The Applicant is a citizen of Canada and of the United States of America. She first arrived in Australia on 28 December 2012 as the holder of an electronic travel authority.
The Applicant was granted a Partner visa on 21 November 2017 based on her marriage to an Australian citizen, Dr Fabian Schwarz. Dr Schwarz also has citizenship in Canada and Germany.
The Applicant was granted a Subclass 155 Resident Return visa on 24 August 2023. The Applicant was granted her most recent Subclass 155 Resident Return visa on 16 July 2024.
The Applicant lodged an application for citizenship by conferral on 29 November 2020 that was refused by the Department of Home Affairs on 16 July 2024.
[2]
As noted, the only issue before the Tribunal is whether the Applicant 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.
[3]
The Applicant contends that she is likely to reside in Australia and maintain a close and continuing association. The Respondent argues that the available information does not support the Applicant's contentions.
The Applicant provided a statement of contentions with respect to her review application dated 9 February 2025 which has been duly considered by the Tribunal.
The Applicant makes a number of contentions in this statement. Firstly, that the unreasonable delay by the Department in processing the citizenship application led to procedural unfairness.
The Applicant contended that there was an incorrect application of Ministerial discretion under s 22(9) of the Citizenship Act.
The Applicant contended that there had been a failure by the delegate to appropriately weigh family, professional and community ties.
The Applicant contended that the delegate gave inadequate consideration to compassionate circumstances.
The Applicant sought compensation "for the financial and emotional burden caused by the unreasonable delay and procedural deficiencies".
The respondent provided a statement of facts, issues and contentions with respect to the Ministers position dated 13 March 2025, which has been duly considered by the Tribunal.
[4]
On 22 April 2025, the Applicant and her husband Dr Schwarz attended a hearing from Canada and gave evidence via Microsoft Teams. The respondent was represented by Rhonda Lee from Clayton Utz Solicitors.
At the outset of the review hearing the Tribunal went into detail about the respective issues in the review, how the review hearing would be conducted and the prospective outcomes of the review. As the Applicant was not legally represented the Tribunal suggested that it could proceed to ask the Applicant general questions with respect to her application for citizenship, Ms Lee had no objections to this proposal.
The Tribunal also noted that the Applicant had raised the delay in the processing of her citizenship application in her supporting statement to the Tribunal.
The Tribunal noted that if the Applicant was aggrieved with this delay her concerns were appropriately directed to the Commonwealth Ombudsman.
The respondent noted that with respect to the Applicant's second contention with respect to s 22(9) of the Citizenship Act, that this section was not relevant to the review before the Tribunal and that the only issue before the Tribunal was whether the Applicant met the requirements of s 21(2)(g) of the Citizenship Act.
The Applicant advised that she was born in the United States but relocated with her parents to Canada when she was a 1-year-old. As a consequence of being born in the United States she acquired US citizenship, and she also holds Canadian citizenship.
The Applicant advised that she was married to her husband in 2014.
Dr Schwarz advised the Tribunal that he first came to Australia in the year 2000 as the holder of a student visa and that he completed a medical degree at the University of Queensland in Brisbane. Dr Schwarz advised the Tribunal that he obtained his Australian permanent residence under the skilled visa migration program and that he became an Australian citizen in 2014.
The Applicant advised the Tribunal that she met her husband in Norway in 2012 through mutual friends. They reconnected in Canada in 2014 and married in that year.
The Applicant advised that her parents lived in Ottawa, Canada and that she has two siblings living in Europe and one sibling living in Asia.
The Applicant advised that she came to Australia for the first time in 2012 or 2013 while she was a medical student. The Applicant advised that she visited Broken Hill, Sydney, and Christmas Island during her various visits to Australia. The Applicant advised that on her first visit to Australia she spent a couple of weeks in Australia and made a physical reconnection with her husband. The Applicant advised that she also undertook a medical elective as part of her medical studies with the Australian Flying Doctors Service. The Applicant advised that she graduated from her medical degree in 2015 and then undertook studies in Canada so that she could become a general practitioner and completed those studies in June 2017.
The Applicant stated that she travelled back to Australia in 2017 at which time she was 32 weeks pregnant and that she gave birth to her first child, a son, at 38 weeks in Melbourne. Her son was born at St Vincent's Hospital in Melbourne and the Applicant advised that she engaged with a private obstetrician.
Dr Schwarz advised the Tribunal that he purchased his first property in Australia in Victoria in the suburb of Epping in 2011. He advised that he purchased a second home in April 2017 in Wallan, Victoria. Mr Schwarz advised that the Wallan property became his, his wife's and child's primary residence, and that the Epping property was rented out to mutual friends.
