Cai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1969
•28 June 2022
Cai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1969 (28 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3765
Re:Zongkun Cai
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:28 June 2022
Place:Sydney
The reviewable decision dated 31 May 2021 to cancel the Applicant’s approval for Australian citizenship is set aside and the matter is remitted to the Respondent with the direction the Applicant be afforded an opportunity to attend an in-person citizenship ceremony.
...................................[SGD].....................................
Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – where approval of applicant’s citizenship application has been cancelled – where applicant failed to take the pledge of commitment – issue: whether the applicant is not likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia such that approval of the applicant’s citizenship application should be cancelled – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Al-Khalidi and Minister for Home Affairs (Citizenship) [2019] AATA 700
Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933
Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 662
David and Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4665
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943SECONDARY MATERIALS
CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
REASONS FOR DECISION
28 June 2022
Mr S Evans
INTRODUCTION
Zongkun Cai (the Applicant) is a citizen of the People’s Republic of China (China) who applied for Australian citizenship. His application was approved by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) on 11 October 2019. He was invited to provide an expression of interest in relation to attending a virtual citizenship ceremony which required he be present in Australia. The Applicant chose not to attend a virtual ceremony and following subsequent invitations he advised he was unable to return to Australia due to travel restrictions in place on account of the COVID-19 pandemic. On 31 May 2021 a delegate of the Respondent cancelled the approval of the Applicant becoming an Australian citizen. The Applicant now seeks review of the decision at the Administrative Appeals Tribunal (the Tribunal).
For the reasons which follow, the reviewable decision will be set aside.
BACKGROUND
The factual chronology to this matter is set out in the Respondent’s Statement of Facts, Issues and Contentions.
On 15 June 2018 the Applicant applied for Australian citizenship by conferral and the application was approved on 11 October 2019. The Applicant was invited to provide an expression of interest in relation to attending a virtual citizenship ceremony on both 12 May 2020 and 3 August 2020. On 16 September 2020 he sent an email to the Department of Home Affairs confirming that he would like to attend an online citizenship ceremony and provided his email address.
On 25 September 2020 the Department invited him to participate in a virtual citizenship ceremony on 5 October 2020. Although the ceremony was to be virtual, the Applicant was required to be in Australia. On 28 September 2020 the Applicant sent an email informing the Department he was unable to attend the ceremony.
On 5 October 2020 the Department sent an email to the Applicant stating that the Department attempted to contact the Applicant at the time of the ceremony but he could not be reached. The Applicant was also invited to contact the Department if he wished to discuss the matter further.
On 3 March 2021 the Applicant was sent a second invitation to attend a citizenship ceremony, this time for 20 March 2021. On 4 March 2021 the Applicant’s representative contacted the Department to advise that the Applicant was unable to attend the ceremony on 20 March 2021 due to COVID-19 travel restrictions and ask when the next ceremony would be scheduled.
On 9 April 2021 the Department sent the Application a Notice of Intention (NOI) to cancel the approval of his citizenship. The NOI stated that the approval may be cancelled as the Applicant had not made a pledge of commitment at a citizenship ceremony within 12 months of the date on which his application was approved. The NOI also stated that it appeared the Applicant no longer met the eligibility criteria for the grant of Australian citizenship by conferral as he was not likely to reside, or continue to reside, in Australia or maintain a close and continuing relationship with Australia.
The Applicant was invited to provide information within 28 days regarding the reason he did not attend a ceremony and about whether the approval of his citizenship application should be cancelled. He was also invited to respond to information relevant to the issue of whether he was likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia.
The Applicant did not respond to the NOI and on 31 May 2021 a delegate of the Respondent exercised the discretion under section 25 of the Australian Citizenship Act 2007 (Cth) (the Act) to cancel the approval of the Applicant’s application for Australia citizenship as the delegate was satisfied that the Applicant was not likely to reside or continue to reside in Australia or maintain a close and continuing relationship with Australia.
On 8 June 2021 the Applicant sought review of the delegate’s decision.
LEGISLATION AND POLICY
The relevant legislation is contained in the Act.
Subsection 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. General eligibility requires the person satisfy each of the general eligibility requirements under subsection 21(2) of the Act.
Subsection 24(1) of the Act provides that the Minister must approve or refuse to approve an application for Australian citizenship by conferral. Section 26 provides that a person must generally make a pledge of commitment to become an Australian citizen.
