Duncker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2024] ARTA 318
•21 November 2024
Duncker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] ARTA 318 (21 November 2024)
Applicant/s: Kirsty DUNCKER
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/0714
Tribunal:General Member D Stevens
Place:Sydney
Date:21 November 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides:
the approval of the Applicant’s application for Australian citizenship by conferral is not to be cancelled, and the Applicant is to be provided with another opportunity to attend a ceremony to make a pledge of commitment
........................[SGD]................................................
General Member D Stevens
CATCHWORDS
CITIZENSHIP – pledge of commitment – reasoning prescribed by regulations – critically ill persons – supporting evidence – Decision under review set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
CNPG and Secretary, Department of Education [2022] AATA 4349
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Pramod Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933
SECONDARY MATERIALS
Australian Citizenship Regulation 2016
Citizenship Procedural Instruction 10 - Cancellation of Approval and Delay Making the Pledge
Statement of Reasons
REVIEWABLE DECISION
The Applicant, Ms Kristy Duncker, seeks review[1] of a decision made by a delegate of the Respondent (“the Minister”) made on 6 February 2024, to cancel the approval of her application for Australian citizenship by conferral, under section 25 of the Australian Citizenship Act 2007 (Cth) (“the Act”).[2]
[1] T1 1.
[2] T2 16.
The reason given for the decision was that the Applicant did “not make a pledge of commitment at a citizenship ceremony within 12 months of being notified that your application to become an Australian citizen was approved”, without being prevented from doing so by a reason “prescribed in the Australian Citizenship Regulation 2016” (“the Regulation”).[3]
[3] T2 21.
FACTS AND BACKGROUND
At the outset of the hearing, the parties agreed the following facts:
·Ms Duncker was born in and is a citizen of the United Kingdom.
·She first arrived in Australia in 2009.
·She was granted a BB-155 visa on 13 September 2022, which is a permanent visa.
·Ms Duncker lodged an application for Australian citizenship on 27 October 2021, pursuant to section 21 of the Act.
·On 12 July 2022 the Applicant was notified her application for Australian citizenship had been approved by the Minister pursuant to section 24 of the Act, and that she was required to take the pledge of commitment at an Australian citizenship ceremony.
·Ms Duncker departed Australia and travelled to the United Kingdom on 4 April 2023, and returned to Australia in 2024.
·The applicant was invited to, but failed to attend, citizenship pledge ceremonies on 6 June 2023, 15 August 2023, and 13 December 2023.
APPLICABLE LAW
Pursuant to subsection 26(1) of the Act, “a person must make a pledge of commitment to become an Australian citizen”. I note that there are exceptions which are not applicable here.
Relevantly for the present matter, section 25 of the Act provides:
(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.
…
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.
Section 9 of the Regulation prescribes reasons for failing to make a pledge of commitment. Relevantly for the present matter, subsections 9(3) and (5) provide:
(3) Subject to subsection (5), a person has a prescribed reason for failing to make a pledge of commitment if:
(a) the person could not make a pledge, either in Australia or at an Australian mission overseas, because during the period referred to in paragraph 25(3)(a) of the Act the person was overseas:
(i) for medical treatment that was not available in Australia; or
(ii) for any purpose, and was unexpectedly hospitalised; or
(iii) to care for a person who was critically ill; or
(iv) for a funeral and other associated arrangements; and
(b) either:
(i) the person still cannot make a pledge for the reason mentioned in paragraph (a); or
(ii) the person is now able to make a pledge, but the person has not yet had a reasonable period in which to do so.
…
(5) For the purposes of subsection (3) or (4), a person has a prescribed reason only if the person gives the Minister:
(a) a signed statement to support the claim, including a description of any effort that the person made to make a pledge of commitment within the relevant period; and
(b) written evidence that supports the statement
Relevant policy
Decisions under section 25 of the Act are discretionary. Guidance as to the exercise of the discretion is provided by “Citizenship Procedural Instruction 10 - Cancellation of Approval and Delay Making the Pledge” (“CPI 10”).[4] Relevantly, it provides:
[4] T 122.
3. Cancellation of approval – section 25 of the Act
…
Failure to make the pledge of commitment – subsection 25(3)
A person approved to become an Australian citizen under subsection2s 1(2) or (4) of the Act and those aged 16 or 17 at the time of making an application and approved under subsection21 (5) of the Act, are required to make a pledge of commitment within 12 months of receiving notification of the approval of their application.
Subsection 25(3) of the Act provides for the Minister to cancel the 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 by the Australian Citizenship Regulation 2016 (the Regulation) for the purposes of the subsection.
The prescribed reasons for failing to make a pledge of commitment are set out in section 9 of the Regulation.
This is a discretionary power and it is expected that delegates will make a fair and reasonable decision based on the merits of the individual case.
…
4. Failure to make a pledge of commitment
If an applicant does not attend a ceremony within 12 months of approval and the Department is considering cancellation, the applicant must be sent a Notice of Intention to Consider Cancellation of Approval (NOICCA).
Applicants who still wish to make the pledge of commitment in order to become an Australian citizen, are requested to respond to the NOICCA with reasons why they did not attend and why the approval of their application should not be cancelled.
The Regulation provides prescribed reasons that will be accepted. However applicants can provide any reasons that are relevant to their circumstances and these must be considered by the delegate when considering cancellations of approval. Applicants must also provide documentary evidence to support their claims.
…
4.4 Non-attendance at a ceremony
Where an applicant has been invited to a ceremony but has failed to attend and has not responded to follow up contact from the Department (by phone or via written communication) the applicant must still be provided with a NOICCA before considering cancellation.
In situations such as the above, delegates must consider whether the Department’s attempts at facilitating the applicant’s attendance during the 12 months after approval has been reasonable. Reasonable efforts by the Department include:
·at least one invitation to a ceremony has been sent to the applicant (in-person or virtual ceremony);
·the applicant’s non-attendance was adequately followed up, by phone, email or letter at least once following their non- attendance at the ceremony; and
·details regarding the contact made in this regard is appropriately recorded on ICSE.
Delegates are to proceed to issue a NOICCA.
Delegates may also consider whether an applicant that has failed to attend a ceremony in the 12 months following application approval will continue to meet the eligibility requirements, noting that subsection 25 (2) of the Act provides the discretionary cancellation provision where certain eligibility requirements are no longer met. Refer to section 3 above for further guidance.
Considerations of reasons for non-attendance not prescribed in Regulation
If the applicant responds and provides information that satisfies the delegate that they had compelling or compassionate circumstances that prevented their attendance, the delegate may provide the applicant with another opportunity to attend a ceremony.
All information provided by an applicant in connection with a NOICCA must be considered by the delegate.
Delegates are generally expected to proceed to cancel the approval unless the following claimed circumstances exist:
·where an applicant has requested their ceremony be delayed for a reasonable period (up to 6 months) in order to attend a ceremony with immediate family members, such as a spouse, partner or child, is to be supported where possible. This includes where the immediate family member/s applied at the same time as the applicant or a later date; or
·compelling or compassionate circumstances that prevented a person from attending the scheduled ceremony may be given weight by a delegate.
Under policy, compelling or compassionate circumstances may include but are not limited to:
·an illness or health condition to themselves or a family member such that the person cannot attend the scheduled ceremony; or
·where an applicant has been prevented from travelling to their home country to resolve personal affairs due to travel restrictions or serious illness and the delegate is satisfied that the applicant is required to remain a citizen of that country until the affairs are resolved.
Applicants must provide appropriate documentary evidence to support their claims. If the delegate is satisfied that the claimed circumstances is adequately supported by documentary evidence and can be deemed to have reasonably prevented the applicant’s attendance, delegates may choose not to cancel the approval and invite the applicant to the next available ceremony. Depending on availability of ceremonies, an applicant is expected to resolve their circumstance and attend a ceremony within a reasonable period.
Under policy, a reasonable period is up to 6 months.
If an applicant does not attend the next available ceremony and/or does not take the pledge within a reasonable period, officers may issue a further NOICCA and consider whether to proceed with the cancellation of approval.
ISSUES TO BE DECIDED
At the hearing, the Applicant agreed that she had failed to make a pledge of commitment within 12 months after the day on which she received notice of the approval of her application for Australian citizenship by conferral. In such a case, section 25(1) of the Act allows the Minister to cancel approval already given under section 24 for a person to become a citizen, if one of two situations arises. In this case, it is the second situation which is relevant, which has as its first condition that 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”.[5]
[5] Section 25(3) of the Act
It is the second condition of the second situation which gives rise to the first issue to be decided. The second condition is that “the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection”.
Ms Duncker claims that the reason for her failure is a reason that is prescribed by the regulations, namely section 9(3)(iii) of the Regulation, that she was overseas to care for a person who was critically ill. If that is so, the power to cancel the approval given under section 24 is not enlivened.
It is agreed that Ms Duncker was overseas at all relevant times. Accordingly, I must decide:
(i)whether the reason that she was overseas was to care for a person;
(ii)whether the person being cared for was critically ill;
(iii)whether the Applicant has provided a signed statement meeting the requirements of section 5(a) of the Regulation (“the statement”); and
(iv)whether the Applicant has provided written evidence that supports the statement.
Matters (ii) and (iv) are obviously related, in that my decision that a person was critically ill would include an assessment of the written evidence that was provided.
For the Applicant to be successful in relying upon a prescribed reason for failing to make a pledge of commitment, I must be satisfied of each of these matters. If I am, then neither of the two situations referred to in section 25(1) of the Act apply, and the Minister’s power to cancel the approval given under section 24 of the Act is not enlivened.
If I am not satisfied, and I find that the reason for Ms Duncker’s failure is a reason that is not prescribed by the regulations, then the Minister’s power to cancel the approval given under section 24 of the Act is enlivened. This is a discretionary power. If the power is enlivened, I must then consider the legal and policy matters that are relevant to the exercise of the Minister’s discretion in relation to consideration of reasons for non-attendance other than those prescribed in the regulations, including the guidance provided in CPI-10.
HEARING AND EVIDENCE
The matter proceeded by way of hearing before me on 24 October 2024. The Applicant appeared for herself. The Respondent was represented by Ms Theocharous of Clayton Utz. Both appeared via video. I also had the advantage of the Tribunal hearing documents (“T – documents”), and documents submitted by the Applicant.
Ms Duncker gave oral evidence. She also relied upon her statutory declaration of 15 August 2024, and an undated written statement. She also relied upon statements from her mother, Sheila Duncker, her brother Micheal Duncker, and her partner Gerard Medcalf. Details from the Applicant’s testimony and other evidence are set out below in relation to the issues appearing beneath the heading “Consideration”.
It was apparent during the hearing that the Applicant has strong feelings about this matter, and about her mother’s ongoing illness. In her submission to me Ms Duncker stated, “you are seeing emotion,” and “this has been stressful for a long time”. Ms Duncker was in distress at times while giving her evidence and making submissions, however she clearly articulated her position in relation to all relevant issues.
CONSIDERATION
Was the Applicant’s mother critically ill at relevant times?
Has the Applicant has provided written evidence that supports the statement?
The relevant reason for non-attendance at a ceremony prescribed by subsection 9(3) of the Regulation is that a person was overseas to care for a person who was critically ill. There appears to be no dispute between the parties that Ms Duncker’s mother was ill at relevant times, the question is whether she was critically so.
The term “critically ill” is not defined in the Act or the Regulation, which was noted by Ms Duncker in her submissions to me. She said that from her research it means “serious mental or physical distress,” and “out of normal values”. She submitted to me in words to the effect that “this is exactly what goes on with Mum’s Chronic Obstructive Pulmonary Disease and emphysema, it is severe, it can’t be otherwise – emphysema is a later stage of COPD and it is terminal”.
Ms Theocharous advised me that there was no guidance available from case law on the meaning of “critically ill”. I was not advised of the availability of any guidance on the issue used by the Minister’s delegates. The Respondent’s written submissions focussed on the lack of supporting documentary evidence and the absence of “evidence from the Applicant’s mother’s medical practitioners or any other medical practitioner, hospital or health provider to substantiate the claim that she was providing care to a critically ill person …”.[6] Accordingly, I shall also consider here the factor set out at paragraph 8 (iv) above, “whether the Applicant has provided written evidence that supports the statement”.
[6] SFIC p14 para 27.5.
The Macquarie Dictionary defines “critical” with respect to “an illness, condition, etc” as “severe, grave”.[7] Also, it usefully provides other meanings of critical as including “dangerous” and “crucial: the critical moment”. The Oxford English Dictionary includes within its definitions, “extremely ill and at risk of death”. This suggests an intensity or crisis by which a critical illness is separated from a severe but not immediately life-threatening illness, and/or from a long-term or chronic illness. Accordingly, where a person was critically ill, I expect there will be supporting evidence in relation to matters such as hospital admissions, attendance by ambulance officers or other emergency services, elevated or increased treatment, and medical records showing that a person was gravely sick or even at risk of dying. As a finding that a person was critically ill is a matter for the Tribunal, it is not determinative in a matter whether or not a medical professional used that exact phrase in describing a person’s condition. However, the Tribunal will of ocurse be greatly assisted by the evidence of medical professionals in this regard.
