The Federal Court case of BMF16 v Minister for Immigration was decided in December 2016. You can read an updated briefing paper here.
People of refugee backgrounds in Australia have been facing significant delays when applying for citizenship. Despite having passed all legal requirements for citizenship, including passing the citizenship test, they have not been invited to attend their citizenship ceremony. The ceremony is the final stage where applicants pledge to commit to Australia and receive their Australian citizenship. Despite these ceremonies often being held monthly, these applicants have not been invited to participate in citizenship ceremonies in their local government areas.
In October 2015, the Refugee Council of Australia produced a report on these Citizenship delays. Still today, these processing delays remain a significant issue for refugee communities across Australia. The report surveyed over 180 people who were waiting for citizenship. At the time of the survey, the average waiting time was 215 days, with some waiting over 600 days. Many of these people are still waiting and the waiting times for processing citizenship applications of people with refugee background now appear to be well over a year. Since producing the report, the Refugee Council has been contacted by hundreds of other applicants whose applications have also been delayed.
These delays are far beyond the Department of Immigration and Border Protections’ (DIBP) standard 80 days to process citizenship applications. According to DIBP responses to questions taken on notice during Senate Estimates on 19 October 2015: ‘The Department has a service standard of finalising 80 per cent of citizenship by conferral applications within 80 days (from lodgement to decision). In 2014-15, the Department finalised 82.9 per cent of conferral applications within the service standard.’ The same document provides that in ‘2014–15 the average time from lodgment to conferral (or acquisition) of Australian citizenship was 162 days.’
The impacts of indeterminate waiting can cause anxiety and prevent refugees from feeling a sense of belonging in Australia. Further, 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 Directive 62 places the family members of boat arrivals at the lowest processing priority, which means that in practise 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.
Facts of the case
The Refugee Council of Australia is working with pro bono legal support to support two people to bring a case against the Minister for Immigration. The facts of the case are as follows:
- The Applicants, BMG16 and BMF16, were both granted protection visas in 2010;
- In 2014, once eligible, the Applicants immediately applied to become Australian citizens pursuant to section 24(1) of the Citizenship Act 2007 (Cth);
- The Applicants sat and passed the citizenship test in late 2014 and early 2015 respectively;
- Under section 24(1) of the Act, the Minister for Immigration and Border Protection must, in writing, approve or refuse to approve the Applicants’ citizenship applications;
- The Applicants have brought proceedings in the Federal Court of Australia on the grounds that the Minister has not exercised his power within a reasonable time and that there has been an unreasonable delay;
- The Applicants are seeking an order from the Federal Court compelling the Minister to make a decision to refuse or approve the Applicant’s citizenship applications;
- The Federal Court hearing is likely to be held at the end of July 2016.
If the court finds that the Minister’s delay has been unreasonable, the Minister will be required to make a decision on the Applicants’ citizenship applications. This may also mean that other people who have also been waiting an unreasonable amount of time will also be able to challenge the delays in processing their applications.
Refugee Council of Australia media release: Minister for Immigration faces legal action pertaining to refugee citizenship delays
Refugee Council of Australia: Citizenship Delays Report
ABC Lateline: Hazara Refugees take Immigration Minister to court
Sydney Morning Herald: “Deliberate Ploy”: Refugees waiting years for citizenship
 Question Taken on Notice Supplementary Budget Estimates Hearing: 19 October 2015 Immigration and Border Protection Portfolio (se15/103) – Citizenship Determinations – Programme 2.1: Citizenship http://www.aph.gov.au/~/media/Committees/legcon_ctte/estimates/sup_1516/DIBP/SE15-103.pdf