Joseph and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 293

Joseph and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 293 (6 May 2016)

Division	GENERAL DIVISION
File Number	2015/2678
Re	Johnson Joseph
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	6 May 2016
Place	Adelaide

The decision under review is affirmed.

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Senior Member R W Dunne

CATCHWORDS

CITIZENSHIP - Applicant approved for conferral of Australian citizenship - applicant overseas caring for person critically ill - cancellation of approval when applicant failed to make a pledge of commitment within 12 months after date of approval - decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(2), 22(1) and 25(1) and (3)

Australian Citizenship Regulations 2007 (Cth), Reg 7(3) and (5)

CASES

Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth), Issued 1 July 2014

REASONS FOR DECISION

Senior Member R W Dunne

6 May 2016

INTRODUCTION

1. Mr Johnson Joseph (“applicant”) was approved for conferral of Australian citizenship on 13 February 2014, on the basis that he met the requirements of s 21(2) of the Australian Citizenship Act 2007 (Cth) (“Act”).

2. A delegate of the Minister cancelled the applicant’s Citizenship approval on 5 May 2015.  The delegate found that the applicant was not likely to reside in or maintain a close and continuing association with Australia, for the purposes of s 25(2)(b)(ii) of the Act.

3. The applicant has applied to this Tribunal for a review of the delegate’s decision.

4. At the hearing, the applicant was self-represented and Ms C Stokes (from the Office of the Australian Government Solicitor) appeared on behalf of the respondent Minister.  I received into evidence the T-Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   ·undated copy of letter from Dr Roy Mathew at Medical Trust Hospital provided to the Tribunal on 23 July 2015;[2]

   ·undated copy of report from Dr Roy Mathew at Medical Trust Hospital provided to the Tribunal on 29 September 2015;[3]

   ·undated copy of report from the Medical Trust Hospital received at the Tribunal on 19 October 2015;[4] and

   ·copy of statutory declaration of applicant, dated 5 August 2015.[5]

   [1] Exhibit R1.

   [2] Exhibit A1.

   [3] Exhibit A2.

   [4] Exhibit A3.

   [5] Exhibit A4.

   ISSUES FOR THE TRIBUNAL

5. The issues to be determined by the Tribunal are:

   (a)Was the applicant’s reason for failing to make his pledge of commitment within 12 months after the day on which he received notice of the approval one that is not prescribed by the Regulations?

   (b)If the applicant’s reason for failing to make his pledge is one that is not prescribed in the Regulations, should the Tribunal exercise the discretion in s 25(1) of the Act to cancel the applicant’s citizenship approval?

6. Having regard to the additional material that has come to light since the delegate’s decision, the respondent accepts that the application satisfies s 25(2)(b)(ii) of the Act.

   LEGISLATIVE AND POLICY BACKGROUND

7. Under s 25 of the Act, approval of citizenship given under s 24 may be cancelled in prescribed circumstances.  Section 25 relevantly reads:

   “(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.

   …

   Effect of cancellation

   (5)If the Minister cancels an approval given to a person, the approval is taken never to have been given.

   Note:A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.”

8. Regulations under Australian Citizenship Regulations 2007 assist in the interpretation of the Act.  The Regulations relevantly read:

   “7  Prescribed reasons for failing to make pledge of commitment

   …

   (3)Subject to subregulation (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 that period, the person was overseas:

   (i)        for medical treatment that was not available in Australia; or

   (ii)for a purpose unrelated to medical treatment, 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 subregulation(3) or (4), a person has a prescribed reason only if the person gives the Minister:

   (a)a signed statement to support the claim that includes 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.”

   AUSTRALIAN CITIZENSHIP INSTRUCTIONS

9. The Minister has issued the Australian Citizenship Instructions (“Instructions”).  The Instructions have been adopted by the Minister to provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.  The Instructions reflect Government policy and are not binding on the Tribunal.  However, the Tribunal should have regard to the Instructions unless there are cogent reasons not to do so.[6] 

   [6] Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, at 645.

10. Relevantly, the Instructions provide:

    “5.27.8  Minister may cancel approval (s25)

    Under s25, approval of citizenship given under s24 of the Act may be cancelled in prescribed circumstances.

    …

    In the case of people who are required to make a pledge of commitment, approval may be cancelled if the person has not made the pledge within 12 months of receiving notice of approval. The approval may not be cancelled if the reason for failing to make the pledge is one of the prescribed reasons given in regulation 7.

    …

    Before an approval of an application for Australian citizenship is cancelled because of failure to make the pledge, a notice of intention to cancel must be sent. This would usually be sent 9 months after notification of approval and would provide the client with a final opportunity to make a pledge.

