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

Dostkam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5627 (28 November 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6087
Re:Ibrahim Dostkam
APPLICANT

Minister forAnd Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:28 November 2019
Date of written reasons: 3 January 2020
Place:Sydney

The decision under review is set aside and remitted with a direction that:
(1)The application be reconsidered with reference to the criteria in subsection 21(2) of the Act;
(2)The Applicant be given the opportunity to sit the citizenship test provided for in s 21(2A) of the Act within 28 days of the date of this decision.

.........................[SGD]...............................................
Senior Member Linda Kirk
CATCHWORDS
REFUSAL OF CITIZENSHIP – application for Australian citizenship – citizenship test – general eligibility – exemption from citizenship test – permanent or enduring physical or mental incapacity – validity of citizenship application – jurisdiction – decision set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Re Aston and Secretary, Department of Primary Industry(1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Regulation 2016
Australian Citizenship Policy
REASONS FOR DECISION
Senior Member Linda Kirk
3 January 2020
APPLICATION FOR REVIEW

Mr Ibrahim Dostkam (‘the Applicant’) was born in 1986 and is stateless. He arrived in Australia on 7 March 2010.[1] On 18 August 2010, the Applicant was granted a Protection (Class XA) (Subclass 866) permanent visa.[2]
[1] Exhibit R2.
[2] Exhibit R2.
On 26 August 2014, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). He completed and lodged with the then Department of Immigration and Citizenship (‘the Department’) a Form 1300t ‘Application for Australian Citizenship - General Eligibility’, dated 25 August 2014.[3]
[3] Exhibit R1, 37-45.
On 15 September 2014, the Applicant attended but failed three citizenship tests as defined under s 23A of the Act.[4] On 29 September 2014, he attended a further citizenship test appointment but was unable to complete the citizenship test due to a computer system failure.[5]
[4] Exhibit R2.
[5] Exhibit R2.
The Applicant had earlier obtained a letter from Dr Reza Pishyar dated 19 August 2014 and a letter from Dr Karima Attia-Soliman dated 18 August 2014,[6] and had completed and signed a Form 1290 ‘Application for Australian citizenship – Other situations’ on 19 August 2014.[7] On 9 October 2014, the Applicant provided these to an officer of the Department. On 3 November 2014, the Applicant was interviewed by an officer of the Department.
[6] Exhibit R1, T4, 27-36.
[7] Exhibit R1 T5.1, 46-48.
On 25 September 2017, the Department requested further information from the Applicant. In response, he provided a further letter from Dr Pishyar dated 6 March 2018.[8]
[8] Exhibit R1 T10, 81-87.
On 20 September 2018, the citizenship application was refused by a delegate of the Minister for Home Affairs (‘the Respondent’) as the delegate was not satisfied that the Applicant met the criteria under s 21(3)(d) of the Act (‘the Reviewable Decision’).[9]
[9] Exhibit R1, T3.1, 19-26.
On 20 October 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[10] Under the section ‘Reasons for the application’, the Applicant stated that he wished to revert to his original application for Australian citizenship as he no longer seeks to satisfy s 21(3) of the Act.
[10] Exhibit R1, T1, 1-6; T1,1 7-8.
The matter was heard in Sydney on 28 November 2019. The Applicant attended the hearing in person and was self-represented. The Applicant gave evidence with the assistance of an Arabic language interpreter.
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions;
·Section 37 T-Documents (pages 1 to 117) (Exhibit R1);
·Annexure A to the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R2); and
·Medical Report of Dr Banks dated 20 August 2019 (Exhibit R3).
LEGISLATIVE FRAMEWORK
Australian Citizenship Act 2007
Consideration of citizenship application
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve a person becoming an Australian citizen.
Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister) must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7) or (8) of the Act.
Application requirements
Section 46 of the Act provides the requirements for a citizenship application:
(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.
(1A) For applications made under section 21 by persons who, in order to be eligible to become an Australian citizen under subsection 21(2), must have sat a test approved in a determination under section 23A, the fee prescribed by the regulations may include a component that relates to the sitting of that test.
Approval of forms
(2) The Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made.
…
Remission, refund or waiver of fees
(3) The regulations may make provision for and in relation to the remission, refund or waiver of any fees of a kind referred to in paragraph (1)(d).
Application fees
Clauses 16 and 17 of the Australian Citizenship Regulation 2016 provide for the payment and refund of fees for citizenship applications.
16 Fees to accompany applications
(1) For the purposes of paragraph 46(1)(d) of the Act, the fee to accompany an application under a provision of the Act is the sum of:
(a) the amount (the Schedule 3 amount) set out in Schedule 3 for the application; and
…
17 Refund of fees under subsection 46(3) of the Act
(1) The Minister may refund the whole or part of a fee that has been paid under section 46 of the Act in relation to an application made under section 16, 19C, 21 or 29 of the Act in any of the following circumstances:
(a) a person has previously made an application under the same section and a decision on that application has not been made;
(b) a person has made an application as a result of incorrect advice given by the Department;
(c) a person is an Australian citizen;
(d) a person has paid an incorrect fee.
Eligibility criteria
The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in section 21 of the Act. The provisions relevant to the determination of this application are as follows:
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(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.
