhibit 2); > > (c) Offer to Reserve Residential Premises dated 3 July 2025 (two pages) (Exhibit 3); > > (d) Extracts from ICSE, being the visa list and the visa detail pages for any visas in effect in the preceding four years prior to the conferral application (four pages) (Exhibit 4); and > > (e) Applicant's Movement Record, as of 24 October 2025 (six pages) (Exhibit 5).

3. The Tribunal took oral evidence from the Applicant, his wife, and his two sons.
4. The parties filed and served closing submissions in writing, the last of which was dated 28 November 2025.

The Applicant's birth outside of Australia and whether he is stateless

1. The Applicant was born in Brunei in September 1960.[4] His parents are recorded on his Bruneian birth certificate as being 'Chinese nationals'.
2. At that time, the Constitution of Brunei, which commenced on 29 September 1959, referred to 'a Bruneian or a citizen of Brunei' as 'a subject of His Majesty the Sultan and Yang Di-Pertuan by virtue of the provisions of any written law relating to nationality' (s 2(1)). Brunei had been a British Protectorate. It became fully sovereign in January 1984. The US State Department advises that the 'laws concerning citizenship were created to be in accordance with general Islamic law.'[5]
3. The Brunei Nationality Act 1962 (Brunei) (Brunei Nationality Act) provides:

National status. > > 3. A subject of His Majesty the Sultan and Yang Di-Pertuan shall have the status of a national of Brunei Darussalam. > > Subject of His Majesty by operation of law. > > 4. (1) On and after the appointed day the following persons, and no others, shall be subjects of His Majesty the Sultan and Yang Di-Pertuan by operation of law - > > (a) any person born in Brunei Darussalam before, on or after the appointed day who is commonly accepted as belonging to one of the following indigenous groups of the Malay race, namely, Belait, Bisayah, Brunei, Dusun, Kedayan, Murut or Tutong and any person born outside Brunei Darussalam before, on or after the appointed day, whose father was, at the time of birth of such person, a subject of His Majesty the Sultan and Yang Di-Pertuan by operation of law under this paragraph or paragraph (c)(i) and was employed outside Brunei Darusalam in the service of the Government, by any company registered in Brunei Darussalam or in such special circumstances as His Majesty the Sultan and Yang Di-Pertuan thinks fit, if the birth of such person was registered at a Brunei Darussalam Consulate or in Brunei Darussalam within 6 months of its occurrence, or such longer period as His Majesty the Sultan and Yang Di-Pertuan may in any particular case allow; > > (b) any person born in Brunei Darussalam before, on or after the appointed day whose father and mother were both born in Brunei Darussalam and are members of any of the groups of people specified in the First Schedule and any person born outside Brunei Darussalam before, on or after the appointed day, whose father was, at the time of birth of such person, a subject of His Majesty the Sultan and Yang Di-Pertuan by operation of law under this paragraph or paragraph (c)(ii) and was employed outside Brunei Darussalam in the service of the Government, by any company registered in Brunei Darussalam or in such special circumstances as His Majesty the Sultan and Yang Di-Pertuan thinks fit, if the birth of such person was registered at a Brunei Darussalam Consulate or in Brunei Darussalam within 6 months of its occurrence, or such longer period as His Majesty the Sultan and Yang Di-Pertuan may in any particular case allow; > > ... > > (2) His Majesty the Sultan and Yang Di-Pertuan may from time to time by notification in the Gazette amend, repeal, add to or vary the First Schedule. > > ... > > FIRST SCHEDULE > > (section 4) > > MEMBERS OF GROUPS OF PEOPLE WHO ARE CONSIDERED TO BE INDIGENOUS TO BRUNEI DARUSSALAM WITHIN THE MEANING OF THIS ACT > > Bukitans > > Dayaks (sea) > > Dayaks (land) > > Kalabits > > Kayans > > Kenyahs (including Sabups and Sipengs) > > Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and > > Kanowits) > > Lugats > > Lisums > > Melanaus > > Penans > > Sians > > Tagals > > Tabuns > > Ukits > > and any admixture of the above with each other, or with a subject under section 4(1)(a)

