Refugee Council of Australia
Parliament House, Canberra

Submission on the Australian Citizenship Legislation Amendment (Strengthening Commitments) Bill 2018

Excluding the most vulnerable

While the Government’s stated intention is to ensure that citizenship is valued, the Bill would effectively delay or deny citizenship to the people who value citizenship most. As we discuss below, the effects of the proposed changes are likely to be felt most by those from refugee and humanitarian backgrounds.

For decades, refugee and humanitarian entrants have been more eager than any other category of migrants to become Australian citizens. Yet they face many barriers in this quest. Persecution can affect their memory and capacity to learn and settle into society. Most will come from oppressive or dysfunctional States. Many of them will have lived for years in refugee camps or in precarious limbo. Most will learn English first in Australia, and some will not be literate in their own language. Many will also be still suffering from prolonged separation from families and distress about their safety.

Real-life example: delays and anxiety

Kamal is a 40-year-old Hazara man living in Victoria. Over 22 months have passed since Kamal applied for Australian citizenship. Kamal feels deeply anxious about the fact that his family are “not safe”, living in a country where no safety is provided to the Hazara people from the threat of ISIL. Kamal has a medically diagnosed mental impairment that makes it difficult for him to retain information and pass the citizen test. Despite an application for special consideration, he still has not been informed if he is exempt from the test. Every time that Kamal has called the Department he is told that his application is being processed and he must continue to wait.

These factors will make it naturally more difficult for them to engage with the kind of formal testing that is familiar to most Australians, and to many skilled migrants. As discussed below, it will also make it difficult for them to achieve the level of ‘competent English’ required by the proposed changes. Statistics show that 8.8% of those who came as refugees or humanitarian entrants do not pass the current citizenship test, which is six times the average. Similarly, on average they needed to repeat the test 2.4 times. What is unknown is how many former refugees have given up on seeking citizenship because of fear of failing the test.

As we also discuss below, the changes in the Bill to the ‘ten-year rule’ and the powers to revoke citizenship on the basis of fraud or misrepresentation are also likely to disproportionately affect refugees.

Splitting families apart

Obtaining citizenship is especially important for people who wish to sponsor family members to come to Australia. While refugees on permanent visas can sponsor family members to come to Australia, Ministerial Direction 72 places the family members of boat arrivals at the lowest processing priority, which means that in practice it is impossible for these people to sponsor their family.Gaining citizenship is one way in which people hope to be able to sponsor their family, many of whom are at risk of persecution and death overseas.

In addition to not being able to sponsor family to come to Australia, the lack of citizenship makes it very difficult for people to visit their family overseas. RCOA heard from many refugee community members about how, without Australian citizenship, their lives would still be in danger if they were to travel to their country of origin, as they are not afforded diplomatic protection as they would once they receive citizenship. While most people are eligible for an Australian travel document, many countries do not issue visas to those with such documents. For example, Indonesia does not provide a visa to a person with an Australian travel document. One young man shared his frustrations while waiting for citizenship, saying:

My mother is very sick in Indonesia. I want to go visit. I am worried it will be the last time I will see her. If something happens, I can’t forgive myself.

Another man on a permanent refugee visa told RCOA:

I need my citizenship to bring my wife here. Without citizenship, the application is just frozen. I don’t know what the government wants from us. My depression and anxiety is increasing. I had been interpreter with US Army and I am worried about my wife’s safety. Please let this… government know about the terrible situation that we are suffering for nothing.

The harsher testing regime can also contribute to the perverse outcome of leaving families in Australia in limbo, with children becoming Australian citizens while their parent/s are not. The current testing regime has already contributed to this: a man and wife from a refugee background are both waiting (over 12 months) for their citizenship but their children are all Australian citizens. As the father put it:

I don’t understand why the government has policies that cause families to be “divorced”.

Impact on women and the stateless

Refugee community members have shared with RCOA their significant concerns about the effect of these proposed changes on women from a refugee background. Women who have made refugee journeys often shoulder additional caring responsibilities coupled with patchy access to ongoing education. Many refugee women and girls have faced sexual violence and other forms of torture and trauma. There is considerable evidence that this can impact memory, cognition and learning abilities. This has flow-on effects for learning English, sitting an important test, and being able to “demonstrate integration”.

The impact of the Bill would be to isolate women further from the broader community, and render them even more vulnerable and potentially dependent on their male partners. This would be tragically ironic, given the inclusion of gender equality as a key ‘Australian value’ in the proposed test and the concerns about domestic violence reflected in the Discussion Paper.

