(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;

3. Section 22(1) of the Act provides:

(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.

4. Sections 22(1A) and 22(1B) provide for allowances of overseas absences for the purposes of ss 22(1)(a) and (c) of the Act as follows:

(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.

5. Sections 22(2), (4A), (5), (5A), (6), (9) and (11) provide for partial exemptions or the exercise of Ministerial discretions in relation to the requirements of s 22(1) of the Act. Relevantly, s 22(9) contains the following Ministerial 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.

6. Section 24(1) provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
7. Section 24(5) of the Act states that the Minister must not approve the person becoming an Australian citizen (in the circumstances provided for in that section) at a time when the person is not present in Australia.
8. Finally, s 52(1)(b) states that an application may be made to the Tribunal for review of decisions made under s 24 to refuse to approve a person becoming an Australian citizen.

1. The Applicant was born in China in 1986.[1] She completed her primary and secondary school education in China.
2. She first arrived in Australia on 4 October 2005 when she was 19 years of age on a Higher Education Sector (subclass TU-573) visa.[2]
3. Between May 2009 and August 2010, the Applicant obtained a Bachelor of Medical Science degree and a Master of Biomedical Engineering from the University of New South Wales.[3] She met her husband (Mr Corrian Sheng) while studying at university.[4] Her husband is an Australian citizen who came to Australia when he was five years old.[5]
4. She was granted permanent residence status via a Partner (subclass BS-801) visa on 24 January 2012.[6] From 2011 to 2017, the Applicant was employed as a scientific officer at the St George Clinical School at the University of New South Wales.[7]
5. The Applicant married her husband in Australia on 20 December 2012.[8] She continued to reside in Australia.
6. In 2016, her husband obtained employment in Hong Kong as a portfolio manager for a hedge fund. He moved to Hong Kong, whilst the Applicant remained in Australia.[9]
7. On 31 July 2017, the Applicant completed her PhD at the University of New South Wales where she also received an Australian Postgraduate Award.[10]
8. On 11 November 2017, the Applicant departed Australia to be with her husband who was still working in Hong Kong. She made the decision to move to Hong Kong because she was pregnant at the time with the couple's child.[11]
9. Whilst in Hong Kong, the Applicant gave birth to the couple's only child (Child A) on 24 May 2018.[12]
10. On 7 December 2018, Child A obtained Australian citizenship by descent.[13]
11. On 1 December 2019, the Applicant travelled to Australia with her husband and child. They remained in Australia for 29 days before departing on 29 December 2019.[14] She remained absent from Australia until her return on 6 September 2022.[15] She returned to Hong Kong on 27 September 2022.[16]
12. Thereafter, the Applicant returned to Australia for short periods on:

(a) 28 April 2023, departing on 14 May 2023; > > (b) 23 July 2023, departing on 30 July 2023; > > (c) 10 September 2024, departing on 14 September 2024; > > (d) 4 November 2024, departing on 12 November 2024; > > (e) 9 April 2025; departing on 17 April 2025; and > > (f) 19 June 2025; departing on 25 June 2025.

1. On 23 December 2021, the Applicant applied for Australian citizenship by conferral.[17] The Applicant was outside of Australia at the time of her application. In her application, she sought to rely on the Ministerial discretion at s 22(9) of the Act seeking to treat a period of absence from Australia, as a period in which she was present in Australia for the purposes of satisfying the general residence requirements of the Act.[18]
2. At the time of the lodgement of her application, the Applicant's legal representatives submitted numerous documents in support including:

(a) Legal submissions dated 23 December 2021;[19] > > (b) Evidence of the Applicant's involvement in various business ventures and medical technologies;[20] > > (c) Evidence of Australian held bank accounts, an ATO Notice of Assessment, and a superannuation statement;[21] > > (d) A receipt for a non-refundable deposit of $500 paid to The Scots College, Sydney and confirmation that the Applicant's son had been placed on the Year 7, 2031 Enrolment Register;[22] and > > (e) Statutory Declarations of: > > 1. The Applicant (dated 10 December 2021);[23] > 2. The Applicant's husband, Mr Corrian Sheng (dated 10 December 2021);[24] > 3. Friend of the Applicant, Ms Chen Tian (dated 13 December 2021);[25] > 4. Friend and professional mentor, Dr Ashish Diwan (dated 6 December 2021);[26] > 5. Friend of the Applicant, Dr Shuo Liu (dated 15 September 2021);[27] and > > (f) Letter of support from friend and professional contact, Dr Divya Diwan dated 2 June 2021.[28]

3. On 11 March 2022, the Department requested further information from the Applicant including evidence relating to her plans to return to Australia.[29]
4. On 29 March 2022, the Applicant's legal representatives provided correspondence to the Department addressing the Applicant's intent to return to Australia. It was stated that the Applicant and her family intend to move to Australia so their son can attend secondary schooling in Australia in 2031. The letter further stated that the Applicant's husband has secure employment in Hong Kong as a hedge fund manager which provides stability for the family. It was also stated they have an intention to return earlier should their circumstances change, and the family feel secure enough to sacrifice their current employment in Hong Kong and their child's primary schooling in Hong Kong.[30]
5. On 21 May 2024, the Department requested further information in support of the Applicant's request that the Ministerial discretion in s 22(9) be exercised in the Applicant's favour, namely, that the Applicant provide supporting evidence addressing her close and continuing association with Australia during overseas absences in order to satisfy s 22(9)(d) of the Act.[31]
6. On 8 July 2024, the Applicant's legal representative provided further documents to the Department including evidence of a residential tenancy held in Hong Kong, the Applicant's ATO Notice of Assessments for the years 2018-2022, a further statement from the Applicant dated 4 July 2024, evidence of the Applicant's employment at the University of Hong Kong and a tenancy agreement for a property owned by the Applicant and her husband in New South Wales.[32]

