David and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 4665

David and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4665 (16 December 2021)
Division:GENERAL DIVISION
File Number: 2021/2387
Re:Michael David
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:16 December 2021
Place:Melbourne

Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision dated 18 March 2021 to cancel the Applicant’s approval for Australian Citizenship is set aside. In substitution the Tribunal decides the approval is not cancelled.
........................................................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – application for citizenship by conferral – where applicant has been approved for the grant of citizenship – applicant advised he has 12 months to make the pledge of commitment – common ground that applicant did not make pledge – discretion then enlivened to cancel approval – delegate of Minister cancels approval of citizenship – two grounds – failure to make pledge of commitment within 12 months – not satisfied applicant likely to reside or continue to reside in Australia or maintain close and continuing association with Australia – supervening event of global pandemic – closure of national border – cancellation of citizenship ceremonies – assessment of applicant’s circumstances – satisfied that while enlivened discretion should not have been exercised – decision under review set aside
PRACTICE AND PROCEDURE – where two witnesses have lodged substantially similar statutory declarations – where not in contemplation that the two witnesses’ evidence should be tested against each other – where expeditious for the two witnesses to give evidence concurrently – where parties to proceedings do not object – concurrent evidence given
Legislation
Acts Interpretation Act 1901 (Cth), ss 33, 36
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 37, 40
Australian Citizenship Act 2007 (Cth), Preamble, ss 21, 24,25, 26, 28, 51, Sch 1
Australian Citizenship Regulations 2016 (Cth), r 9
Citizenship (LIN 20/084)(Class of Persons Who May Receive A Pledge Of Commitment) Instrument 2020
Evidence Act 1995 (Cth), ss 160, 163
Cases
Drake and Minister for Immigration and Ethnic Affairs (No.2); Re: (1979) 2 ALD 634
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Lin v Minister for Immigration and Citizenship [2009] FCA 494; 176 FCR 371
Minister for Home Affairs v G and Another (2016) 266 FCR 569
Secondary Materials
Department of Home Affairs – Revised Citizenship Procedural Instructions (1 January 2019): CPI 10 – Cancellation of approval and delay in making the pledge; CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing relationship with Australia
Prime Minister – media release – Border Restrictions – dated 19 March 2020 (pm.gov.au)
REASONS FOR DECISION
Senior Member D. J. Morris
16 December 2021
PRELIMINARY

