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

[2020] AATA 401

Mohamoud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 401 (5 March 2020)

Division:GENERAL DIVISION

File Number:2017/6811          

Re:Sabah Husien Mohamoud   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R West 

Date:5 March 2020  

Place:Melbourne

The decision under review is affirmed

……………………[sgd]………………………….

Member

Catchwords

Australian Citizenship Act – assisted citizenship test – Applicant unsuccessful – referral under s.42D of the AAT Act – application for citizenship rejected – decision affirmed.

Legislation

Australian Citizenship Act 2007

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

1. This matter concerns an application for review of a decision of the delegate of the Respondent to refuse the Applicant’s application for conferral of Australian citizenship.

   Background

2. The Applicant was born in Hargeisa, Somalia.  She arrived in Australia on a Partner (Provisional) visa (subclass 309) on 27 March 2010.  She was granted a permanent partner visa (subclass 100) on 15 September 2011.  She applied under s.21 of the Australian Citizenship Act 2007 (Act) for citizenship by conferral on 11 October 2016.

3. Subsection 24(1A) of the Act relevantly provides that the Respondent (or a delegate of the Respondent) must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s.21(2), (3), (4), (5), (6), (7) or (8).

4. The delegate considered the Applicant’s eligibility under s.21(2) and accepted that the Applicant met the requirements of s.21(2)(a), (b), (c) and (g).

5. Paragraphs 21(2)(d),(e) and (f) provide that a person must demonstrate that they understand the nature of the application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. Subsection 21(2A) provides that these requirements are satisfied if, and only if, the person has sat and successfully completed a citizenship test approved by the Respondent.

6. The Applicant sat the approved citizenship test on 9 February, 20 June, and 10 October 2017, but on each occasion was unsuccessful.  In a decision dated 18 October 2017, the delegate of the Respondent rejected the Applicant’s application for citizenship on the basis of her failure to meet the requirements of s. 21(2)(d),(e) and (f) of the Act.  The Applicant applied for a review of this decision on 16 November 2017.

7. The Tribunal conducted a hearing of the application on 20 May 2019.  The Respondent was represented by Mr Rodgers, a solicitor.  The Applicant was self-represented and had the assistance of an interpreter in the Somali language.

8. The Applicant gave evidence at the hearing that she had sat the citizenship test a fourth time on 20 December 2018 but was unsuccessful and none of the citizenship tests she had undertaken were assisted tests.[1] The Respondent accepted this evidence and undertook to arrange for the Applicant to re-sit the test as an assisted test. The proceedings were adjourned and the matter remitted to the Respondent for further consideration under s.42D of the Administrative Appeals Tribunal Act 1975 (AAT Act).[2]

   [1] The Ministerial Determination made under s.23A of the Act provides for an assisted test whereby the Applicant has 90 minutes rather than the standard 45 minutes to complete the test.

   [2] The remittal was initially for a period of 90 days to expire on 30 October 2019 but was extended by agreement to 1 February 2020.

9. On 17 July 2019, the Applicant again sat the citizenship test as an assisted test, but was unsuccessful.

10. On 12 September 2019, the delegate of the Respondent reconsidered the decision under review having regard to the results of the test undertaken by the Applicant on 17 July 2019 and affirmed the decision pursuant to s.42D(2)(a) of the AAT Act.

11. Following the decision to affirm the decision under review a directions hearing by telephone was held on 11 December 2019 pursuant to s.42D(8) of the AAT Act at which the Respondent was again represented by Mr Rogers and the Applicant appeared with the assistance of a Somali interpreter. The Applicant confirmed that she had sat the assisted test on 17 July 2019. The matter was adjourned to allow the Applicant to consider whether to proceed with her application or to withdraw.

12. A further directions hearing was held by telephone on 28 January 2020.  The Applicant did not respond to telephone calls, the hearing proceeded in her absence and the matter was further adjourned.  The Tribunal wrote to the Applicant following the hearing on 28 January 2020 requesting the Applicant to confirm whether she intended to withdraw her application and notifying her that if she did not withdraw the Tribunal would proceed to determine her application for review without further hearings unless she requested a further hearing in writing within seven days.  The Applicant did not respond to the letter.

    Determination

13. The facts in this case are clear.  The Applicant has sat the citizenship test on five occasions on 9 February 2017, 20 June 2017, 10 October 2017, 20 December 2018 and 17 July 2019, and has been unsuccessful on each occasion.  On the last occasion, the test was administered as an assisted test.  The Tribunal is satisfied that the Respondent has provided the Applicant with a proper opportunity to undertake the citizenship test.

14. Subsection 21(2A) of the Act provides that the requirements of s.21(2)(d),(e) and (f) are satisfied if, and only if, the person has sat and successfully completed a citizenship test approved by the Respondent. Subsection 24(1A) of the Act relevantly provides that the Respondent (or a delegate of the Respondent) must not approve a person becoming an Australian citizen unless, among other things, the person satisfies the eligibility criteria under s.21(2).  Accordingly, the Applicant is not eligible for Australian citizenship and the Tribunal cannot approve her application.

15. The decision under review is affirmed.

16. While the Applicant has been unsuccessful on this occasion the Tribunal applauds her persistence in pursuing Australian citizenship.  It is hoped that the Applicant’s persistence will enable her to achieve a sufficient mastery of English so that she can succeed in becoming an Australian citizen in the future.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 5 March 2020

Dates of hearing:	20 May 2019
Applicant:	Self-represented
Solicitors for the Respondent:	Ned Rogers Australian Government Solicitor