Malik and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2559
•10 November 2017
Malik and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2559 (10 November 2017)
Division:GENERAL DIVISION
File Number(s): 2017/2842
Re:Shabana Khalil Malik
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:10 November 2017
Date of written reasons: 7 December 2017
Place:Melbourne
The Tribunal sets aside the decision under review and directs that the matter be remitted to the Respondent for reconsideration and in the expectation that the Applicant will be given the opportunity to complete another test under section 23A of the Citizenship Act 2007 (Cth).
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Dr Damien Cremean, Senior Member
CITIZENSHIP – refusal for application for Australian citizenship by conferral – Applicant failed to successfully complete an approved test under the Australian Citizenship Act 2007 (Cth) – Applicant failed to attend four scheduled appointments to complete the test – reasonable explanation for non-attendances – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Australian Citizenship Act 2007(Cth) ss 21, 23
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
7 December 2017
The Applicant, Mrs Shabana Khalil Malik, seeks review of the decision made under the Australian Citizenship Act 2007(Cth) (‘Act’) to refuse her application for Australian citizenship by conferral. That decision was made on the basis that Mrs Malik did not satisfy the requirements under section 21(2)(d),(e) and (f) of the Act, as she did not successfully complete an approved test.
The matter was heard on 10 November 2017. At the conclusion of the hearing, I determined that the decision under review should be set aside and directed that the matter be remitted to the Respondent for reconsideration in the expectation that Mrs Malik will be given the opportunity to complete another test under section 23A of the Act. I also provided the parties with oral reasons at the time the outcome of the hearing was announced. The Respondent, however, has requested written reasons in the matter. These are those reasons.
Legislation
Relevantly, section 21 of the Act provides that:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(d) understands the nature of the application under subsection (1);
(e) possesses a basic knowledge of the English language;
(f) has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship; ...
Subsection 21(2A) of the Act provides that paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if a person has sat and successfully completed a citizenship test approved by the Minister and that the person was eligible to sit the test.
Mrs Malik’s failure to attend scheduled appointments
The Applicant lodged an application for Australian citizenship under the Act on 26 July 2016. Subsequently, four appointments were made for the Applicant to sit an approved citizenship test on the following dates: 3 October 2016; 14 February 2017; 5 April 2017; and 13 April 2017. As regards the last of these, the Department sent Mrs Malik a Notice in relation to attendance at final citizenship test appointment by letter on 25 March 2017. The letter advised her that an appointment had been made for her to attend a test on 13 April 2017 at 1.20pm. That letter mentioned that the Applicant must attend the scheduled appointment and that if she did not do so, a decision would be made on her application
In fact, the Applicant did not attend the test on that date. Nor did she attend any of the appointments scheduled for the previous dates.
The Applicant gave affirmed evidence to the Tribunal regarding her various non–attendances and was cross-examined by Mr Jamie Grant, who appeared on behalf of the Respondent. Mrs Malik was assisted by an Urdu interpreter.
Based on her evidence, which I accept despite some of its vagueness, I consider she has a reasonable explanation for each of her non-attendances.
On the occasion of the first scheduled test, being 3 October 2016, the Applicant told the Tribunal that she had to unexpectedly travel to Pakistan because her father-in-law was seriously ill. Mrs Malik and her husband left for Pakistan approximately 20-25 days before the interview. She said she attempted to make a phone call to the Department at one point, but called just before closing time so was unable to get through. Mrs Malik attempted to call another 2-3 times before she left for Pakistan, but the call wait time was so long that she just gave up in the end.
At the time of the second test on 14 February 2017, the Applicant again had to go to Pakistan for certain cultural rituals and to make arrangements following the death of her father-in-law. At the time of the third test on 14 February 2017, the Applicant was in considerable pain and unable to attend.
I also heard that the Applicant is married, that her husband is a tram driver and they have three children. She describes herself as just a housewife but it is a traditional household. In a short period of time the Applicant fell pregnant five times and gave birth on three occasions.
The Applicant wrote what I consider to be a very respectful note explaining her situation as well as she could—excusing infelicities of expression—but it got nowhere. She further explained in evidence that she is still keen to try for Australian citizenship and would like to be given another chance. She said that she understood that she needed to sit the test to be able to be granted citizenship; however, she did not know how many chances she had to attend. She said she believed that she may have a finite number of chances to pass the test, but did not realise that she would have a finite amount of chances to attend the test.
Consideration
In determining the application I consider I have all the powers and discretions of the decision maker. See Administrative Appeals Tribunal Act 1975(Cth) s 43(1). In exercising any powers under that Act, I consider I need to have regard to section 2A and the objectives there set out.
I am called upon to decide what, on the materials before me, is the correct or preferable decision in this matter. That decision of course could well be to affirm the decision under review. I am satisfied, however, that the correct or preferable decision is not that decision on the evidence.
The decision I am reviewing includes the element whereby the decision maker limited the Applicant’s opportunity to undertake the test to three occasions. There is no statutory support for this which I could find in the Act and the Respondent could not suggest to me anywhere else that it might be found.
The Respondent suggested to me that limiting the test on 13 April 2017 to be the final opportunity for Mrs Malik to attend would ensure finality of her application for citizenship, analogous to the notion that there must be an end to litigation. Therefore, there must be an end to the number of interviews offered.
This is a quite inadequate analogy and the litigation model has nothing whatsoever to do with a citizenship interview process. I found reference to the litigation model entirely unhelpful. However, I do consider it appropriate to assess whether there ought to be a limit to continuous administrative processes. In these circumstances though, based on Mrs Malik’s evidence, I consider she has a reasonable explanation for each of her non-attendances.
Additionally, I am unable to see that there are any limits at all on the number of interviews which might be offered to an applicant for citizenship.
The decision under review therefore is not the correct or preferable one from the point of view of what may be offered to an applicant for citizenship who must undertake a test. The correct or preferable decision is one that does not determine that the Applicant may only be offered three or four opportunities at the test.
Further, exercising the powers and discretions of the decision maker, it seems to me that in light of the evidence, the Applicant should be offered another opportunity to sit the test. The evidence satisfies me that the Applicant has not wilfully been failing to attend interviews. Also, it satisfies me that the Respondent is not prejudiced by allowing her another opportunity. No harm is done to the Respondent in following that course. Indeed, any prejudice in not allowing her to do so (such as in expenses incurred) will fall squarely on her which, in the circumstances explained to me, would seem unfair.
I set aside the decision under review for these reasons. I am satisfied that the Applicant has not yet been unsuccessful in passing the test under section 21(2A) of the Act, nor has she sat the test. I am satisfied though that she should be given another opportunity to sit the test.
Accordingly, I set aside the decision under review and direct that this matter return to the Respondent to be reconsidered in light of these reasons, in the expectation that the Applicant will be given the opportunity of another test.
23. I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
24.
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Associate
Dated 7 December 2017
Date of hearing 10 November 2017 Applicant In person Solicitors for the Respondent Mr Jamie Grant, Sparke Helmore Lawyers
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