Australian citizenship can be acquired broadly in five ways. Generally, a person becomes an Australian citizen automatically if the person is born in Australia and one of his or her parents is an Australian citizen or a permanent resident at the time of birth. A person can also apply to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to become a citizen. A person can apply for citizenship by descent if he or she was born outside Australia and one or both of his or her parents were Australian citizens at the time the person was born. A person may also become a citizen by adoption by Australian citizen parents. A person may also become an Australian citizen by conferral. Finally, a person may become an Australian citizen by resuming citizenship in a case where they had previously been a citizen.
The acquisition of Australian citizenship is regulated by the Australian Citizenship Act 2007 (‘the Act’). This includes, in Division 2 of that Act, automatic acquisition of citizenship by birth, adoption, abandonment in Australia as a child or where the person is connected with a territory incorporated into Australia and the Minister has made a relevant determination.
Where a person is seeking citizenship by conferral, the process commences when that person lodges an application with the Department of Home Affairs (‘the Department’), which is the department of state that administers the Act. The process ends, and the person becomes an Australian citizen, on the day the person makes the pledge of commitment (see section 28 of the Act). There are certain special provisions in the Act where a person may be exempted from making the pledge, but they are not relevant to the matter before the Tribunal.
The Applicant, Mr Michael David, is a citizen of Canada. In April 2017, he applied for Australian citizenship by conferral. On 23 July 2019, his application for citizenship was approved. He did not attend a citizenship ceremony within 12 months of the approval. On 12 December 2020, an officer of the Department wrote to Mr David giving notice of its intention to consider cancellation of his citizenship approval. On 10 and 18 January 2021, Mr David wrote to the Department to explain his delay in taking part in a citizenship ceremony.
On 18 March 2021, a delegate of the Minister cancelled the approval of Mr David’s application for Australian citizenship on two grounds:
(a)That he had failed to make the pledge of commitment within 12 months of approval of his citizenship application; and
(b)On the basis that he is not likely to reside, or continue to reside, in Australia or maintain a close and continuing association with Australia.
Mr David has brought this decision of 18 March 2021 to the Tribunal for review. He is entitled to do so under section 51(1)(c) of the Act.
HEARING
The matter was heard on 2 December 2021. Mr David represented himself, made submissions, and was cross-examined by Ms Emily Spice of The Australian Government Solicitor, representing the Minister. The Applicant also called the following witnesses who gave evidence and were cross-examined: his wife, Ms Aisha Champness; and his parents-in-law, Mr Mike Champness and Mrs Jennifer Champness.
The proceedings were conducted by video, as permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The ability of the Applicant and Ms Champness to give evidence from outside Australia is provided by section 40(4) of the AAT Act. The Tribunal determined, without objection from the parties, that Mr and Mrs Champness would give evidence together, given that the statutory declarations they had lodged prior to the hearing were substantially similar.
The Respondent lodged documents under section 37 of the AAT Act (‘TD’ documents) (Exhibit R1). The Respondent also lodged a Statement of Facts, Issues and Contentions (‘SFIC’).
The Respondent lodged an article titled ‘Australia Day celebrations marred by COVID’, dated 20 January 2021 (Exhibit R2); and City of Whitehorse News Issue, dated January 2021 (Exhibit R3).
The Applicant lodged the following documents:
(a)Letter of the Applicant, dated 13 August 2021 (Exhibit A1);
(b)Ongoing Connection Statement, lodged 13 August 2021 (Exhibit A2);
(c)Ceremony Statement, lodged 13 August 2021 (Exhibit A3);
(d)Statutory declaration of Aisha Champness, declared on 9 August 2021 (Exhibit A4);
(e)Statutory declaration of Jennifer Champness, declared on 11 August 2021 (Exhibit A5);
(f)Statutory declaration of Mike Champness, declared on 10 August 2021 (Exhibit A6);
(g)Statutory declaration of Jordan Champness, declared on 9 August 2021 (Exhibit A7);
(h)Statutory declaration of Michelle Hall, declared on 12 August 2021 (Exhibit A8);
(i)Statutory declaration of Tim Gamble, declared on 11 August 2021 (Exhibit A9); and
(j)Statement of Melissa Herron dated 7 August 2021 (Exhibit A10).
At the conclusion of the hearing, the Tribunal directed that the Respondent produce certain additional information, which was provided on 6 December 2021.
THE LEGISLATIVE AND POLICY FRAMEWORK
The Act provides at section 21(1) that a person may make an application to the Minister to become an Australian citizen. Section 21(2) of the Act concerns general eligibility. It was common ground between the parties that Mr David was eligible for the grant of citizenship and had satisfied all the requirements at the time his application for the grant of citizenship was approved.
Section 24 provides that if a person applies for Australian citizenship, the Minister must in writing approve, or refuse to approve, the person becoming an Australian citizen. There is no power to defer a decision.
It is important to note that advice of approval under section 24 is distinct from the conferral of Australian citizenship. Section 28(1) of the Act provides that a person required to make a pledge of commitment becomes an Australian citizen on the day on which the person makes the pledge. The form of the pledge is set out in Schedule 1 of the Act.
However, the Minister may, under section 25 of the Act, cancel an approval given under section 24 if the person has not become an Australian citizen under section 28 and either of two conditions apply. The two conditions are set out in section 25(2) and 25(3) of the Act. Relevantly to Mr David’s case, approval may be cancelled if the person is not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia (section 25(2)(b)(ii) of the Act).
Section 25(3) provides that the Minister may cancel an approval if 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 the person’s reason for the failure is not one that is prescribed in the regulations made under the Act.
The Department has issued a set of Citizenship Procedural Instructions (‘CPIs’), to assist officers and other decision-makers in processing applications for citizenship. CPI 10 – Cancellation of Approval and Delay in Making the Pledge concerns cancellations of approval under section 25 and delaying under section 26 the making of a pledge of commitment.
Paragraph 3.2 of CPI 10 sets out that a person approved to become an Australian citizen must make a pledge of commitment within 12 months of receiving notification of the approval of their application and relevantly states:
This is a discretionary power and it is expected that decision-makers will make a fair and reasonable decision based on the merits of the individual case.
CPI 10 goes on to refer to subsection 9(3) of the Australian Citizenship Regulations 2016. That part of the regulations provides that a person could not make a pledge because, during that period the person was overseas:
·For medical treatment that was not available in Australia; or
·For any purpose and was unexpectedly hospitalised; or
·To care for a person who was critically ill; or
·For a funeral and other associated arrangements; and either
othe person still cannot make a pledge for the reason mentioned above;
oor the person is now able to make a pledge, but the person has not yet had a reasonable period in which to do so.
The Regulation requires that the applicant must provide a signed statement that outlines the reasons the person was offshore, accompanied by written evidence to support their claims.
Where a person has failed to make a pledge of commitment because they were overseas it may also be appropriate to consider whether they have an intention to reside in Australia or how they intend to maintain a close and continuing association with Australia.