In order for citizenship to be granted, an applicant must satisfy all of the eight requirements that are listed in s 21(2). Subsections 21(2)(d), (e) and (f) can only be satisfied if the applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of the responsibilities and privileges of citizenship. This is demonstrated by the applicant successfully completing the citizenship test provided for in s 21(2A) of the Act.
(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.
Citizenship Test
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A(4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)), and the time limits within which the test must be completed (s 23A(5A)).
Successful completion of the citizenship test is an integral requirement for the grant of citizenship. The test is designed to establish that an applicant both understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement in regard to competency in the English language.
Exemption from the Citizenship Test
By virtue of s 21(3) of the Act, if the Minister is satisfied that an applicant meets the general eligibility and residence requirements but is unable to meet the requirements of ss 21(2)(d),(e) or (f) due to “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, they will be entitled to the grant of citizenship.
Permanent or enduring physical or mental incapacity
(3) 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) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e) 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
(f) is of good character at the time of the Minister's decision on the application.
Citizenship Policy
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry(1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
In relation to s 21(3), the Citizenship Policy states:
For applications received on or after 9 November 2009 for consideration under s 21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
…
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
…
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or
·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
…
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis. [11]
[11] Australian Citizenship Policy, pp. 71-74.
To meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizenship application, or acquire basic English language competency or understand the responsibilities and privileges of citizenship.
In order to demonstrate this, the applicant must produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
If those conditions are satisfied, then ‘s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test’.[12]
[12] Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
EVIDENCE BEFORE THE TRIBUNAL
At the hearing, the Applicant confirmed he completed and signed a Form 1330t ‘Application for Australian citizenship – General eligibility’ dated 25 August 2014. He told the Tribunal that he paid the application fee of $40 by way of money order which he sent by express post to the Department. This Form is before the Tribunal and is stamped ‘Received’ on 26 August 2014 at the Department office in Parramatta, New South Wales.[13] Two weeks later the Applicant received a letter from the Department informing him he was to go and sit the test in Parramatta in 10 days.[14]
[13] Exhibit R1, T5, 37-45.
[14] Transcript p 27.
The Applicant confirmed he also completed and signed a Form 1290 ‘Application for Australian citizenship – Other situations’ dated 19 August 2014.[15] He told the Tribunal that his doctor (Dr Reza Pishyar) helped him to fill out this form.[16] The Applicant explained to the Tribunal that the reason why he filled out two forms was because he wanted to convince himself and others that he was able to sit the test.[17]
[15] Exhibit R1, T4, 27-36.
[16] Transcript p29.
[17] Transcript p29.
The Applicant sat the citizenship test three times in Parramatta on 15 September 2014 and failed on each attempt.[18] He was told to go home and wait for another invitation to sit the test. On 29 September 2014, he went back to sit the test and was told that the computers were down and everyone who was waiting was told to go home.[19] About 10 days later he returned and was told that the computers were down again and everyone was told to leave. They were told, ‘We apologise, this is how the system is now’.[20]
[18] Exhibit R2; Transcript p30.
[19] Exhibit R2; Transcript p30.
[20] Transcript p30.
The Applicant told the Tribunal that during these weeks, he was preparing for the test until three or four in the morning but was unable to sit it because the system was always down. He became really upset because he was unable to sit the test. He asked whether he could do a written test on paper and was told that it was not possible for him to do so.[21]
[21] Transcript p30.
On 9 October 2014, the Applicant spoke to an officer at the Department and told her that he had letters from his doctors, Dr Pishyar[22] and Dr Karima Attia-Soliman,[23] and he gave these to her.[24] She read the letters and then made a computer entry. She told the Applicant that he will receive a letter in 20 days and then he will need to go to Central for an interview.[25] She said he would not have to sit a test but would just be asked a few questions.[26]
[22] Exhibit R1, T5.2, 46.
[23] Exhibit R1, T5.2, 47.
[24] Exhibit R2.
[25] Transcript p 30.
[26] Transcript p30.
In his letter dated 19 August 2014, Dr Pishyar, Clinical Psychologist, wrote that the Applicant suffers from schizoaffective disorder, conversional disorder and post traumatic stress disorder (‘PTSD’). He noted also that the Applicant reported sleep disturbance, nightmares and “frequent waking throughout the night”. In a letter dated 18 August 2014, Dr Attia-Soliman, Psychiatrist, reported that the Applicant suffers from PTSD, chronic schizoaffective disorder and severe generalized anxiety disorder.
On 3 November 2014, the Applicant went to Central and spoke to a Department officer who checked his identification and the Applicant gave him the original completed and signed Form 1290.[27] The officer entered these details into the computer and took the Applicant’s photograph. The Applicant was told he would receive an answer in eight weeks as to whether his application for citizenship was approved or rejected.
[27] Transcript p31.
At the hearing, the Applicant was asked whether he made a payment to the Department during this visit and he said he did not.[28] The only payment he made was the original payment made by money order that he mailed to the Department when he lodged the Form 1300t application in August 2014.[29]
[28] Transcript p32.
[29] Transcript p33.

