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

[2022] AATA 805

Zahidy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 805 (21 April 2022)

Division:GENERAL DIVISION

File Number:          2021/6247

Re:Shamail Zahidy

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:21 April 2022

Place:Perth

The Tribunal does not have jurisdiction to determine the eligibility of the applicant under s 21(3) of the Australian Citizenship Act 2007 (Cth) (Act) in the circumstances of present case. The scope of the decision under review before the Tribunal is limited to the review of the decision under s 21(2) of the Act.

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

Deputy President Boyle

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – decision of delegate to refuse to approve application for conferral of Australian citizenship under s 21(2) of the Act – application for Australian citizenship made using “general eligibility” Form 1300t – applicant claims to suffer permanent or enduring mental impairment under s 21(3) of the Act – incorrect application form used for scope of review sought – where department invited the applicant to withdraw her application and submit her application using “other situations” Form 1290 – Tribunal cannot change the question that was before the original decision-maker – Tribunal satisfied it does not have jurisdiction to review the decision under s 21(3) – scope of decision under review limited to review of the decision under s 21(2) of the Act

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 21(2)(a), 21(2)(b), 21(2)(c), 21(2)(d), 21(2)(e), 21(2)(f), 21(2)(g), 21(2)(h), 21(2A), 21(3), 24, 46, 46(2), 52

CASES

Abdelfattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4361

Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 58

MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25

Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2800

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

REASONS FOR DECISION

Deputy President Boyle

21 April 2022

THE SUBSTANTIVE APPLICATION

1. By application lodged with the Tribunal on 6 September 2021, the applicant seeks the review of a decision of a delegate of the Respondent (Minister) made on 6 September 2021 to refuse to approve the applicant’s application to become an Australian citizen by conferral under s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Act).

   BACKGROUND

2. On 20 January 2020 the applicant applied for Australian citizenship by conferral using a Form 1300t, Application for Australian Citizenship, General Eligibility.[1]

   [1] T3.

3. The applicant sat the citizenship test 13 times but was unsuccessful. The citizenship test is a test approved under s 23A of the Act, the passing of which satisfies the requirements of sub-ss 21(2)(d), (e) and (f).[2] The applicant then provided the Department of Home Affairs with:

   (a)A letter dated 2 February 2021 from the applicant’s general practitioner, stating that she suffered from medical conditions that affect her preparation for the citizenship test, and requested that she be exempt;[3]

   (b)A letter dated 7 July 2021 from a psychologist which stated that the applicant’s language learning disability indicated a traumatic brain injury (potentially incurred as a child), and that the applicant would require special education in order to learn English.[4]

   [2] See s 21(2A) of the Act.

   [3] T12.

   [4] T20/117.

4. On 6 September 2021, a delegate of the Minister decided to refuse the applicant’s application for citizenship on the basis that the applicant had not sat and successfully completed a citizenship test (see [3] above).[5]

   [5] T2.

5. In her application to the Tribunal for review of the delegate’s decision, the applicant refers to her inability to pass the citizenship test and problems learning English.[6]

   [6] T1/6.

6. Since filing her application in the Tribunal, the applicant has provided the following additional documents in support of her application:

   (a)A letter dated 7 November 2021 from the applicant’s general practitioner, stating that the applicant has ongoing physical and mental conditions that affect her preparation for the citizenship exam in English, referring her to a psychologist.

   (b)A letter dated 17 December 2021 from Seyed Hosseinipour, senior clinical psychologist at Sydney Clinical of Psychological Services, stating that they were unable to assess the applicant’s cognitive functioning due to her lack of English, but asserting that the applicant likely had brain damage as a result of a fall as a child, and from other traumas she experienced while living in Afghanistan.

7. On 8 February 2022, the Minister wrote to the applicant inviting her to withdraw her Tribunal application and Form 1300t application, and instead file a Form 1290, Application for Australian Citizenship, Other Situations, which would include an application under s 21(3) of the Act (see [10] below). The applicant has not done so.

   LEGISLATION

8. Section 21(2) of the Act, under the heading “General eligibility”, provides that a person is eligible to become an Australian citizen provided that the Minister is satisfied that the person meets the criteria set out in sub-sections (a)–(h). The section is as follows:

   (2)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)   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.

9. Section 21(2A) of the Act provides:

   (2A)Paragraphs (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.

   (Original emphasis.)

10. Section 21(3) of the Act, which appears under the heading “Permanent or enduring physical or mental incapacity”, is 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 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.

11. Section 24 of the Act relevantly provides:

    (1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    …

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

12. Section 46 of the Act relevantly provides:

    (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.

    (1A)For applications made under section 21 by persons who, in order to be eligible to become an Australian citizen under subsection 21(2), must have sat a test approved in a determination under section 23A, the fee prescribed by the regulations may include a component that relates to the sitting of that test.

