1. Therefore, for the discretion to treat periods the Applicant spent outside Australia between 3 December 2007 and 29 August 2011 as periods present in Australia for the purpose of exercising the discretion in s.22(9) of the Act in the Applicant's favour, the issue for determination is whether the Applicant satisfies the requirement in s.22(9)(d) that the Applicant had a 'close and continuing association with Australia' during that time.

'Close and continuing association with Australia'

Period during which the Tribunal will assess whether the Applicant had a 'close and continuing association with Australia'

1. The Minister contends that the time during which the Tribunal must consider whether the Applicant had a 'close and continuing association with Australia' are those periods during the four year prior to the date of the Applicant's application for which the Applicant seeks that the discretion in s.22(9) of the Act be exercised in his favour.
2. The Minister contends that, while the Tribunal is generally obliged to take into account material that is relevant to the matter under review subsequent to the original decision (Shi v Migration Agents Registration Authority [2008] HCA 31), the words "at the time the person made the application" in s.21(2)(c) of the Act denote a temporal element of a sort identified by the High Court in Shi as providing for an exception to the general rule that material should be taken into account up to the Tribunal's decision making process.
3. This interpretation was confirmed in Dandan v Minister for Immigration and Citizenship [2010] AATA 539, in which Britton SM found (at [6]) that the residency requirement in ss.21(2)(c) of the Act requires an assessment to be made of whether the applicant satisfies a residence requirement at the time the person's application for citizenship is made.
4. The effect of this interpretation is that, to apply the discretion in ss.22(9) of the Act in the Applicant's favour, the Tribunal must be satisfied that the Applicant had a close and continuing association with Australia during those periods between 3 December 2007 and 29 August 2011 in which the Applicant was not present in Australia for which the Applicant seeks the discretion in s.22(9) of the Act to be exercised in his favour.
5. The Minister contends that in taking this approach the Tribunal should take into account that:
   • the Applicant's application for citizenship on 29 August 2011 was made less than 3 weeks after his most recent arrival in Australia on 11 August 2011;
   • the commencement of the Applicant's employment with ASC Pty Ltd commenced only two weeks prior to the Applicant's application; and
   • the Applicant's total period of time in Australia in the four years immediately prior to his application was 189 days.

Approach to question of 'close and continuing association with Australia'

1. The ACIs (T documents, at 40) state that the discretion in s.22(9) of the Act "would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner" for the time in which the applicant seeks for a period or periods overseas to be treated as time present in Australia.
2. The Tribunal cannot discern any logical rationale for the application of this policy in this matter.
3. Counsel for the Minister drew the attention of the Tribunal to two recent conflicting Tribunal decisions regarding the effect of the ACI's on this issue ie: Sapronov and Minister for Immigration and Citizenship [2011] AATA 126 and Hingorani and Minister for Immigration and Citizenship [2011] AATA 266.
4. In my view the decision in Sapronov is the correct or preferable approach to the issue and there are, for the reasons set out in that decision, "cogent reasons" not to follow the ACI's in this matter.
5. Alternatively, the Minister contends that, in undertaking an assessment of the extent and depth of the Applicant's purported 'close and continuing association with Australia', the Tribunal should distinguish between a close and continuing association with the Applicant's family in Australia and a close and continuing association with Australia itself (see Minhas and Minister for Immigration and Citizenship [2011] AATA 388; Jiang and Minister for Immigration and Citizenship [2011] AATA 688). However the Tribunal notes that in the Minhas case the applicant had no property or bank accounts in Australia unlike the applicant in this matter.
6. The Tribunal is satisfied that the Applicant has demonstrated a 'close and continuing association with Australia on all the facts referred to above and the discretion in s.22(9) should accordingly be exercised in the Applicant's favour.

1. The Tribunal sets aside the decision of the Respondent made on 21 September 2011 and remits the matter to the Respondent to determine the Applicant's eligibility to become an Australian citizen, taking into account that the Tribunal has found, in exercising the discretion provided for in s22(9) of the Australian Citizenship Act 2007 (the Act) that the Applicant satisfies the general residential requirement in s22(1) of the Act.

I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member