FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The proceeding be remitted to the Administrative Appeals Tribunal for determination according to law.

3.    There be no order as to costs.

THE COURT NOTES THAT:

On remittal to the Administrative Appeals Tribunal, the Minister will consent to an adjournment of the hearing for the purposes of providing the respondent an opportunity to sit a further Standard Test approved under s 23A of the Australian Citizenship Act 2007 (Cth) before the determination of his application to that Tribunal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    This is an appeal, on a question of law, brought by the Minister under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal made on 11 July 2018: Re Zadeh and Minister for Home Affairs [2018] AATA 2145.

Background

2    The background to the present appeal was briefly set out in an interlocutory judgment delivered on 19 September 2018: Minister for Home Affairs v Zadeh [2018] FCA 1452. Paragraphs [1] to [4] are repeated for convenience:

1.    The respondent, Mr Zadeh, is an Iranian immigrant. He arrived in Australia with his wife and children in 2011. His wife and children later acquired Australian citizenship. Mr Zadeh is a permanent resident. He applied to become an Australian citizen in April 2016.

2.    Section 21(2) of the Australian Citizenship Act 2007 (Cth) prescribes certain conditions of which the Minister must be satisfied before a person who applies for Australian citizenship is eligible to become an Australian citizen. They include that the applicant understands the nature of the application, has a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

3.    Subsection 21(2A) of the Citizenship Act provides that those conditions are taken to be satisfied only if the Minister is satisfied that the applicant has sat a test approved in a determination under s 23A, that he or she was eligible to sit the test, and that he or she started and successfully completed the test within the relevant test period.

4.    The current determination made under s 23A is “IMMI 11/088” (Ministerial Determination), which approves a “Standard Test” for the purposes of s 21(2A). Paragraph 10 relevantly defines successful completion of the Standard Test as giving correct answers to at least 75% of the test questions.

3    Mr Zadeh sat the “Standard Test” approved by Ministerial Determination “IMMI 11/08” seven times on four separate occasions: once on 6 November 2017, once on 13 November 2017, twice on 28 November 2017 and three times on 15 January 2018. Paragraph 17 of the Ministerial Determination provided:

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.

4    Each time he sat the Standard Test, Mr Zadeh failed to achieve the 75% pass mark required. His highest score was 13/20.

5    On 19 January 2018, a delegate of the Minister refused Mr Zadeh’s application for Australian citizenship.

6    On 24 January 2018, Mr Zadeh applied to the Tribunal for a review of the delegate’s decision.

7    On 11 July 2018, the Tribunal acceded to Mr Zadeh’s application, set aside the delegate’s decision and ordered that the matter be remitted to the Minister with a direction that Mr Zadeh be offered his next test in a month’s time. The direction made by the Tribunal was:

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.

8    On 7 August 2018, the Minister instituted an appeal from the decision of the Tribunal by way of a notice of appeal filed pursuant to r 33.12 of the Federal Court Rules 2011 (Cth). The notice of appeal sought an interlocutory order under s 44A of the AAT Act staying the direction of the Tribunal pending determination of the appeal. The Minister formalised his application for interlocutory relief by filing an interlocutory application on 13 August 2018.

9    The interlocutory application was listed before me as duty judge on 19 September 2018. On that occasion, I made orders under s 44A(2)(a) of the AAT Act staying the direction of the Tribunal until the determination of the present appeal.

10    The orders made on 19 September 2018 included the following notation:

The orders above were made on the undertaking by the Minister that, if successful on his appeal:

1.     he would seek an order that the proceedings be remitted to the Administrative Appeals Tribunal to be determined according to law; and

2.     on any remittal, he would consent to an adjournment of the hearing for the purposes of providing the respondent an opportunity to sit a further standard test approved under s 23A of the Australian Citizenship Act 2007 (Cth) before the determination of his application to that Tribunal.

The STATUTORY SCHEME

11    The question of law arising on the appeal is the proper construction of paragraph 17 of the Ministerial Determination made under s 23A of the Australian Citizenship Act 2007 (Cth).

12    The Ministerial Determination approved three tests for the conferral of Australian citizenship for the purposes of s 21(2A).

