Wu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 10
•9 January 2024
Wu and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 10 (9 January 2024)
Division:GENERAL DIVISION
File Number: 2023/1456
Re:Ms Jiayu Wu
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Date:9 January 2024
Place:Brisbane
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the respondent dated 9 February 2023.
..............................[SGD]..........................................
Senior Member B. Pola
Catchwords
CITIZENSHIP – application for citizenship by conferral – where applicant approved for grant of citizenship – where applicant failed to make pledge of commitment within 12 month period and approval of application for citizenship cancelled – whether the discretion should be enlivened to cancel the approval of the application for citizenship – where reason for failing to make pledge not captured in statutory provisions – where respondent provided numerous rescheduling arrangements of citizenship ceremony and applicant understood importance of ceremony – discretion enlivened – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Regulation 2016 (Cth)
Citizenship Act 2007 (Cth)
Evidence Act 1995 (Cth)
Cases
Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Kassem v Minister for Home Affairs [2019] FCA 1196 (2 August 2019)
Secondary Materials
CPI-10 – Cancellation of Approval and Delay Making the Pledge
REASONS FOR DECISION
Senior Member B. Pola
9 January 2024BACKGROUND
On 21 April 2017, the applicant, Ms Jiayu Wu, applied for Australian citizenship by conferral, and on 5 December 2018 the application was approved pursuant to subsection 21(2) of the Citizenship Act 2007 (Cth) (herein referred to as the “Citizenship Act”)[1].
[1] Exhibit TR1, T4, page 89; Exhibit R1, SM1, page 1.
Following approval being granted, on 17 December 2018, the applicant was invited by the Department of Home Affairs (herein referred to as the “Department”) to attend a citizenship ceremony in person on 26 January 2019[2]. For reasons more fulsomely detailed in the latter part of this decision, the applicant did not attend this ceremony, nor several further rescheduled ceremonies held over the period of 21 January 2019 through to 24 May 2021.
[2] Exhibit R1, SM2, page 3; and SM3, page 7.
On 7 July 2021, the Department wrote to the applicant to inform her that the approval for her application for conferral of Australian citizenship was being considered for cancellation and advised the applicant that she had 28 days to respond[3]. On 27 July 2021, the applicant provided a written response in the form of an email.[4]
[3] Exhibit TR1, T13, page 137.
[4] Exhibit TR1, T1, page 8-10.
On 9 February 2023, the applicant was notified of a decision to cancel the approval of her application for Australian citizenship pursuant to section 25 of the Citizenship Act[5].
[5] Exhibit TR1, T2, page 17.
On 6 March 2023, the applicant applied to the Administrative Appeals Tribunal (herein referred to as “Tribunal”) for review of the decision to cancel the approval of her application for Australian citizenship.
JURISDICTION
Subsection 52(1)(c) of the Citizenship Act provides that an application may be made to the Tribunal for review of a decision made pursuant to section 25 of the Citizenship Act. It follows that the Tribunal has jurisdiction to review this application.
RELEVANT LEGISLATIVE PROVISIONS
The applicant’s eligibility for conferral of Australian citizenship is not in contention in this matter, and as stated in earlier reasons it was approved on 5 December 2018 by the Minister pursuant to subsection 24(1) of the Citizenship Act, on the basis that the applicant met the general eligibility requirements pursuant to subsection 21(2) of the Citizenship Act.
The approval of the conferral of citizenship is part of two necessary steps to become an Australian citizen under the Citizenship Act. The final step relates to pledging loyalty to Australia and its people. The preamble to the Citizenship Act provides:
“… The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia…”
[Tribunal bolding for emphasis]
Subsection 26(1) of the Citizenship Act provides for the pledge of commitment to be made to become an Australian citizen, with section 27 of the Citizenship Act prescribing how the pledge is made, and section 28 of the Citizenship Act providing that the day on which Australian citizenship begins once the pledge of commitment is given.
The Tribunal refers to the observations in the Full Federal Court decision of Grass v Minister for Immigration and Border Protection[6] (herein referred to as “Grass”) where their Honours noted the following with respect to the administrative practice regarding the pledge of commitment as the final step in obtaining Australian Citizenship:
“… 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 of Immigration and Border Protection and of the Department of Immigration and Citizenship (as it then was) 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…”
[6] [2015] FCAFC 44 at [20].
Relevant to the present application, subsection 25(3) of the Citizenship Act provides the Minister with the power to cancel an approval given to a person under section 24 of the Citizenship Act if they fail to make a pledge of commitment. Relevantly, the provision provides:
“… 25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
…
(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…”
With respect to the prescribed reasons for why a person has failed to take a pledge of commitment within the legislated 12-month timeframe, discretion is applied through a legislative instrument, the Australian Citizenship Regulation 2016 (Cth) (herein referred to as “Regulations”). Section 9 of the Regulations set out the prescribed reasons for failing to make a pledge of commitment, and are transposed for ease of reference:
“… 9 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…”
I note the Full Federal Court decision in Grass, where their Honours considered the application of the Minister’s power in applying section 25 of the Citizenship Act[7]:
“…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.
