Jawad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 3209
•16 February 2024
Jawad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3209 (16 February 2024)
Division: GENERAL DIVISION
File Number: 2023/4700
Re: Mr Imad Jawad
APPLICANT
And Minister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Ms A E Burke AO, Member
Date: 16 February 2024
Place: Melbourne
For the reasons given orally at the conclusion of the hearing of this matter on 6 February 2024, the Tribunal finds Mr Jawad had not been afforded a reasonable opportunity to sit the citizenship test with assistance, as he had requested, and remits the matter to the Secretary. The Tribunal directs the Department:
1.to invite Mr Jawad to sit the Standard Test with assistance, in accordance with the Citizenship Policy. That Mr Jawad gets assistance from a Test Administrator who may assist him with using the computer and/or reading the questions and all answers out to him;
2.to offer Mr Jawad up to 3 opportunities to sit the Standard Test on the same day.
The Tribunal advised Mr Jawad that the Tribunal does not have the power or discretion to waive the requirement for him to undertake the Citizenship Test, it is a mandatory requirement under section 21(2A)(d) of the Australian Citizenship Act 2007 (Cth).
The Tribunal reiterated to Mr Jawad that if he failed to pass the Standard Test with assistance, this did not preclude him from submitting a new application for citizenship in the future.
...........................[sgd].............................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – failure to pass compulsory citizenship test – did not meet requirements for assisted test or exemption – no opportunity to sit a standard test with assistance – decision set aside and remitted to Department
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020
(Cth)
Cases
Ahmadi v Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1013
Al Kasha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 10
Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Jaber and Minister for Home Affairs [2019] AATA 92
Minister for Home Affairs v Zadeh (No. 2) [2018] FCA1828
Oruzgani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 986
Secondary Materials
Australian Citizenship Procedural Instructions
Department of Immigration and Border Protection, Australian Citizenship Policy (2016)
REASONS FOR DECISION
Ms A E Burke AO, Member 16 February 2024
1.Mr Imad Jawad (the Applicant) is a 32-year-old Lebanese citizen who arrived in Australia on 20 October 2014 as the holder of a temporary Partner (Provisional) (subclass 309) visa. On 29 November 2021 Mr Jawad was granted a permanent Resident Return (subclass 155) visa. Mr Jawad works full time in his own small business employing 3 to 4 people, he is married to an Australian citizen and has four children, who are all Australian citizens.
2.On 28 September 2022, Mr Jawad lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). On the application form at question 16 Mr Jawad clearly indicated he required help with the citizenship test.
Do you need help with the Citizenship test? Yes / Give details
HELP TO USE THE COMPUTER
3.On 22 June 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused Mr Jawad’s application for citizenship as he did not meet the criteria under section 21(2)(d)-(f) of the Act (the Reviewable Decision) stating:
You lodged an application for conferral of Australian citizenship on 28 September 2022. Since that time you have had six appointments to sit an approved citizenship test to demonstrate that you meet the legal requirements for citizenship.
Appointment Date Action Result 8 March 2023 Test appointment booked. You did not pass the test at this appointment 24 March 2023 Test appointment booked. You did not attend the test appointment 11 April 2023 Test appointment booked. You did not pass the test at this appointment 4 May 2023 Test appointment booked. You did not pass the test at this appointment
17 May 2023 Test appointment booked. You did not pass the test at this appointment 13 June 2023 Test appointment booked. You did not pass the test at this appointment After failing the test on four separate occasions, and failing to attend your test appointment on one other occasion, you were provided a final test appointment on 13 June 2023 to demonstrate that you have passed an approved citizenship test. Departmental records state that you did not pass the test at this final appointment.
Subsection 24(1) of the Act requires the Minister to make a decision in writing to approve or refuse an application. There is an expectation that wherever possible a decision will be made within a reasonable period of time after receiving an application.
You made an application on 28 September 2022 and I am satisfied that you have had a reasonable opportunity to demonstrate that you meet all of the legal requirements for conferral of Australian citizenship.
