Diing and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)
[2024] AATA 2407
•12 July 2024
Diing and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 2407 (12 July 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8914
Re:Adhel Anei Ken Diing
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr John Cipolla, Senior Member
Date:12 July 2024
Date of written reasons: 12 July 2024
Place:Sydney
The decision under review is affirmed.
...................[sgd].....................................................
Mr John Cipolla, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied sections 21(2)(d), (e), (f) – successful completion of citizenship test requirement – Applicant failed to attend any scheduled appointments to sit and complete citizenship test – administrative instruments – right to sit and resit citizenship test – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23, 24
CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92
Maez and Minister for Home Affairs (Citizenship) [2019] AATA 1647
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964
Zadeh and Minister for Home Affairs (Citizenship) [2018] AATA 2145SECONDARY MATERIALS
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020
Determination for the Approval of a Citizenship Test (Section 23A) – IMMI 11/088
REASONS FOR DECISION
Mr John Cipolla, Senior Member
12 July 2024
Adhel Anei Ken Diing (the Applicant) is seeking a review of a decision by a delegate of the Minister (the Respondent) to refuse her application for citizenship by conferral under provisions of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant currently holds South Sudanese citizenship. She first arrived in Australia on 29 May 2013 as the holder of a Partner (Provisional) (Subclass 309) visa holding a Higher Education Sector (Subclass 573) visa and she currently holds a Partner (Subclass 100) visa which was granted to her on 6 August 2014.
On 24 August 2023, the Applicant lodged an application for citizenship by conferral, which was refused by the Respondent on 22 November 2023 (citizenship refusal decision).
The Applicant applied for a review of the citizenship refusal decision to the Administrative Appeals Tribunal (the Tribunal) on 29 November 2023 and the matter was heard on 11 July 2023.
The hearing was conducted via video conferencing facilities in the Tribunal’s Sydney Registry.
CITIZENSHIP BY CONFERRAL
The grant of citizenship to persons who do not have an automatic right to it is a process provided for under various sections of the Act. In effect there are two stages involved in the grant of citizenship by conferral:
(a)Under subsection 21(2) any Applicant applying under the general eligibility criteria is required to meet all of the criteria specified therein; and
(b)Under section 26 a person qualified under section 21 must make a pledge of commitment before the grant of citizenship is enlivened.
Even if all of the relevant criteria under section 21 are fulfilled it does not follow automatically that citizenship will be granted if, for example, the Minister determines that there are national security or other specified grounds for refusal.
The criteria specified under section 21 are as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
It can thus be seen that subsection 21(2) sets out a series of criteria listed from (a) to (h). Within that cohort, paragraphs 21(2)(d), (e) and (f) are satisfied only if an Applicant has taken and successfully completed the “citizenship test” as defined in section 23A. Details relevant to the test are discussed below.
THE BASIS OF THE REFUSAL DECISION
The assessment by the delegate in relation to the Applicant’s citizenship application was that she did not satisfy sections 21(2)(d), (e) and (f) of the Act because she had not sat and passed the citizenship test. Having reached this conclusion, the delegate did not proceed any further, thus making no determination in relation to paragraphs (2)(g) and (h).[1]
[1] Section 37 Tribunal documents (T documents) at 22-24.
On 25 August 2023, the Department sent the Applicant a letter to her nominated address for service of correspondence (an email address) which informed the Applicant of her obligation to keep the Department informed of any change of circumstances, including changes to her contact details.
It was not that the Applicant “failed” the citizenship test but rather that, on numerous occasions, the Applicant failed to attend to undertake it.
On 15 September 2023 the Department invited the Applicant to attend a citizenship interview with a standard citizenship test scheduled for 16 October 2023. The invitation was sent by the Department to the Applicant’s nominated email address. The Applicant failed to attend the scheduled interview.
On 18 October 2023, the Department invited the Applicant to attend another citizenship interview with a standard test on 23 October 2023. The invitation was sent to the nominated email address provided by the Applicant and in the letter noted that if the Applicant failed to attend the scheduled appointment, a decision may be made on the application based on the information that was before the Department. The Applicant failed to attend the appointment scheduled for 23 October 2023.
