Grovogui and Minister for Immigration and Multicultural Affairs (Citizenship)
[2024] AATA 3543
•8 October 2024
Grovogui and Minister for Immigration and Multicultural Affairs (Citizenship) [2024] AATA 3543 (8 October 2024)
Division:GENERAL DIVISION
File Number: 2024/5134
Re:Anne Marie Grovogui
APPLICANT
AndMinister for Immigration and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:8 October 2024
Place:Brisbane
1. The Tribunal orders that the Respondent be the Minister for Immigration and Multicultural Affairs.
2. The Tribunal declines to extend time under s 29(7) of the Administrative Appeals TribunalAct 1975 because it is not satisfied that it is reasonable in all the circumstances so to do. The substantive application has no prospect of success.
..................................[signed]......................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – where applicant is a citizen of the Republic of Guinea – where applicant holds permanent visa – where applicant applied for Australian citizenship by conferral – where applicant satisfies certain requirements – where applicant has not successfully completed citizenship test – applicant had reasonable opportunities to complete the test – not unreasonable of respondent to decide on application – mandatory requirement not met – citizenship refused
PRACTICE AND PROCEDURE – where applicant lodges application out of time – where applicant also applies for extension of time – reasons for lateness – bereavement – challenges with English – applicant cannot succeed on substantive review – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Electronic Transactions Act 1999 (Cth)Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (Compilation no. 2) (2 June 2023)
Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 576
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087; [1975] All ER 1084
Secondary Materials
Australian Citizenship: Our Common Bond; Department of Home Affairs (2020)
Citizenship Procedural Instructions – CPI 16 – Australian Citizenship Test
REASONS FOR DECISION
Senior Member D. J. Morris
8 October 2024
Preliminary
On 29 July 2024, Her Excellency the Governor-General assigned the Australian Citizenship Act 2007 (‘the Act’) to the portfolio of the Minister for Immigration and Multicultural Affairs. The Tribunal therefore makes an order formalising that Minister as the Respondent in these proceedings.
BACKGROUND
Mrs Anne Marie Grovogui is a citizen of the Republic of Guinea. She has resided in Australia for a number of years and holds a permanent resident visa. On 10 November 2022, she applied for Australian citizenship by conferral, under the Act.
On 14 March 2024, a delegate of the then Minister for Immigration, Citizenship and Multicultural Affairs refused to approve the Applicant’s application for Australian citizenship because, although the delegate was satisfied that Mrs Grovogui met certain requirements, the delegate was not satisfied that she met s 21(2)(d) of the Act.
On 22 July 2024, Mrs Grovogui lodged an application for review of the decision to refuse her citizenship, and because her application was beyond the 28-day period which followed the date the Applicant was taken to have received the refusal decision, she also sought an extension of time from the Tribunal.
HEARING
An interlocutory hearing was held by telephone on 3 October 2024, as is permitted under
s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Mr James Pattinson, a friend of the Applicant, appeared at her request as her lay advocate. Mr Jake Kyranis of Sparke Helmore Lawyers represented the Respondent. An interpreter in the French language had been arranged but in the event was not required, because the Applicant did not give evidence. The Tribunal nonetheless appreciates the interpreter’s attendance.
The Tribunal had before it the Applicant’s extension of time request, as well as a written submission from the Respondent opposing the extension of time, dated 12 August 2024, to which was appended a bundle of documents.
The Tribunal also had before it the Decision Record, provided by the Applicant, of a delegate of the Respondent dated 14 March 2024 refusing Mrs Grovogui’s application for citizenship by conferral.
QUESTION BEFORE THE TRIBUNAL
Section 29(2) of the AAT Act provides that the prescribed time, in general, for making applications to the Tribunal is a period commencing on the day a decision in writing was given to an applicant (s 29(1)(d)) and ending on the twenty-eighth day thereafter. In Mrs Grovogui’s case; given she said she received the decision record setting out the refusal decision on 14 March 2024, the clock starts then and ended on 11 April 2024. Mrs Grovogui lodged her application for review on 22 July 2024, which means it was therefore 102 days out of time.