13. Under the heading “Approval of forms”, s 46(2) of the Act provides:

    The Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made.

    Note:For example, there are 2 ways to become an Australian citizen by descent under section 16. The Minister may approve 1 form for the purposes of that section or may approve 2 different forms.

14. Section 52 of the Act relevantly provides:

    (1)    An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

    …

    (b)a decision under section 24 to refuse to approve a person becoming an Australian citizen;

    …

    CONSIDERATION

15. As noted at [7] above, after the application was made to the Tribunal, the Minister wrote to the applicant inviting her to withdraw the application for review and her application for Australian citizenship using the Form 1300t. The Minister suggested that the appropriate course was for the applicant to make an application for Australian citizenship using Form 1290, Application for Australian Citizenship, Other Situations, which is the applicable form for an application for Australian citizenship under s 21(3) of the Act.

16. The course suggested by the Minister is, in my view, the appropriate course. As the facts emerged after the applicant had made her application for conferral of Australian citizenship pursuant to s 21(2) of the Act, the more appropriate section of the Act for the applicant to apply for citizenship was, and is, s 21(3), the relevant form for which is a Form 1290.  That, however, does not answer the question that I now have to resolve.

17. On 7 February 2022 a Conference Registrar of the Tribunal made a direction to the following effect:

    (a)By 3 March 2022 the applicant was to advise whether she would withdraw her application; and

    (b)By 17 March 2022 the Minister was to make any application regarding jurisdiction and file submissions in support.

18. The applicant did not advise that she was withdrawing her application for review and on 17 March 2022 the Minister filed submissions on jurisdiction, or more accurately, the scope of the review by the Tribunal. No submissions have been received from the applicant.

19. The Minister’s submissions identified the issue for determination as being whether the Tribunal has jurisdiction to review the delegate’s decision against the physical or enduring mental or physical incapacity criteria of s 21(3) of the Act. I agree that that is presently the question to be determined. The Minister contends that the Tribunal does not have such jurisdiction.

    The Minister’s submissions

20. The Minister submits that the provisions of s 46 of the Act require an application for Australian citizenship to be made using the correct form, as approved by the Minister. The Minister contends that “[t]here is no discretion as to the form to be used in order for an application to be considered under the particular sections of the Act”.[7]

    [7] Minister’s submissions on jurisdiction filed 17 March 2022, citing SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27.

21. The Minister notes that there are two citizenship application forms relevant to this application:

    (a)Form 1300t, which has been approved for the purposes of s 21(2) of the Act (General Eligibility); and

    (b)Form 1290, which has been approved for the purposes of sub-ss 21(3)–(8) of the Act (Other Eligibility).[8]

    [8] While the Minister makes the submission that the two forms are “approved for the purposes of” ss 21(2) and 21(3) respectively, neither Form 1300t nor Form 1290 specifies the section of the Act to which the particular form relates. There is nothing on the face of either form, except for the information sought, indicating the section of the Act to which the form relates. That is clearly a deficiency in the forms that should be addressed, particularly if the Minister is going to argue that the use of the wrong form is fatal to an application.

22. As is set out at [3] above, the applicant has, despite numerous attempts, failed to pass the citizenship test. The Minister submits, and I accept, that the evidence presented by the applicant indicates that she has not met the requirements of s 21(2) of the Act. Accordingly, the Minister says, she is not eligible for citizenship under s 21(2) of the Act. That is clearly the case. The Minister submits that it is reasonably clear, presumably from the material now provided by the applicant, that the applicant is seeking to have her application considered under the permanent or enduring physical or mental incapacity criteria set out in s 21(3) of the Act, which provides for conferral of citizenship in the absence of completion of a citizenship test. The Minister submits that the applicable application form for that application is Form 1290.

23. The Minister submits that the Tribunal cannot determine the applicant’s eligibility for citizenship under s 21(3) of the Act because the application was not made using the correct form, Form 1290, and accordingly there is no valid application which can be assessed under sub-ss 21(3)–(8) of the Act.

24. The Minister refers to a number of Tribunal decisions which he says are relevant to the present consideration. The first of these decisions, Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[9] is, in effect, applied and followed by the Tribunals in the subsequent decisions in Abdelfattah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[10] and Petrovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[11]

    [9] [2021] AATA 58.

    [10] [2021] AATA 4361.

    [11] [2021] AATA 2800.

25. The facts in Hashim were similar to those in the present case. Hashim had applied for citizenship using the Form 1300t (Hashim at [10]), however, at some stage Hashim’s legal representatives realised the mistake and emailed the Department, requesting that Hashim’s citizenship application be considered under the incapacity provisions in s 21(3) of the Act and provided evidence going to compliance with the requirements of that section of the Act.[12]

    [12] Hashim at [12].