Real-life example: English language tuition, caring responsibilities, isolation

Martha arrived in Australia with her husband and three young children. Her education was disrupted multiple times because of the conflict in her home country and her displacement. She spent over 18 years in precarious living situations as a refugee and was subject to sexual violence.

In Australia, she finds it difficult to attend AMEP without adequate childcare arrangements. She also has to drop off and pick up her children from school and take them to appointments. Martha has had to move to an area far from many services and her community, so she feels isolated. More flexible ways to learn English and engage in the local community would help her to feel like she belongs and can start her life again.

RCOA also expresses particular concern about the impact of these proposals on stateless people. These are people who do not have another nationality or citizenship, and are therefore especially vulnerable. These would include, for example, Rohingyan refugees, one of the most persecuted minorities in the world, many of whom have not have formal education and are not literate. Under these proposals, they are likely to remain stateless in Australia indefinitely.

The new English language test

Under the provisions of the Bill, the Minister would need to be satisfied that an applicant for citizenship has ‘competent English’, rather than the current standard of possessing ‘a basic knowledge of the English language’.The Bill would empower the Minister to make a legislative instrument that determines the circumstances in which a person has ‘competent English’.

The Explanatory Memorandum does not detail the level of English that will be considered ‘competent’ English, but confirms the Discussion Paper’s statement that this would require a person to sit an examination and achieve a particular score. The current approach is to require a ‘basic’ level of English that is established in an indirect assessment of language via sitting the citizenship test.

Under existing migration laws, ‘competent’ English is defined as meaning an International English Language Testing System (IELTS) score of at least six in each category. This level of English is the level required for many postgraduate university places, and does not reflect the level of English that is needed to navigate through daily life or contribute to Australian society. Indeed, there are likely to be many current citizens, including some Australian-born citizens, who could not meet this demanding test.

The Explanatory Memorandum states that this:

amendment reflects the Government’s position that English language proficiency is essential for economic participation and promotes integration into the Australian community. It is an important creator of social cohesion and is essential to experiencing economic and social success in Australia.

Learning English is obviously important to help people integrate and participate in this economy. However, there is a clear difference between encouraging and supporting people to integrate by learning English, and excluding them from full equality within the Australian community if their English is deemed inadequate. Such exclusion undermines rather than fosters social cohesion.

The Government’s position is also inaccurate. English language proficiency may help, but is not essential to, people becoming productive and valuable citizens in our community. Many citizens who do not have ‘competent’ English contribute enormously to this country’s economy, culture and society. Projects such as the Snowy Mountain hydroelectric scheme were built by such people. There are people working on our farms and in our factories, creating enterprises, raising a new generation of citizens, and building our nation who have not and never will speak university-level English.

Excluding people from citizenship because they cannot write an essay with academic language proficiencies for university entry is both unfair, unnecessary and is discriminatory. As one person from a humanitarian background put it:

Passing this English test is more a reflection of a person’s ethnic and academic background rather than an indication of their value as a member of society.

This aspect of the reforms is the most likely to disadvantage people from refugee backgrounds, who are the most likely not to speak English upon arrival of all the migrant streams. For many, achieving an academic level of English is impossible, effectively denying them citizenship no matter how much they contribute to Australian life or however long they live here. The proposed English test has caused enormous anxiety among refugee communities already, creating yet another barrier to the increasingly elusive dream of Australian citizenship.

A group that would be disproportionately affected would be older refugees. While those over the age of 60 will be exempt from the citizenship, those who arrive later in life will typically find it more difficult to learn a higher level of English.

Another aspect that is unfair is that, while the citizenship test will require ‘competent’ English, the Adult Migrant English Program (AMEP) only supports people to achieve ‘functional’ English. Clients who have functional English or higher are not eligible to participate in AMEP.

As well, there are long-established difficulties with the existing AMEP program. RCOA has heard time and again that the initial 510 hours is simply not enough. We have therefore welcomed the Government’s introduction of an additional 490 hours for people who require more tuition. However, the increased hours do not apply to anyone who has already completed their 510 hours. This means that there will be a sufficient gap between people exiting AMEP with a functional level of English yet not being able to meet the competent level for the citizenship test. RCOA is concerned that people who obtain a functional level of English after completing AMEP will risk not ever getting citizenship.

Even with the extension of hours, there remain other issues that still need to be addressed within AMEP. These include the expertise of instructors, the lack of use of bicultural workers, and the reduction in specialist pathway courses.

