Samra and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Samra and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4275 (9 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/7177
Re:Gurdeep Dylan Singh Samra
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:9 December 2022
Place:Sydney

The decision under review is set aside and remitted to the Respondent for reconsideration in accordance with the following directions:
(a)the Ministerial discretion related to cancellation of the Applicant’s grant of citizenship on 30 September 2019 should not be exercised; and
(b)the Applicant should be given the opportunity to make the Pledge of Commitment at the earliest possible date.

.....................................[sgd]................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – cancellation of citizenship approval – whether applicant intends to reside or maintain a close and continuing relationship with Australia – applicant satisfies intention to reside requirement – where applicant failed to take the pledge of commitment within 12 months of approval – discretion enlivened to waive pledge requirement – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 22, 23A 25, 26
Australian Citizenship Regulation 2016 (Cth) reg 9
Cases
ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Minister for Home Affairs v G [2019] FCAFC 79
Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474
Secondary Materials
Australian Institute of Health and Welfare, “Homeownership and housing tenure”, Australian Institute of Health and Welfare (Article, 2 August 2022) < Flynn, “Air Canada suspends Australian flights, closes Singapore Suite lounges”, Executive Traveller (Article, 19 March 2020) < Yun, “Major airline resumes flights to Australia” Yahoo! Finance AU (Article, 14 September 2021) < v Minister for Immigration and Citizenship [2009] FCA 494
Prime Minister and Ministers for Foreign Affairs and Home Affairs (Cth), ‘Border Restrictions’ (Media Release, 19 March 2020)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 December 2022

Mr Gurdeep Samra (the Applicant) has applied to this Tribunal for a review of a decision by a Delegate of the Minister (the Respondent) to cancel his originally approved grant of Australian citizenship by conferral.
The salient facts are:
(a)in December 2001 the Applicant first arrived in Australia;
(b)on 22 September 2018 the Applicant applied for Australian citizenship by conferral;
(c)on 30 September 2019 that application was approved;
(d)on 21 October 2019 the Applicant left Australia;
(e)prior to 9 September 2021 the Applicant failed to attend a citizenship ceremony and undertake the Pledge of Commitment;
(f)on 9 September 2021 the Respondent cancelled the Applicant’s previous approval of the grant of citizenship;
(g)on 3 October 2021 the Applicant lodged an appeal against that decision with this Tribunal; and
(h)on 28 November 2022 the application was heard in the Tribunal with the parties appearing via the Microsoft Team platform.
The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Act) and the Australian Citizenship Regulation 2016 (Cth) (the Regulation). Further guidance in the process of decision-making is contained in the Citizenship Procedural Instructions 10 (Cancellation of Approval and Delay Making the Pledge) and 11 (Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia).
The Tribunal notes that the CPIs are not law or delegated legislation. They are policy guidelines only[1] and they are certainly not in any way legally binding on the Tribunal.[2]
[1] Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474 at [18]; ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
[2] Minister for Home Affairs v G [2019] FCAFC 79.
Citizenship – a three stage process
Under section 21 of the Act a person may make an application for Australian citizenship by conferral. That section sets out eight general criteria each of which must be met by an applicant before an application can be approved (unless certain exemptions, none of which are relevant in these circumstances).
Inherent in meeting the section 21 general eligibility criteria is a requirement that an applicant must be able to pass the Citizenship Test which is set provided for in section 23A and the associated regulations.
If both the criteria are satisfied and the test completed successfully, an applicant must make a Pledge of Commitment as provided for by section 26 of the Act within a 12-month period from the citizenship application being approved.
Where a person has met the criteria, passed the citizenship test, but failed to make the pledge of commitment within 12 months, the Minister may revoke the grant of citizenship (Act s 25(3)(a)).
Section 25 of the Act relevantly provides:
Minister may cancel approval
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.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
…
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
…
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.
The cancellation decision
On 6 October 2020 the Respondent wrote to the Applicant advising that:
“As you have not made a Pledge of Commitment at a citizenship ceremony within 12 months of the date your citizenship application was approved, the approval of your citizenship may be cancelled under subsection 25(3) of the Act unless one of the following circumstances prevented you from attending your ceremony:
You were overseas undergoing medical treatment that was not available in Australia;
You were unexpectedly hospitalised, while overseas for a purpose unrelated to medical treatment;
You were overseas to 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.”
