Hsiao and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 2540

Hsiao and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2540 (14 August 2023)
Division:GENERAL DIVISION
File Number(s):2023/0780
Re:Ms Yu-Chen Hsiao
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:14 August 2023
Place:Brisbane

The reviewable decision is set aside, and in substitution, the Tribunal decides that the Applicant’s approval of Australian citizenship is not cancelled.
................[SGD]................
Deputy President J Sosso
Catchwords
CITIZENSHIP – application for citizenship by conferral – where applicant has been approved for a grant of citizenship –applicant advised she has 12 months to make pledge of commitment – common ground that applicant did not make pledge – discretion exercised to cancel approval due to failure to make pledge of commitment within 12 months – supervening event of global COVID-19 pandemic – closure of national and international borders – assessment of applicant’s circumstances – decision under review set aside and substituted
Legislation
Australian Citizenship Act 2007 (Cth)
Public Health Act 2005 (Qld)
Cases
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933
Cai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1969
David and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4665
Joseph and Minister for Immigration and Border Protection [2016] AATA 293
Kassem v Minister for Home Affairs [2019] FCA 1196
Secondary Materials
Australian Citizenship Regulation 2016 (Cth)
Movement and Gathering Direction (No. 4) (Qld)
REASONS FOR DECISION
Deputy President J Sosso
14 August 2023

Ms Yu-Chen Hsiao (the Applicant) seeks a review of a decision of a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) of 19 January 2023 to cancel the Applicant’s approval of Australian citizenship by conferral pursuant to s 25(3) of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T2 pp. 4-11.
The Applicant was born in Taichung, Taiwan in April 1977 – Exhibit 2 ST1 p. 108.
The Applicant first arrived in Australia on 9 February 1997 as the holder of a temporary Student (subclass 560) visa – Exhibit 1 T10 p. 72, T13 p. 107, Exhibit 2 ST1 p.110.
On 4 April 2006 the Applicant was granted a permanent Partner (subclass 801) visa – Exhibit 1 T10 p. 72. In 2007 the Applicant married her husband, Mr Ming-I Liao, who was also born in Taiwan – Exhibit 2 ST1 p. 117, 126.
Mr Liao was granted Australian citizenship on 26 January 2005 – Exhibit 1 T6 p. 34.
Mr Liao is an airline pilot. From 1 June 2004 until 10 May 2006 he was employed by Uni Air, and his last position with that company was First Officer in DHC 8 Fleet – Exhibit 2 ST1 p. 127. Mr Liao has been employed by China Airlines since 15 May 2006. He is employed as a 777 Relief Pilot – Exhibit 2 ST1 p. 128.
The Applicant has three children, a son born in 2008, a daughter born in 2011 and a second daughter born in 2016 – Exhibit 2 ST1 pp. 114-115.
The Applicant’s son was granted Australian citizenship on 12 May 2008, the eldest daughter on 4 June 2012 and the youngest daughter on 3 March 2017 – Exhibit 1 T6 pp. 32, 33 and 35.
On 8 June 2018 the Applicant lodged an Application for Australian citizenship – Exhibit 2 ST1 pp. 108-125.
On 28 February 2020 the then Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable David Coleman MP, notified the Applicant that her application for Australian citizenship had been approved – Exhibit 2 ST2 pp. 129-130. The following information was provided in the letter – Exhibit 2 ST2 p. 129:
“The final step in becoming an Australian citizen is to make a pledge of commitment at an Australian citizenship ceremony. You will not be an Australian citizen until you have made the pledge.
Generally, your citizenship ceremony will be scheduled within six months from the time your application is approved, although waiting times can vary. You will receive a letter of invitation from either your local council or the Department…
If you do not attend a citizenship ceremony and make the pledge of commitment within 12 months after the day you receive notice of approval to become an Australian citizen, the approval of your application may be cancelled.”
On 18 March 2020, the Applicant departed from Brisbane International Airport to travel to Taiwan – Exhibit 1 T13 p. 104.
On 19 March 2020, the then Prime Minister issued a press release announcing that Australian borders would be closed from 9 pm Australian Eastern Daylight Time on

20 March 2020 to all non-citizens and non-residents – David and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4665 at [80] (David).
On 14 September 2020 the Applicant was invited to attend an in-person citizenship ceremony on Thursday 17 September 2020 at the Great Hall, Brisbane Convention and Exhibition Centre – Exhibit 1 T4 pp. 16-17.
On the same day the Applicant replied to the invitation explaining that she and her family were then located in Taiwan – Exhibit 1 T4 p. 16:
“I’m so happy and to know that I’m reaching the final step to becoming an Australian citizen!
But unfortunately I and my family had to travel overseas to attend family emergency in Taiwan. And due to Covid-19 pandemic situation, we are been stranded in Taiwan and was unable to return to Australia at the moment. I would like to follow up the status of my ceremony schedule, and also would like to check if there are an alternative option for me to attend citizenship ceremony while I am overseas.
Could you please advise what are the options available for my situation to attend citizenship ceremony to become Australian citizen.”
The Applicant was advised to contact the Department of Home Affairs who would assist her – Exhibit 1 T4 p. 15.
The Department sent a comprehensive email to the Applicant on 22 September 2020 – Exhibit 1 T4 pp. 13-14:
“I refer to below request to attend a virtual citizenship ceremony.
Citizenship ceremonies may be conducted overseas in limited circumstances for which you must have a compelling reason to warrant a ceremony that is not in Australia. The Department of Home Affairs will also assess each request for an overseas ceremony to ensure that you are likely to reside or continue to reside in Australia, or are likely to maintain a close and continuing relationship with Australia.