Subsection 25(1) of the Act provides that the Minister may cancel the approval of a grant of citizenship provided under section 24 if the person has not become an Australian citizen and either the eligibility criteria are not met or the person has failed to make a pledge of commitment:
25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
Failure to make pledge of commitment
(3) The second situation applies if:
(a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
(b) the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.
Subsection 25(5) provides that if the Minister cancels an approval given to a person, the approval is taken never to have been given.
While the Tribunal is not bound by departmental policy, it will usually be applied in the absence of cogent reasons not to do so.[1]
[1] Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634.
Departmental policy relevant to this application is set out in the Citizenship Policy (the Policy) which includes the Revised Citizenship Procedural Instructions (CPI). The Policy at CPI 11 provides decision makers with guidance on assessing the likelihood that a person will reside, or continue to reside, in Australia or maintain a close and continuing association with Australia.
The words which comprise of the term ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. CPI 11 draws on the Macquarie Dictionary Online which defines:
·‘likely’ as probably or apparently going to or destined in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia; and
·‘reside’ as to dwell permanently or for a considerable time; have one’s abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
Similarly, the Instructions also note the following definitions from the Macquarie Dictionary:
·‘maintain’ as to keep in existence or continuance; preserve; retain;
·‘close’ as near, or near together, in space, time, or relation;
·‘continuing’ as to last or endure;
·‘association’ as the act of associating … connection or combination.
The Policy also states that the requirement to maintain a close and continuing association refers to an association with Australia, not Australians, meaning that associations with immediate family or other social relationships or networks in Australia may not be sufficient to meet the requirement.
The Policy provide that a person’s living arrangements and migration status in their country of residence may be indicators of their association with Australia. CPI 11 provides examples of relevant indicators of whether a person intends to reside in a particular place or will maintain a close and continuing association with that place including:
·their living arrangements and citizenship or migration status in their current country of residence (whether Australia or elsewhere);
·whether the person has purchased a property in their country of residence and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
·whether the person has any assets, commitments or ties to a country that may require or incline them to continue to reside in that country;
·the frequency and purpose of visits to Australia if the person resides overseas;
·frequency and reasons for absence from Australia if the person resides in Australia;
·participation in the Australian community.
ISSUE TO BE DETERMINED
The Applicant applied for citizenship under the general eligibility criteria in subsection 21(2) of the Act. Subsection 28(1) provides that a person who is required to make a pledge commitment becomes an Australian citizen on the day on which they make the pledge. As the Applicant has yet to make a pledge pursuant to subsection 28(1) of the Act, paragraph 25(1)(a) is satisfied.
Where a person has failed to make a pledge of commitment within 12 months of receiving notice of approval, the discretion to cancel the approval is enlivened under subsection 25(3). The Applicant was sent notice of the decision to approve his application for citizenship on 11 October 2019.[2] However, as the Respondent is not able to confirm that the Applicant received notice on 11 October 2019, the Respondent has chosen not to rely upon the discretion provided by subsection 25(3).
[2] T2/11, ST1/1 – 2.
Subsection 25(2) provides that the discretion to cancel the approval is enlivened if the Applicant is not a permanent resident or is not likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia. It also provides that the discretion is enlivened if he is not of good character. The Applicant’s character is not in dispute and it is agreed he is a permanent resident. As such the issues to be determined by the Tribunal are:
(i)Whether the Tribunal is satisfied that the Applicant is not likely to reside in Australia or continue to reside in Australia, or maintain a close and continuing association with Australia; and if so
(ii)Should the discretion to cancel the approval of the Applicant’s citizenship be exercised.
EVIDENCE
The Applicant first arrived in Australia on 13 July 2013 age 16 as the holder of a Business Talent (Permanent) (Subclass 132) visa. He was subsequently granted a Return (Residence) (Subclass 155) visa on 3 March 2018. On 18 October 2020 he departed Australia and is yet to return. At the time of the hearing he was in China, from where he gave evidence.
The Applicant completed his high school studies from year 10 in Australia before enrolling in an Australian university, where he is completing the final year of his undergraduate degree.
The Applicant’s family has an association with Australia. Both his parents are Australian permanent residents whilst his two older brothers and younger sister are Australian citizens. The Applicant contends that his sister plans to return to Australia in the near future and their father has purchased an apartment, which is still under construction, for her in Sydney.
He told the Tribunal that Australia is where his life is and that he does not have a home base in China and travels there to visit people, primarily his family. During school and university holidays his parents book flights for him to visit them in China. When the Applicant travels to China he stays in the family home owned by his parents.