The evidence before the Tribunal indicates that on 23 October 2023 an officer of the Department attempted to call the Applicant but was unsuccessful in doing so.
The evidence before the Tribunal confirms that the Applicant was invited to attend two scheduled standard citizenship tests on 16 October 2023 and on 23 October 2023 and that she failed to attend the scheduled appointments each time, with no explanation for her non-attendance.[2]
[2] Respondent’s statement of facts, issues and contentions dated 17 April 2024, 2-3.
THE APPLICANT’S EVIDENCE
In written evidence to the Tribunal provided in a statutory declaration from Mr William Majok a friend of the Applicant and her nominated person for the purposes of her citizenship application, the Applicant has advanced a number of reasons as to why she failed to attend the scheduled appointments and undertake the standard citizenship test.[3]
(a)The Applicant lacks the knowledge to access and use her email address. The Applicant’s email address was created by Mr William Majok for the purposes of the citizenship application and was the Applicant’s first ever email address. The Applicant depends on her 11-year-old daughter to log onto the desktop computer and to access her email and log onto the website where she can practice for the citizenship test;
(b)the Applicant’s Internet connection at home is not reliable and whilst attempting to complete the citizenship application form online, the Applicant’s Internet was slow and would time out or appear to disconnect. Mr William Majok in his statutory declaration dated 21 March 2024 stated that when he has attempted to use his own mobile phone at the Applicant’s premises that he needs to go to the front or back yard in order to get any service;
(c)the Applicant has no access to email on her mobile phone as she does not have a smart phone which enables this connectivity;
(d)the Applicant has little time to use a computer as she is the mother of eight children aged between 2 and 11 years of age and that her older children fight over access to the family computer;
(e)the Applicant is unfamiliar with the application process in particular how appointments are notified, and the Applicant expected to receive notification with respect to her citizenship interview via both an email and letter in the post which replicates the mechanisms in which she is notified by Centrelink;
(f)Mr William Majok in his statutory declaration dated 21 March 2024 states that at a Tribunal conference on 7 March 2024, the Department advised that they had attempted to contact the Applicant. Mr Majok explained that the Applicant, due to her limited communication skills and fear of scams for which she has been negatively impacted, was reluctant to answer private numbers or unfamiliar numbers. The Applicant also advised through Mr Majok that at times her children will respond to her phone calls that come through her mobile phone and will hang up.
[3] Applicant’s Submission made by Mr William Majok dated 21 March 2024 for Review of Decision: TB2, 1-4.
REVIEW HEARING 11 JULY 2024
The Tribunal conducted a review hearing on 11 July 2024 via video conferencing facilities. Attending the review hearing was the Applicant who was accompanied by a support person, Ms Lisa Malcher, from Catholic Care Western Sydney and the Blue Mountains, Ms Emily Maker, solicitor from Sparke Helmore Lawyers representing the Minister and an accredited Dinka interpreter.
At the outset of the review hearing the Tribunal welcomed the parties to the AAT. The Tribunal noted that the issue before the Tribunal was a decision to refuse the Applicant’s application for citizenship by conferral on the basis that she had failed to sit a citizenship test at the time of the Ministers decision. The Tribunal noted that the Applicant had sought a review of the decision of the Minister to refuse her application for citizenship by conferral.
The Tribunal noted that the AAT was an independent and impartial body that had been set up by the Australian government to conduct reviews of Federal government decisions. The Tribunal noted that it was independent from government and was tasked with carefully reviewing all the evidence before it and determining the correct and preferable decision in the review applying the relevant law. The Tribunal noted for the Applicants benefit that after conducting the review the Tribunal may affirm the decision under review or it may set the decision aside and in doing so that the Tribunal must give clear reasons for the outcome of the review. The Tribunal outlined the respective procedures for the hearing. The Tribunal also numbered the respective exhibits before it.
The Applicant advised the Tribunal that she did not read her emails regularly. The Tribunal clarified whether this meant that she did not read her emails all the time or whether she never read her emails. The Applicant stated that she does not read her emails because she needs assistance to access and read her emails. The Applicant stated that somebody read her emails and told her that she would need to make a new appointment to sit the citizenship test. The Applicant stated that she missed two invitations to sit the test because of her problems with engaging with emails.