CP1 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, is also relevant as the second basis for the decision under review.
There is a slight infelicity in how the purpose of CPI 11 is written. It states at paragraph 1:
Purpose
The purpose is to set out the legal requirements and related policy and procedures that apply to the assessment of whether a person is likely to reside or to continue to reside in Australia or to maintain a close and continuing association with Australia if the person’s application for citizenship were to be approved.
(Emphasis added.)
In this case, the Applicant’s application has been approved. However, CPI 11 later goes on to encompass cancellation of approval under section 25 of the Act, and relevantly states at paragraph 3.2:
Only one arm of the requirement must be met
An applicant seeking to satisfy subsection 21(2), (3) or (4) of the Act must be likely to:
·Reside or continue to reside in Australia; or
·Maintain a close and continuing association with Australia if their application were to be approved.
This means the decision-maker must make a finding about the applicant’s future plans and intentions…
(Emphasis in the original.)
It was agreed between the parties that the discretion is enlivened if a person approved for citizenship has not made the pledge within 12 months after being notified of that approval. Mr David conceded he had not taken the pledge within that 12-month period, a period that appears from the decision record to have commenced on 23 July 2019 (TD, p 10). If that is the case, the period ended on 24 July 2020 (see section 36 of the Acts Interpretation Act 1901 (‘the Acts Interpretation Act’)). The Applicant contended that although the discretion was enlivened, it should not have been exercised in the circumstances of his case.
THE APPLICANT’S CIRCUMSTANCES
Oral evidence of the Applicant
Mr David first arrived in Australia in August 2008 on a temporary visitor visa. He had met Ms Champness, an Australian citizen (TD, p 164), while both were travelling in Europe. They began a relationship. Ms Champness returned to Australia to complete her studies at a university in Melbourne. Mr David’s evidence was he came to Australia on the first occasion to meet her parents and other family. Mr David returned to his home in Ontario after a short visit to Australia in 2008 and Ms Champness subsequently joined him there.
In 2010 Mr David returned with Ms Champness to Australia to live. They initially lived with his parents-in-law in a Melbourne suburb, before moving into their own rented apartment. They stayed in their first apartment for one year, and then another for two years. They then rented another apartment in a different suburb and lived there for around seven years.
Mr David was granted a permanent spouse visa in 2012. He and Ms Champness married in 2015. The Applicant currently holds a Resident Return (subclass 155) visa, granted in July 2019.
When he first came to Australia Mr David worked in hospitality while looking for a more substantial job. He is a qualified architect. He was then successful in attaining a position at Deakin University, commencing employment there in mid-2010. He was employed in that job for a little over seven years. After a time, he became the senior project manager and was responsible for overseeing the design and installation of a significant piece of infrastructure at the Burwood Campus of the university, which he told the Tribunal remains the largest weathered steel structure in Australia. The structure links two parts of the campus, across a waterway (TD, p 160).
Mr David left Australia at the end of August 2017, though he returned for two weeks in April 2018. He told the Tribunal that he became entitled to long service leave, so he ended his employment and he and Ms Champness decided to travel. He said they knew their journey would end in Canada. He said that he left behind, in storage in Melbourne with his parents-in-law and friends, some furniture and personal items and sports equipment. He had been involved in ice hockey while living in Melbourne.
At the time Mr David’s brother and sister, who live in a city in Ontario, were each about to get married. Mr David said that he also wanted to be close to his elderly grandparents, who live near his parents in the same city. He and Ms Champness settled in Toronto, about 90 minutes’ drive from this city. That is where they currently reside.
Mr David said that he has frequent contact with his parents-in-law in Melbourne, via a ‘family chat’ social media application. He said he also has video calls with them every other day. He also maintains contact with his brother-in-law and his wife, who live in country Victoria.
Mr David told the Tribunal that he has a circle of friends in Australia, apart from several who had submitted statutory declarations in relation to these proceedings and including members of the Melbourne ice hockey club of which he was a member. Some of these friends have visited them in Canada.
Mr David told the Tribunal he is currently employed by the Toronto Port Authority. His wife works for a national not-for-profit medical organisation which is headquartered in Toronto. They are expecting their first child in April 2022.
In response to a question from Ms Spice, the Applicant said he was not “actively” applying for work in Australia but that he is keeping an eye on what is offered. He said the last time he seriously considered a position in Australia was before the Covid-19 outbreak but the university work, with which he is most familiar in Australia, has dried up in recent times owing to the suspension of on-campus learning, but was now starting to revive.
Mr David said he does not own real estate in Australia. He said that he maintains several bank accounts with an Australian bank, two of which he said were dormant. All the accounts are held jointly with Ms Champness, except for his superannuation account. Mr David said he occasionally will buy gifts for Australian relatives using his Australian accounts, but did not use his Australian credit cards.
Mr David provided a bank statement (TD, p 154) which showed a balance with a five-figure sum, which he said had slightly reduced since the date of the statement, but remained five figures. He also provided a statement of his superannuation account from his employment at Deakin University (TD, pp 155 and 248) which he maintains, which shows a high five-figure balance. Mr David said he has not made voluntary contributions since he left Deakin University but that this superannuation account represents a significant part of his personal assets. While he is employed in Canada, Mr David said he does not make personal contributions to his superannuation there, but his employer does.
Mr David said he did not have a firm date for returning to live in Melbourne, but said “we love it. Our family is there. Our friends are there. It is a big part of our life”.
Mr David said he had strong family connexions in both countries. His parents and siblings and their families are in Ontario, and his parents-in-law and brother-in-law and his family are in Australia. In respect to living in Canada, he said “we are here for the time being. It is a question of when”.
Mr David told the Tribunal that his brother-in-law in Australia is about to become a father, and his child is likely to be born around the same time as the Applicant’s. Mr David said: “We look forward to our daughter growing up with our niece or nephew”.
The Applicant said he planned to come to Australia but had not booked flights, and would now have to fly later because of Ms Champness’ confinement, planning to visit for “a month at least” in the second half of 2022.
When asked directly by the Tribunal whether he had booked flights before the border closure in 2020, Mr David said: “No. We thought to wait to visit and have a family celebration and stay for about a month”.
Ms Spice noted that Mr David was invited to attend a citizenship ceremony on 19 November 2019, being conducted by Whitehorse City Council, but he did not attend. Mr David said he did not attend because he and his wife were planning to visit Australia, and he called the Department and advised he could not attend. He said he was planning to attend a later ceremony when Ms Champness’ father would also be receiving Australian citizenship.