When he was residing in Australia, the Applicant’s parents regularly visited him in Australia and would stay for between two and three months at a time.
The Applicant gave evidence that though his parents support him financially, he is independent and spends relatively little time with them. He indicated that his preference was to be in Australia where his parents have less control and influence over him.
Assets in Australia
The Applicant’s parents own real estate in Sydney (the Vaucluse property). The Vaucluse property has been his family’s principal residence in Australia since they purchased it in April 2015. Since 2016 the Applicant, his sister and brothers have lived together in the Vaucluse property when they are in Australia. When his parents visit Australia, they also reside at the Vaucluse property.
The Applicant confirmed that all of his family members have resided outside of Australia since 2020 and the Vaucluse property has been vacant since he departed Australia in October 2020. He gave evidence that the property had not been leased and was available for when he returned to Australia.
When put to him by the representative of the Respondent the Applicant conceded that the Vaucluse property was, at the time of the hearing, listed for sale. The Applicant gave evidence that real estate agents had approached his father who had agreed to list the property in order to ‘test the market’. He said his parents are attached to the property and did not intend to sell.
In the event he is wrong and the Vaucluse property were to be sold, the Applicant submits that it would not alter his plans to live in Australia. Whilst he enjoys living in the Vaucluse property, he would be prepared to rent accommodation or live with his sister in the apartment their faither purchased for her when it is complete.
Frequency and purpose of travel
The Applicant enjoys travelling and whilst residing in Australia he travelled to China regularly. His movement records are consistent with his claim to have travelled to China on average twice each year between July 2013 and October 2020.[3]
[3] T9/69 – 70.
Employment
The Applicant plans to undertake further study in Australia when he completes his undergraduate degree. He initially chose to study at his current university because he believes it would help him obtain employment in Australia if he studied at an Australian university. He claims that his preference and plan has always been to work in Australia upon graduation.
The Applicant has completed an internship in China, which he submits is the totality of his work commitments in China. The internship, which was at an investment company, would not require he remain in China and in any case was due to finish in the near future.
The Applicant’s family has ties to an Australian based resource company, WIM Resource Pty Ltd. The Applicant’s brother currently works at the company and the Applicant plans to be part of the business either as an officeholder or working in management. He contends that there is a pathway for him to do so, and that he has attended board meetings in anticipation of this.
The Applicant claims that even if he were not to work at WIM Resources, he would not seek to work in China as he prefers life in Australia and maintains he is more familiar with Australia.
Commitment and participation in the community
The Applicant holds an Australian drivers licence and owns a vehicle in Australia which he says is stored at the Vaucluse property. The vehicle is currently unregistered and there is no documentary evidence relating to the vehicle before the Tribunal.
The Applicant has not paid income tax in Australia but expects to do so when he begins working. He has an Australian bank account which he can manage from China as well as a Chinese bank account.
The Applicant has friends in Australia who he met whilst studying and has provided written references from Fei Wu, CEO of WIM Resource Pty Ltd, Henry Lee a friend he has known since March 2018, and Wen Duan who has known him since 2019. They speak to his integrity, intelligence and friendliness. Fei Wu confirms the Applicant’s account of attending WIM Resource board meetings.
Plans to reside
A Department of Home Affairs movement history shows the Applicant departed Australia on 18 October 2020 and is yet to return. The Applicant submits he has not returned owing to the pandemic and now plans to reside in Australia when he graduates. He conceded that when he departed Australia in October 2020 he was aware he would encounter difficulty returning owing to his status as a permanent resident and the pandemic related travel restrictions which were in place at the time.
Not unexpectedly, when he booked a flight to return to Australia on 13 July 2021 the flight was cancelled owing to the pandemic. He gave evidence that he was intending at that time to return to Australia to live.
He writes that he had not returned to Australia due to COVID-19, but that he also chose to stay in China in order to care for his grandmother. He wrote on 2 August 2021:
I did not come back to Australia as planned mainly due to Covid-19. Also, my grandmother, Ms Sun Wu, who looked after me since I was born until I went overseas for studying, is very worried about any international travel for me. She is 91 years old now and needs long-term care due to Hypertension and Cardiovascular diseases. I love my grandma very much and would like to stay a bit longer with her and help look after her while I can.
