Khoshaba and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1829

Khoshaba and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1829 (18 June 2018)

Division:GENERAL DIVISION

File Number(s):2017/6852      

Re:Adnan KHOSHABA

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION              

Tribunal:Senior Member Antoinette Younes

Date:18 June 2018

Place:Sydney

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

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship – refusal of citizenship application on grounds applicant had not successfully completed required citizenship test – purpose of citizenship test is to assess whether person seeking citizenship understands the nature of the application, has an adequate knowledge of Australia and responsibilities and privileges of citizenship, and a basic knowledge of English - applicant sat and failed multiple citizenship tests – decision affirmed

LEGISLATION

Australian Citizenship Act 2007, ss 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 21(2A), 24(1), 24(1A)

CASES

Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapters 7 and 7B

REASONS FOR DECISION

Senior Member Antoinette Younes

18 June 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 25 October 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 13 July 2016.

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 subsection 21(2A) because he 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 subsection 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 subsection 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. Subection 21(2A) provides that subsections 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 7B at p. 106.

   BACKGROUND

10. The applicant is a citizen of Iraq. He arrived in Australia in March 2009 as the holder of a permanent Subclass 200 Refugee visa.

11. Evidence[4] before the Tribunal indicates that from 12 April 2017 to 24 October 2017, the applicant sat the Standard Citizenship test on 17 different occasions but on each occasion, he did not achieve the 75% or more required to pass the test.  His highest score was 70% and his lowest was 35%.

    [4] EXHIBIT A – Screenshots of the applicant’s attempts at the standard citizenship test.

    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?

12. The applicant is not disputing that he has not successfully completed a citizenship test.

13. The applicant gave evidence that the results were within his current abilities and capacity. He expressed gratitude and confirmed that he has not undertaken any further tests after 24 October 2017 or English language studies.  He expressed his acceptance that he has limited English language skills.  The Tribunal acknowledges those explanations. The evidence before the Tribunal indicates that the applicant has not successfully completed the required test. 

14. On the evidence,[5] the Tribunal is satisfied that from 9 May 2017 to 24 October 2017, the applicant was given the opportunity to re-sit the Standard Test 14 times, and was unsuccessful on each attempt.  The Tribunal notes that although the applicant’s test performance was 70% on 5 occasions, there was a decline in the test performance after 8 August 2017.  The applicant’s most recent results on 24 October 2017 (second test) show a score of 35%.

    [5] EXHIBIT B – Respondent’s Statement of Facts, Issues and contentions at p. 2.

15. The Minister submits that in circumstances where the applicant has been afforded the opportunity to sit the test 17 times over 8 separate days for a period of six months and failed on each occasion as well as the decline in performance, it is appropriate to finalise the application for citizenship.  The Tribunal gives regard to those submissions and the Tribunal is satisfied that, in the circumstances and given the applicant’s acceptance that he has limited English language skills, it is inappropriate to delay the finalisation of this matter.  In any event, the applicant is not requesting a further opportunity to sit the test and the Tribunal, for the stated reasons, does not consider that to be the correct and preferable course of action.

16. For the stated reasons, the Tribunal finds that the applicant does not meet the requirements of subsection 21(2A) of the Act which provides that subsections 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 subsection 21(2) of the Act.

17. For those reasons, the Tribunal affirms the delegate’s decision to refuse the application for Australian citizenship.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

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

Associate

Dated: 18 June 2018

Date of hearing:	12 June 2018
Advocate for the Applicant:	Mr D Warda
Solicitor for the Respondent:	Ms R Noronha, Clayton Utz