Generally, conferees have 12 months from their notice of approval to attend a ceremony in Australia and make the pledge of commitment to Australia. However, during the COVID-19 period, citizenship approval may not be cancelled if a conferee cannot attend a ceremony within this 12 month period.
To consider your request, you will need to provide evidence that you satisfy
s 21(2)(g) of the Australian Citizenship Act 2007 which requires that an applicant:
(g) is likely to reside, or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
Factors which may demonstrate satisfaction with this criterion may include but are not limited to, the following:
·Australian citizen spouse or de facto partner
·Australian citizen children
·Ongoing involvement in Australia’s economic, cultural, social, business activities
·Extended family in Australia
·Intended return visits to Australia
·Periods of residence in Australia
·Ongoing business, social, economic activities associated with Australia
·Participation in Australian community based activities or organisations
·Employment in Australia
·Ownership of property in Australia
·Evidence of income tax payment in Australia
Please provide evidence which may satisfy the above, as well as evidence which may support any claims of compelling reasons for remaining offshore. Once you have provided the above requested information, a decision will be made on whether an offshore ceremony can be completed and you will be notified accordingly.”
On 1 October 2020 the Applicant replied to the Department and provided the following information – Exhibit 1 T6 p. 19:
“I had to attend family emergency in Taiwan urgently, and we have been stranded in Taiwan due to Covid-19 pandemic situation. There were five members in my family, my husband three children were all been granted for Australian citizens. While we were still overseas, the Council rates notice of my property, car/home content insurances, telephone and internet services have all been paid on time as we believe we will soon be able to travel back to reside in Australia. The enrolment of Brisbane State High for my eldest son has been admitted. We are looking forward to return to Australia, especially children cannot wait to be back at school. My husband is a Captain who works overseas and he travel back to Australia almost every month, and we travel back to Taiwan together to visit family member in Taiwan during school holidays. During Covid-19 pandemic situation, his employer restricted all employee to travel on private flight due to quarantine issue for all travelers [sic]. Leave without pay is not suitable as his salary is the only income for my family. All international flight from Qantas has been suspended, all other international flights were also limited to passenger caps. As a condition of entry to Australia, Brisbane were restricted with 500 international arrivals per week, and not to exceed 60 on international flight. Sum up the situation and travel restriction, we do not wish to risk travelling on international flight for possible infections, if myself had to be quarantined and no one is able to assist taking care of the children.”
In support of her submission to the Department, the Applicant attached a copy of the following – Exhibit 1 T6 pp. 20-37:
(a)Brisbane City Council rates notice for the Applicant’s residence in South Brisbane;
(b)Notice of Contributions to the residence’s body corporate;
(c)Utilities bill;
(d)Optus internet bill;
(e)Telstra bill;
(f)Motor vehicle insurance invoice;
(g)Medibank payment history;
(h)Current title search for the Applicant’s South Brisbane residence;
(i)Citizenship certificates for Mr Liao and their three children;
(j)Correspondence relating to the schooling of her children in Brisbane.
The Department did not reply to the Applicant until 1 July 2021, some nine months after she provided the requested information. The Departmental officer was satisfied that the Applicant intended to reside, or continue to reside in Australia but did not consider she was eligible for an offshore citizenship ceremony. The response is set out below – Exhibit 1 T7 p. 38:
“Thank you for your previous email to the Department and your patience in awaiting an outcome of your request for an offshore online citizenship ceremony.
Online citizenship ceremonies may be conducted for applicants currently overseas, but only in limited circumstances. Whilst I acknowledge your current situation and desire to return to Australia, as the holder of a permanent visa, you are able to return from overseas pending the availability of inbound flights.
To be considered for an offshore online citizenship ceremony, applicants must provide evidence of circumstances that are both compassionate and compelling in nature. In addition, the Department will also assess each request for an offshore online ceremony to ensure that the applicant intends to reside or continue to reside in Australia, or likely to maintain a close and continuing association with Australia.
Whilst I am satisfied that you intend to reside, or continue to reside, in Australia, or are likely to maintain a close and continuing association with Australia, in the absence of evidence that your circumstances are of a compassionate and compelling nature, noting COVID-19 alone is not considered as such circumstances, you are not considered eligible for an offshore online citizenship ceremony.
As previously advised, applicants generally have 12 months from their notice of approval to attend a ceremony in Australia and make the pledge of commitment to Australia. However, during the COVID-19 period, citizenship approval may not be cancelled if a conferee cannot attend a ceremony in Australia within this 12 month period. As such, you will be provided with a ceremony upon your return to Australia.
When you have returned to Australia, please notify the Ceremony QLD team for allocation to a citizenship ceremony in your local area.”
The next correspondence from the Department to the Applicant was a Notice of intention to consider cancellation of your approval for Australian citizenship which was sent on

14 October 2022 – Exhibit 1 T8 pp. 40-42.
The Applicant was informed that it had come to the Department’s attention that she may no longer satisfy the eligibility criteria for Australian citizenship by conferral. Under the heading “Ceremony attendance” the following statement was made – Exhibit 1 T8 pp. 40-41:
“You were invited to attend multiple citizenship ceremonies to make a pledge of commitment. Departmental records show that you did not attend these ceremonies.
When you were notified about the approval of your application for Australian citizenship, you were informed that you must make a pledge of commitment at a citizenship ceremony in order to become an Australian citizen under the Citizenship Act.
If you do 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, your approval may be cancelled. This can be done under section 25(3) of the Citizenship Act, unless one of the following circumstances prevented you from making a pledge of commitment during the 12 month period:
·you were overseas undergoing medical treatment that was not available in Australia
·you were unexpectedly hospitalised while overseas
·you were overseas to take care for a person who was critically ill, or
·you were overseas for a funeral and were also responsible for arrangements associated with that funeral.