4. Section 5 of the Brunei Nationality Act makes provision for acquisition of 'national status' by registration. It generally requires that a person be born in Brunei, have been resident for 12 of the prior 15 years (including throughout the two years immediately preceding the date of application), pass a test demonstrating sufficient knowledge of Malay language, and that they are of good character.[6]
5. It is immediately apparent from the above provisions that the Applicant is not considered to be a 'subject of His Majesty the Sultan' by operation of Bruneian law, because of his Chinese ethnicity which is not considered to be one of the 'indigenous groups' of Brunei. He is, however, eligible to acquire that status by registration.
6. The Applicant testified that his paternal grandmother was a Bruneian subject and that he had previously applied for registration in the 1990s, but he failed the test requiring demonstration of sufficient knowledge of the Malay language.
7. Article 1(1) of the Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, [1974] ATS 20 (entered into force 13 March 1974), provides that, for the purposes of that Convention, the term 'stateless person' means 'a person who is not considered as a national by any State under the operation of its law.'
8. The Citizenship Act incorporates the international concept of statelessness, and Australia's interpretation of the scope of its obligations to reduce it.[7]
9. Much like the case of Koroitamana v The Commonwealth [2006] HCA 28; (2006) 227 CLR 31, this is not a 'true case of statelessness' because the Applicant's status in Brunei can be 'readily cured by registration' ([78]). In this respect, the Tribunal notes that the Applicant can readily complete any necessary study of the Malay language for the purposes of successfully completing the language test and that he does not have a permanent or enduring physical or mental incapacity which would pose an impediment to him doing so. He has also worked and lived in that country for most of his life.
10. However, the Tribunal accepts that there are reliable reports of 'a de facto suspension of citizenship approvals for stateless adult residents' in Brunei, most of whom are 'native-born, of Chinese heritage, and from families resident in the country for generations', or, at least, lengthy delays in the acquisition of Bruneian citizenship by people in this cohort.[8]

Association with Australia and conferral application

1. In November 1983, the Applicant was married, in Brunei, to a Malaysian national - Ms Houng.[9] The wife became an Australian citizen on 20 September 2023.[10]
2. From 23 September 1985, the Applicant has run his own construction company in Brunei - the Hiew H. Y. Enterprise Company.[11] That business has been successful, and the Applicant and his business partner presently employ 130 persons. It is the main source of the Applicant's (and his wife's) income.[12]
3. The Tribunal was told that the Applicant had transferred some 3.4 million (AUD) to various bank accounts in Australia in preparation for retirement,[13] and that he had approximately $700-800K in bonds saved in Brunei (including a separate $10K saving bond with the Bank Islam Brunei Darussalam Berhad).[14]
4. The Applicant and his wife have two sons to their union: Jason (38) and Jeff (34). The eldest son was born in Brunei and acquired his father's status at birth. The youngest son was born in Malaysia and acquired Malaysian citizenship at birth. Both sons are now Australian citizens.
5. The Applicant owns a 2,294 square metre property in the Tutong District of Brunei.[15] He acquired that property as the beneficiary of the estate of one of his Bruneian-citizen relatives in 2004.
6. In August 1997, the Applicant obtained a tourist visa to visit Australia.[16] He travelled to Perth, with his family, by commercial flight from Singapore between 22 August 1997 and 27 August 1997.[17]
7. On 18 June 2004, the Applicant obtained a Class AD Subclass 127 Business Owner (permanent) visa.[18] His wife and children were dependent applicants for that visa. The family travelled to Australia on 14 January 2005.[19]
8. The Applicant departed on 15 March 2005, returning thereafter on a yearly basis for short periods. However, his wife and children remained resident in Australia. The eldest son commenced tertiary studies and the youngest completed high school, followed by tertiary studies.
9. The Tribunal was told that the Applicant initially set up a business in Australia, J&J Exports Pty Ltd, but this business folded by 2009.[20] The Applicant's movements do not support him spending any extended time in that business in Australia.
10. The eldest son presently works in the information technology field and is married to a permanent resident.[21] They have a 6-year-old son (Master N).[22] They live at the Applicant's premises in Rossmoyne, with the Applicant's wife.
11. The Applicant owns two other properties in Perth, one in Willetton and the other in Booragoon.[23] At the time of the Tribunal hearing, the Applicant and his wife had entered a contract to reserve residential premises at the Seventh-day Adventist Aged Care premises opposite from their current home in Rossmoyne.[24]
12. The youngest son is a medical scientist and is married to an Australian citizen.[25] They have an 8-month-old daughter (Miss A).[26] They live in Nedlands.
13. The eldest son owns property in Shelley and Mount Pleasant.[27] The youngest son owns property in Riverton and Nedlands.[28]
14. The Tribunal was told that the Applicant had provided his children with financial assistance to complete their tertiary studies, acquire vehicles, and to purchase the above properties.[29]
15. On 22 September 2023, when the Applicant applied for conferral approval, and on 6 February 2025, when he sought merits review, the Applicant was a 'permanent resident' for the purposes of the Citizenship Act.
16. Section 5 of the Citizenship Act is in the following terms:

(1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if: > > (a) the person is present in Australia at that time and holds a permanent visa at that time; or > > (b) both: > > (i) the person is not present in Australia at that time and holds a permanent visa at that time; and > > (ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia ... > > (emphasis added)

17. In the almost 21 years since the Applicant first held a permanent visa and was present in Australia, he has spent some 1,631 days in Australia or 21.49% of the available time (as of 24 October 2025).[30]
18. The general residence requirement in s 22(1) of the Citizenship Act focuses upon 'the period of 4 years immediately before the day the person made the application.' In that period, the Applicant had the following movements and visa status:

Eight arrivals/departures between 7 Oct 2023 and 24 Sept 2025

Permanent visa (in effect from 30 May 2023; ceased 12 Jun 2024)

Permanent visa (in effect from 30 May 2023; ceased 12 Jun 2024)

Permanent visa (in effect from 30 May 2023; ceased 12 Jun 2024)

Permanent visa (in effect from 2 Jun 2022; ceased 30 May 2023)

Permanent visa (in effect from 2 Jun 2022; ceased 30 May 2023)

Permanent visa (in effect from 2 Jun 2022; ceased 30 May 2023)

Permanent visa (in effect from 2 Jun 2022; ceased 30 May 2023)

Permanent visa (in effect from 2 Jun 2022; ceased 30 May 2023)

Permanent visa (in effect from 9 Nov 2019; ceased 9 Nov 2020)

Permanent visa (in effect from 9 Nov 2019; ceased 9 Nov 2020)

Permanent visa (in effect from 9 Nov 2019; ceased 9 Nov 2020)

Permanent visa (in effect from 9 Nov 2019; ceased 9 Nov 2020)

Permanent visa (in effect from 20 Sep 2018; ceased upon departure)

Permanent visa (in effect from 20 Sep 2018, ceased 10 Oct 2019)

1. At no stage, during that four-year period, was the Applicant an 'unlawful non-citizen' (a non-citizen in the migration zone who does not hold a visa that is in effect). However:

(a) he was not present, in Australia, for the whole four-year period (absent 1,300 days);[31] > > (b) nor was he, in Australia, as a permanent resident, for the period of 12 months immediately before the conferral application (absent 303 days);[32] and > > (c) he was not a permanent resident between 11 October 2019 and 8 November 2019, 10 February 2020 and 1 February 2021, and 3 February 2022 and 1 June 2022.[33]

2. On 28 January 2025, the Minister's delegate formed the opinion that the Applicant did not have a close and continuing association with Australia for the purposes of s 22(9)(d) of the Citizenship Act.[34] Nevertheless, their reasons for decision state that they 'decided not to exercise the discretion' in s 22(9) of the Citizenship Act to waive this requirement. The Tribunal would observe that the discretion was not enlivened absent satisfaction of each of the requirements of the section.
3. On 6 February 2025, the Applicant sought review of the delegate's decision under s 52(1)(b) of the Citizenship Act.[35]
4. The review application was made to the Tribunal within time and the Applicant was a permanent resident when he lodged the application, accordingly the review was not prohibited by s 52(2) of the Act.

The role of policy in citizenship decision-making

1. There are a series of policy documents which have been drafted in an exercise of executive power to guide discretionary decisions made under the Citizenship Act. It has been held that the adoption of a policy in such cases 'promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike'.[36]
2. In Clive Elliott Jennings & Co Ltd v Western Australian Planning Commission [2002] WASCA 276, Barker J observed:

[25] Much has been written about the use of policy in administrative decision‑making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4; [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] UKHL 9; [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates ... > > [26] A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be "cautious and sparing", occurring only where there were "cogent reasons": 644 ‑ 5.

3. The first relevant policy document is the 'Australian Citizenship Policy Statement' dated 7 February 2025.[37] This document 'articulates the principles and objectives of the Citizenship Program, which are designed to achieve rational outcomes aligned to the [Executive Government's objectives]' and provides 'context for the Citizenship Procedural Instructions (CPIs) use by [decision-makers]' ([2]).
4. At paragraphs [3.2], [3.3], and [3.5], the Australian Citizenship Policy Statement indicates:

3.2. Principles and objectives of administering the Citizenship Act > > Principles > > Australian Citizenship Program settings:

• - promote the value of Australian citizenship;
• - strengthen social inclusion, democratic resilience and Australian multicultural society;
• - emphasise the importance for all Australian citizens to understand the responsibilities and privileges of Australian citizenship and what it means to be an Australian citizen;
• - support and encourage eligible applicants to complete their migration journey and become Australian citizens; and
• - do not exclude or prioritise on the basis of nationality, religion, gender, age, or economic investment.

Objectives > > In delivering the Citizenship Program, the Department [of Home Affairs] seeks to:

• - identify and remove unnecessary barriers to citizenship uptake;
• - promote the value of citizenship and increase citizenship uptake;
• - align citizenship products and services with the Government's vision to deliver simple, secure and connected public services for all Australians through world-class data and digital capabilities;
• - identify and address emerging needs in order to develop and administer a Citizenship Program that is fit for purpose; and
• - process applications in a manner that is consistent, risk-based, timely and efficient, regardless of the applicant's location.

3.3. Rights and obligations of Australian citizenship > > The rights and obligations of Australian citizenship include:

• - the right to apply for an Australian passport and re-enter Australia freely;
• - the right to ask for consular assistance from an Australian consulate while overseas;
• - the right and obligation to vote in federal, state or territory, and local elections and Constitutional referenda and plebiscites;
• - the right to seek election to parliament (subject to section 44 of the Australian Constitution);
• - the right to apply for children born overseas to become Australian citizens by descent;
• - the right to apply for a job in the Australian Public Service or in the Australian Defence Force;
• - the obligation to defend Australia should the need arise; and
• - the right and obligation to serve on a jury if called to do so.

... > > 3.5. Acquiring citizenship by application > > The other way to become an Australian citizen is by application to the Minister. Division 2 of Part 2 of the Citizenship Act covers this. > > There are four situations in which a person can apply for Australian citizenship:

• - Citizenship by descent (Subdivision A of the Citizenship Act);
• - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement (Subdivision AA of the Citizenship Act);
• - Citizenship by conferral (Subdivision B of the Citizenship Act); and
• - Resumption of citizenship (Subdivision C of the Citizenship Act).

... > > Australian citizenship by conferral > > There are seven ways a person may be eligible for Australian citizenship by conferral (Subdivision B of Division 2 of Part 2 of the Citizenship Act). These include the following situations:

• - ...
• - Persons aged 60 or over or who have a hearing, speech or sight impairment (as per subsection 21(4) of the Citizenship Act) (refer to CPI 3 - Australian Citizenship by Conferral - 60 or over or Impairment - PI (VM-5280));

1. Section 21(4) of the Citizenship Act is in the following terms:

Person aged 60 or over or has hearing, speech or sight impairment > > (4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: > > (a) is: > > (i) aged 60 or over at the time the person made the application; or > > (ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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) understands the nature of the application at the time the person made the application; and > > (d) 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 > > (e) 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 > > (f) is of good character at the time of the Minister's decision on the application.

2. CPI 3 Citizenship by Conferral - Person aged 60 or over, or has a hearing, speech or sight impairment indicates at paragraph [1] that '[t]o the extent that the [Citizenship] Act allows for discretion, [decision-makers] must consider the [Government's] policy and procedures where relevant, and appropriate, in decision-making'.
3. It was accepted by the delegate, and not in dispute before the Tribunal, that the Applicant met the requirements of ss 21(4)(a) and (b) of the Citizenship Act. The term 'at the time of the Minister's decision on the application' means the time of the Tribunal's decision on review and having regard to the relevant evidence before the Tribunal at that time.[38]
4. During the hearing of the review, the Applicant was evidently over 60 years of age and was a permanent resident. The Tribunal finds that the Applicant satisfies the criteria in ss 21(4)(a) and (b) of the Citizenship Act.
5. The delegate did not assess whether the Applicant satisfied the criteria in ss 21(4)(c), (e), or (f) of the Citizenship Act. The Tribunal need not consider the last two criteria but notes that s 21(4)(e) is in similar terms to s 22(9)(d) of the Act (considered below).
6. The Tribunal would require criminal history checks to be undertaken for it to properly consider the good character requirements found in s 21(4)(f). That is best done on any remittal.
7. In respect of the criterion in s 21(4)(c) of the Citizenship Act, the Tribunal notes that applicants over 60 years of age are not required to successfully past the Citizenship Test (which is the only method that can satisfy the Minister of the general eligibility requirements found in ss 21(2)(d) to (f), including that the applicant understands the nature of the application).
8. The Applicant declared in his conferral application that:

They acknowledge that this application constitutes an application for evidence of Australian citizenship. > > They recognise that by becoming an Australian citizen the applicant will become a formal member of the community of the Commonwealth of Australia. > > They understand that Australian citizenship is a shared identity, a common bond which unites all Australians while respecting their diversity. > > They understand that Australian society values:

• - respect for the freedom and dignity of the individual;
• - freedom of religion (including the freedom not to follow a particular religion), freedom of speech, and freedom of association;
• - commitment to the rule of law, which means that all people are subject to the law and should obey it;
• - parliamentary democracy whereby our laws are determined by parliaments elected by the people, those laws being paramount and overriding any other inconsistent religious or secular "laws";
• - equality of opportunity for all people, regardless of their gender, sexual orientation, age, disability, race, or national or ethnic origin;
• - a 'fair go' for all that embraces: mutual respect, tolerance, compassion for those in need, and equality of opportunity for all;
• - the English language as the national language, and as an important unifying element of Australian society.

They accept that Australian citizenship involves reciprocal rights and responsibilities. The responsibilities of citizenship include obeying Australian laws, including those relating to voting at elections and serving on a jury. > > In seeking to become an Australian citizen, the applicant undertakes to accept these responsibilities and undertakes to conduct themselves in accordance with these values of Australian society, and to obey the laws of Australia. > > They undertake to make reasonable efforts to learn the English language, if it is not their native language. > > They understand that, if in the future they meet the legal qualifications for becoming an Australian citizen and their application is approved, they will need to pledge their loyalty to Australia and its people. > > They recognise that a prosperous, successful and peaceful Australia depends upon the support of all Australians, including the application, for those things that we value and share.

1. There is nothing before the Tribunal to indicate that the Applicant did not understand the nature of the application based on that electronically signed declaration. He is currently running a successful business in Brunei. The declarations made by the Applicant accurately characterise Australian values and the rights and responsibilities of citizenship. The Applicant was able to articulate to the Tribunal why he wished to become an Australian citizen, namely because he currently does not have national status in any country and he wishes to obtain an Australian passport for the purposes of facilitating easier travel abroad, including with the rest of his Australian citizen family. The Tribunal finds that the Applicant satisfies s 21(4)(c) of the Citizenship Act.
2. Applicants must generally satisfy one of the residence requirements found in ss 22 (general residence), 22A and 22B (special residence), or 23 (defence service) of the Citizenship Act. It was accepted that the Applicant did not meet those requirements absent the exercise of the discretion in s 22(9).
3. Section 22 of the Citizenship Act provides:

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. > > (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.

4. Accordingly, both s 22(1A) and 22(1B) of the Citizenship Act do not assist the Applicant with respect to the general residence criteria in ss 22(1)(a) and 22(1)(c) of the Act.
5. Section 22(9) of the Citizenship Act is in the following terms:

Ministerial discretion - spouse, de facto partner or surviving spouse or defacto partner of Australian citizen > > (9) If the person is the spouse ... 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 ... 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.