4.On 26 June 2023, Mr Jawad applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision, stating:
I’m applying to say I think the decision is wrong I’ve been in Australia for nearly 10 years now and I have been the best following all rules and never have broke them always worked hard to support and be with my family, I have done the citizenship test and failed a few times but I know so much about Australia and the laws but what has affected me is after the loss of my father 3 years ago I have really bad anxiety and it gets really bad when I know I have pressure on me I’ll be at home studying for the test with my 4 kids all around me, fitting my work that I finish at 6pm and then come home
And have dinner and start studying again I know so much about Australia I was studying the value questions and every time I thought I did good I would say today I’ve passed then the guy tells me u did good but u failed one value question which if not fair I’ve been years in Australia and never broken in laws and always work and do what the country has provided us to do Australia is a beautiful country which has given All we need. But please I felt like the decision was wrong and I feel like I deserve to be an Australian citizen, it’s my anxiety which is really sever that has been struggling during the test but I know pretty much everything about laws and freedom and arrival of the first fleet I know all public holiday dates about the government all of that and more I really deserve to be part of the Australian citizen please I think I am Capable of holding an Australian citizen struggling with anxiety is very hard I work out of the test room
And I am not able to drive home my wife waits for me in the car so she can drive me back because I’ll be having anxiety attack when I know I’ve failed it’s not easy on me I hope use understand. Thanks
5.At the hearing by video on 6 February 2024, Mr Jawad was self-represented, and Ms Sarah Thompson, solicitor at HWL Ebsworth Lawyers appeared on behalf of the Respondent. The
Tribunal made an oral decision to set aside and remit the determination. The Respondent subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These are those reasons.
ISSUE FOR THE TRIBUNAL
6.The issue for the Tribunal is whether Mr Jawad satisfied:
(a)Sections 21(2)(d)-(f) and 21(2A) of the Act, that is, whether he has had a reasonable opportunity to sit the test; and
(b)Section 21(3)(d) of the Act, that is, did he have a permanent or enduring mental incapacity at the time he made his application for citizenship?
LEGISLATIVE AND POLICY BACKGROUND
7.Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
(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.
8.Section 21(2A) of the Act sets out the citizen test criteria:
(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.
9.Section 21(3) of the Act defines 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.
10.Section 24 of the Act provides, in part:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A)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), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A)If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
The Citizenship Policy
11.The role of the administrative instrument, Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (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 Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 367: ‘Policy is not law. A statement of policy is not a prescription of binding criteria’.
12.However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
13.In relation to section 21(2)(d)-(f) and 21(2A) of the Act, the Citizenship Policy states:
7 Standard Test
(1) The Standard Test is conducted under the control of the Minister, by use of a:
(a) computer program (the Computer-based Standard Test); or
(b) printout of the Computer-based Standard Test, available in certain circumstances.
Note: For example, a printout might be given where the applicant does not have access to the Computer-based Standard Test.
(2) The computer program randomly selects a subset of 20 questions to be answered by the applicant, from one or more groups of approved questions specified in:
(a) for a person taking the test after commencement of this instrument but before 15 November 2020 – Schedule 4; or
(b) for a person taking the test on or after 15 November 2020 – Schedule 5.
(3) The questions are derived from the content of the testable section of the resource book.
(4) Each Standard Test includes a spread of questions from different parts of the testable section of the resource book.
(5) The Standard Test questions and multiple-choice answers are in English.
Note: Standard Test means a test conducted in relation to an applicant's eligibility under section 21 of the Act to become an Australian citizen
8 Eligibility criteria for sitting the Standard Test
For the purposes of subsection 23A(3) of the Act, an applicant is eligible to sit the Standard Test if the applicant:
(a) is a permanent resident; and
(b) satisfies the Minister as to the applicant's identity by:
(i) allowing a photograph to be taken of the applicant's face and shoulders by:
(A) a person holding, occupying or performing a role for the Department; and
(B) a person holding, occupying or performing a role for the Department of Human Services; or
(ii) providing such other documentary evidence of identity as requested by a person specified in subparagraph 8(b)(i)(A) or (B); and (c) has lodged an application for Australian citizenship by conferral under section 21 of the Act.
9 Period for sitting and completing the Standard Test
For the purposes of subsection 23A(5A) of the Act, an applicant must complete the Standard Test within 45 minutes of starting the test, regardless of whether the applicant receives assistance with sitting the Standard Test.