1. On 24 September 2024, a delegate of the Respondent refused the Applicant's application for Australian citizenship.[33] The delegate found that the Applicant did not satisfy the general residence requirements as set out under s 22(1)(a) and s 22(1)(c) of the Act.[34]
2. In relation to s 22(1)(a), the delegate noted that s 22(1A) allows for absences of up to 12 months within the four years immediately before applying for citizenship.[35] In the Applicant's case, the delegate noted that the Applicant had been absent from Australia for a total of 1,432 days in the four-year period immediately prior to applying for citizenship. This exceeded the allowable absence of 12 months provided for in s 22(1A) of the Act, and therefore the Applicant did not meet the requirement in s 22(1)(a) of the Act.[36]
3. In relation to s 22(1)(c), the delegate noted that s 22(1B) allows for absences of up to 90 days within the 12 months immediately before applying for citizenship.[37] In the Applicant's case, the delegate noted that the Applicant had been absent from Australia for a total of 365 days in the 12-month period immediately prior to applying for citizenship. This exceeded the allowable absence of 90 days provided for in s 22(1B) of the Act, and therefore the Applicant did not meet the requirements in s 22(1)(c) of the Act.[38]
4. The delegate also considered the application of the Ministerial discretion at s 22(9) of the Act to the Applicant's case. The delegate found that the Applicant had only been present in Australia for a total of 29 days in the four years immediately prior to making her application for citizenship, with no time spent in Australia in the 12 months immediately prior to the application.[39] The delegate found that whilst the Applicant relies on her ongoing relationship with immediate family members, friends and business associates who are Australian citizens, the Applicant has not demonstrated a close and continuing association with Australia for the purposes of applying the Ministerial discretion.[40] For the reasons specified at page 8 of the decision record, the delegate decided not to exercise the discretion at s 22(9) of the Act.[41]
5. In addition to the above, the Applicant was outside of Australia at the time of the delegate's decision. The delegate was therefore prohibited under s 24(5) of the Act from approving the Applicant's application while the Applicant was outside of Australia.[42]

1. On 22 October 2024, the applicant lodged an application for review of the delegate's decision with the Tribunal.[43]
2. On 26 February 2025, the Applicant filed a Statement of Facts, Issues and Contentions and annexures. Amongst that material were updated Statutory Declarations from the Applicant, her husband, and the Applicant's friend Chen Tian. The Applicant also filed various documents including documents and publications related to the Applicant's work in the medical technology field.[44]
3. On 13 March 2025, the Applicant filed an updated Statutory Declaration of Dr Ashish Diwan dated 6 March 2025.[45]
4. On 26 March 2025, the Applicant filed further documents relating to the sale of properties in New South Wales.[46]
5. On 27 March 2025, the Respondent filed its Statement of Facts, Issues and Contentions and annexures.[47]
6. On 11 April 2025, the Applicant filed Submissions in Reply and annexures.[48] Included amongst that material were documents in relation to the Applicant's charitable activities.[49]
7. On 18, 19 and 20 August 2025, the Applicant filed further material including a contract for the purchase of a property in South Coogee, New South Wales, a Statutory Declaration of Ms Yan Li (a friend of the Applicant), and a further updated letter from the Applicant dated 19 August 2025, plus other material.[50]

1. The hearing was held by video at the Tribunal's Melbourne Registry on 21 and 22 August 2025. The Applicant was represented by Mr Cameron Jackson of counsel, instructed by Immigration Solutions Lawyers. The Respondent was represented by Ms Subasha Prasad, a solicitor from MinterEllison. The Applicant and her husband were present in counsel's chambers for the hearing of the application.

1. On 21 August 2025, the Tribunal received into evidence the following material:

(a) Exhibit R1: Joint Tender Bundle comprising 775 pages of material including: > > > (i) Applicant's Statement of Facts, Issues and Contentions plus annexures; > > > > (ii) Applicant's Submissions in Reply plus annexures; > > > > (iii) T-documents; and > > > > (iv) Respondent's Statement of Facts, Issues and Contentions and annexures; and > > (b) Exhibit A1: Bundle of material filed by the Applicant on 18, 19 and 20 August 2025.

2. On 22 August 2025, the Tribunal received into evidence the following material:

(c) Exhibit R2: Updated Movement Records of the Applicant; and > > (d) Exhibit A2: Applicant's submissions in regard to COVID-19 border closure and quarantine procedures in Australia and Hong Kong.

1. On 21 August 2025, the Tribunal received oral evidence from the following witnesses:

(a) Dr Teng Zhang (the Applicant); > > (b) Dr Ashish Diwan (professional mentor and friend); > > (c) Mr Corrian Sheng (the Applicant's husband); and > > (d) Ms Yan Li (friend).

2. On 22 August 2025, the parties presented their closing arguments, and the Tribunal reserved its decision.

1. In order to be eligible for Australian citizenship, the Applicant must satisfy the general residence requirement under s 21(2)(c) of the Act. Under section 22(1) of the Act 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.

2. In order to satisfy this requirement, the Applicant is seeking to rely upon the application of the Ministerial discretion set out at s 22(9) of the Act. The discretion allows the Minister to treat a period of absence as one in which the person was present in Australia. The discretion may be exercised in a person's favour if:

(a) the person was a spouse or de facto partner of an 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.

