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Social Inclusion for Migrants and Refugees

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					     Submission of the Refugee & Immigration Legal Centre Inc. to
               the Citizenship Test Review Committee

Introduction – the Refugee & Immigration Legal Inc.

1.    The Refugee and Immigration Legal Centre (RILC) is a specialist community
      legal centre and a leading provider of free legal assistance to asylum seekers and
      disadvantaged migrants in Australia. RILC is the amalgam of the Victorian office
      of the Refugee Advice and Casework Service (RACS) and the Victorian
      Immigration Advice and Rights Centre (VIARC) which merged on 1 July 1998.
      RILC brings with it the combined experience of both organisations. Since
      inception in 1988 and 1989 respectively, the RACS office in Victoria and VIARC
      have assisted tens of thousands of asylum seekers, refugees and disadvantaged
      migrants in the community and in detention.

2.    RILC specialises in all aspects of refugee and immigration law, policy and
      practice. We also play an active role in professional training, community
      education and policy and law reform development. We are also a regular
      contributor to the public policy debate on refugee and general migration matters.

3.    In the 2006-2007 financial year, RILC gave assistance to 3,227 people. Our
      clientele largely consists of people from a wide variety of nationalities and
      cultural and linguistic backgrounds who cannot afford to pay for legal assistance
      and are often disadvantaged in other ways. Many of these of these people have
      been, are or will be affected by the Citizenship Test. Much of this work involved
      advice and/or full legal representation to review applicants at the Migration and
      Refugee Review Tribunals (“the Tribunals”). Due to funding and resource
      constraints, in recent years we have generally provided advice and assistance at
      the administrative level only.

Outline of submissions

4.    RILC welcomes both the Government‟s decision to establish the Citizenship
      Testing Review Committee (“Committee”), and the opportunity to make a
      submission to the Committee.

5.    We note that the Committee review will consider “all aspects of the content and
      operation of the citizenship test, the experiences of applicants, the impact on
      citizenship applications and any other related matters”, with a view to examining
      whether there are “ways to improve operation and effectiveness as the pathway to
      for residents to become citizens”.

6.    We further note that the focus of the inquiry is on the new test, rather than broader
      questions of whether a test is desirable in the context of eligibility for citizenship.
      Thus, we do not intend to address the broader question of the efficacy of testing.
                                           2


7.    In summary, our submissions are as follows:

      (a)    That the new citizenship is test is fundamentally flawed in both its content
             and operation. It fails to provide an effective pathway to citizenship and is
             exclusionary.

      (b)    The new test imposes unreasonable and unjust barriers to citizenship, and
             thus, barriers to inclusion, social cohesion and participation.

      (c)    The claimed need for the introduction of the new test lacked any sound
             evidentiary basis, and has not been properly demonstrated.

      (d)    In particular, the language and country knowledge requirements impose
             standards which lack a sound basis and are, in practice, set too high,
             unrealistic, and exclusionary.

      (e)    The test operates particularly unfairly on those who are amongst the most
             vulnerable and disadvantaged, such as refugees; it perpetuates and
             exacerbates the barriers to their full inclusion and equal membership of
             civil society in Australia.

      (f)    Arguably, the new test is inconsistent with Australia‟s international human
             rights obligations under the Refugees Convention and other treaties.

      (g)    The current test should be amended and replaced with a revised test
             substantially similar to the test which preceded it, with consideration of
             other measures to strengthen inclusion.

      Our full recommendations to the Committee are set out below.

Exclusionary content and operation – language, country knowledge and impact

8.    In our submission, it was not - and has never subsequently been - properly
      demonstrated why it was necessary to introduce the current test. Its introduction
      lacked any sound evidentiary basis. No cogent evidence was presented by the
      former Government that the preceding testing arrangements were deficient. No
      cogent evidenced-based materials were presented in support of why, in the
      absence of deficiency, achievement of the core aims of citizenship in Australia
      required improvement. Instead, justifications included citation of examples of
      more formal testing arrangements in other countries, such the UK and US but no
      proper explanation was offered for whether such arrangements have improved
      citizenship and if so, how; nor, why these countries provide a sound basis for
      comparison with the remarkable success of migration, multicultural cohesion and
      harmony within Australia in recent decades. Explanations of the need for change
      tended to focus on anecdotal, unsourced assertions. For example, before the
      introduction of the new test, the then Parliamentary Secretary for Immigration and
                                                 3

