Waghela and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 3531

Waghela and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3531 (1 November 2023)

Division:GENERAL DIVISION

File Number:          2023/2416

Re:Mrs Jayshree Mitesh Waghela

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:1 November 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision dated 13 April 2023 made by a delegate of the Respondent to refuse the grant of Australian citizenship by conferral to the Applicant is affirmed.

.........................[SGD].............................

Senior Member Theodore Tavoularis

Catchwords

CITIZENSHIP– decision to refuse Australian citizenship by conferral – where Applicant did not pass the citizenship test – where multiple opportunities afforded to the Applicant to sit the test – application and consideration of Citizenship Procedural Instructions (CPI) -decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Citizenship Procedural Instructions

REASONS FOR DECISION

Senior Member Theodore Tavoularis

1 November 2023

INTRODUCTION

1. Mrs Jayshree Mitesh Waghela (‘the Applicant’) seeks a grant of Australian Citizenship pursuant to s 24(1) of the Australian Citizenship Act 2007 (‘the Act’). Her application to this Tribunal is the result of an adverse decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) on 13 April 2023. In this decision the Respondent’s delegate refused the grant of Australian citizenship by conferral and the Applicant now seeks review of that decision pursuant to s 52(1)(b) of the Act.

   RELEVANT BACKGROUND

2. The Applicant is a citizen of India who arrived here over 13 years ago on 31 May 2010.Upon arrival she held a Temporary New Zealand Citizen Family Relationship (Subclass-461) visa. Several months after her arrival, she was granted a Skilled Independent (Subclass-189) visa. After spending over a decade of her life in Australia, the Applicant made an application for Australian citizenship by conferral on 16 August 2022. Her failure to secure Australian citizenship pursuant to that application lies at the heart of the instant review.

   WHY HAS THE APPLICANT NOT SUCCEEDED IN SECURING AUSTRALIAN CITIZENSHIP?

3. The Applicant has responded to three invitations from the Respondent’s Department[1] to participate in the usual vetting and other procedures that must be successfully negotiated by an applicant in order to secure Australian citizenship by conferral:

   [1] The Commonwealth Department of Home Affairs.

   ·first

   , on 31 January 2023, the Respondent’s Department invited the Applicant to attend a citizenship interview and to sit the standard citizenship test on  

   
   

   27 February 2023. The Applicant failed the citizenship test at this appointment. Her results comprised:

   oa score of 65% with her correctly answering only one out of five questions relating to ‘Australian Values’;

   oa score of 60% with her correctly answering only one out of five questions relating to ‘Australian Values’;

   oa score of 55% her correctly answering only four out of five questions relating to ‘Australian Values’;

   ·second

   , on 27 February 2023 the Respondent’s Department invited the Applicant to attend a citizenship interview and to sit the standard citizenship test on  

   
   

   6 March 2023. She again failed to pass the citizenship test at this appointment. Her results were only slightly better this time. She achieved:

   oa score of 60% with her correctly answering only three out of five questions relating to ‘Australian Values’;

   oa score of 60% with her correctly answering only one out of five questions relating to ‘Australian Values’;

   oa score of 55% with her correctly answering only four out of five questions relating to ‘Australian Values’;

   ·third, on 6 March 2023 the Respondent’s Department invited the Applicant to attend a citizenship interview and to sit the standard citizenship test on 5 April 2023. Prior to her participation in this third process she was duly advised that this would be her final appointment and if she were unsuccessful in terms of passing the citizenship test or demonstrating significant improvement ‘…a decision will be made on your application [for citizenship]…’.[2] Her results in this third round were again disappointing and unsuccessful. Those results comprised:

   oa score of 55% with her correctly answering only three out of five questions relating to ‘Australian Values’;

   oa score of 75% with her correctly answering only four out of five questions relating to ‘Australian Values’;

   oa score of 55% with her correctly answering only four out of five questions relating to ‘Australian Values’.

   [2] R1, p 72.

4. As foreshadowed in their correspondence, the Respondent’s Department did make ‘a decision’ on the application for citizenship and duly notified the Applicant that she had failed to meet the mandatory criteria contained in ss 21(2)(d), (e) and (f) of the Act. Specifically, the Respondent’s delegate expressed their decision in these terms:

   ‘5. DELEGATE’S DECISION

   You have made an application to become an Australian citizen under section 21(1) of the Act. In accordance with section 24(1) of the Act I must make a decision to approve or refuse to approve you becoming an Australian citizen.

   You have not made any claims that are relevant to subsections 21(3), (4), (5), (6), (7) or (8) so I cannot be satisfied that you satisfy any of these subsections.

   I have decided to refuse to approve your application to become an Australian citizen by conferral because you do not meet the ticked criteria below:

   …

   ☒       Paragraph 21(2)(d) concerning the nature of the application

   ☒       Paragraph 21(2)(e) concerning possession of a basic level of English

   ☒       Paragraph 21(2)(f) concerning an adequate knowledge of Australia and the

   ….’[3]

   [3] Ibid, p 15.

   THE ISSUES FOR DETERMINATION BY THE TRIBUNAL

5. There are two issues before the Tribunal:

   ·has the Applicant sat and passed an approved test so as to meet the requirements of ss 21(2)(d), (e) and (f) of the Act?; if not

   ·should this Tribunal make a decision on the application for citizenship pursuant to s 24 of the Act, taking into account the consideration of whether the Applicant has been afforded a reasonable opportunity to sit the approved test?

   APPLICABLE LEGISLATION AND POLICY

6. The gateway provision facilitating an application for Australian Citizenship is s 21(1) of the Act. The provision facilitating the Respondent’s determination of such application is s 24(1) of the Act which compels the Respondent to, in writing, approve or refuse a person’s application for Australian citizenship. Section 24(1A) of the Act mandates that the Respondent must apply certain eligibility criteria to an application in the course of determining its outcome. Those specific eligibility criteria appear at s 21(2) of the Act. The specific criteria relevant for present purposes are those appearing at sub-paragraphs (d), (e) and (f) of s 21(2) of the Act. Those criteria are put in these terms:

   ‘…

   (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.

   ….’

7. Section 21(2A) of the Act mandates that the above three eligibility criteria are only discharged if the Respondent is satisfied that the following elements have been met:

   ‘(a) the person has sat a test approved in a determination under s 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.’

8. The Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020 (‘the Determination’) relevantly stipulates what amounts to a successful completion of the citizenship test for the purposes of s 23A(2) of the Act. That section provides that an applicant must achieve the following test results to demonstrate successful completion of the citizenship test:

   ·an applicant person must answer at least 75% of the test questions correctly;[4]

   ·an applicant must correctly answer 100% of the Australian Values test questions.[5]

   [4] Part 2, section 17 of this Determination.

   [5] Part 4, section 18 of this Determination.

9. Two instruments offer guidance to decision-makers when determining whether an applicant has successfully undertaken the Australian citizenship test. Those instruments are (1) the Australian Citizenship Policy Statement (‘ACPS’) and (2) the Revised Citizenship Procedural Instructions (‘RCPI’). A decision-maker for present purposes is not strictly bound by either ACPS or RCPI but should generally apply their terms in the absence of cogent reasons for not doing so.

   THE CITIZENSHIP TEST

10. There seems no doubt that the Applicant was eligible to sit the citizenship tests she undertook. She is a person with a visa entitling her to permanent residence of Australia; she had lodged a valid application for citizenship by conferral; and she otherwise satisfied the Respondent (or their delegate) as to her identity.[6]

    [6] RCPI, [4.3]; See R1, p 96.

11. Importantly for present purposes, paragraph [6] of the RCPI deals with applicants who have sat multiple tests. Relevantly, this paragraph provides:

    ‘…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 applicants to successfully complete the test….. 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’.

    [My emphasis]

12. At the hearing before me, as best as I understood her evidence, the Applicant was not necessarily suggesting the decision under review was wrong. She seemed more concerned with this Tribunal affording her an opportunity to sit for a further citizenship test. This contention seemed based on the reality that she had already expended time and money in lodging her original application for citizenship by conferral and that if compelled to lodge a fresh application (pursuant to which she would be entitled sit a further citizenship test(s)), she would incur further filing fees and experience further delays.

13. Paragraph 6.3 of the RCPI offers guidance on the question of how many times an applicant may sit the citizenship test. It relevantly provides as follows:

    ‘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] FCA1828) 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.’

    [My emphasis]

14. Paragraph 6.3 of the RCPI suggests decision-makers may find it appropriate to give applicants one or more further test appointments. The difficulty for the Applicant in the instant case is that none of the stipulated circumstantial elements apply to her:

    ·her test scores have not improved over the period during which she sat each of the tests;

    ·she has not been affected by notification issues around logistical details about, for example, the time and date of the test(s) appointment(s);

    ·she has not been affected by any of the nominated ‘system errors’.

    A FURTHER TEST FOR THE APPLICANT OR FINALISATION OF THE INSTANT APPLICATION?

15. The seminal question therefore becomes whether this Tribunal, standing in the shoes of the Respondent’s delegate ought to refuse the instant application for citizenship given the Applicant has failed the relevant test at her third test appointment. At the instant hearing, the Respondent’s representative did, pursuant to her model litigant obligations, helpfully point out that it is open to this Tribunal to remit this matter back to the Respondent pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) with a direction that the Respondent give consideration to the Applicant sitting a further citizenship test(s).

16. However, I am mindful of the guidance provided by paragraph 6.3 of the RCPI which makes it open to a decision-maker to refuse a citizenship application if an applicant has failed their citizenship test on their third test appointment. In the interests of bringing the instant application to finality, I will proceed to make the following findings to arrive at a definitive determination.

    DETERMINATION OF THE FIRST ISSUE BEFORE THE TRIBUNAL

17. The Applicant has thrice failed the citizenship test. In those circumstances, it would be patently unsafe to suggest or find that she satisfies any of ss 21(2)(d), (e) and (f) of the Act. It is not clear that (1) she understands the nature of the application; (2) that she possesses a basic knowledge of the English language; or (3) that she has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

    DETERMINATION OF WHETHER THE TRIBUNAL SHOULD PROCEED TO MAKE A DECISION ON THE APPLICATION FOR AUSTRALIAN CITIZENSHIP PURSUANT TO S 24 OF THE ACT

18. It is clear that this Tribunal can so proceed. While there may be discretion to afford an applicant further opportunities to sit the test, none of the factors giving rise to that discretion are met for present purposes.[7] The only remotely possible scope worthy of discussion for present purposes is the first dot-pointed criterion in paragraph 6.3 of the RCPI which relevantly provides that a decision-maker ‘….may find it appropriate to give applicants one or more further test appointments in circumstances where: the applicants’ citizenship test scores have improved over the period of attempts made’.

    [7] See paragraph 6.3 of the RCPI.

19. The Applicant contends she has made such an improvement. In a written communication to the Respondent’s representative (into which the Tribunal was courtesy copied), the Applicant said the following:

    ‘When I sat for the citizenship test for the first time I prepared for the practice test and achieved 75 percent so I went for the exam and failed.

    The Second time I practiced the test and got around 80 percent results in many of them but still failed in the actual test.

    3rd time I prepared more and got overall 95 percent in the practice test and also achieved 75 percent in actual test but just missed one question of the Australian values so failed the test.

    Since the third time I failed, I prepared more of the practice test and achieved 100 percent in most tests (screenshot attached herewith) plus I have been reading the material attached herewith and the podcast on Australian home affairs website. With all the extra measures I am confident to pass the test now so please consider my application.

    There is no further evidence available for the things I prepared so please consider this as the final evidence before proceeding to the hearing. The respondent has been given enough time to submit their evidence.’[8]

    [My emphasis and underlining]

    [8] A1, p1.

20. In that final sitting she scored, respectively, 55%, 75% and 55%. The thrust of the Applicant’s contention as I understood it is that the 75% result represents some type of ‘significant improvement’ which should compel this Tribunal to allow her to sit a further citizenship test. That contention, with respect, is misplaced. It is so for a quite basic, and ultimately arithmetical reason which can be understood from a comparative analysis of the average test result achieved at each of her three sittings of the citizenship test:

Date of test	Result achieved	Result achieved	Result achieved	Average result
27 February 2023	65%	60%	55%	60%
6 March 2023	60%	60%	55%	58.3%
5 April 2023	55%	75%	55%	61.6%

1. The average result achieved on 5 April 2023 is only 3.3% better than the immediately preceding result achieved on 6 March 2023. The result achieved on 5 April 2023 is only 1.6% ahead of that achieved on 27 February 2023. The total variation in terms of average percentage results achieved across all three test sittings barely exceeds 3%. In no scenario can the results achieved on 5 April 2023 be found to constitute a ‘significant improvement’ over the results from the previous two sittings.

2. I am further satisfied that the Applicant has been afforded a reasonable opportunity to successfully complete the citizenship test. She has been issued with three invitations and, in cumulative terms has been afforded a total nine attempts to successfully pass the citizenship test. She has failed to complete an approved citizenship test on each of those occasions. In these circumstances, it is not possible to find that she meets requirements for eligibility for Australian citizenship because this Tribunal cannot safely find that she meets the requirement of ss 21(2)(d), (e) and (f) of the Act. I agree with the Respondent’s two additional contentions:

   (i)allowing the Applicant to continue to attempt the test would frustrate the obligation in s 24 of the Act to approve or not approve the application;[9]

   (ii)passing the citizenship test is not a mere technicality and the satisfaction of the requirements goes to the heart of what it means to be an Australian citizen.[10]

   [9] R2, [26], citing Minister for Home Affairs v Zadeh (No.2) [2018] FCA 1828 at [36].

   [10] Ibid.

3. Finally, it can be safely found that the Applicant has been afforded nine opportunities to pass the citizenship test. The RCPI makes it open to a decision-maker to refuse the instant application after just three failed attempts. Therefore, with reference to this second issue, I will, pursuant to s 24 of the Act, proceed to ‘make a decision’ on this application.

   DISPOSITION AND DECISION

4. Section 21(2A) of the Act mandates that the requirements of ss 21(d), (e) and (f) are only met ‘if and only if’ the Applicant has sat for and successfully completed the citizenship test. I have found that the Applicant has not successfully completed the subject test and that otherwise she does not meet the criteria is ss 21(2)(d), (e) and (f) of the Act.

5. I will therefore proceed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and make a decision on this application such that I affirm the decision of the Respondent’s delegate made on 13 April 2023 to refuse the grant of Australian citizenship by conferral to this Applicant.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................[SGD]..............

Associate

Dated: 1 November 2023

Date(s) of hearing:	23 October 2023
Representation for the Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Carly Warren (Lawyer)
Sparke Helmore Lawyers