Khee Jin Ng and Minister for Immigration and Citizenship
[2011] AATA 327
•17 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 327
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2010/4697- 4698
)No 2010/4708- 4711
GENERAL ADMINISTRATIVE DIVISION ) Re KHEE JIN NG, MAY LENG TEO,
FAITH NG, MARK NG,
CHRISTIAN NG, JORDAN NGApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member
Mr W Evans, MemberDate17 May 2011
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision of the respondent dated 17 September 2010 .
(sgd) Mr S Penglis..
Senior Member
CATCHWORDS
Citizenship – failure to make pledge of commitment to become Australian citizens within 12 months of application being approved – discretion exercised to cancel approval for citizenship for failure to make a pledge of commitment within time for reasons other than a “prescribed reason”, namely as a result of the applicants not advising that they had changed address – open to applicants to return to Australia under existing visas, satisfy the residence requirements for citizenship and make fresh application for citizenship - decision to cancel the approval for citizenship affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – sections 21(2)(g), 22, 25 and 26
Australian Citizenship Regulations 2011 (Cth) – regulation 7
Migration Act 1994 (Cth) – section 82
CASES
Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933
REASONS FOR DECISION
17 May 2011 Mr S Penglis, Senior Member
Mr W Evans, Member1. These applications were heard together and relate to decisions by the respondent’s delegate dated 17 September 2010 to cancel the applicants’ approval for citizenship due to their failure to make a pledge of commitment within time.
2. The applicants are all members of the same family: the first applicant being the husband of the second applicant, and both the parents of the remaining four applicants.
3. The facts of this matter are not in contention.
4. The issue before the Tribunal arises because the applicants were unaware of the requirement to pledge their commitment within 12 months of their applications for citizenship being approved until after the relevant 12 month period had expired and they received a letter from the Department of Immigration and Citizenship (Department) advising that their approvals had been cancelled.
5. This is notwithstanding that various letters were sent by the Department to each of the first and second applicants reminding them that the pledge of commitment must be made within 12 months of the citizenship approval.
6. Unfortunately for the applicants, those letters were not received by them because they had by then returned to Singapore, but without informing the Department of their change of address.
7. This is so notwithstanding that the online application form for citizenship signed by the first applicant and the second applicant clearly states under the heading “Current Residential Address” “please notify the department if your address changes after you lodge this form”.
8. The first applicant and second applicant did notify the City of Nedlands of their change of address, the City of Nedlands being the relevant authority organising and holding citizenship ceremonies which the applicants intended to attend. In this regard, the first applicant gave the following evidence (which was not challenged and which the Tribunal accepts):
“1.Not long after receiving the approval of our application for citizenship on 3 September, the Ng family were required to relocate to Singapore on 6 December 2009 due to a sudden change in work circumstances.
2.Since receiving news of the approval of our Australian citizenship application on 3 September, we have been in constant contact with the City of Nedlands, the convenor of the Citizenship Ceremony for the suburb we live in, with regards to postponing our attendance due to our relocation.
3.We had our mail from our home at 54 Viking Road, Dalkeith, WA 6009, rerouted to us in Singapore for 2 months from 6 December till 6 February.
4.The Department sent 2 letters (16 April 2010 and 6 August 2010) to the Ng Family to seek a response as to why we had not taken the Pledge of Commitment.
5.As no response appeared to be forthcoming from the Ng Family, our application for Australian citizenship was subsequently cancelled (Your Ref: 71033070450, 17 Sept 2010).
6.As the mail diversion service to our Singapore address had expired in February 2010, the Ng family did not receive all 3 letters from the Department of Immigration and Citizenship until late September when a friend who was coming to Singapore brought the mail to us.”
9. On 29 October 2010, the applicants applied to the Tribunal for a review of the decisions made by the delegate of the respondent dated 17 September 2010 to cancel their approvals for Australian citizenship.
Legislative framework
10. Set out below are the respondent’s submissions with respect to the applicable legislative framework and which the Tribunal hereby adopts:
“18.A person whose application for Australian citizenship by conferral has been approved by the Minister must make a pledge of commitment to become an Australian citizen pursuant to s 26 of the Australian Citizenship Act 2007 (the Act).
19.The Act confers on the Respondent (or other decision-maker) a discretionary power to cancel an approval for citizenship given to a person under s 24. This is because s 25(1) states that “the Minister may…. cancel an approval…” (emphasis added). (See also s 33(2A) of the Acts Interpretation Act 1901).
20. The Respondent may cancel an approval if the person has:
20.1 not become an Australian citizen (s 25(1)(a));
20.2failed to make a pledge of commitment within 12 months after the day on which they received notice of the approval (s 25(1)(b) and s 25(3)(a)); and
20.3failed to make a pledge of commitment within time for reasons other than a “prescribed reason” s 25(3)(a).
