Sae-Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2024] AATA 595
•20 March 2024
Sae-Lim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] AATA 595 (20 March 2024)
Division:GENERAL DIVISION
File Number(s):2023/5340
Re:Phimchanok SAE-LIM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date:20 March 2024
Place:Sydney
The Tribunal affirms the decision under review.
............................[SGD]..............................
Deputy President Antoinette Younes
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – citizenship application refused – applicant did not attend the scheduled test appointment – whether the applicant has a right to ‘keep on foot’ the application - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Home Affairs v Zadeh (No. 2) [2018] FCA 1828
SECONDARY MATERIALS
CPI 26 – Australian Citizenship Test - Procedural Instructions
REASONS FOR DECISION
Deputy President Antoinette Younes
20 March 2024
This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 20 July 2023 to refuse the Applicant’s application for Australian citizenship by conferral (the delegate’s decision). The delegate refused the application on the basis that the Applicant did not satisfy the requirements of paragraphs 21(2)(d), (e), and (f) of the Australian Citizenship Act 2007 (Cth) (the Act).
On 20 July 2023, the Applicant made an application to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
RELEVANT LEGISLATION
Section 21 of the Act provides that:
…
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; …
Subsection 21(2A) of the Act provides that 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.
Citizenship Policy
The Australian Citizenship Policy and the Citizenship Procedural Instructions provide guidance to decision-makers regarding interpretation and exercise of power under the Act. As a decision-maker, the Tribunal is required to give regard and apply policy unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no cogent reasons not to apply the policy.
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
Relevantly, the Citizenship Procedural Instructions (CPI 26) provides guidance as follows:[2]
6.4. Non-attendance
Where a person has not attended a scheduled test appointment and not rescheduled for a further test appointment after a reasonable opportunity to do so, it is open to the decision-maker to consider whether it is appropriate 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 an applicant has a reasonable reason to explain their non-attendance, such as:
·ongoing health or medical concerns that limited their ability to travel/attend a citizenship interview;
·unforeseen health and medical concerns for themselves or dependents, such as emergency medical or mental health treatments; or
·family responsibilities and/or carer responsibilities for sick/injured family members.
[2] Departmental Citizenship Procedural Instruction, chapter 26, which deals with Australian Citizenship Test.
Material before the Tribunal
The Tribunal has the following material before it:
- The Respondent’s Statement of Position dated 18 December 2023 (Exhibit 1).
- The Respondent’s Statement of Facts, Issues and Contentions dated 26 February 2024 (Exhibit 2).
- Transcript of telephone call, filed on18 December 2023 (Exhibit 3).
- T-Documents filed on 10 October 2023 (Exhibit 4).
BACKGROUND
The Applicant is a citizen of Thailand. She first arrived in Australia on 19 April 2005 on a Schools Sector (Class TU) (subclass 571) visa. On 27 June 2018, she was granted a Partner (Class BS) (subclass 801) visa.[3] On 19 February 2023, the Applicant lodged an application for Australian citizenship by conferral, which was refused on 20 July 2023, on the grounds that she did not satisfy the Applicant paragraphs 21(2)(d), (e), and (f) of the Act.[4]
[3] Ex 4, 13.
[4] Ex 4, 13-18.
HEARING
On 13 March 2023, the Applicant attended the hearing and gave evidence via Microsoft Teams.
ISSUE
The issue before the Tribunal is whether the Applicant satisfies paragraphs 21(2)(d), (e), and (f) of the Act.
FINDINGS & REASONS
In the application for conferral of Australian citizenship lodged on 19 February 2023,[5] the Applicant provided an email address and consented to the use of electronic communication by the Department in relation to the application.
[5] Ex 4, 20-39.
On 9 May 2023, the Department sent a notice by e-mail inviting the Applicant to attend a citizenship appointment scheduled on 30 May 2023.[6] The invitation noted “If you are unable to attend the appointment time, you can reschedule online at appointments.homeaffairs.gov.au”.[7] On 18 May 2023, the Applicant rescheduled this appointment to 5 June 2023.[8] On 4 June 2023, the Applicant rescheduled her appointment to 6 June 2023. On the day of the appointment, the Department attempted to contact the Applicant via the telephone number provided in her application. She did not answer the call or attend the scheduled appointment.[9]
[6] Ex 4, 48.
[7] Ex 4, 49.
[8] Ex 4, 55.
[9] Ex 4, 62
On 8 June 2023, the Department invited the Applicant again to attend a citizenship appointment on 10 July 2023.[10] The invitation noted “If you are unable to attend the appointment time, you can reschedule online at appointments.homeaffairs.gov.au”.[11] The Applicant did not attend this scheduled appointment.
