Zadeh and Minister for Home Affairs (Citizenship)

Zadeh and Minister for Home Affairs (Citizenship) [2018] AATA 2145 (11 July 2018)
Division:GENERAL DIVISION
File Number: 2018/0351
Re:Hosein Ghasem Zadeh
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment
Date:11 July 2018
Place:Sydney

The reviewable decision is set aside and the matter remitted to the respondent with a direction that the applicant is to be offered his next test in a month’s time and if he then does not attain a pass mark, he is entitled to sit for it again in accordance with paragraph 17 of the Ministerial Determination.
....................................[SGD]..................................
Deputy President B W Rayment
Catchwords
CITIZENSHIP – citizenship by conferral – eligibility – applicant failed the citizenship test but attended every appointment – no limit to how many times the applicant can sit the test under the Ministerial Determination – reviewable decision is set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth), ss 21(2A), 23A
Secondary Materials
Determination for the Approval of a Citizenship Test (IMMI/088), para 17
REASONS FOR DECISION
Deputy President B W Rayment
11 July 2018

The applicant arrived in Australia from Iran with his wife and two children in 2011. Since then, his wife and two children have attained Australian citizenship and he applied for citizenship himself in April 2016.
Since 2016, he has sat on three occasions in November 2017 and one occasion in January 2018 for a standard test approved under s 23A of the Australian Citizenship Act 2007 (Cth) (the Act), which was prepared in accordance with the current determination made by the Minister on 1 March 2012.[1] That determination has statutory force under s 23A of the Act.
[1] Determination for the Approval of a Citizenship Test (IMMI/088) (the Ministerial Determination).
Mr Ghasem Zadeh needed to obtain a mark of 75% in order to pass the test and the effect of s 21(2A) of the Act is that attaining the pass mark is a precondition of his eligibility for citizenship.
Mr Ghasem Zadeh failed to attain the 75% pass mark on each occasion he sat for the test, but in January of this year he came closer to passing, having a score of 13/20 or 65%.
After his most recent test, a delegate of the respondent notified him of the refusal of his application for citizenship.
The applicant desired and desires to attempt again to pass the standard test.
My attention has been drawn to the terms of the Ministerial Determination under s 23A of the Act. Paragraph 17 of it is in the following terms:
There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless the person has commenced a Course-Based Test.
That paragraph means that the applicant has a right to sit for the standard test as many times as he wishes. The improvement he has demonstrated makes it hard to conclude that his desire to sit the test again is futile, and the terms of the Ministerial Determination do not seem to make that question material.
Neither the current departmental policy nor the citizenship instructions is capable of overcoming the statutory effect of the Ministerial Determination under s 23A and it seems unnecessary to consider the effect of those documents.
I am told by the applicant that he will be ready to sit the test again in a month’s time.
The reviewable decision will therefore be set aside and the matter remitted to the respondent with a direction that the applicant is to be offered his next test in a month’s time and if he then does not attain a pass mark, he is entitled to sit for it again in accordance with paragraph 17 of the Ministerial Determination.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

....................................[SGD]....................................
Associate
Dated: 11 July 2018

Date of hearing: 11 July 2018

Applicant: In person

Solicitors for the Joined Party: R Grivas, Clayton Utz

The applicant, Mr. Zadeh, sought judicial review of a decision by the Minister for Home Affairs to refuse his application for citizenship by conferral. The dispute arose because Mr. Zadeh had failed the citizenship test on multiple occasions, although he had attended all scheduled appointments. The Administrative Appeals Tribunal had affirmed the delegate's decision to refuse the application. The matter came before Deputy President B W Rayment of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant was eligible for citizenship by conferral, specifically concerning the requirement to pass the citizenship test. The Tribunal was required to determine if the Ministerial Determination, which set out the requirements for citizenship by conferral, imposed any limit on the number of times an applicant could sit the citizenship test.

Deputy President Rayment reasoned that the Ministerial Determination did not specify any limit on the number of attempts an applicant could have to pass the citizenship test. The Determination outlined the general eligibility criteria, including the requirement to pass the test, but did not impose a quantitative restriction on re-sits. The Tribunal found that the applicant had met the attendance requirements and that the failure to pass the test on previous occasions did not, in itself, render him ineligible under the terms of the Determination.

Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Date of hearing:	11 July 2018
Applicant:	In person
Solicitors for the Joined Party:	R Grivas, Clayton Utz