10 Conduct while sitting the Standard Test
(1) An applicant sitting the Standard Test is not permitted to refer to any study aids, or communicate with any person (other than the test administrator or test invigilator) by telephone or otherwise.
(2) If an applicant fails to comply with subsection (1), the test administrator may require the applicant to leave the citizenship test site, without allowing the applicant to complete the Standard Test, and may determine that the person has not successfully completed the Standard Test.
(3) If the test administrator is satisfied that an applicant whose Standard Test has been submitted for marking did not comply with subsection (1), the test administrator may determine that the applicant has not successfully completed the Standard Test.
11 Successful completion of the Standard Test
(1) For the purposes of subsection 23A(2) of the Act, to successfully complete the Standard Test an applicant must:
(a) answer at least 75 percent of the test questions correctly; and
(b) have had the Computer-based Standard Test computer program calculate that the applicant has successfully completed the Standard Test, subject to subsection (2).
Note: The computer program will mark the completed test to calculate whether the applicant has successfully completed the Standard Test and the answers provided by the applicant as a result of a printout of the Computer-based Standard Test will be entered into the computer program for marking.
(2) The applicant will not have successfully completed the Standard Test if the test administrator makes a determination in respect of the conduct of the applicant under section 10, that the applicant has not successfully completed the Standard Test, including in the event the computer program calculated that an applicant has successfully completed the Standard Test.
(3) A successful Standard Test result is valid indefinitely.
Part 3—The Assisted Test
12 Approval of an Assisted Test
The Assisted Test is approved under section 23A(1) of the Act for the purposes of subsection 21(2A) of the Act.
13 Assisted Test
(1) The Assisted Test is conducted under the control of the Minister, by use of a:
(a) computer program (the Computer-based Assisted Test); or
(b) printout of the Computer-based Assisted Test available in certain circumstances.
Note: for example, a printout might be given where the applicant does not have access to the Computer-based Assisted Test.
(2) The computer program randomly selects a subset of 20 questions to be answered by the applicant, from one or more groups of approved questions specified in:
(a) for a person taking the test after commencement of this instrument but before 15 November 2020 - Schedule 4; or
(b) for a person taking the test on or after 15 November 2020 - Schedule 5.
(3) The questions are derived from the content of the testable section of the resource book.
(4) Each Assisted Test includes a spread of questions from different parts of the testable section of the resource book.
(5) The Assisted Test questions and multiple-choice answers are in English.
Note Assisted Test means a test conducted in relation to an applicant's eligibility under section 21 of the Act to become an Australian citizen.
14 Eligibility criteria for sitting the Assisted Test
For the purposes of subsection 23A(3) of the Act, an applicant is eligible to sit the Assisted Test if the applicant:
(a) satisfies the eligibility criteria for sitting the Standard Test in section 8; and
(b) has either:
(i) low literacy skills demonstrated by completing at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP) and an assessment by the AMEP provider as having less than basic reading skills in English; or
(ii) a physical or cognitive impairment (whether permanent or temporary) that prevents them from sitting the Standard Test, even with the assistance from the test administrator.
14.In relation to section 21(3), guidance can be found in the Department of Immigration and Border Protection, Australian Citizenship Policy of 2016 which 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.
15.In relation to section 21(2)(d), (e) and (f), the Citizenship Procedural Instruction 26 - Australian Citizenship Test (the Citizenship Procedural Instruction 26) states:
4.2 Accessibility and the test
All test computers are equipped with headsets for audio, which is compliant with web accessibility guidelines. Applicants can choose this option when sitting the standard or assisted test.
If the headset is not available or does not work and the applicant requests or requires assistance, a Test Administrator may:
·Read the questions and multiple-choice answers aloud to the applicant,
·Ask the applicant for their response,
·Select the answer on the computer that the applicant indicates.
A printout of the computer-based Standard Test will also be available in certain circumstances (for example, for people sitting the test outside of Australia or where the computer-based Standard Test is not available electronically.
A Test Administrator must not translate the questions for the applicant.
The Test Administrator may operate the computer for applicants with poor computer or literacy skills or an injury, if the applicant requests or requires assistance.
·For example, if an applicant does not know how to use a computer mouse, the Test Administrator may conduct a brief tutorial on how to use the mouse; or
·If an applicant has an impairment that prevents their use of the mouse, the Test Administrator may operate the mouse in accordance with the applicant’s response to the questions.