The Tribunal noted that the law with respect to the review before it was clear and prescriptive. The Tribunal asked the Applicant and respondent’s representative whether the parties had engaged in ADR prior to the review hearing. The respondent’s representative advised that the Applicant, through her friend Mr Majok, did attend ADR where the respective issues in the review were fully explained. Further to this that after the ADR process the Applicant wished to continue with the review hearing.
The Tribunal noted again that the law with respect to an application for citizenship by conferral was clear and prescriptive. The Tribunal made reference to the respondent’s statement of facts, issues and contentions at page 3, paragraph 12. For the benefit of the parties and the interpreter the relevant paragraph was displayed on the screen and the paragraph was interpreted for the benefit of the Applicant. The Tribunal noted that the delegate found there was no information before the Department to indicate that the Applicant had sat and successfully completed the Australian citizenship test. The Tribunal noted that accordingly, the delegate could not be satisfied that the Applicant met the criteria in sections 21(2)(d), (e) and (f) of the Act. The Tribunal made direct reference to the legislative provisions with respect to general eligibility for a grant of citizenship by conferral. The Tribunal noted that it was imperative that a person sit the citizenship test so that the delegate can determine whether they have an understanding of the nature of the application under subsection 21(1) of the Act, whether they possessed a basic knowledge of the English language and whether they had adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. The Tribunal noted that in the absence of an Applicant sitting a test that these three legislative requirements were unable to be tested.
Ms Malcher, for the Applicant, advised that through the hearing process that the respective issue in the review had become abundantly clear. Ms Malcher noted that the Applicant had formed the erroneous view that she was not able to set a further citizenship test because she had failed to sit to previously arranged tests. Through the hearing process it had become apparent that the Applicant was not precluded from sitting a further test and that the purpose of the test was to enable the delegate to determine whether the Applicant met the legislative requirements for general eligibility to become an Australian citizen. The only way that this could be tested was by and Applicant actually undertaking the citizenship test.
The Tribunal deferred to the respondent’s representative Ms Maker to make any closing submissions. Ms Maker referred to the general eligibility requirements found in section 21(2) of the Citizenship Act, specifically sections 21(2)(d), (e) and (f). Ms Maker described these provisions as the ‘knowledge requirements’ under the legislation acted as a checklist and that an Applicant needed to meet these requirements before an application was approved. Further to this the only way a person could meet the citizenship requirements was to sit the test. Ms Maker noted that as the Applicant had not sat the citizenship test and hence, she was unable to meet the requisite knowledge requirements mandated by the legislation. Because she cannot meet those requirements which are mandatory, her application for citizenship could not be successful and that the Tribunal was left with little other option but to affirm the decision under review. Ms Maker confirmed that the Applicant was not precluded from making future citizenship applications. Ms Maker noted that in the meantime the Applicant could enjoy the rights attached to her permanent resident status. The hearing concluded.
CONSIDERATION BY THE TRIBUNAL
The immediate question arises as to whether the Tribunal should give any consideration, let alone weight, to the Applicant’s explanations for non-attendance.
In Jaber and Minister for Home Affairs[4] Member Bygrave held that:
The wording of subsection 21(2A), that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied “if and only if” the Applicant has sat and successfully completed the citizenship test, is unambiguous; the Tribunal has no discretion to consider the Applicant’s circumstances or her reasons for not successfully completing the citizenship test.
[4] Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92, [13].
There is no basis for departing from that proposition.
The Applicant was notified by the Department of the tests scheduled for 16 October 2023 and 23 October 2023 via e-mail which was her stated preference for the provision of correspondence from the Department. Due to a range of factors that have been outlined in Mr Majok’s statutory declaration submitted on behalf of the Applicant, she did not access her e-mails and did not attend either of her scheduled citizenship test appointments. The Tribunal accepts that the Applicant experienced difficulties with engaging with Departmental e-mails for the stated reasons. The evidence indicates that the Applicant now has supports and systems in place to engage with official correspondence. However, at the time of her citizenship test appointments the Applicant did not, and that was at her peril.
THE CITIZENSHIP TEST
The form, nature and conduct of the citizenship test itself is established by an administrative instrument made by the Minister.
