1. In his submissions to the delegate and the Tribunal, the applicant outlined the nature of his association with Australia. The applicant notes that he had been residing in Australia for a number of years as a temporary resident and a permanent resident before his departure from Australia for employment purposes. The applicant states that his partner and two children are Australian citizens. He has two properties in Australia and intends to make one of these the family home when the family returns to Australia. The applicant notes that he has maintained financial links to Australia through the payment of taxes and also through financial institutions, necessary for mortgage repayments. The applicant notes that his children attend an Australian international school to help them better integrate into Australian schools once the family returns to Australia. The applicant states that he has maintained social interactions with friends and relatives in Australia. The applicant states that the reason for his departure from Australia is to work for an Australian company and it was always his and the family's intention to live in Australia. The applicant notes that he has not established himself to the same extent in any other country, he has no property anywhere else and his links to other countries are not as strong as his links to Australia.
2. The applicant presented additional written evidence to the Tribunal, including evidence of making arrangements for the children's schooling in Australia, and other materials. In his oral evidence to the Tribunal the applicant stated that he had been working for the same employer for about two years before taking up the opportunity to manage the overseas branch of the company. This enabled him to have better career prospects and increased his income. The applicant explained the arrangements the family made for maintaining contact with Australia, for the children's schooling and the plans for returning to Australia in the end of 2019. The applicant also explained the purpose of his visits to Australia.
3. The delegate found that the applicant did not meet the residence requirements. With respect to s 22(9), the delegate accepted that the applicant had a close ongoing association with his Australian citizen family but not with Australia. The delegate noted that there was no evidence that the applicant intended to live in his Australian property. The delegate noted that the applicant presented no evidence of making arrangements to relocate to Australia. The delegate concluded that the applicant had not spent enough time in Australia and had no association with Australia.
4. The Minister's submission to the Tribunal is that the applicant did not have a close and continuing association with Australia during the four years of his absence. The Minister contends that the fact that the applicant's partner and children are Australian citizens establishes his association with Australians, but not with Australia. The Minister states that the applicant's visits to Australia were in the nature of visits rather than as a resident, noting that the applicant had spent only 71 days in Australia over the 12 trips and no more than 15 days at a time. The Minister contends that the applicant may have established an association with Australia before his departure in 2012, such association has not been continuing, particularly given his significant absences from Australia since 2012. The Minister notes that the applicant has been living overseas since 2012, has not paid income tax in Australia for a number of years and has not provided any evidence of active participation in the Australian community. The Minister further contends that even if the applicant were to meet the precondition for the exercise of discretion, the Tribunal should refuse to exercise the discretion in his favour, having regard to the little time the applicant had spent in Australia. The Minister notes that the applicant does not need to obtain citizenship to remain in Australia and can make a further application for the Australian citizenship in the future.
5. Chapter 7A of the Department of Immigration and Border Protection Citizenship Policy ("the Departmental Policy") sets out factors that are relevant to the consideration of

s 22(9). These include: * (a) evidence that the person migrated to and established a home in Australia prior to the period overseas * (b) Australian citizen children * (c) long term relationship with Australian citizen spouse or de facto partner * (d) extended family in Australia * (e) regular return visits to Australia * (f) regular periods of residence in Australia * (g) intention to reside in Australia * (h) the person has been on leave from employment in Australia while accompanying their spouse or partner overseas * (i) ownership of property in Australia * (j) evidence of income tax paid in Australia over the past four year [sic] * (k) evidence of active participation in Australian community based activities or organisations. 6. In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(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. 7. The Departmental Policy details a non-exhaustive list of factors for the decision-maker's consideration. The Tribunal is not bound to apply the Departmental Policy however should give regard to, and apply the Departmental Policy unless there are cogent reasons not to do so (Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). The Tribunal is not aware of any cogent reason why it should not take the Departmental Policy into consideration in this case. 8. In Taher v Minister for Immigration and Border Protection [2013] AATA 917, the Tribunal held at [47]:

In my opinion, the factors referred to above should not be treated in isolation or simply ticked off individually as having been satisfied. It is the combination and association of these factors which may demonstrate a close and continuing association with Australia. On their own, factors such as having Australian citizen children and long-term relationships with an Australian citizen spouse or extended family in Australia may simply indicate a close and continuing association with family. That should not, in every case, be equated with a close and continuing association with Australia. As I have already indicated above, and as is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.

1. In Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 Senior Member A K Britton stated at [44]:

Whether or not [the applicant] had "a close and continuing association" ... is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions.

1. The Minister submits that it is the intention of the legislation to ensure that those seeking citizenship meet the residence requirements and the provisions in s 22 are exceptions. In Minister for Immigration and Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 the Court stated at [54]:

The passages emphasised above 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 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. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.