At the hearing he was asked whether he had taken any steps to return to Australia this year. He gave evidence that he had been looking for flights in early 2022 but following the outbreak of the Omicron variant his family asked him to stay in China. He told the Tribunal that he planned to return to Australia within three or four months, depending on the ‘covid situation’.
CONSIDERATION
When approval was cancelled, the Applicant was not residing in Australia. He was also not residing in Australia at the time of the hearing into his application. The Applicant maintains he intends to reside in Australia, but that he has been hampered from doing so on account of pandemic related impediments. In the meantime, he has been able to continue his studies at the Australian university whilst using the opportunity in care for his elderly grandmother in China.
The Respondent contends that given the Applicant does not currently reside in Australia, and has not done so since departing on 18 October 2020, I should be satisfied that the Applicant will not continue to reside in Australia.
Between 2013 and 2020 the Applicant resided in Australia, with regular travel overseas, primarily to China. Partly on the basis of his residency during this period, I accept his evidence that he prefers living in Australia where he is more independent. I also accept that having spent his formative years in Australia he views it as his primary place of residence.
Whilst the Applicant has strong ties to China, his family also has a connection to Australia and I accept his evidence that some of his Australian citizen siblings will resume living in Australia in the future. However, I place little weight on this consideration in the absence of any evidence as to their plans.
When determining if a person has an intention to reside, Deputy President McMahon’s observation in Re Ho and Minister for Immigration and Ethnic Affairs (Ho) in reference to ‘likely to reside… in Australia’ as it appears in paragraph 21(2)(g) of the Act is often cited:
It can not mean "likely to take up residence in 18 months or 2 years time" or "likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found". The juxtaposition of the phrase with the opening phrase of the paragraph, indicates the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship.[4]
[4] (1994) 34 ALD 664 at [31].
In Al-Khalidi and Minister for Home Affairs (Citizenship)[5] (Al-Khalidi), Senior Member Puplick considered that the words likely to reside or continue to reside should be given their ordinary meaning in the context in which they appear, before ‘reality-testing’ the evidence of the applicant’s intention.
[5] [2019] AATA 700.
Applying a reality test to the Applicant’s plans to live in Australia requires consideration of the concrete steps the Applicant has made to return to Australia. A return ticket to Australia was purchased for a cancelled flight in July 2021 which coincided with the beginning of a second pandemic related ‘lockdown’ in Sydney, and the flight was reportedly cancelled.
The Applicant contends that the impact of the pandemic needs to be taken into account when considering his application, particularly the government-imposed flight caps and travel bans which the Applicant submits were in place until 15 December 2021. However, the Applicant does not contend, and no evidence has been presented, of subsequent travel arrangements having been made since restrictions were eased.
In relation to the other relevant factors identified in the Policy, I accept the Applicant plans to continue his studies in Australia. The evidence supports his contention that should he return he would be able to reside at the Vaucluse property. If that were to be sold, which would appear to be a possibility, there is no reason to doubt he would reside either at the residence his father has purchased on behalf of his sister elsewhere in Australia. Indeed, the Applicant gave evidence that he wished to live in another part of Sydney to be closer to his friends and was content to move into rented accommodation in order to do so.
I do not doubt his preference for living in Australia, based in part on his evidence and that he resided in Australia for seven years. Furthermore, the Applicant is prepared to forgo his Chinese citizenship, which I consider indicative of an intention to reside in Australia.
In the context of the pandemic, I am not satisfied that the Applicant’s substantial absence from Australia alone can be taken to demonstrate he does not intend to reside in Australia. However, the sum of measures taken by the Applicant to realise an immediate or imminent return to Australia is the booking of the cancelled flight in July 2021. There is currently no timeline for the Applicant’s return to Australia nor actual plans to do so.
Certainly, in relation to the test of intention outlined in Ho, the evidence supports a conclusion that the Applicant was not likely to reside in Australia immediately or very soon after. With no plans to return in place, his intention to reside does not readily lend itself to the reality testing of the nature outlined in Al-Khalidi.
Taking into account the uncertainty as to his plans to return to Australia, and his desire to care for his elderly grandmother, I cannot be satisfied the Applicant is likely to reside, or continue to reside in Australia at this time.
Turning to whether the Applicant will maintain a close and continuing association with Australia, previous decisions of the Tribunal have emphasised that whether an applicant for citizenship has a close and continuing association with Australia is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including but not limited to, the factors listed in the Policy. In Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship (Surjanto) Senior Member Britton stated that forming an opinion as to whether a person has demonstrated the requisite association is ‘not a simple mechanical exercise to be undertaken by merely tallying the relevant factors’, or simply ‘ticking’ them off as having been satisfied.[6]
[6] [2013] AATA 689 at [28].