6. The Applicant's wife became an Australian citizen on 20 September 2023 (immediately prior to the conferral application).
7. In Minister for Immigration and Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 (Han),[39] the Full Court held that s 22(9)(a) of the Citizenship Act merely requires that an applicant's spouse be an Australian citizen at the time the conferral application is made, and that they were the applicant's spouse during each relevant period under consideration (but not necessarily also an Australian citizen during the entirety of those relevant periods) ([25], [38], [46], [63]).
8. The Full Court observed that the evident purpose behind ss 22(1A), (1B), and (9) of the Citizenship Act was 'to qualify or ameliorate the strictness of the general residence requirement' ([51]), and that the Minister/Tribunal 'retains a residual discretion' to refuse to approve a person becoming an Australian citizen, notwithstanding that the person has established eligibility for it ([42]).
9. The Full Court referred to the explanatory memoranda for the Australian Citizenship Bill 2005 (Cth) and remarked that these 'indicate that it was intended that spouses of Australian citizens should generally meet the same criteria as other adult applicants and not merely rely on a spousal relationship. It is equally evident, however, that it was intended to ameliorate this policy by conferring a discretion upon the Minister to "waive" part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia' ([53]-[62]).
10. The Applicant accepted that, for the discretion in s 22(9) to be enlivened, he was relevantly required to be a 'permanent resident' during the period(s) in which he was not present in Australia (in addition to the other requirements of the section).[40]
11. The Applicant conceded that he was not a permanent resident for an aggregate of 229 days of the four-year period (but contended that he was one during the preceding 12-month period). He argued that he could still avail himself of the discretion in respect of the periods of absence during which he was a permanent resident.[41]
12. In support of that construction, the Applicant referred to the observations of Edmonds J in Kumar v Minister for Immigration and Border Protection [2015] FCA 446; (2015) 231 FCR 308 (Kumar),[42] where his Honour expressed the tentative view that, where the discretion in s 22(9) is enlivened, it would authorise the Minister/Tribunal to treat both the preceding four year period (referenced in s 22(1)(a)) and the preceding 12 month period (referenced in s 22(1)(c)) as 'a period ... in which [a] person was present in Australia as a permanent resident' ([34]-[37]).
13. The Minister agreed with that proposed construction of the Citizenship Act, and the Applicant's argument that he could rely on the discretion during the overseas periods where he was a permanent resident (subject to satisfaction of the other requirements of the section).[43]
14. It was agreed that the Applicant satisfies ss 22(9)(a) and (b). The parties, however, disputed that the Applicant satisfies the requirement in s 22(9)(d), that he 'had a close and continuing association with Australia' during the periods of absence.
15. The term 'close and continuing association' is not defined by the Citizenship Act. It was confirmed in Judd v Minister for Immigration and Border Protection (2017) 72 AAR 349[44] that the term should be given its ordinary meaning, including 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 [and] a multi-factorial approach' ([14]).
16. In Hammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833, Abraham J remarked that 'a person does not come within the exception simply by establishing some form of connection within Australia or with Australians or with something that is connected to Australia. Rather, the nature of the proximity to Australia needs to be assessed in light of the statutory scheme. It needs to be of such a nature as to warrant a departure from the application, that is the strict application, of the residence requirements. That is a factual assessment' ([17]).
17. CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association sets out factors which the Tribunal may find helpful in determining whether it is satisfied that the Applicant had a close and continuing association with Australia, these include:

(a) pre-existing connection with Australia; > > (b) employment status in Australia; > > (c) whether the Applicant has paid income tax in Australia in the preceding four years; > > (d) overseas employment or business; > > (e) family relationships; > > (f) return travel to, and periods of residence in, Australia; > > (g) primary residence and migration status in foreign country; and > > (h) intention.

18. The Applicant argued that he had a close and continuing association with Australia during the relevant period because:

(a) he had established a home in Australia, had previously owned a business in Australia, has ties through his wife's church, has dealings regarding investment properties, has two resident children and grandchildren; > > (b) has paid income tax in Australia during the period, holds over 3 million in cash reserves here and owns property here; > > (c) all of his immediate family reside in Australia; > > (d) the applicant frequently travelled to Australia (and his family occasionally travelled to Brunei to see him); and > > (e) the Applicant's stated intention to reside in Australia in the future, subject to his reliance on income derived in Brunei.[45]

19. The Minister agued that the Tribunal should not accept that the Applicant had a close and continuing association with Australia during the period because:

(a) whilst physical presence in Australia is not determinative, it is a highly relevant and important factor in determining whether they had such an association; > > (b) the longest period that the applicant has been in Australia is 2 months and 1 day between 14 January 2005-15 March 2005 and 12 January 2007-13 March 2007; > > (c) it cannot be said that the Applicant thinks of Australia as 'home' when he only visits between three and four times a year for periods of usually under a month; > > (d) the Applicant's physical absence should weigh heavily against a finding that he maintained a close and continuing association with Australia; and > > (e) ownership of investment properties is not indicative of a close and continuing association with Australia.