However, s 29(7) of the AAT Act provides that the Tribunal may extend time for making an application for review if it is satisfied in that it is reasonable in all the circumstances to do so. It is important to note that this is an absolute discretion provided by law. However, the Tribunal has generally adopted a set of general principles when considering a request for time to be extended.
So, the question before the Tribunal here is: although Mrs Grovogui lodged her application late, should the Tribunal nonetheless extend time for her application for review of the decision to refuse her citizenship to be considered at substantive review?
EXTENSION OF TIME – GUIDING PRINCIPLES
Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (‘Hunter Valley’) set out some guiding principles, and in the absence of mandatory considerations for the Tribunal in deciding whether it has the state of satisfaction required by s 29(7) (i.e. that time should be extended), it is proper for the Tribunal to have regard to those His Honour set out in that case. This approach was supported by the High Court in Katoa v Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, at [13].
The general principles followed by the Tribunal when considering whether time should be extended 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.
However, His Honour was at pains to stress in Hunter Valley that these principles, or considerations, are not an exhaustive list. There may be other factors which are relevant, and one might override others in terms of exercising the discretion to extend time.
The length of, and reasons for, the delay
In her application for review, the Applicant stated that she received the refusal decision on 14 March 2024.
In the section on the form headed ‘Outline your reasons for applying for an extension of time, including why you did not apply within the time limit’, the Applicant wrote:
My English is not good and I did not understand the refusal email. My friend is now helping me to understand. My Australian husband passed away last year so I have no one to help just our 11 year old daughter.
In the section of the form ‘Why do you claim the decision is wrong?’, Mrs Grovogui wrote:
I failed the test three times. Then my friend [name redacted] explained I was doing the practice on the wrong test site so questions were not the same. I just need another chance now I understand my mistake. Thank you.
Mr Pattinson explained to the Tribunal that he knew the Applicant and her late husband from when they worked together in Africa. He said that the Applicant’s husband died last year and, although he had been in the process of helping his wife apply for citizenship, he had not explained the citizenship test. He had told her to go ‘on-line’ and undertake a practice test.
Unfortunately, Mr Pattinson said the Applicant found an old test on-line, and when she actually attended the Respondent’s Department to undertake the test, none of the questions were familiar to her. He said he thinks she might have got lost on her way to the Department on the first occasion.
The Tribunal asked Mr Pattinson directly what his estimation of Mrs Grovogui’s English ability is. He responded, “Very average, to be honest I would say ‘poor’. She is ok with simple things, but anything more complex would defeat her, such as she would not understand what an interlocutory hearing was.”
The Respondent noted that the letter accompanying the delegate’s decision set out the Applicant’s right to merits review and provided information on both the 28-day time limit and the ways a review could be lodged with a registry of the Tribunal.
The Respondent submitted that the 102-day period between the end of the prescribed time to lodge an application for review and when Mrs Grovogui actually did, is a lengthy delay.
The Respondent accepted what the Applicant said about her difficulties with English but also noted that she acknowledged receipt of the delegate’s decision by email the day after she received it, saying she was sorry and that the English language was a ‘big problem’ for her (Respondent’s bundle, p 13). The Respondent submitted that the Tribunal could take it that the Applicant therefore understood her citizenship application had been refused.
The Respondent also noted the Applicant now says she has a friend who can help her, and submitted that there was no evidence of why she could not have sought assistance earlier, if she wanted to have the refusal decision reviewed. In response to that point, Mr Pattinson said he resides in Western Australia, and it was only when he visited Mrs Grovogui in Queensland in July that he was able to help her, face-to-face.
Is there an arguable case?
Although the interlocutory hearing was about whether time should be extended for Mrs Grovogui to lodge her application for review, the Tribunal must have some regard to the merits of the substantive application in deciding whether to extend time.
When a person applies for citizenship, his or her eligibility is considered under 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, unlike the old citizenship legislation which the Act replaced in 2007, there is no power for an application to be put aside to enable a requirement to be met – the application must be approved or rejected.
