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

[2022] AATA 382

Afzali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 382 (28 February 2022)

Division:GENERAL DIVISION

File Number:          2021/5383

Re:Ali Hussain Afzali

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:28 February 2022

Date of written reasons:         7 March 2022

Place:Melbourne

The decision under review, to refuse Mr Afzali’s application for Australian citizenship by conferral, is affirmed.

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – where the applicant applies for citizenship by conferral – where the minor son of the applicant included in application – where applicant attempts citizenship test on several occasions – where applicant does not successfully complete citizenship test - where delegate of minister refuses application – where delegate of minister separately refuses application made by minor son – where applicant seeks review of decision to refuse his citizenship application – applicant not in category of persons exempt from having to successfully complete citizenship test – decision under review affirmed –  written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37, 38AA
Australian Citizenship Act 2007 (Cth), ss 21, 23, 24, 52
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020

Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2); Re: (1979) 2 ALD 634
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Secondary Materials
Convention on the Rights of the Child made at New York on 20 November 1989.  Entered into force for Australia, 16 January 1991 [ATS 1991 No. 4]

Department of Home Affairs – Citizenship Procedural Instructions – CPI 26 – Australian Citizenship Test (issued 17 May 2020)

REASONS FOR DECISION

Senior Member D. J. Morris

7 March 2022

PRELIMINARY

1. Mr Ali Hussain Afzali (‘the Applicant’) applied for Australian citizenship by conferral on 3 February 2020. On 21 July 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused Mr Afzali’s application on the basis that he did not satisfy section 21(2A) of the Australian Citizenship Act 2007 (‘the Act’) because he had not successfully completed the Citizenship Test.

2. Mr Afzali’s minor son, who will be called ‘SA’ in these reasons, was included in his father’s application for Australian citizenship by conferral on 3 February 2020, in company with his father. On 21 July 2021, a delegate of the Respondent also refused SA’s application. The delegate found that SA, as a person under the age of 18, satisfies the requirements of section 21(5) of the Act.  However, as Mr Afzali’s application for Australian citizenship was refused, SA’s application was considered against the policy guidelines of the Department of Home Affairs (‘the Department’) for a child under 16 applying individually in his own right. The delegate decided that none of the stipulated policy considerations applied to SA and therefore, having considered the relevant provisions of the Convention on the Rights of the Child, decided to exercise the discretion available in the Act not to approve SA’s application for citizenship.

3. Section 52 of the Act provides that a decision to refuse a person citizenship by conferral can be reviewed by this Tribunal. Mr Afzali availed himself of that entitlement by an application lodged with the Tribunal on 6 August 2021. 

   HEARING

4. A hearing of the matter was held on 28 February 2022, by video, as allowed by section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Afzali represented himself, made submissions and gave evidence. The Respondent was represented by Mr Ned Jackson of The Australian Government Solicitor. The Tribunal appreciates the assistance of an interpreter in the Hazaragi language. Mr Moussa Kham Eqbali was called by the Applicant as a witness and gave evidence by telephone.

5. At the commencement of the hearing, the Tribunal explored with Mr Afzali whether he also intended the refusal of SA’s application for citizenship to be reviewed. The Applicant said he had not understood this clearly before. The Respondent submitted that, in the case that SA’s decision was to be reviewed, the Minister would seek to make written submissions.

6. The Tribunal told the Applicant to give consideration to whether he wants SA’s decision to be reviewed and to make an application, together with an application for an extension of time, if that is his decision. The Tribunal indicated that, as it was satisfied that there was some confusion in the mind of the Applicant about his right to seek review of his son’s decision when he lodged his own application for review, in the interests of fairness, it would look favourably on granting an extension of time.

7. The Tribunal admitted into evidence:

   (a)A volume of documents lodged by the Respondent under section 37 of the AAT Act (‘TD’ documents) – Exhibit R1;

   (b)A volume of supplementary documents lodged by the Respondent (‘STD’ documents) – Exhibit R2; and

   (c)A volume of further supplementary documents lodged by the Respondent under section 38AA of the AAT Act (‘FSTD’ documents) – Exhibit R3.

8. The Tribunal also had regard for the contents of Mr Afzali’s application, and a Statement of Facts, Issues and Contentions submitted by the Respondent and dated 25 January 2022.

9. At the conclusion of the hearing, the Tribunal affirmed the decision under review, and gave oral reasons. The Tribunal advised parties that written reasons would be provided.

   The written reasons

10. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

    … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

11. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the oral reasons given on 28 February 2022, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

    THE LEGISLATIVE REGIME

12. A person may apply for Australian citizenship by conferral. When the person applies, his or her eligibility for citizenship is considered under the provisions of the Act. Taking account of this, the Minister (or his delegate) must then make a decision under section 24 of the Act to approve or not to approve the person’s application. It is important to note that there is no power under the Act for an application to be put aside for a period to enable a requirement to be met (for instance, time the person has spent in Australia); the application must be approved or rejected.

13. When a person, like the Applicant, is being considered under the general eligibility part of the Act under section 21(2), the Minister must be satisfied that a person understands the nature of their application (section 21(2)(d)), possesses a basic knowledge of the English language (section 21(2)(e)); and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (section 21(2)(f)).

14. It can immediately be seen that these requirements are, on their face, subjective.  Because of that, section 21(2A) of the Act was inserted to provide that basic knowledge of English and adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship are taken to be satisfied ‘if and only if’ the Minister is satisfied that the following relevantly apply: the person must have sat a test approved by a determination made under section 23A of the Act, and the person must have successfully completed the test within the period provided for in the determination (which is 90 minutes).

15. In February 2020, the then Minister made the Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (‘the Determination’). The Determination has been amended subsequently, most recently on 12 January 2022. The Determination provides that a computer programme randomly selects 20 questions, of which 5 must be what are called “values questions”. Successful completion of the Citizenship Test requires a person to answer at least 75 per cent of the test questions correctly and answer 100 per cent of the “values questions” correctly. Part 4 of the Determination defines the “values questions” as “a subset of questions approved by the Minister, based on assessing an applicant’s understanding of Australian values.”

16. The Department issues a set of Citizenship Procedural Instructions (CPIs); essentially an internal departmental manual. They have no legislative effect but provide guidance to decision-makers (officers who are delegates of the Minister) considering applications by persons wishing to become Australian citizens. It is desirable – unless there are cogent reasons not to do so in a particular case – to apply policy to ensure consistency in decision-making by officers and, when they have exercised a delegated power, by the Tribunal standing in the shoes of the official who has delegated that power. 

17. Cogent reasons to depart from policy would include that a policy is oppugnant to legislation, or where applying it would have a result that is clearly unjust or ridiculous.  The observations Brennan J made, when President of this Tribunal, in Re: Drake and Minster for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, which have received the approval of the Courts on successive occasions, underpin this established practice in the approach the Tribunal takes.

18. CPI 26 – Australian Citizenship Test, relevantly states, at paragraph 6.3:

    Failing the test

    The vast majority of applicants pass the citizenship test on their first attempt.

    A Federal Court decision (Minister for Home Affairs v Zadeh (No 2)[2018] FCA 1828) found the Determination does not allow applicants to re-sit the test as many times as they wish and the Minister (or their delegate) is not prevented from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

    Generally, if an applicant has failed on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that paragraphs 21(2)(d),(e) and (f) of the Act are not satisfied.

    EVIDENCE

    Submissions and evidence of the Applicant

19. Mr Afzali said he did not say the decision under review was wrong.  He said: “My English is not that good. I couldn’t do more than that. It was not possible for me.”

20. The Tribunal asked the Applicant whether he accepted he had not successfully completed the test, but his submission was that he could not do better because of his lack of English, which Mr Afzali agreed.

21. In answer to questions posed by Mr Jackson, Mr Afzali agreed that he attended the Department of Home Affairs (‘the Department’) on three occasions and did not pass the test. He said: “The last time I sat the test, I got up to 90 per cent but missed the value questions. It doesn’t mean I don’t accept the values.”