[7] >
The evidence provided by the Applicant includes a letter with the letter head of “Kettering General Hospital NHS Foundation Trust”, dated 20th August 2024 and signed by Dr M Naeem. It states that the applicant’s mother is “under our care due to her COPD / emphysema”.
I am provided with a further letter with the same letter head, dated 2 October 2024 and signed by Dr Yasmin Rahim. It states in respect of the Applicant’s mother, “As a member of her specialist medical team, I can confirm … that the presence of [Kirsty Duncker] in 2023 had a significantly positive impact on both her physical and mental well-being, particularly in relation to her COPD diagnosis”.
I am also provided with a document headed “Great Oakley Medical Ctr 3 Overview Mrs Sheila Duncker”, which I was advised at the hearing is the Applicant’s mother’s confidential medical history (“the medical history”). Under the heading “Medical History” there is an entry “02 December 2021 Chronic obstructive lung disease (H3) moderate – CT scan via lung clinic – august 2021”. There is a further entry, “29 September 2023 Emphysema (H32)”.
Under the heading “Last Consultation”, the final entry is dated 31 January 2024. It refers to an “online questionnaire completed by patient”, being the “COPD Questionnaire – CAT, MRC”. This questionnaire has 8 scored entries, 6 of which are scored “1”, and 2 of which are scored “0”. An online search indicates that the scale is from 0 to 5, with 0 being no symptoms (the best score) and 5 being strong symptoms (the worst score).[8] The final line reads “Admissions due to exacerbations: No”.
[8] >
There is evidence available from the Applicant’s testimony and statements of the Applicant and others, regarding the state of her mother’s health. In her statement dated 26 April 2024, the Applicant’s mother herself states:
·I live alone in the UK and honestly, I have been in crisis mentality and physically.
·My diagnosis coupled with watching my eldest brother pass left me in a very dark place and honestly not coping.
·COPD is a respiratory disease, small physical exertion, sometimes even waking up and getting out of bed can be exhausting and leave you gasping for air, you feel as though you are drowning. You can’t get air into your lungs quick enough.
·I must take precautions and limit social interaction. COPD is extremely challenging to deal with physically but it also makes me very vulnerable to common illnesses like a simple cold or flu for example.
·There is no cure for COPD, it is a terminal illness where measures can only be made to slow down the aggressiveness of the illness and manage the symptoms.
In an undated statement, the Applicant states:
·COPD stands for Chronic Obstructive Pulmonary Disease. It is a chronic inflammatory lung disease that obstructs airflow from the lungs. Basically, it means that my Mum has a severe respiratory problem that affects her daily life.
·We know there is no cure
·COPD is a very lonely and isolating illness to live with
·Coughing fits are a daily and nightly (because she is lying down) occurrence, we can be in normal conversation and then Mum will start to struggle, and we must stay calm and allow her the time to try and clear her airways of trapped mucus. It’s very difficult as even after her inhaler she does not have the lung strength to do this so it can turn into quite a lengthy, traumatic process. It feels and looks like she is choking.
In his statement, the Applicant’s partner Gerard Medcalf said:
·On Sheila’s [the Applicant’s mother’s] arrival in Sydney [in December 2021] we were … both very shocked at her obvious deterioration in health mentally and physically
·Sheila told us she had been diagnosed with the early onset of COPD, a medical condition both her own Mum and eldest brother later went to pass away from in August 2022
·Following [her brother’s] death Sheila’s health continued to deteriorate
·Sheila was not capable of looking after herself let alone the work that needed to be done [on her home]
·We don’t know what the future holds for Sheila
In his statement, the Applicant’s brother said:
·My mother Sheila Duncker suffered from severe mental health issues that were only realized at the arrivals area at Sydney Airport after free movement was able to be realized [post-covid].
·my mother … suffers with … COPD
·The path is not clear with my mother but there will be the need for my sisters help again
I accept that at all relevant times the Applicant’s mother was suffering from Chronic Obstructive Pulmonary Disease. I accept that this is a serious and progressive disease and that Ms Duncker’s mother was at the stage described as emphysema.