1. The parties agree that the requirements in s 22(9)(a), (b) and (c) are met.[51] The Applicant was the spouse of an Australian citizen during the relevant period (being Mr Sheng). The Applicant was not present in Australia during that period, and she was a permanent resident. The Applicant therefore satisfies s 22(9)(a), (b) and (c) and the Tribunal makes this finding.
2. The remaining issue to be determined is whether s 22(9)(d) is satisfied, that is, whether the Applicant had a close and continuing association with Australia during the relevant period. If the Tribunal determines that s 22(9)(d) is satisfied, it then needs to consider whether to exercise the discretion in s 22(9) in favour of the Applicant.

1. The Applicant contends that she has maintained a close and continuing association with Australia during the four-year period preceding the lodgement of her application for Australian citizenship (which was lodged on 23 December 2021).[52] The Applicant contends that the power conferred by s 22(9) is broad, which allows for consideration of any relevant matter, provided they align with legislative intent.[53] It is submitted that in determining whether the Applicant has demonstrated a close and continuing association with Australia, it is necessary to undertake a qualitative assessment of the ultimate significance of an applicant's circumstances.[54]
2. The Applicant also relied on the Federal Court decision of Minister for Immigration and Border Protection v Tran ('Tran')[55] which upheld a Tribunal finding that the applicant in that case satisfied 22(9)(d) of the Act, and that the discretion be exercised in their favour.[56] The Applicant pointed out that the period of time the applicant in Tran spent in Australia in the four years preceding the application was 38 days, which is not materially different to the period of time spent in Australia by this Applicant.[57]
3. The Applicant relies on the fact that her husband and child are Australian citizens. She also relies on the length of time spent in Australia, during which it is submitted she fostered 'both professional and personal ties in Australia, with Australian institutions and individuals.'[58] She relies upon her property ownership in Australia, her Australian superannuation, and the payment of taxes on her investments here. The Applicant also relies on her future plans for her child to attend high school in Australia, having paid a deposit to secure a place for him.[59]
4. Reliance is also placed on the Applicant's professional associations with Australia which include her involvement and association with medical technologies, including her Australian company which developed artificial intelligence medical technology, and is in the process of bringing the technology to Australia. The Applicant also relied upon her professional and personal networks she has established through her work in the medical science field, including her association with Dr Ashish Diwan, who is trialling the technology in Australia.[60]
5. In terms of personal associations, the Applicant relies on the strong ties she formed whilst studying and working in Australia.[61]
6. The Applicant also contends that while physical presence in Australia may be relevant, it is not a factor which should be given priority over other considerations. In particular, it is submitted that the Tribunal should have regard to the fact that between 2020 and 2021, the Applicant was hindered from travelling to Australia due to the COVID-19 pandemic.[62]

1. The Respondent submits that the Tribunal should not be satisfied that the Applicant had a close and continuing association with Australia during the four-year period immediately prior to her citizenship application, as required by s 22(9)(d) of the Act.[63]
2. The Respondent relies on the following circumstances relevant to the four-year period immediately prior to the Applicant's citizenship application to support this contention:[64]

(a) The Applicant was absent from Australia, except for one visit for 29 days in December 2019. The Respondent submits that such an extremely limited physical presence in Australia does not demonstrate a close and continuing association with Australia. > > (b) The Applicant worked at the University of Hong Kong for the duration of the relevant period, as well as acting as CEO of Conova Medical Technology Limited in Hong Kong. The Respondent submits there is no evidence that she was employed in Australia by an Australian employer during this period. > > (c) Although the Applicant's husband and son are Australian citizens, her husband resided in Hong Kong and was employed there for the duration of the relevant period. Her son has resided in Hong Kong since his birth on 24 May 2018. It is submitted that, in this case, these relationships are not sufficient to demonstrate a close and continuing association with Australia. The Respondent submits that spouses of Australian citizens should generally meet the same criteria as other adult applicants, and not 'merely rely on a spousal relationship'.[65]

3. The Respondent does acknowledge that the Applicant has provided evidence to support her financial connections to Australia such as bank statements from Australian bank accounts, a statement from an Australian superannuation account, evidence of ownership of two properties in Australia, and notice of assessments demonstrating she had lodged income tax returns in Australia for the periods 2018 through to 2022.[66] However, it is submitted that these financial connections do not demonstrate a close association with Australia in circumstances where:

(a) The Applicant retained at least one of these properties as an investment property which she was able to manage from overseas.[67] > > (b) Despite filing income tax returns, the Applicant paid no income tax in Australia in the financial years ending 2020, 2021 and 2022.[68] > > (c) Although the Applicant was a board member of an Australian company (Kunovus Technologies Pty Ltd) for approximately 18 months, there is no evidence about the extent of the Applicant's role, beyond online communication and attending one board meeting in Sydney.[69]

4. Finally, the Respondent notes that the Applicant's professional and personal ties do not outweigh the fact that her personal and professional life was outside Australia, and she only spent 29 days in the relevant four-year period in Australia.[70]

1. The Tribunal has had regard to the materials filed by the Applicant in support of her application for Australian citizenship and in support of her review to the Tribunal. These documents can be broadly categorised as follows:

Statements from the Applicant, her husband and friends

**_(a) Statutory Declarations and statements of the Applicant dated 10 December 2021,[71] 4 July 2024,[72] 26 February 2025,[73] and 19 August 2025.[74] The Applicant stated that she arrived in Australia in 2005 on a student visa to pursue her tertiary education in medical science. She said she met her husband when she was twenty years old, and they were married in 2012.[75] She completed her PhD study and worked as a scientific officer at St George Hospital. She worked for almost seven years at St George Clinical School and St George Hospital as a hospital scientist.[76] At the same time, she started working in her startup company with Dr Ashish Diwan. This company was called Conova Medical Technology Limited and focused on artificial intelligence healthcare technologies. She is the CEO of this company. Since 2018, her company's lab has grown from one person to 53 employees. After the founding of her company, she took a position as an Assistant Professor in the School of Clinical Medicine at the University of Hong Kong.[77] Her company has developed artificial intelligence technology which provides products to assist in spinal deformity care. She is planning on launching her company's product in Australia in 2025, through a company she founded in 2013, called Rovephoenix Pty Ltd. She described her work with Dr Diwan to bring the technology to Australia. She has also signed off on a donation letter, donating equipment to the Royal Adelaide Hospital for research.[78] In a subsequent letter to the Tribunal she confirmed that she has had meetings in Sydney in regard to the technology and plans to establish a spinal clinic in Sydney which will utilise the technology.[79]

(b) She said her husband moved to Hong Kong in 2016 for a work opportunity, which was both unplanned and unexpected. She moved to Hong Kong in 2017 to be with him, because she was pregnant at the time. She said she wanted to be with her husband for better care and support during this period.[80] She states that she plans to bring back her child to Sydney for his high school education in 2030, although it is their intention to settle back to Australia prior to that.[81] She also confirmed that they have recently purchased property in South Coogee for her family to reside in once they return to Australia.[82]

(c) Statutory Declarations of Mr Corrian Sheng (her husband) dated 10 December 2021[83] and 26 February 2025.[84] Mr Sheng confirmed that he has been an Australian citizen since 1997. He said he met the Applicant in the beginning of 2007 while they were both studying at the University of New South Wales. They were engaged in 2010 and married on 28 December 2012. He said he moved to Hong Kong in 2016 to pursue an opportunity to set up a hedge fund in Hong Kong. He said that the Applicant moved to be with him at the end of 2017 because she was pregnant, and it was in the interests of his family to be together. He said had it not been for his employment obligations, they never would have moved, and it is their intention to return to Australia. They have paid a deposit for their son to study at the Scots College in Sydney and intend to return before 2030.[85] He said the Applicant already considers herself an Australian as Australia is their home and where they would like their son to grow up.[86]

(d) Statutory Declaration of Ms Yan Li (friend) dated 25 June 2025.[87] Ms Li stated that she is an Australian citizen and has known the Applicant since 2013. She stated that they have been in frequent contact ever since. She said since the Applicant moved to Hong Kong, they usually see each other a few times a year. Ms Li stated that the Applicant helped her organise a charity concert in Sydney that took place in December 2019. She said that even after the Applicant moved to Hong Kong, the Applicant has continued to support this event by promoting it online and attending in person, as she did in June 2023.

(e) Statutory Declarations of Dr Ashish Diwan (colleague and professional mentor) dated 9 December 2021[88] and 6 March 2025.[89] Dr Diwan stated that he has known the Applicant since 2012 when she started working at St George and Sutherland Clinical School. He was the PhD coordinator at the time and mentored the Applicant's studies closely. He said since she moved to Hong Kong they meet at least once a year and also communicate frequently through electronic means. He believes that the Applicant would be an incredible asset to Australia, because of her science and medical engineering background.

(f) Statutory Declaration of Dr Shuo Liu (friend) dated 15 September 2021.[90] Dr Liu is an Australian citizen who met the Applicant in 2008 when he was studying at the University of New South Wales with her husband. He said the three of them remained close friends and attended each other's weddings. Dr Liu supports the Applicant's application for Australian citizenship and said that she is committed to bringing her professional expertise and experience to Australia.

(g) Statutory Declarations of Ms Chen Tian (friend) dated 13 December 2021[91] and 21 February 2025.[92] Ms Tian has known the Applicant since 2005 when they met at university. She said they were best friends, and was the Applicant's bridesmaid when she got married.[93] She said they have maintained regular contact since graduation and throughout their careers. Ms Tian said that the Applicant is the founder and owner of advisory firm (Rovephoenix Pty Ltd), which is based in Sydney, of which Ms Tian is a director.[94] She said that the Applicant is a valuable asset to Australia and her expertise would benefit Australians who suffer from spinal diseases by enabling them to receive the best care and treatment.[95]

(h) Letter of support Dr Divya Bhargav Diwan (friend and founder of Kunovus Technologies Pty Ltd).[96] Dr Diwan wrote that he has come to know the Applicant since she was a PhD scholar at St George Hospital campus. He confirmed that he invited her to serve as Director of Kunovus, a position she held from 15 December 2018 until 1 July 2020. He stated that the Applicant has introduced investors to the company and assisted with the patent filing in China.

_**

Material related to the Applicant's immediate family

(a) Certificate of Marriage confirming the Applicant's marriage to Mr Corrian Sheng in Australia on 20 December 2012;[97]

(b) Birth Certificate of her son who was born on 24 May 2018 in Hong Kong;[98]

(c) Certificate of Australian Citizenship for the Applicant's son dated 7 December 2018;[99] and

(d) Receipt of payment of $500.00 to place her son on the Enrolment Register for Year 7 in 2031 at the Scots College in Sydney.[100]

Material related to the Applicant's property ownership in Australia

(a) Contract for the purchase of property in Rosebery, New South Wales dated 25 August 2015;[101]

(b) Contract for the sale of property in Eastgardens, New South Wales dated 11 February 2025;[102]

(c) Contract for the purchase of property in South Coogee, New South Wales dated 29 June 2025;[103]

(d) Utility bills for the Rosebery property and the Eastgardens property for the period 1 October 2021 to 31 December 2021;[104]