26. Notwithstanding that Hashim had made it clear that he was actually seeking citizenship under s 21(3) and not s 21(2) of the Act, and the Department had been specifically advised that that was the case, a delegate of the Minister determined the application having regard to the general eligibility criteria under s 21(2) of the Act, presumably because the application had been made on a Form 1300t.[13]

    [13] Hashim at [18].

27. Senior Member Poljak, having reviewed SZJDS and the MZAIC v Minister for Immigration and Border Protection[14] at [25]–[26] of Hashim, found:

    25. MZAIC is distinguishable from this matter, as although both Form 1300t and Form 1290 are the prescribed forms for an application for Australian citizenship, they each concern different provisions of the Act which have distinct requirements. The forms used under the Citizenship Act fall within the circumstance in SZJDS and not in MZAIC. The conclusions of MZAIC are not applicable to this matter.

    26.  While there is an extensive degree of overlap between the information obtained by Form 1300t and Form 1290, they have a significant difference. For an applicant who has applied via Form 1300t, but then seeks to be evaluated against Form 1290, the additional information required by the Department is information that the applicant has a permanent or enduring physical or mental incapacity and (i) is not capable of understanding the nature of the application at the time; or (ii) is not capable of demonstrating a basic knowledge of the English language at the time; or (iii) is not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time. Critically, Form 1290 requires this information to be provided at the time of the application, which is when the relevant incapacity must exist.

    [14] [2016] FCAFC 25.

28. The Tribunal in Hashim went on to hold that, in the circumstances, it did not have jurisdiction to determine the eligibility of the applicant under s 21(3) of the Act.

29. The applicant in the present case has an even greater hurdle than Hashim in arguing that this Tribunal can review the decision applying the criteria of s 21(3) of the Act. In the Hashim case the applicant’s lawyers had made it clear to the Department prior to the reviewable decision being made that the applicant was actually seeking citizenship under s 21(3) of the Act notwithstanding that he had submitted his application using the form approved for an application for citizenship under s 21(2) of the Act. In the present case, not only did the applicant make the application using the form for an application for conferral of Australian citizenship under the general eligibility criteria of s 21(2) of the Act, but she had also taken steps, in fact on 13 occasions, to satisfy the requirements of sub-ss 21(2)(d), (e) and (f) of the Act by sitting the citizenship test approved under s 23A of the Act.[15] On the evidence before me at this time, it does not appear that the applicant made it clear to the Department that she was seeking conferral of citizenship on the basis of permanent or enduring physical or mental incapacity under s 21(3) of the Act prior to the reviewable decision being made on 6 September 2021.

    [15] See s 21(2A) at [9] above.

30. On the basis of the application for citizenship made by the applicant, the decision that the delegate was required to make was whether the applicant was entitled to conferral of Australian citizenship under the general eligibility criteria of s 21(2) of the Act. I can take into account evidence that was not before the original decision-maker, including events which may have occurred after the date of the original decision.[16] However, what I cannot do is to decide a different question to that which the original decision-maker was asked to decide. Chief Justice Kiefel and Keane and Nettle JJ in Frugniet at [15] observed:

    Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.

    (Footnotes omitted.)

    [16] Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521 per Hill J; Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250.

1. In the present case the application for citizenship made by the applicant was one for conferral under the general eligibility criteria of s 21(2) of the Act. The delegate made the decision refusing the applicant’s application for citizenship because the requirements of that section had not been met. It is that question, whether the requirements of s 21(2) have been met, which must be determined in the present application. As the above cases, in particular Frugniet make clear, I cannot, in reviewing the decision, change the question that was asked by the applicant in making her application for citizenship and which was addressed by the decision of which review is sought.

2. Senior Member Poljak observed at [30] of Hashim that in the same circumstances in which the applicant now finds herself:

   The most suitable course, if the applicant wishes to have his application for citizenship considered under the requirements of subsection 21(3) of the Act, would be for the applicant to re-apply for Australian citizenship using Form 1290 and to provide current medical evidence regarding his alleged incapacity.

3. While I have reached the same conclusion as the Minister as to the scope of the review that the Tribunal is to undertake, I have done so for different reasons. While it may be the case that as the circumstances evolved, the applicant could or even should have used a Form 1290 rather than a Form 1300t, my decision is not based on the wrong form having been used by the applicant, but rather on the basis that the Tribunal is limited to addressing the same question as the original decision-maker, namely whether the applicant is entitled to a conferral of Australian citizenship under s 21(2) of the Act.[17]

   [17] See Frugtniet.

4. For the reasons set out above, I am satisfied that the Tribunal does not have jurisdiction to determine the eligibility of the applicant under s 21(3) of the Act in the circumstances of present case and that the scope of the decision under review before the Tribunal is limited to the review of the decision under s 21(2) of the Act.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Associate

Dated: 21 April 2022

Date of hearing:	On the papers
Advocate for the Applicant:	Reza Zahidy
Solicitors for the Respondent:	Australian Government Solicitor