    You should only proceed with the cancellation of approval if no satisfactory response is received and the person has been given adequate opportunity to respond.

    5.27.9Prescribed reasons for failing to make pledge of commitment (reg 7)

    Regulation 7(5) means that if a person has failed to make a pledge for a reason covered by reg 7(3) or (4), and the person has not provided a signed statement and supporting evidence in accordance with reg 7(5), there is no prescribed reason which would prevent consideration being given to cancellation of their approval.”

    MATERIAL FACTS

11. The applicant was born in India.  He first arrived in Australia in 2010 and was granted a subclass 887 (permanent) visa on 7 February 2012.  After he was approved for conferral of Australian citizenship, on 10 June 2014 the applicant was invited, but did not attend, a citizenship ceremony as he was overseas. 

12. On 29 September 2014, the applicant was invited to attend another citizenship ceremony on 11 December 2014.  On 3 November 2014, the applicant emailed the Department to advise that he was overseas and on 6 November 2014 he again emailed the Department to advise that he was unable to attend the ceremony scheduled for 11 December 2014, “due to some family commitments (medical emergency)”.

13. On 31 December 2014, the applicant emailed the Department to advise that he would be returning to Australia in January 2015.  On 23 January 2015, by letter the Department invited the applicant to comment on an intention to cancel his citizenship approval.  The applicant responded on 29 January 2015 by advising that he had booked a return ticket to Australia and would arrive on 12 February 2015.  On 11 February 2015, the applicant further advised that he had to return to India to care for his mother who was sick with a brain haemorrhage.

    APPLICANT’S EVIDENCE

14. It was the applicant’s evidence that his mother lived in India.  She had a history of hypertension and diabetes mellitus.  She also had a history of over-eating junk foods and needed 24 hour supervision.  On 30 January 2014, there had been a medical emergency.  She was critically ill with a cerebral haemorrhage and was in hospital.  On 14 February 2014, the applicant returned to India to attend his mother.  She was bedridden and needed two adults to care for her.

15. On 3 March 2014, on her doctor’s recommendation, the applicant’s mother left the hospital and went home.  She still needed assistance for eating and had to sit up in bed eating small portions of food, which were cut up for her.  On 21 September 2014, her doctor carried out a review of her condition.  He reported that her condition was improving and although she was receiving physiotherapy and massage, she still needed assistance.

16. In July 2015, the applicant’s brother (a farmer) and his wife looked after their mother.  She was still in need of care and remained totally dependent on others for all her care needs.

    CONSIDERATION

    Is the applicant’s reason for failing to make his pledge of commitment within 12 months after the day on which he received notice of approval one that is not prescribed by the Regulations?

17. The applicant’s citizenship approval was granted under s 24 of the Act because he satisfied the requirements of s 21(2).  However, at the time of the delegate’s decision to cancel the approval the applicant had not made a pledge of commitment.  To this end, he provided a statutory declaration dated 5 August 2015[7] explaining why he failed to make his pledge of commitment within 12 months after the day on which he received notice of the approval.  The applicant said:

    “I have moved overseas on 14^th February 2014, to attend my ailing mother, who had an episode of cerebral haemorrhage. She was also under treatment for acute hypertension and diabetes mellitus for two years. Since she was completely bed ridden for nearly a year, as per my doctors advise, I stayed back in overseas, to attend to her daily needs, along with my wife. Even though my plan to return to Adelaide was in August 2014, I could not come back due to this. When my mother gradually recovered, and as per my doctor’s advise, when she can manage with one person for her daily care needs, I returned to Adelaide on 12^th February 2015. My family came back to Adelaide on 24^th July 2015.” [sic]

    [7] Exhibit A4.

18. The applicant also provided two letters from Dr Roy Mathew of the Medical Trust Hospital.  The first letter read:[8]

    “This is to certify that Thankamma Joseph (DOB 25 May 1936) M/o Mr Johnson Joseph is under my treatment for acute hypertension and Diabetes Mellitus for last few years. She had an episode of acute cerebral haemorrhage on January 30^th 2014.

    She is completely bedridden and need full assistance for all her ADLs. Mr Johnson Joseph and family is looking after her for last one year.

    She is gradually improving and at this stage she needs supervision attending her care needs.”

    [8] Exhibit A1.

19. The second letter stated:[9]

    “This is to certify that Thankamma Joseph (DOB 25 May 1936) M/o Mr Johnson Joseph is under my treatment for acute hypertension and Diabetes Mellitus and hypertension for last five years. Recently she had an episode of acute cerebral haemorrhage on 30^th January 2014.