The 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…”
[Tribunal bolding for emphasis]
[7] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [63] and [64].
Whilst the Tribunal is not bound to strictly apply general policy guidance issued by the Government, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[8] (herein referred to as ‘Drake’), where he stated the following:
“In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.”
[Tribunal bolding for emphasis]
[8] [1979] AATA 179; (1979) 2 ALD 634.
With reference to the reasons of His Honour Brennan J in the decision of Drake, the Tribunal will now outline the relevant general policy guidance that has been submitted for consideration and included as part of the Exhibits of this decision in Annexure 1.
The Tribunal has before it an excerpt from the Citizenship Procedural Instructions document (herein referred to as “Procedural Instructions”) issued by the Department with respect to guidance applied in relation to cancelling applications for citizenship by conferral pursuant to section 25 of the Citizenship Act. The excerpt relevant to the application before the Tribunal is from CPI10 – Cancellation of Approval and Delay Making the Pledge, which the Tribunal has transposed:
“… 3. Cancellation of approval – section 25 of the Act
Failure to make the pledge of commitment - subsection 25(3)
A person approved to become an Australian citizen under subsections 21(2) or (4) of the Act and those aged 16 or 17 at the time of making an application and approved under subsection 21(5) of the Act, are required to make a pledge of commitment within 12 months of receiving notification of the approval of their application.
Subsection 25(3) of the Act provides for the Minister to cancel the approval if:
• 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
• the person's reason for the failure is not one that is prescribed by the
Australian Citizenship Regulation 2016 (the Regulation) for the purposes of
the subsection.
The prescribed reasons for failing to make a pledge of commitment are set out in section 9 of the Regulation.
This is a discretionary power and it is expected that decision-makers will make a fair and reasonable decision based on the merits of the individual case.
Subsection 25(4) of the Act sets out the circumstances in which the Minister must cancel the approval given to a child aged under 16 at the time of the application.
Subsection 25(5) of the Act provides that if the Minister cancels an approval given to a person, the approval is taken never to have been given.
…
4. Failure to make a pledge of commitment
If an applicant does not attend a ceremony within 12 months of approval and the Department is considering cancellation, the applicant must be sent a Notice of Intention to Consider Cancellation of Approval (NOICCA).
Applicants who still wish to make the pledge of commitment in order to become an Australian citizen, are requested to respond to the NOICCA with reasons why they did not attend and why the approval of their application should not be cancelled.
The Regulation provides prescribed reasons that will be accepted. However applicants can provide any reasons that are relevant to their circumstances and these must be considered by the delegate when considering cancellations of approval. Applicants must also provide documentary evidence to support their claims.
…
4.4 Non-attendance at a ceremony
Considerations of reasons for non-attendance not prescribed in Regulation
If the applicant responds and provides information that satisfies the delegate that they had compelling or compassionate circumstances that prevented their attendance, the delegate may provide the applicant with another opportunity to attend a ceremony.
All information provided by an applicant in connection with a NOICCA must be considered by the delegate. Delegates are generally expected to proceed to cancel the approval unless the following claimed circumstances exist:
• where an applicant has requested their ceremony be delayed for a
reasonable period (up to 6 months) in order to attend a ceremony with
immediate family members, such as a spouse, partner or child, is to be
supported where possible. This includes where the immediate family
member/s applied at the same time as the applicant or a later date; or
• compelling or compassionate circumstances that prevented a person from
attending the scheduled ceremony may be given weight by a delegate.
Under policy, compelling or compassionate circumstances may include but are not limited to:
• an illness or health condition to themselves or a family member such that
the person cannot attend the scheduled ceremony; or
• where an applicant has been prevented from travelling to their home
country to resolve personal affairs due to travel restrictions or serious
illness and the delegate is satisfied that the applicant is required to remain
a citizen of that country until the affairs are resolved.
…
Under policy, a reasonable period is up to 6 months…”
ISSUE
The applicant’s eligibility for conferral of Australian citizenship is not in contention in this matter. The issue for consideration before the Tribunal is whether or not the discretion should be enlivened to cancel the approval of the applicant’s citizenship application pursuant to subsection 25(1) of the Citizenship Act, due to the applicant failing to make a pledge of commitment within 12 months after the day on which she received notice of the approval, and the reason for the failure was not one prescribed by regulations for the purposes of satisfying subsection 25(3) of the Citizenship Act.
The above consideration involves the Tribunal determining:
(a)Whether the applicant failed to make a pledge of commitment within 12 months of the day she received notice of approval from the Minister; and
(b)If so, was the reason for failing to make a pledge of commitment in accordance with section 9 of the Regulations (pursuant to subsection 25(3)(b) of the Citizenship Act)?
(i) If a reason was not given in accordance with section 9 of the Regulations, should the Tribunal exercise its discretion to cancel the approval of the applicant’s Australian citizenship?