(e) Council rates notice for the Eastgardens property dated 29 October 2021;[105] and

(f) Residential Tenancy Agreement for the Eastgardens property with the Applicant and her husband as landlords for a tenancy agreement dated 28 September 2023 for 12 months.[106]

Material related to the Applicant's financial affairs in Australia

(g) Notice of assessment for the financial year ending 2017 which shows the Applicant earned income in that financial year and paid income tax;[107]

(h) Notice of assessment for the financial year ending 2018 which shows the Applicant earned income in that financial year and paid income tax;[108]

(i) Notice of assessment for the financial year ending 2019 which shows the Applicant earned income in that financial year and was required to pay income tax;[109]

(j) Notice of assessment for the financial year ending 2020 which shows the Applicant earned zero income in that financial year and was not required to pay income tax;[110]

(k) Notice of assessment for the financial year ending 2021 which shows the Applicant earned zero income in that financial year and was not required to pay income tax;[111]

(l) Notice of assessment for the financial year ending 2022 which shows the Applicant earned zero income in that financial year and was not required to pay income tax;[112]

(m) Commonwealth bank statements for two home loan accounts for the period 1 January 2021 to 30 June 2021;[113]

(n) Commonwealth bank statements for a joint account held in the name of the Applicant and her husband for the period 1 May 2016 to 30 April 2020;[114]

(o) Commonwealth bank statements for an account held in the Applicant's name for the period 1 November 2019 to 31 January 2021;[115]

(p) HSBC bank statements for an account held in the Applicant's name for the period 24 January 2020 to 26 November 2021;[116] and

(q) A statement for an Australian superannuation account held in the Applicant's name for the period 1 January 2021 to 30 June 2021.[117]

Material related to the Applicant's affairs overseas

(a) Letter of employment dated 7 February 2025 from LKS Faculty of Medicine at the University of Hong Kong confirming that the Applicant has been employed there from 15 August 2017 to the present date;[118]

(b) Certificate of employment dated 25 June 2024 from the School of Clinical Medicine at the University of Hong Kong confirming that the Applicant is carrying the title of Assistant Professor for a fixed-term period of 15 March 2023 to 14 March 2026 with the possibility of renewal;[119]

(c) Letter of employment dated 20 February 2018 from Q Fund Management confirming that the Applicant's husband has been employed there since 3 January 2017;[120]

(d) Hong Kong SAR Certificate of Incorporation for Conova Medical Technology Limited dated 27 September 2018;[121]

(e) Evidence of a residential lease for the property where the Applicant resides in Hong Kong for the period 25 July 2023 to 24 July 2025;[122]

(f) University of Hong Kong website profile of the Applicant accessed January 2025;[123]

(g) Materials relating to Conova Medical Technology and Mskalign product;[124] and

(h) Various articles published in medical journals relating to the technology co-authored by the Applicant.[125]

1. The Tribunal received oral evidence from the following witnesses:

1. The Applicant confirmed that she arrived in Australia in 2005 at 19 years of age. She obtained undergraduate and postgraduate qualifications from the University of New South Wales in the areas of medical science and biomedical science engineering. She began working at St George Hospital in 2011 as a hospital scientist.
2. In 2012, she was awarded a scholarship to support her PhD studies at the University of New South Wales. She finished her PhD in 2017. During this period, Dr Diwan was the supervisor of the post-graduate program.
3. In 2016, her husband moved to Hong Kong to pursue an opportunity as a hedge fund manager. The Applicant remained in Australia to continue work and to complete her PhD. She fell pregnant in 2017 and decided to move to Hong Kong to be with her husband. She said it was always their plan to come back to Australia after a few months. The Applicant said the COVID-19 pandemic then occurred which meant that Hong Kong was under lockdown. She said it was not possible to travel between 2020 and 2022. She said Hong Kong had a 21-day quarantine period policy which meant that return visitors needed to undergo a period of mandatory quarantine away from their family.
4. She said during COVID-19, the Applicant remained in communication with her professional colleagues in Australia and together they developed medical technology aimed at screening, diagnosing and treating curvature of the spine. She said she was in constant contact with her colleagues in Australia during this period.
5. She said she developed some important personal connections in Australia, including friends she met whilst studying at UNSW. She said one of her friends (Chen Tian) is the General Manager of the Australian entity of her business. She said living in Australia personally shaped the person she became. She said she was able to be herself in Australia and was able to pursue her dreams.
6. Her son is currently seven years of age and attends school in Hong Kong. She said she plans to move back to Australia to educate him in Australia and has signed him up at Scots College in Sydney. She said they have a firm plan to come back to Australia so her child can commence high school here. She said if they move back earlier she can amend the commencement date of his enrolment.
7. She said they brought a property in South Coogee, New South Wales, which is more suitable for family living than her other property in Rosebery which they sold. She said she has a personal connection to South Coogee, as she met her husband there in 2007.
8. She told the Tribunal about some of the benefits to Australia of the medical technology she is developing. She said it would benefit patients and shorten surgical waiting lists in Australia. She said she views the technology as Australian technology that would benefit Australians.
9. During cross-examination, she confirmed she visited Australia in 2019 with her son. At that time, they went on a school tour and rented a house to live in. She said she wanted to see what it would be like for her son to live in Australia. She said in 2019 she owned two properties in Australia which were both rented out at the time. The Applicant said they have now sold both those properties and have purchased a new home in Coogee.
10. She said she made the decision to move to Hong Kong when she was pregnant with her son. She started working part-time at the University of Hong Kong. In 2019, she became full-time.
11. The Applicant said her company Conova Medical Technology Limited is based in Hong Kong.[126] Her lab has grown to 53 employees and is based at the University of Hong Kong. She confirmed that if she moved to Australia, that entity would remain in Hong Kong. She said she plans to move the existing intellectual property to Australia and use the Australian entity (Kunovus) to hold the intellectual property in Australia. She agreed under cross-examination that the Hong Kong entity would still exist. She also agreed that she had to step away from her role in the Australian entity because she could not manage her roles in each of the entities at the same time.
12. She agreed that she didn't travel to Australia for the period of November 2017 to December 2019. She said she was looking after her child at the time.
13. The Applicant was then cross-examined about her charity work. She said she participated in a charity event with St George Hospital in 2015 and was still helping out in 2017. She agreed that she didn't participate in the event in 2019 and 2021. She said the event was cancelled in 2020 due to the pandemic. She said she also participated in a charity concert in 2019 and 2021.
14. She told the Tribunal she is seeking Australian citizenship because she was educated in Australia and established herself here. She said all the research and efforts she undertook whilst completing her PhD here means that the technology she developed with others is truly Australian technology. She said it was important to her to introduce herself as an Australian and wants to promote the technology as Australian.
15. She confirmed she has enrolled her child in high school in Australia which commences in 2031, but that she hopes to return to Australia permanently in 2030. When asked why she wouldn't consider moving back to Australia earlier, she said it was important for her child to remain in his current school environment. She said her child loves his life and friends at the school. She said she is not keen to immediately shift him to Australia, but to gradually 'warm him up' to the idea. She said the latest they would move would be 2030.
16. She said that the Coogee property she and her husband have recently purchased is currently rented out. She said when the tenants leave, she plans to use the home when she returns to Australia for visits until they move to Australia permanently.
17. She confirmed that she also was a director of an Australian company named Rovephoenix Pty Ltd between 2017 and 2021. She said that company did not hire staff in Australia during that period but it did have an Australian director managing the entity at the time. She was also working with Kunovus between 2017 and 2021.
18. She said that the only reason she didn't return to Australia between December 2019 and September 2022 was because of COVID. She agreed she could have left Hong Kong earlier than September 2022 but she knew she would be subject to the 21-day quarantine period upon her return. She said that would have been impractical because her child wouldn't have been allowed to be with her during that period. She said she did try to enrol her child in childcare centres in Australia in early 2023 but that there were difficulties obtaining his vaccine records, and that is why she continued his schooling in Hong Kong.

