Ibrahim and Minister for Immigration and Citizenship (Practice and procedure)
[2025] ARTA 2041
•5 October 2025
Ibrahim and Minister for Immigration and Citizenship (Practice and procedure) [2025] ARTA 2041 (5 October 2025)
Decision and
Reasons for DecisionApplicant:Shugri Adam Ibrahim
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/1074
Tribunal:Senior Member K. Raif
Place:Sydney
Date:5 October 2025
Decision:The application for dismissal under s 101(1)(b) is refused
Statement made on 05 October 2025 at 4:43pm
Catchwords
PRACTICE AND PROCEDURE – decision to refuse Australian Citizenship by conferral – where the Applicant did not pass the citizenship test – whether the application has reasonable prospect of success – application for dismissal on the basis that the application has no reasonable prospects of success is refused
Legislation
Administrative Review Tribunal Act 2004 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Allied BioServices and Minister for Health and Aged Care [2024] ARTA 50
STATEMENT OF REASONS
Background
Ms Shugri Ibrahim (the Applicant) arrived in Australia in June 2012 as a holder of a Remaining Relative visa. She made an application for the Australian citizenship by conferral on 9 August 2022. On 2 February 2024 the delegate made the decision not to approve the Applicant’s application for citizenship, finding that the Applicant did not satisfy s21(2)(d), (e) and (f) of the Australian Citizenship Act 2007 (‘Citizenship Act’). The Applicant sought review of the delegate’s decision on 20 February 2024.
The Respondent made the application that the matter be dismissed, pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (‘ART Act’) because it has no reasonable prospect of success.
The parties attended an interlocutory hearing on 19 September 2025. In the course of the hearing the Applicant had indicated that she may wish to withdraw the application for review, noting that she wanted to undertake another Citizenship test and could do so if she made another application for citizenship. The Applicant was invited to confirm her intention to withdraw the application in writing. To date, she has not done so. As such, the Tribunal has proceeded on the basis that the Applicant’s intention is to continue with the review.
For the reasons that follow, the Tribunal has decided to refuse the application for dismissal on the basis that the application has no reasonable prospects of success.
Legal principles
Part 2 of the Citizenship Act sets out the manner in which a person can become an Australian citizen. Division 2 of Part 2 of the Citizenship Act provides for the acquisition of Australian citizenship by application and Subdivision B of that Division sets out the manner in which a person can be granted Australian citizenship by conferral. Section 21 in Subdivision B of the Citizenship Act provides as follows:
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.
Section 21(2A) of the Act mandates that the above three eligibility criteria are only discharged if the decision-maker is satisfied that the following elements have been met:
(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.
In Zadeh[1] the Court stated at [37]:
…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. 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.
[1] Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828.
Pursuant to section 24(1) of the Citizenship Act, upon an application being made by a person for Australian citizenship by conferral under section 21, the decision maker must either approve or refuse to approve the person becoming an Australian citizen. The decision maker has no discretion in relation to the application, a decision must be made whether a person is or is not to be granted citizenship.
Section 101 of the ART Act sets out the circumstances in which an application for review may be dismissed. Relevantly, s101(1)(b) provides that the Tribunal may, at any time, dismiss an application if the Tribunal is satisfied that the application has no reasonable prospect of success.
In Allied Bio-Services v Minister for Health and Aged Care[2] the Tribunal considered its power to dismiss an application where it is satisfied that an application has no reasonable prospect of success. The Tribunal considered case law applying section 42B(1)(b) of the Administrative Appeals Tribunal Act (which is substantially the same as the provision in the ART Act) and at [31], the Tribunal noted the following principles from the case law:
(a)The dismissal power in section 42B is to be used cautiously and sparingly. That is, if a legitimate purpose could be achieved by allowing the application to continue, it should not be prevented. However, if the application can serve no purpose for the Applicant, it should not continue to use Tribunal time and resources.
(b)It is open to the Tribunal to dismiss an application which only concerns a question of law.