Your citizenship approval may not be cancelled if you still cannot make a pledge for any of the reasons mentioned above.”
Before dealing with the Applicant’s response to the above Notice, it will be seen that the Notice proceeds from an incorrect premise.
The Applicant was not invited on multiple occasions to attend citizenship ceremonies and make a pledge of commitment. The only time she was invited was in September 2020. The Tribunal has not been presented with evidence of any other invitations.
The fact that the Notice was issued based on incorrect information, and thus started a chain of events, culminating in the Tribunal Hearing, is very unfortunate.
In a letter dated 1 November 2022, the Applicant replied to the Department. She explained that her mother had passed away on 28 March 2021 at the age of 72. The Applicant also submitted as follows – Exhibit 1 T9 p. 46:
“The abovementioned circumstance were totally beyond my control during the period of Pandemic, I sincerely seek your assistance in providing me with an opportunity in attending Citizenship Ceremony in person as now all borders have been opened.”
The Applicant also appointed an authorised person (Mr Ming-Ju Chu) to act on her behalf (Form 956) – Exhibit 1 T9 p.54. Mr Chu made submissions to the Department on her behalf. In addition, the Department was provided with supporting documents contending that the Applicant, through reasons beyond her control, was unable to attend a ceremony in Australia.
One of the documents provided is the English translation of the Death Certificate of the Applicant’s mother. The document certifies that Ms Su-Ru Lin, who was born in February 1949, died on 28 March 2021 in Taichung City, Taiwan due to Cardiogenic Shock, with a pre-existing condition of Diabetes – Exhibit 1 T9 p. 58.
Other documents provided included evidence that the Applicant’s three children were attending English speaking schools in Taiwan and that her husband was working as a Pilot for China Airlines.
In a letter dated 1 November 2022 to the Department, the following submissions were made by Mr Chu – Exhibit 1 T9 p. 51:
“…I confirm during the time of citizenship ceremony (i.e. 14/09/2020 – 01/07/2021), it was during pandemic, not only Australia has border restriction policies but also Taiwan had its border restriction policy too.
At the time, Ms Hsiao was taking care of her ill mother who subsequently passed away on 28 March 2021.
At the same time, Ms Hsiao’s three (3) Australian children were required to be taken care of with their mandatory studies whilst the father still has duty as a pilot of an Aviation Company.
After 1 July 2021, Ms Hsiao had been proactively contacting with Citizenship Officer and Ceremony organizer, but received no respond nor required steps in completing the Ceremony procedure as border has since open.
We submit that Ms Hsiao has experienced compassionate and compelling circumstance during the time that prevented her in completing the Citizenship Ceremony both physically nor online, and the circumstance was beyond Ms Hsiao’s control.
We seek your assistance on the matter to provide Ms Hsiao an opportunity to return back to Australia in completing the required ceremony.”
On 19 January 2023, a Delegate of the Minister cancelled the Applicant’s approval of Australian citizenship by conferral pursuant to s 25(3) of the Act – Exhibit 1 T10 pp. 67-78.
The Delegate decided to cancel the Applicant’s approval because she had failed to make the pledge at a citizenship ceremony within 12 months of the day she received notice of approval, and that she did not provide an acceptable reason as prescribed in s 9 of the Australian Citizenship Regulation 2016 (the Regulations) or Departmental policy, supported by satisfactory evidence – Exhibit 1 T10 p. 72.
After setting out the interactions between the Applicant and the Department, the Delegate made the following findings – Exhibit 1 T10 p. 74:
“You explained via your authorised person that you were not able to attend a ceremony in Australia due to travel restrictions in Australia and Taiwan and that you were taking care of your ill mother who passed away on 28 March 2021.
You were initially overseas to care for your mother who was critically ill. Although the reason you have provided is a reason prescribed in the Regulations, you have only returned briefly from overseas between 14 October 2022 and 16 October 2022.
Whilst the department recognises travel disruptions due to the COVID-19 pandemic prevented applicants returning to Australia from March 2020, the Australian border re-opened on 21 February 2022. This should have allowed you to return and take a pledge of commitment at a citizenship ceremony in Australia.
I have considered the information available. I find you have failed to make a pledge of commitment at a citizenship ceremony within 12 months after the day you received notice of the approval. Although you have provided a reason prescribed by the Regulations with sufficient supporting evidence for failing to make the pledge in this timeframe, I am not satisfied you were prevented from returning to Australia after 21 February 2022 to attend a ceremony because of compelling or compassionate circumstances.”
On 9 February 2023, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal – Exhibit 1 T2 pp. 4-11.
The Applicant set out detailed reasons for why she contends the Delegate’s decision was wrong – Exhibit 1 T2 pp. 7-8. In summary they are as follows:
(a)it was impossible for the Applicant to attend the ceremony on 17 September 2020. At the time she was in Taiwan with her family, the Australian border was closed, international flights were cancelled and incoming passengers to Australia were required to undergo 14 days quarantine. This was in the context of only receiving the invitation to attend the citizenship ceremony on 14 September 2020. In short, she was only given three days’ notice, and having regard to travel restrictions, flight availability and quarantine requirements, it was impossible for her to attend the ceremony;
(b)the Applicant received no further invitations to attend citizenship ceremonies;
(c)the Applicant’s husband is an airline pilot and often away from home and her children are enrolled in schools in Taiwan. It was very difficult for her to leave her children by themselves while they are studying to travel back to Australia;
(d)previously the Applicant’s husband could visit the family every month in Australia, but with quarantine restrictions in place in Taiwan, it was impossible for the Applicant’s husband to visit them. The Applicant stated: “…if whole family wants to stay together, kids and I need to stay in Taiwan…it was so hard for me and my children to live in Australia and for my husband to go back to Australia every month for visiting us like he did before the pandemic.”;
(e)a few months after the Applicant’s mother passed away in March 2021 she fell pregnant but miscarried. The Applicant stated that her husband “felt that in my both physical and emotional condition, we have stayed together as a family, not leaving me alone with 3 children.”;
(f)if the Applicant had been given four weeks’ notice, instead of three days, she may have had enough time to arrange to fly back to Australia from Taiwan in September 2020 and undergo the then mandatory 14 days quarantine.
