Oruzgani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 986
•2 May 2022
Oruzgani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 986 (2 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5635
Re:Mr Nimatullah Oruzgani
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms Anna E Burke AO Member
Date:2 May 2022
Place:Melbourne
The Tribunal finds Mr Oruzgani has not been afforded a reasonable opportunity to pass the citizenship test.
The Tribunal remits the matter to the Department to invite Mr Oruzgani to sit an assisted citizenship test.
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Ms Anna E Burke AO Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – citizenship test exemption – whether Applicant suffers from a permanent or enduring mental incapacity at the time of application – workplace injury after application – medical evidence considered – length of time taken for citizenship application to be considered – no opportunity to sit an assisted test – decision set aside and remitted to Department
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Minister for Home Affairs v Zadeh (No. 2) [2018] FCA1828
Secondary Materials
Australian Citizenship Procedural Instructions
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (2020)
REASONS FOR DECISION
Ms Anna E Burke AO Member
2 May 2022
INTRODUCTION AND BACKGROUND
Mr Nimatullah Oruzgani (the Applicant) is a 46-year-old Afghan citizen who arrived in Australia on 20 May 2010 without a valid visa. On 25 May 2011 he was granted a Permanent Protection (Subclass 866) visa and subsequently on 15 February 2016 was granted a Residential Return (Subclass 155) Visa.
On 1 June 2015, Mr Oruzgani lodged an application for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
On 21 July 2021, a delegate of the Minister for Home Affairs, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refused Mr Oruzgani’s application for citizenship as he did not meet the criteria under s 21(2)(d)-(f) of the Act (the Reviewable Decision) stating:
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 you have sat and successfully completed a citizenship test approved by the Minister and that you were eligible to sit that test.
You lodged an application for conferral of Australian citizenship on 01 June 2015. Since that time you have had seven appointments to sit an approved citizenship test to demonstrate that you meet the legal requirements for citizenship.
Appointment Date Action Result 09 July 2021 Test appointment booked. You did not pass the test at this appointment 17 May 2021 Test appointment booked. You did not attend the test appointment 25 March 2021 Test appointment booked. You did not pass the test at this appointment 02 March 2021 Test appointment booked. You did not pass the test at this appointment 13 January 2021 Test appointment booked. Test cancelled due to COVID-19 precautionary measures 18 November 2020 Test appointment booked. You rescheduled your test appointment 21 October 2020 Test appointment booked. You rescheduled your test appointment 07 October 2020 Test appointment booked. You did not attend the test appointment After failing the test on two separate occasions, you were provided a final test appointment on 09 July 2021 to demonstrate that you have passed an approved citizenship test. Departmental records state that you did not pass the test at this final appointment.
Subsection 24(1) of the Act requires the Minister to make a decision in writing to approve or refuse an application. There is an expectation that wherever possible a decision will be made within a reasonable period of time after receiving an application.
You made an application on 01 June 2015 and I am satisfied that you have had a reasonable opportunity to demonstrate that you meet all of the legal requirements for conferral of Australian citizenship.
At the time of this decision you have not successfully passed a citizenship test approved in a determination under section 23A.
On 13 August 2021, Mr Oruzgani applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision, stating:
The decision is wrong because I have medical condition. I am injured in my work due to which I have to take lots of medicines daily. The medicines have impacted my ability and mental health. After failing the citizenship test three times, the citizenship office advised me to apply for AAT review as they themselves knew my medical condition.
At the hearing by telephone, Mr Oruzgani was self-represented, and Mr Thomas Creedon Senior Lawyer for the Australian Government Solicitors, appeared on behalf of the Respondent. The Tribunal was assisted by a Dari interpreter.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether Mr Oruzgani satisfied:
(a)Sections 21(2)(d)-(f) and 21(2A), that is, whether he has had a reasonable opportunity to sit the test; and
(b)Section 21(3)(d) of the Act, that is, did he have a permanent or enduring mental incapacity at the time he made his application for citizenship?