CONSIDERATION
The application was heard in Brisbane on 27 September 2023. The applicant was self-represented, and the respondent was represented by Ms Gabrielle Ho of Clayton Utz. Both parties appeared by video conference, as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal heard oral submissions from the applicant and the respondent’s representative.
The Tribunal considered the submitted evidence outlined in the Exhibit Register, marked as “Annexure 1” of these reasons. At the conclusion of the hearing, it was determined that both parties would be given an opportunity to provide written closing submissions, to not only summarise their final closing positions, but also to address a number of questions which arose during the course of the hearing. The respondent provided their written closing submissions on 27 October 2023, and the applicant provided their written closing submissions on 24 November 2023.
Applicant’s background
The applicant gave evidence to the Tribunal that she had moved to Australia some 17 years ago, from China. The applicant is the only child of her two parents, who continue to reside in China.
The applicant has resided in Queensland since she first arrived in Australia in 2007, and resides with a friend, whom the Tribunal will refer to as Ms X. In the evidence before the Tribunal, the applicant in various correspondence with the respondent has stated that she lived with her “sister”, who the applicant clarified for the Tribunal was actually her friend, Ms X (who is not of any relation to the applicant, given that the applicant is an only child)[9].
[9] Transcript 27 September 2023, p 6, lines 4-6.
The applicant told the Tribunal that she is employed in a permanent role as a property accountant for a real estate agent where she has worked for the past six years. She also told the Tribunal that she had recently purchased her own property and that she has plans to move into this property, and will soon be moving out of where she presently resides. The applicant told the Tribunal that she had hoped to bring her mother and father to Australia at the end of 2023 to celebrate Chinese New Year.
The applicant gave evidence that her decision to become an Australian citizen is not a light decision, particularly for those who are of Chinese nationality, as Chinese nationals are not able to be dual-national citizens, as they forgo their Chinese citizenship when becoming an Australian citizen.
The applicant told the Tribunal that she successfully applied for a Resident Return Visa in July of 2023, and this has allowed the applicant to travel freely in and out of Australia.[10]
[10] Transcript 27 September 2023, page 8, lines 16-19.
Consideration of issues before the Tribunal
Did the applicant fail to make a pledge of commitment within 12 months of the day she received notice of approval?
Subsection 25(3)(a) of the Citizenship Act provides that a person has failed to make a pledge of commitment within 12 months after the day on which they received notice of their approval.
Section 163 of the Evidence Act 1995 (Cth), provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
During the course of the hearing the applicant confirmed she received her approval letter from the respondent notifying her of approval of Australian citizenship by way of post, with the letter dated 5 December 2018[11]. With respect to the application of the above-mentioned Act, the Tribunal determines that the applicant received notice of her approval letter on 13 December 2018.
[11] Exhibit R1, SM1, pages 1 and 2.
The Tribunal finds that the 12-month period for the applicant to make the pledge of commitment, commenced on 13 December 2018 and ended on 13 December 2019. This relevant period was put to both the applicant and respondent at the hearing, and it was agreed[12].
[12] Transcript 27 September 2023, page 19, lines 21 to 23.
It is abundantly clear on the evidence before the Tribunal that the applicant was invited to attend a citizenship ceremony on numerous occasions to make her pledge of commitment during the relevant period, however this did not occur.
Therefore, the Tribunal finds the applicant failed to make a pledge of commitment within 12 months of the day she received notice of approval of her Australian citizenship.
With respect to the applicant’s letter of approval for Australian citizenship, it is worth noting that it contained a warning with respect to the implications if a pledge of commitment was not undertaken within 12 months, which the applicant accepted[13]:
“… Please be aware that if you do not attend a ceremony and make a Pledge of Commitment within 12 months of the date your citizenship application was approved, the approval of your application may be cancelled…”
Was the reason the applicant did not make the pledge, one which is prescribed by section 9 of the Australian Citizenship Regulation 2016?
[13] Exhibit R1, SM1, page 1.
The Tribunal has reviewed the evidence before it and found there to be eight citizenship ceremonies the applicant was invited to but did not attend, with reference to the following dates:
(i)26 January 2019;
(ii)20 February 2019;
(iii)29 April 2019;
(iv)8 August 2019;
(v)25 October 2019;
(vi)26 January 2020;
(vii)29 October 2020; and
(viii)24 May 2021.
The Tribunal notes that the invitations extended by the respondent to the applicant on 26 January 2020, 29 October 2020, and 24 May 2021 were outside the relevant 12-month period of 13 December 2018 to 13 December 2019 which both parties confirmed at the hearing[14].
[14] Transcript 27 September 2023, page 19, lines 21 to 23.
