Yalda and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1460

Yalda and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1460 (31 May 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0220

Re:Jinan Yalda

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:31 May 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member M Griffin QC

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – general eligibility criteria – failed citizenship examination – knowledge of English language – ability to re-sit examination – additional material not available to the original decision-maker – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

REASONS FOR DECISION

Senior Member M Griffin QC

31 May 2018

FACTS

1. The Applicant has applied for review of a decision refusing her application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (the Act). 


2. The Applicant was born in Baghdad, Iraq on 23 December 1967. She was granted a Subclass 200 (Refugee) visa on 28 December 2011 and first arrived in Australia on 31 January 2012.

3. On 12 February 2016, an application for Australian citizenship by conferral was received by the Department.

4. On 3 January 2018, the delegate refused the application for conferral of Australian citizenship because the Applicant did not satisfy requirements at ss 21(2)(d), (e) and (f) of the Act.

5. The Applicant has sought review of the delegate's decision by application dated 18 January 2018.

   DELEGATE'S DECISION

6. The delegate assessed the Applicant's application for citizenship against the 'general eligibility' criteria at s 21(2) of the Act.

7. Subsection 21(2) provides:

   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 228), 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.

8. In order to satisfy the criteria at ss 21(2)(d), (e) and (f), an Applicant must sit and successfully complete an approved test.

9. The Applicant sat an approved citizenship test on eight occasions between April 2017 and October 2017.

10. The Applicant failed to successfully complete an approved citizenship test on each of these occasions. 


    APPLICATION FOR REVIEW

11. In her application for review, the Applicant has stated the following reasons for review: “English is my second language. And due to being a carer for my husband, I was not able to study English”. 


    ISSUES

12. The Applicant has applied for citizenship on the basis of the general eligibility Criteria at s 21(2) of the Act. There was no evidence before the delegate that would suggest that she would satisfy the criteria for the other categories of eligibility at ss 21(3)-(8), including that the Applicant suffers from a permanent or enduring mental or physical incapacity. 


13. The Respondent contends that, although the determination states that there is no limit on the number of times a person can sit a citizenship test, the Applicant should not be afforded another opportunity to sit the citizenship test. I am not satisfied that there is any reason to impose this limitation.

14. The facts in this matter are not in dispute. Two questions arise for consideration. The primary question is whether the Applicant is entitled to citizenship based upon assessment under the general eligibility criteria (section 22). This question may be disposed of immediately. The Applicant was unable to pass the citizenship test, which is a prerequisite for obtaining citizenship. By failing to pass the test, the Applicant is unable to be considered under the general eligibility criteria.

15. The second question arises from events which occurred during the course of the hearing.

16. At the commencement of the hearing the Applicant produced in evidence a medical certificate (Exhibit 1) which was to the effect that the Applicant suffered from post-traumatic stress disorder and had difficulties with her memory.

17. No objection was taken by the Respondent to the tender of the material. To my mind, it raises the question as to what material may be taken into account in this hearing and whether in fact the nature of the material in Exhibit 1 raises new and different issues under section 22.

18. This material (Exhibit 1) was not before the original decision-maker. The original application was assessed on criteria for general eligibility. So much is clear from the material in the tribunal file. However, the medical certificate raises issues beyond general eligibility criteria. In fact, to my mind, it raises issues relevant to an alternate pathway to citizenship under s 21(3) suggestive of the Applicant suffering from a permanent or enduring mental or physical incapacity. However, the certificate itself is so bald and lacking in any real details that it cannot be properly considered evidence sufficient to satisfy an appropriate standard of proof.

19. Furthermore, having considered the matter carefully, I am of the view that this application before the Tribunal must be limited to those matters which formed a foundation for consideration of the original application on general eligibility grounds. It is not possible in a hearing by the Tribunal to consider material which so substantially changes the grounds that it effectively makes this application a new application based upon different criteria. In the result, I am satisfied that the material cannot found a new application under s 21(3).

    CONCLUSION

20. I am further satisfied that the material as it presently stands is inadequate to satisfy successful application. In any event, the material before me demonstrates that the Applicant has failed on general eligibility grounds to successfully complete an approved citizenship test on eight occasions and I, therefore, conclude that the original decision should be affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 31 May 2018

Date(s) of hearing:	24 April 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Prasad