        Citizenship asserted that the government was concerned that citizenship was not
        being taken seriously enough or was being undervalued. A purported instance of a
        people leaving a citizenship ceremony early, before the singing of the national
        anthem, was referred to in support of this proposition.1

9.      It is our experience that the former testing arrangements, which involved an
        interview, functioned very well, and gave rise to few, if any, concerns about
        confusion or exclusion. Further, it is our experience that overwhelmingly, people
        take the grant of citizenship very seriously and value it very highly. Our
        communications with clients and their communities, including through attendance
        at citizenship ceremonies, is concrete confirmation of this.

10.     Further, we note that the Australian Citizenship Council Review in 2000,
        Australian Citizenship for a New Century, recommended retention of the „basic‟
        English language requirement and interview-based testing arrangements, having
        conducted an evidence-based inquiry.

11.     While RILC generally supports the establishment of objective, clear and known
        criteria for the assessment of eligibility for citizenship, we are concerned that
        current arrangements lack sufficient clarity and transparency. For example, the
        questions are not publicly available, and there is no guidance in the – voluminous
        - test resource booklet, Becoming an Australian Citizen (“the Booklet”) as to the
        relative importance, if any, of the matters contained in it. These omissions are
        particularly serious given that they relate to the necessary gateway to meeting
        standards of knowledge set in law by Parliament. The substance of matters
        devised to effect Parliament‟s will should be open to public scrutiny. Arguably,
        the case for transparency is even greater when it relates to implementation of laws
        which concern fundamental rights; particularly the right to participate in the
        democratic process, including election of those that make these laws. Further, as
        mentioned below, it is unclear what the empirical basis is for both the nature of
        information in the booklet, and the relevance of the test questions in relation to
        the purposes which they are said to be designed to meet.

12.     In our submission, the current test imposes unreasonable barriers on attainment of
        citizenship due to the nature of its language and knowledge requirements. In
        relation to language, in a nutshell, our principal concerns are that:

            (a) In our experience, many people who are eligible for and wish to apply for
                citizenship possess only a „basic knowledge‟ of English.

            (b) The level of English required to prepare for and pass the test imposes an
                unreasonable hurdle for many people, due to the fact that it requires a
                language proficiency which is at a standard higher than a „basic
                knowledge of the English language‟.

1
 Interview with Andrew Robb and Laurie Oakes, Sunday Program, Channel Television, transcript
accessible at: http://sunday.ninemsn.com.au/sunday/political_transcripts/article_2071.asp
                                                     4


             (c) Linguistics experts have assessed the Booklet, which is the required
                 preparatory reading for sitting the test, as “a difficult text that cannot be
                 accessed by a reader with basic English”.2 It is questionable whether the
                 nature and complexity of the Booklet lends itself to conformity with the
                 „basic‟ English language requirement.3

             (d) In light of the expert linguistic evidence mentioned above, it is our legal
                 opinion that the test is legally invalid. This is because the new test does
                 not appear to be in conformity with the type of test which the Minister is
                 empowered to impose pursuant to the Australian Citizenship Act 2007.
                 Sub-section 23A(1) of that Act requires the Minister “must approve a
                 test”, which, in turn, a person must successfully complete in order to be
                 granted citizenship. This requirement to pass the test is directly connected
                 with the requirement to possess an adequate knowledge of the English
                 language. The test appears to require successful completion of a test set
                 at a standard substantially higher than that required by the Act, namely,
                 „basic‟ English. The test requires amendment given that passing of the
                 test is a necessary criterion to be eligible for Australian citizenship and it
                 appears, on the evidence, to be currently invalid.

             (e) The likelihood of legal invalidity is not a mere esoteric or technical legal
                 point. Rather, it goes to the heart of the fundamentally flawed nature of the
                 test in so far as it appears to set the bar in relation to language proficiency
                 higher than was permitted by Parliament. These standards have an
                 important and controversial history in Australia, and serious implications
                 for inclusion or otherwise. Serious issues and evidence were raised in
                 relation to these matters before the introduction of the current test.4 In our
                 experience, many Australian residents who are eligible for and want to
                 apply for citizenship do not possess more than basic English language
                 proficiency.

