................[Sgnd]............................................

CITIZENSHIP - Conferral of citizenship rejected - Applicant not residing in Australia - likely to reside in Australia - likely to continue to reside in Australia - likely to maintain a close and continuing relationship with Australia - ss 22(1)(g) and 24(5) of the Australian Citizenship Act 2007 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Australian Citizenship Act 2007 (Cth)

Revised Citizen Procedural Instructions (CPI) 11

Chen and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2156

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Hussain and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 235

Minister for Home Affairs v G [2019] FCAFC 79

Saba and Minister for Immigration and Border Protection [2014] AATA 579

Torres and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 729

1. Ms Shim wants a review of the Minister's (the Minister or the Respondent) delegate's 17 January 2024 decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) refusing her citizenship application (the reviewable decision).[1]
2. The reviewable decision was based on two findings.
3. The first is because the delegate was satisfied that Ms Shim was not likely to reside, or continue to reside in Australia, or to maintain a close and continuing relationship with Australia under s 21(2)(g) of the Act.
4. The second is that Section 24(5) of the Act prevented the application's approval because Ms Shim was absent from Australia at the time of decision, did not meet the special residence requirements outlined in ss 22A or 22B of the Act, and did not qualify for the Ministerial discretions described in ss 22(9) and 22(11).
5. The Tribunal heard the matter on Wednesday 21 May. Mr Park of Park & Co Lawyers represented Ms Shim. Ms Tran of Sparke Helmore represented the Respondent.
6. The Tribunal's jurisdiction to hear this matter comes from s 52(1) of the Act.

1. On 28 June 2006, Ms Shim first arrived in Australia[2]. She became a permanent resident on 7 July 2020 when she received an Employer Nomination Scheme (subclass 186) visa.[3]
2. On 18 February 2022, Ms Shim applied for citizenship by conferral (the application)[4], then departed Australia on the same day and remained offshore until 13 February 2025.
3. On 17 November 2023 the Respondent's delegate sent Ms Shim a letter by email. The letter asked Ms Shim to provide evidence supporting her claims of her intention to either reside in Australia or to maintain a close and continuing association with Australia if her citizenship application was approved ((s 21(2)(g)'s of the Act's requirements), as well as provide information regarding her intended return date to Australia. She was given twenty-eight days (i.e. 15 December 2023) to respond to the request. [5]
4. Ms Shim failed to respond by 15 December 2023. She did not seek an extension of time to respond to the letter.
5. On January 17 2024, the Respondent's delegate rejected Ms Shim's citizenship application.
6. On February 6, 2024, while residing in South Korea, Ms Shim sought review of this decision by the then Administrative Appeals Tribunal, under s 52(1)(b) of the Act, which permits applications for review of decisions made under s 24 of the Act.
7. On 13 February 2025 Ms Shim arrived in Australia.

1. Section 21(1) of the Act establishes citizenship eligibility and how to apply for citizenship.
2. Section 21(2)(g)'s eligibility criterion requires the Respondent (or the Tribunal) to be satisfied that a citizenship applicant is likely to reside or continue residing in Australia, or alternatively, to maintain a close and continuing association with Australia.
3. Assessing this eligibility criterion focuses on evidence of an applicant's plans and intentions at the time of the decision. If one criterion is satisfied, examination of the alternative criterion becomes unnecessary.
4. According to the Revised Citizenship Procedural Instructions (CPI11), terms within s 21(2)(g) should be interpreted according to their ordinary meanings.
5. Section 22 of the Act describes the general residence requirement.
6. Section 24(1) of the Act requires the Respondent to approve or refuse applications made under s 21.
7. Section 24(2) of the Act grants the Respondent discretionary power to refuse citizenship applications despite an applicant's eligibility under Sections 21(2), (3), (4), (5), (6), or (7) of the Act.
8. Relevantly, s 24(5) states:

(a) the person is covered by subsection 21(2[6]), (3[7]) or (4[8]); and

(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A[9] or 22B[10]; and

(b) the Minister did not apply subsection 22(9)[11] in relation to the person; and

(c) the Minister did not apply subsection 22(11)[12] in relation to the person;

the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

1. Mr Park identified three issues:[13]

a) Applying s 21(2)(g), is the Applicant likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application were to be approved? > > b) If so, is the Applicant subject to any mandatory statutory prohibitions under s 24 of the Act? > > c) If not, does the Applicant satisfy all other necessary criteria for eligibility for Australian citizenship by conferral under s 21?

2. Ms Tran contends that only the first issue above is relevant.[14]
3. Her argument, as the Tribunal understands it, is that assessing and deciding because of s 21(2)(g) effectively addresses the elements of s 24(5).[15] The Tribunal considers that Ms Tran's approach is the preferable one in this matter.
4. Section 21(2)(g) has three elements that the Tribunal will address:[16]

(a) Is an applicant likely to reside in Australia? > > (b) Is an applicant likely to continue to reside in Australia? > > (c) Is an applicant likely to maintain a close and continuing relationship with Australia?

