Supini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3516

Supini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3516 (3 October 2024)
Division:GENERAL DIVISION
File Number:2024/0207
Re:Supini Supini
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Henderson
Date:3 October 2024
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 18 December 2023, to refuse the Applicant’s application for citizenship by conferral under
s 24(1) of the Australian Citizenship Act 2007 (Cth) is set aside and the matter remitted with the direction that the Applicant be given at least three opportunities to sit an Assisted Test with the assistance of a Test Administrator reading the questions and answers aloud to the Applicant.
........[Sgd]................................................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – failure to pass citizenship test – Australian Citizenship Act 2007 (Cth) – application made under general eligibility provisions – Citizenship Policy applied – Applicant has not passed citizenship test – Applicant is illiterate – multiple failed attempts to pass citizenship test – Applicant does not meet permanent or enduring physical or mental incapacity criteria – decision set aside and remitted
LEGISLATION
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH), SS 21, 21(1), 21(2), 21(2A), 21(2)(D), 21(2)(E), 21(2)(F), 21(3), 21(3)(D)(I)-(III), 23A, 24, 24(1), 24(1A), 46, 46(1), 46(2), 52(1)(B)
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH), SS 25(1)(A), 37
CASES
DRAKE AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, RE (NO 2) (1979) 2 ALD 634
MINISTER FOR HOME AFFAIRS V G [2019] FCAFC 79; (2019) 164 ALD 103
MINISTER FOR HOME AFFAIRS V ZADEH (NO 2) [2018] FCA 1828
SZJDS V MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] FCAFC 27
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Department of Home Affairs, Citizenship Procedural Instruction 26 - Australian Citizenship Test (26 February 2021), s 4.2
Department of Home Affairs, Australian Citizenship (LIN20/085: Approval of a Citizenship Test) Determination 2020 (10 February 2020), s 23A
REASONS FOR DECISION
Member Henderson
3 October 2024
INTRODUCTION

The Applicant seeks review of the Respondent’s decision (the Reviewable Decision) dated 18 December 2023, refusing her application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).[1]
[1] R1, T3, p 1.
The matter was heard in Perth on 12 July 2024. The Applicant was represented by Warren Haslam, who is a relative of the Applicant. The Applicant and Mr Haslam appeared in person. The Respondent was represented by Ms Sophie Edmondstone of Minter Ellison and appeared by Microsoft Teams.
BACKGROUND
The Applicant is a citizen of Indonesia who arrived in Australia on 3 May 2010 as the holder of a Temporary Tourist (subclass TR-676) visa.[2] The Applicant was granted a Partner (subclass BC-100) visa on 14 December 2017 and became a Permanent Resident.[3]
[2] R1, T10, p 159.
[3] R1, T3, p 19.
The Applicant currently holds a Five Year Resident Return (subclass BB-155) visa granted on 2 December 2022.[4]
[4] R1, T3, p 20.
The Applicant applied for citizenship by conferral on 23 December 2022 under the General eligibility provisions at s 21(2) of the Act.[5]
[5] R1, T4, p 25.
Pursuant to the General eligibility provisions, to be granted citizenship, the Minister must be satisfied, amongst other things, that an applicant understands the nature of their application and satisfies what are generally known as the ‘knowledge requirements’ under the Act. These are taken to have been satisfied ‘if and only if’ the person is eligible to and successfully completes a test approved in a determination under s 23A of the Act.
The Applicant has sat the Australian citizenship test on nine occasions during three appointments since June 2023 but has not passed it.[6]
[6] R2, S4, p 10.
On 18 December 2023, the Respondent refused the Applicant’s citizenship application because she had not successfully completed the citizenship test required by s 21(2A) of the Act.[7]
[7] R1, T3, p 21.
On 11 January 2024, the Applicant applied to the Tribunal for review of the reviewable decision.[8]
[8] R1, T2, p 9.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and
s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.
Section 21(1) of the Act enables a person to apply to the Minister for Australian citizenship. Section 24(1) of the Act requires the Minister to either approve or refuse to approve applications for citizenship made under s 21.
Pursuant to s 24(1A) of the Act, the Minister must not approve an application for citizenship unless the applicant is eligible to become a citizen under ss 21(2)-(8). The Applicant applied for citizenship pursuant to s 21(2) of the Act and the Minister subsequently considered the eligibility criteria in ss 21(2)-(8) of the Act.
General eligibility criteria
With respect to the general eligibility criteria, ss 21(2)(d)-(f) of the Act provide that an applicant must demonstrate the following knowledge requirements:
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; and
...
Section 21(2A) of the Act provides that the knowledge requirements are satisfied ‘if and only if’ the Minister is satisfied that:
(a) The person undertakes a test approved in a determination under s 23A;
(b) The person was eligible to sit that test (worked out in accordance with the 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.
Determination for the approval of a citizenship test – LIN20/085
The Determination made under section 23A of the Act is the Determination for the approval of a citizenship test (section 23A) – LIN20/085 (the Determination). The Determination was revised and signed on 10 February 2020.
The Determination approves two citizenship tests:
(a)a Standard Test – the applicant has 45 minutes in which to answer 20 questions randomly selected from a bank of questions; and
(b)an Assisted Test – the applicant has 90 minutes in which to answer 20 questions randomly selected from the bank of questions used for the standard test.
The Determination also sets out:
odefinitions used in the Determination;
othe roles of test personnel;
oeligibility criteria and other matters related to the tests; and
othe questions and answers (this is not publicly available).
The eligibility criteria for sitting the Assisted Test are as follows:
For the purposes of subsection 23A(3) of the Act, an applicant is eligible to sit the Assisted Test if the applicant:
(a) satisfies the eligibility criteria for sitting the Standard Test in section 8; and
(b) has either:
(i) low literacy skills demonstrated by completing at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP) and an assessment by the AMEP provider as having less than basic reading skills in English; or
(ii) a physical or cognitive impairment (whether permanent or temporary) that prevents them from sitting the Standard Test, even with the assistance from the test administrator.
There is nothing in the Determination requiring that the test questions and answers be written. The criteria make provision for a test administrator to read the questions and answers aloud.
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (the Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued on 26 February 2021) guide decision-makers performing functions and exercising powers under the Act. The discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy...to guide the exercise of discretion’.[9] However, the policy is ordinarily considered and applied unless there is a cogent reason not to do so. The Tribunal has considered the available policy in respect of this matter.[10]
[9] Minister for Home Affairs v G [2019] FCAFC 79; (2019) 164 ALD 103, 120 [64]
[10] Drake v Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Citizenship Procedural Instruction 26 – Australian Citizenship Test (CPI 26) provides that ‘to successfully complete the standard or assisted test an applicant must answer at least 75 per cent (i.e. 15 out of 20) of the test questions correctly’ and answer all of the five randomly selected values questions correctly.
CPI 26 also reflects the judgement of the Federal Court in Minister for Home Affairs v Zadeh (No 2)[11] (Zadeh), which found that the Determination does not allow applicants to re-sit the test as many times as they wish. CPI 26 provides that 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’.
[11] [2018] FCA 1828
Permanent or enduring physical or mental incapacity criteria
There is another pathway to citizenship for a person who cannot successfully complete the test set out in s 21(3) of the Act, which provides as follows:
(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 capacity, 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.
It is important to note that each subsection of s 21(3) of the Act is conjunctive, that is, each must be satisfied, except for the stipulations at s 21(3)(d)(i)-(iii), where only one of the requirements need be satisfied.
The Applicant’s application for citizenship was not made pursuant to the permanent or enduring physical or mental capacity criteria; that would be an application on Form 1290 – Application for Australian Citizenship – Other Situations (Form 1290).
The Applicant’s case invites consideration of whether the Applicant might meet the s 21(3) criteria to be exempt from taking the Citizenship test. The Tribunal has done so below, as a courtesy to the Applicant’s passionate representative, who has put very significant time and energy into helping her, without commercial reward. The Tribunal is satisfied, however, that the Respondent’s submission is correct, and the Tribunal has no jurisdiction to determine the matter by reference to the s 21(3) criteria.
ISSUE
There are two issues for determination before the Tribunal.
The first is whether the Applicant is eligible for Australian citizenship under s 21(2) of the Act. That requires the Tribunal to consider the following:
(a)whether the Applicant has sat and passed an approved test to meet the requirements of paragraphs 21(2)(d)–(f) of the Act; and
(b)if not, should the Tribunal make a decision on the application for citizenship pursuant to section 24 of the Act, taking into account consideration of whether the Applicant has been afforded a reasonable opportunity to sit the approved test.
It is not in dispute between the parties that the Applicant has not successfully sat and passed an approved test.
The Applicant’s submissions have not always been entirely clear. However, the Tribunal understands that her primary contention is that the approved test is not fit for purpose and is not a reasonable means of assessing the criteria in s 21(2)(d), (e) and (f) of the Act. Even if the Tribunal were satisfied that the contention is correct it is beyond the Tribunal’s jurisdiction to grant an exemption from taking the test or order that a different test be made available to the Applicant.
The Tribunal has instead considered, as a second issue, whether or not the opportunities afforded to the Applicant to sit the test to date have been reasonable, and if not, what specific directions it may issue to ensure that the Applicant has a reasonable opportunity to sit the Citizenship Test.
EVIDENCE
Documentary evidence
The Respondent lodged a Statement of Facts, Issues and Contentions dated 28 March 2024 (SOFIC) and the following documents which were taken into evidence:
(a)
Section 37 T-Documents, labelled T1-T15, comprising pages 1-243, filed

9 February 2024 (R1);
(b)
Supplementary T-Documents, labelled S1-S6, comprising pages 1-29, filed

28 March 2024 (R2);
(c)Screenshot of Citizenship Test Result filed 12 July 2024 (R3);
The Applicant provided the following documents ahead of the hearing, which were taken into evidence:
(a)Medical report of Dr Hasam filed 28 April 2024 (A1); and
(b)Letter from Employer filed 28 April 2024 (A2).
After the hearing the Applicant submitted:
(a)A psychological report dated 18 July 2024 from Registered Clinical Psychologist Donald Neville Barnes; and
(b)An enrolment confirmation for South Metropolitan Tafe showing the Applicant’s current enrolments, concluding on 20 September 2024.
The Respondent wrote to the Tribunal on 19 September 2024 to say that they were attempting to agree terms with the Applicant’s representative to resolve the proceedings.
The Applicant’s representative wrote to the Tribunal on 27 September 2024 as follows:
I refer to Ministers Offer for Supini to sit an Assisted Test as she has now
completed the required hours by the Minister to Qualify for an Assisted Test, after
we have submitted in September 2024 to AAT and Minister an updated Report of
Supini’s hours completed to date report from the AMEP (Adult Migrant English
Program).
As Instructed by the AAT we have a Psychological Report from a Registered
Clinical, Educational and Development Psychologist, undertaken and submitted
to the AAT and the Minister in July 2024.
From the AAT proceeding so far and reviewing the relevant information, reports
and documents, we maintain that Supini is illiterate in her native language and
attending the required hours by the Minister for completion of AMEP to sit an
assisted Test that would give Supini extra time for completion only, does not
acknowledge the fact that Supini is illiterate and this test that is supposed to
asses a prospective Australian on Australian Values does not make any
allowances for someone that is illiterate. In Supini case she has functioned and
proved that living in Australia, adhering to Australian Law paying Australian
Taxes, never being in any Infringement with the Law, holding the same
employment for a WA State Government Department for more than 8 years,
proves that she not only understands but live Australian Values. Because she is
illiterate, she will have trouble completing a literacy test, and we will not be able
to accept the Ministers offer for Supini to complete an Assisted Test.
The Applicant appears to have rejected an offer from the Respondent to sit an Assisted Test on the basis that the Applicant is illiterate and mere extra time will not assist.
Applicant’s evidence
The Tribunal heard limited oral evidence from the Applicant during the hearing. The Applicant’s English is basic, and an appropriate interpreter was not available to assist with complex evidence.
The Tribunal was able to be satisfied that the Applicant is genuinely committed to mastering better English language skills, that working headphones had not been available during her various attempts to complete the citizenship test, and that she had been attempting to answer the questions on the basis of memorising what the words looked like as best she could. She denied that she had been assisted orally on one occasion, and the Tribunal notes that the timeframe in which she is said to have completed the orally assisted test does not allow for reading each question and the optional multiple-choice answers aloud at a reasonable pace.
The Tribunal asked the Applicant some of the questions drawn from the online practice citizenship test in the course of the hearing, and her responses were correct. She did struggle to understand the wording of the questions, but only to the extent that the language used is not, in fact, basic English but reasonably sophisticated language.
The Tribunal accepts the Applicant’s submission that the citizenship test as drafted requires more complex mastery of the English language than that which is required to be demonstrated by the legislation, but that is not an issue that the Tribunal has any jurisdiction to remedy. It may be a matter for the Applicant to draw to the attention of their local Senator or Member of Parliament.
The Applicant was clear that she wants to complete the citizenship test but that she has inadequate literacy skills and does not feel capable of acquiring the necessary level of literacy.
CONSIDERATION
General eligibility criteria
Applications under the general eligibility criteria require successful completion of the citizenship test as a prerequisite for the grant of citizenship. Pursuant to the clear language of the legislation it is the only way an applicant can demonstrate their understanding of the knowledge requirements. It is not in dispute that the Applicant has not completed the test, and the Applicant’s present position is that she is not capable of completing the test. The Tribunal repeats that it has no discretion to waive the test requirement pursuant to the general eligibility criteria.
The Applicant has not been employed since arriving in Australia, but she lives independently with her family. Her responses to questions during the hearing reflect significant understanding of the rights and responsibilities of citizenship. She wants to improve her English language skills but has serious doubts about her ability to acquire adequate literacy skills at her age.
The Respondent says that there is no impediment to the Applicant re-applying for citizenship and re-attempting the test after she has made further efforts to improve her English language skills, including taking advantage of the online tools available to assist applicants, and leveraging the assistance of family, friends, and her ethnic community. The Respondent says further that there is no limit on the number of applications a person can make under the Act once they are better prepared.

The Tribunal appreciates the cognitive challenge of adult illiteracy over the age of 50. If a literate person brought up in a country that exclusively uses the Latin alphabet contemplates trying to learn to read and write in the Glagolitic script, for example, they might start to appreciate the challenge of illiteracy, although such a person would still understand the basic principles of writing in a way that a truly illiterate person cannot. A better example might be for a person brought up writing the Latin alphabet according to English writing principles to consider the challenge of trying to pass a written test penned using hiragana, katakana and kanji; the three interactive Japanese writing systems that might be referred to in Australia as ‘the Japanese alphabet’.
The general eligibility criteria does not require an applicant to read or write English. The relevant criterion is that they ‘possess a basic knowledge of the English language’.[12] The Tribunal has taken evidence from the Applicant and finds that she has a basic knowledge of the English language. However, the Tribunal is unable to find that she satisfies criterion 21(2)(e), because the legislation provides that she satisfies this criterion only if the Minister is satisfied that she has successfully completed the citizenship test, which it is agreed that she has not.
[12] S 21(2)(e) of the Act
Section 4.2 of CPI 26 provides:
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 requires assistance, a Test Administrator may:
oread the questions and multiple-choice answers aloud to the applicant,
oask the applicant for their response;
oselect 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).
The Test Administrator must not translate the questions to 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.
oFor example, if an applicant does not know how to use a mouse, the Test Administrator may conduct a brief tutorial on how to use the mouse; or
oIf an applicant has an impairment that prevents their use of the mouse, the Test Administrator may operate the mouse in accordance with the applicant’s responses to the questions.
An applicant who is eligible to sit the standard test is eligible to sit the Assisted Test if they have low literacy skills, measured by completion of at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP) and assessment by the AMEP provider as having less than basic reading skills in English. The Assisted Test provides double the time to address the questions and would provide more time for questions and answers to be read aloud.
The post-hearing evidence is that the Applicant has now completed more than 400 hours and is eligible for the Assisted Test and the Respondent has indicated that it is appropriate that she do so.
Permanent or enduring physical or mental incapacity criteria
Jurisdiction
As previously observed, the Applicant did not use the prescribed form for applying for citizenship pursuant to s 21(3) of the Act. The Applicant applied for Australian citizenship using Form 1300t – Application for Australian Citizenship – General eligibility (Form 1300t).
The requirements of an application for Australian citizenship are set out in s 46 of the Act. Subsection 46(1) provides as follows:
46 Application requirements
(1) An application under a provision of this Act must:
(a) be on the relevant form approved by the Minister for the purposes of that provision; and
(b) contain the information required by the form; and
(c) be accompanied by any other information or documents prescribed by the regulations; and
(d) be accompanied by the fee (if any) prescribed by the regulations.
(Emphasis added)
Subsection 46(2) of the Act allows for the Minister to approve one or more forms for the purpose of a provision of the Act under which an application for Australian citizenship may be made. At all relevant times, the Minister had approved two forms for this purpose, namely Form 1300t and Form 1290.
The Applicant has not filed a Form 1290 and pursuant to the above provisions
her application for citizenship cannot be considered by the Minister under s 21(3) of the Act without it.[13] The Tribunal, exercising the powers and discretions of the primary

decision-maker, does not have jurisdiction to consider the Applicant’s eligibility under

s 21(3) of the Act.
[13] See SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, where the Court stated in relation to a citizenship application at [28], ‘the application will be valid only if he or she uses the specific form, otherwise the application is invalid’.
Evidence
For completeness, the Tribunal notes that there would be insufficient evidence before the Tribunal at present to find that the Applicant meets the s 21(3) criteria in any event. The Applicant relies on the letter from Donald Neville Barnes dated 21 July 2024 as her chief evidence of cognitive impairment. Mr Barnes’ report contains the following evidence:
On the day of the assessment, [the Applicant] did not display any mental health related condition or indications of cognitive impairment.
I base this on the following:
oHer behaviour and performance in the assessment.
oThe oral history provided by her sister.
oHer high level of functioning in her native language. She displayed rapid, confident and what sounded like complex dialogue with her sister. There was obvious two-way understanding and what I observed to be appropriate and seamless contextual narrative between them.
oThe letter from her employer which described her in positive terms. She was reported to be highly functional, reliable and valued as a worker. Her employer noted her various roles do not require high levels of language skills.
oHer competence in tasks such as visual tasks, working memory tasks, and number based tasks where the language component is not a significant. [sic]
…
Ms Supini’s difficulties do not arise from her failure to understand the requirements of being a good Australian citizen as targeted in the test. Rather, they arise from her difficulties in written and spoken English. This is compounded by a minimal level of formal education in her native language.
That evidence is not sufficient to satisfy the Tribunal that the Applicant meets the s 21(3) criteria.
Mr Barnes’ concern that the Applicant is unlikely to ever pass the test appears to be based on his understanding that the Assisted Test only offers an extended time for completion. He has not addressed whether or not the Applicant might complete the test successfully if she were properly assisted with an oral test and given an appropriately extended timeframe to allow for the asking of questions aloud more than once.
The Tribunal notes Mr Barnes’ view that the language of the citizenship test is problematic. He describes it as ‘highly complex and sophisticated written…English’.[14] He refers to example question 16, which asks the reader to answer which of three questions ‘best demonstrates Australian values about freedom of expression’, and offers the answers:
(a)Everyone can peacefully express their opinions within the law;
(b)People with different views from me need to keep quiet;
(c)Only approved topics can be discussed.
[14] Letter from Mr Barnes dated 21 July 2024 Addendum at [5]
Mr Barnes invites contemplation of the cultural sophistication, depth of knowledge and learning required to provide valid context to the terms used in the question. The Tribunal has so contemplated, and shares Mr Barnes’ concerns. It is, however, beyond the jurisdiction of the Tribunal to excuse the Applicant from sitting the test, or to direct that any changes be made to the Determination.
It is within the jurisdiction of the Tribunal to exercise the discretion that the test be administered orally and the Tribunal is satisfied that it is appropriate to do so in the circumstances. The Tribunal is also satisfied that the Applicant should be regarded as taking the test for the first time, given that she has not previously sat an oral test, and be given at least three opportunities to take the test in the oral format.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

18 December 2023 to refuse the Applicant’s application for citizenship by conferral, is set aside and the matter remitted with the direction that the Applicant be given at least three opportunities to sit an Assisted Test with a Test Administrator reading the questions and answers aloud to the Applicant.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for the decision herein of
Member Henderson

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Associate:
Dated: 3 October 2024

Date of hearing: 12 July 2024

Advocate for the Applicant: Warren Haslam

Solicitors for the Respondent: Ms Sophie Edmondstone, Minter Ellison

Date of hearing:	12 July 2024
Advocate for the Applicant:	Warren Haslam
Solicitors for the Respondent:	Ms Sophie Edmondstone, Minter Ellison