             (f) The new test imposes a requirement for literacy which did not previously
                 exist under the former interview-based test. This is a matter of serious
                 concern in both principle and practice. Given low levels of literacy

2
  See: „Assessment of the language level of the August 2007 draft of the resource booklet ‟Becoming an
Australian citizen‟, prepared by Prof Ingrid Piller, Professor of Applied Linguistics, Macquarie University
and Professor Tim McNamara, Professor of Applied Linguistics, University of Melbourne, 2007 for the
Federation of Ethnic Communities Councils of Australia.
3
  See for example, Question Taken on Notice, Senate Legal and Constitutional Affairs Committee Inquiry
Hearing into the Australian Citizenship Amendment (Citizenship Testing) Bill 2007: 16 July 2007-
Question (8 written) - Senator Trood (Written) asked: Does the Department believe that a person will only
be required to possess a basic level of English to pass the proposed citizenship test? If so, why? Answer:
The department is putting in place a number of measures to help ensure people will only be required to
possess a basic level of English language skills to pass the test. The resource book on which the
citizenship test will be based is being written in as basic a level of English as the complexity of the
matters it covers will allow. [emphasis and italics added]
4
  Ibid.
                                            5

             amongst many migrants, and particularly refugees, in our experience, this
             requirement is likely to exclude many people from seeking to sit or being
             able to pass the test. Further, in light of the significant level of low literacy
             in Australian society, there is the risk that the test has and will operate in a
             discriminatory fashion which denies access to some on the basis of
             literacy and/or whether they were born in Australia. Citizenship
             qualification for those born in Australia does not require passing a test, yet
             a higher than basic standard of literacy is required for those applying for
             citizenship – a standard which is higher than that which it appears many
             other Australian citizens do not have. This would appear to offend against
             the principles of equality and non-discrimination, which are golden
             threads of good public policy and law in Australia.

         (g) Further, for similar reasons of equity and access, we oppose the
             unacceptably restrictive nature of measures to provide assistance to some
             people who may have difficulties with the literacy requirements. It is
             unclear why meaningful assistance is not available to all Australian
             residents who require it. To deny such help would appear inconsistent with
             core aims of inclusion and participation.

13.   In relation to the „knowledge‟ requirement, in a nutshell, our principal concerns
      are that:

         (a) The test establishes a new and more onerous requirement of „knowledge‟,
             which includes not only adequate knowledge of the responsibilities and
             privileges of Australian citizenship, but also requires the far broader and
             ill-defined „adequate knowledge of Australia‟. The question is whether
             this new benchmark is necessary in order to test eligibility for citizenship
             and enjoyment of its rights and responsibilities, and if so, on what basis. In
             our submission, there is no clear or compelling answer to this question.
             The need has not been demonstrated; the relationship between the aims
             and undertaking remain completely unclear and not necessarily connected.

         (b) Further, it imposes a substantial additional barrier for many subject to the
             requirement, which is manifestly unreasonable and unjust. For example, it
             is highly questionable whether much of the information in the Booklet
             would be known by many or most Australian citizens. In many respects, it
             is akin to the study of a High School subject. Again, serious questions of
             equality arise.

         (c) In addition, a related question arises as to why a failure to have sufficient
             knowledge of matters in the Booklet should be considered so serious, as
             appears to be the assumption, for someone to be considered unfit to be an
             Australian citizen. There is a distinct lack of evidence as to why these
             matters are considered necessary for eligibility. Experience and logic
             dictate that an ability to have achieved a mastery of matters such as the
             name of the first Prime Minister, Australia‟s floral emblems or Australian
                                                  6

                 Nobel Laureates, is unlikely to seriously impede a person‟s ability to fully
                 participate in civil society in Australia.

14.     In our submission, there is great worth in developing improved methods and
        mechanisms for education of would-be and newly-granted citizens about
        Australian citizenship, culture and society. However, it is not apparent that
        eligibility assessments, such as the current test, are an appropriate way to do so.
        Rather, they tend to operate at fundamental odds with core aims such as inclusion
        and participation. We have recommended consideration of some alternatives
        below.