LEGISLATIVE REGIME

The Preamble to the Act provides, inter alia, that the Commonwealth Parliament recognises that persons conferred Australian citizenship, enjoy the rights and obligations as Australian citizens by:
“(a)…pledging loyalty to Australia and its people…”
The Tribunal recognises the centrality of making a pledge of commitment in the Preamble to the Act, and in the scheme of the legislation – Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [4] (Grass).
The Tribunal also notes the following observations of the Full Federal Court in Grass:
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…”
Subsection 26(1) provides that a person must make a pledge of commitment to become an Australian citizen. The exceptions to this requirement are not applicable to the Applicant.
The Minister may cancel an approval given to a person under s 24, if, pursuant to s 25(3):
(a)the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of approval; and
(b)the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of s 25(3).
Section 9 of the Regulations set out the prescribed reasons for failing to make a pledge of commitment:
Prescribed reasons for failing to make pledge of commitment
(1)For the purposes of subsection 25(3) of the Act, this section prescribes reasons for failing to make a pledge of commitment.
(2)A person has a prescribed reason for failing to make a pledge of commitment if:
(a)the person was prevented from making a pledge because the Minister has determined under subsection 26(3) of the Act that the person cannot make the pledge until the end of a specified period; and
(b)either:
(i)     the determination is in force, and the specified period has not yet ended; or
(ii)    the determination has ceased to be in force or the specified period has ended, but the person has not yet had a reasonable period in which to make a pledge.
(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.
(4)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 because of an administrative error or omission made by:
(i)     the Commonwealth, a State or a Territory; or
(ii)    an authority of the Commonwealth, a State or a Territory; or
(iii)   a local government authority; 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.
THE HEARING
A Hearing was convened in Brisbane on 5 July 2023.
The Applicant was self-represented and appeared in person. She was assisted by a Mandarin interpreter, Ms Liying Geng.
The Minister was represented by Ms E Tattersall, who also appeared in person.
The Applicant gave evidence and was cross-examined by Ms Tattersall. No other witnesses were called by the parties.
ISSUES
It is not contested that the issues for determination by the Tribunal are:
(a)did the Applicant fail to make a pledge of commitment within 12 months of the day she received notice of approval; and
(b)if the answer to (a) is yes, was the reason one of those prescribed by s 9 of the Regulations; and
(c)if the answer to (b) is no, should the Tribunal exercise the discretion to cancel the Applicant’s approval of citizenship?
CONSIDERATION
Did the Applicant fail to make a pledge of commitment within 12 months?
The material before the Tribunal discloses that the Applicant received a notice of approval for citizenship from the then Minister on 28 February 2020, and by 28 February 2021 had not made a pledge of commitment.
Accordingly, it is tolerably clear, that the answer to the first question is that the Applicant did not make a pledge of commitment within 12 months after the day she received notice of approval.
Was the reason for not making the pledge one that is prescribed by s 9 of the Regulations?
The relevant prescribed reasons in this matter are set out in s 9(3) of the Regulations.
The relevant reason in this matter is s 9(3)(a)(iii) namely:
“(iii) to care for a person who was critically ill”.
The Applicant contended that she travelled to Taiwan with her family in 2020 primarily because her mother was seriously ill, and she cared for her until her death in March 2021. As noted above, the Tribunal has received a copy of Ms Lin’s Death Certificate. That Certificate discloses that Ms Lin was suffering from diabetes and died of cardiogenic shock. Further, the place of death was her own residence. Ms Lin was 72 years of age at the time of her death – Exhibit 1 T9 pp. 58-59.
While conceding that caring for her critically ill mother is a prescribed reason, the Minister contends that there is insufficient evidence to satisfy the Tribunal that this was the reason the Applicant failed to make the pledge. It is noted that the Applicant’s evidence is brief and not independently supported – Exhibit 3 para 21.
The Tribunal had the benefit of observing the Applicant give evidence at the Hearing. The Applicant appeared to the Tribunal to be a witness of credit. She convincingly explained the circumstances surrounding her mother’s illness and the cultural and practical reasons why she and her family stayed in Taiwan to care for her during the final months of her life.
The Tribunal, therefore, is satisfied that the Applicant did in fact satisfy the prescribed reason, namely caring for a person who was critically ill.
However, the Minister goes on to point out that Ms Lin died in March 2021, but the Applicant did not return to Australia until October 2022. Further, the Minister contends that the Applicant did not notify the Department of her return to Australia, as instructed in the correspondence of 1 July 2021, in order that a ceremony could be arranged – Exhibit 3 para 22.
The fact that a person satisfies a prescribed reason for a particular time, does not mean that it provides an ongoing reason once the circumstances have changed. In the case of the Applicant, s 9(3)(a)(iii) provides a basis for her not making the pledge for the period from notification of approval by the then Minister to the date of her mother’s death. It does not provide a reason for the period after her mother’s death.