1. Prof Diwan confirmed that he was the post-graduate supervisor of the PhD program that the Applicant undertook at the University of New South Wales. He confirmed he wasn't her initial primary supervisor but took over as her supervisor in approximately the second or third year of her PhD. His role during this time was to evaluate the Applicant's progress throughout her degree.
2. He said when the Applicant moved to Hong Kong he maintained contact with her by phone calls, video calls and emails. He said they were regularly engaged in working on their AI model which led to the development of a device that would eliminate the need for spinal surgery. He also confirmed he is a board member of the Applicant's company Kunovus. Prof Diwan said that the device the company is developing is revolutionary and will likely have a global impact. He said if the Applicant were based in Australia, her presence in Australia would speed up the process of delivering the product to the market. Prof Diwan confirmed that the Applicant attended a conference in Sydney in 2019, and she attended the same conference virtually in 2020. He recalls she was on the organising committee one year but couldn't recall when.

1. Ms Li gave evidence that she is a friend of the Applicant and has known her since 2013. She said they were in frequent contact every two weeks until the Applicant left Australia. She said since the Applicant left, they speak approximately every one to two months. She said more recently they have discussed the Applicant's child's proposed education at Scots College, because she also has a child that attends the school. She also confirmed that the Applicant assisted Ms Li in organising a charity concert in Australia in about 2023.

1. The Applicant's husband gave evidence of the couple's recent property purchase in Coogee. He said that his wife is adamant about coming back to Sydney. He said they sold their two investment properties to purchase the house in Coogee. He confirmed that there are currently tenants in the Coogee property but that they will live in that property when they relocate to Sydney.
2. He said they intend on returning to Australia but don't have an exact date as yet. He said they will likely move back in the next five years. He said it would be a natural transition to change their child's school at the secondary school level.
3. Mr Sheng confirmed he is currently employed in Hong Kong. He said he hopes to remain in Hong Kong for the next three or four years. He said moving back to Sydney so their child could transition to Year 7 in Australia is the latest they would consider moving.

Purpose of the Ministerial discretion under s 22(9) of the Act

1. The purpose of s 22(9) of the Act was considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Han.[127] The Court held that the purpose of provisions such as 22(9) 'is to qualify or ameliorate the strictness of the general residence requirement.'[128] The Court also held that the intent of s 22(9) was to ensure that spouses of Australian citizens meet the same criteria as other adult applicants and not merely rely on a spousal relationship.[129] The Court held that s 22(9) confers 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.'[130] It was held by Perry J in Judd v Minister for Immigration and Border Protection that the expression "close and continuing association" should be given its ordinary meaning.[131] Edmonds J held in Kumar v Minister for Immigration and Border Protection that:[132]

My view of the width of the discretion finds support in "the subject matter and the scope and purpose of the statutory enactments", to use the words of Dixon J again, that are s 22 of the Act. Accepting for the moment that s 22(9) provides the Minister with a discretion to overcome the failure by a person to meet the presence in Australia requirement of four years in s 22(1)(a), as well as the presence in Australia requirement of 12 months as a permanent resident in s 22(1)(c), there is potentially a very wide range of different circumstances that might come before the Minister, both as to the extent of the failure to meet the presence in Australia requirements of s 22(1)(a) and (c), and the reason or reasons for those failures. In the present case, the Tribunal found at [4] of its reasons that in the four years preceding his application for citizenship, the applicant was present in Australia for only between 215 and 218 days, "not nearly long enough to meet the criterion in s 22(1)". In other words, the failures to meet the presence in Australia requirements of s 22(1)(a) and (c) were significant failures. Moreover, on the findings of the Tribunal at [19] and [20] of its reasons, the conclusion is inescapable that the applicant's failure to meet the presence in Australia requirements was not due to any extenuating circumstances, or due to matters outside the control of the applicant, but was a matter of voluntary choice on his part to reside outside Australia during large parts of the presence in Australia periods prescribed by s 22(1)(a) and (c). > > (Emphasis added).

2. The above paragraph illustrates that the Tribunal is permitted to take into account a wide range of circumstances in considering the exercise of the Ministerial discretion. The Tribunal can have regard to the circumstances that were outside of the control of the Applicant, as well as those matters which can be properly described as a voluntary choice to reside outside of Australia during the relevant period.

Citizenship Policy and Citizenship Procedural Instructions

1. The Department has issued policy guidance for considering whether a person has a close and continuing association with Australia The Australian Citizenship Policy Statement (Policy) outlines the legislative requirements for citizenship, the rights and responsibilities of an Australian citizen, and other citizenship related matters.[133] It also provides context for the Citizenship Procedural Instructions (CPI) used by decision-makers when making decisions under the Act.[134] Whilst the Policy and CPI are not binding on the Tribunal, decision-makers should generally apply such policy unless there are cogent reasons not to.[135] The Tribunal finds that there is no reason why the Policy or CPI should not be applied in this case.
2. The relevant CPIs that provide policy guidance in this case are CPI 8 - Residence Requirements and Discretions (reissued 1 July 2023) and CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (as updated 4 October 2024).[136] The Tribunal has had regard to the CPIs and have applied them to the circumstances of this case.

Does the Applicant satisfy s 22(9)(d) of the Act?

1. In order to satisfy the requirements of s 22(9)(d), the Tribunal must be satisfied that the Applicant had a close and continuing association with Australia during the four-year period immediately before the day she made her application for citizenship. The Applicant applied for Australian citizenship on 23 December 2021. The relevant four-year period under consideration therefore is 22 December 2017 to 22 December 2021.
2. In order to undertake an assessment of whether the Applicant had a close and continuing association with Australia during the four-year period, the Tribunal has taken guidance from the factors identified at paragraph 3.6 of CPI 11. It is accepted that whilst those factors identified at 3.6 are directed towards an assessment of an applicant's future intentions to maintain a close and continuing association with Australia, the Tribunal has relied upon them as a guide in assessing the Applicant's association with Australia in the four years prior to her application.[137] The Tribunal has kept in mind that the following factors are a guide only and that each case must be assessed on its facts.[138]
3. Some of these factors include:[139]
   • Pre-existing connection with Australia;
   • Employment status;
   • Financial considerations; and
   • Return travel to, and periods of residence in, Australia.
4. The Tribunal has also kept in mind the policy guidance that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians.[140]

Pre-existing connection with Australia and employment status

1. The Tribunal acknowledges that the Applicant moved to Australia in 2005 at age 19. The Applicant completed her undergraduate and post-graduate study in Australia and worked for a number of years as a hospital scientist. She married an Australian citizen in 2012 and resided in Australia until her departure on 11 November 2017. It is also acknowledged that her son, who was born in Hong Kong, is an Australian citizen.
2. The Tribunal acknowledges that the Applicant wanted to leave Australia to be close to her husband during her pregnancy. It is also acknowledged that she was reluctant to travel with her young child during his infancy. However, the Tribunal also notes that the Applicant was employed in Hong Kong during this period and was working on her AI technology in Hong Kong during this period. She was employed as an Assistant Professor at the University of Hong Kong since 15 August 2017 to the present date.[141] She stated that she grew her laboratory from one employee to 53.[142] For all intents and purposes, her professional life is based in Hong Kong.
3. The Tribunal acknowledges the Applicant's ties to her professional and personal colleagues that she has worked with and become close to in Australia. The Tribunal has had regard to the evidence of Dr Diwan, Yan Li, Chen Tan, Dr Shuo Liu, and Dr Divya Bhargav. Each of the witnesses speak of the Applicant's highly regarded professional accomplishments in the medical technology field and have provided evidence of the close bond each has established with her.
4. Her husband acknowledges that if it wasn't for his employment in Hong Kong, the couple would have remained in Australia. This is where they met and were married. They also purchased property here. The Tribunal acknowledges that they recently purchased a home in South Coogee, which they plan on residing in when they return to Australia.
5. The Tribunal considers that the Applicant does have a pre-existing connection with Australia, having resided here since 2005. She has undertaken her study here and established her career in Australia. She also met her Australian citizen husband in Australia and was married here. The Tribunal accepts that if her husband had not gained employment overseas, it is likely the couple would have remained in Australia.
6. However, the Tribunal also notes that the Applicant has been employed in Hong Kong since her departure in November 2017. She has worked for the University of Hong Kong and has established a business in Hong Kong which now has 53 employees. Her employment ties are currently in Hong Kong. The Tribunal acknowledges that she holds interests in an Australian company which she plans to utilise to bring the medical technology to the Australian market. Primarily however, the Applicant is employed in Hong Kong and has been for the past seven years. Although the Tribunal finds she has a pre-existing connection with Australia, the Tribunal considers that the Applicant's employment, which is based in Hong Kong, has been an important factor in the Applicant's personal and professional life.