    Her management in this facility comprised of both acute and rehabilitative phase. Mrs Thankamma Joseph was acutely ill for the first two weeks of admission. She was completely bedfast these days due to transient loss of neuromuscular activity of her Right side and needed full assistance for all her ADLs.

    In the acute phase of illness she was admitted in the High Dependency Unit and needed X2 people assistance all the time. Family was taking care of her since she got admitted in the hospital.

    Within four weeks Mrs Joseph’s condition improved and she has been transferred to home. Even though she has been transferred from the hospital she still needed assistance of a fulltime carer at home which was provided by her family.

    Regular follow ups were maintained until 2015 May. The medical board is satisfied as Mrs Joseph has regained her health in whole in all her faculties. She has been actively discharged from the facilities records since 30/01/2015.

    Mr Johnson Joseph and family is looking after her for last one year. She is gradually improving and at this stage.  She needs super vision in attending her care needs.”

    [9] Exhibit A2.

20. The two letters were not signed by Dr Mathew, but were expressed to be electronically generated and no signature was needed.  However, the letters both indicated that Dr Mathew could be contacted in an emergency and his contact number was given.  Dr Mathew’s letters, the report below from the Medical Trust Hospital and the applicant’s statutory declaration all together can show, if need be, why Regulation 7(5) may be said to be satisfied.

21. In addition to the letters from Dr Mathew, a report was received from the Medical Trust Hospital.  The report reads:[10]

    [10] Exhibit A3.

    “Findings and advises about Mrs. Thankamma Joseph: DOB- 25^th May 1936;

    As on January 2014.

    An outpatient with history of Acute Hypertension and Diabetes Mellitus;

    On Antihypertensive Drug from March 2009 onwards as prophylaxis

    On Human Mixtard Insulin 40 IU/1 ml QID

    Unable to weight bear-need 1Xassistance in all her care needs and in mobility

    History of over eating of junk foods – need supervision 24 hrs

    Unable to cook-need assistance

    Assistance in show as unable to weight bear and shaky.

    From 30th January 2014-2^nd March 2014

    An acute care patient critically ill with Cerebral Haemorrhage and past history of acute hypertension and chronic Diabetes Mellitus

    Paralysis on Rt side due to transient loss of neuro muscular activity resulted from Cerebral Haemorrhage

    Completely bed ridden with X2 assistance 24 hourly for all care needs and with social activities

    Unable to walk, dress up, shower and, groom,

    Slowly eat using left hand, unable to chew lump/hard foods needs supervision due to chocking risk

    Bystanders need to cut up her foods into chewable size, assist in feed if very slow, soft diet recommended.

    Still on Antihypertensive drugs and regular administration of Insulin

    Advised regular physiotherapy and Ayurveda Massage

    From 3^rd March 2014 upon discharge from hospital

    Mrs.Thankamma Joseph admitted in this hospital in a critically ill condition after a Cerebral Haemorrhage advised discharge from hospital to her home for further physiotherapy and Ayurveda massage treatment under constant supervision from family physician and the therapy specialists.

    She still remains in a critically serious condition until further assessment by the Neurologist. Initially she is put on a six month therapy assessment. All her medications remain the same in this period.

    Assessment findings 21st September 2015

    Mrs.Joseph has improving her health condition, started walking with x2 assistance. She responded well to physiotherapy and massage, started moving her fingers. Still she remains in a serious condition with constant supervision in all her daily needs. She is having difficulty in swallowing remains in a high choking risk.

    Completely bed ridden with X2 assistance always for all care needs and with social activities

    She is unable to walk without x2 assistance,

    Need complete assistance in dressing up, having shower, grooming, shopping, preparing meals, washing dishes, ironing etc

    All her medications needs to be administered in strict supervision, if finding difficulty in swallowing mediations need to be crushed.

    She eats slowly using her left hand, unable to chew lump/hard foods needs supervision due to chocking risk. All her food needs to be cut in chewable size, assist in feed if very slow, soft diet recommended.

    Still on Antihypertensive drugs and regular administration of Insulin

    All care needs to be extended for at least 6 months until further assessment by the doctor.

    Advised Mr. Johnson Joseph, who work as a personal carer in Australia with a certificate 3 in aged care, to remain with his mother Mrs. Joseph, both in hospital and at home, to look after her, his overseas experience in caring industry will benefit Mrs. Joseph.