5. If the Tribunal determines that Ms Shim is likely to reside in Australia, it does not need to examine the alternative question of whether she would maintain a close and continuing association with Australia. This assessment depends on evidence available at the time of the Tribunal's decision regarding Ms Shim's plans and intentions.[17] The Tribunal must also consider any relevant government policy statements unless there are compelling reasons not to do so.[18]

1. The Tribunal received written evidence during the hearing, which is attached to this Decision and marked 'Annexure A.'
2. Both parties' Statements of Facts, Issues and Contentions (SFICs)[19] are included within Annexure A. The Tribunal has considered these SFICs.
3. The Tribunal also heard and considered oral testimony from Ms Shim, her father Mintaek Shim, her mother Juhee Lee, and Ms Shim's Australian friends Dr Christiansen and Ms Jose.

1. Before its consideration the Tribunal notes the relevance of the Revised Citizen Procedural Instructions (CPI) 11 (CPI11):[20]

(a) CPI11 provides that the Act's phrases like "likely to reside or continue to reside in Australia" and "likely to maintain a close and continuing association" should be given their ordinary meanings. CPI11 references the Macquarie Dictionary for definitions that include the following: "likely" means probably rather than just possibly; "reside" means to live permanently or for a considerable time, with one's home ordinarily being in Australia; "maintain" means to keep in existence or preserve; "close" means near in space, time or relation; "continuing" means to last or endure; and "association" means connection or combination. > > (b) CPI11 emphasises that the requirement concerns maintaining an association with Australia itself, not with Australians. Therefore, an applicant's social relationships or networks in Australia may not be sufficient to satisfy the legal requirement. > > (c) CPI11 also states that consideration of close and continuing association with Australia "concerns a time that has already passed, rather than a time in the future." The document provides a non-exhaustive list of relevant factors, including: whether an applicant has purchased property in their country of residence; whether they have assets, commitments or ties requiring them to continue residing in that country; the frequency and purpose of visits to Australia if residing overseas; the frequency and reasons for absences from Australia if residing in Australia; their participation in the Australian community; and whether they have close family members who are Australian residents or citizens intending to reside in Australia. > > (d) CPI11 explains that the "likely to maintain a close and continuing association with Australia" requirement aims to demonstrate participation in the Australian community while not residing in Australia. This may include participation in community groups providing services or activities benefiting the Australian community, undertaking education or professional studies with Australian institutions, or membership of boards or committees of clubs, charities or other entities providing services, recreational or educational opportunities in Australia. > > (e) CPI11 establishes that a person's intention to reside in Australia should be investigated if the applicant has indicated they will "reside outside Australia after obtaining citizenship."

2. This means that an applicant's social relationships in Australia can be insufficient to satisfy s 21(2)(g). The assessment of close and continuing association concerns past behaviour rather than future intentions. Relevant factors for evaluation include property ownership in the country of residence, assets or commitments in other countries, frequency and purpose of visits to Australia, participation in the Australian community, and whether an applicant has close family members who are Australian permanent residents or citizens intending to reside in Australia.
3. Ms Tran contends that the Tribunal should not be satisfied that, as required under s 21(2)(g), Ms Shim is likely to reside in Australia, continue to reside in Australia, or maintain a close and continuing association with Australia for several reasons:

(a) There is an absence of evidence demonstrating concrete plans for Ms Shim to return to Australia. While she initially expected to return in August 2022 when applying for citizenship in February 2022, she has extended her stay in South Korea due to her parents' health conditions and her own dental treatment following an injury in April 2023. The Respondent questions why she cannot receive dental treatment in Australia or why she has not visited Australia since February 2022, noting that a general intention to return is insufficient to satisfy the statutory requirement. > > (b) Ms Shim's return appears contingent on multiple factors: completion of dental treatment (estimated August 2025, extending her absence to three and a half years), and her parents' health remaining stable. The Tribunal cannot determine with certainty when Ms Shim is likely to return. Citing Ho and Minister for Immigration and Multicultural Affairs**[21]**, Ms Tran argues that "likely to reside" cannot mean residing at some indefinite future time, but rather immediately or very soon after citizenship is granted. > > (c) Ms Shim's strongest ties are demonstrably to South Korea, where her parents and extended family reside. Her cultural obligations as an only child require her to care for her parents, who are unlikely to qualify for Australian permanent residency due to health conditions. She herself stated she cannot handle work in Australia while traveling to Korea, and her parents' medical costs in Australia would be prohibitive. > > (d) Her absence from Australia has been significant - approaching three years - and should be viewed in the context of her prior residence pattern. Between 2017 and 2022, her longest continuous stay in Australia was only two years. Her movement records show extensive travel to multiple countries for work and study, including obtaining a Canadian pharmacist license, suggesting multinational ties rather than a specific connection to Australia. > > (e) Ms Tran argues that Ms Shim's permanent resident status alone does not evidence that Australia is her home and permanent abode and should not influence the Tribunal's assessment of whether she satisfies s 21(2)(g)'s requirements. > > (f) Regarding "continuing to reside," Ms Tran contends Ms Shim cannot satisfy this criterion as she is not presently residing in Australia and has not done so for nearly three years. As for maintaining "a close and continuing association with Australia," the Respondent submits Ms Shim fails to meet this requirement for the same reasons outlined above regarding her likelihood to return to reside in Australia. > > (g) It is important to note that Ms Shim currently maintains all rights associated with permanent resident status in Australia, which permits her to enter and reside in Australia at her discretion. The refusal of this citizenship application will not affect her status as an Australian permanent resident, nor will it prevent her from submitting another citizenship application in the future should she satisfy all legislative criteria for citizenship approval. > > (h) The Respondent submits that the correct and preferable decision is to affirm the original decision under review.

