Abdelfattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 4361

Abdelfattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4361 (25 November 2021)

Division:GENERAL DIVISION

File Number:          2021/7288

Re:Heba Abdelfattah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:25 November 2021

Place:Sydney

The EOT application is refused for want of jurisdiction.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – opposed for want of jurisdiction – where applicant applied for Australian Citizenship by conferral using Form 1300t – failure to pass citizenship test – whether Tribunal can determine applicant’s eligibility for Australian Citizenship under incapacity criteria – Tribunal does not have jurisdiction – extension of time application refused for want of jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Australian Citizenship Act 2007 (Cth) ss 21, 46

CASES

Hashim and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] AATA 58

Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2800

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

REASONS FOR DECISION

Senior Member A Poljak

25 November 2021

1. On 1 October 2020, the applicant applied for Australian Citizenship by conferral and submitted a Form 1300t – Application for Australian Citizenship – General Eligibility (Form 1300t), under s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act) (Application).

2. On 27 April 2021, 25 May 2021 and 15 June 2021 respectively, the applicant unsuccessfully attempted the Australian citizenship test.

3. On 15 June 2021, the applicant advised the Department of Home Affairs (Department) that she wished to be considered for Australian citizenship against the permanent or enduring physical or mental incapacity eligibility criteria in s 21(3) of the Act, rather than the general eligibility criteria in s 21(2). This was so she could avoid the requirements of s 21(2A) to sit and successfully complete the Australian citizenship test.

4. The applicant provided the Department with medical evidence to demonstrate that she suffered from a number of incapacities at the time of lodging her Form 1300t, including post-traumatic stress disorder, adjustment disorder, depression and multi-level discopathic and spondylotic changes in her lumbar spine.

5. On 7 September 2021, the delegate rejected the applicant's application for Australian citizenship on the basis that she failed to establish that she had a permanent or enduring physical or mental incapacity for the purpose of s 21(3) of the Act.

6. The applicant has applied for review of this decision and an order extending the time (EOT) within which her Application for Review of Decision (Application) may be lodged in accordance with s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

7. The respondent opposes the application for an EOT for want of jurisdiction to consider the Application. This is the predominant issue for determination in these interlocutory proceedings.

   Tribunal's Jurisdiction

8. The Minister contends that the Tribunal cannot determine the applicant’s eligibility for citizenship under s 21(3) of the Act because the application was not made using the correct form, Form 1290, such that there was no valid application which can be assessed under ss 21(3) to (8) of the Act. The applicant applied for Australian citizenship using Form 1300t.

9. The requirements of an application for Australian citizenship are set out in s 46 of the Act. Subsection 46(1) provides as follows:

   46 Application requirements

   (1) An application under a provision of this Act must:

   (a) be on the relevant form approved by the Minister for the purposes of that provision; and

   (b) contain the information required by the form; and

   (c) be accompanied by any other information or documents prescribed by the regulations; and

   (d) be accompanied by the fee (if any) prescribed by the regulations. [Emphasis added]

10. Subsection 46(2) of the Act allows for the Minister to approve one or more forms for the purpose of a provision of the Act under which an application for Australian citizenship may be made. At all relevant times, the Minister had approved two forms for this purpose - the first being the Form 1300t, and the second being the Form 1290, entitled Application for Australian citizenship – Other situations (Form 1290).

11. The applicant has made an application for Australian citizenship using a Form 1300t, being the form approved by the Minister for the purpose of the general eligibility criteria in s 21(2) of the Act. For the applicant to have her application for citizenship considered under s 21(3) of the Act, she must lodge a Form 1290. Form 1290 was approved by the Minister for the purpose of the six other situations in ss 21(3) to (8), where the requirement to sit and successfully complete the Australian citizenship test is dispensed with. Most relevantly, this includes when a person has a permanent or enduring physical or mental incapacity for the purpose of s 21(3) of the Act.

12. Despite the applicant asking the Department at a later stage to consider her citizenship Application under s 21(3) of the Act, no Form 1290 was ever lodged. The applicant did not lodge Form 1300t by mistake. It was only after numerus unsuccessful attempts to pass the citizenship test that the applicant sought to have her application considered under different criteria, forgoing the requirement to pass the citizenship test.

13. Section 46 is quite clear in its wording. There is no discretion as to the form to be used in order for an application to be considered under particular sections of the Act. There is relevant Federal Court authority for this proposition in the case of SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, where the Court stated in relation to a citizenship application at [28], ‘the application will be valid only if he or she uses the specific form, otherwise the application is invalid’.

14. The Minister's jurisdiction therefore extends to consideration of the application under those criteria only, as that is the only basis on which the Minister's jurisdiction to consider the application is invoked. This is also the case for the Tribunal, which exercises all the powers and discretions conferred on the decision-maker, even in a matter where the decision of the primary decision-maker is affected by error, as is the case here.

15. Consistent with the decisions in Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2800 and Hashim and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] AATA 58, it is a strict requirement for applicants to use the approved form, and where they do not, it is not open to the Tribunal to determine the application using different criteria, such as those in s 21(3) of the Act.

    Decision

16. The EOT application is refused for want of jurisdiction.

17. The applicant may re-apply for Australian citizenship at any time.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 25 November 2021

Date of interlocutory hearing:	18 November 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers