David and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for Australian citizenship by conferral by Mr David, whose approval for citizenship was subsequently cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute arose from the cancellation of Mr David's citizenship approval, which was based on two grounds: his failure to make the pledge of commitment within the prescribed 12-month period, and the delegate's dissatisfaction that he was likely to reside in Australia or maintain a close and continuing association with the country. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issues before the Tribunal were whether the delegate had properly exercised their discretion to cancel Mr David's citizenship approval. This involved determining the precise date on which Mr David received notice of his citizenship approval, as this date triggered the 12-month period for making the pledge of commitment. Furthermore, the Tribunal had to assess whether the delegate had correctly considered Mr David's circumstances, particularly in light of the supervening event of the global pandemic which led to the cancellation of citizenship ceremonies and border closures. The Tribunal also considered the procedural fairness aspects, including the concurrent giving of evidence by two witnesses, which was agreed to by the parties and deemed expeditious.

The Tribunal found that the delegate's decision record contained an error regarding the notification date. Applying the provisions of the *Evidence Act 1995* (Cth), the Tribunal presumed that Mr David received the notification of his citizenship approval on 8 August 2019, thereby establishing that the 12-month period for making the pledge ended on 8 August 2020. The Tribunal also considered the impact of the global pandemic, noting that Mr David's inability to attend a ceremony was due to circumstances beyond his control. Crucially, the Tribunal found that while the discretion to cancel was enlivened, it should not have been exercised in this particular case, as the delegate had not adequately considered the unique circumstances, including the pandemic's impact on the applicant's ability to fulfil the requirements and demonstrate his intention to reside in Australia. The Tribunal also affirmed the principle that while Ministerial policies guide decision-making, they must not preclude consideration of unique case circumstances or lead to unjust outcomes.

The Tribunal set aside the delegate's decision to cancel Mr David's approval for citizenship.