The Respondent went on:
“Furthermore, it has come to the department’s attention that you may no longer satisfy the eligibility criteria for Australian citizenship by conferral because, from the information currently available to me, it appears that you are not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.”[3]
[3] Tribunal documents (T-documents) at 151-152.
The Applicant then advised the Department of his circumstances addressing these two areas of concern.[4] Correspondence followed, comprising the Respondent’s requests for further information from the Applicant and the Applicant’s responses.[5]
[4] Ibid at 155-158.
[5] Ibid at 164-169, 170-175, 186 and 189-208.
On 9 September 2021 the Respondent cancelled the approval of the Applicant’s citizenship application.
In its statement of reasons, it determined:
“On 30 September 2019 you were approved for conferral of Australian citizenship on the basis that you meet all the requirements set out in subsection 21 (2) of the Australian Citizenship Act 2007 (the Act), however you have not yet make a pledge of commitment and have not become an Australian citizen under section 28 of the Act.
You no longer meet al l the requirements for conferral of Australian citizenship because you are not likely-to reside or continue to reside in Australia, or maintain a close and continuing association with Australia. I have therefore decided to cancel the approval of your application in accordance with subsection 25(2) of the Act.”[6]
[6] Ibid at 77.
The statement of reasons concluded:
“I am satisfied that you have not made a pledge of commitment and become an Australian citizen in accordance with section 28 of the Act.
I have found that you no longer meet all the eligibility requirements for conferral of Australian citizenship under section 21 (2) of the Act because you are not likely to reside in or maintain a close and continuing association with Australia.
I have therefore decided to exercise the Minister's discretion under section 25 of the Act to cancel the approval of your application for citizenship by conferral given to you under subsection 24(1) on 30 September 2019.”[7]
[7] Ibid at 80-81.
The decision under review is that decision made by the Delegate on 9 September 2021 as is made clear by the Respondent’s Statement of Facts, Issues and Contentions (SFIC) (at [53]).
There is some inherent difficulty in coming to grips with the gravamen of the Delegate’s decision in that it is based upon a negative finding in relation to subsection 21(2) of the Act which relates to the matter of an intention to reside in, or maintain a close and continuing relationship with Australia. The Delegate states that the cancellation is made “in accordance with subsection 25(2) of the Act”. That subsection relates at 25(2)(b)(ii) to exactly the same matter of a “close and continuing relationship with Australia”.
Although the matter is discussed, nowhere in the Delegate’s decision do they purport to cancel the Applicant’s citizenship approval with specific reference to subsection 25(3) of the Act which relates to the failure to make the Pledge within a 12-month period.
However, in its SFIC the Respondent makes a very specific contention about the Applicant’s failure to make the Pledge (at [51]):
“Accordingly, the Minister submits that the second situation that enlivens the discretion to cancel the approval of a citizenship application—being the applicant's failure to make pledge of commitment within 12 months—is made out.”
Section 25 of the Act clearly provides that an approval may be cancelled if “either of the following 2 situations apply” and then deals first with the residence/association matter and secondly with the Pledge requirements.
In reading the Delegate’s decision it is clear that they held that the first matter was enlivened and while they referenced the failure to make the Pledge within time, they made no specific finding under subsection 25(3) of the Act.
In other words, the Delegate made a finding of fact (the Pledge had not been made) but not a finding of law (that subsection 25(3) had been enlivened).
In that respect, a citizenship approval cancellation on the basis of the failure to meet Pledge requirements does not seem, to the Tribunal, to be a constituent part of the decision under review. Moreover, the Delegate in their decision gives no consideration to the Applicant’s submissions, which were clearly before them,[8] with respect to why the Pledge was not made within the time prescribed. The cancellation decision appears to deal with these submissions only insofar as they relate to the issue of intention to reside/“close and continuing relationship with Australia”. In order to have made a finding under paragraph 25(3)(a) of the Act these representations must have been considered with reference made to the “prescribed” reasons in the Regulation which is clearly referenced in paragraph 25(3)(b) about the Pledge issue. This is a matter of procedural fairness which does not appear to have been accorded to the Applicant.