21.The “prescribed reasons” are set out in Regulation 7 of the Australian Citizenship Regulations 2007 (the Regulations). They include being unable to make a pledge within time on account of:
21.1 being overseas for medical treatment unavailable in Australia;
21.2 being unexpectedly hospitalised while overseas;
21.3being overseas to care for a person who was critically ill to make funeral or other arrangements; and
21.4 government administrative error.
22.There is therefore a discretion to cancel an approval for citizenship where the prescribed reasons are not met.”
11. The respondent submits that the discretion to cancel an approval where the “prescribed reasons” are not met is a general discretion, guided only by the objects and purpose of the Act. The Tribunal agrees.
12. In Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933, Senior Member Britton stated (at [26]) that “while the Act provides some flexibility for persons who are unable to make the pledge within time, the prescribed reasons are narrow in scope and do not extend to situations such as those that confronted [the applicant], where the inability to make a timely pledge is caused by the need to travel overseas for business or employment reasons.”
13. In Budhathoki, the Tribunal (at [11]) proposed several factors to be taken into account when exercising the Minister’s discretion to cancel an approval under s 25 (1) of the Act. They were:
(a)the steps taken by the Department to notify the applicant of the pledge requirement;
(b)the reason he failed to make the pledge within time;
(c)the applicant’s understanding of the requirement; and
(d)any prejudice that he might suffer if the approval is cancelled.
Analysis
14. The reason why the applicants were unable to make a pledge within time clearly falls outside of the “prescribed reasons” set out in Regulation 7. Given that, the respondent’s discretion to cancel the approvals for citizenship was therefore enlivened. Indeed, that is not a matter that was disputed by the applicants. The sole issue before the Tribunal was whether the discretion ought to have been exercised in the way that the respondent’s delegate in fact exercised it.
15. Turning then to the first three of the four matters identified by the Tribunal in Budhathoki, it is important to note that this is not a case where the applicant’s failure to appreciate the need to fulfil the pledge requirement within 12 months was as a result of any inaccurate information being provided to them by the Department. This is therefore a case where the applicants were simply unaware of the law in this regard, and not as a consequence of anything done or omitted to be done by the Department.
16. Moreover, although the relevant 12 month period was not noted in the standard approval letter sent to the applicants by the Department – something which the Tribunal strongly recommends be addressed by the Department – the Department did take subsequent steps, well prior to the expiration of the relevant period, to notify the applicants of this requirement. The fact that those steps did not come to the attention of the applicants in time was through no fault of the Department, and was solely as a result of the applicants’ failure to notify the Department of their change of address.
17. Turning then to any prejudice that the applicants might suffer if the approval is cancelled, no evidence was initially adduced by the applicants on the issue of prejudice. When the first applicant was asked by the Tribunal, in evidence, what prejudice the applicants pointed to, the first applicant said that the applicants will be prejudiced if the reviewable decision is not set aside as they (or at least some of them) will not be eligible for a fresh grant of citizenship due to their age.
18. The applicants all hold Class BB subclass 155 (Resident Return) visas valid until June/July 2013: this varies among the family members. This is a permanent visa and allows the holder to leave and re – enter Australia as often as they want within the validity period of the visa. At all times the visa holder maintains their status as a permanent resident. By section 82 of the Migration Act, 1994 (Cth), if the holder of such a visa is in Australia at the end of the period specified in the visa, the visa does not ‘cease to be in effect” unless and until the holder leaves the country.
19. All of the applicants thus have the right to return and permanently reside in Australia until the expiration of their visas. Moreover, if they return to Australia prior to the expiration of their visas, they will be entitled to continue to permanently reside in Australia after the expiration of their visas so long as they do not leave the country until they have gained citizenship.
20. The applicants may also be able to apply for a further Resident Return visa if they have a pressing need to leave Australia after June/July 2013 but before becoming Australian citizens.
21. In that regard, there is no dispute that there is no bar on the applicants applying for Australian citizenship again in the future. It is accepted by the respondent that the applicants will have to again satisfy the residence requirements under s 22 of the Act. What that will require of the applicants (in general terms) is to be present in Australia for the period of 4 years immediately before the date of the application, save that the applicants may be absent from Australia for not more than 90 days in the 12 months immediately before the date of the application.
22. The Tribunal also notes in this regard section 21(2)(g) of the Act, which requires applicants for citizenship to have a genuine intent to remain in Australia. The Tribunal is thus entitled to assume that the applicants have such an intention. Indeed, the first applicant gave evidence that “We have lived in Australia for over 5 years. Our four children have spent their childhood in Perth and see themselves as Australians and speak like Australians, having lived the Australian lifestyle and imbibed the values. Although we are now temporarily overseas, we see ourselves returning as soon as we are able to”.
23. Accordingly, there is nothing (including their age) to stop the applicants returning to Australia, re-satisfying the residence requirements of the Act and making fresh applications for citizenship. In the absence of any material change to their personal antecedents, there is no reason to believe that any such future applications for citizenship will not be successful. The applicants will then have a further 12 months in which to undertake their respective pledges.