Following his attendance at the Department in November 2014, the Applicant heard nothing from the Department for almost one year.[30] He phoned the Department on three or four occasions to make inquiries about the progress of his application and he was told it was ‘being processed’.[31] He was eventually asked to complete a Form 80 ‘Personal particulars for assessment including character assessment’ which he signed and dated 17 December 2015.[32] He sent it by express post back to the Department and it was received on 18 December 2015.
[30] Transcript p32.
[31] Transcript p30.
[32] Exhibit R2, T7, 55-71; Transcript p35.
On 22 September 2017, a delegate of the Department prepared an ‘Incapacity Assessment Decision Record’.[33] This record refers to the letter from Dr Pishyar dated 19 August 2014 and his opinion that given ‘the applicant’s long history of psychiatric and psychological condition, it is difficult for him to be able to fulfil all the requirements of his citizenship application.’
[33] Exhibit R1, T9, 80.
On 25 September 2017 the Department wrote to the Applicant requesting an up-to-date medical report from another specialist to supplement the letters he had earlier provided from his treating doctors indicating that he has a medical condition which prevents him from sitting the citizenship test. The letter stated that his application ‘is … being assessed under subsection 21(3) of [the Act]’.[34] It asked that this information be provided by the Applicant to the Department within 35 days from the date of the letter.
[34] Exhibit R1, T10, 81.
In response, the Applicant provided a further report from Dr Pishyar dated 6 March 2018.[35] In this letter, Dr Pishyar wrote that the Applicant has been under his care since 2010 and he suffers from schizoaffective disorder, PTSD and conversional disorder. Dr Pishyar further reported that the Applicant has severe stuttering which ‘originated in [his] psychological distress and … shock while in the [Christmas Island] detention centre.’[36]
[35] Transcript p49.
[36] Exhibit R1, T11, 87.
The Respondent provided to the Tribunal a print-out from the Department’s computer system in relation to the Applicant which records ‘Payment’ for ‘Application Lodgement’ of $20 on 29 November 2017. On the same date, there is an entry for ‘Reversed – Payment’ of an unspecified amount.[37] The Respondent contended that this reflects the payment of a $20 fee for the Applicant’s second citizenship application (Form 1290). This Form is before the Tribunal and is unstamped and does not otherwise bear a ‘received’ date. The Applicant was asked whether he paid a further application fee or received a refund from the Department in November 2017. He said he did not.[38] The Respondent accepted that the only fee paid by the Applicant was the $40 he paid in August 2014 when he lodged his first (Form 1300t) citizenship application.[39]
[37] Exhibit R2.
[38] Transcript p32-33.
[39] Transcript p42.
The Applicant received a letter from the Department refusing his application for citizenship on 20 September 2018.[40] The Decision Record states:
The application for conferral of Australian citizenship made by you on 28 August 2014 is in accordance with the requirements of section 46 of the Act and the Regulations and is an application on which I must make a decision.
You have completed Form 1290 Application for Australian citizenship: Other situations, and have indicated at question 16 that you have a permanent or enduring mental incapacity – therefore this assessment has been made in accordance with subsection 21(3) of the Act.
[40] Exhibit R1, T3, 15.
The delegate found that the Applicant did not meet the requirement at subsection 21(3)(d) of the Act as there was no evidence which established that he had a permanent or enduring physical or mental incapacity which rendered him incapable of understanding the nature of his citizenship application, of demonstrating a basic knowledge of the English language or of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at the time of his application.
On 17 October 2018, the Applicant wrote to the Department requesting that his application ‘be reverted back to the original application which is the Australian Citizenship (General) rather than sending a new application.’ He requested that his application ‘be expedited in light of the fact that [his] first application took 4 years to be processed and … for a decision to be made.’ He asked ‘to be treated fairly and be given the opportunity to sit the citizenship test in a timely manner.’[41]
