Mohamed and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2023] AATA 4882

Mohamed and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 4882 (9 August 2023)

Division:                  GENERAL DIVISION

File Number:           2023/3385

Re:  Abdirahman Ahmed Mohamed

APPLICANT

And  Minister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:  Senior Member A. Nikolic, AM CSC

Date of Decision:                   9 August 2023
Date of Written Reasons:      25 August 2023
Place:  Melbourne

The Tribunal affirms the reviewable decision.

........................[sgd]................................................

Senior Member A. Nikolic, AM CSC

© Commonwealth of Australia 2023

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – failure to pass citizenship test – Australian Citizenship Act 2007 (Cth) – application made under general eligibility provisions – Citizenship Policy applied – Applicant has not passed citizenship test – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634

Minister for Home Affairs v G [2019] FCAFC 79

Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828

Negri v Secretary, Department of Social Services [2016] FCA 879

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy Statement

(27 November 2020)

Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs,

Revised Citizenship Procedural Instructions (26 February 2021)

REASONS FOR DECISION

Senior Member A. Nikolic, AM CSC 25 August 2023

INTRODUCTION

1.The Applicant seeks review of the Respondent’s decision to refuse his citizenship application under the Australian Citizenship Act 2007 (Cth) (“the Act”).

2.For the following reasons the Tribunal affirms the reviewable decision.

BACKGROUND

3.The Applicant’s citizenship application was made on 14 December 2021 under the General eligibility provisions at s 21(2) of the Act.¹ To be granted citizenship, the Minister must be satisfied, amongst other things, that an applicant satisfies what are commonly known as the ‘knowledge requirements’ under the Act. These are taken to be satisfied ‘if and only if’ an applicant successfully sits and completes the citizenship test.²

4.On 12 May 2023, the Respondent refused citizenship because the Applicant had not passed the citizenship test,³ despite 22 attempts at four appointments.⁴

5.On 16 May 2023, the Applicant asked the Tribunal to review the refusal decision.⁵ He claimed in his application to have already passed the citizenship test on four occasions.⁶

6.The Applicant did not appear at telephone conferences listed by the Tribunal on 6 July 2023 and 14 July 2023. Meanwhile, the Respondent had lodged several bundles of documents on 15 June 2023 and 13 July 2023. The latter of these contained detailed records of each

1 Exhibit R1, 40--68.

2 As approved under a determination authorised by s 23A of the Act.

3 Exhibit R1, 16.

4 Exhibit R2, 2-23.

5 Exhibit R1, 4.

6 Ibid 8.

citizenship test attempt by the Applicant, which contradicted his claims about previously passing the test.⁷

7.On 20 July 2023, following the Applicant’s non-appearance at a second Tribunal conference, the Respondent sought summary dismissal of the application.

8.A telephone hearing was held at the Tribunal’s Melbourne Registry on 9 August 2023. Several unsuccessful attempts were made to call the Applicant on his nominated telephone number. The Tribunal noted that listing advice for conferences and hearings were sent to the Applicant’s preferred email address. The Tribunal also sent the Applicant SMS reminders prior to each conference and hearing. A voice message was also left on his nominated mobile telephone number prior to the hearing on 9 August 2023, which asked him to contact the Tribunal and confirm his attendance. No responses were received from the Applicant to any of the Tribunal’s communications.

9.Having regard for the history of this matter, the relatively straightforward issue in dispute, and the available materials, the Tribunal was satisfied that the Applicant had received reasonable notice of the proceeding and decided to proceed in his absence.⁸ The Respondent agreed with this approach. Oral reasons were subsequently given affirming the reviewable decision. On 10 August 2023, the Respondent requested written reasons. These are the reasons requested, which accord with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). In providing them the Tribunal has applied the reasoning of Justice Bromberg in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:

‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

7 Ibid 8.

8 Pursuant to s 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

LEGISLATIVE FRAMEWORK

10.Section 25(1)(a) of the AAT Act and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.

11.Section 21(1) of the Act enables a person to apply to the Minister for Australian citizenship. Section 24(1) of the Act requires the Minister to either approve or refuse to approve applications for citizenship made under s 21.

12.Pursuant to s 24(1A) of the Act, the Minister must not approve an application for citizenship unless the applicant is eligible to become a citizen under ss 21(2)-(8).

