Nicholls and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 964

Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964 (19 April 2018)

Division:GENERAL DIVISION

File Number:           2017/5145

Re:Aimee Nicholls

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION              

Tribunal:Senior Member Antoinette Younes

Date:19 April 2018

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship.

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP – refusal of application for citizenship by conferral – applicant failed to successfully complete an approved test under the Australian Citizenship Act 2007 (Cth) – where applicant failed to attend scheduled test – consideration of explanation for non-attendance – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)

Australian Citizenship Act 2007(Cth), ss 21, 24

CASES

Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634

Malik and the Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2559

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Instructions

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7 and Chapter 7B

REASONS FOR DECISION

Senior Member Antoinette Younes

19 April 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 2 August 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 16 July 2016.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (the Act). Specifically, the delegate found that the applicant did not meet the requirements of s 21(2A) in that she had not sat and successfully completed a citizenship test. In addition, the delegate found that as the applicant was not present in Australia, the prohibition under s 24(5) was applicable.

3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

   RELEVANT LEGISLATION

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with s 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Act, provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of the ss 21(2), (3), (4), (5), (6), (7) or (8).

5. Subsections 21(2), (d), (e) and (f) of the Act are relevant to this case. Essentially, they provide that a person is eligible to become an Australian citizen if the Minister is satisfied that the person understands the nature of an application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

6. Subsection 21(2A) provides that s 21(2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has sat and successfully completed a citizenship test.

7. Subsection 24(5) of the Act prohibits the Minister from approving a person’s citizenship application if at the time the applicant is not in Australia.

   Policy & instructions

8. The Citizenship Policy (the Policy) is supplemented by the Australian Citizenship Instructions (the ACIs). They provide guidance to decision-makers in regards to interpretation, exercise of power, and operational instructions relating to the Act.  As a decision-maker, the Tribunal is required to give regard to, and apply the Policy and the ACIs unless there are cogent reasons not to do so[1].

   [1] Re Drake and Minister for immigration and ethnic affairs (No 2) (1979) 2 ALD 634 at 640.

9. Chapter 7 of the Policy provides that:

   Test (s21(2A)) – satisfaction of s21(2)(d) to s21(2)(f)

   Under s21(2A) the requirements that the applicant ‘understands the nature of the application’, ‘possesses a basic knowledge of the English language’ and ‘has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ can only be satisfied by the successful completion of a test.[2]

   [2] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7 at p 69.

10. Chapter 7B of the Policy provides an overview of the Citizenship test as follows:

    The purpose of the citizenship test is to assess whether a person who is seeking to acquire Australian citizenship under the conferral general eligibility criteria in s21(2) of the Act understands the nature of the application they are making, whether they have an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language and therefore meets certain legal requirements for the conferral of citizenship. The citizenship test is based on the values within the pledge of commitment.

    There is an expectation that when a person makes an application for conferral of citizenship, they have made that application believing that they will meet all the legal requirements. This includes an expectation that they will pass a test if it is a requirement for them to do so.

    It is expected that a person who applies for citizenship by conferral (under the general eligibility criteria set out in s21(2)) will successfully complete a citizenship test because they will have acquired the knowledge to do so prior to applying for citizenship. It is however accepted that not everyone will pass a citizenship test on their first attempt.[3]

    [3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7 at p 106.

    BACKGROUND

11. The applicant is a citizen of the United Kingdom. She arrived in Australia on 4 June 2010 as the holder of a Working Holiday (Temporary) (Class TZ) Subclass 417 visa. She was subsequently granted an Employer Nomination (Permanent) (Class EN) Subclass 186 visa. She lodged an application for citizenship on 16 July 2016 and left Australia approximately three weeks later. At the time of the delegate’s decision record of 2 August 2017, the applicant was outside of Australia.

12. Four days after the lodgement of the application, on 20 July 2016, the Department of Immigration and Border Protection (the Department) sent the applicant a letter inviting her to attend the Perth Office on 1 November 2016 for a citizenship interview and to undertake the citizenship test. The applicant did not attend the appointment.

13. On 24 April 2017, the Department wrote to the applicant requesting her to book a new appointment within seven days of the date of the letter. The Department informed the applicant that if she did not book a new citizenship appointment, a decision may be made on her application based on the available information to the Department. In response to the letter, the applicant contacted the Department by email advising that she had been unable to reach the Department by telephone to make a new appointment.

14. The applicant has provided explanations which are discussed below.

    FINDINGS AND REASONS

    Whether or not the applicant meets the requirements of s 24(5) –  was the applicant in Australia at the time of decision?

15. It is undisputed that the applicant at the time of decision was not in Australia so the prohibition pursuant to s 24(5) was applicable. The respondent did not press this issue as the applicant is now in Australia. For the sake of clarity, the Tribunal finds that on the evidence, the delegate made the correct finding in relation to this criterion.

    Whether or not the applicant meets the requirements of s 21(2A) – has the applicant sat and successfully completed a citizenship test?

16. It is undisputed that the applicant has not sat and successfully completed a citizenship test.

17. The applicant has provided copies of emails referring to communications, between the applicant, the Department and her representative, and advice she had sought in relation to the refusal decision. In summary, the emails show that as from 22 September 2016, the applicant had requested advice from her representative concerning the rescheduling of the appointment of 1 November 2016. The Tribunal notes the representative’s advice of the difficulties in the representative herself contacting the Department by telephone, as well as, the stated difficulties in the applicant’s attempts to contact the Department. The Tribunal accepts that as early as 22 September 2016, the applicant had made attempts either personally or through her representative to contact the Department. The Tribunal accepts that the applicant’s representative provided limited assistance in this regard. However, the Tribunal notes that four days after the lodgement of the application, on 20 July 2016, the Department sent the applicant a letter inviting her to attend the Perth Office on 1 November 2016 for a citizenship interview and to undertake the citizenship test. The applicant left Australia approximately three weeks later.