I must decide whether Ms Duncker’s mother was critically ill at relevant times.
There is no use of the word “critical” or the phrase “critically ill” or the like in the letters of Dr Naeem or Dr Rahim, nor in the applicant’s mother’s medical records. That is not determinative. Ms Duncker’s mother’s condition was described in her medical history on 2 December 2021 as “Chronic obstructive lung disease (H3) moderate” (emphasis added). There is no evidence that the Applicant’s mother was attended by ambulance officers or other emergency service. The only reference to hospital “admissions” is in the Applicant’s mother’s medical history, where the final line of the “COPD Questionnaire – CAT, MRC” completed on 31 January 2024 reads “Admissions due to exacerbations: No”. There is nothing in the medical history indicating any need for emergency intervention at any time, nor that Ms Duncker’s mother was gravely ill.
On the basis of Ms Duncker’s testimony, her written statements and the statements of her partner and her brother, Ms Duncker’s mother was certainly ill; had very unpleasant episodes; and was cared for by Ms Duncker. However, there are no indications from this material that Ms Duncker’s mother’s life was at risk; that there was a crisis in relation to her illness; or that she required care or treatment that was out of the ordinary for her condition. According to Micheal Duncker, his mother is able to travel to and spend time in “France where the weather is warmer and little kinder to my mother”.
I am not able to find that Ms Duncker’s mother was critically ill.
With respect to the issue of “whether the Applicant has provided written evidence that supports the statement,” I note that the Applicant has expressed that she has found this difficult. In her statutory declaration of 15 August 2024 she states:
“My mother is due to see a specialist in September 2024. I have repeatedly asked both my mother’s local doctor’s practice and specialist department at the hospital for a letter to clarify the level of care she required in 2023. My mother’s GP communicated to me via phone words to the effect of, ‘releasing her confidential NHS records should cover the seriousness of her condition.’ To date her specialist has not responded.”
Subsequent to that date are the letters of Dr M Naeem of 20 August 2024 and Dr Yasmin Rahim of 2 October 2024. As outlined above, this written material does not support a statement that Ms Duncker’s mother was critically ill.
I find that the reason for Ms Duncker’s failure to make a pledge of commitment was not for a reason prescribed by Regulation 9 in that she was not overseas to care for a critically ill person. Further, she did not provide written evidence that supports her statement that her mother was critically ill.
As a result, the Minister’s power under section 25 to cancel the approval for her to become a citizen under section 24, is enlivened. I must now consider the matters that are relevant to the exercise of the Minister’s discretion in relation to consideration of reasons for non-attendance that are not prescribed in the regulations.
EXERCISE OF THE MINISTER’S DISCRETION TO CANCEL AN APPROVAL OF CITIZENSHIP
It is submitted on behalf of the Minister that I “will ordinarily consider and apply lawful Government policy unless there is a cogent reason not to (Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179). The Respondent submits that there are no cogent reasons not to follow the CPIs and the Policy Statement in this proceeding”.[9]
[9] RSFIC paragraph 13.
I agree with those submissions. I must put myself in the position of the decision maker and decide the matter on the basis of the evidence currently available and the applicable law and policy.
As submitted by the Respondent, the relevant policy is set out in CPI 10. The starting point is that “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”.[10]
[10] T3, 125
The Respondent submits that I may take into consideration principles highlighted in the matter of Pramod Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933 (“Budhathoki”) in determining whether the decision in this matter “is fair and reasonable on the merits of the Applicant's case”.[11] In that regard, I note and accept the principle that “…one of the purposes of the Act is to make a timely pledge of commitment to becoming an Australian citizen a pre-requisite to the grant of citizenship by conferral”.[12]
[11] RSFIC paragraph 19.
[12] RSFIC paragraph 19(a) quoting Budhathoki [10].
