Jaber and Minister for Home Affairs (Citizenship)

[2019] AATA 92

Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92 (6 February 2019)

Division:GENERAL DIVISION

File Number:           2018/0800

Re:Zahrah Abdulhussein Jaber

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 February 2019

Place:Sydney

The decision under review is affirmed.

........................................................................
Dr L Bygrave, Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – number of opportunities to sit standard test – refusal to grant Australian citizenship under statute – affirmed

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 23A

Cases

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

Secondary Materials

Minister for Immigration and Border Protection (Cth) IMMI 11/088, Determination for the Approval of a Citizenship Test

REASONS FOR DECISION

Dr L Bygrave, Member

6 February 2019

INTRODUCTION

1. The applicant is 41 years old and a citizen of Iraq. She first arrived in Australia on 21 July 2011 and currently holds a permanent (subclass XB-202) global special humanitarian visa that was granted on 16 June 2011.

2. On 23 September 2015, the applicant 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 5 January 2018 on the basis that the applicant did not satisfy the requirements in paragraphs 21(2)(d), (e) and (f) of the Act.

4. On 9 February 2018, the applicant 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 30 January 2019. The applicant did not have legal representation; she 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 the applicant can only satisfy the requirements in paragraphs 21(2)(d), (e) and (f) of the Act if she 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.

   EVIDENCE

8. Records provided by the Department of Home Affairs show the applicant sat the citizenship test as follows:

   ·2 February 2016 – one attempt, test result 25% (fail);

   ·14 April 2016 – two attempts, test results on both attempts 35% (fail); and

   ·24 October 2017 – one attempt, test result 30% (fail).[1]

   [1] Exhibit R1.

9. The applicant was also invited to a citizenship test appointment on 30 April 2016 but did not attend because she was overseas.

10. In her evidence at the Tribunal hearing, the applicant did not dispute these records and she accepted that she has never passed the citizenship test.

11. The applicant provided a letter from her general practitioner, Dr Lachlan Smith, dated 26 July 2018, which stated that the applicant is:

    …known to have difficulty leaning and short term memory disturbance, had issues with her school, also (Depression, stress and Anxiety) and passing through very difficult time caring for the severely disable child, that may reflect her difficulty learning English and passing her English Exam.[2] [reproduced as in original]

    [2] Exhibit A1.

12. At the Tribunal hearing, the applicant agreed with Dr Smith’s description of her circumstances and confirmed she has not seen any specialists in relation to her medical conditions.

    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” 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.

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 lodging her applicant for Australian citizenship on 23 September 2015, the applicant was provided four opportunities to sit the citizenship test between 2 February 2016 and 24 October 2017. I am therefore satisfied that the applicant has been afforded the opportunity to sit the citizenship test. However, as the applicant has not currently successfully completed the citizenship test, I find that she does not meet the criteria at paragraphs 21(2)(d), (e) or (f) of the Act.

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

    DECISION

    The decision under review is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 6 February 2019

Date(s) of hearing:	30 January 2019
Applicant:	In person
Solicitors for the Respondent:	Max Gao, Australian Government Solicitor