The decision record discloses that the delegate was satisfied of certain things. These were the Applicant’s name, her place of birth in Guinea, and her date of birth, and the delegate was therefore satisfied of Mrs Grovogui’s identity. The delegate noted that the Applicant first arrived in Australia in 2011 on a temporary visa and was granted permanent residence with a Spouse (subclass 100) visa in July 2017, a visa the Applicant still holds.
The delegate was satisfied that the Applicant was 18 or over at the time of her application (s 21(2)(a)); that she was a permanent resident (s 21(2)(b)); and that she satisfied the general residence requirement (s 21(2)(c) and s 22).
However, the delegate then got to s 21(2) of the Act. This part of the Act requires that a person must demonstrate that they understand the nature of the application for citizenship (s 21(2)(d)), possess a basic knowledge of the English language (s 21(2)(e)) and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (s 21(2)(f)).
It can immediately be seen that these questions might be somewhat subjective. So s 21(2A) of the Act was inserted to provide that a basic knowledge of English, and an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship are taken to be met ‘if and only if’ the Minister is satisfied that the person has sat a test approved by a determination made under s 23A of the Act, and has successfully completed the test within the period provided for in the determination.
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 on subsequent occasions. It provides, for the Standard Test, 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, as well as 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”.
The Department issues a set of Citizenship Procedural Instructions (CPIs), essentially an internal department manual. CPI 16 – 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.
The decision record stated that an appointment for Mrs Grovogui to sit the citizenship test was scheduled on 15 May 2023 at the Brisbane offices of the Respondent’s Department. The Applicant did not attend this appointment. A second appointment was arranged for 15 June 2023. Mrs Grovogui rescheduled the appointment twice. On 4 August 2023, the Applicant attended the Brisbane office of the Department and made one attempt at the test, but did not pass.
A further appointment was scheduled for 10 January 2024, again at the Brisbane office of the Department. Mrs Grovogui attended, and made one attempt. She did not pass. A third appointment was arranged for 29 February 2024; the Applicant attended this appointment but did not pass the test after one attempt.
The delegate noted that the Applicant twice failed to attend test appointments without advising the Department, and that she was notified of appointment times and given a reasonable amount of time to attend. The delegate decided that as the Applicant had not successfully completed a citizenship test under s 23A of the Act, she did not meet the requirements of the Act in s 21(2) and therefore did not satisfy the requirements in ss 21(2)(d), (e), and (f).
Because of this, the delegate did not go on to assess the other requirements which must be met for the conferral of Australian citizenship.
Would there be prejudice to the other party?
The Tribunal does not consider there would be any substantial prejudice to the Minister or his Department were time to be extended.
CONSIDERATION
How late was the Applicant?
In a case where a document is sent electronically, a person is deemed by force of s 14A(2) of the Electronic Transactions Act 1999 to have received it at the end of the day at which it was sent. There was no dispute between the parties that the Applicant received the rejection decision on 14 March 2024. She did not apply to the Tribunal for review of that decision until 22 July 2024, so I agree with the Respondent that the application was 102 days out of time.
Has the Applicant had a reasonable opportunity to sit the Citizenship Test?
Mr Pattinson submitted that the Tribunal should give the Applicant ‘one more chance’. The Tribunal referred to a Federal Court decision, Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828. In that case, 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 and 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 successfully complete it, he was entitled to sit it again.
The Minister successfully appealed the 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) of the Act should be read in conjunction with s 24 of the Act, which requires applications for citizenship to be determined, i.e. either approved or rejected. The Minister essentially submitted 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 citizenship application.
In setting aside the Tribunal’s decision, Thawley J said, 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 applicant 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.
To be fair to Mr Pattinson, in his submissions on behalf of Mrs Grovogui, he was not squarely putting that she should be able to re-sit the citizenship test an indefinite number of times until she passes, but, equally, by requesting ‘one more opportunity’, coupled with his own candid evidence that the Applicant’s command of English was ‘poor’, the Tribunal has no confidence that there would be a different outcome. My view on that is reinforced by the fact that the report of the Applicant’s attendance on three occasions thus far is that she attempted the test only once during each of those visits to the Department.