In that instrument the Minister determines such matters as the way in which the test may be taken, the time allocated for the test and the pass mark required.
At the time of the Applicant’s citizenship application and the Applicant’s various appointments to undertake the citizenship test, the relevant instrument applicable at those times was the Approval of a Citizenship Test Determination 2020 (Section 23A) – IMMI 20/085 dated (2020 Instrument) as amended and in force from 17 June 2023. That 2020 Instrument provided, inter alia, for two types of test: Standard and Assisted.
The 2020 Instrument as in force on 17 June 2023 with some parts to commence applies to persons who made their application for citizenship by conferral on or after the commencement day, it also applies to a person who:
(a)made an application for citizenship by conferral before the commencement day of the 2020 Instrument; and
(b)had not, before the commencement day, successfully completed a citizenship test approved by the Minister under subsection 23A(2) of the Act in relation to that application.[5]
[5] Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020, sch 3.
As the Applicant has not taken and successfully completed the citizenship test, the 2020 Instrument is therefore applicable to the Applicant in this case.
WAS THE TEST: PASSED OR NOT PASSED
The procedure relating to the citizenship test must be complied with, and a grant of citizenship cannot be made unless and until the citizenship test requirements have been satisfied, except, for example, where the provisions of subsections 21(3) or (4) are engaged. These provide that an Applicant may be excused from passing the citizenship test if he/ she has a permanent or enduring physical or mental incapacity to do so, is aged over 60 years, or is aged over 18 years but suffering from a permanent loss or substantial impairment of hearing, speech or sight at the relevant time. There are also other exceptions provided in subsections 21(5), (6), (7) and (8) which relate to persons under 18 years, persons born to former Australian citizens, persons born in Papua and stateless persons.
None of those exceptions apply here.
There is nothing provided by way of information from the Department, either directly to Applicant or via the Department’s website, which specifies anything about time limits for the completion of the overall citizenship test process.[6] However, Applicants genuinely wishing to obtain citizenship are able to discuss with the Department any difficulties they have in arranging to sit the test. It does not appear that the Applicant made any direct personal approaches to the Department to discuss her matter, relying exclusively on dealing with requests for rescheduling online. The Tribunal as has been noted is fortified by the fact that the Applicant has relevant support persons to assist her with this process going forward.
[6] As distinct from the specified time limits for sitting the actual test.
Nevertheless, as Senior Member Puplick made clear in Maez:
Failure to attend, sit and pass the citizenship test means that any application for a grant of citizenship (save where a relevant exemption applies) must necessarily fail and any challenge to that determination has no prospect of being successful.[7]
[7] Maez and Minister for Home Affairs (Citizenship) [2019] AATA 1647, [37].
CONCLUSION
This application is unable to succeed. The Applicant has not sat and passed the citizenship test. The Minister and the Tribunal standing in the shoes of the original decision maker, under the Act, cannot find that the Applicant has successfully completed the test when she, in fact, has not. The Applicant’s reasons for not sitting the test are not relevant. Having given the Applicant the opportunity to sit the test, the Minister has the right, in such circumstances, to determine the application and no ground has been advanced to claim that the Minister’s decision was irrational or improper.
As the Tribunal said in Nicholls:
The Applicant was correctly notified and given proper opportunity to sit the test. Her own personal circumstances and explanations do not mean that the decision was unlawful or incorrect or that it was not the preferable decision. The Tribunal is of the view that administrative decision-making needs to be amongst other things, finalised in a timely manner, giving regard to the full circumstances of the case.[8]
[8] Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964, [24].
The Applicant is not precluded in any way from submitting a new application for citizenship,[9] and if she is serious about obtaining Australian citizenship, she is able to continue to undertake the necessary study for the test and to ensure that she makes herself both contactable and available to sit the required citizenship test.
[9] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Mr John Cipolla, Senior Member
..............................[sgd]..........................................
Associate
Dated: 12 July 2024
Date(s) of hearing: 11 July 2024 Applicant: In person (by video) Advocate for the Applicant: Ms L Malcher, Catholic Care Western Sydney and the Blue Mountain Solicitors for the Respondent: Ms E Maker, Sparke Helmore Lawyers
0
4
0