22. When asked if he can read any English, Mr Afzali said: “Very little. Even if I can read, I cannot understand the meaning”. When asked if he can write any English, he replied: “Very little. I attended English courses at the Adelaide TAFE for three months.”

23. Mr Jackson asked if the Applicant knew of any cause such as a disability or injury that may have affected his ability to complete the test. Mr Afzali responded: “I’ve been working and didn’t go to study anywhere, in my country or anywhere.”

24. In respect of any disability, Mr Afzali said: “I have headaches when I try to learn.  In Adelaide I tried to learn but experienced very bad headaches. I have to work, so don’t have time to study.”

25. Mr Afzali said he had always had these headaches and when he raised them with his doctor, he was advised to take Panadol. Mr Jackson asked the Applicant whether the doctor may have given him any documentation about any medical condition. Mr Afzali replied: “The doctor advised me to have an x-ray to find out what is going on”, but he confirmed he did not have the suggested x-ray.

26. In answer to direct questions from the Tribunal, Mr Afzali said that he uses his mobile phone and GPS navigation systems without difficulty in his work, and has no difficulty using automatic teller machines. He said that his son has a computer at home, provided by his son’s school, but he does not use a computer and uses his mobile phone.

27. Mr Afzali said that on the first occasion he went to the Department, an officer showed him how to use the computer and the computer mouse, and how to enter the personal identification number he was given. He said: “After that, I used the mouse slowly”. He told the Tribunal that after that first occasion, on the next two occasions he attended the Department to attempt the test, he was able to use the computer unaided.

    Evidence of Mr Eqbali

28. Mr Eqbali gave evidence that he is Mr Afzali’s employer. He employs the Applicant as a bricklayer and has known him for four or five years. He said: “He cannot read or write properly. He can write his name.”

29. Mr Eqbali said that at work sites he speaks Hazaragi to Mr Afzali. When asked if he had to speak English, would he be understood by the Applicant. Mr Eqbali said: “He won’t get it.”

30. Mr Eqbali said he was unaware of any disability which has led to Mr Afzali’s difficulties with English. He said: “If he went to TAFE, he wouldn’t be able to support his family.  Plus, he is getting older. It is harder to learn a second language. He didn’t go to school much.”

    Respondent’s closing submissions

31. Mr Jackson submitted that the Minister cannot approve a person becoming an Australian citizen unless the person meets the requirements in section 21 of the Act. In the case of Mr Afzali’s application, which is made under general eligibility, the requirements are set out in subsections 21(d) to (f) of the Act. Mr Jackson said that by operation of section 21(2A) of the Act, a person needs to successfully complete the Citizenship Test as set out in the Minister’s Determination, which includes completing 100 per cent of the “values questions” correctly.

32. Mr Jackson said the relevant Citizenship Procedural Instruction, CPI 16, states that a person should be given a “reasonable opportunity” to complete the test. He submitted that the Applicant made eight attempts over three days but still failed the values questions.

33. In respect of Mr Afzali’s claim that he is functionally illiterate, Mr Jackson said that the Applicant has presented no independent evidence that would support a claim of disability or permanent incapacity, in terms of section 21(3) of the Act. 

    CONSIDERATION

    Has Mr Afzali successful completed the Citizenship Test?

34. Mr Afzali attended the Department on 19 March 2021 and attempted the (standard) Citizenship Test (‘Test’). On that day he made two attempts. In the first attempt he achieved 65 per cent, which was below the pass mark and did not pass 100 per cent of the values questions.  In the second attempt he achieved 55 per cent, and again did not pass 100 per cent of the values questions.

35. On 10 May 2021, Mr Afzali attended the Department to sit the Test again. On his third attempt he achieved 75 per cent, which was above the pass mark, but did not pass 100 per cent of the values questions. On his fourth attempt he achieved 80 per cent, again above the pass mark, but did not pass 100 per cent of the values questions. On his fifth attempt, he achieved 70 per cent, which was below the pass mark, and did not pass 100 per cent of the values questions.

