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

[2022] AATA 3655

Muse and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 3655 (27 October 2022)

Division:GENERAL DIVISION

File Number:          2022/3149

Re:Zeinab Ali Muse

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A. Nikolic AM CSC

Date of decision:               27 October 2022

Date of Written Reasons:      2 November 2022

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

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 – no evidence of intellectual disability or impaired cognitive function 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

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

2 November 2022

INTRODUCTION

1. The Applicant seeks review of the Respondent’s decision on 31 March 2022, refusing her application for Australian citizenship by conferral.

2. The hearing was held in person at the Tribunal’s Melbourne Registry on 27 October 2022. The Applicant was self-represented. The Respondent was represented by the Australian Government Solicitor.

3. On 27 October 2022, the Tribunal provided oral reasons affirming the decision under review. On 28 October 2022, the Respondent sought written reasons. These are now provided consistent with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and Federal Court authority,[1] which states:

   “...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).”

   [1] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

   BACKGROUND

4. The Applicant is a 39-year-old citizen of Somalia.[2] She arrived in Australia in late 2015 as the holder of a Permanent Partner (subclass 100) visa, by virtue of which she can reside here permanently.[3] Her parents, siblings, and other relatives continue to live in Somalia.[4] The Applicant refers to previous studies in Australia.[5] She is married, employed, and has a Victorian driver’s licence.[6]

   [2] Exhibit R1, 24-25.

   [3] Ibid 16.

   [4] Ibid 32-33.

   [5] Ibid 25.

   [6] Ibid 26.

5. The Applicant lodged an application for Australian citizenship by conferral on 8 September 2020 under the General eligibility provisions at s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act) Act.[7] She has sat the Australian citizenship test on eight occasions between August 2021 and March 2022 but has not passed it.[8]

   [7] Ibid 24.

   [8] Ibid 53, 64, 70, 76, 97, 103, 109; Exhibit R2, 191.

6. On 31 March 2022, the Respondent refused the Applicant’s citizenship application because she had not successfully completed a citizenship test.[9] The Applicant sought review of the refusal decision on 13 April 2022.[10]

   [9] Exhibit R1, 117.

   [10] 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.’[11] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[12] 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.[13] The Tribunal has considered the available policy.

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

    [12] Ibid [65], [70].

    [13] 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, which found that the Determination does not allow applicants to re-sit the test as many times as they wish, and 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. The following documents were taken into evidence at the hearing:

    (a)Section 37 documents lodged by the Respondent numbering 186 pages;[14]

    (b)Supplementary section 37 documents lodged by the Respondent numbering six pages.[15]

    (c)Statutory Declaration of the Applicant dated 22 October 2022.[16]

    (d)Statement of Attainment regarding the Applicant’s completion of three competencies in 2016 towards a course in ‘Preliminary Spoken and Written English’.[17]

    [14] Exhibit R1.

    [15] Exhibit R2.

    [16] Exhibit A1.

    [17] Exhibit A2.

    Applicant’s evidence 

17. A summary of the Applicant’s evidence follows:

    (a)The Applicant stated in her citizenship application that she could ‘not read and write English.’[18] In her oral evidence, she said it was ‘very hard for (her) to learn’. She has nevertheless undertaken and passed competencies in written and spoken English in 2016, which were delivered in English. She has not done any formal courses since. The Applicant referred to some ‘small trainings’ with the Somali community in her local neighbourhood, but no corroboration was provided;

    (b)The Applicant said she assumed an interpreter would assist her in undertaking the citizenship test by reading and translating the questions. She said staff supervising the test refused this;

    (c)The Applicant said she took the tests administered to her: ‘just like lotto…I don’t even know what I was doing. I was just answering anything that come in front of me…I don’t actually know which one I was answering.’;

    (d)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 an online booklet and podcasts. The Applicant agreed she had not done so despite having internet access:

    ‘No…The job that I’m doing…I go to the work early in the morning…(I don’t) have an opportunity to learn…I am a mum, I have to look after my children and my family, I have responsibility of my kids, so if I focus on English, which is the most important thing to get citizenship, then I’m going to put behind more responsibility which is to look after my family, my kids, and a lot of bills to pay…’

    (e)The Applicant said she wanted Australian citizenship primarily to obtain a passport, which would enable her to travel more easily to see family in Somalia. This was currently difficult using the travel document provided by the Australian Government.

    [18] Ibid 25.

    CONCLUSION

18. Under the general eligibility criteria, successful completion of the citizenship test is a prerequisite for the grant of citizenship. It is the only way an applicant can demonstrate their understanding of the knowledge requirements.

19. There is no evidence the Applicant is impaired in being able to sit and pass the standard test, nor has her application been made on that basis.[19] She has previously passed competencies in written and spoken English, studied and passed tests for a learner’s and probationary driver’s licence, and satisfied the criteria for a Working with Children certificate. She is employed, lives independently with her family, and gave thoughtful responses to questions during the hearing. These are encouraging indicators of her capacity to learn and retain knowledge.

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

20. The Applicant has not sought to formally improve her understanding of English since 2016. Her request to be provided with an interpreter to sit the test is impermissible and reflects a misunderstanding of the knowledge requirement.

21. Despite eight opportunities, the Applicant has not passed a citizenship test. This is unsurprising given she relied exclusively on luck when attempting these tests. She finished each test attempt quickly and well under the available 45 minutes. The Tribunal is unpersuaded the result would be any different under an Assisted Test, the only benefit of which is more time for completion. 

22. The Tribunal is unpersuaded the Applicant has made a reasonable effort to develop her English language skills in preparing for the citizenship test. She has had a reasonable opportunity to satisfy s 21(2A) of the Act. There is no impediment to her re-applying for citizenship and re-attempting the test after she has made additional efforts to improve her English language skills.

    DECISION 

23. The Tribunal affirms the decision under review.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 2 November 2022

Date of hearing:	27 October 2022
Applicant, self-represented:	Zeinab Ali Muse
Advocate for the Respondent:	Ms Catherine Oppel
Solicitors for the Respondent:	Australian Government Solicitor