Lazar and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 2445

Lazar and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2445 (24 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0407

Re:Seezar Lazar

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:24 July 2018

Place:Sydney

The Tribunal affirms the decision under review

.........................[SGD]...............................................

Senior Member M Griffin QC

CATCHWORDS

CITIZENSHIP - conferral of Australian citizenship - requirements of citizenship - understanding of nature of application - possess a basic knowledge of the English language - adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship - failure to pass citizenship test - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) 21

SECONDARY MATERIALS

Minister's Determination for the approval of a citizenship test (section 23A) - IMMI 11/088, 24 March 2012

REASONS FOR DECISION

Senior Member M Griffin QC

24 July 2018

1. The Applicant has applied for review of a decision refusing his application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (the Act).

2. The Applicant was required to demonstrate that he satisfied the criteria in ss 21(2)(d), (e) and (f) of the Act by successfully completing the citizenship test (s 21 (2A)). The Applicant failed to successfully complete the citizenship test on seven separate occasions.

3. The Applicant was born in Iraq on 21 November 1983 and was granted a Subclass 202 (Global Special Humanitarian) visa on 12 May 2009. The Applicant first arrived in Australia on 25 August 2010.

4. On 18 June 2015, an application for Australian citizenship by conferral was received by the Respondent's Department (the Department).

5. The Applicant was invited to several appointments to sit the citizenship test. Department records indicate that the Applicant contacted the Department on the following dates to reschedule his appointment:

   (a)3 July 2015;

   (b)31 July 2015;

   (c)27 August 2015;

   (d)28 September 2015;

   (e)31 October 2015; and

   (f)26 February 2016.

6. On 30 November 2015 and 29 April 2016, the Applicant attended appointments but failed to bring his passport.

7. On 4 January 2016, the Applicant attended an appointment and failed the citizenship test. The Applicant received a score of 7 out of 20 or 35 per cent.

8. On 1 July 2016, the Department's records indicate that an appointment was cancelled.

9. On 23 February 2017 the Applicant failed to attend an appointment to sit the citizenship test.

10. On 10 October 2017, the Applicant attended an appointment and failed the citizenship test on 3 separate attempts. The Applicant received the following scores:

    (a)11 out of 20 or 55 per cent;

    (b)12 out of 20 or 60 per cent; and

    (c)14 out of 20 or 70 per cent.

11. On 6 November 2017, the Applicant attended an appointment and failed the citizenship test on 3 separate attempts. The Applicant received the following scores:

    (a)7 out of 20 or 35 per cent;

    (b)9 out of 20 or 45 per cent; and

    (c)11 out of 20 or 55 per cent.

12. On 11 January 2018, the Respondent refused the application for conferral of Australian citizenship because the Applicant did not satisfy requirements at ss 21(2)(d), (e) and (f) of the Act.

13. The Applicant has sought review of the Respondent’s decision by application dated 25 January 2018.

    APPLICATION FOR REVIEW

14. In his application for review, the Applicant stated the following reasons for seeking review:

    First I have three children, two of them are twins. For the test I have 60 or 70 from 75 question [sic]. One time they send me a letter for test before one day [sic]. Another day the computer was not working. And they let me wait one year to have a test.

    ISSUES

15. The Tribunal must determine whether the Applicant's application for citizenship should be affirmed or refused (s 24(1) of the Act). Where a person is not eligible to become an Australian citizen under ss 21(2)-(8) a person must not be approved to become a citizen (s 24(1A)). If a person is eligible to become an Australian citizen under ss 21(2)-(7), there is a discretion that may be exercised to refuse to approve the person becoming a citizen.

16. The Applicant has applied for citizenship on the basis that he is seeking to meet the general eligibility criteria at s 21(2) of the Act.

17. The Tribunal must determine whether, in the circumstances, the Applicant meets the requirements of s 21(2) of the Act which provides:

    2A 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.

18. In order to satisfy the criteria at ss 21(2)(d), (e) and (f), an Applicant must sit and successfully complete an approved test that is approved in a written determination by the Minister (s 21(2A)).

19. Pursuant to s 23A, the relevant determination is the Minister’s Determination for the Approval of a Citizenship Test (dated 24 March 2012), which sets out the eligibility criteria for sitting the test and what amounts to successful completion of the test. Paragraph 10 of the Determination states that to successfully complete the test, a person must answer correctly at least 75 per cent of the test questions.

20. The evidence before the Tribunal demonstrates that the Applicant has failed the citizenship test and that he does not satisfy the criteria at ss 21(2)(d), (e) and (f) of the Act.

21. The Tribunal finds that the Applicant had been afforded an opportunity to sit the citizenship test and the Applicant currently does not meet the criteria at ss 21(2)(d), (e) or (f) of the Act.

    ORDER

22. The Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

..............................[SGD]..........................................

Associate

Dated: 24 July 2018

Date(s) of hearing:	16 July 2018
Applicant:	In person
Solicitors for the Respondent:	Mr T Dimmock - Minter Ellison