[8] Ibid at 155-158.
This leaves the Tribunal with a considerable challenge, being whether it should:
(a)confine its assessment to simply the matter of the intention to reside/close and continuing association criterion, being the only one on which the Delegate specifically relied in making their decision; or
(b)take into account a matter which appears to have been implied but not specifically relied upon in the final decision.
It would be tempting to do the former and the Tribunal believes that the basis of the decision under review is a finding regarding subsection 25(2) of the Act only. However, in the event that the Tribunal is in error on this matter, it would be prudent to consider both issues and risk falling into error by not considering the representations in the Respondent’s SFIC.
Life in the time of Covid
The Applicant is a citizen of Canada who first arrived in Australia in 2001 when he was some seven years of age. He made further visits in 2005 and 2008 and then arrived on a more permanent basis in September 2012. At the time, and to date he has held a Return Resident (Class BB, Subclass 155) visa.
His pattern of residency in Australia has thereafter been as follows:[9]
·3 September 2012 – 28 June 2013;
·10 August 2013 – 20 March 2016;
·30 March 2016 – 14 July 2017;
·6 December 2017 – 8 April 2019;
·26 September 2019 – 21 October 2019; and
·26 December 2021 – to date.
[9] Annexure A to Respondent’s SFIC.
It will be recalled that on 22 September 2018 the Applicant applied for Australian citizenship, and although he was subsequently absent from Australia from 8 April 2019 to 26 September 2019 (approaching six months), he was back in Australia prior to 30 September 2019 when his application for citizenship was approved.
The evidence is that the Applicant’s return to Australia for the brief period of 26 September to 21 October 2019 was specifically arranged to allow him to sit for the Citizenship Test and complete his citizenship interview on 30 September 2019.
The Applicant then left Australia some three weeks later on 21 October 2019. He then remained overseas from that date to 26 December 2021, a period in excess of two years.
Throughout this period the Applicant was approached by the Respondent to for him to attend a citizenship ceremony and make the Pledge of Commitment which is the final element to be fulfilled to acquire citizenship by conferral.
The Applicant was offered the chance to participate in such ceremonies on 11 December 2019 and 2 March 2020.[10] He did not attend either as he was offshore.
[10] Ibid at 151.
A third ceremony was proposed on 27 April 2020, but this ceremony was cancelled by the Department due to the impact of COVID-19 restrictions.[11]
[11] Ibid at 144.
As a result of COVID-19 impacts, the Department moved to initiate a series of “virtual” citizenship ceremonies and the Applicant was invited to indicate his interest in participating in such a fashion, which he did on 25 April 2020.[12]
[12] Ibid at 146.
The problem however is that such “virtual” ceremonies were only open to approved applicants who were currently resident in Australia. The Departmental notification stated:
“At this stage we can only accommodate virtual ceremonies for clients who are currently in Australia. If you return to Australia you can contact this mailbox and we will endeavour to arrange a virtual ceremony for you at this time.”[13]
[13] Ibid at 148.
The matter of non-attendance at these ceremonies will be discussed further below.
It is important to understand the circumstances which resulted in the Applicant being overseas for the prolonged period between 21 October 2019 and 26 December 2021.
In the first instance the Applicant left in order to spend some four months with his parents and grandparents in Canada. It is his evidence that he sought to make arrangements to return to Australia sometime in March 2020. This was almost exactly at the time that the Australian Government closed its international borders. Such an announcement was made on 19 March 2020, to take effect as from the following day.[14]
[14] Prime Minister and Ministers for Foreign Affairs and Home Affairs (Cth), ‘Border Restrictions’ (Media Release, 19 March 2020).
Although the Applicant was entitled to return given his permanent resident status, the question then became one of flight availability. The Applicant’s travel records show that he primarily travelled between Sydney and Vancouver on flights operated by Air Canada.[15] In March 2020 Air Canada announced the suspension of its flights from Vancouver to its Australian destinations commencing in April.[16]
[15] Annexure A to Respondent’s SFIC.