15.     Concerns that RILC and others expressed about the potentially counterproductive
        and exclusionary nature of the test before its introduction appear to have thus far
        been borne out by the preliminary evidence since its introduction in October
        2007. In particular, as addressed more fully below, it is those who are most likely
        to be disadvantaged and vulnerable, such as refugee or humanitarian entrants,
        who have experienced most difficulties with the passing the test.5 We note that
        over 500 such people have failed the test. In addition, we note there has been a
        sharp decline in applications for citizenship, since the new testing regime was
        introduced. This is clearly inconsistent with policy goals of encouraging inclusion
        and participation. While it is difficult to precisely identify the causes, it would
        appear that a significant factor may be confusion or fear about the test. Certainly
        RILC is directly aware of such an emerging pattern through discussions with
        clients. For example, we were recently became aware that a number of Afghan
        refugees who have been living in Australia for over seven years, who have been
        gainfully employed in Australia for many years, have more than functional
        English and participate in wide range of activities within their local communities,
        feel too frightened to sit the test for fear of failing. Humiliation was cited as one
        of the key factors in this fear.

16.     From our experience in assisting clients of the Refugee and Immigration Legal
        Centre, it is clear that for many refugees who are granted permanent Protection
        Visas, or other vulnerable overseas citizens granted permanent visas in Australia,
        achieving the status of permanent resident is only one step in the process of
        recovering from the trauma or disadvantage they have suffered in the past.
        Becoming an Australian citizen is a crucial further step for them in the recovery
        process. Citizenship offers them a form of protection that is both practical and
        symbolic. It affords them a level of security they have often never been afforded
        before in their lives. Clients talk of finally feeling embraced and welcomed into
        the Australian community. For many, it is the sense of finally being granted an
        equal opportunity to participate in a society that is significant. The cornerstone of
        refugee protection is providing a „durable solution‟ for refugees and a
        fundamental component of a „durable solution‟ for a refugee is to be able to live
        with full human dignity as a free and equal participant in civil society.
5
 500 refugee/humanitarian entrants, representing 19%, have failed between October 2007 and March 2008.
See Australian Citizenship Test Snapshot Report April 2008, accessible via
http://www.citizenship.gov.au/_pdf/citztest-snapshot-report-2008-april.pdf
                                                     7


17.        Given that many refugees are effectively stateless, or by their very refugee status,
           denied the full protection to which a citizen of a country is entitled, the sense of
           security, protection and full participation gained by citizenship is often crucial to
           their full recovery from the harm they or their families suffered or feared
           suffering which led to their being found to be refugees and, further, to their ability
           to live with full respect and dignity in their country of refuge. As stated by leading
           international refugee law scholar, Professor James Hathaway, “[b]ecoming a
           citizen bespeaks a qualitatively distinct level of acceptance by the refugee of the
           host state … By granting the refugee the right to participate in the public life of
           the state, naturalization eliminates the most profound gap in the rights otherwise
           available to refugees …”6 Most refugees are strongly aware of this “gap” and only
           feel fully secure in Australia once it is closed. For example, one of most severe
           aspects of the past persecution suffered by the eight Burmese Rohingya men held
           on Nauru under the „Pacific Solution‟ last year, on whose behalf RILC acted, was
           the complete denial of citizenship to them by the Burmese government, which
           was inextricably connected to a number of serious, systematic deprivations of
           human rights. An essential aim for these men was to seek safety and security in a
           country where they would have equal access and opportunity and be able to
           exercise full rights in a democracy. This would provide a cure to statelessness.

18.        Equally important to those refugees seeking to reunite with family members who
           have also fled their home country to a third country is the ability as an Australian
           citizen to travel overseas on an Australian passport; that is, with the full protection
           of the Australian government. While refugees who are not yet Australian citizens
           can travel on an Australian Certificate of Identity travel document, this document
           is not accepted in some countries, resulting in either the refugee being unable to
           enter that country to reunite with family members, or, worse, in the refugee being
           turned away at the border and having to return to Australia. Given the past torture
           and trauma many refugees have suffered, traveling with such uncertainty may be
           too distressing to contemplate. Access to Australian citizenship and the
           consequent right to travel overseas under the protection of the Australian
           government is a crucial prerequisite to reunion with family members overseas.