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(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
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 21(2A) of the Act sets out the citizen test criteria:
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Section 21(3) of the Act defines permanent or enduring physical or mental incapacity:
(3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
Section 24 of the Act provides, in part:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person
The Citizenship Policy
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 367: ‘Policy is not law. A statement of policy is not a prescription of binding criteria’.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
In relation to s 21(3), the Citizenship Policy states:
For applications received on or after 9 November 2009 for consideration under s 21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
…
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
...
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
...
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or
·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
...
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
In relation to s 21(2)(d), (e) and (f) the Citizenship Procedural Instruction 26 - Australian Citizenship Test states:
4.2 Accessibility and the test
All test computers are equipped with headsets for audio, which is compliant with web accessibility guidelines. Applicants can choose this option when sitting the standard or assisted test.
If the headset is not available or does not work and the applicant requests or require assistance, a Test Administrator may:
·Read the questions and multiple-choice answers aloud to the applicant,
·Ask the applicant for their response,
·Select the answer on the computer that the applicant indicates.
A printout of the computer-based Standard Test will also be available in certain circumstances (for example, for people sitting the test outside of Australia or where the computer-based Standard Test is not available electronically.
A Test Administrator must not translate the questions for the applicant.
The Test Administrator may operate the computer for applicants with poor computer or literacy skills or an injury, if the applicant requests or requires assistance.
·For example, if an applicant does not know how to use a computer mouse, the Test Administrator may conduct a brief tutorial on how to use the mouse; or
·If an applicant has an impairment that prevents their use if he mouse, the Test Administrator may operate the mouse in accordance with the applicant’s response to the questions.
4.3 Eligibility to sit the standard test
As provided in the Determination, to be eligible to sit the standard test the applicant must:
·Be a permanent resident of Australia
·Have lodged a valid application for citizenship by conferral (refer to Citizenship Instruction 18 – Application requirements for guidance), and
·Satisfy the Minister or the Minister’s delegate under subsection 23A(4) of the Act as to their identity by:
oAllowing a photograph to be taken by the Minister’s delegate of their face and shoudlers; or
oProviding such other documentary evidence of identity as is requested by the Test Administrator, such as original copies of scanned documents provided with the application that may include birth certificate, foreign passport, driver’s licence etc.
4.4. Eligibility to sit the assisted test
As provided in the Determination, to be eligible to sit the assisted test the applicant must:
·Meet the eligibility requirements to sit the standard test (section 4.3 Eligibility to sit the standard test above refers); and
·Have low literacy skills as measured by:
oBoth:
§Completion of at least 400 hours of English language tuition under Adult Migrant English Program (AMEP); and
§Assessment by the AMEP provider as having less than basic reading skills in English (AMEP attendance and English reading level can be confirmed by accessing the AMEP Reporting Management System (ARMS), which can be accessed through the Citizenship Assisted Test system (CATS); or
·Have a physical or cognitive impairment, whether temporary or permanent, that prevents them from sitting the standard test, even with the assistance of the Test Administrator (see section 4.2 above).
…
6. Test attendance
The Act (paragraph 21(2A)(c)) states a person must have started the test and completed the test within periods set out in the Determination. However, the Determination does not set out any periods, and instead provides that there is no limit to the number of times an applicant can sit a standard test or an assisted test. This does not mean that decision-makers are required to delay making a decision to allow time for multiple attempts by the applicant to successfully complete the test. Under policy, a refusal decision can be made after the applicant has been given a reasonable opportunity to sit a test and demonstrate that they meet the eligibility requirements.
…
6.3 Failing the test
The vast majority of applicants pass the citizenship test on their first attempt.
A Federal Court decision (Minister for Home Affairs v Zadeh (No. 2) [2018] FCA 1828) found the Determination does not allow applicants to re-sit the test as many times as they wish and the Minister (or their delegate) is not prevented from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.