13    Part 2 of the Citizenship Act deals with acquisition of Australian citizenship. Division 1 deals with automatic acquisition of citizenship. Division 2 deals with citizenship by application. Subdivision A of Div 2 deals with citizenship by descent. Subdivision B deals with “citizenship by conferral”. That is the subdivision of present relevance. It is not necessary to mention the other subdivisions.

14    The “simplified outline” of Subdiv B indicates that there are seven situations in which “you” may be eligible to become an Australian citizen – see: s 19G. It is the first which is presently relevant:

[Y]ou satisfy the general eligibility criteria and have successfully completed a citizenship test: see s 21(2) and (2A); …

15    Section 20 provides:

A person becomes an Australian citizen under this Subdivision if:

(a)      the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

(b)      if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.

16    Section 21(1), which is in Subdiv B of Div 2 of Pt 2, provides that a person may make an application to the Minister to become an Australian citizen by conferral. A person becomes an Australian citizen by conferral if, relevantly, the Minister decides to approve the person becoming an Australian citizen: ss 20(a), 24(1). The Minister must not approve a person becoming an Australian citizen unless, relevantly, the person satisfies the eligibility criteria under s 21(2).

17    Subsections 21(2) and (2A) provide the “general eligibility” criteria for Australian citizenship by conferral. Section 21(2) relevantly provides:

A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

 (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 …

18    Section 21(2A) provides:

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.

19    Section 23A(1) requires the Minister, by written determination, to approve a test for the purposes of s 21(2A).

20    Section 23A(7) provides that a determination made under s 23A(1) “is not a legislative instrument”.

21    On 1 March 2012, the then Minister revoked the previous written determination under s 23A and made Ministerial Determination IMMI 11/088, approving three citizenship tests for the purposes of s 21(2A): a “Standard Test”, an “Assisted Test” and a “Course-Based Test”.

22    The Ministerial Determination includes three attachments:

(1)    Attachment 1 sets out the eligibility criteria for sitting the Standard Test, the Assisted Test and the Course-Based Test, and specifies what amounts to successful completion of each test.

(2)    Attachment 2 sets out the questions and multiple choice answers from which the Standard Test and Assisted Test questions will be drawn.

(3)    Attachment 3 sets out the assessment tasks and answers for the Course-Based Test.

23    Part A of Attachment 1 comprises paragraphs 1 to 19 of the Ministerial Determination. Paragraph 1 identifies the criteria a person must satisfy to be eligible to sit the Standard Test. The test is described at paragraphs 2 to 5. Paragraphs 6 and 7 deal with the time limit to sit the test. Applicants are given a maximum of 45 minutes to complete the test. Paragraphs 8 and 9 deal with assistance with sitting the test. Paragraphs 10 to 13 identify how the Standard Test is successfully completed. Paragraph 10 provides that applicants must answer correctly at least 75 percent of the test questions within the prescribed time period. Paragraph 14 notes that the test must be conducted “closed book”. Paragraphs 15 and 16 deal with a failure to comply with rules of conduct while sitting the test. Paragraphs 17 and 18 are as follows:

No Limits to the Number of Standard Test Re-sits

17.    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.

18.    If a person has commenced a Course-Based Test, the person may not be able to sit a Standard Test.

24    It was common ground that Mr Zadeh had not commenced a Course-Based Test.

25    Paragraph 19 provides that a “successful test result will be valid indefinitely”.

26    Part B deals with the “Assisted Test”. Paragraph 20 sets out the eligibility criteria for that test. A person must satisfy the eligibility criteria for the Standard Test and also have either “low literacy skills” as measured in the way set out in the paragraph or “a physical or cognitive impairment” that prevents them from sitting the Standard Test even with the assistance described in paragraph 6 of Part A.

27    Part C deals with the “Course-Based Test”. The eligibility criteria for a “Course-Based Test” are contained in paragraph 36 and include satisfying the eligibility criteria for sitting the Standard Test, but failing the Standard Test or Assisted Test, or a combination of both, three or more times. Paragraph 48 provides:

Except in exceptional circumstances, a person may only undertake the Course-Based Test once per each application for citizenship. A claim of “exceptional circumstances” must be supported by evidence and will be decided by an officer of the Department.

28    The combined effect of subss 21(2)(d), (e), (f) and (2A) of the Citizenship Act, read with para 10 of the Ministerial Determination, is that Mr Zadeh needed to obtain a mark of at least 75 percent on a Standard Test in order to be eligible for Australian citizenship.