[10] Ex 4, 69.
[11] Ex 4, 70.
The Minister contends that the Applicant was given a reasonable opportunity to attend a citizenship test, in that the Department invited the Applicant to sit the test on two occasions, but she re-scheduled the test appointments three times, and failed to attend all three appointments.
In the application for review by the Tribunal, the Applicant provided the following explanations:
I missed the appointment on two separate occasions, I attempted to rescind the interview over the phone once, but was told that the new interview date will be assigned automatically and that I cannot choose a date. My inability to attend is due to the fact that one of my documents was not translated by NAATI, as I recently discovered. I do not have the original document, my mother is abroad in another country on holiday, and there are multiple procedures I must complete in order to obtain the document without her presence; as a result, there is an additional delay on my part in obtaining the birth certificate. As a result, I was unable to attend the interview because, when I called the office, I was informed that I would be denied to sit the interview and exam because I lacked the correct translated and original version of my birth certificate. I would like for my application to be review and kindly request for 2 months extension if possible in order to allow time for me to retrieve the original version of the birth certificate in Thailand.
In the course of the hearing, the Applicant provided a number of explanations including waiting for documents which required NAATI translations, not reading emails when they were sent, not answering calls with no caller ID, believing she could reschedule, and lack of clear communication or direction online. The Applicant contended that she contacted the Department after the first invitation to discuss rescheduling her appointment and a Departmental officer advised her that her opportunities to attend a test appointment would continue to 'roll over' if she did not attend them. However, the Tribunal is satisfied that the transcript of that telephone call[12] demonstrates that the Applicant contacted the Department after the first invitation and the Department advised that, as it was her first appointment, it would be rescheduled. This is consistent with what occurred. The transcript does not support the contention that the officer made any comments regarding any subsequent invitations or failed attendances.
[12] Ex 3.
The Tribunal accepts the Respondent’s submissions that the statutory scheme requires the Minister either to approve or refuse an application (section 24 of the Act) and contains no indication that the application process might be kept on foot at the election of an applicant.[13] The Tribunal accepts the Respondent’s submissions that the Applicant does not have a right to 'keep on foot' her application by her own inactivity as administrative decision-making under the Act needs to be 'finalised in a timely manner'.
[13] Minister for Home Affairs v Zadeh (No. 2) [2018] FCA 1828 (Zadeh), Thawley J found (at [36]):
The Tribunal has noted the Applicant’s explanations. However, although it is plausible that the Applicant felt that communication could have been clearer, the Tribunal is satisfied that the Applicant was given proper and clear notice of the scheduled appointments. She did provide her email address for correspondence and telephone number. She agreed to electronic communication.[14] As referred to earlier, subsection 21(2A) stipulates that the only way the Minister can be satisfied that an applicant meets paragraphs 21(2)(d), (e) and (f) is that the person has successfully completed a test approved in a determination made by the Minister under section 23A. Subsection 21(2A) does not give the Tribunal discretion to consider the circumstances or reasons for not successfully completing the citizenship test.
[14] Ex 4, 24.
The above requirements can only be satisfied by the successful completion of an Australian citizenship test, which is designed to assess whether a person has an adequate knowledge of Australia, the responsibilities and privileges of Australian citizenship and the Australian values, and has a basic knowledge of the English language. The test comprises of 20 multiple choice questions including five questions about Australian values, and in order to pass the test, an applicant is required to answer correctly all five of the Australian values questions. A total mark of at least 75 per cent is needed to pass the test.[15]
[15] Ex 4, 15.
The Minister contends and the Tribunal accepts that there is no discretion in relation to the requirements in paragraphs 21(2)(d), (e) and (f) of the Act, and that the Applicant can only satisfy those provisions 'if and only if' she has successfully completed the citizenship test. The Tribunal is satisfied that 'if and only if' means that if the applicant has not sat and successfully completed the tests for citizenship approved in the Determination, the applicant does not satisfy paragraphs 21(2)(d), (e) and (f).
As the applicant has not sat and successfully completed the Standard Test, the Tribunal finds that the Applicant does not, and cannot, satisfy paragraphs 21(2)(d), (e) and (f) of the Act.
For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the Australian citizenship by conferral.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes
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Associate
Dated: 20 March 2024
Date(s) of hearing: 13 March 2024 Applicant: In person
Solicitors for the Respondent: Ms Jackson, Minter Ellison
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