The Tribunal therefore finds that at the time of the cancellation of her approval, the Applicant did not satisfy any of the prescribed reasons in s 9(3)(a) of the Regulations.
Should the Tribunal exercise the discretion to cancel the Applicant’s approval of citizenship?
Introduction
It will be noted at the outset that s 25(1) of the Act provides that the Minister may cancel an approval given to a person under s 24. In short the power is discretionary, and involves the exercise of a discretion vested in the Minister, or, in this instance, the Tribunal.
The Act does not give any guidance as to the factors to be taken into account when exercising this discretion. As the Tribunal observed in Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933 (at [9]), in these circumstances the subject matter, scope and purpose of the Act must be considered.
In Budhathoki, Senior Member Britton observed (at [10]) 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. The following factors were identified as relevant to the exercise of the discretion in that matter (at [11]):
(a)steps taken to notify the applicant of the pledge requirement;
(b)the reason for not making the pledge requirement within time;
(c)the applicant’s understanding of the requirement; and
(d)any prejudice the applicant might suffer if the approval was cancelled.
Although not exhaustive, the factors identified above by Senior Member Britton provide a helpful guide when determining whether to exercise the discretion of cancellation.
Consideration can also be given to the detailed analysis of Division 2 of Part 2 of the Act by the Full Federal Court in Grass. Perram, Yates and Mortimer JJ made the following pertinent observations:
57The placement of s 25 in the scheme indicates Parliament’s intention to afford a further opportunity, prior to a person taking the pledge of commitment, for the Executive to deny a person citizenship. The first of the two preconditions in s 25(1), combined with the much narrower criteria in s 34 for revocation after citizenship is granted, reveals a legislative intention that reconsideration of an approval be available on broader grounds.
58Section 25(1), to be read with s 25(2) and (3), is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process. The first two circumstances in s 25(2)(b) (continuing permanent residence status, and factual residence in Australia) are clearly matters which could have changed in the interim period between an approval being secured and arrangements being made for a person to take the pledge of commitment. For example, a person could have had her or his permanent resident visa cancelled.
59The third matter (and the one relied on by both delegates in respect of the appellant) – whether at the time the Minister proposes to cancel the approval the Minister is satisfied the person is not of good character – is also a criterion which allows for changes of circumstances in between the granting of an approval and a person in fact taking the pledge of commitment....
…
61The role of s 25(3) was the subject of some specific submissions on behalf of the appellant. Its purpose is, plainly enough, to ensure that those people who secure a citizenship approval complete the process in a timely manner. The prescribed reasons for a person being able to take more than 12 months to complete this step are set out in reg 7 of the Regulations…
62The appellant submitted that the 12 month period specified in s 25(3) affected the 1construction of the power in s 25(2). She submitted that the existence of the 12 month period meant that the power in s 25(2) to cancel for non-satisfaction of any of the three eligibility grounds there specified was not available for exercise 12 months after a citizenship approval was granted. Once 12 months had passed, the only cancellation power available to the Minister was the power in s 25(3).
63We do not accept this is the proper construction of s 25(2) and (3), nor of their relationship in the context of the Act. By s 25(1), and on the condition that a person has not taken the pledge of commitment, the Minister is authorised to cancel a citizenship approval in circumstances which are, by the use of the word “either”, intended to be true alternatives. On exercise of the power, cancellation is an event with complete effect. Parliament intended that effect to be able to occur in two quite different ways. One way is, as we have described it, where the repository of the power is to be given an opportunity for reconsideration, on the premise that changes in circumstances or information may have affected the desirability, on the merits, of a person being able to acquire Australian citizenship.
64The other way (s 25(3)) is where the person to whom a citizenship approval has been granted has failed or neglected to take the second and critical step to perfect her or his status as a citizen: namely, taking the pledge of commitment. In a sense, this provision recognises that, by granting an approval (and there being no adverse reconsideration), an individual has been offered the opportunity for Australian citizenship and the Legislature expects (subject to the range of reasons set out in the Regulations and justifying a longer period) the person will either act reasonably promptly to take up that offer, or the offer may be withdrawn through the cancellation of the citizenship approval.
65There is no basis in the text or context of the provision to construe s 25(2) as limited in the manner suggested. Indeed, if there was a constraint it would need to be implied not into s 25(2) but into s 25(1), which is the provision conferring the discretion to cancel. Once that is appreciated, the manner in which s 25(1) is expressed makes it as clear as it could be that the two ways in which an approval may be cancelled are to operate as alternatives, independently of each other. Indeed, there would be nothing preventing the Minister considering a cancellation under s 25(1) based on the matters in s 25(2), and deciding not to cancel the approval, but subsequently on discovering the person had not taken the pledge after 12 months had elapsed, cancelling the approval in that way.
As their Honours explained (at [64]), s 25(3) contemplates that a person will act “reasonably promptly” to take up the offer of taking the pledge of commitment. What constitutes acting in a reasonably prompt manner is inextricably intertwined with the circumstances confronting a person. Section 9 of the Regulations sets out prescribed reasons for failing to make the pledge of commitment. However, when the Minister exercises the discretion to cancel an approval pursuant to s 25 of the Act, the Minister will, potentially, take into account a plethora of factors, some of which were explained by Senior Member Britton in Budhathoki. As will be explained below, the unusual, if not extraordinary, circumstances that existed when COVID-19 restrictions were enforced throughout the world, resulted in severe restrictions on personal freedoms, including the freedom of movement. It is a matter of common knowledge that for much of the period from March 2020 until various times in 2022, most nations imposed severe restrictions on persons leaving and entering their territory. These restrictions were supplemented by limits on the numbers of persons allowed to enter at any given time, limitations on airline flights, the number of persons who were allowed to fly on any given flight and strict quarantine rules on arrival. It is in this context that the Tribunal addresses the factors outlined by Senior Member Britton in Budhathoki.