The Applicant and Dr Schwarz advised that they continued to reside in Australia over 2017 and 2018. Dr Schwarz advised that he decided to move to Canada for a 'sabbatical' in April 2019 with his wife and child. Dr Schwarz stated that he and his wife were members of a church in Australia which had a presence overseas. Dr Schwarz stated that whilst in Australia it was revealed that members within the church had engaged in abusive behaviours, and it was difficult to be in the same church community. Dr Schwarz advised he had been a member of his church community for 15 years and that he decided to return to Canada in April 2019 for a sabbatical. Dr Schwarz advised that at the time of his relocation he had managed to organise a 12-month contract for a position in Ottawa. Dr Schwarz advised the Tribunal that he sold the house in Wallan but kept the property in Epping. Dr Schwarz advised that in approximately April 2018 he purchased a property in Leumeah in Sydney and that he sold this property around 2 to 3 years ago. Dr Schwarz further advised that he had also now sold the property in Epping, Victoria.
The Tribunal noted that the evidence indicated that between April 2019 when Dr Schwarz and his wife and child returned to Canada for a 12-month sabbatical and April 2020 that he sold his Australian real estate assets, and that he returned to Australia for a brief period for an interview with the Department of Immigration for a position as a complex medical officer. Dr Schwarz believed that this was in the latter part of January 2020, and that he returned to Canada before the outbreak of the global pandemic and the closure of international borders.
The Applicant and Dr Schwarz advised that they purchased a property in Canada in April 2019 from the Applicant's sister-in-law, a property located in Ottawa. The Applicant stated that she had her second child, a daughter in Canada in 2021.
The Tribunal noted that the evidence provided by Dr Schwarz indicated that he had visited Australia just prior to the global pandemic in early 2020 to explore a job opportunity. Dr Schwarz advised that the Applicant was working in Canada at this time. Dr Schwarz further advised that he had spent 13 years working as a rural/remote medical specialist for the Northern Territory government and that he had a current contract with this service due to expire in September 2025. Dr Schwarz explained that his contracts ran between 2-5 years duration and that he was expecting to receive another contract going forward. Dr Schwarz advised that the work involved remote medical health via video and audio-conferencing facilities and engaging with remote aboriginal communities and organising the Flying Doctor to intervene if required. Dr Schwarz advised that the role involved working closely with remote health care workers located in Australia.
The Applicant advised that she believed that she met the requirements of section 21(2)(g) of the Act on the basis that she maintained a close and continuing association with Australia. She advised that she had maintained medical registration with APRA in Australia and that she has links to the community in Australia through fellow church members and had been involved in providing counselling to those affected by abuse within her church. The Applicant stated that she had worked with indigenous communities in Canada, and she had also worked part-time in a community medical centre in Victoria as a general practitioner.
Ms Lee asked the Applicant a number of questions. The Applicant was asked whether she had any family in Australia and she advised that she did not. Ms Lee noted that the Applicant's predominant connections in Australia were with members of her church community.
The Applicant was asked whether she had any family in Canada and she advised that her parents resided in Ottawa, Canada. The Applicant was asked whether it would be difficult for her if she did not have access to her parents and was not able to see them. The Applicant stated that it would be okay and further noted that her eldest child had special needs. She advised that her eldest child has autism spectrum disorder and poor emotional regulation despite his ability intellectually to work at a high level particularly with respect to mathematics. The Applicant advised that her son struggled with travelling as he could not cope with using automated toilets. She also advised that her son had been impacted by the lockdowns during Covid 19. She further advised that her son had been diagnosed with a physiological condition, namely Kawasaki disease.
The Applicant was asked whether she had looked into support mechanisms in Australia that could provide support to her son. The Applicant stated that as a general practitioner she knew the system well and that she has a social network in Australia. The Applicant stated that it would take a decade of work with her son in order for him to be able to travel with the family.
Ms Lee noted that on this basis the Applicant would not be able to travel to Australia for at least 10 years. The Applicant stated that it would be impractical and medically not advisable to break up her son's medical support in Canada and that it would be unsafe to do so. She advised that in the future she and her husband would like their son to be able to study in Australia and Dr Schwarz stated that in order for these things to happen, his wife needed Australian citizenship which bestowed greater rights than permanent residence. The Applicant stated that her son was in a very good private school in Ottawa that attended to all of his needs. The Applicant stated that she could not be sure of a timeline of when she could travel to Australia given her sons medical needs and fears associated with travel.
Ms Lee asked the Applicant whether she had made plans to move to Australia in the future. The Applicant stated that it is her and her husband's plan to retire in Australia. She advised that her son was currently 7 years old and reiterated that it would be unrealistic to move with her son at this point in time. The Applicant further stated that her husband continues to be connected to Australia through his work with remote Northern Territory communities.
