BUDHATHOKI Applicant And MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 933

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 933

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/3513

GENERAL ADMINISTRATIVE DIVISION		)
Re		PRAMOD BUDHATHOKI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member A K Britton

Date 4 December 2009

Place Sydney

Decision  Decision under review is affirmed

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CATCHWORDS

Citizenship — pledge of commitment — discretion to cancel approval due to non-attendance — discretion to cancel approval exercised.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ― ss 24, 25

Acts Interpretation Act 1901 (Cth) ― s 33(2A)

Australian Citizenship Regulations 2007 (Cth) ― r 7.

REASONS FOR DECISION

1.      Mr Pramad Budhathoki applies to the Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel the approval of his application for Australian citizenship. The stated reason for the delegate’s decision was Mr Budhathoki’s failure to make a pledge of commitment to become an Australian citizen within the period mandated by statute, namely 12 months from the date of receiving notice that his application for citizenship had been approved.  

2.      Mr Budhathoki contends that he has provided a reasonable explanation for failing to make the pledge within time — namely, his absence from Australia for a significant period. Mr Budhathoki returned to his country of birth, Nepal, eight months after being notified that his application for Australian citizenship had been approved. He argues that this reason, together with the long period he has been spent in Australia since arriving in 1992, favours the setting aside of the decision to cancel approval of his application for Australian citizenship.

does the tribunal have power to cancel the approval?  

3.      As a starting point, it is necessary to determine whether the Tribunal has the power to cancel Mr Budhathoki’s approval to become an Australian citizen.

4.      A person whose application for Australian citizenship by conferral has been approved by the Minister must make a pledge of commitment to become an Australian citizen: s 25 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). A person required to make a pledge becomes an Australian citizen on the day they make the pledge: s 28(1).

5.      The Minister (or other decision-maker) may cancel an approval if the person has:

(i) Not become an Australian citizen (s 25(1)(a) of the Act); and

(ii) Failed to make a pledge of commitment within 12 months after the day on which they received notice of the approval (s 25(1)(b) and 25(3) of the Act) and

(iii) Failed to make a pledge of commitment within time for reasons other than a ‘prescribed reason’: ss 25 (3) of the Act.

6.      The ‘prescribed reasons’ include being unable to make a pledge within time on account of: being overseas for medical treatment unavailable in Australia; being unexpectedly hospitalised while overseas; being overseas to care for a person who was critically ill, or to make funeral or other arrangements; and, government administrative error: reg. 7 of the Australian Citizenship Regulations 2007 (Cth). There is no evidence, and nor is it asserted, that Mr Budhathoki failed to make a pledge within time because of a ‘prescribed reason’.

7.      The pre-conditions to the exercise of the power to cancel the approval for citizenship are satisfied — Mr Budhathoki’s did not made a pledge of commitment with the requisite period; he is not an Australian citizen; his reason for not making the pledge within time does not constitute a ‘prescribed reason’.  

should the tribunal cancel the approval?    

8.      The Act confers on the Minister (or other decision maker) a discretionary power to cancel an approval for citizenship given to a person under s 24.  This is because s 25(1) states that ‘the Minister may…cancel an approval…’(emphasis added). (See also s 33(2A) of the Acts Interpretation Act 1901 (Cth)).

9.      The Act provides no express guidance as to the factors to be taken into account when exercising that power.  Accordingly the subject matter, scope and purpose of the statute must be considered: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

10.     The Act does not contain an objects clause. Read as a whole, it is apparent that one of the purposes of the Act is to make a timely pledge of commitment to becoming an Australian citizen a pre-requisite to the grant of citizenship by conferral.

11.     There is no issue that Mr Budhathoki is otherwise eligible to become an Australian citizen and is willing to make a pledge of commitment.  The sole issue to be determined is whether the power to cancel the approval should be exercised given his failure to make a pledge within time. In my view, the following factors are relevant to that decision: (1) the steps taken by the Department to notify Mr Budhathoki of the pledge requirement; (2) the reason he failed to make the pledge within time; (3) Mr Budhathoki’s understanding of the requirement; and (4) any prejudice he might suffer if the approval is cancelled.

12.     Notice of requirement   The Department wrote to Mr Budhathoki on 27 August 2007, and advised that his application for citizenship had been approved and that he was required to make a pledge:

The final step to becoming an Australian citizen is the making of a pledge of commitment. You will not be an Australian citizen until you have made that pledge.

Generally, citizenship ceremonies are scheduled within 6 months of approval but waiting periods vary. 

