Ahmadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1013

Ahmadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1013 (2 May 2023)

Division:GENERAL DIVISION

File Number:          2023/1887

Re:Zainab Ahmadi

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:2 May 2023

Date of written reasons:        3 May 2023

Place:Melbourne

The Tribunal refuses to extend time under s 29(7) of the Administrative Appeals TribunalAct 1975 in relation to the application for review lodged on 22 March 2023.

The application has no prospect of success.

................................[SGD]........................................

Senior Member D. J. Morris

Catchwords
CITIZENSHIP – where applicant applied for Australian citizenship through general eligibility pathway – where applicant satisfied certain requirements – where applicant not exempted from citizenship test requirement – where  applicant had not successfully completed citizenship test after seven attempts – where successful completion of test a mandatory requirement in this pathway – where prescribed time for lodging application for review is 28 days – where applicant lodged application for review late – no prospect of success

PRACTICE AND PROCEDURE – where prescribed time for lodging application for review is 28 days – where application lodged late – general principles considered relevant to extending time – applicant admits received notice in writing of timeframe for review of decision – lateness not significant – no prospect of success on substantive review – application for extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975, ss 33A, 29
Australian Citizenship Act 2007, ss 21, 23A, 24
Australian Citizenship (LIN 20/085): Approval of a Citizenship Test) Determination 2020

Electronic Transactions Act 1999, s 14A

Cases

Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Minister for Home Affairs v Zadeh (No 2)[2018] FCA 1828

Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Secondary Materials

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

REASONS FOR DECISION

Senior Member D. J. Morris

3 May 2023

1. On 11 May 2022 Ms Zainab Ahmadi applied for Australian citizenship by conferral, under the general eligibility pathway.

2. When a person applies, his or her eligibility for citizenship is considered under the provisions of the Australian Citizenship Act 2007 (‘the Act’). Taking account of this, the Minister (or his delegate) must then make a decision under s 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 - the application must be approved or rejected.

3. On 21 February 2023 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused Ms Ahmadi’s application. Ms Ahmadi applied to the Tribunal for review of this decision on 22 March 2023, and also requested that time be extended, as her application was outside the 28-day period set out in s 29(2) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).

   HEARING

4. A telephone directions hearing (under s 33A of the AAT Act) was held on 2 May 2023 to consider Ms Ahmadi’s request for time to be extended for her application for review. Ms Ahmadi made submissions. Ms Mary Baras Miller, of The Australian Government Solicitor, represented the Respondent. The Tribunal appreciates the assistance of an interpreter in the Dari language.

5. The Tribunal had regard to a document titled Respondent’s Submissions on Extension of Time Application, a tender bundle of documents submitted by the Respondent, and a printout of Ms Ahmadi’s Adult Migrant English Program (‘AMEP’) records.

6. At the conclusion of the hearing, the Tribunal made a decision to refuse to extend time for Ms Ahmadi to lodge her application for review. There were two reasons for this. Her explanation for being late was not entirely satisfactory, even though the application was not particularly late. But, more importantly, the Tribunal explained that she could not succeed on substantive review of the reviewable decision.

   Written reasons for oral decision

7. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why time was not extended. 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 given and a statement of written reasons subsequently provided. 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).

8. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 2 May 2023, consistent with the approach suggested in Negri.  New reasoning for the decision not to extend time has not been introduced, but I have included more detail of the provisions in the Act and the policy instruction to better explain to Ms Ahmadi why her request for an extension of time was refused.

   CONSIDERATION

9. The delegate considering Ms Ahmadi’s application was satisfied that she was a permanent resident, that she fulfilled the general residence requirements, that she was likely to continue to reside in Australia, and was also satisfied of her identity.  These are all things that must be satisfied when a citizenship application is being considered.

10. However, when a person is being considered under the general eligibility part of the Australian Citizenship Act 2007 (‘the Act’) under section 21(2), one of the requirements is that 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)).

11. 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 person has sat a test approved by a determination made under section 23A of the Act, and has successfully completed the test within the period provided for in the determination.

12. The Respondent states that the decision was made on 21 February 2023 and emailed to Ms Ahmadi on that day.  Ms Ahmadi confirmed she received it by email.

13. In such a case, where a document is sent by email, the recipient is deemed to have received it on the day it is sent, by force of s 14A(2) of the Electronic Transactions Act 1999.

14. Ms Ahmadi therefore had 28 days to apply for review of the decision, a period which, by force of s 29(2) of the AAT Act began on 21 February 2023 (i.e., the day she received the decision) and ended on 20 March 2023.

15. She lodged her application for review with the Tribunal on 22 March 2023 with a request for time to be extended under s 29(7) of the AAT Act. The Minister submits that the delay is not a significant period, however, also argues that time should not be extended because her application cannot succeed in any event.