Ms Spice noted that Mr David was then invited to attend a ceremony scheduled for 20 February 2020, but he did not attend. Mr David confirmed this was so, and said he called the Department and advised them he could not attend. He said the officer thanked him for the advice but did not say anything more. He thought the officer he spoke to might have been a Department officer in Canada.
Mr David said that his inability to attend the February 2020 ceremony was not related to the pandemic and that he wanted to take the next opportunity for a ceremony, as soon he was advised when that would be.
Ms Spice asked Mr David about his claim that he had a dental infection that prevented him attending. The Applicant said he had an infection at the time and was having antibiotics and was not supposed to travel. Ms Spice contended that the dental work could have been done in Australia. While conceding this point, Mr David said the dental work would have cost a significant amount, he estimated around AUS$10,000, and said in the end the surgery was so significant that he had to have a bone graft.
Ms Spice referred Mr David to the email letter he received from the Department dated 12 July 2019 (TD, p 173) which, among other things, advised:
Once you have been approved, you are required to attend a ceremony in Australia with your local council within 12 months from date of approval. You will be placed onto the ceremony waiting list according to the date of decision and ceremonies are usually held between three to six months from this date. Please note that individual requests for ceremony dates or overseas ceremonies cannot be accommodated. It is expected that you attend the ceremony you are allocated at your council.
The department will send notification of your ceremony details to your Australian address approximately three to four weeks prior to a scheduled citizenship ceremony. Failure to attend a ceremony within 12 months may result in cancellation of approval.
(Emboldening in original.)
Mr David agreed that it was clear from the email he had to attend a ceremony within 12 months. In answer to a direct question from the Tribunal as to whether he knew it was a requirement. Mr David said: “Yes. The plans I had would have satisfied that”.
Ms Spice asked the Applicant would it be fair to say that he delayed attending for convenience. Mr David responded: “I wouldn’t use the word ‘convenience’. I was looking forward to doing it”.
Oral evidence of the Applicant’s spouse
Ms Champness is an Australian citizen (TD, p 164). Ms Champness in her evidence corroborated the history of her relationship and marriage to the Applicant, and their life together in Australia when Mr David moved to this country in February 2010. She said prior to that they had been living together with Mr David’s parents in Ontario.
Ms Champness said it was a “tough decision” to leave Australia in 2017 but was based on several factors: Mr David’s ailing grandparents, and the location of his parents and siblings. Ms Spice asked Ms Champness about whether it was their intention to return to Australia in early 2020 and what happened. Ms Champness responded:
Yes. The short answer is the global pandemic. We were going to make it March or April 2020. I couldn’t leave Canada at the time because of the nature of my work permit. I couldn’t leave and come back for a job. I got an open work permit in February 2020. Then the borders closed, and it never happened.
When asked whether it was her wish to live in Australia, Ms Champness said:
My wish is that we one day live in Australia. For now, Canada. But that is not forever. We have jobs. I don’t want to be disingenuous. I will apply for our daughter to have Australian citizenship by descent. I can’t provide a date [when they would move back to Australia permanently].
Oral evidence of the Applicant’s parents-in-law
Mr and Mrs Champness gave evidence together. The Tribunal had reviewed the statutory declarations each had lodged (Exhibits A5 and A6) and noted that the contents of the declarations differed only in small part. Section 33(1)(b) of the AAT Act states:
Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) …
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, and of any other relevant enactment and a proper consideration of the matters before the Tribunal permit; and…
Consistent with these provisions, the Tribunal decided it would be expeditious on this occasion for the witnesses to give evidence together, particularly as it was not in contemplation (nor submitted by the Respondent) that their evidence would be tested, each against the other. Neither the Applicant nor Respondent objected to this course of action being followed.
Mrs Champness confirmed she is an Australian citizen by birth. Mr Champness said that he was born in the United Kingdom but moved to New Zealand as a young child, where he spent his formative years. He became a New Zealand citizen. Mr Champness said that he applied to become an Australian citizen by conferral in January 2020. He told the Tribunal he was eligible because of the length of time he lived in Australia in earlier years.
Mr Champness said the Department advised he was successful in his citizenship application; he thinks in February 2020. There is a space in the form which allows a person to identify someone else they would like to attend a ceremony with. Mr Champness said he asked if he could attend a citizenship ceremony at Whitehorse City Council with his son-in-law so that they could have a joint family celebration. Mr Champness said his citizenship was eventually conferred in an online ceremony in August 2020, owing to the restrictions on public gatherings caused by the pandemic. (The Respondent in the later information provided on 6 December 2021 advised that the ceremony Mr Champness attended on 31 August 2020 was conducted by the Department, not the local Council.)
CONSIDERATION
When was the Applicant’s citizenship approved?
Accepting both parties conceded that Mr David had not made the pledge of commitment within 12 months of being notified of approval, it is not clear to the Tribunal when that notification was made. The delegate’s decision record states:
On 23 July 2019, your application for Australian citizenship was approved and an approval letter was subsequently sent to your nominated Australian address via post. This letter advised you that if you fail to attend a ceremony within 12 months from the date of your approval, then your approval may be cancelled.