(c)The concept of whether an application has “no reasonable prospect of success” extends to whether, as a matter of substance, the review by the Tribunal will have any utility or useful outcome. The Federal Court and Tribunal have found on a number of occasions that if an application cannot serve a purpose for an Applicant, it should not continue.
(d)The cost that a Respondent will incur in defending a claim which lacks a practical outcome is also a relevant consideration.
[2] [2024] ARTA 50.
Primary decision
There is before the Tribunal a copy of the delegate’s decision. It indicates that the delegate was satisfied as to the Applicant’s identity, age and residence requirements.
The delegate referred to the requirements set out in section 21(d), (e) and (f) which relevantly required the Applicant to demonstrate a basic understanding of the nature of the application, have basic English and an adequate knowledge of Australia and citizenship.
The delegate noted that the Applicant made the application for Citizenship by conferral on 9 August 2022 and since that time she had five appointments to sit an approved citizenship test. The primary decision notes that the Applicant had undertaken the tests on 9 October, 24 October, 24 November and 19 December 2023 and on 15 January 2024. On one occasion the Applicant did not attend the test and on each of the remaining occasions the Applicant did not pass the test.
The delegate was satisfied that the Applicant had a reasonable opportunity to demonstrate that she met the legal requirements for the conferral of citizenship. As the Applicant had not passed the citizenship test, the delegate was not satisfied the Applicant met the requirements set out in section 21(d), (e) and (f).
Evidence before the Tribunal and disposition
The Respondent submits that while the dismissal power should not be exercised lightly, in this case, the application for review can serve no useful purpose for the Applicant. The Respondent argues that the Applicant has been afforded a reasonable opportunity to sit the citizenship test, had five opportunities to pass the test and she had failed 11 times.
The Respondent submits that the Applicant does not satisfy the requirements of s21(d),(e) and (f) and there is no discretion to consider the Applicant’s circumstances or reasons for not passing the test. The Respondent notes that the delegate and the Tribunal are not prevented from making the decision even if the Applicant wishes to sit a further test. The Respondent notes that it is open to the Applicant to submit another application for citizenship.
In oral evidence the Respondent also submits that the application has no reasonable prospect of success and should be dismissed for that reason. The Respondent notes that the Applicant has not been able to successfully complete the citizenship test, despite being invited to do so on 5 occasions, and had failed the test 11 times.
The Applicant (who was assisted by her husband) told the Tribunal that she wants to have another chance to do the test, unless the test requirement can be waived. She states that she did not fail the test as many times as is suggested. The Tribunal explained to the Applicant that there can be no guarantee that if her review application proceeds, she would be given the opportunity to sit another test but it is open to her to lodge a new application for review, and she would then have an opportunity to sit the test through that process.
It is not in dispute that in the present circumstances, the Applicant cannot succeed in her application because she has not passed the citizenship test and passing that test is a prerequisite to her eligibility for the Australian citizenship as set out in section 21 of the Citizenship Act.
In considering whether the review has any utility or can have a useful outcome, the Tribunal considers the following two points to be relevant. Firstly, an ongoing application for review may provide the Applicant with an opportunity to undertake a further citizenship test. Although it is clear by reference to Zadeh that the Tribunal is under no obligation to enable the Applicant to undertake another test, it would be open to the Tribunal to give the Applicant that opportunity.
Secondly, section 21(3) offers an exemption from the obligation to pass the citizenship test in certain circumstances. Noting that the Applicant is not legally represented, she may or may not be familiar with these provisions and if the review was to proceed, there is a possibility that the Applicant may seek to adduce evidence in relation to the waiver. The review process will provide the Applicant with the opportunity to explore this issue.
In the circumstances, it cannot be said that the application has no utility or that it can serve no useful purpose for the Applicant. As such, the Tribunal has decided to refuse the application for dismissal.
Decision
The Tribunal refuses to dismiss the application on the basis that it has no reasonable prospect of success.
24. I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Raif
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Associate
Dated: 14 October 2025
Date(s) of hearing:
19 September 2025 Solicitors for the Applicants: H. Abdi Solicitors for the Respondent:
K. Petrovski
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