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

This matter concerned an application for dismissal of a review of a decision to refuse Australian citizenship by conferral. The applicant, Ms. Liang, had applied for citizenship by conferral and nominated an email address for correspondence. The Department sent three emails to this nominated address notifying her of citizenship test appointments on 25 October 2019, 4 December 2019, and 23 January 2020. Ms. Liang did not attend any of these appointments, as the emails were received into her spam folder and not read until after the last scheduled appointment. The Case Officer did not contact Ms. Liang to arrange a second appointment. Consequently, a delegate of the Minister refused her application on 4 February 2020. Ms. Liang subsequently applied to the Tribunal for a review of this decision. The Minister had advised Ms. Liang that she would not be offered another opportunity to sit the test.

The primary legal issue before the Tribunal was whether Ms. Liang's application for citizenship had no reasonable prospect of success, which would allow the Tribunal to dismiss her application for review under section 42B(1)(b) of the relevant Act. The Tribunal was required to determine if, based on the undisputed facts, Ms. Liang's application would inevitably fail. The Tribunal acknowledged that if a decision were made at that point, Ms. Liang's application would not be successful, as she had not yet satisfied the requirement of sitting and passing the citizenship test, which is a prerequisite for eligibility under subsection 21(2) of the Citizenship Act.

The Tribunal reasoned that while Ms. Liang had not yet met the requirements for citizenship, this did not automatically mean her application for review had no reasonable prospect of success. The Tribunal noted that the Department's policy regarding non-attendance at appointments had not been followed, and there was a possibility that Ms. Liang might be offered another opportunity to sit the test. Because the Tribunal was not satisfied that Ms. Liang's application had no reasonable prospect of success, it did not proceed to consider whether to dismiss the application.

Accordingly, the Tribunal made an order under section 42D of the AAT Act that the decision of the delegate of the Minister made on 4 February 2020 be remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for reconsideration.