With respect to the eight citizenship ceremonies the applicant was invited to and did not attend, and given the relevant considerations in section 9 of the Regulations which sets out the prescribed reasons for failing to make a pledge of commitment (transposed in earlier reasons); the Tribunal is satisfied that the Applicant did not satisfy any of the following prescribed reasons in the relevant regulation:
(a)regulation 9(2), as the minister did not make a determination pursuant to subsection 26(3) of the Citizenship Act;
(b)regulation 9(3)(a)(i), as there is no evidence before the Tribunal that the applicant was unable to make a pledge of commitment because they were overseas receiving medical treatment that was not available in Australia;
(c)regulation 9(3)(a)(ii), as there is no evidence before the Tribunal that the applicant was unexpectedly hospitalised when they were overseas;
(d)regulation 9(3)(a)(iii), as there is no evidence before the Tribunal that the applicant was overseas to care for a person who was critically ill;
(e)regulation 9(3)(a)(iv), as there is no evidence before the Tribunal that the applicant was overseas for a funeral or other associated arrangements; and
(f)in turn, regulation 9(3)(b) is not relevant to the applicant.
Regulation 9(4) in section 9 of the Regulations sets out that a prescribed reason for failing to make a pledge of commitment is that a person could not make a pledge because of an administrative error or omission made by the Commonwealth, a State or Territory, an authority of the Commonwealth, an authority of a State or Territory, or a local government authority.
As outlined in earlier reasons of this decision, there has been confusion as to some ceremonies the applicant had been invited to. On reflection of the evidence, it is the Tribunal’s view that this confusion has largely been borne out of the respondent seeking to accommodate the applicant’s requests to make a pledge of commitment at an alternate ceremony for reasons not prescribed in the relevant regulations as set out above.
With respect to the invitation extended to the applicant on 2 March 2020, which was cancelled, the Tribunal is satisfied that this was done in the context of public health measures during the COVID-19 pandemic. The Tribunal accepts that organising citizenship ceremonies during this period would have been difficult and the offer of a virtual citizenship ceremony was not unreasonable. The applicant indicated that it was her preference to attend an in-person citizenship ceremony. The Tribunal does not regard the cancellation of the citizenship ceremony on this date as an administrative error.
With respect to the invitations relating to 17 September 2020, and 1 April 2021, the Tribunal notes the respondent no longer seeks to rely on the applicant’s non-attendance of these citizenship ceremonies[15].
[15] Exhibit R3, page 3, paragraph 5(c) and (d).
The Tribunal has found that there were eight invitations extended to the applicant to make the pledge of commitment for which she did not attend. With respect to regulation 9(4), the Tribunal is satisfied that there has been no administrative error or omission made with respect to the Commonwealth, a State or Territory, an authority of the Commonwealth, an authority of a State or Territory, or a local government authority.
The Tribunal is satisfied that the applicant did not satisfy any of the prescribed reasons set out in section 9 of the Regulations.
Should the Tribunal exercise the discretion to cancel the applicant’s approval of Australian citizenship?
In considering whether discretion ought to be applied in the cancellation of an applicant’s approved Australian citizenship, it is important to note that the Citizenship Act does not provide guidance as to the considerations that are relevant in applying such discretion.
In the decision of Budhathoki and Minister for Immigration and Citizenship[16] (herein referred to as “Budhathoki”), Senior Member Britton helpfully considered this, and the Tribunal refers[17]:
“… 9. The Act provides no express guidance as to the factors to be taken into account when exercising that power. Accordingly the subject matter, scope and purpose of the statute must be considered: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 per Mason J.
10.The Act does not contain an objects clause. Read as a whole, it is apparent 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.
11.There is no issue that Mr Budhathoki is otherwise eligible to become an Australian citizen and is willing to make a pledge of commitment. The sole issue to be determined is whether the power to cancel the approval should be exercised given his failure to make a pledge within time. In my view, the following factors are relevant to that decision: (1) the steps taken by the Department to notify Mr Budhathoki of the pledge requirement; (2) the reason he failed to make the pledge within time; (3) Mr Budhathoki’s understanding of the requirement; and (4) any prejudice he might suffer if the approval is cancelled…”
[Tribunal bolding for emphasis]
[16] [2009] AATA 933 (4 December 2009).
[17] Ibid [9] to [11].
Although it is not an exhaustive approach, the approach taken in Budhathoki is a helpful starting point for the consideration of factors that are relevant in the application of discretion in cancelling an applicant’s Australian citizenship. Therefore, the Tribunal will consider the following factors with respect to the applicant:
(a)the steps taken by the respondent to notify the applicant of the pledge of commitment requirement; and
(b)the reason the applicant failed to make the pledge of commitment requirement within time; and
(c)the applicant’s understanding of the pledge of commitment requirement; and
(d)any prejudice the applicant may suffer if the approval of their Australian citizenship is cancelled.
The steps taken by the respondent to notify the applicant of the pledge of commitment requirement
There is no doubt that the respondent had put the applicant on notice as to the time limit requirement to undertake a pledge of commitment at a citizenship ceremony, and this is with reference to the following communications provided to the applicant:
(a)A letter sent to the applicant on 5 December 2018, with respect to the notification of approval of Australian citizenship, which clearly stated, “… Please be aware that if you do not attend a ceremony and make a Pledge of Commitment within 12 months of the date your citizenship application was approved, the approval of your application may be cancelled…”[18].
