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Ombudsman reports on citizenship delays

Authors: Liam Rasmussen and Sonia Campanaro

What is the government doing about the prolonged delays experienced by former refugees applying for citizenship? This is an issue that the Refugee Council of Australia has reported on and continues to work on.

In December 2017, the Commonwealth Ombudsman published a report on its own motion investigation into the issue, Delays in processing of applications for Australian Citizenship by conferral. The investigation was launched in response to many complaints about the long delays in processing citizenship applications.

Background

A person applying to become an Australian citizen must satisfy the following requirements:

  • Be over 18 years old when applying
  • Be a permanent resident who satisfies general residence requirements
  • Understand the application
  • Have basic English language skills
  • Have adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship
  • Be likely to reside, or continue to reside, in Australia, and
  • Be a person of good character.

Importantly, the Australian Citizenship Act states that the Minister cannot approve a person’s application for Australian citizenship unless the Minister is satisfied of the person’s identity.

The Ombudsman’s report made clear there were systemic problems in the processing of these applications. Some applications had been in the queue for over 18 months without having even been referred for identity and integrity checks.

The investigation

The Ombudsman’s investigation looked at four key areas

  • The Department’s implementation of Australian National Audit Office (ANAO) recommendations from a 2014-15 performance audit
  • Identifying the cohort which requires enhanced identity and integrity checks
  • Other measures taken to improve assessment of identity
  • Deciding what is a reasonable time period for making a decision on an application

The report noted that there had been a policy shift with an increased focus on the identity of applicants and concerns about the risk of identity fraud. This change in thinking is reflected in the Department’s view that it is easier to refuse to grant citizenship than to revoke it later.

Implementation of ANAO recommendations

Some of the delays in processing were the result of implementing recommendations made by the ANAO in a performance audit. The Ombudsman oncluded that the Department had made significant progress in implementing the ANAO’s recommendations. These recommendations mostly focused on the Department establishing guidelines for decision-making on identity, identifying ‘risk’ assessments for decisions, and providing more information about applicants to the citizenship ceremony officer.

In the Ombudsman’s view, the Department made progress in responding to those recommendations. However, more could be done to make decisions within a reasonable time, while also reducing the risk of identity fraud.

Enhanced identity and integrity checks

The Department referred to applications that needed more integrity and identity checks as ‘assurance cases’. Those groups which had been identified as requiring further checks were:

  • Applicants with freedom of information name/date of birth/place of birth changes
  • People from Afghanistan
  • People who had come by boat seeking asylum
  • People who had come by plane without a valid visa
  • People who were unaccompanied humanitarian arrivals
  • People who are orphans/last remaining relatives
  • People who are humanitarian cases sponsored by a person who had come by boat seeking asylum
  • People who are family cases sponsored by a person on a boat seeking asylum.

The Department provided the Ombudsman with the number of Assurance Cases that had been on-hand for longer than 80 days. The oldest assurance case had been on-hand for four years and five months, though it was said to be approaching a final decision.

The Department had brought in more staff to handle the greater focus on the integrity of its decisions. Their strategy is to train their own staff to deal with identity issues and refer more complex cases to Identity Business Support. It is unclear if this will reduce delays.

Other changes

Other measures introduced by the Department may also have resulted in delays. These include:

  • Changes to better scrutinise applications in terms of security
  • Changes to application forms
  • Trialling of biometric facial matching technology
  • Using specialist identity analysts, and
  • Training decision-makers to improve their ability to assess identity.

A reasonable time to decide

The report addressed the issue of what is a reasonable time for the Department to take in processing citizenship applications. They referred to the cases brought with the support of the Refugee Council of Australia of two people who had been waiting for 18 and 23 months for decisions. The judgment in both cases was that there had been unreasonable delay by the Department in deciding the citizenship applications.

This decision was based in part on the fact that the Department had not been able to justify why applications had spent so long without any processing being done. The judge estimated that a reasonable time for processing the applications was between six and seven months from the time the citizenship test was taken.

The Ombudsman appeared to approve of the general guidelines from the Federal Court decisions. In contrast, the Department stressed the great workload involved in processing applications and the limited number of staff. The Ombudsman, however, suggested that the Department should review the judgments in those cases as to what was a reasonable time.

Assessment of case studies

As part of its investigation, the Ombudsman considered 98 complaints on the issue. Some complaints revealed incidents where the Department unlawfully breached the Citizenship Act by delaying decision-making without a legislative basis. For example, the Department delayed an applicant from making the pledge of commitment for more than the 12 months permitted under the Australian Citizenship Act.

These examples appear to reflect a habit of staff taking time to consult, wait for further evidence and refer to other experts in complex cases. In other words, staff may be putting off making a decision because they are worried about making the wrong decision.

The Ombudsman considers that these examples are lessons for the Department in improving their processes. As well, the Ombudsman considered there should be more guidance on cases involving an adverse character assessment where there are only allegations of criminal behaviour.

The report concluded that reasons for the delays ‘(rest) largely with the Department’, and that a solution to the issue should come from the Department as a whole, rather than from the Citizenship Program alone.

Recommendations

The Ombudsman made four recommendations:

  • The Department should continue to have Australian Citizenship Instructions that provide sufficient guidance to its delegates on how to be satisfied of an applicant’s identity.
  • The Department should expand on the Australian Citizenship Instructions to better guide the assessment of an applicant’s good character. Furthermore, there should be an internal instruction on how to assess protected intelligence information and allegations, as opposed to criminal convictions. This instruction should not be made publicly available, but should be provided to the Ombudsman.
  • Elements of section 26(3) of the Australian Citizenship Act 2007 should be included in the Australian Citizenship Instructions. This provision relates to the Minister delaying a person from making a pledge of commitment for a period of time no longer than 12 months in certain circumstances.
  • The Department should continue to implement sections of its Identity Strategy in order to better help their management of the caseload backlog.

Department’s response

In its response, the Department of Immigration and Border Protection agreed with all of the Ombudsman’s recommendations.

The Department are planning to publish a suite of Australian Citizenship Instructions in early 2018. As well, the Department has drafted a classified document on the three pillars of the identity framework.

The Department was also developing more information on character assessment, and was similarly incorporating section 26(3) of the Australian Citizenship Act be incorporated into the Australian Citizenship Instructions).

Finally, the Department agreed to implement greater capability developments in intelligence and biometrics. It was stated that this would stop ‘systemic identity risks flowing from the visa programs into the citizenship programs’. As well, it said reforms to Australia’s visa system will improve the Department’s ‘analytical capability to gain a better understanding of the people crossing the border’.

Read the report

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