[41] Exhibit R1, T1.2, 9.
The Tribunal asked the Applicant how he thinks he would go if he were now to sit the citizenship test. He said he believes he would need about two to four weeks to prepare for the test and he has to succeed.[42] He wants to become a citizen so he can return to Iran to visit his sister and mother who he has not seen for 13 years.[43]
[42] Transcript p38.
[43] Transcript p37.
Respondent’s submissions
The Respondent contends that there is only one valid application for Australian citizenship by conferral made by the Applicant on a Form 1300t (General eligibility) which satisfies the requirements under s 46 of the Act.[44] This is the application lodged on 26 August 2014 pursuant to s 21(1) of the Act (‘the first citizenship application’). However, the Applicant subsequently requested for his application to be assessed against s 21(3) of the Act and he submitted the Form 1290 (Other situations) dated 19 August 2014 (‘the second citizenship application’). In November 2017, the Department refunded the application fees paid by the Applicant for the first citizenship application, and only required the payment of $20.[45] The second citizenship application on the Form 1290 superseded the first citizenship application or rendered it invalid as there was no longer a fee paid for this first application. The Applicant’s application for Australian citizenship was then assessed under s 21(3) of the Act on the basis that he was suffering from a permanent and enduring mental incapacity.[46]
[44] Respondent’s SFIC at [20]; Australian Citizenship Regulation 2016 Schedule 3, Item 13.
[45] Respondent’s SFIC at [20; Australian Citizenship Regulation 2016 Schedule 3, Item 10.
[46] Respondent’s SFIC at [20].
It is apparent from the structure of s 21 of the Act that the eligibility criteria in ss 21(2) to (8) are not mutually exclusive. The delegate was correct (and empowered) to assess the application against s 21(3) of the Act as requested by the Applicant.[47]
[47] Respondent’s SFIC at [21].
The Respondent contends that the Tribunal’s jurisdiction is limited to reviewing the delegate’s decision dated 20 September 2018. As such, even if the Applicant does have an outstanding valid application for Australian citizenship by conferral, the Tribunal does not have jurisdiction over a decision that is yet to be made: s 52 of the Act.[48]
[48] Respondent’s SFIC at [22]; Transcript p49.
The letters from Dr Pishyar and Dr Attia-Soliman do not provide any details on the tests that they conducted on the Applicant in forming their professional opinion.[49] In contrast, the Respondent’s expert Dr Banks, Consultant Clinical Psychologist, reached his conclusion by administering cognitive and psychological function tests during a consultation with the Applicant on 9 July 2019.[50] Therefore the report of Dr Banks should be preferred over those of Dr Pishyar and Dr Attia-Soliman because of the more detailed and thorough assessment presented, the evidence of the application of the relevant test, and a more detailed appreciation of the processes of the citizenship test.[51]
[49] Respondent’s SFIC [26].
[50] Respondent’s SFIC [27]; Transcript p49.
[51] Respondent’s SFIC [30]; Transcript p49.
If the Applicant wishes to make another application for citizenship, he can do so upon lodgement of a new form and payment of a $40 fee.[52]
[52] Transcript p49.
CONSIDERATION AND REASONS
The Tribunal is required to determine whether or not the Applicant qualifies for citizenship by conferral under s21 of the Act.
The evidence before the Tribunal is that the Applicant lodged his first citizenship application on a Form 1300t (General eligibility) which was stamped as ‘Received’ by the Department in Parramatta on 26 August 2014. He sat three citizenship tests and was unsuccessful at each attempt. On 9 October 2014, he gave the Respondent two letters from his doctors in which they provided their opinion that he was unable, by reason of his medical condition, to complete the citizenship test. The Applicant gave the second citizenship application, a Form 1290 (Other situations), to the Department officer together with the letters from his doctors. He did not pay a second application fee nor did he withdraw his first citizenship application. The second citizenship application was not stamped ‘Received’ although an entry to this effect was made in the Department’s computer system on 9 October 2014. It was not until 29 November 2017 that two entries were made in the Department’s computer system in relation to the Applicant, being ‘Payment’ for ‘Application Lodgement’ of $20 and ‘Reversed - Payment’ of an unspecified amount.