Ms Lee noted that the Australian border closed during the pandemic on 20 March 2020, however, the border was open to permanent residents with exemptions being able to be sought from the government. Ms Lee noted that Dr Schwarz was a citizen, and that the Applicant was a permanent resident and asked why they did not relocate to Australia at that point. The Applicant stated that this was a very traumatic time and that they had everything at their disposal in Canada at that time and it was not appropriate to consider relocation to Australia. Dr Schwarz noted that at this time he kept his home in Sydney during the early days of the pandemic and that in the intervening period his son was diagnosed with Kawasaki's disease and his wife became pregnant with the couple's second child who was born in Canada.
Ms Lee noting that the Applicant and her husband had purchased a property in Canada and asked about their properties in Australia. Dr Schwarz advised that he sold the property in Wallan in 2020 that he had sold the New South Wales property in 2021 and that he had since disposed of the Epping property. He confirmed that there were no remaining property interests in Australia.
Ms Lee asked the Applicant and Dr Schwarz about their superannuation. Dr Schwarz stated that he and the Applicant had previously had a self-managed superannuation fund in Australia, however the costs of administering the fund were excessive. They then both moved to an industry super fund. Dr Schwarz advised that he is paid superannuation through his contract work with the Department of Health in the Northern Territory. The Applicant advised that she makes contributions to superannuation in Canada.
Ms Lee asked the Applicant where the family would reside if they relocated to Australia. Both the Applicant and Dr Schwarz stated that they would look at both Melbourne or Sydney and that their church had a presence in both cities.
Dr Schwarz advised that he was watching the property market in Australia closely, noting that house prices had gone up, and that if they purchased in Australia, they would have to sell the property in Canada
Ms Lee asked the Applicant whether she and her husband had researched schools that would be suitable for their children in Australia. The Applicant stated that they had friends in Melbourne whose children attended a Christian private school, and they had also looked at Kilmore International School in Victoria.
Ms Lee asked the Applicant about her current employment, and she advised that she is working as a general practitioner in Canada and that she also has a supplementary role with the Federal Government in Canada as a medical officer. Ms Lee asked the Applicant what sort of work she would look for in Australia and she advised in a family practice however, Dr Schwarz suggested that it may be best for her to look for a government job.
Dr Schwarz advised that his current contract with the Northern Territory government ended in September 2025 and that he expected that it would be renewed for a further two-year period. The Applicant's husband stated that he is well regarded by the service and that he covers night shifts in Australia because it is daytime in Canada. Dr Schwarz advised that there were not enough doctors in the Northern Territory to service remote communities and he had no intention of moving away from this role.
Ms Lee asked the Applicant apart from her maintaining her medical registration in Australia and her husband's remote job with the Northern Territory government what other ties she had to Australia. Dr Schwarz stated that he contributed to Australian society through his work in remote health and that his wife provided care to their young children which assisted him in performing this role.
Dr Schwarz advised the Tribunal in closing submissions that he was reliant on the evidence that had been provided.
Ms Lee advised the Tribunal that the Minister was reliant on the statement of facts issues and contentions dated 13 March 2025.
Ms Lee noted that the issue before the Tribunal was whether the Applicant met the requirements of s 21(2)(g) of the Act.
Ms Lee stated that the evidence indicated that the Applicant was not likely to reside in Australia or maintain a close association. Ms Lee stated that the evidence adduced at hearing indicated that the Applicant was restricted in moving due to her son's medical needs. Evidence had been provided that it would be difficult to know when the Applicant's son could move to Australia as he has established supports in place in Canada and is at a school that is closely meeting his needs.
Ms Lee noted that the requirements of the Act are for a close and continuing association with respect to Australia and not Australians. Ms Lee noted that it relates to social networks and family networks that exist in Australia. Ms Lee noted that the Applicant and her husband had been involved in their church community in Australia and that members of the church had visited them in Canada. The evidence indicated that Dr Schwarz worked for the Northern Territory government in remote health, however, the Applicant did not contribute to Australia through her work despite the fact that she maintained her medical registration in Australia. Ms Lee noted that the Applicant may be able to apply at a later stage for citizenship when she is able to meet the relevant regulatory requirements under s 21(2)(g) of the Act.
In response, Dr Schwarz stated that the argument that his wife is not contributing to Australian society at this point of time was incorrect as she enables him to undertake his work in remote health with the Northern Territory government by looking after their children. Dr Schwarz advised that he worked most weekends for Australia and that the Applicant is the caregiver of two Australian citizen children, which enables him to engage in this work.