No approval letter was in the documents before the Tribunal. The Respondent’s SFIC relied on the decision record in contending that notice of the approval was given on 23 July 2019. However, section 25(3) of the Act enlivens the Minister’s discretion to cancel an approval if a person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval. The decision record is therefore in error, if the letter (not produced) stated that approval may be cancelled if the Applicant failed to attend a ceremony within 12 months from the date of the approval. The 12-month clock starts to count-down on the day that the person receives the notice of approval, not when the Minister’s delegate approves the application.
Section 160 of the Evidence Act 1995 (‘Evidence Act’) provides that it is a rebuttable presumption that a postal article sent to a specified address in Australia was received on the seventh working day after having been posted. Section 163 of the Evidence Act adds that a letter sent from a Commonwealth agency is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by post on the fifth business day after the date of the letter. So, in this case in the absence of sighting a copy of the Department’s letter notifying Mr David, assuming it was dated 23 July 2019, the letter is therefore presumed by law to have been delivered to Mr David’s Melbourne postal address 12 business days thereafter, that is, on 8 August 2019.
I find, therefore, that the period for Mr David to make the pledge (or, if he does not, enliven the discretion to cancel approval in section 25 of the Act) commenced on 8 August 2019 and ended on 8 August 2020.
The precise time this period ended is not particularly important in this case, however, because it was not until 12 December 2020 (TD, p 182) that the Department wrote to Mr David with a letter headed ‘Notice of intention to consider cancellation of your citizenship approval’.
Section 26(3) of the Act allows the Minister to make a determination in writing in a case where a person has not made a pledge of commitment but is required to do so to delay the person taking the pledge for a period specified in the determination, and the person cannot make the pledge until that specified period. However, section 26(4) of the Act limits the power of the Minister in such a case to a period no longer than 12 months. For completeness, there was no suggestion in this case that a determination had been sought or contemplated.
The citizenship ceremonies in November 2019 and February 2020
On 17 October 2019, Mr David was invited to attend a citizenship ceremony at Whitehorse City Council (i.e., the local government area of his Australian postal address), to take place on 19 November 2019. He did not attend. He told the Tribunal he rang a telephone number to advise he would be unable to attend. His evidence was that this telephone number was a Department number, not one at the Whitehorse City Council. He said he believed this was the instruction on the Department paperwork if a person could not attend a ceremony to which they were invited.
On 10 January 2020, Mr David was sent another invitation to attend a citizenship ceremony to take place on 20 February 2020. He did not attend. His evidence was that he again rang a Department telephone number to advise, and believed (although he was not certain) that the Department officer he spoke to was based in Canada.
On 14 March 2020, the Applicant telephoned the Department and said that he had been invited to two ceremonies and had not attended. The Department file note (TD, p 178) of that date referring to this phone conversation recorded:
-Canadian citizen, Australian permanent resident
-Approved for the ceremony
-Worried about travel restrictions
-Calling to see if they can do the pledge in Canada
-Was invited and didn’t attend twice
-Informed the client that an email has been sent to the processing area and they will need to wait for contact from the processing area.
On 25 March 2020, a Department officer wrote to Mr David by email and said (TD, p 179):
Thank you for submitting your request for an overseas ceremony.
Overseas ceremonies can only be accommodated to individuals who have demonstrated that they meet extremely compelling and compassionate circumstances which may prevent them from attending a citizenship ceremony in Australia within 12 months of approval. For example, an applicant who is unable to return to Australia due to a serious medical condition, or acting as caregiver to an extremely ill family member overseas.
We have considered your request and, based on the information provided, assessed that you do not meet the criteria for an overseas ceremony.
You will be provided with a further opportunity to attend a citizenship ceremony in Australia once travel restrictions have ended.
In answer to a direct question from the Tribunal during the hearing, the Respondent agreed that, contrary to what was said in the last sentence of the extract of this letter above, no further opportunity was provided to the Applicant.
On 25 November 2020, Mr David sent an email to the Department with the heading ‘Pending Citizenship Pledge, Question’. He wrote (TD, p 181):
Hello,
I received notification of my citizenship in 2019, and had been invited to a ceremony to take my pledge at that time, but had to cancel when the pandemic shut down air travel and have been on hold ever since.
I am wondering what options there are for me to undertake the pledge remotely? or possibly at the Consulate in Toronto where I currently reside?
Any advice would be appreciated.
My Application Reference is [number redacted].
Thank You,
Mike David,
There was no response from the Department to this email in the papers before the Tribunal. The Respondent’s representative confirmed that no response was sent, and the next correspondence from the Department was the 12 December 2020 notice of intention to consider cancellation.
The status and place of the CPIs in decision-making
In 1979 President Brennan of this Tribunal made a well-known decision in the matter of Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
Consequently, the Tribunal is guided by the government policy, in this case, the relevant CPIs. However, two important things must be kept in mind. First, where any policy document has content which appears to conflict with the Act, the latter prevails. Secondly, where rigid application of the policy would result in an injustice or tend to lead to a perverse result, common sense must be applied according to the circumstances of the case to prevent such a result.
The Full Court of the Federal Court of Australia made the status of the CPIs clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [54]:
There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.
And at [58]-[62]:
It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...