(b)A letter sent to the applicant on 17 December 2018, with respect to an invitation to attend a citizenship ceremony, which clearly stated, “… If you do not attend a citizenship ceremony and make a Pledge of Commitment within 12 months from the date when your citizenship application was approved, the approval of your application may be cancelled…”[19].
(c)A letter sent to the applicant on 25 October 2019, which was a reminder letter to the applicant for attendance at a citizenship ceremony which clearly stated, “… If you do not make a Pledge of Commitment at a citizenship ceremony within 12 months of the date you received notice of the decision to approve your application, the approval of your application may be cancelled…”[20]. The applicant in evidence before the Tribunal confirmed she had received this invitation[21].
(d)A letter sent to the applicant on 12 November 2020, which was sent to the applicant with respect to the non-attendance of a citizenship ceremony on 29 October 2020, which clearly stated, “… If you do not attend a ceremony and make a pledge within 12 months after the day on which you received notice of your approval, we could cancel the approval of your citizenship application…”[22].
(e)A letter sent on 1 June 2021 regarding the applicant’s non-attendance of a citizenship ceremony which the applicant stated she recalled receiving. This letter clearly stated, “… If you do not attend a ceremony and make a pledge within 12 months after the day on which you received notice of your approval, we could cancel the approval of your citizenship application…”[23].
(f)Records before the Tribunal confirm that on 22 November 2019, the applicant called the Department to enquire about an invitation to a citizenship ceremony. The applicant was advised by the Department that her enquiry was unable to be escalated due to the nonattendance of other ceremonies. A note was made that the applicant would be travelling between 19 December 2019 and 6 January 2020[24]. Although the applicant did not recall this interaction during the hearing, she said she accepted that would have been the case, and the Tribunal observes the information given is consistent with the applicant’s evidence regarding international travel during that period[25].
[18] Exhibit R1, SM1, page 1.
[19] Exhibit R1, SM2, page 4.
[20] Exhibit R1, SM7, page 15.
[21] Transcript 27 September 2023, page 18, lines 1 to 11.
[22] Exhibit TR1, T10, pages 131 and 132.
[23] Exhibit TR1, T12, pages 135 and 136; Transcript 27 September 2023, page 26, lines 45 to 47, and page 27, lines[24] Exhibit R1, SM8, pages 16 and 17.
[25] Transcript 27 September 2023, page 18, lines 24 to 44.
The Tribunal is satisfied the respondent appropriately notified the applicant of the pledge of commitment requirement as demonstrated in the examples of correspondence provided to the applicant in the above paragraphs.
The Tribunal is of the view that on reflection of the evidence with respect to this factor, that the circumstances of the applicant weigh in favour of the exercise of the discretion to cancel the applicant’s application for Australian citizenship.
The reason the applicant failed to make the pledge of commitment requirement within time
On reflection of the evidence, it is apparent that the applicant was afforded many opportunities to reschedule her attendance at citizenship ceremonies for a period that exceeded the reasonable period defined in earlier reasons of this decision.
With respect to considering the varying reasons as to why the applicant did not make her pledge of commitment, the Tribunal has determined that the applicant was invited to attend eight scheduled citizenship ceremonies held on 26 January 2019 through to 24 May 2021 (the last invitation was for a citizenship ceremony that was held on a date almost 18 months following the conclusion of the reasonable period, as defined in earlier reasons of this decision).
With respect to the eight invitations sent to the applicant to attend a citizenship ceremony, the Tribunal refers to the summarised reasons of the applicant with respect to their non-attendance:
(a)26 January 2019: email correspondence from 21 January 2019 between the applicant and respondent confirms the applicant requested to reschedule her attendance at this citizenship ceremony on the basis that the applicant was travelling and was unable to attend on the scheduled date[26].
[26] Exhibit R1, SM3, pages 5 to 7.
(b)20 February 2019: email correspondence on 15 February 2019 between the applicant and respondent confirms the applicant requested to reschedule her attendance at this citizenship ceremony on the basis that the applicant wanted her family to attend as they resided overseas and were unable to visit Australia until March 2019. The respondent notified the applicant by way of email that there was no capacity at the March 2019 ceremony and offered a date of 29 April 2019. The applicant replied on the same day and asked if she could instead attend the ceremony on 23 May 2019, which the Department confirmed by way of email[27].
[27] Exhibit R1, SM3, pages 5 and 6.
(c)29 April 2019: the applicant emailed the respondent on 24 April 2019 advising that she was unable to attend the upcoming ceremony on 29 April 2019 due to a work commitment as she was travelling interstate[28]. The applicant requested a citizenship ceremony in July or August 2019 as she wanted her family to attend and witness the ceremony and that they would likely visit in July and August 2019[29].