[16] David Flynn, “Air Canada suspends Australian flights, closes Singapore Suite lounges”, Executive Traveller (Article, 19 March 2020) <>
The Applicant then attempted to find flights back to Australia via New Delhi and there is evidence before the Tribunal of at least one such flight having been booked for November 2020.[17] The Applicant informed the Tribunal that it was, however, not possible to secure flights from New Delhi back to Australia and this is not contested by the Respondent.
[17] T-documents at 205-205.
In October 2020 there was a significant death in the family, and the Applicant felt a need to remain with his family at that time. Later, in accordance with the Applicant’s adherence to the religious traditions of the Sikh community, October 2021, being the one-year anniversary of that death, occasioned a significant family event at which he again felt he needed to be present.
In the interim, the Applicant sustained a serious injury to his hand on 8 July 2021 which necessitated surgery and a prolonged period of follow-up physiotherapy treatment. The medical evidence supporting these claims is before the Tribunal and is not a matter of dispute.[18]
[18] Applicant’s Submission dated 15 July 2022, Attachments 22 to 32A.
Complicating matters further, the Applicant’s passport was due to expire on 29 April 2020 and he was unable to renew it because of the closure of the passport offices by the Canadian Government during the COVID-19 pandemic.[19]
[19] Applicant’s Submission dated 15 July 2022, Attachment 5; T-documents at 111. This passport was a temporary one-year replacement of a previously damaged passport.
Finally, the Applicant indicated to the Tribunal that due to a “pre-existing” medical condition, namely severe bronchitis, the Applicant was cautious about seeking flights back to Australia on certain airlines or via certain third countries, fearing that exposure to COVID-19 would have particularly serious consequences for his health.[20]
[20] T-documents at 10.
In September 2021 Air Canada announced the resumption of its flights to Australia commencing on 17 December 2021.[21] On 5 December 2021 the Applicant booked a return flight to Australia leaving Vancouver on 24 December 2021 and arriving in Sydney on 26 December 2021.[22]
[21] Jessica Yun, “Major airline resumes flights to Australia” Yahoo! Finance AU (Article, 14 September 2021) < Applicant’s Submission dated 6 December 2021, Attachment T.
In short, the Tribunal finds that the Applicant was, due to a force majeure event, unable to return to Australia at an earlier time than he did. It finds that he made reasonable attempts to do so but was frustrated in his efforts by both the unavailability of flights; the injury he suffered and the need for ongoing treatment; his legitimate concerns about his health related to travel arrangements; and the proper concern to attend to his family responsibilities.

No adverse findings should arise as a result of the Applicant’s conduct and his absence from Australia in the relevant period.
The subparagraph 25(2)(b)(ii) issue
The Respondent asserts that the Applicant is not likely to reside or continue to reside in Australia and/or does not have a close and continuing association with Australia.
As can be seen from the wording of the subsection (supra), it contains three distinct elements, namely, a future intention to reside, an intention to continue to reside and a close/continuing association with Australia. The use of the conjunctive or makes it clear that if any one of these three elements is met, then the requirement of the subsection is fulfilled.[23]
[23] Lin v Minister for Immigration and Citizenship [2009] FCA 494 at [108].
The gravamen of the Respondent’s submission is set out in their Amended SFIC (at [32(a)]) as follows:
“The applicant is now claiming that he is "not going to jump into an unrealistic property market with the largest investment of his life" and that the "Respondent is pushing me into purchasing a property". The respondent accordingly understands that the applicant does not intend to purchase property in Australia in the immediate future. While the respondent accepts that owning a property is not the only factor to be considered when determining whether an applicant is likely to reside or continue to reside in Australia, the applicant's own evidence since July 2021 was that he was going to do so, presumably in an attempt to show he would be residing in Australia permanently. The fact the applicant's intention have now changed is a matter for the applicant.”
What the Respondent does not seem to acknowledge is the nature of the housing market in Australia (and in Sydney in particular) and the sea-change which has taken place in the last generation in relation to home ownership.
According to latest Australian Bureau of Statistics (ABS) data, in 2021 there were some 9.8 million households in Australia, of whom 31% (2.9 million) were renters.[24] The same data shows the proportion of renters in the private rental market increasing from 18% in 1994/95 to 26% in 2019/20. Further, the proportion of renters compared with homeowners in the cohort aged 25 to 35 years (the Applicant’s) cohort was 40.7% homeowners to 55.7% renters.