The Decision Record records the date of lodgement of the Applicant’s citizenship application as 28 August 2014 which corresponds with the Applicant’s first citizenship application on Form 1300t signed and dated by him on 25 August 2014 and stamped ‘Received’ by the Department in Parramatta on 26 August 2014.
There is no evidence before the Tribunal that the Applicant withdrew his first citizenship application. The Tribunal does not accept the Respondent’s submission that this application was rendered invalid following a refund to the Applicant of $20 by the Department on 29 November 2017. The Tribunal accepts the Applicant’s evidence that he did not receive a refund of $20 in November 2017 or at any other time. The printed record from the Department’s computer system that reads ‘Reversed – Payment’ of an unspecified amount does not contradict this finding.
The Tribunal accepts the Applicant’s evidence that he provided the completed Form 1290 to a Department officer in November 2014 and that he was not asked to pay a further application fee. Notwithstanding the entry in the Department’s computer system of a ‘Payment’ of $20 on 29 November 2017, the Tribunal accepts the Applicant’s evidence that he did not make a payment of this amount on this date. The Tribunal does not accept that the second citizenship application ‘superseded’ the first citizenship application lodged in August 2014. The Tribunal finds that the second (Form 1290) citizenship application was not a valid application as it was not accompanied by the required fee under Schedule 3 of the Australian Citizenship Regulation 2016.
The Reviewable Decision dated 20 September 2018 could only have been made with respect to the valid (Form 1300t) first citizenship application dated 25 August 2014 and stamped ‘Received’ by the Department on 26 August 2014. The delegate made a finding that the Applicant did not satisfy subsection 21(3)(d) of the Act for reason that he did not have a permanent or enduring physical or mental incapacity. It was not open to the delegate to make this finding for reason that the application being considered was one for ‘General eligibility’ under subsection 21(2).
Accordingly, as the Reviewable Decision was not made with reference to the criteria contained in subsection 21(2) of the Act, it must be set aside and a direction made that the valid first citizenship application be reconsidered with reference to the ‘general eligibility’ criteria under this subsection. To meet these criteria, the Applicant must demonstrate he meets the requirements of subsections 21(2)(d), (e) and (f), which can only be satisfied if the Applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of the responsibilities and privileges of citizenship. This is demonstrated by the Applicant successfully completing the citizenship test provided for in s 21(2A) of the Act and administered by the Department. The Applicant must therefore be given the opportunity to sit the citizenship test again.
DECISION
The decision under review is set aside and remitted with a direction that:
(1)the application be reconsidered with reference to the criteria in subsection 21(2) of the Act;
(2)the Applicant be given the opportunity to sit the citizenship test provided for in s 21(2A) of the Act within 28 days of the date of this decision.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.............................[SGD]...........................................
Associate
Dated: 3 January 2020

Date(s) of hearing: 28 November 2019

Applicant: In person

Solicitors for the Respondent: Mr M Gao, Australian Government Solicitor

[2019] AATA 5627

28 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Standing

Statutory Construction

Date(s) of hearing:	28 November 2019
Applicant:	In person
Solicitors for the Respondent:	Mr M Gao, Australian Government Solicitor