[28] Exhibit TR1, T1, page 14; repeated at T7, page 125.
[29] Transcript 27 September 2023, page 15, lines 29 to 47; page 16, lines 1 to 19.
(d)8 August 2019: the applicant emailed the respondent on 7 August 2019 requesting that she be allocated a ceremony in January/February 2020, in order for her family to attend[30]. The respondent replied on 8 August 2019, stating that the applicant had been tentatively allocated a ceremony on 26 January 2020, and that she should receive an invitation in approximately two to four weeks prior to the date of the ceremony[31].
[30] Exhibit TR1, T1, pages 12 and 13.
[31] Exhibit TR1, T1, pages 12 and 13; Exhibit R1, SM5, page 9.
(e)25 October 2019: the applicant’s evidence to the Tribunal was that she received the invitation for 25 October 2019 and the letter for not attending the 25 September 2019 ceremony in the post at the same time[32]. The applicant’s evidence to the Tribunal was that she was confused when she received the invitation for this ceremony when she thought she had been allocated a citizenship ceremony in January 2020[33].
[32] Transcript 27 September 2023, page 18, lines 1 to 11.
[33] Transcript 27 September 2023, page 18, lines 13 to 15.
(f)26 January 2020: the applicant emailed the respondent on 19 January 2020 seeking to shift the location of her citizenship ceremony to be at the same venue as that of her friend, who was also due to make a pledge of commitment. The request of the applicant could not be accommodated, and the applicant requested if her and her friend could attend the next citizenship ceremony at the same location[34]. The respondent tentatively allocated a ceremony on 2 March 2020[35].
(i) In earlier reasons the Tribunal noted the citizenship ceremony due to be held on 2 March 2020 was cancelled in the context of public health measures during the COVID-19 pandemic.
(g)29 October 2020: in closing submissions, the respondent attached the relevant invitation which had been sent on 9 October 2020 to the applicant’s personal email from Brisbane City Council[36]. At the hearing the applicant did not recall receiving the invitation and was confused as to the mode of the ceremony as she did not receive a reply to her email of 25 October 2020 (sent to a no reply email of the respondent[37]) requesting to postpone the citizenship ceremony until September 2022[38].
(i)The applicant gave evidence that the reason for her requesting to move her ceremony until September 2022 was due to international travel restrictions and COVID-19. The applicant was concerned as to the impact of COVID-19 on her parents as she is their only child, and at the time she was concerned that if she gave up her Chinese citizenship, and in turn her Chinese passport, she would not be able to return to China should anything happen to her parents[39].
(h)24 May 2021: in closing submissions, the respondent attached the relevant invitation which had been sent on 19 April 2021 to the applicant’s personal email from Brisbane City Council[40]. At the hearing the applicant stated she did not recall receiving the invitation and indicated that it was her preference to attend a citizenship ceremony with family, which had been prevented due to the COVID-19 restrictions[41].
[34] Exhibit R1, SM10, pages 20 and 21.
[35] Ibid.
[36] Exhibit R3, page 3, paragraph 5(d), and Attachment A.
[37] Exhibit TR1, T1, page 11.
[38] Transcript 27 September 2023, page 24, lines 31 to 41.
[39] Transcript 27 September 2023, page 24, lines 43 to 47; page 25, lines 1 to 28.
[40] Exhibit R3, page 3, paragraph 5(d); and Attachment A.
[41] Transcript 27 September 2023, page 27, lines 23 to 31.
With respect to the applicant’s reasons for not attending scheduled citizenship ceremonies, the common theme has been that the applicant was travelling or wanted family or a friend to be present. For the citizenship ceremonies scheduled to be held on 26 January 2019, 20 February 2019, 29 April 2019, 8 August 2019, 26 January 2020, the applicant requested changes very close to the date of each ceremony, in the Tribunal’s view making it difficult for the respondent to accommodate requests (particularly with reference to the request on 26 January 2020).
With respect to the applicant’s request for her family to attend a citizenship ceremony, the Tribunal notes the applicant had written to the respondent as early as 24 April 2019 seeking to reschedule her attendance at a citizenship ceremony to July or August 2019 to accommodate such a request[42]. The respondent accommodated the applicant’s request in accordance with part 4.4 of CPI-10 – Cancellation of Approval and Delay Making the Pledge.
[42] Exhibit TR1, T1, page 14; and T7, page 125.
On 7 August 2019 the applicant emailed the respondent requesting to attend a citizenship ceremony on 26 January 2020 in order to again accommodate her family[43]. The applicant’s family did not ultimately make the trip to Australia in January 2020 (the Tribunal notes there were no travel restrictions in place for entering Australia prior to 1 February 2020 for foreign nationals arriving from China[44]). The Tribunal has had regard to the evidence of the applicant and is satisfied the respondent took reasonable steps to accommodate the applicant’s requests and is of the view that the applicant did not provide compelling reasons for failing to attend the citizenship ceremony scheduled on 26 January 2020.