1. The Tribunal makes the following findings, based on the documentary and oral evidence:

(a) Ms Shim has no family in Australia. > > (b) She has not physically met her Australian friends since 2022. > > (c) Doctor Christianson considers Ms Shim to be a friend and has done so since 2017. Ms Shim told her of Ms Shim's intentions to reside in Australia to her at some point in 2024. There have been periods when their contact and communication fluctuated between no contact to frequent contact while Ms Shim was outside Australia. When Ms Shim was in Australia they had sung in a choir together. > > (d) Ms Jose considers Ms Shim to be a friend, but the relationship does not appear as close as that between Dr Christianson and Ms Shim. Ms Jose testified that Ms Shim had told her of her intention to reside in Australia. > > (e) The sole source for both Dr Christianson and Ms Jose knowing of Ms Shim's intent to reside in Australia was Ms Shim herself. > > (f) The Tribunal finds that Ms Shim has not maintained 'a close or continuing relationship with Australia' during her absence offshore. > > (g) The Tribunal further finds that, as Ms Shim returned in February 2025, that it cannot be correct that she is 'likely to continue to reside in Australia'. Applying CPI11, that time has passed and Ms Shim was not in Australia. > > (h) While both Ms Shim's parents testified to a joint intention to apply for Australian visas, they have not yet applied. > > (i) They assert that their respective health conditions have stabilised. Ms Shim stated that she believed that their conditions had stabilised by December 2023. > > (j) Ms Shim has conducted research on obtaining private medical insurance for her parents should they be successful in applying for visas to come to Australia. > > (k) Overall, the plans of Ms Shim and her parents to move the latter to Australia appear nascent and prospective, rather than fully planned. It was disturbing to hear Ms Shim state that, if necessary, her parents would rely on bridging visas. > > (l) Both Ms Shim and her parents each own South Korean properties. > > (m) Ms Shim also owns a residence in Maidstone, Victoria. > > (n) Acknowledging her need for a level of dental care and checkups, the Tribunal considers that Ms Shim could have visited Australia after April or August 2023 albeit for short visits. > > (o) Ms Shim is on some form of extended leave from Samsung Bioepis with potential future employment with that company contingent on whether it chooses to conduct clinical trials in Australia. She currently works as a contractor with Mediaiplus, which is a business that provides clinical trial data curation services. > > (p) The Tribunal also considers that as Ms Shim's work involves medical trials, which constitute an international business, she could live in any number of countries as evidenced by her travel record. > > (q) However, based on her testimony and her February 2025 return to Australia, the Tribunal infers that she is framing her employment decisions around the lens of being in Australia rather than depending on her potential employer.

2. The Tribunal also finds that Ms Shim has only recently taken up renewed residence in Australia. The Tribunal does not consider that this answers the question 'likely to continue to reside' affirmatively. In the Tribunal's view, a period from February 2025 to May 2025 is too brief by itself to satisfy the question of 'likely', especially as Ms Shim testified that she returned in part to be present for the hearing.
3. However, when considered as evidence in conjunction with the other evidence before the Tribunal in terms of the remaining limb of s 21(2)(g) - 'is likely to reside' - the Tribunal finds that the question is answered affirmatively.
4. Consequently, the Tribunal considers that Ms Shim satisfies s 21(2)(g).

1. The Tribunal sets the 17 January 2024 reviewable decision aside and remits the matter to the Respondent for reconsideration, to include an assessment of Ms Shim's situation against s 21(2)(d) - (f) and (h) and the prohibitions in s 24 of the Act.

[6] General eligibility and satisfies general residence requirement.

[7] Permanent or enduring physical or mental incapacity

[8] Over sixty and PR and general residence requirement (see s22)

[9] Special residence requirement - persons engaging in activities that are of benefit to Australia.

[10] Special residence requirement - persons engaged kinds of work requiring regular travel outside Australia.

[11] Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

[12] Ministerial discretion - person in an interdependent relationship

[15] Hussain and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 235 at [18]

[16] Saba and Minister for Immigration and Border Protection [2014] AATA 579; (2014) 145 ALD 212 at

[17] Chen and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2156 at [20].

[18] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at

[640]; Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569 at [64]- [67].

[19] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.