1. Having regard to the applicant's circumstances and the relevant Departmental Policy in relation to the application of s 22(9), the Tribunal makes the following findings.
2. The applicant has been residing in Australia since 2002, holding temporary visas until October 2011 and a permanent visa since that time. In that period, the applicant has established a home in Australia. He formed a relationship with his Australian citizen spouse and had two children who are Australian citizens. He found gainful employment. He and his partner purchased a family home where the family lived and contributed to the repayments of an investment property. He formed relationships with his partner's family, who live in Australia, and others in the community. The applicant spent very little time overseas during that period. The Tribunal is satisfied that between 2002 and 2012 the applicant had established a home in Australia and his intention was to live in Australia.
3. The applicant's relationship with his partner has been in existence since at least July 2006 when he made an application for a Partner visa and the Tribunal is satisfied it is a long term relationship. The applicant himself does not have extended family in Australia - other than his partner and two children - but the Tribunal accepts the applicant's evidence that he has formed relationships with his partner's immediate family in Australia.
4. The Minister submits that these matters show the applicant's association with Australians, rather than with Australia. The Tribunal acknowledges that an association with Australians, in this case, the Australian citizen spouse and two children, is in itself not sufficient to establish a close and continuing association with Australia, but it is not the applicant's contention that this is all there is. The applicant relies on a range of factors, as set out throughout this decision, and the applicant's association with his Australian partner and children is merely one of the considerations. It is clearly a relevant one, as the Departmental Policy itself indicates.
5. In 2012 the applicant and his family moved overseas, initially to China and later to Singapore, to enable the applicant to take on a more senior role with his employer. The applicant's movement records indicate that since that time, the applicant made regular return visits to Australia, although these were of very brief duration. Evidence before the Tribunal indicates that the applicant has spent minimal time - 71 days - in Australia in the four years before his application was made. The applicant's oral evidence to the Tribunal is that the majority of his visits to Australia were for work related purposes, although he states he tried to combine the work commitments with social and family visits whenever possible. There were a number of visits that were purely social. The Tribunal finds that even though the applicant had made regular visits to Australia, he has not established regular periods of residence in Australia and has spent minimal time in Australia since 2012 and in the relevant four year period.
6. The applicant's evidence is that he intends to reside in Australia. The applicant's evidence to the Tribunal is that he has approached a number of schools to enable his children to start schooling in 2020. Although the Tribunal is somewhat concerned that such enquiries were made shortly before the Tribunal hearing, the Tribunal accepts that the applicant and his partner have discussed plans for their children to return to Australian schools. The Tribunal acknowledges that the children have been attending an Australian school in Singapore to enable them to integrate in the Australian schools more easily. The applicant told the Tribunal that he intends to inform his employer during the annual planning meeting in February 2019 of his intention to return to Australia, although he has not had that conversation with his employer yet. The applicant told the Tribunal that he hopes he can stay with the same company and work in Sydney but if that cannot be arranged, he is prepared to leave the company and has made financial arrangements to cover that possibility. He intends to use one of the family's properties in Australia as a family home. The Tribunal accepts that the applicant has considered his and the family's future in Australia and has made arrangements for the family's relocation to Australia. The Tribunal is satisfied, on balance, that the applicant's intention is to reside in Australia.
7. There is no evidence that the applicant has been on leave from employment in Australia while accompanying his spouse or partner overseas.
8. As noted above, the applicant and his partner have several properties in Australia. There is evidence that the applicant has filed his tax returns in Australia in the four years before the application was made, although these only relate to his rental income and not in relation to any other income. The applicant does not appear to be an Australian resident for taxation purposes. While there is no evidence of tax actually being paid, the Tribunal's view is that the policy is concerned with the arrangements to establish residence in Australia, rather than with the value of the applicant's assets or the pecuniary benefit he brings to Australia through the payment of taxes.
9. There is little evidence of the applicant actively participating in community based activities or organisations. The Tribunal acknowledges that the applicant engaged in work-related functions in Australia and accepts that he travelled to Australia for family and social functions but finds such involvement had been minimal.
10. In Yang and Minister for Immigration and Border Protection [2017] AATA 364 Senior Member A C Cotter noted at [26]

The forming of an opinion as to whether a person has demonstrated the requisite association is "not a simple mechanical exercise to be undertaken by merely tallying the relevant factors",[1] or by treating the listed factors in isolation or simply "ticking" them off individually as having been satisfied.[2] What is required is "... a qualitative assessment of the ultimate significance (of) an applicant's circumstances and whether or not they merited characterisation as evidence of "a close and continuing association with Australia".[3]