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.
However decision makers may find it appropriate to give applicants one or more further test appointments in circumstances where:
·The applicant’s citizenship test scores have improved over the period of attempts made;
·The applicant was affected by notification issues, such as the applicant not receiving the invitation to attend the citizenship interview and test appointment, despite the applicant making inquiries;
·System errors, such as:
oEither CATS was not accessed, or the number of hours was referenced incorrectly and the Department did not offer the applicant an assisted test;
oDepartmental records are insufficient and it is not clear whether the applicant has been given a reasonable opportunity to pass the test.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to s 37 of the AAT Act, referred to as the ‘T documents’ and ‘supplementary T documents’, and medical reports submitted by Mr Oruzgani.
On 13 April 2017, some two years after Mr Oruzgani applied for citizenship, the Department contacted Mr Oruzgani seeking additional information to verify his identity.
On 9 May 2017 Mr Oruzgani suffered a workplace injury.
A certified copy and official translation of Mr Oruzgani’s taskera, dated 17 May 2017, was provided to the Tribunal by the Respondent as part of the T documents but there is no indication of when the Department received this document.
On 6 October 2018, the Department followed up their letter of April 2017 as they had received no response from Mr Oruzgani.
On 30 October 2018, Mr Oruzgani completed and submitted a Form 1399 ‘Declaration of service’. On 1 November 2018, Mr Oruzgani completed and submitted a Form 80 ‘Personal particulars for assessment including character assessment’. Both of these documents were received by the Department on 5 November 2018.
On 19 March 2019, the Department contacted Mr Oruzgani seeking additional information to verify his identity.
On 9 July 2020, some five years after Mr Oruzgani applied for citizenship, the Department again contacted Mr Oruzgani, this time inviting him to comment on discrepancies in the information he had provided to the Department about his identity.
On 28 July 2020, Mr Oruzgani responded by providing a statutory declaration addressing concerns raised by the Department and letters of support from community members testifying to his character.
On 23 September 2020, some five years and three months after Mr Oruzgani lodged his application for citizenship, he was invited to attend his first citizenship test.
On 30 April 2021, Dr Martin Hill, general practitioner, opined the following in respect of Mr Oruzgani’a capacity to sit the citizenship test:
Mr Oruzgani has chronic regional pain syndrome as a result of a lower back injury in NSW in 2017. As a consequence he has sever disabling pain that is not able to be managed by conventional analgesics, and this affects his ability to think clearly, and he has poor memory and concentration.
Whilst his command of oral English is excellent he is not able to function well in his English performance written test for citizenship due to his disability which clouds his mental state and thwarts his ability to perform.
I ask that this be consider in his application for Australian citizenship.
CONTENTION
Mr Oruzgani conceded that at the time he applied for citizenship, he was capable of undertaking the citizenship test as he was healthy and able.
However, Mr Oruzgani submitted that he:
(a)had a serious workplace accident in May 2017 which left him unable to work, function, learn new things, concentrate and with memory loss;
(b)was currently taking up to eight different medications a day to deal with the ongoing crippling pain from his accident;
(c)had not been invited to attend his first interview or sit the citizenship test until some five years after he submitted his application and some three years after his workplace accident;
(d)had waited long enough to become a citizen and did not want to wait another five years or more to have his application dealt with; and
(e)should not be penalized for the Department’s failure to progress his citizenship application in a timely manner, as by the time he was invited to sit the test, he was no longer capable of understanding the test.
Mr Oruzgani submitted that the medical evidence of the impact of his workplace accident in 2017 demonstrated that he had an enduring physical and mental incapacity to understand and sit the citizenship test.
The Respondent submitted that Mr Oruzgani had applied for citizenship using the Form 1300 which is the prescribed form for citizenship applications assessed under s 21(2) of the Act. Accordingly, the Respondent contended the delegate was entitled to assume that the application ought to be assessed under the ‘general eligibility’ requirements of ss 21(2) and (2A) including, relevantly, by passing the citizenship test.
