Kapadia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 5327
•26 October 2021
Kapadia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 5327 (26 October 2021)
Division:GENERAL DIVISION
File Number:2021/4597
Re:Ms Nimishaben Vishal Kapadia
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
Date:26 October 2021
Place:Brisbane
DECISION
Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review on the basis that the Tribunal is satisfied the application has no reasonable prospect of success.
....................[SGD]..................................
Senior Member B. Pola
Catchwords
PRACTICE AND PROCEDURE ‑– application for dismissal – application for citizenship by conferral – where application refused because the applicant had failed the citizenship test on multiple occasions – where the Minister afforded the applicant additional opportunities to re-sit the test – where applicant had limited English ability – consideration of relevance of Ministerial Determination – whether entitlement for applicant to have questions read aloud – whether Applicant entitled to exemption on the basis of physical or mental incapacity – no reasonable prospects of success – application dismissed
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
Boswell v Secretary Department of Social Services [2017] AATA 1751
Duncan v Fayle [2004] FCA 723
Nicholls and Minister for Immigration and Border Protection [2018] AATA 964Theo v Secretary, Department of Family and Community Services [2006] FCA 279
REASONS FOR DECISION
Senior Member B. Pola
26 October 2021
BACKGROUND
1. The Applicant in this matter, Ms Nimishaben Vishal Kapadia, has sought review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Respondent’) on 2 July 2021 to refuse her application for Australian citizenship by conferral on the basis that the Applicant did not pass the Australian citizenship test, pursuant to section 23A of the Australian Citizenship Act 2007 (Cth) (herein referred to as the ‘Citizenship Act’).
2. The Respondent, through written submissions provided to the Tribunal, requested that the Tribunal exercise its power, pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (herein referred to as the ‘AAT Act’), to dismiss the application for review on the basis that it has no reasonable prospect of success[1].
[1] Exhibit R2, page 5, paragraph 23.
3. An interlocutory hearing was held via telephone in Brisbane on 5 October 2021. The Tribunal has considered oral submissions from both the Applicant (who was represented by her father-in-law, Mr Dilip Kapadia) and the Respondent, represented by Mr Oliver Morris of Clayton Utz. Additionally, the Tribunal has considered submitted evidence as outlined in the Exhibit Register within Annexure 1 of these reasons.
JURISDICTION
4. Section 52(1)(b) of the Citizenship Act provides:
52 Review of decisions
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
…
5. In accordance with section 52(1)(b) of the Citizenship Act, the Tribunal has jurisdiction to review the decision of the Minister’s delegate (or the Respondent) relating to the application for Australian citizenship made by the Applicant on 5 July 2021 (noting that the application was made to this Tribunal within the prescribed 28 day time period following the decision made by the delegate of the Minister on 2 July 2021).
ISSUE
6. The issue before the Tribunal arises pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides[2]:
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
…
[2] The Tribunal observes the reasons of the Federal Court in Theo v Secretary, Department of Family and
Community Services [2006] FCA 279 at [29], where it was held that consideration requires, “… a consideration of the merits in the sense that it requires a finding that the application cannot succeed” (citing French J, Duncan v Fayle [2004] FCA 723 at [22]).
7. The power to dismiss an application under section 42B of the AAT Act is available for cases which are, in effect, not going to succeed if they proceed to hearing. In considering whether to exercise its dismissal power, the Tribunal is mindful of section 2A(b) of the AAT Act, which contemplates a process of Tribunal review that is, “fair, economical, just, informal and quick”.
8. In the present application, the Respondent relies on the ground that the Applicant, “has no prospects of success”, that is, no reasonable prospect of the Tribunal making a different decision upon review[3].
[3] Exhibit R2, page 3, paragraph 12.
9. If the Tribunal is satisfied the Applicant does have some prospect of success, then the Applicant would be permitted to continue with their application for review currently before the Tribunal.
RELEVANT LEGISLATION
10. Part 2, Division 2 of the Citizenship Act deals with the acquisition of Australian citizenship by application, with section 21(1) of the Citizenship Act providing that a person may make an application to the Minister to become an Australian citizen, and pursuant to section 24(1) of the Citizenship Act:
24 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.
11. The Minister must make a decision to grant or not grant an application pursuant to section 24(1) of the Citizenship Act. Most notably, this section does not provide the Minister with the power to defer such decision-making.