18. In the course of the hearing, the Tribunal referred the applicant to her response in the Application for Australian Citizenship by Conferral online form, specifically to the question “Does the applicant intend to depart Australia within the next 12 months?” to which she responded “No”. The Tribunal asked the applicant to explain why she left Australia approximately three weeks later, in light of her response to that question and the fact that she had signed a declaration that the information she supplied in the application form is “complete, truthful, and correct in every details”. She stated that she had misunderstood the question in that she thought it meant leave Australia permanently.  She said she was experiencing relationship issues and she did not intend to stay overseas for as long as she had. She also stated that she was experiencing financial difficulties and she did not think that a decision on the application would be made as quickly as it was made.

19. In submissions, the respondent argued that overall the evidence does not “indicate any serious attempt by the applicant to arrange for and attend a further test” (referring to the test that had been scheduled on 1 November 2016). Those submissions were later withdrawn.

20. In any event, on the evidence, the Tribunal finds that the applicant did make a number of attempts to make contact with the Department and the Tribunal has given this consideration. However, the Tribunal is not persuaded by the explanations relating to the question about any intention to depart Australia. The Tribunal takes the view that the applicant made a declaration, amongst other things, indicating that she did not have an intention to depart Australia within 12 months of lodgement of the application. The Tribunal is not suggesting that the applicant had signed a false declaration or that she provided information that was incorrect or misleading but the declaration is a significant step in lodging an application and the Tribunal gives it weight. Arguably, it would have been prudent to engage with the Department prior to her departure from Australia and make arrangements for the test. The Tribunal notes that the Department sent the applicant an invitation to attend the test within four days of her lodging the application. The Department gave the applicant over three months’ notice of the test. The Tribunal is satisfied that the applicant was correctly notified of the test and that she was given ample time to make arrangements.

21. A central submission made by the respondent is that the Tribunal should not follow the decision of Malik and the Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2559 (Malik). In summary, in the matter of Malik, the applicant failed to sit a citizenship test on four occasions. The Tribunal (differently constituted) accepted her evidence that she needed to travel because her father-in-law had been ill. The applicant in Malik contended that she had made several attempts to inform the Department but was unsuccessful. The Tribunal in that case remitted the matter to the Department with the direction that the applicant be provided with a further opportunity to sit the citizenship test.

22. The respondent submitted that the decision of Malik is “plainly wrong. The task of the Tribunal on the review is to reach the correct or preferable decision…”. The respondent referred to the Tribunal’s powers pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and argued that those powers do not extend to compelling the Minister to permit an applicant to sit for another test. It was further argued that even if the Tribunal had such a power, it would be tantamount to an abuse of the Tribunal’s processes for such a power to be exercised in order to compel an invitation to a further test in circumstances where an applicant has been invited to, and has had an adequate opportunity to sit the test, prior to the decision.

23. As discussed in the course of the hearing, although the Tribunal respects and gives regard to other decisions of the Tribunal, those decisions are not precedents which the Tribunal has to follow. An inherent principle in administrative law is that while consistency in decision-making is desirable, each case must be determined on its own merit and set of circumstances. Moreover, the Tribunal is of the view that it is inappropriate for this Tribunal to critique or make findings whether the decision of Malik is correct as that is a matter for the Courts.

24. On the evidence before it, the Tribunal is satisfied that the delegate exercised power in a manner that was open to them on the evidence. Although a different decision-maker might have waited longer, that does not mean that there was error in the delegate making a decision based on the evidence. The applicant lodged the application on 16 July 2016 and the delegate made a decision on 2 August 2017 – more than 12 months after it had been lodged. The applicant was correctly notified and given proper opportunity to sit the test. Her own personal circumstances and explanations do not mean that the decision was unlawful or incorrect or that it was not the preferable decision. The Tribunal is of the view that administrative decision-making needs to be amongst other things, finalised in a timely manner, giving regard to the full circumstances of the case. The delegate correctly concluded that the applicant did not meet threshold criteria. Moreover, those criteria are mandatory and do not permit waiver or consideration of discretionary factors – an applicant either meets them or does not.

25. On the evidence, the Tribunal is satisfied that there is no defect in the manner the delegate reached the decision and that to set aside a decision without evidence of satisfaction of the threshold requirements, would not be an appropriate exercise of power. The applicant does not satisfy s 21(2) of the Act.

26. In reaching its conclusions, the Tribunal has given regard to the applicant’s submissions that she really wants to become an Australian, she wants to vote, that she would like to be given another chance, and that if the decision is affirmed she would have to do wait a number of years before she could apply and would have to pay tuition fees. The Tribunal does not doubt that the applicant wants to become an Australian and that the decision to affirm the delegate’s decision would have consequences, however, the fact remains that the applicant does not meet the requirements of s 21(2)(A) of the Act which provides that ss 21(2)(d), (e) and (f) can only be satisfied if the applicant has sat and successfully completed a citizenship test.  The applicant has not sat and successfully completed the required citizenship test.

    In consideration of the evidence as a whole and for the stated reasons, the Tribunal affirms the delegate’s decision to refuse the application for Australian citizenship.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes.

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

Associate

Dated: 19 April 2018

Date of hearing:	5 April 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore Lawyers