[24] Australian Institute of Health and Welfare, “Homeownership and housing tenure”, Australian Institute of Health and Welfare (Article, 2 August 2022) <>
It was the Applicant’s evidence that he has access to funds (via his parents) in the vicinity of Canadian $880,000.00 ($A 960,000.00) for the purchase of a property in Australia,[25] and this was confirmed in the oral evidence given by the Applicant’s mother in the Tribunal hearing.
[25] Applicant’s Submission dated 15 July 2022, Attachment 11.
The Applicant’s mother (Mrs Jasvindar Samra) and his uncle (Mr Jasvir Gill) both gave sworn evidence to the Tribunal that they had been active in looking for suitable properties to buy both in Melbourne and more latterly in Sydney but had taken the decision not to invest in property at this stage in the expectation that (Sydney) prices would decline significantly in the immediate months ahead. This is, in the Tribunal’s opinion, a well-based and rational assumption – to the extent that anything is “rational” in the Sydney housing market.
In the meantime, the Applicant has entered into a series of short-term leases for periods of between one and three months but is looking to find premises with a longer (six to twelve-month) lease period.
The Tribunal notes that this was exactly the same position in which the Applicant presented himself in his original citizenship application of September 2018 which was approved without cavil or qualification by the Respondent in September 2019. The Tribunal detects no apparent disparity between these two situations in terms of their face value.
The Tribunal is satisfied that the Applicant has an intention to reside in Australia and has taken and continues to take appropriate steps to secure both his short-term and longer-term accommodation arrangements.
There is no evidence to suggest that the Applicant does not intend to continue to reside in Australia and the Respondent has proffered no evidence to support a contention that the Applicant intends to relocate to another country of residence.
CPI 11[26] indicates that while this intention might have been called into question because of the Applicant’s request to take the Pledge while overseas, the Tribunal is satisfied that this was for legitimate reasons as outlined above. The CPI also indicates that the Applicant’s intentions might be called into question were they to indicate a likelihood of residing outside Australia or migrating or working overseas, after obtaining citizenship. In this case there are no such indications.
[26] CPI 11 at 3.2.
None of the other factors listed for consideration in CPI 11 at 3.3 would establish a basis for believing that the Applicant did not intend to remain in Australia after any grant of citizenship.
Having found that the Applicant satisfies one of the limbs of paragraph 25(2)(b) of the Act, it is not necessary for the Tribunal to make a finding on the question of maintaining a close and continuing relationship with Australia.
The Pledge problem
Although raised in the Delegate’s formal record of decision, that decision (being the matter before the Tribunal) made no finding in relation to subsection 25(3) of the Act, namely cancellation because of the Applicant’s failure to take the Pledge of Commitment within a 12-month period of the initial grant of citizenship. The Minister’s power is this regard is discretionary, the Minister “may” proceed to a cancellation on this basis.
Matters for consideration in this respect are dealt with in CPI 10.
There were a number of occasions when the Applicant was invited to attend a ceremony where the Pledge could be made:
(a)on 11 December 2019 the Applicant was out of the country;
(b)a further opportunity presented on 2 March 2020. Again, the Applicant was out of the country however he maintains that had he been aware of this date “I would have made arrangements to arrive back to attend the Citizenship ceremony”.[27] The Applicant claims that, in his original application he had “consented to communicate electronically” with the Department and hence expected to receive notification of matters such as citizenship ceremonies in this fashion. In the event, the Respondent sent to relevant invitation to the Applicant at a postal address, being that of his uncle and aunt in Macquarie Links, NSW. It was the sworn evidence of both those parties (Jasvir and Herdip Gill) that mail addressed to the Applicant received at their home remained unopened for variety of reasons. There is no reason for the Tribunal to doubt that was the case, although it would have been prudent for those parties to at least advise the Applicant of mail addressed to him having been received by them, either in order to be forwarded or to be otherwise acted upon. In the event that did not happen. There was also no electronic communication to the Applicant, as he had requested, and, as a result the Tribunal accepts that the Applicant was unaware of the date of the second citizenship ceremony;
(c)the proposed Ceremony on 27 April 2020 was cancelled by the Respondent due to the impact of the COVID-19 pandemic; and
(d)the Respondent notified the Applicant of the availability of “virtual” citizenship ceremonies; the Applicant indicated his interest in attending such an event,[28] however virtual ceremonies were only accessible by persons currently residing in Australia.