The Respondent submitted that Mr Oruzgani had attempted the citizenship test five times and obtained the following results:
(a)Attempt 1 (2 March 2021): 35% (fail), 1/5 of Values questions.
(b)Attempt 2 (25 March 2021): 65% (fail), 3/5 of Values questions.
(c)Attempt 3 (25 March 2021): 55% (fail), 4/5 of Values questions.
(d)Attempt 4 (9 July 2021): 55% (fail) 3/5 of Values questions.
(e)Attempt 5 (9 July 2021): 60% (fail), 4/5 of Values questions.
The Respondent submitted that Mr Oruzgani had been afforded the opportunity to sit the test five times over three separate occasions, and as such he had been afforded a reasonable opportunity to pass the test.
The Respondent contended that as Mr Oruzgani has not passed a test approved by the Minister in a written determination under s 23A after having been afforded sufficient opportunity to do so, the Tribunal cannot be satisfied that he meets the requirements of s 21(2A) and in turn s 21(2)(d)-(f).Therefore, the Respondent submitted Mr Oruzgani does not satisfy the criteria in s 21(2) and is not eligible to become an Australian citizen under the Act.
The Respondent contended that as Mr Oruzgani had conceded he was not incapacitated at the time he made his application for citizenship by conferral, he could not be exempted from sitting the test on medical grounds and there would be no utility in remitting this matter to the delegate for reconsideration.
CONSIDERATION
The Tribunal finds that at the time Mr Oruzgani applied for his citizenship by conferral he did not have a permanent or enduring incapacity.
However, the Tribunal considers that by the time Mr Oruzgani was finally offered an opportunity to sit his citizenship test, he had an enduring incapacity, for which there cannot be a predicted recovery, or if there is, it is long-term.
The Tribunal does not concur with the delegate’s finding that Mr Oruzgani had a reasonable opportunity to demonstrate that he satisfied the legal requirements for conferral of Australian citizenship. It took the Department two years from the time he applied for citizenship to seek further information from Mr Oruzgani, and it is unclear how long the Department had Mr Oruzgani’s taskera. At no stage of his citizenship application was Mr Oruzgani in control of when he would be able to sit his citizenship test; it was the Department who determined when they would be extending such an invitation. Mr Oruzgani may well have been able to pass the citizenship test if he had been invited to do so when he first applied for citizenship in 2015, or in 2017 when his taskera was translated.
The Tribunal considers that Mr Oruzgani has not been afforded a reasonable opportunity to pass the citizenship test. Mr Oruzgani provided evidence to the Department of his incapacity from his general practitioner, Dr Martin Hill, between his failure to pass the test in March 2021 and his next failed attempted in July 2021.
The Tribunal finds that, given the length of time it took the Department to progress Mr Oruzgani’s application, and the medical evidence of his incapacity which Mr Oruzgani has provided, he should have been offered the opportunity to sit an assisted test with an opportunity to hear the questions and additional time to complete the test.
The Tribunal finds Mr Oruzgani should be afforded the opportunity to sit an assisted test due to the delay in processing his citizenship application which has resulted in him suffering an enduring incapacity between the time he submitted his application and being invited to sit the citizenship test.
DECISION
The Tribunal finds Mr Oruzgani haa not been afforded a reasonable opportunity to pass the citizenship test as the Department has not provided him the opportunity to sit an assisted test.
The Tribunal remits the matter to the Department to invite Mr Oruzgani to sit an assisted citizenship test.
I certify that the preceding 41(forty-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
...........[sgd]...............................
Associate
Dated: 2 May 2022
Date of hearing: 18 January 2022 Advocate for the Applicant:
Self-represented Advocate for the Respondent: Mr Thomas Creedon Solicitors for the Respondent: Australian Government Solicitors
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