In at least two earlier determinations, the Tribunal has taken into account the unusual circumstances arising out of the COVID-19 travel restrictions on the realistic ability of persons to take up the offer of a pledge of commitment in a timely manner – David and Cai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1969.
Steps taken to notify the Applicant of the pledge requirement and the Applicant’s understanding of the requirement
As outlined above, the then Minister in his letter to the Applicant of 28 February 2020 explained that she was required to make a pledge of commitment, and if this was not effected within 12 months of receiving the notice of approval, that approval “may be cancelled” – Exhibit 1 ST2 p. 129.
In the Department’s letter to the Applicant of 22 September 2020, the Departmental officer noted that generally persons had 12 months from their notice of approval to attend a ceremony in Australia and make the pledge of commitment. However, he made the following important qualification – Exhibit 1 T4 p. 13:
“However, during the COVID-19 period, citizenship approval may not be cancelled if a conferee cannot attend a ceremony within this 12 month period.”
This advice was repeated by the Departmental officer in his letter of 1 July 2021 to the Applicant, with the following additional advice – Exhibit 1 T7 p. 38:
“As such, you will be provided with a ceremony upon your return to Australia.
When you have returned to Australia, please notify the Ceremony QLD team for allocation to a citizenship ceremony in your local area.”
The Minister properly concedes that the Applicant was not invited to additional citizenship ceremonies – Exhibit 3 para 30. Her only invitation to attend a citizenship ceremony was sent on 14 September 2020 giving her three days’ notice – Exhibit 1 T4 pp. 16-17. As previously noted, the Applicant was then in Taiwan and it was impossible for her to attend that ceremony which such short notice – Exhibit 1 T4 p. 18.
It is also the case that the evidence before the Tribunal discloses that the Applicant understood the requirement to make a pledge of commitment within 12 months. This is manifestly clear in the Applicant’s email of 16 September 2020, where she explained she could not attend the in-person ceremony on 17 September 2020 and requested consideration be given for a virtual ceremony “at your convenience date and time” –

Exhibit 1 T5 p. 18.
A fair reading of the Departmental correspondence to the Applicant is that the normal requirement to attend a citizenship ceremony and make the pledge of commitment within 12 months of notice of approval, would be waived having regard to the extraordinary circumstances brought about by COVID-19 restrictions on freedom of movement and assembly.
Indeed, in the Departmental letter of 1 July 2021, there was, on its face, an open offer given to the Applicant to be provided with a citizenship ceremony when she returned to Australia.
The Minister points out that the Applicant returned to Australia between 14-16 October 2022, but did not contact the Department, as requested. The Applicant’s explanation for this omission is as follows – Exhibit 1 T2 p. 8:
“As 13 October 2022, the first day of the reopening of Taiwan’s border, all my family have flight to Brisbane depart at 11:55 pm 13 October, and arrived at Brisbane around 10am 14 October, but received an email of intent to cancel citizenship at 11:28 pm when I was still at the airport. It was no chance to inform Ceremony QLD team of my return to Australia. I was so panicked and overwhelmed, I searched for an immigration agent who might be able to help me to replied email with documents request by Officer EDUARDO, with attached my mother’s death certificate, 3 children’s school enrolment, with employment letter from my husband’s airline. Described that I was taking care with my family, my children are studying in Taiwan and my husband has a of flying duties for his work, so he is not always at home. I cannot leave them on their own. This return to Australia we can only stay for a weekend, as the children still needed to go to school on Monday.”

The Applicant also provided the Tribunal with an article published in Taiwannews.com.tw which reported that Taiwan opened its borders to international travel and ended its strict quarantine rules with effect from Thursday 13 October 2022 – Exhibit 4.
Due to Mr Liao’s employment as an airline pilot with China Airlines, he was in the fortunate position of being able to obtain airline tickets for his family to return to Australia immediately upon Taiwan opening its borders.
It would appear that a very unfortunate chain of events occurred when the Applicant and her family travelled to Australia on 13 October 2022. At the very time the Applicant and her family was in transit to return to Australia, the Department sent its Notice of Intention to Consider Cancellation of Approval. As the Applicant explained, on receipt of this Notice she panicked and immediately sought to obtain the services of a professional who could assist her.
The sending of this Notice was unfortunate. Although Australia had opened its borders earlier in 2022, Taiwan remained one of the last nations to place strict restrictions on travel and maintain quarantine rules. Although the Applicant could have travelled to Australia earlier in 2022, the restrictions placed on returning persons in Taiwan would have resulted in Mr Liao being unable to fulfill his duties as an airline pilot.
In short, the Applicant, relying on the Departmental correspondence of 2020 and 2021, formed the mistaken view that she could make the pledge of commitment when she returned to Australia, and the timing of that return would be predicated on Taiwan lifting its travel restrictions. Having regard to the wording of the Departmental correspondence, the fact that the Applicant was not offered any further times for attending a ceremony in Australia and the refusal of the Department to allow her to make a virtual pledge of commitment, the Applicant’s mistake was one that a reasonable person would make.
Having regard to the above matters, the evidence under these circumstances weigh against the exercise of the discretion to cancel.
Reasons for the delay in failing to make the pledge within 12 months
The Minister points out that there is no minimum time period prescribed for giving an invitation to attend a citizenship ceremony – Exhibit 3 para 33. The Tribunal accepts that is the case.
