Surapaneni and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 1073

Surapaneni and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 1073 (22 December 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2965
Re	Pallavi Surapaneni
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	22 December 2016
Place	Sydney

The decision under review is affirmed.

.................................[sgd].......................................

Professor R McCallum AO, Member

CATCHWORDS

CITIZENSHIP – citizenship by conferral – cancellation of citizenship approval – eligibility criteria – likely to maintain a close and continuing association with Australia – likely to reside or continue to reside in Australia – failed to make pledge of commitment – reason for failure not prescribed by the regulations – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 25, 28

Australian Citizenship Regulations 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Patel and Minister for Immigration and Border Protection [2015] AATA 108

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R McCallum AO, Member

22 December 2016

INTRODUCTION

1. The Applicant, Mrs Pallavi Surapaneni, was born in India. She married Mr Sreekanth Surapaneni in India in 2004. Later that year, Mrs Surapaneni immigrated to Australia with her husband and she was granted a temporary Partner (Provisional) visa (subclass 309).

2. Mr and Mrs Surapaneni have two sons who were born in Australia in 2007 and in 2014. The boys are both Australian citizens. Mr Surapaneni is also an Australian citizen.

3. Mrs Surapaneni became a permanent resident on 11 April 2007 when she was granted a permanent Partner visa (subclass 100).

4. Mrs Surapaneni lodged an application for Australian citizenship by conferral on 14 April 2015 and her application was approved on 30 April 2015.

5. Mr Surapaneni was made redundant from his IT position with the Bendigo and Adelaide Bank in February 2015.

6. After looking for another position, Mr Surapaneni accepted an IT position in the United States. His contract of employment was for two years, concluding in July 2017. Mr Surapaneni left Australia for the United States on 27 June 2015.

7. On 11 June 2015, Mrs Surapaneni contacted the Department of Immigration and Border Protection (the Department) and requested an urgent Australian citizenship ceremony.

8. On 4 July 2015, Mrs Surapaneni travelled to India with her two sons to visit family, and then she and the children joined Mr Surapaneni in the United States on or about 17 September 2015.

9. The Department sent Mrs Surapaneni invitations to attend Australian citizenship ceremonies on 14 July and 16 October 2015. As she made clear in her testimony, Mrs Surapaneni did not notify the Department of her change of address and she did not receive these two invitations.

10. Mrs Surapaneni contacted the Department on 21 October 2015 and explained that she was in the United States because of her husband’s employment. Mrs Surapaneni asked if she could attend the next Australian citizenship ceremony in Washington DC.

11. In reply, the Department asked Mrs Surapaneni to write a letter explaining her circumstances in order to facilitate her attending an Australian citizenship ceremony in the United States.

12. On 4 March 2016, Mrs Surapaneni contacted the Department to say that her urgent ceremony request had been declined.

13. In its response, the Department requested that Mrs Surapaneni open an Immi account and write a letter requesting that she attend an overseas Australian citizenship ceremony.

14. On 1 April 2016, the Department sent Mrs Surapaneni a notice that the Department was considering cancellation of her approval of Australian citizenship.

15. On 5 April 2016, Mrs Surapaneni sent the Department a letter in response. However, on 18 May 2016, a delegate of the Minister for Immigration and Border Protection cancelled Mrs Surapaneni’s citizenship approval.

16. Mrs Surapaneni now appeals to this Tribunal.

    THE LEGISLATION

17. The Minister’s delegate cancelled Mrs Surapaneni’s citizenship approval pursuant to section 25 of the Australian Citizenship Act 2007 (Cth) (the Act).

18. Subsection 25(1) provides as follows:

    25 Minister may cancel approval

    (1)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.

19. As Mrs Surapaneni has not become an Australian citizen under section 28 of the Act, paragraph (b) of subsection 25(1) is applicable to her situation. It provides that her approval of Australian citizenship can be cancelled if “either of the 2 following situations apply.” These two situations are set out in subsections 25(2) and 25(3) of the Act.