12. Relevant to the present application, section 24(1A) of the Citizenship Act provides, “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)”. Relevantly, section 21 of the Citizenship Act provides:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister 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.
[Tribunal underline for emphasis]
13. The Tribunal observes that section 21(2)(d), (e), and (f) of the Citizenship Act are taken to be satisfied if and only if the Minister is satisfied that the following apply, with respect to section 21(2A) of the Citizenship Act:
(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; and
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
[Tribunal underline for emphasis]
14. Therefore, for an application for citizenship under section 21(2) of the Citizenship Act to be successful, the Applicant must successfully complete the test, pursuant to section 21(2A)(d) of the Citizenship Act.
15. The Tribunal observes that in order for the Applicants application for citizenship to be granted, she must satisfy all requirements in section 21(2) of the Citizenship Act. This means that she also must, in turn, satisfy section 21(2A)(d) of the Citizenship Act with respect to successfully completing the citizenship test.
16. Pursuant to section 23A of the Citizenship Act, the Minister has issued a written determination known as Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (herein referred to as the ‘Ministerial Determination’), which outlines the relevant criteria for administering the citizenship test[4].
[4] Issued on 17 May 2020.
17. Relevantly, the Tribunal notes that the Ministerial Direction stipulates that for successful completion of a standard or assisted citizenship test, the Applicant must answer at least 75 percent of all the questions correctly overall[5] and must correctly answer 100 percent of all the ‘values’ questions[6].
[5] Ministerial Direction, paragraph 17(1)(a).
[6] Ministerial Direction, paragraph 18; Australian Citizenship Act 2007 (Cth), section 23A(2),
CONSIDERATION
18. The Applicant arrived in Australian on 11 March 2013 on a Tourist (subclass 676) visa, and on 15 June 2019 was granted a Partner (subclass 100) visa, which she continues to hold[7]. The Applicant lodged an application for Australian citizenship by conferral on 10 February 2021[8], and was invited to undertake the Australian citizenship test on several occasions, as set out below[9]:
[7] Exhibit R2, page 1, paragraph 3.
[8] Exhibit R1, T4, pages 93 to 112.
[9] Exhibit R2, page 1, paragraph 4.
Date
Test mark
Notes
27 May 2021
45% (fail)
As the Applicant did not attain a mark of 50%, she was not offered subsequent attempts on this day.
4 June 2021
80% (fail)
Although this mark would ordinarily constitute a pass, this mark was considered a fail because the Applicant failed to correctly answer all questions about Australian values.
4 June 2021
60% (fail)
4 June 2021
60% (fail)
Following her third attempt, the Applicant was informed that she had been booked for a final attempt on 21 June 2021. The Applicant was informed that, if she failed to pass the test on this final attempt, a decision would be made on her application. 21 June 2021
70% (fail)
21 June 2021
80% (fail)
Although this mark would ordinarily constitute a pass, this mark was considered a fail because the Applicant failed to correctly answer all questions about Australian values. 21 June 2021
65% (fail)
19. In the Applicant’s application to the Tribunal she stated the following[10]:
English is a second language for me. I started learning English when I arrived in Australia in 2013. In that time, I have obtained a working level of English to the extent that I can communicate with other Australians. However, I do not consider myself an expert in the language. I sat a total of 7 citizenship tests in which I received 45%, 80%, 60%, 60%, 70%, 80% and 65%. I was failed on the basis that I did not correctly answer all of the questions on Australian values. I believe that my reason for failing is my nervousness during the tests and the fact that my English, while passable, is not perfect. I am committed to living in Australia with my husband who is a citizen and request your kind consideration to review this decision.
[10] Exhibit R1, T1, page 9.
20. The Applicant was asked a series of questions in her application for citizenship by conferral of 10 February 2021, which she completed as follows[11]:
(a)When the applicant was asked, “Has the applicant previously sat and passed the citizenship test?”, she replied, “No”;
(b)The application stated, “The applicant may be eligible for assistance with operating the computer or to have the questions read aloud. For eligibility see ' About the citizenship test '”. The Applicant was then asked, “Does the applicant need help with the citizenship test?”, to which she replied, “Yes”;
(c)The Applicant was asked, “Does the applicant have a disability, which means that they need assistance using the computer?”, to which she replied, “No”; and
(d)The Applicant was asked, “Does the applicant have low levels of English literacy skills where they may need the questions read aloud?”, to which she replied, “Yes”.