In Vasiunina and Minister for Immigration and Border Protection (Citizenship) Senior Member Puplick said:
Equally, it seems to me that words such as “close” and “continuing” import some degree of emotional commitment or attachment. They require involvement, participation, commitment or investment.[7]
[7] [2018] AATA 943 at [36].
The Respondent contends that the elements referred to in Vasiunina have not been demonstrated by the Applicant. The association, the Respondent contends, is in the past and cannot be considered an association to be maintained in the future.
Whilst his siblings are Australian citizens, the Respondent argues this should not be taken to be anything other than a close and continuing association with Australians, rather than Australia, particularly in circumstances where the Applicant does not currently reside in Australia.
Consistent with the Policy, an association with Australian citizens does not necessarily equate to an association with Australia. In Chimnani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) Senior Member Kirk observed:
The Applicant’s de-facto partner is an Australian citizen, and although she currently resides with him in Dubai, she intends to return to Australia to reside here long term. The Applicant’s children are Australian permanent residents, however none of them currently reside in Australia. The Applicant’s evidence is that they intend to reside in Australia as a family following his return from Dubai in 2023. The Tribunal is not satisfied that during the relevant period the Applicant had a close and continuing association with Australia by virtue of his familial relationships with Australian citizens and permanent residents, none of whom currently reside in Australia.[8]
[Emphasis added]
[8] [2022] AATA 662 at [89].
Whilst acknowledging the Applicant’s presence in Australia until October 2020, the Respondent argues the evidence does not support him having a strong attachment, connection to or involvement with the community. It is argued by the Respondent that the references he has provided go to his personal characteristics, but do not indicate an involvement with, or commitment to, Australia.
In Ul Haque and Minister for Immigration and Citizenship[9] Senior Member Britton considered that determining if the applicant ‘had a close association with Australia cannot be undertaken in a vacuum and his association with other countries must also be taken into account’.
[9] [2013] AATA 118.
In considering the broader totality of the Applicant’s circumstances, I am satisfied that his association with Australia is not limited by having a close and continuing association with China. It is not suggested that he works, pays taxes, owns a residence or is otherwise participating in the community outside of Australia.
Based on the evidence, I consider the Applicant’s involvement in and association with the Australian community to be limited. I make some allowance for his age and circumstances, as he has yet to begin working or partaking in other activities which may engender participation in the community. Nonetheless, when considering the entirety of the Applicant’s circumstances, I am not of the view that he has, or is likely to maintain, a close and continuing association with Australia at this time.
Having found that the eligibility criteria are no longer met, the discretion to cancel the approval of the grant of citizenship is enlivened. I now turn to considering whether the discretion to do so should be exercised.
Should the discretion to cancel be exercised?
Cancellation of the approval is discretionary under the Act because subsection 25(1) states ‘the Minister may, by writing, cancel an approval’.
The Act does not provide guidance as to what factors should be taken into account when considering whether to exercise that power. Therefore the subject matter, scope and purpose of the Act must be considered.[10]
[10] Minister for Aboriginal Affairs and Peko-Wallsend Ltd (1986) 162 CLR 24.
The Respondent submits that the general eligibility criteria under paragraph 21(2)(g) demonstrates it is the expectation that those who are granted Australian citizenship by conferral will be likely to reside in Australia or continue to reside in Australia, or maintain a close and continuing relationship with Australia. That requirement is reflected in the preamble to the Act, which provides that:
The parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations…
It is argued by the Respondent that as the Applicant is unable to demonstrate he is likely to reside in Australia or to maintain a close and continuing association with Australia, that the grant of Australian citizenship to the Applicant would not give effect to an evident intention of the Act. Specifically, those who are granted citizenship are expected to be involved in the Australian community through their residence in Australia or their maintenance of a close and continuing association with Australia.
Determining whether to exercise the discretion has been considered previously by the Tribunal. In Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933 (Budhathoki) Senior Member Britton stated that the following should be taken into account:
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.[11]
[11] [2009] AATA 933 at [11].
The Respondent’s contention that the cancellation of the approval of the Applicant’s citizenship would not prejudice the Applicant and that he was understanding of the requirements to make the pledge is accepted. It is not in question that it would be open for the Applicant to apply again for citizenship, or that he presently retains a right to return to Australia as the holder of a resident return visa.