CPI 10 provides that “If an applicant does not attend a ceremony within 12 months of approval and the Department is considering cancellation, the applicant must be sent a Notice of Intention to Consider Cancellation of Approval (NOICCA)”.[13] Further, where “an applicant has been invited to a ceremony but has failed to attend and has not responded to follow up contact from the Department (by phone or via written communication) the applicant must still be provided with a NOICCA before considering cancellation”.[14] The delegate “must consider whether the Department’s attempts at facilitating the applicant’s attendance during the 12 months after approval has been reasonable”.[15] Reasonable efforts include “at least one invitation to a ceremony has been sent to the applicant”; “non-attendance was adequately followed up, by phone, email or letter at least once”; and “details regarding the contact made in this regard is appropriately recorded”.[16] This is also consistent with the approach in Budhathoki.[17] The Respondent’s efforts (including as set out at paragraph [3] herein) were consistent with this policy and were reasonable.[18] The first invitation was to a ceremony on 6 June 2023, almost 11 months after the approval date. Presumably this is one of the reasons why invitations continued to be issued through to 13 December 2023, 18 months after the approval date. The Applicant was in Australia until 4 April 2023, almost 9 months after the approval date, and was available to attend a ceremony during that time.
[13] T3, 125
[14] T3, 126
[15] T3, 127
[16] ibid
[17] At [11]. See also RSFIC paragraph 19(b)(i)
[18] RSFIC paragraphs 19(b)(i) and 20 to 21.
The Respondent submits that “the Applicant did not take steps to notify or communicate to the Department that she would be unable to attend the ceremonies during the relevant period, and did not notify the Department that she was unable to travel due to caring for her mother or that her mother was critically ill”.[19] The Applicant submitted that she “notified the Department by emailing the ceremony venue that [she] would not be able to attend the first ceremony”,[20] but agreed in her evidence to me that she could have done more, notwithstanding difficulties accessing her MyGov account while overseas.[21]
[19] RSFIC paragraph 26.
[20] Statutory declaration 15 August 2024 paragraph 16
[21] See also Statutory declaration 15 August 2024 paragraphs 17 and 18
Pursuant to the policy, the Department sent Ms Duncker a NOICCA. CPI 10 provides, under the heading “4. Failure to make a pledge of commitment”, that “applicants who still wish to make the pledge of commitment in order to become an Australian citizen, are requested to respond to the NOICCA with reasons why they did not attend and why the approval of their application should not be cancelled”.[22] Ms Duncker did this on 3 January 2024, placing her in that category of applicants who still wish to make the pledge of commitment.
[22] T3, 125
CPI 10 provides that while the “Regulation provides prescribed reasons that will be accepted …. applicants can provide any reasons that are relevant to their circumstances and these must be considered by the delegate when considering cancellations of approval”.
On 3 January 2024 Ms Duncker provided reasons associated with her mother and her mother’s health: “Unfortunately My Uncle passed away quite suddenly at the end of 2022 which led to me spending a large amount of time trying to support my Mum (who is also not in 100% health) sorting out his estate, clearing his house and putting it on the market”.[23] Unlike the original decision maker, I have the additional benefit of Ms Duncker’s further submissions, supported by her testimony and written materials, which contain more detailed reasons and articulate more clearly the situation regarding her mother’s illness.
[23] T21, 224.
Following the issue of a NOICCA and the receipt of a response, “delegates are generally expected to proceed to cancel the approval,” unless certain circumstances exist.[24] Relevantly, a delegate may give weight to
“compelling or compassionate circumstances that prevented a person from attending the scheduled ceremony”.
[24] T3, 127
Delegates are informed that “compelling or compassionate circumstances may include but are not limited to:”
“an illness or health condition to themselves or a family member such that the person cannot attend the scheduled ceremony”.
The illness or health condition must be “to themselves or a family member”. Ms Duncker’s mother is one of the members of her family. Importantly, there is no requirement that it be a “critical” illness. The Respondent concedes that “the Applicant provided support and assistance to her mother who is diagnosed with a chronic illness”.[25]
[25] RSFIC paragraph 27.4
In my view, the major reason that Ms Duncker could not attend a ceremony was that she was out of Australia and in the United Kingdom for an extended period. From what I know of her mother’s health and situation, if Ms Duncker had been caring for her mother in Australia, she would have been able to leave her for a few hours and attend a ceremony. I need to consider two matters. The first is whether in the context of this matter there was sufficient connection between her mother’s illness and Ms Duncker’s extended absence from Australia. The second is, if that is the case, whether Ms Duncker being in the United Kingdom in relation to her mother’s illness meant that she could not attend a ceremony.