4.3 Eligibility to sit the standard test
As provided in the Determination, to be eligible to sit the standard test the applicant must:
·Be a permanent resident of Australia
·Have lodged a valid application for citizenship by conferral (refer to Citizenship Instruction 18 – Application requirements for guidance), and
·Satisfy the Minister or the Minister’s delegate under subsection 23A(4) of the Act as to their identity by:
oAllowing a photograph to be taken by the Minister’s delegate of their face and shoulders; or
oProviding such other documentary evidence of identity as is requested by the Test Administrator, such as original copies of scanned documents provided with the application that may include birth certificate, foreign passport, driver’s licence etc.
4.4. Eligibility to sit the assisted test
As provided in the Determination, to be eligible to sit the assisted test the applicant must:
·Meet the eligibility requirements to sit the standard test (section 4.3 Eligibility to sit the standard test above refers); and
·Have low literacy skills as measured by:
oBoth:
§Completion of at least 400 hours of English language tuition under Adult Migrant English Program (AMEP); and
§Assessment by the AMEP provider as having less than basic reading skills in English (AMEP attendance and English reading level can be confirmed by accessing the AMEP Reporting Management System (ARMS), which can be accessed through the Citizenship Assisted Test system (CATS); or
·Have a physical or cognitive impairment, whether temporary or permanent, that prevents them from sitting the standard test, even with the assistance of the Test Administrator (see section 4.2 above).
…
6. Test attendance
The Act (paragraph 21(2A)(c)) states a person must have started the test and completed the test within periods set out in the Determination. However, the Determination does not set out any periods, and instead provides that there is no limit to the number of times an applicant can sit a standard test or an assisted test. This does not mean that decision-makers are required to delay making a decision to allow time for multiple attempts by the applicant to successfully complete the test. Under policy, a refusal decision can be made after the applicant has been given a reasonable opportunity to sit a test and demonstrate that they meet the eligibility requirements.
…
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.
However decision makers may find it appropriate to give applicants one or more further test appointments in circumstances where:
·The applicant’s citizenship test scores have improved over the period of attempts made;
·The applicant was affected by notification issues, such as the applicant not receiving the invitation to attend the citizenship interview and test appointment, despite the applicant making inquiries;
·System errors, such as:
oEither CATS was not accessed, or the number of hours was referenced incorrectly and the Department did not offer the applicant an assisted test;
oDepartmental records are insufficient and it is not clear whether the applicant has been given a reasonable opportunity to pass the test.
EVIDENCE
16.The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the AAT Act, referred to as the ‘T documents’.
17.The Tribunal in accordance with section 33(1)(c) of the AAT Act may also inform itself from ascertained evidence it considered relevant to Mr Jawad’s application prior to the hearing in such manner as it thought appropriate.
18.The Australian Government, Department of Home Affairs Immigration and Citizenship website states:
Citizenship Policy Low computer skills
You may get help from staff to use the computer if you have low computer skills.
19.The Australian Government, Department of Home Affairs Immigration and Citizenship website provided guidance on how to administer the Standard Test if an applicant required assistance with the use of a computer:
Standard Test with assistance
A client attempting the Standard Test may request assistance. If assistance is requested, a Test Administrator (refer to Who may administer a test) may:
·assist the client to use the computer and/or
·read the questions and all answers out to the client.
A client may request assistance with using the computer or asks for the questions and all possible answers to be read out to them during this period.
For example a person may ask for assistance when:
·they can speak and understand English but have difficulty reading English or
·they arrive to take a test but find they have forgotten their reading glasses or
·they have injured their hand and cannot operate the computer.
CONTENTION
20.Mr Jawad submitted:
·He was a hard-working citizen who wanted to become an Australian citizen as he has lived here for 10 years, it is his home where he is raising his family, paying his taxes and contributing to the community.
·He has studied very hard to pass the test but every time he sits the test he gets incredibly anxious and has been unable to pass the test at the level required.
·He has sufficient command of the English language and is able to conduct his business without the use of interpreters.
·He is not computer literate, and his wife does all the computer work associated with running his business.
·His wife is a fluent English speaker.