19.        Yet refugees and disadvantaged migrants already face many significant structural
           hurdles to being able to fully access and participate in all elements of civil
           society. The barriers are cultural, linguistic and in many cases are a result of lack
           of education to the point of illiteracy in any language. The need for recovery
           from torture and trauma are also often further hurdles for individual refugees to
           overcome, as well as continuing separation from family and friends.

20.        We submit that the test in its current form creates a further significant – and
           unnecessary - hurdle for any refugee or disadvantaged migrant to overcome. As
           mentioned above, a higher proportion of refugees are failing the test than other


6   Hathaway J, “The Rights of Refugees under International Law”, Cambridge Press 2005, at p 980.
                                                   8

        groups.7 The unnecessarily high level of English language written comprehension
        skills required to undertake the test no doubt contributes to this.

21.     The nature of the test in its current form, as an impersonal computerized multiple
        choice exam, also operates as a further intimidating impediment to the inclusion
        of refugees and disadvantaged migrants in civil society. In these ways, the test
        perpetuates and exacerbates the barriers to full and equal membership of civil
        society for refugees and disadvantaged migrants in Australia.

22.     Another issue of concern is whether the test in its current form may operate in a
        way that runs counter to Australia‟s obligations to refugees under Article 34 of
        the Refugees Convention. Article 34 requires that a state party to the Convention
        “shall as far as possible facilitate the … naturalisation of refugees .. [and] … in
        particular make every effort to expedite naturalisation proceedings” (italics
        added). While it is acknowledged Article 34 does not require that a government
        simply waive or reduce substantive requirements for the acquisition of citizenship
        by refugees, the Article is positive in nature and so does require that a government
        actively assist refugees in obtaining citizenship.8 The test in its current form does
        not facilitate or assist with the naturalization of refugees in Australia. As stated
        above, we argue it routinely does the reverse: it impedes that process.

23.     We also are concerned that the test in its current form may operate in a way that is
        inconsistent with international human rights treat obligations of non-
        discriminatory treatment, as contained in the International Convention on the
        Elimination of all forms of Racial Discrimination and Article 26 of the
        International Covenant on Civil and Political Rights.9 We are particularly
        concerned about the potential for the test in its current form to be disproportionate
        to the aim sought to be achieved by the test and not based on reasonable and
        objective criteria.

24.     Further, the only exemptions currently provided for in relation to the test relate to
        age and disabilities. These limited exemptions may have been sufficient when the
        assessing officer was able to exercise some discretion in relation to a test
        undertaken with greater informality, as was the case before the test was
        introduced. While the test has its current formalized and formulaic structure, the
        criteria for exemptions should be broadened, in order to ensure that refugees and
        disadvantaged migrants are not prevented from taking their full place in
        Australian society. The current limited exemptions also arguably place Australia
        in beach of Article 34 of the Refugees Convention.

7
  See Australian Citizenship Test Snapshot Report April 2008, accessible via
http://www.citizenship.gov.au/_pdf/citztest-snapshot-report-2008-april.pdf
8
  Ibid, at p 990.
9
  See: Submission of the Human Rights and Equal Opportunity Commission to the Legal And
Constitutional Affairs Committee on the Australian Citizenship Amendment (Citizenship Testing Bill)
2007, 6 July 2007, accessed at:
http://www.hreoc.gov.au/legal/submissions/2007/aust_citizenship_amendment.html .
                                            9

RILC’s recommendations

25.   We recommend that the Committee advise the government:

         (a) That the test in its current form is fundamentally flawed and does not
             allow full, fair and effective, inclusion and participation in Australian civil
             society;

         (b) To give urgent consideration of amendment of the test given its likely
             invalidity under Australian law and inconsistency with international law;

         (c) That, while the test remains in its current form, the exemptions be
             broadened to ensure no person is unfairly prevented from gaining full
             membership of Australian civil society;

         (d) To formulate and implement a revised test in a form substantially similar
             to the test before the introduction of the current test, which:

                 o       Tests basic knowledge of English;
                 o       Does not test literacy;
                 o       Tests knowledge of Australia only to the degree necessary -
                         based on evidence - for participation in a civil society, which
                         should focus on rights and responsibilities of citizenship;
                 o       Is conducted in person, not by computer; and
                 o       Requires attendance at a Citizenship Seminar before attendance
                         at the interview test (see further below); and

         (e) To investigate development of broader initiatives to encourage and
             facilitate people seeking to obtain Australian citizenship and the
             promotion of inclusion and participation as citizens in Australian society.