I take into account the following factors with respect to the connection between Ms Duncker being in the United Kingdom, and her mother’s illness:
·For the purposes of the policy, there is sufficient familial connection – they are mother and daughter. The applicant’s attachment to and feeling for her mother was displayed in her appearance before me when she gave evidence.[26]
·Her mother was ill, suffering from COPD and emphysema. I have found that her mother’s illness was not critical. However, from the evidence before me it is chronic, life-changing, incurable, and at the relevant time associated with uncomfortable and distressing symptoms and episodes.[27]
·Her mother lived on her own with no family to care for her. Her mother’s brother had recently died. Both the Applicant and her only sibling lived overseas.[28]
·Due to her illness, her mother was unable to attend to matters relating to the death of her brother, and his estate[29]
·Due to her diagnosis, her being alone, her brother’s recent death, and her own mother and brother having suffered from the same disease, her mother was low in spirit[30]
·Ms Duncker had recently seen her mother on a visit to Australia and was concerned about her wellbeing from that visit. Ms Duncker was distressed at her mother’s situation[31]
·Ms Duncker and her partner carried out a number of tasks during 2023 to help her mother cope with her illness, including remodelling her house, arranging for care, arranging for gardening and food delivery and so on[32]
·It took time for Ms Duncker’s brother to arrange a permanent move from the United States to Europe, where he would be closer to his mother and able to more readily assist with her care if required[33]
·In a letter dated 2 October 2024, the mother’s treating doctors report that “that the presence of [Kirsty Duncker] in 2023 had a significantly positive impact on both her physical and mental well-being, particularly in relation to her COPD diagnosis”.
[26] See paragraph 17 herein.
[27] Kirsty Duncker statutory declaration paragraphs 5 and 20; statement of Sheila Duncker dated 26 April 2024; statement of Micheal Duncker; statement of Kirsty Duncker.
[28] Statement of Sheila Duncker dated 26 April 2024; statement of Micheal Duncker; statement of Kirsty Duncker.
[29] Application for review T1, 6; email from Kirsty Duncker to Home Affairs 3 January 2024 T20, 223.
[30] Statement of Sheila Duncker dated 26 April 2024.
[31] Statement of Gerard Medcalf.
[32] Kirsty Duncker statutory declaration paragraphs 20 and 21; statement of Sheila Duncker dated 26 April 2024; statement of Gerard Medcalf; statement of Micheal Duncker; statement of Kirsty Duncker.
[33] Statement of Micheal Duncker.
In all of these circumstances, the reasons for Ms Duncker’s extended stay in the United Kingdom are understandable and appropriate, and strongly connected to her mother’s illness. In my view, the reasons are both compassionate and compelling.
The Respondent submits that “given the significance of making the pledge of commitment … it would be reasonable to expect that the Applicant could have made alternative arrangements to ensure that she could attend a ceremony,”[34] noting “her partner was also caring for her mother in the UK”.[35] In her evidence before me, the Applicant said that at one stage her partner returned to Australia, in order to see his own elderly mother, and to make arrangements with his employer regarding his continued absence overseas.
[34] RSFIC paragraph 31
[35] RSFIC paragraph 28(d), see also paragraph 27.4
In this regard, I am required by the policy to consider whether “compelling or compassionate circumstances … prevented a person from attending the scheduled ceremony”, and the existence of “an illness or health condition to … a family member such that the person cannot attend the scheduled ceremony” (emphasis added). The predecessor of this Tribunal when presented with a submission that “the word ‘possible’ should require a ‘very serious constraint’ for something not to be ‘possible’ …. reject[ed] the suggestion that Parliament intended to set such an alpine bar in interpreting that word …. The Tribunal’s view is that ‘possible’ in this context should be interpreted to mean ‘reasonably possible in all the circumstances.’”[36] In my view, the use of the words “cannot” and “prevent” does not create a requirement that attendance at the ceremony be rendered impossible before this consideration comes into play. I am supported in this view by a later reference in CPI 10 to “… the delegate [being] satisfied that the claimed circumstances … can be deemed to have reasonably prevented the applicant’s attendance …” (emphasis added).
[36] CNPG and Secretary, Department of Education [2022] AATA 4349, paragraph 85.
In my view, a finding that there were significant obstacles associated with attending the ceremony that arose out of or were associated with the illness or health condition suffices to support a finding that a person cannot attend the ceremony.
I note that travelling from the United Kingdom to Australia is expensive. Ms Duncker stated that “I should have tried to fly back specifically to make the pledge but we have drained most of our savings in the past year”.[37] When cross-examined about this statement, Ms Duncker said that statement was an example of her being a “people-pleaser”, and that she had been trying to think about what she could have done differently. She maintained, “I had to be there for her”. I also note that the flight takes over 24 hours.