·He undertook only 1 to 2 weeks of English language tuition when he first arrived in Australia but life got in the way of doing any more, as he needed to work to provide for his growing family.
·He has not been diagnosed with any mental health conditions and has not seen anyone to access treatment for his anxiety.
·He would like to have an Australian passport so when he travels overseas, proximately to visit family in Lebanon, he is not required to get a return Visa issued each time – which can lead to delays in him returning to Australia.
·He had never received help from the staff at the testing centre whilst undertaking the test to use the computer.
21.Fundamentally, Mr Jawad asked if he could be given assistance to sit the test, as he had requested on his application.
22.The Respondent contends that Mr Jawad does not satisfy the requirements of section 21(2(d)-(f) of the Act because the Applicant has not successfully completed the test.
23.The Respondent contended that Mr Jawad was afforded sufficient time and opportunity to complete the test. The Respondent submitted Mr Jawad had sat the test 14 times on five separate occasions: three times on 8 March 2023, two times on 24 March 2023, four times on 11 April 2023, twice on 17 May 2023 and three times on 13 June 2023; and failed to attend one appointment on 4 May 2023.
24.The Respondent contended that each time Mr Jawad sat the test, he failed to achieve the required score. The Respondent submitted Mr Jawad only passed the Australian values component of the test once on 11 April 2023 but on that occasion, failed the overall test.
25.The Respondent submitted Paragraph 6.3 of the Citizenship Procedural Instruction 26 provides that, generally, if an applicant has failed the test on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that sections 21(2)(d), (e) and (f) of the Act are not satisfied as found by the Honourable Justice Thawley in the matter of Minister for Home Affairs v Zadeh (No. 2) [2018] FCA1828 (Zadeh):
As to the Ministerial Determination, a person who has difficulty passing the Standard Test (or Assisted Test) might attempt, but only once per application, the Course- Based Test: paragraphs 35 and 48. 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 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.
26.The Respondent contended that it was reasonable for the delegate to make a decision on the application after Mr Jawad sat the test 14 times and failed to successfully complete the test on each occasion.
27.The Respondent contended the Tribunal does not have the power or discretion to waive the requirement to undertake the test. It is a mandatory requirement under section 21(2A)(d) of the Act, as the Member found in Ahmadi v Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1013:
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 (including the Tribunal) to waive the requirement for Ms Ahmadi to undertake the test. It is a mandatory requirement under section 21(2A)(d) of the Act.
28.The Respondent submitted Member Bygrave in the matter of Jaber and Minister for Home Affairs [2019] AATA 92 considered:
…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'.
29.The Respondent submitted while Mr Jawad submits that he suffers from 'anxiety', which has prevented him from successfully completing the test, there is no evidence before the Tribunal to support this assertion or satisfy the criteria under section 21(3) of the Act, which sets out the criteria for an applicant that has a 'permanent or enduring physical or mental incapacity'.
30.The Respondent contended in circumstances where the applicant failed to pass the test despite being given multiple opportunities, it would not be proper for the Tribunal to remit the matter directing that the Respondent allow for a further attempt. This would be inconsistent with the Federal Court's reasoning in Zadeh as adopted by the Senior Member in the matter of Al Kasha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 10:
I do not consider it unreasonable, in the normal course, for a delegate to make a decision on an application after a person has attended the Department on three occasions and has nonetheless been unable to successfully complete the test after seven attempts. In the absence of any special reason submitted as to why the Applicant was unable to complete the test on the seven attempts he has made, I do
not believe it would be proper for the Tribunal to remit the matter directing that the Department allow him ‘one further attempt’, as requested by the Applicant. It would also be inconsistent with the Federal Court’s reasoning in Zadeh.
31.Relevantly, the Respondent contended if the decision under review is affirmed, the Applicant is not precluded in any way from submitting a new application for citizenship.
CONSIDERATION
32.The Tribunal does not quibble with the Respondent’s contentions.
33.On the evidence before it the Tribunal found Mr Jawad did not have a permanent or enduring incapacity at the time he applied for his citizenship by conferral and did not satisfy the criteria under section 21(3) of the Act.
34.The Tribunal found Mr Jawad’s oral evidence to the Tribunal indicated he had the means to understanding the nature of his application and demonstrating a basic knowledge of the English language.