[11] Exhibit R1, T4, pages 93 to 112.
21. During the course of the interlocutory hearing, the Tribunal had initially inquired as to whether the Applicant had received assistance as indicated with respect to having questions read aloud to them when performing the test, to which the Applicant responded, “No” [12]. The Tribunal asked the Respondent to address this issue in writing, to which they did with submissions received on 12 October 2021[13]. The Applicant was afforded a right of reply, with their submission received by the Tribunal on 18 October 2021[14].
[12] Transcript (5 October 2021), page 8, lines 1 to 18.
[13] Exhibit R3.
[14] Exhibit A1.
22. The Tribunal has had regard to these submissions and is satisfied that the question of whether the Applicant received assistance as requested when undertaking her citizenship test is not within the jurisdiction of the Tribunal, with respect to the application currently before the Tribunal[15]. This is because the answer to this question does not change the issue the Tribunal must consider: namely, whether the Applicant satisfied section 21(2) of the Citizenship Act by successfully completing the citizenship test, pursuant to section 21(2A)(d) of the Citizenship Act?
[15] Nicholls and Minister for Immigration and Border Protection [2018] AATA 964 at [25] to [26].
23. As an aside, the Tribunal is satisfied that no general entitlement arises for individuals to have questions read aloud to them when undertaking the citizenship test on the basis of Schedule 1, clause 1(1) of the Ministerial Determination, which provides that a test administrator may assist persons who have physical or cognitive impairment preventing them from sitting the Standard Test independently.
24. The Tribunal is satisfied, after reviewing the evidence before it, that the Applicant has not met the requirements regarding physical or cognitive impairment, as there is a lack of corroborative evidence to support such a claim. Therefore, the Applicant is not entitled to an exemption on the basis of ‘Permanent or enduring physical or mental incapacity’, pursuant to section 21(3) of the Citizenship Act.
25. Upon review of the evidence, the Tribunal is satisfied the Applicant has sat an approved test on multiple occasions (being 27 May 2021, 4 June 2021, and 21 June 2021, respectively), and pursuant to section 21(2A)(a) of the Citizenship Act, has been unsuccessful in completing that test on all of these occasions (with reference to section 21(2A)(d) of the Citizenship Act).
26. Accordingly, the Tribunal is satisfied the Applicant is unable to satisfy section 21(2)(d), (e), or (f) of the Citizenship Act and is consequently ineligible for citizenship by conferral. The Tribunal is satisfied the Respondent had no other option but to refuse the Applicant's application for citizenship, pursuant to section 24(1) of the Citizenship Act.
Dismissal of Application
27. The power to dismiss an application pursuant to section 42B of the AAT Act should not be exercised lightly. However, the power exists for a reason: it is wasteful and unkind to persist in a review if the case is, in effect, hopeless. It would be contrary to the objective in section 2A of the AAT Act which contemplates a process of review that is fair, economical, just, informal and quick.
28. In this case, the Respondent relies on the ground that the Applicant has no reasonable prospects of success – that is, she has no reasonable prospect of getting the Tribunal to make a different decision upon review. For the reasons outlined in this decision, the Tribunal agrees with the Respondent’s contention.
29. Therefore, the Tribunal is of the view that it is appropriate to grant the application for dismissal pursuant to section 42B(1)(b) of the AAT Act, as the Applicant’s application has no reasonable prospect of success[16].
[16] With reference to Boswell v Secretary Department of Social Services [2017] AATA 1751, paragraphs 33 to 34.
DECISION
30. Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review on the basis that the Tribunal is satisfied the application has no reasonable prospect of success.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
…………[SGD].………………
Associate
Dated: 26 October 2021
Exhibit Register – Annexure 1
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 37 T-Documents (pages 1 to 157) | R | Various dates | 09 September 2021 |
| R2 | Interlocutory Application for Dismissal s 42B(1) (pages 1 to 5) | R | 17 September 2021 | 17 September 2021 |
| R3 | Respondent’s further submissions on dismissal (pages 1 to 4) | R | 12 October 2021 | 12 October 2021 |
| A1 | Applicant’s further submissions on dismissal (pages 1 to 3) | A | Undated | 18 October 2021 |
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