However, the Applicant provided the Tribunal with an extract of information provided by the relevant Department on citizenship ceremonies – Exhibit 1 T2 p. 11:
“You will be invited to attend your ceremony about four weeks before the event. You will receive a letter of invitation from either your local council or the Department of Home Affairs.”
The Tribunal is not critical of the shortened time frame given to the Applicant to attend the citizenship ceremony in 2020. At that time the Queensland Chief Health Officer had issued, pursuant to the Public Health Act 2005 (Qld), Movement and Gathering Direction (No. 4) which came into effect on 2 September 2020. In that Direction, the Chief Health Officer directed that a maximum of 30 people could gather publicly in a non-restricted area (s 10). Pursuant to s 19 of the Direction, the Chief Health Officer could grant an exemption in all or part of the Direction on compassionate grounds or “for other exceptional circumstances.”
The Chief Health Officer made numerous Directions reflecting the changing circumstances surrounding the spread of COVID-19 in the community.
Accordingly, organising public citizenship ceremonies during this time was extremely difficult. With a quickly evolving public health environment, decisions whether to organise a public event involving a large number of people, had to be made quickly. The normal notice requirements were, understandably, not followed.
Just as the Tribunal is not critical of the shortened time frame afforded to the Applicant, the Tribunal likewise is not critical of the Applicant not attending that ceremony. It was, as previously pointed out, a physical impossibility.
The fact that the Applicant provided the Department with the requested information about an off-shore citizenship ceremony on 1 October 2020, but did not get a reply until

1 July 2021, suggests that the Department was not giving her request any sense of urgency – Exhibit 1 T7 pp. 38-39.
Indeed, as it took the Department nine months to reply to the Applicant about a relatively straightforward request, would have suggested to an objective third person that in the midst of COVID-19 the normal approach to fast-tracking citizenship ceremonies had been abandoned.
It is also the case that after sending the 1 July 2021 email, the Department did not further correspond with the Applicant until the Notice of intention to consider cancelation was sent on 14 October 2022. That Notice in turn was tainted by a serious error. The author of the Notice claimed that the Applicant has been invited to multiple citizenship ceremonies but she had failed to attend any of them – Exhibit 1 T8 p. 40. The Applicant, as previously noted, was only invited to one ceremony, and with very little notice.
In her email of 1 October 2020, the Applicant clearly articulated the reasons why she had both travelled to Taiwan and why she was loath to attempt to return to Australia, assuming that she could do so – Exhibit 1 T7 p. 39.
The Tribunal observed the Applicant give evidence at the Hearing. Although clearly emotional at times, she gave direct and concise answers to the questions asked. She gave, in the opinion of the Tribunal, honest and direct testimony. In short, she was a witness of credit.
It was tolerably clear to the Tribunal, that through a series of events beyond her control, the Applicant and her family were placed in a situation whereby travelling from Taiwan to Australia was difficult, and brought with it a number of problems.
First, the Applicant’s mother was in serious ill health and died on 28 March 2021. For the first year following the Applicant’s travel from Brisbane to Taiwan, she was caring for her terminally ill mother.
Second, the Applicant miscarried in the months following her mother’s death, and suffered emotionally and physically. She required the emotional and practical support of her husband and wider family in Taiwan for both her health and the well-being of her three children.
Third, Australia did not fully reopen its borders and remove quarantine requirements until approximately March 2022, and Taiwan did not do so until October 2022. The Applicant explained to the Department the practical problems she and her family faced with attempting to return to Australia while quarantine restrictions were in place in both Australia and Taiwan – Exhibit 1 T7 p. 39.
Fourth, the Applicant proactively sought the permission of the Department for an offshore pledge of commitment. This is not a matter where the Applicant did not take steps to try to comply with the requirement to make a pledge of commitment in a prompt manner. A reading of the material presented to the Tribunal suggests, on the contrary, that the Applicant was very keen to make the pledge of commitment. In the context of the world-wide restrictions on freedom of movement and assembly, it is not readily apparent to the Tribunal why the Department in such unusual and extraordinary circumstances was not more flexible in dealing with requests such as that made by the Applicant.
In these circumstances, it is not sensible to draw adverse conclusions against the Applicant, as she was placed in an extremely difficult situation and made apparently sincere efforts to comply with the obligation to make the pledge of commitment in a timely manner.
Having regard to all of the above matters, the evidence presented weighs against the discretion to cancel being exercised.
Would the Applicant suffer prejudice if approval of her citizenship is cancelled?
The Minister makes two submissions with respect to this factor.
First, it is pointed out that if the approval is cancelled, the Applicant is not prevented from making a fresh application for citizenship – Joseph and Minister for Immigration and Border Protection [2016] AATA 293 at [31] – Exhibit 3 para 38.
Second, the Minister contends that any prejudice to the Applicant from exercising the discretion to cancel the approval of her citizenship would be minor as she continues to be a permanent resident of Australia – Exhibit 3 para 38. For example, the Minister points out that the cancellation of the approval would not extinguish the right of the Applicant to remain in Australia, or to the travel to and from Australia – Kassem v Minister for Home Affairs [2019] FCA 1196 at [75] – Exhibit 3 para 39.
The Tribunal agrees with both of these submissions, however this does not exhaust the matters that need to be taken into account.
The Applicant’s husband and all three of her children hold Australian citizenship. She is the only member of her family that does not have this status. She is keen to be received, to quote the Preamble to the Act, into the “full and formal membership of the community of the Commonwealth of Australia”.
There is no suggestion having regard to the Applicant’s unblemished history of residing in Australia, that she would be subject to any adverse decisions regarding her right of residence in Australia or her unfettered ability to travel to and from Australia.
Apart from the right, and duty, to vote in elections at all levels of government, citizenship brings with it other rights and duties.
