Pikora and Minister for Immigration, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 1351
•26 May 2022
Pikora and Minister for Immigration, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1351 (26 May 2022)
Division:GENERAL DIVISION
File Number: 2020/1836
Re:Ceylan Pikora
APPLICANT
AndMinister for Immigration, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:26 May 2022
Place:Sydney
The reviewable decision dated 26 March 2020 is set aside and the matter remitted to the Respondent for determination the basis that the Applicant satisfies the criteria that she is a person who ceased to be an Australian citizen to avoid suffering significant hardship.
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Senior Member M J McGrowdie
CATCHWORDS
Citizenship — application by applicant to reinstate Citizenship- applicant attests that she ceased to be a citizen to avoid suffering significant hardship; access to superannuation funds available to the applicant upon giving up citizenship; applicant owed money to ill father in the UK who was in financial need; loans from father repaid by applicant from applicant’s superannuation; delegate’s refusal based on limited information from applicant- reviewable decision set aside and remit
LEGISLATION
Australian Citizenship Act 2007 (Cth) -s29(1)
SUBSIDUARY LEGISLATION
Citizenship Procedural Instructions
CASES
Watagodakumbura and Minister for Immigration and Citizenship [2010] AATA 738.
REASONS FOR DECISION
Senior Member M J McGrowdie
26 May 2022
INTRODUCTION
The Applicant, Ceylan Pikora, was born in the United Kingdom (UK) and is 40 years of age.
She came to Australia when she was 30 years of age and acquired Australian citizenship by Conferral in October 2012. However, in May 2018 she returned to the UK to be with her father who was in ill health. By renunciating her citizenship, she was able to access her accumulated superannuation. She had worked in Australia and was in a marriage relationship which broke down sometime before she departed Australia.
On 18 April 2019 she lodged an application to resume Australian citizenship pursuant to section 29(1) of the Australian Citizenship Act 2007 (the Act).
This application was refused by a Delegate of the Minister on 26 March 2020.
This application is for a review of the Delegate’s decision.
LEGISLATION
Sections 29(1) and (2) of the Act relevantly provides that a person is eligible to become an Australian citizen again if the person ceased to become an Australian citizen to avoid suffering significant hardship.
The Revised Citizenship Procedural Instructions (CPI) provides guidance to decision-makers in determining applications for restoral of citizenship.
CPI 27 refers to persons who have renounced citizenship to avoid significant hardship or disadvantage. In this regard what a person has stated in their application for renunciation will be relevant to whether the grounds in s.29(1) are made out. The Policy accepts that there may be a combination of reasons.
On her application for renunciation the Applicant said that it was her intention to return to the UK indefinitely to be with family. She also stated that she was trying to claim her superannuation and couldn’t do that without ceasing to be an Australian citizen.
DELEGATES DECISION
The Delegate was not satisfied that the Applicant relinquished her Australian citizenship to avoid suffering significant hardship or detriment but rather was a personal choice.
The Applicant has argued that she owed her father money that he previously loaned to her and that she needed to return that money and assist him financially due to his ill health and she wanted to be in the UK to help him. He was living alone in rental accommodation. She was also living alone in rental accommodation in Sydney, close to the airport where she worked in ground traffic control. She had a car on lease and was able to meet daily living expenses. Her former partner was no longer contributing to the budget.
Certainly, the information that came before the Tribunal was far more extensive than that available to the Delegate.
ISSUE
The primary issue is whether the Applicant ceased to be an Australian Citizen to avoid significant hardship.
Closely related to this, is whether the Applicant relinquished her citizenship previously to gain access to her superannuation funds to manage the financial circumstances that she found herself in.
DISCUSSION
The evidence does disclose that the Applicant’s father did advance her sums of money. For example, there was an amount of nearly £4,000 British Pounds in February 2016 and £6,000 British Pounds in the period April 2013 to April 2016. The Applicant’s father was formally diagnosed with lymphoma in November 2018. However, according to the Applicant’s evidence, he had been ill for a period for quite some time before the diagnosis was made.
