Hamdan and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 228

Hamdan and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 228 (25 February 2019)

Division:GENERAL DIVISION

File Number:           2018/0475

Re:Omar Hamdan

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:25 February 2019

Place:Sydney

The decision under review is affirmed.

...........................[sgd].............................................

Dr L Bygrave, Member

CATCHWORD
CITIZENSHIP – application for citizenship by conferral – whether the Applicant satisfies the general eligibility requirements for Australian Citizenship – the Tribunal has no discretion to consider the Applicant’s circumstances or reasons for not successfully completing the citizenship test – the decision under review is affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828

SECONDARY MATERIALS

Determination for the Approval of a Citizenship Test (IMMI 11/088 dated 24 March 2012)

REASONS FOR DECISION

Dr L Bygrave, Member

25 February 2019

INTRODUCTION

1. The applicant, Mr Omar Hamdan, is 33 years old. He was born in Lebanon and first arrived in Australia on 2 August 2007. Mr Hamdan currently holds a subclass BB-155 resident return (permanent) visa.

2. On 7 October 2016, Mr Hamdan applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Home Affairs (the Minister) on 8 January 2018 on the basis that Mr Hamdan did not satisfy the requirements in paragraphs 21(2)(d), (e) and (f) of the Act.

4. On 21 January 2018, Mr Hamdan lodged an application for review of that decision with the General Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard in Sydney on 15 February 2019. Mr Hamdan was represented by Mr Omar Jamal, and he attended the hearing and gave oral evidence assisted by an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND ISSUE

6. The general eligibility requirements for Australian citizenship are set out in section 21 of the Act as follows:

   General eligibility

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (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

   …

   (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. [emphasis in original]

7. This means that Mr Hamdan can only satisfy the requirements in paragraphs 21(2) (d), (e) and (f) of the Act if he has sat and successfully completed a citizenship test as set out in the Determination for the Approval of a Citizenship Test (IMMI 11/088 dated 24 March 2012) (the Ministerial Determination), which is the relevant determination under section 23A of the Act. Paragraph 10 of the Ministerial Determination states that a person must answer correctly at least 75% of the test questions to successfully complete the test.

8. The issue for determination by the Tribunal is whether Mr Hamdan meets the requirements in paragraphs 21(2)(d), (e) and (f) of the Act.

   EVIDENCE

9. Records provided by the Department of Immigration and Border Protection show Mr Hamdan sat the citizenship test as follows:

   ·30 November 2016 – one attempt, test result – fail;

   ·21 December 2016 – two attempts, test results on both attempts – fail; and

   ·31 October 2017 – one attempt, test result – fail.[1]

   [1] Exhibit R1 and T-T02, page 11.

10. In his evidence at the Tribunal hearing, Mr Hamdan did not dispute these records and confirmed that he has never passed the citizenship test. Mr Hamdan stated that he attempted to attend the 500 hours of English language tuition provided under the Adult Migrant English Program but only managed to attend tuition twice in 2009 because he felt uncomfortable in the class room and perceived that people were laughing at him. He explained that he only attended school in Lebanon until year 1.

11. Mr Hamdan provided a letter from Mr Emad Girgis (clinical psychologist) dated 30 January 2019, which diagnosed Mr Hamdan with adjustment disorder with generalised anxiety and reported:

    [Mr Hamdan’s] psychological symptoms interfere with his cognitive ability to adequately perform during the examination environment… Mr Hamdan has minimal literacy skills and finds it difficult to learn new information…

    In my opinion, Mr Hamdan will not be fit [to] sit examinations as his cognitive performance will be hindered due to the severe nature of his mental disorder.[2]

    [2] Exhibit A1.

12. Mr Hamdan told the Tribunal that he first sought assistance from a psychologist five years ago and, since then, he has seen Mr Girgis approximately six times between September 2018 and the present.

    CONSIDERATION

13. The wording of subsection 21(2A), that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied “if and only if” Mr. Hamdan has sat and successfully completed the citizenship test, is unambiguous; the Tribunal has no discretion to consider Mr. Hamdan’s circumstances or his reasons for not successfully completing the citizenship test.

14. I also have regard to the recent decision of Thawley J, which found:

    Paragraph 17 [of the Ministerial Determination] provides simply that “[t]here is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless the person has commenced a Course-Based Test”. Paragraph 17 does not go further than what it expressly states. It does not contain an express or implicit requirement that the Minister be prevented from deciding an application because an applicant has asked to re-sit the Standard Test. It does not, expressly or implicitly, provide a “right” to an applicant to re-sit the Standard Test as many times as the applicant wishes before the application is decided.

    …

    An applicant may ask to re-sit the Standard Test as many times as he or she wishes and the applicant may re-sit that test any number of times whilst the application remains on foot.[3]

    [3] Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 at [34] and [37].

15. After Mr Hamdan lodged his application for Australian citizenship on 7 October 2016, he was provided four opportunities to sit the citizenship test between 30 November 2016 and 31 October 2017. I am therefore satisfied that Mr Hamdan has been afforded the opportunity to sit the citizenship test. However, I find that Mr Hamdan does not meet the criteria at paragraphs 21(2) (d), (e) or (f) of the Act because he has not successfully completed the citizenship test.

16. For these reasons, Mr Hamdan does not meet the general eligibility requirements for Australian citizenship.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 25 February 2019

Date of hearing:	15 February 2019
Date final submissions received:	11 February 2019
Advocate for the Applicant:	Mr O Jamal
Solicitor for the Respondent:	Mr C Brinley