Liang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 3357

Liang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3357 (1 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1152

Re:Yanwen Liang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:1 September 2020

Place:Sydney

In accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the decision of the delegate of the Minister made 4 February 2020 is remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for reconsideration.

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

Deputy President J W Constance

CATCHWORDS

PRACTICE AND PROCEDURE ­– application for dismissal – application for citizenship by conferral – where application refused because the applicant had not sat the citizenship test – where notification of test appointments not received by the applicant – where policy following non-attendance at arranged appointments not followed – where Minister has advised the applicant will not be offered another opportunity to sit the citizenship test – where applicant may be offered another opportunity to sit the citizenship test – where Tribunal not satisfied that the application has no reasonable prospects of success – decision remitted for reconsideration

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B, 42D

Australian Citizenship Act 2007 (Cth) ss 21

CASES

Shi v Migration Agents Registration Authority (2008) 103 ALD 467

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Deputy President J W Constance

1 September 2020

INTRODUCTION

1. On 8 December 2018 Ms Liang applied for Australian citizenship by conferral in accordance with the provisions of the Australian Citizenship Act 2007 (Cth), referred to in these reasons as the Citizenship Act.

2. On 4 February 2020 a delegate of the Minister refused the application on the basis that Ms Liang had not demonstrated that she understood the nature of the application, possessed a basic knowledge of the English language and had an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.  The Citizenship Act provides that the only way an applicant can demonstrate these attributes is to have successfully completed a citizenship test approved by the Minister.  It is not in dispute that Ms Liang has not completed such a test.

3. Ms Liang applied to the Tribunal to review the delegate’s decision on 2 March 2020. On 26 May 2020 the Minister applied to have the application to the Tribunal dismissed on the ground that it had no reasonable prospects of success as Ms Liang has not completed the required citizenship test. The Minister’s application was made under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) referred to as the AAT Act.

4. For the reasons which follow Ms Liang’s application to the Tribunal for review of the delegate’s decision made 4 February 2020, will be remitted to the Minister for reconsideration.

   LEGISLATION AND POLICY

   Australian Citizenship Act 2007 (Cth)

5. Subsection 21(2) provides:

   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 has completed relevant defence service (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.

6. Subsection 21(2A) provides:

   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.

   Australian Citizenship Instructions

7. Chapter 16 of the Instructions provides, in part:

   15.3.2 Computer based tests (Standard Test or Assisted Test)- non-attendance at arranged appointments

   If a client fails to attend an appointment, the case officer must call the client to schedule a second appointment, make a note in ICSE and confirm the new date/time in writing to the client.

   The Instructions were replaced in 2020 but applied throughout 2019 and January and February 2020.

   Administrative Appeals Tribunal Act 1975 (Cth)

8. Paragraph 42B(1)(b) provides:

   (1)  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:

   …

   (b)  has no reasonable prospect of success; or

   …

   FACTS

9. For the purposes of this application the following facts are not in dispute:

   ·on 8 December 2018 Ms Liang applied for Australian citizenship by conferral;

   ·in her application for citizenship Ms Liang nominated an email address in answer to the request to “Select an email address … where correspondence relating to this application will be sent”;[1]

   [1] Section 37 ‘T’ Documents filed 27 March 2020, 157.

   ·Ms Liang also provided a landline number and a mobile number in her application but not in response to the request referred to above;

   ·in the application form the following appeared under the heading “Electronic communication”:

   The Department uses a range of electronic methods to communicate.  Electronic communication will only be used when consent has been provided;

   ·on 4 August 2019 the Department sent an email to Ms Liang notifying her of an appointment to sit the citizenship test on 25 October 2019;

   ·Ms Liang did not attend the appointment on 25 October 2019;

   ·the Case Officer assigned to Ms Liang’s application did not call her to arrange a second appointment;

   ·on 28 October 2019 the Department sent an email to Ms Liang notifying her of an appointment to sit the citizenship test on 4 December 2019;

   ·on 5 December 2019 the Department sent an email to Ms Liang notifying her of an appointment to sit the citizenship test on 23 January 2020;

   ·each of the three emails was sent to the email address nominated by Ms Liang as her address for communication in relation to her application;

   ·these emails were received at the nominated address into the “spam” folder and were not read by Ms Liang until sometime after 23 January 2020, being the date of the last appointment for a citizenship test;

   ·on 4 February 2020 a delegate of the Minister refused Ms Liang’s application for citizenship;

   ·on 2 March 2020 Ms Liang applied to the Tribunal to review the delegate’s decision;

   ·the Minister has refused Ms Liang’s requests for another appointment to sit the test.

   ISSUES FOR DETERMINATION

10. The following issues arise for determination.

    (1)Am I satisfied that Ms Liang’s application for citizenship has no reasonable prospects of success?

    (2)If so, should Ms Liang’s application to the Tribunal be dismissed?

    REASONING

    Issue 1:   Am I satisfied that Ms Liang’s application for citizenship has no reasonable prospects of success?

11. Based on the facts set out above, if a decision was made on Ms Liang’s application now, it would not be successful.  This is not in dispute.

12. For Ms Liang to be eligible for Australian citizenship the decision-maker (in this case the Tribunal) must be satisfied that she meets the requirements of subsection 21(2) of the Citizenship Act. Some of these requirements can only be satisfied by Ms Liang sitting and passing the citizenship test.

13. In most situations, of which an application concerning citizenship is one, the Tribunal makes its decision based on the facts as found at the time the decision is made.[2] It was argued on behalf of Ms Liang that by the time her application is heard by the Tribunal she may have been able to sit the test and satisfy all of the requirements of subsection 21(2) of the Citizenship Act.

    [2] Shi v Migration Agents Registration Authority (2008) 103 ALD 467, 489-490.

14. Subsection 42B(1) requires the Tribunal to be satisfied that the application has “no reasonable prospects of success”.  [Emphasis added].  In this case the Minister has informed the Tribunal that he does not propose to offer Ms Liang another opportunity to sit the test.  However, it is reasonable to expect that the policy applicable to the Minister’s Department at the time Ms Liang failed to attend the first appointment would have been followed, unless there was good reason not to do so.  Although provided the opportunity, the Minister did not advance any reason why this was the case.

15. The Minister argued that Ms Liang may immediately reapply for citizenship if her present application to the Tribunal is dismissed.  This is true.  Nevertheless, the Tribunal was not informed of any reason based on good public administration why Ms Liang and the Department should incur the additional time and expense of taking this course.

16. I am not prepared to dismiss Ms Liang’s application to the Tribunal at this stage as I am not satisfied that it has no reasonable prospect of success. It may be that, on reconsideration, Ms Liang will be offered another opportunity to sit and pass the citizenship test.

17. In accordance with section 42D of the AAT Act the decision under review will be remitted to the Minister for reconsideration.

    Issue 2:  Should Ms Liang’s application to the Tribunal be dismissed?

18. As I have not found that Ms Liang’s application to the Tribunal has no reasonable prospect of success, this issue does not arise for determination.

    CONCLUSION

19. In accordance with section 42D of the AAT Act, the decision of the delegate of the Minister made 4 February 2020 will be remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for reconsideration.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 1 September 2020

Date(s) of hearing:	19 June 2020, 21 August 2020
Solicitors for the Applicant:	H Pan, Rock Lawyers
Solicitors for the Respondent:	T Aviram, Clayton Utz