26.   Further to our recommendation concerning a revised form of test, we propose one
      way of assessing a person‟s readiness to become an Australian citizen would be
      compulsory attendance at a Citizenship Seminar about the rights and
      responsibilities of Australian citizenship, including issues about participation in
      and aspects of life in Australian civil society more generally. A simple booklet
      and DVD outlining the content of the seminar would be provided when the
      appointment for the seminar is made, which the person can use to prepare for the
      seminar and subsequent interview. The seminar would be conducted by a trained
      and qualified officer of the Australian Citizenship Office. After the seminar, each
      person would then attend a short interview with the officer who has conducted the
      seminar (or other officers in attendance), to answer questions to demonstrate the
      person‟s understanding of the matters discussed in the seminar. On the basis of
      the person‟s participation at the seminar, and their responses at interview, the
      officer would then decide whether the person possesses adequate English and
      knowledge of the rights and responsibilities of Australia citizenship and Australia.
                                                   10

27.     Interpreters would be provided for the seminar and interviews. Each seminar
        could be for one or one and a half hours. If six people attended each seminar, the
        officer could then undertake six 10 minute interviews in the hour after the
        seminar. An assessment of this sort is far more likely to result in an accurate,
        informed and sympathetic assessment of a person‟s individual capacity to assume
        their full role as an Australian citizen.

28.     We also suggest the need for broader initiatives to encourage and facilitate people
        seeking to obtain Australian citizenship, and the promotion of inclusion and
        participation as citizens in Australian society. Citizenship is of profound
        significance in both symbolic and practical terms in the lives of people and their
        communities. It provides an important pathway to participation. Citizenship
        involves mutual engagement in relation to common rights and responsibilities,
        and ultimately, the terms of reference by which we live together as Australians.
        Recently, the new test has introduced an exclusionary and punitive element to
        citizenship. Citizenship can be made more meaningful and inclusive to people and
        their communities, and the nation.

29.     One idea to address this issue is to establish Citizenship Workshops in local
        communities throughout Australia. Participation would be voluntary, and actively
        promoted and encouraged by targeted strategies at local, state/territory and
        national level, including leading and prominent Australians as „Citizenship
        Ambassadors‟. Information would be produced by the Federal Government in the
        form of training kits for Volunteers, and information for dissemination in the form
        of booklets and multimedia materials (e.g., DVDs) in English and translations in
        other community languages. Materials would address issues related to the rights
        and responsibilities of Australia citizenship and Australia. Workshops would be
        operated by volunteers, and designed for ready adaption to dialogue relevant to
        the daily lives of people and their communities.10


Refugee & Immigration Legal Centre Inc.
June 2008



10
   This idea was raised at the 2020 Summit and would be consistent with one of the ideas in the Final
Report of the Summit, which states: “6.99 Run citizenship workshops in local communities to bring alive
the idea of social inclusion and citizenship in local areas”, as well the broader and related idea of:
“Recently arrived migrants, refugees and asylum seekers are particularly vulnerable to various kinds of
disadvantage. A comprehensive, long-term national resettlement strategy for them should be delivered
through their local communities.” (Initial Report) at:
http://www.australia2020.gov.au/docs/2020_Summit_initial_report.pdf; and “… the development of a
coordinated Migrant and Refugee Resettlement Strategy, which could include a residential induction
program covering basic English, culture and values, an introduction to Australian institutions such as
banks and the health system, and „how to‟s‟, such as „how to get a job‟ and „how to find accommodation‟, p
174.See: Australia 2020 Summit – Final Report, at:
http://www.australia2020.gov.au/final_report/index.cfm

				
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