An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.
However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....
An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...
Where the contents of the document are not inimical to the purpose of the Act and are intended to ensure general consistency in decision-making and thereby promote objectivity in considering the circumstances of a person applying for citizenship, it is appropriate the guidance offered by the policy is generally followed.
Could the Applicant have made the pledge in Canada, or by video?
Despite what the Department wrote to Mr David on 25 March 2020 (TD, p 179), it is only a policy approach that prevented Mr David making the pledge in Canada. It is not a requirement of the Act. As the Tribunal pointed out in the hearing, the Minister periodically makes determinations of persons who may receive a pledge of commitment. The most recent such determination is Citizenship (LIN 20/084)(Class of Persons Who May Receive A Pledge of Commitment) Instrument 2020. Schedule 1 of that Instrument provides at item 5(d) that a Consul-General who is an Australian citizen can receive a pledge of commitment, as can certain other Australian diplomatic officers who are posted abroad.
In addition, the Full Court of the Federal Court of Australia said in Grass and Minister for Immigration and Border Protection [2015] FCAFC 44 (Perram, Yates and Mortimer JJ), at [20]:
The appellant’s citizenship application was approved on 21 May 2009. As will appear from the Act, and the Regulations, once an applicant has an approval of her citizenship, the only remaining step is to take the pledge of commitment before a person authorised to take that pledge. This can be done at any time, and need not occur at any particular kind of function or ceremony. Despite this, the administrative practice of the Department… is to arrange for “citizenship ceremonies” to be held in various locations around the country, and for persons with approvals to take the pledge at such ceremonies.
(Emphasis added.)
It was possible for Mr David to make the pledge before the Australian Consul-General in Toronto, or a similar authorised officer. He could have made the pledge online before an authorised officer who was in Australia. That much is clear from the Full Court’s decision and the existence of the Instrument.
However, just because the Act and associated statutory instruments made under Act permit the making of a pledge outside Australia or online, that does not mean that the Department had an obligation to facilitate the Applicant taking the pledge either online or at the Australian Consulate-General in Toronto. As set out above, where a policy would lead to an unreasonable manifestly unjust result, it should not be followed. The Tribunal does not consider the Department’s administrative practice that persons approved for citizenship should make the pledge required as the final step in becoming an Australian citizen an unreasonable practice. It is also not contrary to the provisions in the Act.
There are sound policy reasons why the Department expects an approved person to make the pledge in person in Australia. It is the final part of the process of citizenship. This practice also emphasises that the conferral of Australian citizenship is a solemn act in which a person, in the wording of part of the Preamble to the Act, joins in “full and formal membership of the community of the Commonwealth of Australia”. Australian citizenship should not be seen in the same vein as a ship with a ‘flag of convenience’. It is not something for a person to acquire with little or no intention of either living in Australia or participating in all aspects of Australian society.

As set out above, where a person is in Mr David’s circumstances (i.e., someone not exempted from making the pledge), the final part of the person being conferred Australian citizen occurs when he or she makes the pledge before someone authorised to receive it (section 28 of the Act). At any time before that event occurs, approval given is cancellable.
Could the Applicant have made the pledge in Australia?
Owing to the Covid-19 global pandemic, on 19 March 2020, the Prime Minister issued a press release announcing that Australian borders would be closed from 9 pm AEDT on 20 March 2020 to all non-citizens and non-residents. Certain exemptions were stipulated but it is common knowledge that, in effect, international air travel into and out of Australia dwindled to only essential travel from this date.
Separate from the national border restrictions, the State and Territory governments began, around the same time, imposing significant restrictions on public gatherings and travel through far-reaching public health orders. This relevantly affected the conduct of citizenship ceremonies. The Tribunal asked the Respondent to inquire of the Department how many in-person citizenship ceremonies Whitehorse City Council conducted after the 20 February 2020 ceremony to which Mr David was invited but did not attend.
The Minister’s representative advised the Tribunal on 6 December 2021 that one further in-person citizenship ceremony was held by Whitehorse Council on 12 March 2020. There were no further in-person citizenship ceremonies conducted by that Council until 26 January 2021, which is of course after Mr David’s citizenship approval had been cancelled. I note that Mr David was not invited to attend the in-person ceremony on 12 March 2020 nor, it appears from the evidence, any other citizenship ceremony after the one on 20 February 2020.
Although Mr David did not suggest this in his oral evidence, a factor that may have influenced him not to attend the November 2019 or February 2020 ceremonies at Whitehorse Council might have related to Ms Champness’ work permit. Her evidence was that she may have been barred from work if she had left Canada before she got what she described as her ‘free’ work permit in February 2020. If this was the case, it would have been useful if he had said that to the Department, because it might have prompted the relevant officers offering him a further invitation. However, argument was not made, and it is speculation on the part of the Tribunal.
The Minister’s representative also advised that several ‘virtual’ citizenship ceremonies were organised and that Mr Champness, the Applicant’s father-in-law, attended one of these ceremonies to make his pledge of commitment on 31 August 2021, which accords with Mr Champness’ oral evidence.
Should the discretion to cancel have been exercised?
The failure to make the pledge within 12 months
The Tribunal concludes that, on the first basis – the failure of Mr David to make the pledge, while the discretion was enlivened because he had not made the pledge before 8 August 2020 – it should not have been exercised. There are several reasons I have come to this conclusion.
At the outset, I reject any submission that the various dental procedures Mr David undertook in Canada would fall into the compass of medical treatment that was not available in Australia, in terms of that provision in the Regulations. While it was no doubt more financially convenient for the Applicant to have this dental work done in Canada, and perhaps more personally convenient, there is no evidence before me that – significant as it was – such treatment is not available in this country. I note that Mr David did not make that specific contention, but did say that he was on a course of antibiotics and was discouraged during the treatment from undertaking air travel. There is nothing compelling in the evidence relating to the dental procedures which is relevant to this decision.
There are other prescribed reasons in the Regulations made under the Act relating to the failure of a person to make the pledge of commitment, set out in regulation 9. The Applicant did not make any submission about other prescribed reasons. The Tribunal finds, for completeness, that none of the other provisions in regulation 9 are applicable in the Applicant’s case. The discretion to cancel is therefore enlivened (see relevantly section 33(2A) of the Acts Interpretation Act.)
The evidence before me that the Applicant and Ms Champness planned to come to Australia in (the northern) summer of 2020 is relatively compelling. Mr David did not over-egg his evidence and admitted he had not booked flights. That was also the tenor of Ms Champness’ evidence. I consider it is significant that it was not until February 2020 that Ms Champness said she could leave Canada without jeopardising her Canadian work permit, which is a relevant factor in when they would travel. The fact that the Applicant’s father-in-law, Mr Champness, had indicated on his own Australian citizenship documentation that he wanted to attend the same ceremony as his son-in-law illustrates to me that this visit was in planning and expected, rather than notional.
It is clear from the papers before the Tribunal that, as in many areas of public administration, the advent of the Covid-19 pandemic affected the operations of the Department. Previously it was expected that, unless special circumstances applied, persons approved for citizenship would attend a citizenship ceremony in the local government area of their residential address. That was the expectation of the Applicant, and indeed of his father-in-law, that both would be required to attend a citizenship ceremony conducted by Whitehorse City Council. That requirement became impossible for approved persons in Australia, and the Department had to make alternative arrangements.
It is also clear, notwithstanding that the Department responded to Mr David’s inquiry about the possibility of an overseas ceremony on 25 March 2020:
You will be provided with a further opportunity to attend a citizenship ceremony in Australia once travel restrictions have ended.
The Department did not follow through with this. Nor did the Department offer Mr David any further opportunities to attend a ceremony.
The information from the Respondent, when the Tribunal sought details of in-person ceremonies conducted by Whitehorse City Council during the relevant period (i.e., after 20 February 2020), was that there were no such ceremonies held in 2020 by the Council. The next one conducted by Whitehorse Council was on Australia Day 2021. The Respondent added:
In addition, the Department organised a number of virtual citizenship ceremonies.
Therefore, the usual departmental administrative practice applying to persons to attend citizenship ceremonies was, rightly, modified to cater for the effect of the pandemic. I do not consider that these modifications should have extended to permitting people overseas to attend ceremonies at Australian missions or on-line, because as I have said above, the general policy outlined in the CPIs that a person being conferred Australian citizenship should make the pledge of commitment to Australia in Australia is soundly based.
However, in the circumstances where a person has been approved for Australian citizenship outside Australia under section 22(9) of the Act, I consider greater weight should have been given to the circumstances of the Applicant being, in the knowledge of the Department, not in Australia or its Territories. The better approach should have been for the Department to adopt an approach that a person in the Applicant’s circumstances should be given an opportunity to make the pledge of commitment in Australia when the travel restrictions have ended, as the Department indicated to Mr David would occur. Instead, the Department initiated the process to cancel the approval.
I find that the first basis for the decision to cancel the approval should not have been exercised. While the discretion is enlivened because the period of 12 months had expired, I find that the preferable approach, consistent with paragraph 1 of CPI 10, is not to exercise that discretion.
Maintenance of close and continuing association with Australia
The Respondent also relied on a second basis for the decision to cancel, that the Applicant is not likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia.
CPI 11 states relevantly at paragraph 3.2:
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australians, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
The Respondent noted in submissions that it is not necessary for the Applicant to reside in Australia to satisfy this part of the Act, and drew the Tribunal’s attention to the decision in Lin v Minister for Immigrationand Citizenship [2009] FCA 494; 176 FCR 371, at [28], where Foster J made it clear that being resident in Australia was not a precondition for satisfying this subsection of the Act.
CPI 11 goes on to direct Department officers to factors that may be relevant in making the assessment. One factor is the living arrangements and citizenship or migrant status of the person in their current country of residence. Mr David confirmed that he was born in Ontario and is a citizen of Canada. He and Ms Champness reside in Toronto and about two years ago they bought a house there. Mr David has a job with the city’s port authority, which he said has become permanent. Ms Champness as mentioned above works for a medical charity and said that her job, too, is permanent.
Both the Applicant and Ms Champness referred to the almost eight years they lived in Melbourne when they were renting accommodation and said that they wished they had purchased real estate. Ms Champness when asked by the Respondent about factors that would influence their decision as to where to live said, about their Toronto house: “We would rent it out. We spent years in Australia renting. We don’t want to do that again. We wouldn’t hesitate to sell it”.