[37] T1 6.
In my view, Ms Ducker’s presence in the United Kingdom was strongly connected to and associated with her mother’s illness. It also placed significant obstacles in the way of her attending a ceremony such that in the terms of CPI 10 meant she could not attend a ceremony for compelling and compassionate reasons.
This puts Ms Duncker’s matter in a category different to those in respect of which ““delegates are generally expected to proceed to cancel the approval”.
The Respondent submits that among the matters highlighted in Budhathoki, I can consider “any prejudice the Applicant might suffer if the approval is cancelled”.[38] The Respondent submits that there is no evidence that affirming the decision will result in the Applicant “no longer [being] able to reside in Australia”.[39] The Respondent also submits that the “Applicant would not suffer any material detriment as a result of the cancellation of her application for Australian citizenship,” and that “it would be open to the Applicant to reapply for Australian citizenship, at a time where the Applicant is able to make suitable arrangements to make the pledge of commitment in a timely matter”.[40]
[38] RSFIC paragraph 19(b)(iv).
[39] RSFIC paragraphs 36 – 37.
[40] RSFIC paragraph 38.
The Applicant submits that she is “keen to be received into the full and formal membership of the community of Australia,” and that she wants to “vote and exercise my duties, rights and responsibilities as an Australian citizen”.[41] She raises that her absence overseas caring for her mother may restrict her ability to reapply for citizenship, especially if she has to travel to the United Kingdom again to care for her mother, given the requirement that a person not be absent from Australia for more than 12 months during the last four years.[42]
[41] Statutory declaration of Kristy Duncker made 15 August 2024, paragraph 4.
[42] Ibid paragraphs 6 to 7.
I am to be guided by the policy matters outlined in CPI 10, which does not specifically refer to prejudice. However, in my view there is benefit in having Australian citizenship. It follows that a rejection of an application for citizenship, or a delay in granting citizenship, which amounts to a denial of or delay in providing that benefit, must cause some prejudice.
CPI 10 requires that “Applicants must provide appropriate documentary evidence to support their claims”. The Respondent submits that “the Applicant has not provided documentary evidence to substantiate that she had compelling reasons for not attending any of the citizenship ceremonies she was invited to attend”.[43] My view is that Ms Duncker has provided the Tribunal with appropriate documentary evidence to support her claims, as established by my references to those documents in my consideration above. Much of this material was not available to the original decision maker.
[43] RSFIC paragraph 39(b)
CPI 10 then provides
If the delegate is satisfied that the claimed circumstances is adequately supported by documentary evidence and can be deemed to have reasonably prevented the applicant’s attendance, delegates may choose not to cancel the approval and invite the applicant to the next available ceremony. Depending on availability of ceremonies, an applicant is expected to resolve their circumstance and attend a ceremony within a reasonable period.
Under policy, a reasonable period is up to 6 months (emphasis added)
In her email dated 3 January 2024 in response to the NOICCA, Ms Duncker advised that she expected to “be back in Australia long term mid-March 2023 onwards”.[44] This is (considerably) less than 6 months after the NOICCA was sent to her.
[44] T19, 221.
In her statutory declaration of 15 August 2024, Ms Duncker advised that she is “in a position to make the Pledge of Commitment at any stage when the opportunity next arises”.[45] When she gave evidence before me, Ms Duncker also said she was available to attend a ceremony at any time.
[45] Paragraph 13.
I am of the view that for the time being, Ms Duncker has resolved her circumstance in that she is currently in Australia, and that she can attend a ceremony within a reasonable period, that is within the next 6 months.
Given my consideration of the content of CPI 10, the documentary evidence now available to me, the applicable law and all of the submissions, in my view the preferable decision in this matter is to set aside the decision under review and in substitution decide that the approval of the Applicant’s application for Australian citizenship by conferral is not to be cancelled, and that the Applicant is to be provided with another opportunity to attend a ceremony to make a pledge of commitment.
Decision
The Tribunal sets aside the decision under review and in substitution decides that that the approval of the Applicant’s application for Australian citizenship by conferral is not to be cancelled, and the Applicant is to be provided with another opportunity to attend a ceremony to make a pledge of commitment.
Date(s) of hearing: 24 October 2024 Applicant: Microsoft Teams via Video Respondent: Microsoft Teams via Video Solicitors for the Respondent: Ms K Theocharous - Clayton Utz
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