Rabbani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 3183
•27 August 2020
Rabbani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3183 (27 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0675
Re:Maruf Rabbani
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 August 2020
Place:Sydney
The decision under review is affirmed.
.............................[sgd].............................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied paragraphs 21(2)(d), (e), (f) – successful completion of citizenship test requirement – Applicant failed to attend any appointments to sit and complete citizenship test – administrative instruments – right to sit and resit citizenship test – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 26
CASES
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92
Maez and Minister for Home Affairs (Citizenship) [2019] AATA 1647
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964
Zadeh and Minister for Home Affairs (Citizenship) [2018] AATA 2145
SECONDARY MATERIALS
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020
Determination for the Approval of a Citizenship Test (Section 23A) – IMMI 11/088
REASONS FOR DECISION
Chris Puplick AM, Senior Member
27 August 2020
Mr Maruf Rabbani (Applicant) is seeking a review of a decision by a delegate of the Minister (Respondent) to refuse his application for citizenship by conferral under provisions of the Australian Citizenship Act 2007 (Cth) (Act).
The Applicant currently holds Bangladesh citizenship. He first arrived in Australia in July 2007 holding a Higher Education Sector (subclass 573) visa and in March 2015 he was granted his current permanent visa which is a Skilled Regional (subclass 887) visa.
On 29 June 2018 the Applicant lodged his application for citizenship by conferral, which was refused by the Respondent on 13 January 2020 (citizenship refusal decision).
The Applicant applied for a review of the citizenship refusal decision by this Tribunal on 9 February 2020 and the matter was heard on 3 August 2020.
The hearing was conducted using the Microsoft Teams platform as a result of the restrictions imposed by the COVID-19 pandemic. Despite this being a less satisfactory method than in-person hearings, the Tribunal is satisfied that all parties were afforded procedural fairness through this mode of hearing.
CITIZENSHIP BY CONFERRAL
The grant of citizenship to persons who do not have an automatic right to it is a process provided for under various sections of the Act. In effect there are two stages involved in the grant of citizenship by conferral:
(a)Under subsection 21(2) any applicant applying under the general eligibility criteria is required to meet all of the criteria specified therein; and
(b)Under section 26 a person qualified under section 21 must make a pledge of commitment before the grant of citizenship is enlivened.
Even if all of the relevant criteria under section 21 are fulfilled it does not follow automatically that citizenship will be granted if, for example, the Minister determines that there are national security or other specified grounds for refusal. None of those matters, however, are germane to the decision in this application.
The criteria specified under section 21 are as follows:
(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.
(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.
It can thus be seen that subsection 21(2) sets out a series of criteria listed from (a) to (h). Within that cohort, paragraphs 21(2)(d), (e) and (f) are satisfied only if an applicant has taken and successfully completed the “citizenship test” as defined in section 23A. Details relevant to the test are discussed below.
THE BASIS OF THE REFUSAL DECISION
The assessment by the delegate in relation to the Applicant’s citizenship application was that he satisfied paragraphs 21(2)(a), (b) and (c) but did not satisfy paragraphs (2)(d), (e) and (f) because he had not sat and passed the citizenship test. Having reached this conclusion, the delegate did not proceed any further, thus making no determination in relation to paragraphs (2)(g) and (h).[1]
[1] Section 37 Tribunal documents (T documents) at 22-24.
It was not that the Applicant “failed” the citizenship test but rather that, on numerous occasions, the Applicant failed to attend to undertake it.
Date of scheduled appointment
Date of appointment rescheduled by Applicant
Outcome of rescheduled appointment
Section 37 Tribunal documents (T documents) reference
8 May 2019
(notified 9 April 2019)
3 July 2019
(rescheduled on 6 May 2019)
Applicant failed to attend
T5/72-76
T6/77-81
16 September 2019
(notified 4 July 2019)
27 September 2019
(rescheduled on 16 September 2019)
Applicant failed to attend
T7/82-86
T8/87-91
1 November 2019
(notified 21 October 2019)
5 November 2019
(rescheduled on 30 October 2019)
Applicant rescheduled appointment to 13 November 2019 on 3 November 2019
T9/92-96
T10/97-101
T11/102-106
13 November 2019
17 December 2019
(rescheduled on 12 November 2019)
Applicant failed to attend
T12/107-111
This demonstrates that the Applicant rescheduled the test appointment five times, that the Department accommodated his requests for rescheduling and that the Applicant then failed to attend all three scheduled appointments, each time without explanation.[2]
[2] Respondent’s statement of facts, issues and contentions dated 12 May 2020 at [19].
THE APPLICANT’S EXPLANATION(S)
In oral and written evidence to the Tribunal, the Applicant has advanced three reasons why he was not able to attend the variously scheduled and rescheduled citizenship test appointments:[3]
(a)The nature of his work precluded him from taking time off in order to attend and complete the test;
(b)In relation to the test scheduled for December 2019, he was not present in Australia at the time as he had extended his stay in Bangladesh to support his father who was seriously ill; and
(c)The nature of his work hours, and his desire to spend time with family and attend to household matters during his time off work, were such that they precluded him from having adequate or any time to study for the test by reference to either the printed or online material which is made available to applicants for this purpose.