The movement records before the Tribunal (TD, pp 291-292) were considered during the hearing. They show Mr David being in Australia for most of the period between when he first arrived to live in Melbourne with Ms Champness in February 2010 to when they departed in April 2018, with periodic absences for holidays, for when they married in 2015, and for visits to his parents in Canada.
As listed above, in evidence is statutory declarations from the Applicant’s parents-in-law, brother-in-law and two friends and former work colleagues in Australia. Taking into account that this part of the Act focusses on a person’s links with Australia rather than Australians, nonetheless, some of the evidence in these statutory declarations is responsive to the factors CPI 11 contains.
Mr Mike Champness wrote (Exhibit A6):
While in Australia he [i.e., the Applicant] made a valuable contribution to the community while working as a project manager for Deakin University. He participated in community activities including cycling, duathlon and ice hockey.
Mike is a trusted member of our family, being named to hold a medical power of attorney for myself and my wife in our wills.
Mrs Jennifer Champness wrote along similar lines in her statutory declaration about Mr David’s involvement in the community in Victoria.
Ms Herron wrote (Exhibit A10) wrote:
Prior to relocating in 2017, Mike and I worked together for a period of 5 years at Deakin University in the development of capital projects. The role required insight into design, construction and project management, within a broader team of built environment professionals.
In the time since relocating, Michael has provided remote expertise with a particular focus on architectural design and research, aiding in the ad hoc review of architectural concept, design and research.
In his oral evidence Mr David said that he thought the reference to “5 years” in Ms Herron’s letter might have been a typographical error, because he worked with her at Deakin University for seven years, and she was employed at the university before he was, and continued after he left. He said that Ms Herron has since undertaken further tertiary study and he has assisted her with her thesis as an adviser. He confirmed this was as a colleague and friend, not a formal, paid, arrangement.
An article from the Whitehorse Leader of 21 May 2017 titled “Work started on Deakin University’s Burwood Link bridge over Gardiners Creek”, was in evidence (TD, pp 160-162). The article includes photographs of Mr David with the proposed project and quotes from him as the project manager. This bridge was also entered in the Australian Urban Design Awards for 2018 and the record of that was at TD, pp 157-158. It clearly is a significant and beneficial addition to the Deakin University Burwood campus.
Mr Gamble, an engineer, provided a statutory declaration referring to his friendship with Mr David in terms of a shared interest in ice hockey and in a professional sense, in terms of the interaction between engineering and architecture in the built environment. Mr Gamble noted that he had visited the Applicant and Ms Champness in Canada.
The Respondent submitted that while he accepted Mr David maintained Australian bank accounts and an Australian superannuation account, it was not demonstrated that he has been ‘actively maintaining’ these accounts. The Tribunal is not sure what this means. The balance in one of the Applicant’s Australian bank accounts is a substantial amount, and I accept Mr David’s evidence that while he does not use it in a daily transaction sense, he does use it for certain Australian purchases such as gifts for members of his Australian relatives. The balance in the Applicant’s superannuation account is an even more substantial amount, accrued from his employment at an Australian university. The Tribunal accepts that this superannuation account is ‘dormant’ in the sense that Mr David has not contributed to it since he ceased employment at Deakin University. However, as I said during the hearing, Commonwealth superannuation law permits a person who has permanently departed Australia with no intention to return to have such funds released, and Mr David has not done that. This is an indicator to me of an intention to return to Australia for employment. The Applicant said in his oral evidence, and I accept given the balance in the account, that this account represents a significant part of his personal assets.
The Act, at section 22(9), provides certain scope for approval of citizenship to a person who is the spouse, de facto partner, or surviving spouse or de facto partner of an Australian citizen at the time the person made the application. Mr David, as the spouse of an Australian citizen, is in this category. Section 22(9)(d) of the Act allows a delegate to be satisfied of the general residence eligibility in terms of being satisfied that a person had a close and continuing association with Australia during a specific period. The decision record cancelling the approval rightly pointed out that this assessment is temporal and noted that Mr David had departed Australia in April 2018 and had not, thus far, returned to Australia for any period.
Noting that fact, the period for which Mr David had the opportunity to make the pledge began on my finding on 8 August 2019 and ended on 8 August 2020. He not only had the opportunity but also the obligation, if he wanted to avoid enlivening the discretion to cancel in section 25(1), to make the pledge during this temporal window. However, as I pointed out during the hearing, a person cannot invite themselves to a citizenship ceremony; the person must wait until invited. I consider that the real period for Mr David to make the pledge began on 19 November 2019 (the date the first ceremony to which he was invited was conducted) and ended on 20 February 2020. There was no other in-person ceremony conducted by Whitehorse City Council to which he was invited before the approval was cancelled. He could not fly back to Australia after the Prime Minister’s 19 March 2020 announcement. Even if he had been in Australia and actively pursued a further invitation, there was only one further ceremony held by the Council in 2020, and that was on 12 March 2020.
Accordingly, it is reasonable for the Tribunal to take into account what has changed since the officer processing Mr David’s application (who presumably has expertise in making such assessments) decided the Applicant satisfied section 22(9). The main thing that has changed is the closure of the national border owing to the global pandemic and the inability of persons to enter Australia.
Overall, the Tribunal is inclined to accept that the Applicant has maintained (as in, to quote CPI 11, “retained” or “preserved”) a close and continuing association with Australia. Separate from his obvious familial links with his Australian citizen wife and her family, and his Australian friends and work colleagues, Mr David has significant financial assets in this country, some personal belongings held here, and evidence of past involvement in the community. In a case where the Respondent has relied (not unreasonably) in part of his submissions on the recent absence of the Applicant from Australia, I consider any weight that might be placed on this factor should be tempered by the fact of the border closure and the practical inability of the Applicant to travel to Australia.
SUMMATION
The discretion in section 25 of the Act was factually enlivened because Mr David did not make the pledge of commitment within 12 months of notice of approval of his citizenship application. The Tribunal is making this decision afresh and is not reviewing the delegate’s decision, but I conclude that in the reviewable decision too little weight was placed on the effect on international travel of the border restrictions. Another significant factor that heavily weighs against the discretion to cancel being exercised is, as referred to above, that the Department advised the Applicant in writing that he would have “a further opportunity to attend a citizenship ceremony in Australia once travel restrictions have ended” (TD, p 179). The Applicant was not given this proffered opportunity. The Tribunal is also satisfied that the Applicant has maintained a close and continuing association with Australia.
I stress that the usual expectation which is made clear by Parliament including section 25 in the Act, that a person approved for Australian citizenship will make the pledge of commitment within 12 months of being notified of approval should generally heavily support the exercise of the discretion available to the Minister and his delegates. However, I find that special and unusual circumstances apply in this case because of the national border closures and the cancellation of the citizenship ceremonies usually regularly held by the relevant local government authority in which Mr David’s Australian residential address is.
Therefore, the Tribunal finds that the preferable decision is that the discretion to cancel approval of the Applicant’s citizenship under section 25(1) of the Act should not have been exercised in the specific circumstances of this case. That decision is therefore set aside.
DECISION
Pursuant to section 42(1)(c) of the AAT Act, the decision dated 18 March 2021 to cancel the Applicant’s approval for Australian Citizenship is set aside. In substitution the Tribunal decides the approval is not cancelled.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 16 December 2021

Date of hearing:

2 December 2021

Applicant:

Mr Michael David (Self-Represented)

Advocate for the Respondent:

Ms Emily Spice

Solicitors for the Respondent:

The Australian Government Solicitor

Date of hearing:	2 December 2021
Applicant:	Mr Michael David (Self-Represented)
Advocate for the Respondent:	Ms Emily Spice
Solicitors for the Respondent:	The Australian Government Solicitor