24. After the hearing of this matter, pursuant to leave granted by the Tribunal to do so, the following written submissions as to prejudice were filed on behalf of the applicants.
“1 The Applicants contend that, contrary to the Respondent's assertion, they will be prejudiced by the cancellation of the approval for citizenship as it will no longer be possible for them to meet the critieria (sic) to reapply for Citizenship as they will not be able to meet the Australian residency requirement as they now reside in Singapore.
2 The Respondent has erred in stating that the Applicants have resided in Singapore since 3 September 2009. The correct date should be 7 December 2009.
3 The Applicants are not able to show more specifically their intention to reside in Australia not because they have no intention to do so but because of their current circumstances, namely employment status in Singapore and are, therefore, unable to provide a clearer and more specific date.
4 As the Applicants' Resident Visas will expire in June/July 2013, it will be difficult, if not impossible to seek an extension, thus making it impossible to return to and reside in Australia again.
5 However, evidence of their desire and connection to Australia has already been amply and sincerely demonstrated in their having resided continuously in Perth for over 5 years from September 2004 until 6 December 2009.
6 Furthermore, the period of the Applicants' residency has resulted in emotional bonds being built up through friendships and also having adapted to the Australian way of life. This is especially true for the Applicants' 4 children who have spent the better part of their childhood living and being schooled in Australia. As a result, the children, and indeed all the Applicants, see themselves as 'Australian', notwithstanding the fact that they may not be officially so.
7 It may be of interest that Applicant Khee Jin Ng has contributed not insignificantly to the cultural life of Australia. In 2006, while still residing in Perth, he produced an Independent Documentary Feature entitled Feet Unbound. The feature-length film was accepted in competition at the world's most prestigious documentary film festival - 19th International Documentary Film Festival Amsterdam (IDFA) 2006 and more than 20 other international film festivals subsequently. The achievement was recognised with a travel grant from the Australian Film Commission and was later screened at the Sydney and Adelaide Film Festivals in 2007. The film was considered significant enough and a permanent copy now resides in the National Film and Sound Archive, Australia. The Applicant humbly urges the Tribunal to take this into consideration in the Appeal.
8 For all the reasons stated above, cancellation of the approval for citizenship will prejudice the Applicants both materially and emotionally. The Tribunal should therefore reverse the decision to cancel the approvals of Khee Jin Ng, May Leng Teo, Faith Ng, Mark Ng, Christian Ng and Jordan Ng.”
25. By this the Tribunal understands the applicants to submit that, because of their present situation (details of which have not been provided to the Tribunal), the applicants may not be able to return to resume living in Australia before June/July 2013 (ie before their visas expire). The inherent difficulty with that as a ground for prejudice is that the nature of Australian citizenship requires the applicants to generally intend to remain in Australia. Similarly, it is difficult to see how issues such as friendships and emotional bonds can properly be said to be prejudice where the applicants have chosen to interrupt those friendships and temporarily break those bonds so as to return to Singapore and in circumstances where they cannot presently say when they will be returning to Australia or even if that will be before mid-2013 (ie over 2 years from now).
26. In the absence of any evidence to the contrary, the Tribunal concludes that the applicant’s decision to return to Singapore, the reason why they are still living in Singapore and their inability to identify when they will return to Australia are all as a result of choices the applicants have made and for reasons associated with the employment of one or more of the applicants in Singapore. That is of course, a matter for the applicants, but it does not result in prejudice sufficient to justify exercising the discretion so as to not cancel the approvals.
27. In the end, the Tribunal concludes that it is appropriate to exercise the discretion to cancel the approvals. In reaching that conclusion, the Tribunal has had particular regard to the following:
(a) the Department took appropriate steps to notify the applicant of the timing requirement;
(b) the applicants’ failed to make the pledge within time because they were not aware or the requirement to do so, which would not have been the case had they informed the Department of the change of address and received the Department’s letters;
(c) the only prejudice (if it can properly be described as such) that the applicants will suffer if their approval is cancelled is, in effect, that they will have to return to Australia before July 2013, again satisfy the residence requirements under the Act, re-apply for citizenship and, once approved, take the pledge within the requisite period. Given the very nature of what is at the heart of this application, namely, Australian citizenship (which means the applicants must genuinely intend to remain in Australia) it is difficult to see how that is a prejudice which ought to operate so as to cause the respondent’s discretion to be exercised in favour of the applicants.
Result
28. It therefore follows that the reviewable decision must be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member
Signed: (sgd).T. Chater
AssociateDate of Hearing 20 April 2011
Date of Decision 17 May 2011
Counsel for the Applicant Self Represented
Counsel for the Respondent D Estrin
Solicitor for the Respondent Australian Government Solicitors
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