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

[2023] AATA 149

Muhammadi and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 149 (15 February 2023)

Division:GENERAL DIVISION

File Number:2022/6349          

Re:Sakina Muhammadi

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A. Nikolic AM CSC

Date of decision:               15 February 2023

Place:  Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

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; (2019) 164 ALD 103
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828

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

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

15 February 2023

INTRODUCTION

1. The Applicant seeks review of the Respondent’s decision on 25 June 2022, refusing her application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The hearing was held in person at the Tribunal’s Melbourne Registry on 13 February 2023. The Applicant was self-represented and made submissions with the assistance of an interpreter in the Hazaragi language. She called her son to give evidence and the Tribunal was assisted by his insights. The Respondent was represented by Ms Catherine Oppel of the Australian Government Solicitors.

   BACKGROUND

3. The Applicant is a citizen of Afghanistan[1] who arrived in Australia with her husband and youngest son in May 2013 as the holder of a Global Special Humanitarian (subclass 202) visa. They reunited with an older son who was then residing in Australia.[2] By virtue of the permanent Resident Return (subclass 155) visa[3] granted to her in February 2020, the Applicant can reside here permanently.[4]

   [1] Exhibit R1, 44.

   [2] Ibid 17, 48.

   [3] Ibid 7;46.

   [4] Ibid 7, 42.

4. The Applicant applied for citizenship by conferral on 12 September 2017 under the General eligibility provisions at s 21(2) of the Act.[5] To be granted citizenship, the Minister must be satisfied, amongst other things, that an applicant understands the nature of their application and satisfies what are generally known as the ‘knowledge requirements’ under the Act. These are taken to have been satisfied ‘if and only if’ the person successfully completes a citizenship test.[6] The Applicant has sat the Australian citizenship test on seven occasions during four appointments since February 2022 but has not passed it.[7]

   [5] Ibid 11-28.

   [6] As approved under a determination authorised by s 23A of the Act.

   [7] Exhibit R1, 9; 174.

5. On 25 June 2022, the Respondent refused the Applicant’s citizenship application because she had not successfully completed the citizenship test.[8]

   [8] Ibid 7.

6. On 28 July 2022, the Applicant asked the Tribunal to review the refusal decision.[9] This was after the permissible appeal period and required an Extension of Time (“EOT”), which the Tribunal granted. The EOT request was not opposed by the Respondent.

   [9] Ibid 1.

   LEGISLATIVE FRAMEWORK 

7. 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.

8. 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.

9. 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).

10. Relevantly for the purposes of this application, s 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

    ...

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

    (a)The person undertakes 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.

    Citizenship Policy and Procedural Instructions 

12. 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.’[10] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[11] Noting that each case before the Tribunal is considered anew, government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[12] The Tribunal has considered the available policy.

    [10] Minister for Home Affairs v G [2019] FCAFC 79; (2019) 164 ALD 103, 120 [64].

    [11] Ibid [65], [70].

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

13. 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 five randomly selected values questions.

14. 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.’

    ISSUE 

15. The only issue for determination is whether the Applicant is eligible for Australian citizenship under s 21(2) of the Act.

    EVIDENCE 

    Documentary evidence

16. Prior to the hearing, the Respondent lodged Section 37 documents numbering 175 pages, which were taken into evidence.[13]  

    [13] Exhibit R1.

    Applicant’s evidence 

17. The Applicant did not lodge any documentary materials. In her application she referred to a lack of education and inability to speak English, but stated:

    ‘I have been attending English classes and really enjoy learning. I now feel more confident in speaking English.’[14]

    [14] Ibid 2.

18. A summary of the Applicant’s oral evidence at the hearing follows:

    (a)The Applicant said her husband and son have received their Australian citizenship.  Her primary interest in Australian citizenship is easier overseas travel, including to Pakistan and nearby countries;

    (b)Although the Applicant has undertaken English training in Australia, she found this very difficult as she has no previous history of education. She speaks ‘only a little bit of English’;

    (c)The Applicant’s husband had conveyed information in letters received from the Respondent about citizenship test appointments, but doubted she could not pass them. She nevertheless decided to attempt the tests with ‘God’s help’;

    (d)The Applicant said on two occasions her headset was not working properly and staff moved her to a different computer. When asked by Ms Oppel if she undertook seven tests during four test appointments, the Applicant was unsure but thought it was less attempts. The Applicant said she ran out of time for one test when her headphones malfunctioned. When put by Ms Oppel that she completed tests in much shorter times than the allowable 40 minutes, including in three and four minutes, the Applicant did not dispute this. The Tribunal was left with the impression that the Applicant’s test attempts were undertaken without being able to understand the audio questions asked;

    (e)Ms Oppel referred the Applicant to the letter inviting her to sit the citizenship test, which advised her to study, including with the assistance of podcasts, which did not require literacy. The Applicant said she did not have access to a computer;

    (f)In closing submissions, the Applicant said she would like the assistance of an interpreter to attempt the test again. She also referred to medication currently taken that causes pain in her hand and chest. No medical evidence was tendered in support of any physical or mental condition, nor current medication taken.

    Evidence of Applicant’s son

19. The Applicant’s son gave oral evidence. He said it is very hard for his mother to understand or write in English because of the absence of any past education. Although his father tried to assist his mother in preparing for the test, she could not understand the questions and ‘would never pass it’ based on her current English ability.

    CONCLUSION

20. Applications under the general eligibility criteria require successful completion of the citizenship test as a prerequisite for the grant of citizenship. This is because it is the only way an applicant can demonstrate their understanding of the knowledge requirements. The Applicant has not passed the test during seven attempts on four different appointments, and her scores fall well short of the pass mark.[15] Most the attempts were completed within minutes, which is suggestive of her relying on pure chance. The Tribunal has no discretion to waive the test requirement.

    [15] Ibid 174.

21. It is not unreasonable for a delegate to decide an application after three attempts and the Applicant has received seven opportunities. The Tribunal is satisfied she has been given sufficient chances to comply with the knowledge requirement at s 21(2A) of the Act.[16] The Tribunal is unpersuaded the result would currently be any different under an Assisted Test, the only benefit of which is additional time for completion. Given the relatively brief time taken by the Applicant to undertake past tests, it is not considered that additional time is contextually relevant in her circumstances. 

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

22. Although she has not been employed since arriving in Australia, the Applicant lives independently with her family, and her responses to questions during the hearing reflect some understanding of the rights and responsibilities of citizenship. When coupled with the aspiration she expressed about improving her English language abilities, these are encouraging indicators of her capacity to learn and retain knowledge. There is no impediment to the Applicant re-applying for citizenship and re-attempting the test after she has made further efforts to improve her English language skills. This includes taking advantage of the online tools available to assist applicants, and leveraging the assistance of family, friends, and her ethnic community. There is no limit on the number of applications a person can make under the Act once they are better prepared.

23. There is no evidence currently before the Tribunal that the Applicant is in a category that might exempt her from the test on medical grounds. In any event her application was not made on that basis,[17] but under general eligibility provisions. Her claims about the effect of medications she currently takes, however, may enliven a different application under the exemption for people who have a permanent or enduring mental or physical incapacity. Expert medical evidence is required to establish this.

    [17] This would be an application on Form 1290 – Application for Australian Citizenship – Other Situations’.

    DECISION 

24. The Tribunal affirms the decision under review.

25.     I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 15 February 2023

Date of hearing:	13 February 2023
Applicant:	Sakina Muhammadi (self-represented)
Advocate for the Respondent:	Ms Catherine Oppel
Solicitors for the Respondent:	The Australian Government Solicitor