Re: Mohamad DibAPPLICANTAnd Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] AATA 2807

Dib and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2807 (13 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0965

Re:Mohamad Dib

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:13 August 2021

Place:Sydney

I affirm the reviewable decision to refuse the Applicant’s application for citizenship because he did not satisfy section 21(2)(d)-(f) of the Australian Citizenship Act 2007 (Cth).

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

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether Applicant successfully completed a test approved in a determination under s23A of the Australian Citizenship Act 2007 (Cth) – Ministerial Determination LIN 20/085 – decision under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 23A

CASES

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

SECONDARY MATERIALS

Citizenship Procedural Instruction 26 – Australian Citizenship Test

Ministerial Determination LIN 20/085

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

13 August 2021

Introduction

1. The Applicant, Mr Dib, applied for citizenship on 18 November 2019.  On 12 February 2021 his application was refused because he did not satisfy section 21(2)(d)-(f) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. He has applied for review of that decision.

   Relevant law and policy

3. Subsection 21(2) of the Act relevantly provides:

   (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.

4. Section 21(2A) of the Act provides that paragraphs 2(d)-(f) ‘are taken to be satisfied if and only if the Minister is satisfied that the following apply’ [emphasis added]:

   (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.

5. Section 23A provides that the Minister must, by written determination, approve a test for the purposes of subsection 21(2A).

6. The written determination approving a test for the purposes of subsection 21(2A) that was in force at the time the Applicant sat the test is Ministerial Determination LIN 20/085 (the Determination).

   7.The Determination came into force on 15 November 2020. 

7. The Determination approves the Standard Test.  As set out in s 7 of the Determination, a computer program randomly selects a subset of 20 questions to be answered by the applicant from one or more groups of approved questions specified in Schedule 4 (for a person taking the test before 15 November 2020) or Schedule 5 (for a person taking the test on or after 15 November 2020).

8. The Determination provides that successful completion of the Standard Test, from 15 November 2020 onwards, requires an applicant to answer at least 75 percent of the test questions correctly (s 11), and correctly answer 100% of the values questions (s 18).  Section 18 notes that ‘each test will consist of 20 questions, with 5 randomly selected values questions, which have been approved by the Minister, focussed on assessing the applicant’s understanding of Australian values.'

9. Citizenship Procedural Instruction 26 – Australian Citizenship Test (CPI 26) notes that the Determination does not allow the applicant to re-sit the test as many times as they wish and ‘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’.

10. In Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828, the Court held that a previous version of the Determination did not allow applicants to re-sit the test as many times as they wished and the Minister was not prevented from deciding a citizenship application at a point in time when an applicant had asked to, or wished to, re-sit the test: [34], [37].

    Facts

11. The Applicant attempted the citizenship test seven times on three different days. 

12. On 4 November 2020, almost a year after he had applied for citizenship, the Applicant was invited to attend a citizenship interview and test to be held on 25 November 2020.  He did so.  That was 10 days after the Determination came into force.  He became aware of the changed requirements when he attended the test.  At this appointment, the Applicant attempted the citizenship test three times and achieved the following test marks: 50% and 2/5 Australian values questions; 65% and 4/5 Australian values questions; 50% and 2/5 Australian values questions.

13. He was invited to attend a further interview and test on 15 December 2020.  The Applicant received test marks of 45% and 2/5 Australian values questions.

14. On 1 February 2021, the Applicant attempted the test three more times and achieved test marks of: 75% and 3/5 Australian values questions; 60% and 3/5 Australian values questions; 55% and 2/5 Australian values questions.

15. On 12 February 2021, the delegate refused the application for citizenship because the Applicant did not meet s 21(2)(d)-(f) of the Act.

    Consideration

16. I sympathise with the Applicant’s argument that he should be assessed under the criteria as they were before 15 November 2020 and for which he had prepared.  The lengthy delay between making his application for citizenship and being invited to attend an interview and sit the test resulted in him having to meet the stricter requirement in the Determination than that previously in force.

17. However, there is no discretion conferred in the Act or in the Determination that allows me to assist the Applicant.  He sat the test after 15 November 2020 and was required to satisfy the test requirements specified in the Determination.  Unfortunately, he did not.  

18. I can see no legal means of avoiding that outcome.

19. The Applicant and his wife provided documentary evidence and gave oral evidence about their circumstances which they consider I should take into account in order to assist the Applicant. 

20. The Applicant’s wife suffers various medical conditions and was hospitalised for a number of weeks in mid-2019 which required a period of recovery of a year or 18 months.  The Applicant was caring for her throughout that period and takes her to medical appointments.  The Applicant’s wife’s health has also affected their ability to start a family.

21. The Applicant lost his job because of the COVID-19 pandemic.  He tried to find a job without success and then received Jobseeker.  He was trying to learn English and study for the citizenship test, including utilising 12 apps to assist him.  He was given no assistance by the Department.  He was not informed that free government classes were available to assist him to prepare for the citizenship test which he would have attended if he had known about them.

22. I accept that the Applicant has been and continues to be under stress for the reasons he and his wife discussed.  The refusal of is citizenship added to his problems.   Unfortunately for the Applicant the legislation does not provide that his personal circumstances or lack of assistance from the Department are relevant considerations. 

    Conclusion

23. It is not in dispute that the Applicant did not successfully complete a test approved in a determination under s23A as required by 21(2A) of the Act.  The Applicant therefore does not satisfy the criteria in s 21(2)(d), (e) and (f) of the Act.

    Decision

24. For the above reasons, I affirm the reviewable decision to refuse the Applicant’s application for citizenship because he did not satisfy section 21(2)(d)-(f) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 13 August 2021

Date(s) of hearing:	11 August 2021
Applicant:	By videoconference
Solicitors for the Respondent:	I Leonard, Australian Government Solicitor