Hsiao and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2540 (14 August 2023)

CITIZENSHIP – application for citizenship by conferral – where applicant has been approved for a grant of citizenship –applicant advised she has 12 months to make pledge of commitment – common ground that applicant did not make pledge – discretion exercised to cancel approval due to failure to make pledge of commitment within 12 months – supervening event of global COVID-19 pandemic – closure of national and international borders – assessment of applicant’s circumstances – decision under review set aside and substituted

Hsiao and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2540 (14 August 2023) (austlii.edu.au)

Case summary:

The issues under consideration are whether the applicant failed to make a commitment pledge within 12 months of approval and if the reason falls under the prescribed regulations. Additionally, whether the discretion to cancel the citizenship approval should be exercised is considered.

The applicant received approval for citizenship on February 28, 2020, but didn’t make the pledge within the stipulated timeframe. The reason for the delay is that she cared for her critically ill mother in Taiwan until her death in March 2021. The applicant’s evidence supports that she satisfied the prescribed reason for delay.

However, the Minister argues that the applicant’s return to Australia was delayed beyond her mother’s death, and that she failed to inform the Department, preventing a ceremony. The tribunal agrees that the applicant didn’t satisfy any prescribed reasons for this period.

The tribunal reviews the exercise of discretion for cancellation. It recognizes that the discretion is vested in the Minister, considering factors like notice, reason for delay, understanding of requirements, and potential prejudice. The tribunal cites previous cases and recognizes the impact of COVID-19 on timely pledge completion.

The tribunal acknowledges that while cancellation won’t prevent reapplication and the applicant’s status as a permanent resident, it would be emotionally detrimental and costly. Her family already holds Australian citizenship, and cancellation would harm her wellbeing. Given the circumstances and her honest efforts, the tribunal concludes that the discretion to cancel the citizenship approval should not be exercised.

Written by Ross Ahmadzai

1 Sep, 2023

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