The Applicant attributes his failure to make the pledge within the requisite time to issues relating to the pandemic, specifically the travel restrictions and the suspension of in-person citizenship ceremonies. In considering whether the discretion should be exercised, the Applicant’s explanation provided as part of his statement dated 2 August 2021 is instructive. He writes in part:
·I was sent an expression of interest to attend a virtual ceremony on 12 May 2020. I believe it is a privilege to become an Australian citizen and would like to experience the important moment of my life, so I prefer to attend the ceremony in person. Under "Response required" in the invitation, it stated: "If you do not want to attend a virtual ceremony, please disregard this email. You will be invited to attend a face-to-face ceremony once they are safe to resume", therefore I did not reply formally to the invitation.
·I was sent another express of interest [sic] to attend a virtual ceremony on 3 August 2020. Again, it stated: "If you do not want to attend an online ceremony you do not need to take any action. When in-person citizenship ceremonies are reintroduced in your local government area, you will be invited to attend a ceremony. "
It is appropriate at this point to observe that I found the Applicant to be a credible witness who did not seek to embellish his evidence in support his application.
The invitation to attend a virtual ceremony which was dated 12 May 2020 invited those who did not wish to attend a virtual ceremony to disregard the email with the promise that they would be invited to a face-to-face ceremony ‘once they are safe to resume’. Understandably, given the circumstances at the time, no timeframe for when it may be safe to resume face-to-face ceremonies is proposed. The wording of the invitation sent on 3 August 2020 was in almost the exact same terms.
Two issues arise from this. Firstly, as the Applicant was in Australia through until October 2020, it was open to him to have attended the virtual ceremony on 12 May or 3 August 2020 and been granted citizenship in accordance with subsection 28(1). That he chose not to do so lends considerable credibility to his claim that he preferred to attend an in person ceremony:
I was sent an expression of interest to attend a virtual ceremony on 12 May 2020. I believe it is a privilege to become an Australian citizen and would like to experience the important moment of my life, so I prefer to attend the ceremony in person.
Secondly, the wording of the correspondence raised the possibility of waiting for an opportunity to attend an in person ceremony, but did not raise the prosect of cancellation of the approval should the a pledge not be made within 12 months. The 12 month limitation does not appear to have been flagged until the Respondent wrote to the Applicant on 9 April 2021, by which time the Applicant was in China and travel restrictions made returning to Australia extremely difficult. Without the pandemic related restrictions, there is no reason to believe that the Applicant would not have been able and prepared to return to Australia in order to take the pledge.
Having not received a response to the 20 March 2021 invitation, the Applicant was sent an NOI to cancel the approval of his application for citizenship on 9 April 2021. The delegate decided to cancel the approval on 31 May 2021. In my view, the decision to cancel shortly after first notifying the Applicant that cancellation was a possibility was, in the context of travel restrictions that were in place and the history of the application, unreasonable.
The pandemic should not be used to obscure facts which would ordinarily have run against the Applicant. However, where discretion exists and can be exercised to ameliorate unintended outcomes which arose or were exacerbated by the unique circumstances of that time, it is not inappropriate for decision makers to endeavour to do just that.
In this instance I am of a view that if not for the pandemic, the Applicant would have taken the pledge.
In David and Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4665 (David) Senior Member Morris considered an application by a Canadian citizen whose citizenship had been approved but subsequently cancelled as he was overseas and unable to take the pledge within 12 months. Senior Member Morris considered in David that the applicant ‘should be given an opportunity to make the pledge of commitment in Australian when the travel restrictions have ended’.
I acknowledge that the Applicant has not yet returned since travel restrictions ended. However, in my view, consistent with the finding in David, the Applicant should be given the opportunity to do so in order to make the pledge of commitment.
DECISION
For the reasons outlined above the reviewable decision dated 31 May 2021 to cancel the Applicant’s approval for Australian citizenship is set aside and the matter is remitted to the Respondent with the direction the Applicant be afforded an opportunity to attend an in-person citizenship ceremony.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
...................................[SGD].....................................
Associate
Dated: 28 June 2022
Date(s) of hearing: 19 January 2022 Date final submissions received: 22 February 2022 Solicitor for the Applicant: Mr R Ahmadzai, Peter Bollard & Associates Pty Ltd / Crystal Migration Solicitor for the Respondent: Mr C Burke, Sparke Helmore Lawyers
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