13.     In early February 2008 the Department again wrote to Mr Budhathoki and invited him to attend a citizenship ceremony scheduled for the following month. Two weeks later he was advised of a change of date and venue and again requested to attend a citizenship ceremony. In both letters he was asked to contact the Department if he was unable to attend.

14.     In a letter dated 16 April 2008, the Department advised that approval of his application might be cancelled if he did not make a pledge of commitment within 12 months of approval and noted that he had not attended the March citizenship ceremony. He was again urged to contact the Department. Over the next few months the Department sent Mr Budhathoki four notices reminding him of the need to make a pledge and the consequence of not doing so within time.

15.     By letter dated 14 March 2009 Mr Budhathoki was notified that his application for citizenship had been cancelled.

16.     As noted, Mr Budhathoki left Australia for Nepal on 18 April 2008 and did not return until 26 June 2009 — after his application for citizenship had been cancelled. He does not dispute that he received the invitations to the March 2008 ceremonies but claims that it was not until his return from Nepal that he received any of the correspondence sent by the Department after February 2008.  On his account his wife and brother-in-law who had been living in his apartment while he was away, did not forward his mail.

17.     According to Mr Budhathoki, he contacted the Department in February 2008 by phone and advised that he was unable to attend the March citizenship ceremony.  He does not claim that he told the Departmental officer he intended to leave Australia for an indefinite period. In addition, he claims that his wife had contacted the Department by phone shortly before joining him in Nepal in early 2009, and was told that he could attend a citizenship ceremony on his return to Australia.  The Department holds no records of these conversations.

18.     Reason for not making the pledge   Mr Budhathoki claims that in February 2008 he was contacted by a friend who told him that a position as a pilot in Nepal might become available. Mr Budhathoki was keen to explore that possibility as he had been unable to obtain employment in Australia as a pilot, notwithstanding that he had obtained the necessary licence in 2002.

19.     Unfortunately Mr Budhathoki’s attempts to find work in Nepal were unsuccessful. Nonetheless while in Nepal he obtained additional qualifications, which he hopes might assist him to secure employment as a pilot in Australia.

20.     According to Mr Budhathoki, when he left for Nepal he thought that if he obtained work as a pilot he would be away for up to three years.

21.     Understanding of requirement   Mr Budhathoki admits that when he left for Nepal he knew that he was required to make a pledge of commitment by August 2008 and that a failure to do so might mean he would need to reapply for citizenship.  He said he had no option but to postpone making the pledge, as it was his understanding that the Nepalese government does not permit dual citizenship.  As such, he believed that if he took the final step to becoming an Australian citizen he would forfeit his right to work in Nepal.  

22.     Prejudice   Mr Budhathoki claims that if his application for citizenship is cancelled he will be disadvantaged in that he will be ineligible for certain types of government employment, unable to vote in government elections and subjected to the inconvenience of having to make a further citizenship application. 

23.     It is argued for the Minster that Mr Budhathoki would not suffer any material detriment by the cancellation of his application. The solicitor for the Minister contends that there appears to be no bar to Mr Budhathoki reapplying for citizenship.

24.     Conclusion   Having carefully considered the above matters I have determined that the correct and preferable decision is that the decision to cancel Mr Budhathoki’s approval for citizenship should be affirmed.

25.     When Mr Budhathoki decided to postpone making the pledge he was confronted by a Catch-22 dilemma. As he saw it, his only hope of finding work in his chosen profession was to gain experience in Nepal, an opportunity he would forfeit if he were to take the final step to becoming an Australian citizen.  

26.     While the Act provides some flexibility for persons who are unable to make the pledge within time, the prescribed reasons are narrow in scope and do not extend to situations such as those that confronted Mr Budhathoki, where the inability to make a timely pledge is caused by the need to travel overseas for business or employment reasons.

27.     Mr Budhathoki properly conceded he was aware of the consequences of not making the pledge when he left for Nepal. Any prejudice he might suffer is minimal and he is not prevented from applying at some later date.

28.     I note that Mr Budhathoki’s failure to make the pledge within time occurred because of a combination of circumstances and does not in my view indicate any lack of commitment to Australia. Nor was this suggested by the Minister.

29.     For these reasons I have decided to affirm the decision under review.

I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ..............................................................................

Michael Granziera, Associate to Senior Member Britton

Date/s of Hearing  30 November 2009
Date of Decision   4 December 2009
The Applicant appeared in person
Solicitor for the Respondent     Jackie Emery, DLA Phillips Fox