20. Subsection 25(2) concerns the first situation, and it provides as follows:

    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:

    (i)        not a permanent resident; or

    (ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

    (iii)      not of good character.

21. In Mrs Surapaneni’s circumstances, the relevant eligibility criteria are set out in subparagraph (b)(ii) of subsection 25(2).

22. Briefly put, the Minister or the Minister’s delegate may cancel the approval of Australian citizenship if Mrs Surapaneni is “not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia”.

23. I shall call this first situation the eligibility criteria.

24. The second situation is set out in subsection 25(3) of the Act which provides as follows:

    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.

25. Mrs Surapaneni did not make a pledge of commitment within 12 months from the day after receiving her approval of citizenship. Therefore, paragraph (b) of subsection 25(3) is applicable. It empowers the Minister to cancel the approval of citizenship if the reason why Mrs Surapaneni did not make the pledge of commitment “is not one that is prescribed by the regulations”.

26. I shall call the second situation the pledge of commitment.

    THE HEARING

27. Mr and Mrs Surapaneni and their two sons are currently residing in the United States. Mrs Surapaneni attended the hearing by telephone. Mrs Surapaneni gave testimony over the telephone. When giving her testimony, she asked if her husband could also speak. In all of the circumstances, I permitted Mr Surapaneni to give testimony over the phone.

28. In my view, Mrs Surapaneni and Mr Surapaneni did their best to assist this Tribunal.

    THE ISSUE BEFORE THE TRIBUNAL

29. The issue before me as I stand in the shoes of the Minister for Immigration and Border Protection, is whether the decision to cancel Mrs Surapaneni’s approval of citizenship pursuant to section 25 of the Act is correct. In other words, has Mrs Surapaneni failed to meet the eligibility criteria or the pledge of commitment as outlined in subsections 25(2) and 25(3) of the Act?

    THE ELIGIBILITY CRITERIA

30. The eligibility criteria which Mrs Surapaneni is required to meet are as follows. First, Mrs Surapaneni must satisfy me that she is “likely to reside, or to continue to reside, in Australia”. Second, Mrs Surapaneni must satisfy me that she will “maintain a close and continuing association with Australia”.

31. Two matters require comment. The first matter is that although these two criteria are both contained in subparagraph (b)(ii) of subsection 25(2) of the Act, if I am satisfied that Mrs Surapaneni satisfies either the first or the second criterion, then in my view that is sufficient to comply with the eligibility criteria specified in subsection 25(2) of the Act.

32. This was the approach impliedly taken by Deputy President the Hon. Brian Tamberlin QC in Patel and Minister for Immigration and Border Protection [2015] AATA 108, and I am content to follow his approach.

33. The second matter is that having regard to the circumstances before me, it is easier to examine whether Mrs Surapaneni has  maintained and is likely to maintain a close and continuing association with Australia, before examining whether Mrs Surapaneni is likely to reside, or to continue to reside, in Australia. In other words, it is easiest to examine the second criterion before unpacking the first criterion.

    Is Mrs Surapaneni Likely To Maintain A Close And Continuing Association With Australia?

34. The Australian Citizenship Instructions (ACIs) set out Government policy. The introduction to the ACIs provides in part as follows:

    The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.

35. The ACIs set out Government policy which I should apply, unless there are compelling reasons not to do so: see Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645. There are no compelling reasons for not doing so. Indeed, good administration requires me to apply Government policy as set out in the ACIs.

36. In Chapter 5 section 5.7.2, the ACIs set out the following checklist:

    Factors that may contribute to a close and continuing association with Australia include:

    ·Australian citizen spouse or de facto partner

    ·Australian citizen children

    ·length of relationship with Australian citizen spouse or de facto partner

    ·extended family in Australia

    ·return visits to Australia

    ·periods of residence in Australia

    ·intention to reside in Australia

    ·employment in Australia (for example, public or private sector)

    ·ownership of property in Australia and

    ·evidence of income tax payment in Australia

37. Mrs Surapaneni has lived in Australia for about 11 years, and she has only been absent from Australia for an extended period since 4 July 2015. The date of the hearing was 2 December 2016, so Mrs Surapaneni has been absent for about 17 months.