35.On the evidence before it the Tribunal found Mr Jawad was not eligible to sit the assisted test as he had not satisfied the completion of at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP); and had not been assessed by the AMEP provider as having less than basic reading skills in English.
36.On the evidence before it the Tribunal found Mr Jawad had requested assistance with the use of the computer when he sat the test, and this had not been provided to him. As such the Tribunal found Mr Jawad should be given the opportunity to sit the Standard Test with assistance and remitted the decision to the Department. The Tribunal considered this was reasonable in all the circumstances as it does not consider the intent of the Act to thwart migrants’ dreams of becoming citizens. Drawing upon the recent remarks of The Hon Andrew Giles MP Minister for Immigration, Citizenship and Multicultural Affairs at the opening address to the celebration of 75 years of Australian Citizenship:
Modern Australia is a nation built through citizenship- reflecting the contributions and experiences of more than 6 million people from all around the world who chose to commit to us.
Today, we recognise the significance of this collective achievement.
We pay tribute to the vision of Chifley and Calwell, and to all those who have added their story to our evolving Australian story.
Our government rejects the notion of a nation divided between haves and have-nots when it comes to citizenship.
We aren’t, and we won’t be, a guest worker society.
That’s why we’ve ended the limbo of temporary protection visas, provided a pathway to citizenship to many thousands of New Zealanders previously denied this, and ensured people on temporary skilled visas have a pathway to residency.
Why we’ve worked to bring down the backlog in citizenship applications - because we recognise how much this means to people.
And why we work each and every day to bring people together as one, which is what Australian citizenship is really all about.
A community of equals, in which everyone belongs.
Around the world, we see division, and its consequences. People turning on their neighbours.
We can be an example to places riven by conflict, through demonstrating what 75 years of Australian citizenship have brought us.
The foundation of a dynamic, egalitarian multicultural nation, which recognises our diversity as our greatest strength.
Let us, in celebrating this history, never take it for granted. What we have built, what we are building, is precious.
37.The Tribunal in accordance with the principles laid out in the Federal Court decision of Zadeh directed that Mr Jawad be afforded 3 opportunities to sit the Standard Test with assistance on the same day:
The statutory scheme requires the Minister either to approve or refuse an application (s 24 of the Citizenship Act) and contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” under a Ministerial Determination to keep re-sitting the Standard Test.
38.The Tribunal in Oruzgani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 986 had previously remitted a matter to the Department for an applicant to be offered a test with assistance and drew upon that finding in this determination.
39.The Tribunal did not want to give Mr Jawad any false hope that the Tribunal’s determination would result in him being granted his citizenship and reiterated he was still required to meet the required pass mark of the test for his citizenship application to progress. The Tribunal, rather clumsily, advised Mr Jawad if he failed to pass the Standard Test with assistance, he
would have limited prospect of success if he sought to appeal any subsequent rejection of his citizenship application on the basis of his failure to meet the mandatory requirement of section 21(2A)(d) of the Act.
40.The Tribunal advised Mr Jawad that the Tribunal does not have the power or discretion to waive the requirement for him to undertake the citizenship test, as it is a mandatory requirement under section 21(2A)(d) of the Act.
41.The Tribunal reiterated to Mr Jawad that if he failed to pass the Standard Test with assistance, this did not preclude him from submitting a new application for citizenship in the future.
DECISION
42.For the reasons given orally at the conclusion of the hearing of this matter on 6 February 2024, the Tribunal finds Mr Jawad had not been afforded a reasonable opportunity to sit the citizenship test with assistance, as he had requested, and remits the matter to the Secretary. The Tribunal directs the Department:
(a)to invite Mr Jawad to sit the Standard Test with assistance, in accordance with the Citizenship Policy. That Mr Jawad gets assistance from a Test Administrator who may assist him with using the computer and/or reading the questions and all answers out to him; and
(b)to offer Mr Jawad up to 3 opportunities to sit the Standard Test on the same day.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
...........[sgd]...............................
Associate
Dated: 16 February 2024
Dateofhearing: 6 February 2024 AdvocatefortheApplicant:
Self-represented
AdvocatefortheRespondent:
Ms Sarah Thompson
SolicitorsfortheRespondent:
HWL Ebsworth Lawyers
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