Women are also more likely to be excluded by this requirement. Women often face additional barriers for learning. These can include pre-arrival torture and trauma, including as survivors of sexual violence. As well, caring responsibilities for the young and old particularly impact many women’s ability to participate fully in the AMEP classes. Many AMEP classes still do not offer accessible childcare options. While there have been changes to roll these out later this year, these changes do not accurately reflect the cost of childcare needed to attend AMEP classes.
We would also echo the concerns expressed by the Senate Standing Committee on the Scrutiny of Bills that it is inappropriate for the legislation to delegate to the Minister the power to determine the level of English required. As the Committee noted:

Competence in a particular skill is a question that can only be judged by reference to the purpose for which the skill is required. Whereas determination of English language competency, for example, for university studies may be based on evidence and clear requirements intrinsic to particular studies, the same cannot be said in relation to citizenship. Put differently, the level of English language ability a new member of the Australian community who wishes to become an Australian citizen should possess, is affected by subjective values rather than an assessment of technical requirements.

Exemptions from English language test

RCOA welcomes the Bill’s retention of the existing exemptions from the citizenship test for the English language test, including for those under 16 or over 60, and those with an ‘enduring or permanent mental or physical incapacity’.

However, there are difficulties with the current process for people that have an ‘enduring or permanent mental or physical incapacity’ to seek an exemption. RCOA has heard of several cases in which the Department of Immigration refused exemptions even where complex medical and psychiatric reports had been submitted by qualified medical professionals to support an exemption. This troubling approach to the current process leaves little comfort that the exemptions will apply to people who need them most under the proposed changes.

Other changes to citizenship tests

In 2008, an independent review of the citizenship test led by retired ambassador Richard Woolcott “received overwhelming feedback calling for a range of pathways to citizenship which do not discriminate against migrants and refugee and humanitarian entrants with poor literacy or education levels, or who may have no knowledge or experience of computers and computer based testing”. This led the committee to recommend the development of alternative pathways to citizenship to ensure citizenship remained accessible to the most vulnerable.

The result was the option of a citizenship course for those that are unable to pass the test. This has provided an alternative for people who have had difficulty acquiring English due to interrupted education, trauma-induced learning and memory difficulties and other barriers that often arise as a result of forced displacement. The Discussion Paper proposed the removal of this option, which may be done by legislative instrument. This will further exclude many vulnerable people from citizenship.

In our submission to the Discussion Paper, RCOA also opposed the proposed change to bar people from applying for at least two years after they fail the citizenship test three times. As noted above, on average those from refugee and humanitarian backgrounds take the test 2.4 times, meaning that this cap would almost certainly disadvantage this stream of migrants most. Delaying the time taken to gain citizenship will only increase their sense of insecurity and undermine their sense of safety and belonging.

Rather than removing this proposal, the Bill extends its scope. The Bill enables the Minister to determine, by legislative instrument, other eligibility criteria for sitting the test, including that a person had previously failed the test, did not comply with one of the rules of conduct, or was found to have cheated in the test. Under the legislative changes, the Bill could enable the Minister to bar a person if they had failed a citizenship test once, and there is nothing in the Bill which would require the Minister to lift the bar so that a person could re-sit the test.

The justification given in the Explanatory Memorandum for this is that allowing people to take the test an “unlimited number of times” would “reduce the integrity of the testing arrangements but is also administratively and financially burdensome for the Government”. It is difficult to see how the relatively small costs of running a third citizenship test, for the relatively few who do need it, can possibly outweigh the interests of the Australian public in enabling a person to become part of the community.

Real-life example: English-language difficulties, lack of recognition of activities

San, a Karen woman, arrived in Australia aged in her early 50s, having spent over thirty years in a refugee camp on the Thai-Burma border. San attended her 510 hours of English language tuition at AMEP but still struggles with English. She does not read or write in her native language so she finds it difficult to do the same in English. She speaks English well but lacks confidence and gets nervous about the idea of sitting a test.

San dedicates over 30 hours a week volunteering for a market garden and park rejuvenation program. She says that although she has received positive feedback about what does with the market garden, it does not count towards her Centrelink requirements, so she must do other work to fulfil this.

She continues to volunteer her time because, as she says “when I came here, I met with others. At first, I stayed home but then I came here and it feels like we are brothers and sisters working together. Because we are not able to go back to our hometown, when we come here it feels like we’re in our hometown. We plant lots of vegetables here, lots of people come on tours, and we can talk to them and improve our language as well.”

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