Al Kasha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 10

Al Kasha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 10 (9 January 2023)

Division:GENERAL DIVISION

File Number:          2022/7964

Re:Basheer Al Kasha

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:9 January 2023

Date of written reasons:        9 January 2023

Place:Melbourne

The Tribunal refused to extend time under s 29(7) of the Administrative Appeals TribunalAct 1975 for review of the 11 August 2022 decision to refuse the Applicant Australian Citizenship by conferral.

The application has no prospect of success.

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – Australian citizenship by conferral – applicant fulfils certain requirements – applicant has attempted citizenship test on seven occasions but has not completed test – mandatory requirements for grant of citizenship therefore not met – application cannot succeed on substantive review – no statutory limit on number of times a person can attempt test – however continual unsuccessful attempts being permitted is inconsistent with other provisions of the Act requiring approval or refusal of citizenship - application to extend time refused – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 29, 33A

Australian Citizenship Act 2007 (Cth), ss 21, 24

Cases

Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Negri v Secretary, Department of Social Services [2016] 70 AAR 103

R v Secretary of State for the Home Department: Ex Parte Mehta [1975] 1 WLR 1087; [1975] All ER 1084

Secondary Materials

Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020

Department of Home Affairs – Citizenship Procedural Instructions – CPI 26 – Australian Citizenship Test

REASONS FOR DECISION

Senior Member D. J. Morris

9 January 2023

Preliminary Matters

1. On 28 January 2021, Mr Basheer Al Kasha applied for Australian citizenship by conferral.

2. 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 s 24 of the Australian Citizenship Act 2007 (‘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.

3. On 11 August 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused Mr Al Kasha’s application.

4. The delegate found that Mr Al Kasha did satisfy certain requirements of the Act. He was aged 18 years or over when he applied (s 21(2)(a)); he was a permanent resident of Australia (s 21(2)(b)); he satisfied the general residence requirements (s 21(2)(c)); and the delegate was satisfied that he intended to reside or continue to reside in Australia (s 21(2)(g). However, the delegate did not proceed to consider whether Mr Al Kasha was of good character under s 21(2)(h) of the Act, because the delegate found that certain other requirements of s 21(2) were not satisfied.

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

6. These requirements are, on their face, subjective. Because of that, s 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 apply: The person must have sat a test approved by a determination made under s 23A of the Act, and have successfully completed the test within the period provided for in the determination (which is 90 minutes).

   THE HEARING

7. An interlocutory hearing was held on 9 January 2023 by telephone, as is allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr Al Kasha represented himself and made submissions. Ms Claudia Calabrese of The Australian Government Solicitor represented the Respondent. The Tribunal appreciates the assistance of an interpreter in the Arabic language.

8. The Tribunal had regard to Mr Al Kasha’s application for review lodged on 25 September 2022; his application for an extension of time dated 4 October 2022; and the Respondent’s submissions opposing the extension of time, dated 20 December 2022.

9. At the conclusion of the hearing, the Tribunal made a decision refusing to extend time, partly because of no satisfactory explanation of the delay in lodging the application for review but mainly because there is no prospect of the Applicant succeeding on substantive review.

   Written reasons for oral decision

10. The Tribunal provides these written reasons to the Applicant and the Respondent to explain in more detail why the matter was dismissed. 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).

11. In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 9 January 2023, consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but I have included more detail of the provisions in the Act and a Federal Court decision relevant to whether a person can continue to unsuccessfully attempt the citizenship test. The purpose of these written reasons is to assist Mr Al Kasha (and his wife, see below).

    Date of decision

12. The Respondent states that the decision was made on 11 August 2022 and emailed to Mr Al Kasha on that day. I note that the decision record before the Tribunal is neither signed nor dated, so to that extent, it is defective. At the hearing, Ms Calabrese said she had a copy of the covering letter sent to the Applicant informing him of the decision, which was dated 11 August 2022.

13. However, Mr Al Kasha concedes in his application to the Tribunal that he did receive the advice of the delegate’s decision by email on 11 August 2022. He states in his application for an extension of time that:

    The reason for my extension is that I did not notice the email sent to me thus was not able to apply within the required time.

14. Mr Al Kasha therefore had 28 days to apply for review of the decision, a period which began on 12 August 2022 and ended on 8 September 2022. He applied on 25 September 2022, some 17 days out of time. The Respondent says that the delay is not a significant period, however, the Minister also argues that Mr Al Kasha’s application cannot succeed in any event.

    Should time be extended?

15. There are general principles followed by the Tribunal when considering whether time should be extended. They 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 in the mix. None of these takes precedence over another, each request for an extension of time must be treated on its merits and circumstances. Sometimes merely the interests of justice may demand that time be extended.

