Yusefi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Yusefi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4668 (23 November 2020)
Division:GENERAL DIVISION
File Number: 2020/0144
Re:Bibi Yusefi
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:23 November 2020
Place:Brisbane

The Tribunal affirms the reviewable decision.
................. ................[SGD].......................................
Senior Member P J Clauson AM
Catchwords
CITIZENSHIP – Australian Citizenship Test – Where Applicant has not passed the Australian Citizenship Test – Where Applicant has been given multiple attempts at test – Where Applicant does not have permanent or enduring physical or mental incapacity – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Policy 2016, Department of Immigration, Citizenship, Migrant Services, and Multicultural Affairs
Australian Citizenship Procedural Instructions 2 – Permanent or Enduring Physical or Mental Incapacity (2 March 2019)
Australian Citizenship Procedural Instructions 26 – Australian Citizenship Test (17 May 2020)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hamdan and Minister for Migration and Border Protection (Citizenship) [2019] AATA 228
Harbi and Minister for Immigration, Border Protection, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1347
Minister for Home Affairs v Zadeh (No. 2) [2018] FCA 1828
REASONS FOR DECISION
Senior Member P J Clauson AM
23 November 2020
INTRODUCTION AND BACKGROUND

This is an application for review pursuant to section 52(1)(b) of the Australian Citizenship Act (“the Act”) of a decision by the Respondent’s Delegate (“the Delegate”) made pursuant to section 24(1) of the Act refusing approval of the Applicant’s application for Australian citizenship by conferral.
The Applicant, a citizen of Pakistan, arrived in Australia on 15 March 2013 as the holder of a Woman At Risk Visa (Sub-Class 204).[1]
[1] Exhibit 1, T16, page 70.
The Applicant applied for Australian citizenship by conferral on 14 November 2017.[2]
[2] Exhibit 1, T4, pages 9 and 10.
The Applicant sat, and failed, a citizenship test between 13 June 2018 and 12 February 2019 on no fewer than 14 occasions.[3]
[3] Exhibit 1, T14, pages 55 to 68.
The Delegate, not being satisfied that the Applicant met the requirements to receive citizenship by conferral set out in sub-section 21(2)(d), (e) and (f) of the Act by having sat and successfully completed an approved citizenship test as required by section 21(2A) of the Act, refused to grant the Applicant Australian citizenship on 20 December 2019.[4]
[4] Exhibit 1, T17, pages 74 to 77.
The Applicant applied for a review of that decision of the Delegate on 7 January 2020.[5]
[5] Exhibit 1, T2, pages 4 to 6.
ISSUES
The matters for the Tribunal to determine are:
(a)whether the Applicant has sat and passed an approved test within the meaning of sections 23A and 21 of the Act; and if not
(b)whether the Applicant had a permanent and enduring physical or mental incapacity when she made the application for citizenship such that satisfying the requirements of the act could not be satisfied by the Applicant.
RELEVANT LAW
in making a decision, the Tribunal is bound by: The Australian Citizenship Act 2007 (Cth) and Citizenship Policy (“the Policy”) with its accompanying Citizenship Procedural Instructions (“the Instructions”). Policy documents bind a decision maker unless there are cogent reasons to depart from them.[6]
[6] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Australian Citizenship Act
Section 21 of the Act relevantly provides regarding eligibility for Australian citizenship:
1A person may make an application to the Minister to become an Australian citizen.
2A 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)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.
2AParagraphs (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.
3A 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 incapacity, 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.
Australian Citizenship Policy and Procedural Instructions
The Australian Citizenship Policy clarifies the relevant requirements under the Act thusly:
…Applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
…
To qualify, incapacity must be either permanent, or sufficiently long- term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
…
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
·Psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists; or
·Medical practitioner of who is a fellow of the Australian Society of Psychological Medicine; or
·Psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
…
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
The instructions further provide the following regarding what evidence should be sought to ascertain satisfaction under section 21(3) of the Act and then further, what the expectation of the department are regarding an Applicant that consistently fails the citizenship test:
·the full name and date of birth of the applicant
·information on how long the specialist has been treating the applicant
·whether the applicant received treatment from any other specialist
·when did the claimed incapacity commence
·how many sessions has the applicant attended with the specialist
·does the applicant attend consultations regularly
·are they currently being treated under a treatment plan – if not why not
·results of any cognitive or clinical testing that has been undertaken…
…
Reports must be current at the time of application. If there has been a delay of 6 months or more in processing an application, an up to date report may be required to establish whether the incapacity claimed at time of application is still an ongoing or permanent incapacity.
…
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.
However decision-makers may find it appropriate to give applicants one or more further test appointments in circumstances where:
·the applicant’s citizenship test scores have improved over the period of attempts made;
·the applicant was affected by notification issues, such as the applicant not receiving the invitation to attend the citizenship interview and test appointment, despite the applicant making inquiries;
·system errors, such as:
o either CATS was not accessed, or the number of hours was referenced incorrectly and the Department did not offer the applicant an assisted test;
o Departmental records are insufficient and it is not clear whether the applicant has been given a reasonable opportunity to pass the test.
CONTENTIONS AND CONSIDERATION
The Respondent contends that the Applicant failed to successfully complete an approved citizenship test and indicates that in support of this contention notes that the Applicant had attempted the test on 14 occasions without success between June 2018 and February 2019.
The Respondent notes that while the Applicant states in her application for review that she acknowledges that she has sat for, and failed, the Australian Citizenship Test (“A.C.T.”) a number of times, she claims that her lack of education and the difficulties and extreme hardships she has endured have contributed to this continued failure to succeed in the A.C.T. on these occasions.[7]
[7] Exhibit 1, T2 at page 7.
The Respondent also drew the attention of the Tribunal to the wording contained in section 21(2A), which indicates that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied “if and only if” an Applicant has sat and completed the A.C.T. successfully and further, that the wording is unambiguous.
The case of Hamdan and Minister for Migration and Border Protection (Citizenship) [2019] AATA 228 at paragraph [23] is authority for the principle that the Tribunal, in a matter such as this, has no discretion to consider the Applicant’s circumstances or reasons for not successfully completing the A.C.T. in order to wave the statutory requirements.
Where the circumstances are such that there is no evidence that the Applicant has passed the A.C.T., she does not (the Tribunal’s emphasis) satisfy the general eligibility criteria.
The Tribunal has considered the Applicant’s application and the Respondent’s contentions in relation to the circumstances of the Applicant in this matter and in regard to the general eligibility criteria defined in the legislation, and finds that on this occasion it is in agreement with the Respondent’s contentions.
The Tribunal has noted that the Applicant’s claim of lack of education and hardship and, while it is sympathetic to the Applicant’s condition and circumstances, it is nonetheless constrained by the legislative strictures applying to this type of matter. The law requires, subject to any exemption allowed by the operation of section 21(3) of the Act, that an Applicant must have sat and successfully completed the A.C.T. in order to receive the privilege of Australian citizenship. The Tribunal has no discretion to change this in circumstances such as the Applicant’s. The Tribunal has no evidence that the Applicant has passed the A.C.T. successfully so that she is unable to satisfy the general eligibility criteria.
There is an exception to the general eligibility criteria where an Applicant can prove demonstrably to the satisfaction of the Tribunal that they are suffering from a permanent or enduring mental incapacity satisfying section 21(3) of the Act.
The Respondent contends that in this Applicant’s case, there is no evidence before the Tribunal to such a standard as required to satisfy the section, to suggest or confirm that the Applicant is suffering, or has suffered, an enduring physical or mental incapacity. The Applicant’s request for review of the Delegate’s decision makes no claim in this regard.
The Tribunal understands and accepts that the Applicant has not had an easy time and to quote her request has suffered “extremely difficult adversities” in her life and was granted a Woman At Risk Visa - but the Tribunal agrees with the Delegate that no evidence exists which can describe the adversities claimed and how these may have affected the Applicant’s physical and/or mental capacity.
The Tribunal notes that the material lodged by the Applicant does not contain evidence of a nature which would indicate any lack of ability to understand the nature of the application “at that time”[8] or, in fact, that she; “is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time”.[9]
[8] Section 21(3)(d)(i).
[9] Section 21(3)(d)(iii).
The Respondent has contended in its Statement of Facts, Issue and Contentions that the Applicant’s application in fact makes reference to aspects of the application for citizenship process insofar as the requirement to sit and satisfactorily pass the A.C.T., in particular a written test, and show some understanding of the privileges attaching to citizenship, namely, the right to vote. The Tribunal has also noted these aspects to the Applicant’s application and agrees with the Delegate.
The Tribunal accepts that the test necessary to satisfy the incapacity exemption sets a very high benchmark to meet. In fact, it can be said that the requirement to meet the degree of incapacity is effectively that, for a particular individual, the task of sitting and passing the A.C.T. is a practical impossibility.[10]
[10] Harbi and Minister for Immigration, Border Protection, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1347 at [54] to [55].
The Respondent contends that although the Applicant has failed to complete the A.C.T. in English and that an enduring physical or mental incapacity may constitute an additional burden to a person seeking to acquire a basic understanding of English, a task that is difficult may not necessarily be impossible.[11] The question posed by the Respondent as regards the Applicant is whether the Applicant would be incapable of demonstrating a basic knowledge of the English language with appropriate preparation.
[11] Ibid at [56].
The Tribunal has noted that Attachment 3 to the Respondent’s material confirms that the Applicant has undertaken 598.6 hours of English language courses. The Tribunal accepts that it is difficult for some individuals to acquire sufficient mastery of the English language to the necessary level of proficiency. This, however, in the Applicant’s case, given the evidence available, does not support a conclusion that the Applicant is incapable of reaching that standard. In other words, the Tribunal is not satisfied that this is a “practical impossibility for her to achieve”.
The Tribunal also accepts the Applicant’s statement in her application regarding the lack of “formal or informal”[12] education upon which she relies to explain her ability to successfully complete and pass the A.C.T. but, however, considers that this in no way is evidence of her learning capacity (or lack thereof) or of her cognitive abilities.
[12] Exhibit 2.
The Tribunal has also had regard in its consideration, to the Australian Citizenship Test Instruction CPI26, Document ID VM-6162 at Item 6.3 ‘Failing the Test’.[13]
[13] Australian Citizenship Test Instruction, Citizenship Procedural Instruction 26 (17 May 2020).
Item 6.3 outlines the broad approach to be adopted where an Applicant fails the A.C.T. It is noted in that Item that the ministerial determination setting out the guidelines for the administration of the test does not allow Applicants to sit the test as many times as they may wish. 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.[14]
[14] Minister for Home Affairs v. Zadeh (No. 2) [2018] FCA 1828.
Item 6.3 states further, 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.
Item 6.3 also outlines circumstances where, if an Applicant has failed on their third appointment, it would be open to the decision-maker to give an Applicant one or more further test appointments. Suffice to say that in this matter, the Tribunal has before it no evidence of such circumstances applying to the Applicant’s matter notwithstanding that the Applicant has been generously, in the opinion of the Tribunal, provided 14 opportunities to sit and pass the A.C.T. over the period of nine months between 13 June 2018 and 12 February 2019. Unfortunately, on each occasion, the Applicant was unsuccessful. Thus, given the guidance of the Instruction, it is the opinion of the Tribunal that the Applicant was provided with an above average generosity and fairness by the Department throughout. The Tribunal is therefore of the view that the decision of the Delegate was the correct and preferable decision in the circumstances.
DECISION

The Tribunal affirms the decision of the Delegate under review.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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Associate
Dated: 23 November 2020

Date(s) of hearing: 18 November 2020

Date final submissions received: 17 November 2020

Applicant: In person

Solicitors for the Respondent: Ms C Allen, Sparke Helmore Lawyers

[2020] AATA 4668

23 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal

Date(s) of hearing:	18 November 2020
Date final submissions received:	17 November 2020
Applicant:	In person
Solicitors for the Respondent:	Ms C Allen, Sparke Helmore Lawyers