36. On 4 June 2021, Mr Afzali was to attend the Department to sit the Test again. This appointment was cancelled because of public health orders made by the Victorian Government owing to the current pandemic, and the appointment was rescheduled.

37. On 14 July 2021, Mr Afzali again attended the Department. He sat the Test three more times. On his sixth attempt, he achieved 85 per cent, above the pass mark, but did not answer 100 per cent of the values questions. On his seventh attempt, he achieved 90 per cent, above the pass mark, but again did not answer 100 per cent of the values questions.  On his eighth attempt, he achieved 75 per cent, above the pass mark, but did not achieve 100 per cent in relation to the values questions.

38. I find that the Applicant therefore sat the Citizenship Test on eight occasions over three separate days, but he did not successfully complete the Test. (The results  were at STD, p 133.).

    Has the Applicant had a reasonable opportunity to sit the Test?

39. In Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 (‘Zadeh’), the Court was considering a previous iteration of the Determination, which was relevantly the same, in terms of the requirement to successfully complete the Citizenship Test. In that matter, Mr Zadeh had sat the Test seven times on four different occasions. His application for citizenship was refused. He took that decision to the Tribunal for review. The Tribunal remitted the matter to the Respondent on the basis that Mr Zadeh should be allowed to sit the test again in a month’s time, and if he still did not pass, he was entitled to sit it again.

40. The Minister appealed the Tribunal’s decision and submitted that, although it was true that there was no statutory limit to the number of times a person can sit the Test, the requirement in section 21(2A) should be read in conjunction with section 24 of the Act, which requires applications for citizenship to be determined. The Minister submitted before the Court, essentially, that allowing a person to continue to attempt the Test without any time limit would frustrate the obligation in section 24 to approve or not approve the application. As His Honour Justice Thawley said, in setting aside the Tribunal’s decision, this has the consequence that Mr Zadeh’s application might never be determined.

41. The Court found in Zadeh (at [37]:

    There is nothing about the scheme established by the Ministerial Determination which suggests it was intended that applicants could keep the application process going indefinitely by declining to undertake a Course-Based Test or by insisting on re-sitting the Standard Test as many times as they choose before the application is decided. An application may re-sit that test any number of times while the application remains on foot.  That does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

    (Emphasis added.)

42. I note that CPI 16 provides a general advice to decision-makers that where a person has failed on their third test appointment, it is open to the decision-maker to refuse the person’s citizenship application. The key word in this part of CPI 16 is “appointment”, because a person may undertake the Test on more than one occasion when they attend the Department.

43. I do not consider it unreasonable, in the normal course, for a delegate to make a decision on an application after a person has attended the Department on three occasions and has nonetheless been unable to successfully complete the test, despite making several attempts during each opportunity. That was the case with Mr Afzali. Although the Victorian public health orders intervened, the Department took account of that and rescheduled his appointment, so he was not disadvantaged by the lockdown rules which prevented him attending the original appointment.

1. On the evidence, I find that the Applicant had a reasonable opportunity to sit the Citizenship Test.

   Is there evidence of a permanent or enduring physical or mental incapacity?

2. The Act provides, at section 21(3), essentially, that if the Minister is satisfied that a person has a permanent or enduring physical or mental incapacity at the time the person applied for citizenship which, at section 21(3)(d)(ii), means that he or she is not capable of demonstrating a basic knowledge of the English language at that time, the person may nonetheless be eligible to become an Australian citizen, provided other requirements, including good character, are met.

3. Mr Afzali emphasised in his own submissions at the hearing that he was physically and mentally fit and was not claiming otherwise.  He said that his lack of English was, in essence, a lack of education rather than cognition.  He remarked that some English courses had been suspended because of the lockdown caused by the global pandemic.

4. Although, as the Respondent submitted at the hearing, Mr Eqbali does not have any medical or other professional qualifications to assess English competency, I accept his oral evidence that his knowledge of Mr Afzali is that the Applicant struggles with other than very basic English, and communicates day to day with his employer in Hazaragi. This is relevant evidence in terms of the challenges Mr Afzali faces in successfully completing the Test but not of eligibility for exemption from the Test under section 21(3).