38. Her husband, whom she has been married to for more than 12 years, is an Australian citizen. Their two sons were born in Australia and are Australian citizens.

39. In her testimony, Mrs Surapaneni said that she has three cousins living in Australia, and that she has other friends in Australia. However, she did not give details concerning her other friends in Australia.

40. Mr and Mrs Surapaneni own two properties in Australia. In her testimony, Mrs Surapaneni said that one property was their home where they had lived before leaving for the United States. It has been rented out for two years because they wish to come back to Australia and live in it.

41. Of course, it would be possible to continue to rent out this property at the end of the two year period.

42. Mrs Surapaneni said that the other property which was rented out was an investment property.

43. In her testimony, Mrs Surapaneni said that she and her husband intended to return to Australia in July 2017.

44. Having regard to the evidence, I find that Mrs Surapaneni has maintained, and in my view will maintain, a continuing and close relationship with Australia.

45. Therefore, as Mrs Surapaneni has complied with the second criterion of the eligibility criteria, I find that she complies with subsection 25(2) of the Act.

46. Although it is strictly not necessary for me to unpack the first criterion, in view of the evidence before me I shall do so.

    Is Mrs Surapaneni Likely To Reside, Or Continue To Reside, In Australia?

47. In Chapter 5 section 5.7.1 of the ACIs, it is stated as follows:

    Intention to reside should be investigated further in situations where:

    ·the applicant has spent significant periods outside of Australia since becoming a permanent resident or

    ·has requested a citizenship test or citizenship ceremony be conducted overseas.

    Where a person indicates that they intend to leave Australia or remain overseas for an indeterminate period, officers must consider whether they have a close and continuing relationship with Australia.

48. Patel and Minister for Immigration and Border Protection [2015] AATA 108, is a recent decision where the Applicant’s husband was employed in the United States by a multinational corporation. Deputy President the Hon. Brian Tamberlin QC wrote as follows at paragraphs 17 and 18:

    In oral testimony before the Tribunal the applicant could not identify any specific period when she might come back to Australia.  She expressed her intention but gave no details as to any firm commitment to reside in the near future.  Nor did she give any specific details as to when she might take up residence in Australia in the future either in the next few months or years.  Her husband also gave evidence but did not commit to the statement that he would reside in Australia with his wife at particular period either in the near future or in the coming months or years.  He has a job in the United States with an international company but there is no indication of any present intention to relocate in Australia.

    As pointed out in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 684 it is stated that the expression “likely to reside in Australia” cannot mean likely to take up residence or possibly to take up residence in 18 months or two years’ time or reside at some time in the indefinite future if a decision is made to relocate and if a suitable job can be found.  The applicant or her husband could not demonstrate any intention to reside in Australia, for example, immediately or soon after being granted a certificate of citizenship. 

49. The circumstances in Patel’s case differ from those in the matter before me. Mr Surapaneni said in his testimony that he intended to return to Australia in July 2017 at the end of his employment contract, whether or not he had a job in Australia. He said that he would be able to obtain a position in Australia.

50. It would be possible for Mr Surapaneni to continue in his current position in the United States after July 2017.

51. In her testimony, Mrs Surapaneni said that she would return with her husband in July 2017.

52. I find this a more difficult question, however, having regard to all of the evidence I find that Mrs Surapaneni is likely to reside and to continue to reside in Australia. Thus, Mrs Surapaneni fulfils the first criterion of the eligibility criteria set out in subsection 25(2) of the Act.

    THE PLEDGE OF COMMITMENT

53. Under paragraph (a) of subsection 25(3) of the Act, Mrs Surapaneni did not make a pledge of commitment within 12 months from the day after receiving her approval of citizenship. Therefore, paragraph (b) of subsection 25(3) is applicable. It empowers the Minister to cancel the approval of citizenship if the reason why Mrs Surapaneni did not make the pledge “is not one that is prescribed by the regulations”.

54. Regulation 7 of the Australian Citizenship Regulations 2007 (Cth) sets out the prescribed reasons for the purposes of paragraph (b) of subsection 25(3) of the Act.

55. Regulation 7 relevantly provides as follows:

    7      Prescribed reasons for failing to make pledge of commitment

    (1)For subsection 25(3) of the Act, this regulation 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 making of the pledge should be delayed for a specified period; and

    (b)       either:

    (i)  that specified period has not yet ended; or

    (ii)  the specified period has ended, but the person has not yet had a reasonable period since the end of the specified period in which to make a pledge.

    (3)Subject to subregulation (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 that period, the person was overseas:

    (i)        for medical treatment that was not available in Australia; or

    (ii)  for a purpose unrelated to medical treatment, 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 subregulation (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 Territory; or

    (ii)        an authority of the Commonwealth, a State or Territory; or

    (iii)        a local government authority; and

    (b)       either:

    (i)        the error or omission has not been rectified; or

    (ii)  the error or omission has been rectified, but the person has not yet had a reasonable period in which to make a pledge.

    (5)For subregulation (3) or (4), a person has a prescribed reason only if the person gives the Minister:

    (a)  a signed statement to support the claim that includes 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.

56. In her testimony, Mrs Surapaneni said that the reason why she did not attend an Australian citizenship ceremony in the 12 months after receiving notice of her approval of citizenship was because she had travelled to the United States with her children to be with her husband who had taken up employment in that country.

57. Mrs Surapaneni had not notified the Department of her change of address, or nominated another person in Australia to receive communications from the Department.

58. This reason is not one of the prescribed reasons set out in regulation 7.

59. Put briefly, the prescribed reasons are: 

    (a)A delay by the Minister: subregulation 7(2);

    (b)Overseas medical treatment, illness or funeral arrangements,  etc.: subregulation 7(3); or

    (c)Administrative errors: subregulation 7(4).

60. Accordingly, I find that Mrs Surapaneni did not comply with the pledge of commitment requirement set out in subsection 25(3) of the Act.

    CONCLUSION

61. For the reasons set out above, I make the following findings.

62. I find that Mrs Surapaneni complied with the eligibility criteria specified in subparagraph (b)(ii) of subsection 25(3) of the Act. I further find that Mrs Surapaneni complied with both the first and the second criterion specified in subparagraph (b)(ii). In other words, I found that Mrs Surapaneni is likely to reside, or to continue to reside, in Australia and that she maintains a close and continuing association with Australia.

63. I find that Mrs Surapaneni did not comply with the pledge of commitment requirement in subsection 25(3) of the Act because her more than 12 month delay was not for one of the prescribed reasons set out in the regulations.

64. I therefore find that the decision under review to cancel Mrs Surapaneni’s approval of citizenship is correct.

65. I have some sympathy for Mrs Surapaneni. I have found that Mrs Surapaneni is likely to reside, or to continue to reside, in Australia and that she maintains a close and continuing association with Australia. However, in travelling to the United States, and in not giving the Department a forwarding address, she did not receive the notices of forthcoming Australian citizenship ceremonies. Mrs Surapaneni did not make a pledge of commitment in the 12 month period after receiving her approval of citizenship. Her reason for travelling to the United States is not one of the prescribed reasons set out in regulation 7 of the Australian Citizenship Regulations2007.

1. The law is clear. Mrs Surapaneni did not comply with the pledge of commitment requirement in subsection 25(3) of the Act, and accordingly the decision to cancel her approval of citizenship is correct.

   DECISION

2. The decision under review is affirmed.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

....................................[sgd]....................................

Associate

Dated 22 December 2016

Date(s) of hearing	2 December 2016
Applicant	By telephone
Solicitors for the Respondent	R Noronha, Clayton Utz