    Advised Mrs.Binit Tom, w/o Mr. Johnson Joseph, who is a Registered Nurse in Australia, to attend her ailing mother-in-law in all her care needs.  Mrs.Binit will administer all medications prescribed to Mrs. Joseph at home, which can avoid the frequent travel to hospital for the same. She can assess the client on a periodic basis and can update the consultant” [sic].

22. On the evidence, the applicant’s reason for failing to make his pledge of commitment in the 12 month period between 13 February 2014 and 13 February 2015 was because he was caring for his mother.  He said:

    “The reason I went to India was to attend by ailing mother, who was sick due to brain haemorrhage.”

23. In the two letters from Dr Mathew, he said the applicant’s mother “had an episode of acute cerebral haemorrhage on January 30^th 2014.”

24. The report from the Medical Trust Hospital states that:

    (a)in the period from 30 January 2014 to 2 March 2014, the applicant’s mother was an “acute care patient critically ill with cerebral haemorrhage”;

    (b)in the period from 3 March 2014 upon discharge from the hospital, the applicant’s mother was discharged “to her home for further physiotherapy and Ayurveda massage treatment under constant supervision from family physician and therapy specialists.  She still remains in a critically serious condition until further assessment by the Neurologist”;

    (c)in the assessment on 21 September 2014 (which appears to be incorrectly shown as 21 September 2015), the applicant’s mother is “improving her health condition, started walking with x2 assistance.  She responded well to physiotherapy and massage, started moving her fingers.  She still remains in a serious condition with constant supervision in her daily needs.”

25. Thus, on all the evidence, it may be said:

    (a)that the applicant’s mother was critically ill until 2 March 2014;

    (b)that from 3 March 2014 she was able to be discharged from the hospital, but it appears she still remained in a critically serious condition;

    (c)that from 21 September 2014, although remaining in a serious condition, her health condition improved and she was no longer critically ill within the meaning of that expression contained in Reg 7(3)(a)(iii) of the Regulations.

26. The expression “critically ill” is not defined in the Regulations or in the Instructions.  The Oxford Dictionary defines the term “critical” as:

    “   grave, serious, dangerous, risky, perilous, hazardous, precarious, touch and go, in the balance, uncertain, desperate, dire, acute, very bad, life-and-death, life-threatening.”

27. I note from the applicant’s statutory declaration that he returned to Australia from overseas on 12 February 2015. This is the date of his arrival shown in his movement records.[11]  Ms Stokes, for the respondent, contended that the evidence the applicant sought to rely on to meet Reg 7(3)(a)(iii) of the Regulations fell far short of the requisite standard.  In particular, it does not support the claim that his mother was “critically ill” for the entire relevant period (between 13 February 2014 and 13 February 2015).  To the contrary, it demonstrates that her condition was improving.  Apart from the actual time the applicant spent in caring for his mother, it is clear that she was not critically ill for the whole of the time that he was present in India during 2014.  Ms Stokes further contended that there is insufficient evidence to support the claim that the conditions of the applicant’s mother were critical in the relevant period and that the applicant’s reason for failing to make his pledge of commitment within 12 months is one that is not prescribed by the Regulations.  I agree with these contentions.

    [11] Exhibit R1, T6 at p 32.

1. In the end result, the applicant’s claim to avoid cancellation of the approval for conferral of citizenship must comply with the relevant provisions in the Act and the Regulations.  The other documents relating to his employment in Australia, to his family rental arrangements, to his community activities and to the education of his children are not relevant.

   If the applicant’s reason for failing to make his pledge is one that is not prescribed in the Regulations, should the Tribunal exercise the discretion in s 25(1) of the Act to cancel the applicant’s citizenship approval?

2. In paragraph 27 above, I agreed with the respondent’s contention that there was insufficient evidence to support the claim that the applicant’s mother was critically ill during the whole of the period he was overseas in India from 14 February 2014.  From 21 September 2014, it may be said that his mother’s condition was serious.  But it is clear that she was no longer critically ill within the meaning of Reg 7(3)(a)(iii) of the Regulations.  In these circumstances, the applicant’s reason for failing to make his pledge of commitment within 12 months is one that is not prescribed by the Regulations.

3. It follows that the discretion in s 25(1) of the Act should be exercised to cancel the applicant’s citizenship approval.

4. It is open to the applicant to apply for citizenship again.  It would be open for him to satisfy the decision-maker that he is eligible for the conferral of citizenship again.

   DECISION

5. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 6 May 2016

Date(s) of hearing	2 February 2016
Applicant	In person
Advocate for the Respondent	Ms C Stokes
Solicitors for the Respondent	Australian Government Solicitor