5. On the evidence, I find there is no evidence of Mr Afzali having an enduring physical or mental incapacity that may invoke the provisions of section 21(3) of the Act.

   CONCLUSION

6. The Act requires that section 21(2A) be met by a person in Mr Afzali’s circumstances before approval of an application under section 24 of the Act can occur. There is provision for exemption from the test in stipulated circumstances. The Act makes separate provision for persons under the age of 18 or over the age of 60, or who are over the age of 18 but have enduring physical or mental incapacity or a substantial impairment of hearing, speech, or sight (see sections 21(3) and (4)), to be approved without having successfully completing the test, provided certain other requirements in the Act are met. There was no evidence before me that Mr Afzali was in a category that might exempt him.

7. Mr Afzali did satisfy some essential requirements for the grant of citizenship by conferral.  The delegate was satisfied of his identity (TD, p 8).  He is aged over 18 (satisfying section 21(2)(a) of the Act); He is a permanent resident (satisfying section 21(2)(b)). He satisfies the general residence requirement (section 21(2)(c)). He is likely to reside in Australia (section 21(2)(g)). The delegate halted assessment of the other requirements at that stage because the Applicant had not successfully completed the Test. Other requirements such as good character (section 21(2)(h)) and those set out in section 24 had not been assessed. But the insurmountable hurdle for Mr Afzali in terms of eligibility for approval of his application for citizenship, in terms of general eligibility, is that he has not successfully completed the Citizenship Test.

8. Mr Afzali gave evidence about literacy challenges, which were corroborated by his employer Mr Eqbali. The Tribunal notes that arrangements can be made for a person who is not able to use a computer to have an officer of the Department read out the questions in the Test and, at the direction of an applicant, input a response (schedule 1 of the Determination).  However, an officer is not permitted to translate a question or assist a person towards any particular response. It did not appear to me, in response to answers to direct questions, that unfamiliarity with computers was the problem in this case.  I note that Mr Afzali’s answer to the question in the citizenship application (Form 1300t) ‘Do you need help with the Citizenship test?’ was ticked ‘No’ (TD, p 11).

9. The Tribunal is sympathetic to Mr Afzali that he has made several genuine attempts and has not successfully completed the Test, but the fact is that the Parliament has made this a requirement for citizenship by conferral, unless the person falls into one of the exempt categories which the Applicant does not. Successful completion of the Test satisfies the legislative requirement of section 21(2)(e) of the Act, of the person possessing a basic knowledge of the English language.

10. It is open to Mr Afzali to lodge a fresh application for citizenship and, if so, he might consider asking the Department about these special arrangements. The permanent visa he currently holds giving him the right to reside in Australia is not affected by the decision to refuse his application for citizenship.

11. As Mr Afzali has not successfully completed the Citizenship Test, and is not otherwise exempt from completing it, he is not eligible for approval for citizenship and his application must be refused. It follows, therefore, that the decision of the Minister’s delegate was correct in law, and the Tribunal affirmed it.

12. At the conclusion of the hearing, Mr Afzali asked whether he should undertake English courses to better prepare himself, if he lodges a fresh application. The Tribunal explained that it was not able to offer advice, except to say that it is in any applicant’s interests to prepare themselves as best they can if they are intending to lodge an application for citizenship. The Tribunal reiterated Mr Jackson’s submission, on behalf of the Minister, that there is no bar on Mr Afzali (or his son) making a fresh application for Australian citizenship at any time, and the refusal did not affect either of their permanent visas.

    DECISION

13. The Tribunal affirmed the decision under review, to refuse Mr Afzali’s application for Australian citizenship by conferral.

57.     

58.     I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

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

Associate

Dated: 7 March 2022

Date of hearing:	28 February 2022
Applicant:	Mr Ali Hussain Afzali (Self-represented)
Advocate for the Respondent:	Mr Ned Jackson
Solicitors for the Respondent:	The Australian Government Solicitor