20. As observed above, between September 2019 and September 2023, the Applicant spent some 1,300 days overseas, or three and a half years of the four-year period. During that time, his wife and children and one grandchild were resident in Western Australia. The second grandchild was born in 2025 (outside the four-year period).
21. It may be accepted that the COVID-19 pandemic potentially had a role to play regarding the Applicant's absence from Australia in 2020-2021. At a federal level, inward travel restrictions on foreign nationals entering Australia from any country were implemented on 20 March 2020.[46] These continued until 1 December 2021, when fully vaccinated visa holders were permitted to travel. On a state level, the Commissioner of Police and State Emergency Coordinator for Western Australia made directions under the Emergency Management Act 2005 (WA) on 5 April 2020 prohibiting entry into the State without approval.[47] Those arrangements ceased on 3 March 2022.[48]
22. The Applicant returned to Australia (after departing on 13 February 2020) on 19 June 2022. His movement records demonstrate that he had historically travelled to Australia for short periods between February, April-May, September-October, and December-January each year. Accordingly, the Tribunal does not accept that the COVID-19 pandemic in fact provides an adequate excuse for the Applicant spending most of that four-year period in Brunei. Instead, the Tribunal finds that the Applicant chose to spend the last 21 years living in Brunei because that was where he was running a successful business (including with lower tax liabilities).
23. Contrary to the Minister's submissions, the Applicant's longest periods of residence in Australia were 60 days, between 14 January 2005 and 15 March 2005, 12 January 2007 and 13 March 2007, and between 18 June 2007 and 17 August 2007, respectively.[49] The only recent periods of similar duration were 59 days between 15 December 2016 and 12 February 2017, and 45 days between 19 June 2022 and 3 August 2022.[50] The Applicant, on average, travelled to Australia three times per year since 2005.[51] Each visit was generally short in duration and of approximately three weeks duration (on average).
24. The Tribunal accepts that the Applicant's immediate family are all Australian citizens or Australian permanent residents. It accepts that they made Australia their home, with the Applicant's support (particularly his financial support). The Applicant participates and contributes to their life when he is in Australia, and by remote means when he is not. This includes association with his wife's church and her friends.
25. The Applicant paid income tax in Australia during the period.[52] However, it was clear that most of the Applicant's income was earnt in Brunei. The Tribunal notes that Brunei does not have a personal income tax, and that the Applicant would have been paying corporate income tax in Brunei on that income.
26. The Tribunal accepts that the Applicant intends to retire to Australia at some stage in the future. Until then, he remains a non-resident for tax purposes (at least in respect of most of his income including interest on savings).[53]
27. The Tribunal was told that the Applicant and his wife could take possession of their retirement villa in November 2025. He was asked why they had decided to move from their residence across the street. He said that his son and grandchild needed their space, and that his wife likes to go to bed early. The Applicant testified that he and his wife were not in need of care. However, he had been thinking of retirement for some time.
28. The Tribunal was told that the Bruneian construction company had secured projects until the middle or end of 2026, after which the Applicant and his business partner would reconsider their options (whether to sell the business or liquidate it). Relevantly, the Tribunal was told that the Applicant's company had been bidding for new projects because they have more than 100 employees. It was the Applicant's stated preference to sell the company rather than to liquidate it.
29. The Tribunal asked the Applicant why he was seeking Australian citizenship now instead of once he has commenced residing in Australia on a permanent basis. The Applicant told the Tribunal that his Bruneian Certificate of Identity was not a convenient document to travel on and that there were several countries which did not allow him to obtain an electronic travel authority with it. Relevantly, the Tribunal was told that the Applicant did not go on a European holiday with his children in 2024 because of the inconvenience of having to obtain a visa from each country (rather than being granted a visa-free travel authorisation available to Australian citizens in the Schengen Area).
30. Having regard to all the relevant factors and not without some hesitation caused by the lengthy absences, the Tribunal is prepared to find, on the evidence before it, that the Applicant had a close and continuing association with Australia between September 2019 and September 2023.

1. Subject to satisfaction of all of the criteria in s 22(9) of the Citizenship Act, the Tribunal has a discretion to treat periods of overseas absence as periods in which an applicant was present in Australia as a permanent resident. It was confirmed in Kumar that the section confers a wide discretionary power to consider any matters for or against treating a period as one in which the person was in Australia, provided that those matters are not 'extraneous to any objects the legislature could have had in view'.[54]
2. The Applicant argued that obtaining Australian citizenship was necessary, not only because he does not have national status in Brunei and citizenship provides a 'sense of belonging', but because it is a necessary precondition to his obtaining an Australian passport.[55] It was put that he should not be required to wait four years to obtain that Australian passport.[56]
3. The Minister argued that the Tribunal should not exercise the discretion because it was uncertain when the Applicant will, in fact, emigrate to Australia, he does not meet the residence requirement on his own volition and has chosen to remain in Brunei, and he will not suffer any significant hardship or disadvantage if his conferral application is refused.[57] Convenience of travel was said not to amount to significant hardship or disadvantage.
4. It is the policy and expectation of the Australian Government that adult applicants for citizenship should generally qualify for approval in their own right rather than relying on their relationship with an Australian citizen to meet the residence requirements. The Tribunal is given discretion to waive part or all of the residence requirements for the spouse of an Australian citizen if they meet each of the requirements of s 22(9), including demonstrating that they have had a close and continuing association with Australia. The Tribunal has found that the Applicant meets those requirements, notwithstanding that he has been habitually resident in Brunei since becoming a permanent resident of Australia. The Tribunal considers the Applicant's absences from Australia to be significant, and primarily the result of financial decisions made by the Applicant and his family.
5. On the evidence before it, the Tribunal is not satisfied that there is sufficient reason to waive the general residence requirements in this case. The Applicant's circumstances are not compelling and do not touch upon any of the public interest factors which may support intervention (for example, difficulty in meeting the residence requirements because they are accompanying their Australian citizen spouse whilst they are working for Australia, an Australian business interest or for an international organisation like the United Nations abroad). The Applicant can acquire national status in Brunei. Equally, he can acquire it in Australia once he meets the residence requirements. The Citizenship Act provides an enduring right for the Applicant to re-apply for conferral approval.
6. For the above reasons, the Tribunal is not satisfied that the Applicant meets the general residence requirement found in ss 21(4)(d) and 22(1) of the Citizenship Act.
7. The Tribunal has decided not to waive that requirement under s 22(9) of the Act.

