Malik and Minister for Immigration and Border Protection (Citizenship)

This matter concerned an application by Mrs Malik for Australian citizenship, which was reviewed by the Administrative Appeals Tribunal. The dispute arose from the Minister for Immigration and Border Protection's decision to limit Mrs Malik's opportunities to sit the citizenship test to three occasions, effectively deeming her final opportunity to have passed on 13 April 2017. Mrs Malik sought a further opportunity to undertake the test, explaining her previous non-attendances were due to circumstances she believed constituted reasonable excuses, and that she had not understood there was a finite limit on her attendance opportunities.

The Tribunal was required to determine whether the decision to limit Mrs Malik's test opportunities to three occasions was the correct or preferable decision, and if not, what decision ought to be substituted. This involved considering the powers and discretions vested in the Tribunal under section 43(1) of the *Administrative Appeals Tribunal Act 1975* (Cth), and having regard to the objectives set out in section 2A of that Act. The Tribunal also had to assess whether there were any statutory or administrative limits on the number of times an applicant could be offered the opportunity to sit the citizenship test.

The Tribunal found that there was no statutory support for limiting an applicant's opportunities to sit the citizenship test to a finite number, nor could the Respondent identify any such basis. The Tribunal rejected the Respondent's analogy to the finality of litigation, finding it inapplicable to the citizenship interview process. Based on Mrs Malik's evidence, the Tribunal was satisfied that she had reasonable explanations for her previous non-attendances and had not wilfully failed to attend. The Tribunal concluded that the decision to limit her opportunities was not the correct or preferable one.

Exercising its powers and discretions, the Tribunal determined that Mrs Malik should be offered another opportunity to sit the test. The Tribunal found that the Respondent would not be prejudiced by this course of action, whereas Mrs Malik would suffer significant prejudice if denied this opportunity, which would be unfair given the circumstances.