1. In this case, the Tribunal has found that the applicant had established residence in Australia before his departure in 2012. He has a long term relationship with an Australian citizen partner and two Australian citizen children. He works for an Australian company and has made regular visits to Australia, predominantly but not exclusively for business purposes. He and his family own properties in Australia and have actively taken steps to maximise their assets in Australia. Despite having spent minimal time in Australia since 2012, the applicant's intention was to resume residence in Australia with his family. He has filed tax returns with the Australian Taxation Office and maintained his driver license. These considerations indicate a close and continuing association with Australia. Against such considerations is the very limited time the applicant has spent in Australia, the absence of regular periods of residence in Australia since 2012 and lack of active participation in Australian community based activities or organisations.
2. The Tribunal acknowledges the policy directive that 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. It is not in dispute that in the present case, the applicant has not been present in Australia for that period of time. However, it is for the decision-maker to determine the weight to be given to each of the factors and the Tribunal considers the above directive as an impermissible fetter on that discretion. As Justice Mortimer stated in G v Minister for Immigration and Border Protection [2018] FCA 1229 [210]:

...policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.

1. Having regard to the totality of the applicant's circumstances, and the factors set out in the Departmental Policy, the Tribunal has formed the view that the combination of these factors establish that the applicant has a close and continuing association with Australia during the period of his absence from Australia and in the relevant period before his application was made.

1. The discretion in s 22(9) is 'unconfined'. The Federal Court stated in Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [23]:

...the word "may" permits the Minister to consider any matters, either in favour of or against "treat[ing] a period as one in which the person was present in Australia as a permanent resident", provided those matters are not "definitely extraneous to any objects the legislature could have had in view"...

1. The Minister submits that the applicant has not established a strong basis for the exercise of discretion. The Minister refers to the uncertainty with respect to the applicant's future intentions and submits that the applicant can make an application for a visa at a future time after he has re-settled in Australia. The applicant argues that the same factors that establish the applicant's close and continuous association with Australia also go to the exercise of discretion.
2. The Tribunal's consideration of the applicant's circumstances is set out above. The Tribunal accepts the Minister's contention that the applicant was not required to take up the job overseas but made that decision in order to improve his career opportunities and financial benefits. Nevertheless, the Tribunal acknowledges that the applicant is employed by an Australian company and has maintained links to Australia during his residence overseas, as discussed above. Importantly, the Tribunal also acknowledges the applicant's stated intention to return to Australia with his family at the end of 2019. He commenced preparations by making enquiries about the children's schooling and purchasing a family home. The Tribunal has found the applicant's evidence concerning as his interactions with his employer in relation to his future intentions is unsatisfactory. The applicant told the Tribunal that he is yet to discuss with his employer his intention of returning to Australia and the Tribunal acknowledges that there is a possibility that this will not happen. However, on balance, the Tribunal is satisfied that the applicant has a genuine intention of returning to Australia in the future. He informed the Tribunal that the decision to obtain the Australian citizenship is an emotional one, but there are also practicalities with international travel. There is thus some basis for the applicant's desire to obtain the citizenship at present.
3. Having regard to the totality of the applicant's circumstances, the Tribunal has formed the view that the discretion should be exercised in the applicant's favour. The Tribunal finds that the applicant meets the requirements of s 22(9).

1. For the sake of completeness, the Tribunal has also considered the requirements of

s 21(2)(g) of the Act. 2. The Tribunal's consideration of the applicant's circumstances is set out above. The Tribunal has formed the view that the applicant has an intention of returning to Australia with his family at some point in the future. He has purchased a home which is intended to be the family home and has made enquiries about the children's schooling. He informed the Tribunal that he intends to advise his employer in early 2019 of his intention to return to Australia and that there has been succession planning in relation to his role. The applicant has participated in some, albeit limited, social functions in Australia and has maintained connections with friends and his partner's family. The Tribunal is satisfied that the applicant is likely to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved. The applicant meets the requirements of s 21(2)(g).

1. The Tribunal is satisfied that the applicant had a close and continuing association with Australia for the purpose of s 22(9)(d), and the Tribunal found that applicant meets

s 22(9)(a), (b) and (c). The Tribunal has formed the view that the discretion should be exercised in the applicant's favour. Accordingly, the applicant meets the requirements of

s 22(9) and the general residence requirements for the purpose of s 21(2)(c). The Tribunal has also found that the applicant intends to reside in Australia for the purpose of

1. The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of s 22(9) of the Act and satisfies s 21(2)(c) and (g) of the Act.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

[1] Surjanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689 at [28].

[2] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [47].

[3] Li v Minister for Immigration and Border Protection [2015] AATA 270 at [27].