Khadka and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1327

Khadka and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1327 (21 May 2018)

Division:GENERAL DIVISION

File Number:           2017/6646

Re:Chandra Maya Khadka

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Antoinette Younes

Date:21 May 2018

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship.

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – general eligibility criteria – failed citizenship examination – knowledge of English language – ability to re-sit examination – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 24

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Senior Member Antoinette Younes

21 May 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 26 October 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 19 November 2015.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (the Act). Specifically, the delegate found that the applicant did not meet the requirements of s 21(2A) because she had not successfully completed a citizenship test.

3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   RELEVANT LEGISLATION

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with s 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Act, provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of the s 21(2), (3), (4), (5), (6), (7) or (8).

5. Subsections 21(2), (d), (e) and (f) of the Act are relevant to this case. Essentially, they provide that a person is eligible to become an Australian citizen if the Minister is satisfied that the person understands the nature of an application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

6. Section 21(2A) provides that s 21(2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has sat and successfully completed a citizenship test.

   Citizenship Policy

7. The Citizenship Policy provides guidance to decision-makers in regards to interpretation, and exercise of power under the Act. As a decision-maker, the Tribunal is required to give regard to, and apply the Policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that the Policy should be followed in this case.

   [1] Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634 at p. 640.

8. Chapter 7 of the Policy provides that:

   Test (s21(2A)) - satisfaction of s21(2)(d) to s21(2)(f)

   Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test.[2]

   [2] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7 at p. 69

9. Chapter 7B of the Policy provides an overview of the Citizenship test as follows:

   The purpose of the citizenship test is to assess whether a person who is seeking to acquire Australian citizenship under the conferral general eligibility criteria in s21(2) of the Act understands the nature of the application they are making, whether they have an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language and therefore meets certain legal requirements for the conferral of citizenship. The citizenship test is based on the values within the pledge of commitment.

   There is an expectation that when a person makes an application for conferral of citizenship, they have made that application believing that they will meet all the legal requirements. This includes an expectation that they will pass a test if it is a requirement for them to do so.

   It is expected that a person who applies for citizenship by conferral (under the general eligibility criteria set out in s21(2)) will successfully complete a citizenship test because they will have acquired the knowledge to do so prior to applying for citizenship. It is however accepted that not everyone will pass a citizenship test on their first attempt.[3]

   [3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7 at p 106.

   BACKGROUND

10. The applicant is a citizen of Bhutan. She arrived in Australia on 2 March 2010 as the holder of a Subclass XB Refugee Humanitarian visa which was granted on 9 December 2009.

11. From 9 March 2010, the applicant completed approximately 524 hours of English language tuition with the Adult Migrant English Program. On 19 February 2016, 19 April 2016, 8 March 2017 and 19 October 2017, the applicant sat the Standard Citizenship test but on each occasion, she did not achieve the 75% or more required to pass the test.

12. The applicant has provided explanations which are discussed below.

    FINDINGS AND REASONS

    Whether or not the applicant meets the requirements of s 21(2A) – has the applicant sat and successfully completed a citizenship test?

13. The applicant is not disputing that she has not successfully completed a citizenship test.

14. The applicant gave evidence that she tried to do her best and that she is not “educated”.  She stated that she was having relationship difficulties at the time of the tests and she could not recall anything.  The applicant’s son gave evidence that he tried to help his mother but she did not know what to do. The Tribunal acknowledges those explanations. The evidence before the Tribunal indicates that the applicant has not successfully completed the required test. 

15. In consideration of the evidence as a whole, the Tribunal finds that the applicant does not meet the requirements of s 21(2)(A) of the Act which provides that ss 21(2)(d), (e) and (f) can only be satisfied if the applicant has sat and successfully completed a citizenship test.  The applicant has not successfully completed the required citizenship test.  The Tribunal therefore finds that the applicant does not satisfy s 21(2) of the Act.

16. In consideration of the evidence as a whole and for the stated reasons, the Tribunal affirms the delegate’s decision to refuse the application for Australian citizenship.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

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

Associate

Dated: 21 May 2018

Date of hearing:	17 May 2018
Applicant:	In person
Solicitors for the Respondent:	Ms A Nanson, Australian Government Solicitor