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 to waive the requirement for Mrs Grovogui to undertake and complete the test. It is a mandatory requirement.
In terms of the substantive decision which the Applicant would like reviewed, I do not consider it unreasonable for a delegate, in the normal course, to make a decision on an application after a person has attended the Department on three occasions and has not been able to successfully complete the test.
A strong case, or a weak one?
In considering whether to extend time, the Tribunal must look, at a superficial level, at how strong their case may be. They don’t need to have a strong case, but they should have an arguable case.
As Lord Denning MR said in R v Secretary of State for the Home Department: Ex parteMehta [1975] 1 WLR 1087, 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, referred with approval to Lord Denning’s reasoning in this regard, in applications of this kind.
Mr Kyranis, for the Respondent, contended the Applicant did not have a particularly strong case. He was very polite. I consider the Applicant has no case. She has not successfully completed the test, in spite of having several opportunities. She does not contend that one of the exemptions that might be available, age or capacity, is relevant in her case. Her argument, put by Mr Pattinson, is twofold, that her English is not good, and that she was practising on a different version of the test.
With respect to the first argument, that is the whole point of why there is a citizenship test. It is so a person has a working knowledge of English. That helps all of us, citizens or no, in being part of an Australian society where English is the lingua franca. It does not mean that we do not revel in the variety of different languages and cultures that newcomers bring to our Commonwealth of Australia, but it is a basic thing that will help people in their daily lives and – perhaps even more importantly – minimise the prospect that they will become isolated by a language barrier, especially in later life.
SUMMATION
There are two principal reasons why the Tribunal has decided not to exercise the available discretion to extend time. The first is that the application is quite late, not just by a few days, but by 102 days, or around three months. The second is that I consider Mrs Grovogui cannot succeed in her substantive application for review. The Respondent’s Department gave the Applicant several opportunities to sit the citizenship test, and only acted to refuse her application well after she had three times attended the Department, sat the test, and not completed it. There was no caprice by the Respondent in then deciding to refuse the application, because a mandatory requirement had not been satisfied.
The Tribunal told Mr Pattinson it would provide written reasons to assist Mrs Grovogui, should she lodge a fresh application for citizenship. I have recorded above the parts of the Act which the delegate found the Applicant satisfied, and I consider that if she does apply again, consideration will be quicker, because those provisions (such as identity and permanent residence) have already been met to the satisfaction of the Minister’s delegate.
I emphasise that Mrs Grovogui’s status as a permanent resident of Australia is not affected by this decision. It is open to her to lodge a fresh application for Australian citizenship. It is not the role of the Tribunal to offer advice to an applicant, but given that the Tribunal only has a few days before it is abolished, I will permit myself to do so.
The Department of Home Affairs has on its website (immi.homeaffairs.gov.au) a page headed ‘The Australian citizenship practice test’. It also has a link to a resource booklet titled Australian Citizenship: Our Common Bond, which the website states ‘has all the information you need to prepare for the citizenship test’. This is the best direct resource for a person planning to sit the test – and is to be preferred to any of the other ‘tests’ that may be found on the Internet.
Mrs Grovogui might also benefit by contacting her local migrant resource centre and attending some English classes. There are also some commercial providers who tailor for specific courses for permanent residents who are preparing to sit the citizenship test. Once she has more confidence in her English language skills, she will be able to successfully complete the test, and I am sure she will make a valuable citizen of Australia.
In closing, the Tribunal records its appreciation to Mr Pattinson for his assistance to the Tribunal as the lay advocate for the Applicant, and to Mr Kyranis for ably representing the Minister.
DECISION
The Tribunal declines to exercise the discretion available in s 29(7) of the AAT Act to extend time for the Applicant to lodge her application for review.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.................................[signed].......................................
Associate
Dated: 8 October 2024
Date(s) of hearing: 3 October 2024 Lay advocate for the Applicant: Mr James Pattinson Advocate for the Respondent: Mr Jake Kyranis Solicitors for the Respondent: Sparke Helmore Lawyers
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