    General principles regarding extending time

16. There are general principles followed by the Tribunal when considering whether time should be extended (see, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305). They have been set out by Courts over the years as relevant considerations, but the Courts have also made clear that they are not an exhaustive list. The circumstances of each case must be considered in relation to whether the discretion to extend time should be exercised. The general principles include the length of the delay, reasons for the delay, whether there is an arguable case; and whether there would be prejudice to the other party. Whether a person has rested on his or her rights is also relevant.

17. In this case the length of the day is not long; it is only two days. The reasons for the delay submitted by Ms Ahmadi are that she said she did not realize that she was entitled to have the refusal decision reviewed by the Tribunal until she was in discussions with a friend, who told her, which is why she lodged the application late.  She admitted in response to a direct question from the Tribunal that she received a letter on 21 February 2023 accompanying the decision record which set out the rights of review, but said the language barrier meant she has trouble reading English language documents, so did not appreciate its contents. 

18. The Tribunal agrees with the Respondent that two days is not a significant period, although the expectation is that parties will observe statutory time limits.

19. In terms of whether there would be prejudice to the Minister, the Tribunal does not consider there would be.  However, while the Tribunal is not considering the merits of Ms Ahmadi’s substantive application, I must have some regard to whether she has an arguable case in deciding whether to exercise the discretionary power to extend time.

    Citizenship test requirements

20. In February 2020, the 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’.

21. Where a decision-maker has applied policy in making a decision, the Tribunal will generally have regard to the policy as well, to ensure consistency in decision-making. However, where the policy is inconsistent with the Act or would lead to a result that was unjust or ridiculous, the policy will not be followed.

22. The Department of Home Affairs (‘the Department’) periodically issues a set of Citizenship Procedural Instructions (CPIs), essentially an internal departmental manual.  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.

23. The Respondent submits that Ms Ahmadi attended Department offices on three occasions to attempt the citizenship test – on 19 December 2022 when she made three attempts; on 11 January 2023 when she made two attempts and on 7 February 2023 when she sat the test twice.

24. She did not succeed in any of these seven attempts, which she conceded in her oral submissions.

25. Ms Ahmadi’s results on the first occasion when she sat the citizenship test three times were 35%, 60% and 50%.  Her results on the second occasion when she sat the test twice were 55% and 50%.  The results on the third occasion when she made two attempts were 40% and 40%.  As mentioned above, a person must answer 75 per cent of the general questions to pass the test, and 100 per cent of what are called the ‘values’ questions.

    Has the Applicant had a reasonable opportunity to sit the citizenship test?

26. In Minister for Home Affairs v Zadeh (No 2)[2018] FCA 1828 (‘Zadeh’), Mr Zadeh had sat the citizenship test seven times but had not passed. The Tribunal remitted the matter on the basis that he should be allowed to sit the test again, and if he did not pass, he was entitled to sit it again.

27. The Court set aside the Tribunal’s decision and found that the Minister 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.

28. I note that CPI 26 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 26 is ‘appointment’, because a person may undertake the test on more than one occasion when they attend the Department, as Ms Ahmadi did.

29. I do not consider it unreasonable for a delegate to make a decision on an application after a person has attended the Department on three occasions, has sat the test more than once at each visit, and has nonetheless been unable to successfully complete the test.

    No discretion to waive citizenship test requirement in this case

30. Where a person has applied for citizenship through the general eligibility pathway and is not exempted by age or incapacity from completing the test, there is no discretion for a decision-maker (including the Tribunal) to waive the requirement for Ms Ahmadi to undertake the test. It is a mandatory requirement under section 21(2A)(d) of the Act. 

31. So, although her application is only two days out of time, I therefore find that it would be futile for me to extend time, because Ms Ahmadi cannot succeed on substantive review of her application, given that she does not contest that she has not successfully completed the citizenship test.

    Future options for the Applicant

32. I note from the printout that the Respondent provided that Ms Ahmadi has completed 399 hours of  AMEP tuition.  Once she has completed 400 hours, she may be eligible to sit the assisted version of the test (see paragraph 4.4 of CPI 26). 

33. It is therefore open for Ms Ahmadi to undertake some more English language tuition.  The Applicant told the Tribunal that the reason she stopped taking the English classes was that she had a baby, which (understandably) occupied her time.

34. The refusal by the Tribunal to extend time does not affect Ms Ahmadi’s entitlement to stay in Australia as a permanent resident, which the delegate found was satisfied, nor does it affect her ability to apply again for Australian citizenship.

35. The Tribunal urged Ms Ahmadi, given she is so close to reaching 400 hours of AMEP tuition, to consider undertaking more English language classes. This would permit her to sit the assisted version of the citizenship test, upon making a fresh application.

    DECISION

36. The Tribunal refuses to extend time under s 29(7) of the AAT Act in relation to the application lodged on 22 March 2023. The application has no prospect of success.

37.      

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...............................[SGD].........................................

Associate

Dated: 3 May 2023

Date of hearing:	2 May 2023
Applicant:	Ms Zainab Ahmadi
Advocate for the Respondent:	Ms Mary Baras-Miller
Solicitors for the Respondent:	The Australian Government Solicitor