1. The Tribunal acknowledges that the Applicant and her husband purchased property in Australia, including a recently acquired property in South Coogee that they plan to reside in when they return to Australia.
2. The Tribunal also acknowledges that the Applicant has maintained some Australian bank accounts and had an Australian superannuation account during the relevant period. In the four-year period, the Applicant lodged income tax returns, but only paid income tax for the financial years ending 2017 and 2018.
3. The Tribunal considers that the Applicant has financial ties to Australia in the form of home ownership, although on the Applicant's own evidence, she doesn't intend to return to live in Australia on a full-time basis until at least 2030.

Return travel to, and periods of residence in, Australia

1. The Tribunal notes that the Applicant departed Australia on 11 November 2017. She was absent from Australia for the entire four-year period except for 29 days when she arrived in Australia on 1 December 2019 and departed on 29 December 2019.
2. The couple's return to Australia has been described as definite, with the Applicant paying a deposit to secure her son's place on the enrolment register at Scots College in Sydney. Both the Applicant and her husband plan for their child to commence secondary schooling in Australia in 2031 and have planned to return to Australia no later than 2030.
3. The Tribunal has had regard to the decision of Tran upon which the Applicant relies. In Tran, the Applicant only spent 38 days in Australia during the relevant four-year period, and in that case, the Ministerial discretion was exercised in the applicant's favour. The Tribunal notes that the circumstances in Tran are materially different to the circumstances in this case. For example, the applicant in Tran was previously employed at the Australian Embassy in Hanoi from December 1995 to March 1999. She met her Australian citizen husband whilst there and married him in 1999.[143] She had applied for Australian citizenship in June 2014 and had planned to return to Australia by 2016 and move into a property they had purchased.[144] The Tribunal was satisfied in that case that the applicant had a close and continuing association with Australia in the four years immediately before her citizenship application.
4. In the Applicant's case, she was living and working in Hong Kong during the relevant period, and only visited Australia once for a period of 29 days. The Applicant's plans to return to Australia in 2030 and has placed her son on the enrolment register of a school to commence in the year 2031, which is still many years away. It is acknowledged that the Applicant paid the $500 deposit for her son's enrolment in March 2021, which is within the relevant period, but still notes that their intended return at that stage was still 2030-31 as evidence by the enrolment letter from the school.[145] This was some ten years away.
5. The Tribunal considers that the Applicant's presence in Australia for only 29 days in the relevant four-year period is a significant factor that weighs against a finding of a close and continuing association with Australia. Further, the Tribunal notes the Applicant's future plans to return to Australia are tied to her child starting secondary school in 2031. Both the Applicant and her husband gave evidence that they propose to move to Australia in 2030 so that their child can adjust to life in Australia. The Applicant paid the applicable deposit for a place on the 2031 enrolment register in March 2021 which was during the relevant period.[146] It was contemplated then, as it is now, that the family would not relocate to Australia until at least 2031, or at the earliest in 2030. This proposed return date (which was contemplated during the relevant period) does not establish a close and continuing association with Australia.

1. The Tribunal accepts that the Applicant was constrained from returning to Australia during the COVID-19 pandemic. The Tribunal also acknowledges that the Applicant wished to remain in Hong Kong for her pregnancy and to remain with her husband while her child was young.
2. The Tribunal has also had regard to submissions filed by the Applicant regarding the COVID-19 border closures and quarantine procedures in Australia and Hong Kong.[147] By 15 March 2020, the Australian Government had implemented a compulsory 14-day self-isolation period for all international arrivals. At about the same time Hong Kong commenced its lockdown procedures. The Tribunal accepts that at least from March 2020, the travel movements of the Applicant would have been restricted by the COVID-19 border closures. However, prior to this period, there was only one instance of travel between December 2017 (the commencement of the four-year period) to March 2020. The Tribunal accepts that the Applicant was reluctant to travel during her pregnancy and immediately after the birth of her son in May 2018. However, the Applicant did not return to Australia at all in 2018, and only travelled to Australia for a period of 29 days in December 2019.

1. Although the Applicant has close ties with Australians, she has not demonstrated a close and continuing association with Australia during the relevant period. The Tribunal has had regard to the evidence which establishes that the Applicant's life was in Hong Kong during the relevant four-year period. She was residing there with her husband and son. The Applicant and her husband were employed there. She gave evidence that her son attends school in Hong Kong. Even when the borders fully reopened after the pandemic, she only travelled to Australia for very brief periods in the years following. Her plans to return to Australia on a full-time basis are tied to her son's secondary schooling which commences in 2031.
2. The Applicant has not demonstrated a close and continuing association with Australia during the relevant period. It follows that she does not satisfy s 22(9)(d) of the Act and cannot rely on the Ministerial discretion to satisfy the general residence requirements of the Act.

1. The Tribunal affirms the decision under review.

[53] Ibid 4 [3.2] referring to Kumar v Minister for Immigration and Border Protection [2015] FCA 446; (2015) 231 FCR 308 ('Kumar').

[54] Ibid 96 [4] citing Judd v Minister for Immigration and Border Protection [2017] FCA 827 [14] ('Judd').

[55] [2015] FCA 546; (2015) 232 FCR 540.

[65] Ibid 757 [28(c)] quoting Minister for Immigration and Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 [54] Flick, Murphy and Griffiths JJ ('Han').

[127] [2015] FCAFC 79; (2015) 231 FCR 113.

[131] [2017] FCA 827 [14].

[132] [2015] FCA 446; (2015) 231 FCR 308 [24]

[135] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[137] In doing so, the Tribunal has kept in mind the guidance at paragraph 4 of CPI 11.