[3] Applicant’s Application for Review of Decision: T documents at [5].
CONSIDERATION BY THE TRIBUNAL
The immediate question arises as to whether the Tribunal should give any consideration, let alone weight, to the Applicant’s explanations for non-attendance.
In Jaber and Minister for Home Affairs[4] Member Bygrave held that:
The wording of subsection 21(2A), that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied “if and only if” the applicant has sat and successfully completed the citizenship test, is unambiguous; the Tribunal has no discretion to consider the applicant’s circumstances or her reasons for not successfully completing the citizenship test.
[4] Jaber and Minister for Home Affairs (Citizenship) [2019] AATA 92, [13].
There is no basis for departing from that proposition.
In any event, the Tribunal makes the comment that while the explanation in relation to the Applicant’s time overseas genuinely precluded the taking of one of the tests, none of the other reasons would seem reasonable explanations why, after the Applicant himself personally chose the dates of his rescheduled appointments, he did not attend on the other two occasions.
The Applicant told the Tribunal he lives in Westmead and that his employment is in the Sydney CBD. The first two test appointments were scheduled (and rescheduled) to be conducted at Parramatta and the last was scheduled (and rescheduled) to be conducted in the Sydney CBD.[5] There is a time limit for the test to be completed, namely 45 minutes for the Standard Test and 90 minutes for the Assisted Test.[6] Tests commence at 9.00 am. Hence, if the Applicant travelled the short distance from Westmead to Parramatta, then undertook the test there and travelled into the CBD, he would, at most arrive at his place of work by no later than 11.00 am.
[5] T documents at 72, 77, 82, 87, 92, 97, 102, 107.
[6] All appointments were scheduled with advice that the whole process would take “approximately 2 hours” including the citizenship interview and the citizenship test.
The failure to find time to complete the relatively limited amount of reading that is required to prepare for the test, especially given that the Applicant has been living in Australia for more than 13 years, is highly educated and fluent in English, bespeaks rather the priority which he accords the value of citizenship vis-à-vis his other interests and responsibilities.
It demonstrates a far less than an active engagement with the process of becoming an Australian citizen.
THE CITIZENSHIP TEST AND REPEATED ATTEMPTS
The form, nature and conduct of the citizenship test itself is established by an administrative instrument made by the Minister.
In that instrument the Minister determines such matters as the way in which the test may be taken, the time allocated for the test and the pass mark required.
At the time of the Applicant’s citizenship application and the Applicant’s various appointments to undertake the citizenship test, the relevant instrument applicable at those times was the Determination for the Approval of a Citizenship Test (Section 23A) – IMMI 11/088 dated 1 March 2012 (2012 Instrument) which was in effect from 24 March 2012. That 2012 Instrument provided, inter alia, for three types of test: Standard, Assisted and Course-Based. The relevant test for the Applicant would have been the Standard Test. At paragraph 17 of the 2012 Instrument it provided that:
There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless the person has commenced a Course-Based Test.
In another citizenship matter that came before the Tribunal,[7] the applicant in that case had sat the Standard Test on 4 occasions but failed at each attempt. The Minister then refused his application for citizenship. Relying on paragraph 17 of the 2012 Instrument, the applicant sought review in the Tribunal to be allowed to continue to sit the test without his citizenship application being refused.
[7] Zadeh and Minister for Home Affairs (Citizenship) [2018] AATA 2145.
In the first instance, the Tribunal held that:
That paragraph means that the applicant has a right to sit for the standard test as many times as he wishes. The improvement he has demonstrated makes it hard to conclude that his desire to sit the test again is futile, and the terms of the Ministerial Determination do not seem to make that question material.[8]
[8] Zadeh and Minister for Home Affairs (Citizenship) [2018] AATA 2145, [8].
However, on appeal by the Minister, that decision was set aside. The Federal Court stated:[9]
The Tribunal considered that paragraph 17 gave Mr Zadeh a “right” to sit the test as many times as he wished. The Tribunal considered paragraph 17 operated to prevent the Minister from deciding an application whilst ever Mr Zadeh wanted to sit another test. The direction given by the Tribunal has the effect of requiring the Minister not to determine Mr Zadeh’s citizenship application whilst ever Mr Zadeh requests to sit another test. This has the consequence that Mr Zadeh’s application might never be determined. Such an unlikely result would need to arise plainly from the words employed in the Ministerial Determination.
The Tribunal misconstrued paragraph 17 of the Ministerial Determination. Paragraph 17 provides simply that “[t]here is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless the person has commenced a Course-Based Test”. Paragraph 17 does not go further than what it expressly states. It does not contain an express or implicit requirement that the Minister be prevented from deciding an application because an applicant has asked to re-sit the Standard Test. It does not, expressly or implicitly, provide a “right” to an applicant to re-sit the Standard Test as many times as the applicant wishes before the application is decided.