1. Section 24(1A) of the Citizenship Act provides that the Minister must not approve an applicant becoming an Australian citizen unless the person is eligible to become a citizen under s 21 of the Act.
2. The Tribunal has found that the Applicant is not eligible to become an Australian citizen under s 21(4) of the Citizenship Act.
3. Accordingly, the Tribunal affirms the reviewable decision.

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

Ms M Woollett, Australian Government Solicitor's Office

[5] United States Office of Personnel Management, Investigations Service, 'Citizenship Laws of the World' (March 2001), p 40, accessible on the CISNET database, reference 20220622102215.

[6] See also United States Department of State, Country Reports on Human Rights Practices for 2023 - Brunei 2023 Human Rights Report, pp 18-19, accessible on the CISNET database, reference 20240423191849.

[7] See Citizenship Act, ss 3, 14 16(2)(c), 16(3)(c), 21(8); Convention on the Reduction of Statelessness, opened for signature 30 August 1961, [1975] ATS 46 (entered into force 13 December 1975); See also Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322; Koroitamana v The Commonwealth [2006] HCA 28; (2006) 227 CLR 31.

[8] See United States Department of State, Country Reports on Human Rights Practices for 2023 - Brunei 2023 Human Rights Report, pp 18-19.

[29] See Exhibit 1, pp 390 [47]-[51], 427 [59]-[64].

[33] See Applicant's closing submissions, Annexure A; Respondent's closing submissions, [15].

[36] Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569, [65].

[37] Accessible on the Department's Legend database (reference VM-5431).

[38] See VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.

[39] Minister for Immigration and Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113.

[40] Applicant's closing submissions, [3.1]-[3.7].

[41] Applicant's closing submissions, [4.1]-[4.12].

[42] Kumar v Minister for Immigration and Border Protection [2015] FCA 446; (2015) 231 FCR 308.

[43] Respondent's closing submissions, [15].

[44] Judd v Minister for Immigration and Border Protection [2017] FCA 827; (2017) 72 AAR 349.

[45] See ASFIC, [45]-[55]; Applicant's closing submissions, [5.4]-[5.23].

[46] See 'Timeline of Key events in Australian Government Response to Covid-19', Report 494: Inquiry into the Department of Foreign Affairs and Trade's crisis management arrangements (March 2023).

[47]See Western Australian Government, Quarantine (Closing the Border) Directions (5 April 2020), https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/covid\_5941.pdf/$FILE/Quarantine%20(Closing%20the%20Border)%20Directions.pdf?OpenElement.

[48] See Western Australian Government, WA's hard border lifted (3 March 2022), https://www.wa.gov.au/government/announcements/was-hard-border-lifted#:~:text=WA%27s%20Safe%20Transition%20Plan%20took%20effect%20at%2012.01am%20this%20morning.&text=Your%20browser%20does%20not%20support%20the%20audio%20element.

[51] Where travel to Australia commenced in December but ended in the new year, this was counted as travel in the preceding year.

[52] See Exhibit 1, pp 96-113, 351-358.

[54] See Kumar v Minister for Immigration and Border Protection [2015] FCA 446, [20], [22]-[34]; see also Minister for Immigration and Border Protection v Tran [2015] FCA 446; (2015) 232 FCR 540, [9], [19].

[55] See Applicant's closing submissions, [6.7].

[56] Applicant's closing submissions, [6.8].

[57] Respondent's closing submissions, [23].