Dr Schwarz stated that his wife would not continue to maintain her medical registration in Australia and reapply annually for a Subclass 155 visa if they did not have a close and continuing association with Australia. The Applicant stated that she had the capacity to work as a medical practitioner in the United States for better money than she receives in Canada but had not pursued this which was indicative of her level of commitment to Australia.
[5]
The evidence indicates that the Applicant has been residing in Canada since April 2019 and despite the imposition of border closures, as a consequence of the global pandemic during 2020 and 2021, she has chosen for a range of reasons, to remain in Canada since that time. There is no evidence that the Applicant attempted to access Australia during the pandemic despite the fact that permanent residents could apply for exemptions to enter Australia from the Australian government.
The Applicant in her statement to the Tribunal has argued that she and her husband's "temporary relocation to Canada was driven by my children's urgent medical needs- a factor the decision maker failed to adequately consider". The evidence indicates that this 'temporary' relocation has now extended into 6 years and evidence adduced at hearing indicates it may well proceed for another decade.
The evidence indicates that the Applicant has been married to her Australian citizen husband since 2014 and is the mother of two Australian citizen children, a son born in Australia in 2017, and a daughter born in Canada in 2021. The Tribunal notes that the Applicant's second child was born after the lodgement of her citizenship application in November 2020.
The evidence indicates that the Applicant's parents reside in Ottawa, Canada and that the Applicant, and her husband and children maintain a close and continuing association with them.
The evidence indicates that both of the Applicant's children have special needs, and the evidence further indicates that their special needs are being well met medically and educationally in Canada. Indeed, the evidence indicates that the Applicant's son attends a special school in which he is excelling both developmentally and academically. The evidence provided by the Applicant and her husband indicates that it would not be in their son's interests to remove him from an environment in which his needs are being so well met and that it would be medically detrimental for him to do so. The Applicant and her husband gave evidence that their son has difficulty with travel and that they do not envisage him being in a position to undertake any significant travel for at least the next 10 years. They also gave evidence that they hope to be able to retire in Australia and for their son to undertake tertiary studies in Australia in the future.
The evidence indicates that the Applicant's aspirations to maintain a close and continuing association with Australia are future based and may not materialise for at least another decade or more.
The legislation envisages more than just maintenance of registration to a professional association.
The legislation and CPI 11 which provides guidance to decision makers envisages that an Applicant for citizenship by conferral has maintained a close and indeed a continuing association with Australia. The provision and it's wording according to CPI 11 should be given its ordinary meaning. Reference to the Macquarie dictionary definition of 'maintain' is to keep in existence or continuance, to preserve, retain. With respect to 'close' as in near or near together, in space time or relation. With respect to 'continuing' to last or endure and 'association' the act of associating...connection or combination.
The evidence before the Tribunal indicates that the Applicant and her husband left Australia in April 2019, and that the Applicant has not returned to Australia since her departure. The Applicant and her husband had owned two properties in Victoria and one property in Sydney New South Wales. They have now sold those properties and hence have no real estate assets in Australia.
The evidence indicates that the Applicant and her husband have purchased a home in Ottawa which is their primary place of residence.
The Applicant's parents reside in Ottawa and no doubt provide some semblance of support to their daughter and son in law with respect to their grandchildren who according to the evidence both have special needs.
The Applicant maintains registration as a general practitioner in Canada and works as a general practitioner in a family practice in Ottawa. The Applicant also works as a medical officer for the Canadian Government.
The Applicant and her husband, both medical practitioners, gave evidence that their children's medical and indeed special needs are being very well met in Canada. In respect of their son, the Applicant advised that the school that he attends is exemplary, and that their son's developmental and intellectual progress in the school has been excellent. The Applicant also advised that to remove him from this environment would be highly detrimental to his progress and well-being. The Applicant also gave evidence that her son has current issues that preclude his ability to travel any long distance, and hence in reality he may not be able to travel for at least the next 10 years.
The evidence before the Tribunal indicates that despite the Applicant's maintenance of her medical registration in Australia and her annual renewal of her Subclass 155 visa, she has a close and continuing association with Canada at this present time and has since April of 2019, a period of 6 years. She does not have a close and continuing association with Australia of the type that is envisaged by the legislation.
Although she has maintained some connections with Australia, including professional, the Tribunal is not satisfied that the totality of the evidence demonstrates to the required level of satisfaction, that the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia. On the evidence, the Tribunal is satisfied that it is possible that at some time in the future rather than probable that the Applicant would reside in Australia.
On the cumulative evidence, the Tribunal finds that the correct or preferable decision is to refuse the approval of the application for Australian citizenship by conferral.