[43] Exhibit TR1, T1, page 12.
[44] Exhibit R2, page 13, paragraph 34(d).
With respect to the applicant’s reasons for non-attendance of the citizenship ceremony on 25 October 2019 and 24 May 2021, the applicant’s evidence is that she did not receive the invitations. The Tribunal is of the view that this seems unlikely in circumstances where the invitations were sent to the applicant’s personal email that she had been using when corresponding with the respondent.
With respect to the applicant’s reasons for non-attendance of the citizenship ceremony on 29 October 2020, the Tribunal is again of the view that it is reasonable to assume the applicant received this invitation. The Tribunal is of the view that there is no evidence to indicate that the applicant's parents actually faced or would have likely faced a health or other emergency during the COVID-19 pandemic (on the face of the evidence before the Tribunal they were exposed to general public health orders). Further, it was open to the applicant to make the pledge of commitment at any of the ceremonies she was invited to, including during the COVID-19 pandemic.
At the conclusion of the hearing, the Tribunal questioned the applicant as to the reason why the applicant did not prioritise making a pledge of commitment, and refers to the following exchange[45]:
“… Senior Member: Ms Wu, wouldn’t it - sorry, if I may - wouldn’t it make more sense to prioritise the pledge of commitment then trying to fit that in with your own schedule?
Applicant: If you ask me now, yes, I do regret that. I do regret that. But, look, it’s possibly just me taking for granted, because the Department has been very kindly respond to my request and reschedule my ceremony, even though there’s a little bit confusion during the process. I - I - I do think that, well, look, yes, they’ve been very kind to accommodate us. I know that I can’t take advantage of this. But, I mean, I think just by - at the time I was like, okay, so if I can be reallocated - appreciate that very much, and just take the risk - not take the risk, I just take it - take the offer to be reschedule. And if you ask me now, yes, but I just disagree that I don’t have the - no I don’t - I don’t realise that the - the importance of making the pledge. I do. That’s why I make the Department aware of my travel plans - all my plans - and then I explain it along the way that my intentions, and I also - every time I finished with the question mark, ‘is it possible?’ So if it’s not possible, it has come back to me, well then, sure. I understand that…”
[45] Transcript 27 September 2020, page 23, lines 5 to 20.
The Tribunal again refers to the decision of Grass where their Honours observed the following with respect to the discretion is section 25(3) of the Citizenship Act, that[46]:
“…The 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…”
[Tribunal bolding for emphasis]
[46] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [63] and [64].
The Tribunal is of the view that the applicant has chosen to not act promptly by taking up the offer of a rescheduled citizenship ceremony on multiple occasions, particularly after the applicant’s specific requests were accommodated by the respondent.
Further, it is the Tribunal’s view that on reflection of the applicant’s submissions, and actions with respect to the scheduled citizenship ceremonies, that it was the applicant’s preference during the period of the COVID-19 pandemic to delay finalising her citizenship application by choosing not to make a pledge of commitment in order to maintain her Chinese citizenship (which allowed her to visit her parents in China). The Tribunal is of the view that it was the applicant’s reluctance in this regard, given that she elected for personal reasons not to take the pledge of commitment, that resulted in her failure to do so.
For the reasons outlined, the Tribunal is of the view that the applicant has not provided compelling reasons for her failure to attend the scheduled citizenship ceremonies.
The Tribunal is of the view that on reflection of the evidence with respect to this factor, that the circumstances of the applicant weigh in favour of the exercise of the discretion to cancel the applicant’s application for Australian citizenship.
The applicant’s understanding of the pledge of commitment requirement
As found by the Tribunal in earlier reasons, the respondent clearly put the applicant on notice that there was a time-limited final requirement to undertake a pledge of commitment at a citizenship ceremony, in order to obtain her Australian citizenship. The Tribunal is satisfied that the applicant understood the importance of this final requirement[47].
[47] Transcript 27 September 2023, page 12, lines 6 to 33.
The Tribunal has also reflected on the applicant’s submissions with respect to her understanding of the “12-month rule”, with particular reference to an email incorrectly sent to a “no reply email” of the respondent on 26 July 2021, where the applicant stated[48]:
“… In May 2021, I received an invitation again. I called the immigration number 131881. I waited for more than an hour to get to the customer service. I raised my concern of not attending ceremony after 12 months of approval and I was advised the "12 months rule" is suspended till the pandemic is gone or further notice. Unfortunately, I did not ask for a reference number for the call. I was relief to know my application is still valid and I can still be an Australian Citizen…”
[Tribunal bolding for emphasis]
[48] Exhibit TR1, T1, pages 8 and 9.
In this particular matter, the respondent clearly extended offers to the applicant to participate in a citizenship ceremony well beyond the reasonable period, with the final offer of a citizenship ceremony made to the applicant on 24 May 2021, almost 18 months following the conclusion of the reasonable period which the Tribunal found ended on 13 December 2019.