The Applicant’s superannuation was released and received by the Applicant in November 2018. On 23 November 2018 the Applicant paid £10,000 to North London and Her for her father’s medical bills which had accumulated. On 23 November 2018 she paid £9,000 British Pounds to her father by way of reimbursement of money that her father had advanced to her.
It is clear that at the time of lodging her application for renunciation of citizenship in April 2018 her father had lent her significant sums of money.
I accept that well prior to the diagnosis of cancer her father received in November 2018, he was an ill man and looking to his daughter to help him out physically, emotionally and financially.
The impression I formed of the Applicant was that she was a decent and responsible person and doing the best she could. She did have a well-paying job at the airport however she suffered a marriage breakdown and loss of financial contributions to her daily expenses from her ex-partner.
She rented a unit close to the airport because of the hours she worked and leased a BMW motor vehicle so that she had a well-made, safe and reliable car. She struggled to make the payments. True she could have lived more cheaply or leased a less expensive car. The fact though is that she could not be said to have been a spendthrift or been frivolous in her spending.
There was extensive cross-examination of the Applicant’s spending habits including the purchases of fast food and health products. The Applicant could have been more frugal with her spending but in my view her spending and expenses were not excessive. She was not on “the bread line” but had no means of accumulating the sort of money she owed to her father other than through her superannuation, moneys she felt compelled to repay him when he was in reduced financial circumstances because of his illness. There were two letters from the Applicant’s father which supported the Applicant’s contentions.
The Applicant’s return to the UK was because her father was ill. She could have returned without relinquishing her Australian citizenship but needed to relinquish her Australian citizenship to gain access to her superannuation to repay her father. The Applicant applied to have her citizenship restored when things had resolved in the UK and her father was managing. It is my view that the Applicant valued her Australian citizenship but had to give it up through necessity or to put it in the terms of the legislation, to avoid significant hardship.
Even though the Applicant may have been able to access some social security benefits in the UK these benefits were modest and at best would have assisted her in respect of the basic day to day expenses. Her primary object was to be there and to support her father at a time when he needed funding and she had no means of transferring bulk funds by way of repayment of loans other than through access to her superannuation.
I consider that the combined effects of her marital breakdown, the illness of her father and the need to access her superannuation funds were sufficiently contemporaneous so as to conclude that she needed to access her superannuation to avoid significant hardship. It provided much needed assistance to relieve the pressure on her. Although, thoroughly cross-examined about her bank accounts and missing details regarding accounts, I don’t regard the Applicant as a person who was trying to deceive and accept that she found it difficult to obtain all records particularly due to Covid.
The phrase “significant hardship or disadvantage” is not defined in the Act. In Watagodakumbura and Minister for Immigration and Citizenship [2010] AATA 738 the Tribunal held that “the financial circumstances that the Applicant found himself in could not be categorized as significant hardship”, having regard to the nature of the Applicant’s discretionary spending.
The phrase “significant hardship” is to have its ordinary meaning. It will be a matter of fact and degree in each case.
CONCLUSION
The materials and evidence available to the Delegate was far less than that received by the Tribunal in the course of the hearing.
On all of the evidence available and on the facts of this case, I am satisfied that the Applicant renounced her Australian citizenship to avoid financial hardship and disadvantage.
DECISION
The reviewable decision dated 26 March 2020 is set aside and the matter remitted for determination of her application upon the basis that the Applicant satisfies the criteria that she is a person who ceased to be an Australian citizen to avoid suffering significant hardship.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
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Associate
Dated: 26 May 2022
Date(s) of hearing: 15 March 2021, 19 March 2021, 2 July 2021 Applicant: Ms Ceylan Pikora, self-represented Solicitors for the Respondent: Mr Alexander Zhang, Clayton Utz
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