[27] Applicant’s Statement of Facts, Issues and Contentions at [5].
[28] T-documents at 146.
Paragraph 25(3)(b) of the Act provides that a waiver of the normal Pledge requirements may be contemplated provided that the reasons for an Applicant’s non-compliance are covered by the conditions provided for by regulation. The regulation in question is the Australian Citizenship Regulation 2016 (Cth) (the Regulation). Regulation 9 of the Regulation provides:
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 Tribunal is satisfied that the provisions of regulation 9 of the Regulation are sufficiently applicable to this application as to enliven its beneficial intentions.
In the first place the Tribunal notes that the impact of COVID-19 restrictions in both Australia and Canada are relevant considerations under paragraph 9(3)(a).
The medical treatment which the Applicant undertook as a result of his hospitalisation and the undertaking of physiotherapy (post-operative) treatment within the same clinical environment touch on subparagraphs 9(3)(a)(i) and (ii).
In relation to subparagraph 9(3)(a)(iv) the Tribunal notes the Applicant’s evidence in relation to the death of his relative and the Sikh traditions which attend upon marking the first anniversary of that death. The wording of that subparagraph (“other associated arrangements”) indicates that the test of its application should not be confined to the burial, disposal, exposure or interment of corporeal remains, but that in our multicultural society they encompass an even wider range of the obsequies of death.
Any one of the subparagraphs of paragraph 9(3)(a) may establish grounds for enlivening its provisions.
The Applicant is now in a position to make the Pledge of Commitment at any stage when the opportunity next arises (reg 9(3)(b)(ii)).
The Applicant has argued that there was “administrative error” on the part of the Respondent (pursuant to regulation 9(4)(a)(i) of the Regulation) by not advising him electronically of the date of the March 2020 ceremony. In the absence of having before it the original citizenship application and being able to determine the extent to which there was a proper understanding that communication with the Department would be in electronic form only, the Tribunal cannot make any such finding, which might or might not be open to it.
The Tribunal accepts that the Applicant has provided to the Respondent a signed statement of facts, supported by written evidence to meet the requirements of subregulation 9(5). In this respect, material filed by the Applicant on 6 December 2021, 11 March 2022, 15 July 2022 and his SFIC are all relevant.
The Tribunal finds that the Applicant is entitled to the beneficial provisions of regulation 9 of the Australian Citizenship Regulation 2016 (Cth) and its provisions should be exercised in his favour.
Conclusions
On 30 September 2019 the then Minister wrote to the Applicant congratulating him on the success of his application for Australian citizenship.[29]
[29] Annexure C to the Respondent’s original SFIC dated 27 May 2020.
It follows that all the requirements imposed by the Act under sections 21, 22 and 23A were satisfied.
The doubts which have been raised by the cancellation of the citizenship award under subparagraph 25(2)(b)(ii) have been found not to be valid.
The final citizenship requirement in section 26 (the Pledge) has not been met, but regulation 9 of the Regulation is enlivened so as to bring about a situation in which the Applicant should be accorded the further opportunity to complete this requirement at the earliest possible occasion.
Under these circumstances the Ministerial discretion contained in section 25 of the Act should not be used adversely to the Applicant.
DECISION
The decision under review is set aside and remitted to the Respondent for reconsideration in accordance with the following directions:
(a)the Ministerial discretion related to cancellation of the Applicant’s grant of citizenship on 30 September 2019 should not be exercised; and
(b)the Applicant should be given the opportunity to make the Pledge of Commitment at the earliest possible date.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...........................................[sgd].............................
Associate
Dated: 9 December 2022

Date(s) of hearing: 28 November 2022

Applicant: In person

Solicitors for the Respondent: Ms C Saunders, MinterEllison

[2022] AATA 4275

9 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	28 November 2022
Applicant:	In person
Solicitors for the Respondent:	Ms C Saunders, MinterEllison