13.Relevantly for the purposes of this application, ss 21(2)(d), (e) and (f) of the Act provide that an applicant must demonstrate the following knowledge requirements:

General eligibility

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

(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

...

14.Section 21(2A) of the Act provides that these knowledge requirements are ‘taken to be satisfied if and only if the Minister is satisfied that’:

(a)The person sits a test approved in a determination under s 23A of the Act;

(b)The person was eligible to sit that test (worked out in accordance with the determination);

(c)The person started and completed the test within the period required by the determination;

(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

Citizenship Policy and Procedural Instructions

15.The Australian Citizenship Policy Statement (Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued on 26 February 2021) guide decision-makers performing functions and exercising powers under the Act. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy...to guide the exercise of discretion.’⁹ Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.¹⁰ Noting that each case before the Tribunal is considered anew, government policy is ordinarily considered unless there is a cogent reason not to do so.¹¹ The Tribunal sees no reason not to consider the available policy.

16.Citizenship Procedural Instruction 26-Australian Citizenship Test (CPI 26) is relevant to this application. This provides that ‘to successfully complete the standard or assisted test an applicant must answer at least 75 per cent (i.e. 15 out of 20) of the test questions correctly’ and all five randomly selected values questions.

17.CPI 26 reflects the judgement of the Federal Court in Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 (“Zadeh”), which found that the Determination does not allow applicants to re-sit the test as many times as they wish, and that the Minister is not prevented from deciding a citizenship application when an applicant has asked to re-sit the test. CPI 26 provides that generally, ‘if an applicant has failed on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that paragraphs 21(2)(d), (e) and (f) of the Act are not satisfied.’

9 Minister for Home Affairs v G [2019] FCAFC 79 [65].

10 Ibid [65], [70].

11 Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

ISSUE

18.The only issue to be determined in this application is the contest between the Applicant’s claim that he has already passed the citizenship test and this is therefore not a preclusion to the grant of citizenship, and the Respondent’s contention that he has not done so despite four appointments and 22 test attempts.

EVIDENCE

Documentary evidence

19.The Respondent has lodged Section 37 documents numbering 209 pages,¹² and Supplementary T-documents numbering 22 pages.¹³

Applicant’s evidence

20.The Applicant did not lodge any documentary materials. He had ample opportunity to do so during the pre-hearing phase. He also had opportunities at two conferences in July 2023, and the hearing on 9 August 2023, to attend and make oral submissions. He failed to do so without explanation.

CONCLUSION

21.The Applicant has not provided any advice since lodging his application on 16 May 2023 about a change in contact details.¹⁴ He has also not provided any evidence in support of his claim about previously passing the citizenship test.

22.The Applicant did not lodge his citizenship application on the basis that he has a permanent or enduring physical or psychological incapacity, nor was expert evidence submitted to this effect. The application was instead made under the general eligibility criteria, which requires successful completion of the citizenship test in order for citizenship to be granted.

12 Exhibit R1.

13 Exhibit R2.

14 Exhibit R1, 5; 45.

23.Exhibit R2 discloses that the Applicant did not pass the citizenship test during 22 attempts.¹⁵ The Tribunal has no discretion to waive the test requirement and is satisfied the Applicant has been given sufficient opportunity to comply with the knowledge requirement at s 21(2A) of the Act.¹⁶ The Tribunal is unpersuaded at the time of its decision that the result would be any different if the Applicant had another opportunity to sit the citizenship test.

24.There is no impediment to the Applicant re-applying for citizenship after he has made further efforts to improve his English language skills. This includes taking advantage of the online tools available to assist applicants, and leveraging the assistance of family, friends, and perhaps other sources of community support. If he believes there is a medical or psychological reason for his inability to pass the citizenship test, that requires a different application supported by expert medical evidence.¹⁷

DECISION

25.The Tribunal affirms the reviewable decision.

I certify that the preceding 25 (twenty- five) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

...............................[sgd].........................................

Associate

Dated: 25 August 2023

Date of hearing:  9 August 2023

15 Exhibit R2.

16 Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828, [37].

17 Form 1290 – Application for Australian Citizenship – Other Situations’.

Applicant:  Did not appear

Advocate for the Respondent:          Ms Georgia Dres

Solicitors for the Respondent:          HWL Ebsworth Lawyers