The cancellation of the Applicant’s approval for citizenship would not preclude her reapplying, but there also are no guarantees that she would in fact be approved a second time. This necessarily flows from the fact that ultimately approval is the exercise of a discretion which cannot be fettered in advance.
In addition, reapplying for citizenship would be a costly and time-consuming process, and one, from the perspective of the Applicant, that would entail much emotional energy. The Tribunal observed the Applicant to be a somewhat timid and nervous person, and certainly a person who found the process of administrative review daunting and confronting.
In these circumstances, the Tribunal finds that the cancellation of the approval of citizenship would bring considerable emotional harm to the Applicant and her family. Having regard to the circumstances surrounding the death of the Applicant’s mother and her subsequent miscarriage, any further stress would be counter-productive to her health and the overall well-being of her family.
In these circumstances, the factor also weighs against the exercise of the discretion to cancel the approval of her citizenship.
CONCLUSION
The evidence presented to the Tribunal, as well as the testimony of the Applicant at the Hearing, weighs strongly against exercising the discretion to cancel the approval of her citizenship. The Tribunal, in reaching this conclusion, has had regard to the following matters:
(a)the Applicant left Australia for Taiwan days before Australia’s international borders were closed and then cared for her terminally ill mother. Subsequently she suffered health problems following a miscarriage. The Applicant remained in Taiwan with her husband and children, and returned to Australia on the first day that Taiwan’s international borders opened. The reasons provided for remaining in Taiwan until that date related to her husband’s ability to remain in employment as an airline pilot if he attempted to travel to and from Australia and Taiwan and their children’s education;
(b)the Tribunal is satisfied that the Applicant travelled to Taiwan to care for her mother and after her death, due to travel restrictions and quarantine requirements imposed by Australia (until approximately March 2022) and Taiwan (until October 2022), decided for understandable family reasons to remain in Taiwan. As the Applicant explained, if she returned to Australia with her children and without the ongoing help of her husband and wider family, she would not have coped having regard to her then state of health;
(c)as soon as Taiwan lifted its border and quarantine restrictions, the Applicant and her family travelled back to Australia;
(d)the Applicant was only given one opportunity to take the pledge of commitment. The invitation given to the Applicant only provided three days’ notice. It was impossible, given the restrictions on movement and quarantine restrictions, for her to attend that ceremony;
(e)the Applicant proactively sought to take the pledge of commitment offshore;
(f)that request was denied by the Department, and the rejection of the request was contained in an email that was sent more than seven months after the Applicant had provided the information the Department requested;
(g)in the Department’s email of 1 July 2021, the Applicant was advised that the normal 12 month period for making the pledge of commitment after approval is given, would not apply during the COVID-19 period and that the Applicant “would be provided with a ceremony upon your return to Australia”;
(h)no time period was mentioned in this email, and a reasonable person would form the opinion that when COVID-19 restrictions ended in the Applicant’s then place of residence (i.e. Taiwan) that she would need to return to Australia to make the pledge;
(i)the Applicant did in fact return to Australia immediately upon Taiwan ending its border restrictions;
(j)the Department, without further communications, sent a Notice of intention to consider cancellation of approval for Australian citizenship, ironically on the day the Applicant was travelling to Australia;
(k)that Notice incorrectly stated that the Applicant had been invited to “multiple citizenship ceremonies” and that “Departmental records” showed that she “did not attend these ceremonies”;
(l)it is not clear to the Tribunal how the author of the email could have made such an erroneous statement, as there were no Departmental records that the Applicant has failed to attend “multiple ceremonies”; and
(m)it is tolerably clear that the Notice sent to the Applicant was predicted on a state of affairs that was incorrect, and insofar as that state of affairs was material to the issuing of the Notice, it is likely that the process of cancellation was fundamentally flawed.
As stated above, the Tribunal found the Applicant to be a witness of credit. The Tribunal accepts that throughout she was genuine in her understanding of, and desire to take, the pledge of commitment.
Due to the remarkable and unique situation she, her family, most persons throughout the globe faced, when international borders closed, a series of events unfolded that resulted in her and her family remaining in Taiwan.
It is also clear that the Applicant and her family maintain a close and continuing association with Australia.
The Department’s correspondence and dealings with the Applicant led her to form a belief that she could remain in Taiwan with her family until it was appropriate to travel. That belief was reasonably formed.
It would appear from the evidence, that the Applicant has never attempted to deceive the Department or act in anything other than an honest and reasonable manner. No doubt there were some language problems in her dealings with the Department, but a fair reading of the material presented, suggests that the Applicant tried to honestly and meaningfully engage with the Department. The Tribunal accepts that she did not take for granted the approval given by the Minister and was very keen to make the pledge of commitment. This is a very unusual case, and it is unfortunate that more leeway was not given to the Applicant having regard to her personal circumstances and the confronting issues posed by COVID-19 border restrictions and mandatory quarantine requirements.
At the outset the Tribunal has recognised the centrality of the pledge in the scheme of the Act. However, in this matter, it is manifestly clear, that it would be contrary to the public interest and unfair to the Applicant, if the discretion to cancel the approval of citizenship was exercised.
DECISION
The reviewable decision is set aside, and in substitution, the Tribunal decides that the Applicant’s approval of Australian citizenship is not cancelled.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..................[SGD]..................
Associate

Dated: 14 August 2023

Date(s) of hearing: 5 July 2023

Applicant: In person

Solicitors for the Respondent: Ms E Tattersall
Sparke Helmore Layers

Date(s) of hearing:	5 July 2023
Applicant:	In person
Solicitors for the Respondent:	Ms E Tattersall Sparke Helmore Layers