16. The Respondent submitted that the extension of time sought by Mr Al Kasha was not a significant period. In the absence of any compelling argument from the Applicant about the reason for his delay in seeking review, other than he ‘did not notice’ the email he had received advising him of the decision, the Tribunal does not accept the Respondent’s submission in this respect.

17. Although the hearing related to whether time should be extended, the Tribunal must have some regard to the merits of the substantive application in deciding whether to extend time.  As Lord Denning MR said in R v Secretary of State for the Home Department: Ex Parte Mehta, time may not be extended when there is a weak case, but it may be when it is a strong case on its merits. The High Court, in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576, noted with approval Lord Denning’s reasoning in this regard, in applications of this nature.

18. 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 five must be what are designated as ‘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’.

19. The Department of Home Affairs (‘the Department’) 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.

20. The Respondent submits that Mr Al Kasha attended the Department offices on three occasions. On 10 June 2022, he made two attempts to pass the test; on 6 July 2022, he made two further attempts. On 29 July 2022, he made three further attempts. He did not succeed. The Tribunal asked Ms Calabrese whether she had the results sheets for the test attempts and asked for an average over the seven test attempts Mr Al Kasha has made.  Ms Calabrese said the average result was around 56 per cent.

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

21. 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.

22. 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 s 21(2A) should be read in conjunction with s 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 s 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.

23. 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.)

24. I note that CPI 16 provides 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. The delegate following the general guidance in CPI 16 in relation to Mr Al Kasha; he had attended three appointments and had unsuccessfully attempted the test seven times.

25. In his submissions at the hearing, Mr Al Kasha said that he had not undertaken any English language courses in preparation for the test but had been assisted by his wife and daughter. He conceded that he had not successfully completed the test on seven occasions but asked for “one more chance” to complete the test. When asked if he had undertaken more preparation since the refusal decision, Mr Al Kasha said that he planned to do so.

26. 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 after seven attempts. In the absence of any special reason submitted as to why the Applicant was unable to complete the test on the seven attempts he has made, I do not believe it would be proper for the Tribunal to remit the matter directing that the Department allow him ‘one further attempt’, as requested by the Applicant. It would also be inconsistent with the Federal Court’s reasoning in Zadeh.

27. There is no discretion for a decision-maker to waive the requirement for Mr Al Kasha to undertake the test. It is a mandatory requirement under s 21(2A)(d) of the Act. Mr Al Kasha is aged 54, so he does not qualify for the age exemption from the test and has not submitted an application that he suffers from an enduring physical or mental incapacity.

28. I therefore found that it would be futile to extend time, because Mr Al Kasha cannot succeed on a substantive review of his application, given he does not contest that he has not successfully completed the citizenship test.

29. Mr Al Kasha asked the Tribunal for advice on what he should do. I emphasised that the Tribunal is separate from the Department. In addition, it is not the purpose of the Tribunal to provide advice to applicants. However, having said that, I noted that the Department has online tools to assist persons planning to sit the citizenship test. This includes a ‘practice citizenship test’ designed to help people prepare. Mr Al Kasha may find these aids useful if he lodges a fresh application for Australian citizenship. I also noted that there is no limit on the number of applications a person may make under the Act.

    The Applicant’s spouse

30. Mr Al Kasha said that he had lodged his citizenship application ‘jointly’ with his wife. The Tribunal understood him to mean that they lodged their applications at the same time. He said his wife had successfully completed the citizenship test but had not received any advice from the Department on whether her application had been approved. Mr Al Kasha said that, on making inquiries to the Department on progress, they had been told her application was still being considered, depending on the outcome of these proceedings.

31. I made the point that, as they are both adults, there was no apparent reason that Mr Al Kasha’s application and his wife’s application would not be considered separately. Ms Calabrese said she had no information on any application linked to the Applicant. I told Mr Al Kasha that I would provide written reasons for the oral decision that would be conveyed to the Department through the Minister’s legal representatives. I said that Mr Al Kasha or his wife could take these written reasons to the Department, if they wished, in relation to progress with her application. There is no reason before me that this decision should have any effect on the Applicant’s wife’s citizenship application. Of course, her application would have to be discretely considered in relation to satisfaction of all the relevant provisions in the Act, not just the successful completion of the citizenship test.

    DECISION

32. The Tribunal refused to extend time under s 29(7) of the AAT Act for the Applicant to lodge his application for review. The application has no prospect of success.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 9 January 2023

Date of interlocutory hearing:	9 January 2023
Applicant:	Mr Basheer Al Kasha (Self-represented)
Advocate for the Respondent:	Ms Claudia Calabrese
Solicitors for the Respondent:	The Australian Government Solicitor