The Tribunal does have sympathy for the applicant’s perspective, when one considers the continual extension of offers of a citizenship ceremony by the respondent to the applicant well beyond the reasonable period, combined with amendments to the way public administration was carried out as a direct result of the public health impacts during COVID-19. However, the Tribunal is satisfied that the applicant was put on notice as to the requirement to take the pledge of commitment within a 12-month period, and the applicant did understand the importance of such a requirement. As such, the Tribunal is of the view that this consideration weighs in favour of the exercise of the discretion to cancel the applicant’s application for Australian citizenship.
Any prejudice the applicant may suffer if the approval of their Australian citizenship is cancelled
The applicant has made submissions with respect to concerns she has if approval for her Australian citizenship is cancelled. The Tribunal refers to the following[49]:
“… Upon receiving this email, I am very concerned and extremely stressed. I am very stressed if the approval to my citizenship application is cancelled that I am no longer able to live in this country. I am worried all my hard work for the last 14 years will be gone and meaningless. I have been working so hard more than a decade to be where I am now, I can't afford losing all these hard works and devastated to think only I have to leave my job and my friends here, as well as disappointed my parents as they always wish to see me becoming a real Aussie and part of this country…”
[49] Exhibit TR1, T1, page 9.
With respect to the applicant’s concerns, the Tribunal refers to the decision of Kassem v Minister for Home Affairs[50], where their Honour Stewart J observed the following with respect to the cancellation of approval for conferral of Australian citizenship:
“In that regard, although a citizen has the right to leave and re-enter the country (Air Caledonie International v Commonwealth of Australia (1988) 165 CLR 462 at 469 per Mason CJ, Wilson, Brennan, Deane, Toohey and Gaudron JJ), an approval for citizenship, which is a necessary precursor to a conferral of citizenship, does not confer that right. Thus, the cancellation of such an approval does not extinguish that right; such rights as the applicant had to remain in Australia did not arise from his approval for citizenship…”
[Tribunal bolding for emphasis]
[50] [2019] FCA 1196 (2 August 2019) at [75].
The Tribunal agrees with the respondent’s submission that there is no evidence to suggest the cancellation of the applicant’s approval for Australian citizenship would impact the applicant’s ability to continue to reside in Australia[51].
[51] Exhibit R2, page 15, paragraph 43.
The Tribunal is of the view that there is limited prejudice suffered by the applicant in circumstances where the Tribunal would cancel the approval of the applicant’s Australian citizenship. The Tribunal again agrees with the respondent’s submissions that the applicant would not suffer any material detriment[52]. On the face of the evidence before the Tribunal, the applicant would be eligible to reapply, provided she satisfies the relevant requirements of the Citizenship Act.
[52] Exhibit R2, page 15, paragraph 44.
Summary
The Tribunal is of the view that it is fair and reasonable to exercise the discretion to cancel the approval of the applicant’s Australian citizenship. In reaching this conclusion, the Tribunal has had regard to the following findings:
(a)on numerous occasions the respondent appropriately notified the applicant of the time-limited pledge of commitment requirement in correspondence to the applicant, and the applicant did understand the importance of such a requirement;
(b)the applicant did not act promptly by taking up the offer of a rescheduled citizenship ceremony on multiple occasions, particularly after the applicant’s specific requests were accommodated by the respondent;
(c)the applicant’s failure to provide compelling reasons for not attending scheduled citizenship ceremonies; and
(d)the limited prejudice that the applicant would suffer in the circumstances if the Tribunal were to cancel the approval of the applicant’s Australian citizenship.
DECISION
71.Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the respondent dated 9 February 2023.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
……………[SGD]….………………
Associate
Dated: 9 January 2024
Date of Hearing: 27 September 2023
Applicant: Ms Jiayu Wu (self-represented)
RespondentRepresentative: Ms Gabrielle Ho (Clayton Utz)
Annexure 1 – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
TR1.
Section 37 T-Documents (T1-T15, pp 1-143)
-
-
05.04.2023
R1.
Bundle of Supplementary Materials (SM1-SM10, pp 1-20)
R
-
22.08.2023
R2.
Respondent Statement of Facts, Issues and Contentions
R
22.08.2023
R3.
Respondent’s Closing Submissions
R
27.10.2023
27.10.2023
A1.
Applicant written statement (email of 28.05.2023 by Applicant in response to Respondent notice of representative email)
A
28.05.2023
28.05.2023
A2.
Embassy of the People’s Republic of China page: “Update on Visa for China Application Requirements”
A
A3.
Ministry of Foreign Affairs of the People’s Republic of China page: “Announcement on the Temporary Suspension of Entry by Foreign Nationals Holding Valid Chinese Visas or Residence Permits”
A
A4.
Applicant Further Statement (2 pages)
A
13.07.2023
13.07.2023
A5.
Avalon Apartments Tax Invoice
A
-
13.07.2023
A6.
Applicant’s Closing Submissions
A
24.11.2023
24.11.2023
1 to 2.
0
6
0