The Tribunal’s construction is not supported by the statutory scheme or by the terms of the Ministerial Determination read as a whole.
The statutory scheme requires the Minister either to approve or refuse an application (s 24 of the Citizenship Act) and contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” under a Ministerial Determination to keep re-sitting the Standard Test.
As to the Ministerial Determination, a person who has difficulty passing the Standard Test (or Assisted Test) might attempt, but only once per application, the Course-Based Test: paragraphs 35 and 48. There is nothing about the scheme established by the Ministerial Determination which suggests it was intended that applicants could keep the application process going indefinitely by declining to undertake a Course-Based Test or by insisting on re-sitting the Standard Test as many times as they choose before the application is decided. An applicant may ask to re-sit the Standard Test as many times as he or she wishes and the applicant may re-sit that test any number of times whilst the application remains on foot. That does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.
[9] Minister for Home Affairs v Zadeh(No 2) [2018] FCA 1828, [33]-[37] per Thawley J.
It is thus clear that it lies entirely in the hands of the Minister to determine, as it were, “when enough is enough”.
The Tribunal takes note of the fact the 2012 Instrument has now been repealed and the relevant instrument is the Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (2020 Instrument).
The 2020 Instrument commenced on 11 February 2020 with some parts to commence on 15 November 2020. While the 2020 Instrument generally applies to persons who made their application for citizenship by conferral on or after the commencement day, it also applies to a person who:
(a)made an application for citizenship by conferral before the commencement day of the 2020 Instrument; and
(b)had not, before the commencement day, successfully completed a citizenship test approved by the Minister under subsection 23A(2) of the Act in relation to that application.[10]
[10] Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020, sch 3.
As the Applicant has not taken and successfully completed the citizenship test, the 2020 Instrument is therefore applicable to the Applicant in this case.
The 2020 Instrument differs from the 2012 Instrument in a number of material ways. In the first place, Course-Based Tests are eliminated, and secondly there is no equivalent provision of paragraph 17 of the 2012 Instrument in the 2020 Instrument. The times for the Standard and Assisted Tests to be completed remain at 45 and 90 minutes, respectively.
THE TEST: PASSED OR NOT PASSED
The procedure related to the citizenship test cannot be ignored, and a grant of citizenship cannot be made unless and until the citizenship test requirements have been satisfied, except, for example, where the provisions of subsections 21(3) or (4) are engaged. These provide that an applicant may be excused from passing the citizenship test if he/ she has a permanent or enduring physical or mental incapacity to do so, is aged over 60 years, or is aged over 18 years but suffering from a permanent loss or substantial impairment of hearing, speech or sight at the relevant time. There are also other exceptions provided in subsections 21(5), (6), (7) and (8) which relate to persons under 18 years, persons born to former Australian citizens, persons born in Papua and stateless persons.
None of those exceptions apply here.
It is true, as the Applicant states, that there is nothing provided by way of information from the Department, either directly to applicants or via the departmental website, which specifies anything about time limits for the completion of the overall citizenship test process.[11] However, applicants genuinely desirous of obtaining citizenship are free to discuss with the Department any difficulties they have in arranging to sit the test, and the evidence is, in this case at least, that the Department was prepared to be reasonably accommodating to the Applicant’s various and repeated requests to reschedule his citizenship appointments – up to a point. It does not appear that the Applicant made any direct personal approaches to the Department to discuss his matter, relying exclusively on dealing with requests for rescheduling of dates online.
[11] As distinct from the specified time limits for sitting the actual test.
Nevertheless, as I made clear in Maez:
Failure to attend, sit and pass the citizenship test means that any application for a grant of citizenship (save where a relevant exemption applies) must necessarily fail and any challenge to that determination has no prospect of being successful.[12]
[12] Maez and Minister for Home Affairs (Citizenship) [2019] AATA 1647, [37].
CONCLUSION
This application cannot succeed. The Applicant has not sat and passed the citizenship test. The Minister and the Tribunal standing in the shoes of the original decision-maker, under the Act, cannot find that the Applicant has successfully completed the test when he, in fact, has not. The Applicant’s reasons for not sitting the test are not relevant. Having given the Applicant the opportunity to sit the test, the Minister has an unqualified right, in such circumstances, to determine the application as he has, and no ground has been advanced to claim that the Minister’s decision was irrational or improper.
As the Tribunal said in Nicholls:
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.[13]
[13] Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964, [24].
The Applicant is not precluded in any way from submitting a new application for citizenship,[14] and if he is serious about obtaining Australian citizenship he will find time to undertake the necessary preparatory studies and to make himself available to sit the required citizenship test.
[14] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 27 August 2020
Date(s) of hearing: 3 August 2020 Applicant: In person (by video) Solicitors for the Respondent: Mr H McLaurin, MinterEllison
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