The Tribunal Decision

29    The Tribunal noted that Mr Zadeh desired again to attempt to pass the Standard Test. Referring to paragraph 17 of the Ministerial Determination, the Tribunal stated:

8.    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.

9.     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.

30    As noted above, the Tribunal made the following direction:

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.

the appeal

31    The notice of appeal identified the relevant question of law for the purposes of s 44 of the AAT Act in the following way:

Whether on its proper construction Ministerial Determination IMMI 11/088 (Determination) has the effect that where an application for citizenship by conferral has been made under s 21(1) of the Australian Citizenship Act 2007 (Act), and where the applicant is eligible to sit the ‘Standard Test’ prescribed by Part A of the Determination, paragraph 17 of the Determination has the effect that the citizenship application cannot be determined under s 24 of the Act until the applicant has taken the ‘Standard Test’ as many times as the applicant wishes.

32    The Minister relied on a single ground of appeal in the following terms:

The Tribunal erred in construing the Determination, and giving a direction consistent with this construction, such that paragraph 17 of the Determination prevents a decision-maker from making a determination under s 24 of the Act until an applicant has taken the ‘Standard Test’ as many times as the applicant wishes. That construction is inconsistent with, and stultifies, the scheme of the Act, which provides that applications made under s 21(1) of the Act must be determined under s 24 of the Act. The Tribunal ought to have construed the Determination such that it is within the discretion of the decision-maker to decide when to bring the application to a determination.

33    The Tribunal considered that paragraph 17 gave Mr Zadeh a “right” to sit the test as many times as he wished: T[8], T[11]. The Tribunal considered paragraph 17 operated to prevent the Minister from deciding an application whilst ever Mr Zadeh wanted to sit another test. The direction given by the Tribunal has the effect of requiring the Minister not to determine Mr Zadeh’s citizenship application whilst ever Mr Zadeh requests to sit another test. This has the consequence that Mr Zadeh’s application might never be determined. Such an unlikely result would need to arise plainly from the words employed in the Ministerial Determination.

34    The Tribunal misconstrued paragraph 17 of the Ministerial Determination. Paragraph 17 provides simply that “[t]here 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”. Paragraph 17 does not go further than what it expressly states. It does not contain an express or implicit requirement that the Minister be prevented from deciding an application because an applicant has asked to re-sit the Standard Test. It does not, expressly or implicitly, provide a “right” to an applicant to re-sit the Standard Test as many times as the applicant wishes before the application is decided.

35    The Tribunal’s construction is not supported by the statutory scheme or by the terms of the Ministerial Determination read as a whole.

36    The statutory scheme requires the Minister either to approve or refuse an application (s 24 of the Citizenship Act) and contains no indication that the application process might be kept on foot at the election of an applicant by the applicant exercising a “right” under a Ministerial Determination to keep re-sitting the Standard Test.

37    As to the Ministerial Determination, a person who has difficulty passing the Standard Test (or Assisted Test) might attempt, but only once per application, the Course-Based Test: paragraphs 35 and 48. There is nothing about the scheme established by the Ministerial Determination which suggests it was intended that applicants could keep the application process going indefinitely by declining to undertake a Course-Based Test or by insisting on re-sitting the Standard Test as many times as they choose before the application is decided. An applicant may ask to re-sit the Standard Test as many times as he or she wishes and the applicant may re-sit that test any number of times whilst the application remains on foot. That does not prevent the Minister from deciding a citizenship application at a point in time when an applicant has asked to, or wishes to, re-sit the test.

CONCLUSION

38    The appeal must be allowed. The proceedings should be remitted to the Administrative Appeals Tribunal to be determined according to law.

39    It is noted that, on remittal, the Minister will consent to an adjournment of the hearing for the purpose of providing the respondent an opportunity to sit a further Standard Test approved under s 23A of the Citizenship Act before the determination of his application to that Tribunal.

40    The Minister applied for costs of the appeal. Taking into account the general significance of the matter to the Minister, the unfortunate position in which Mr Zadeh finds himself as a consequence of the events as they have transpired, the fact that the stay was granted with the effect that Mr Zadeh did not sit another test as contemplated by the Tribunal, and the submissions that Mr Zadeh made today and on the earlier interlocutory application as to his difficult financial circumstances, I make no order for costs.

Associate:

Dated:    22 November 2018