The consultation on proposed citizenship changes
On 20 April 2017, the Australian Government announced that it was seeking to make changes to the process of becoming an Australian citizen, including:
- requiring people to be separately tested for ‘competent’ English
- extending the requirement for permanent residence from at least one year to four years
- testing for ‘Australian values’ and conduct ‘inconsistent with Australian values’
- requiring people to demonstrate their ‘integration’, and
- changing the pledge and the Australian Values Statement.
The proposals were set out in a Discussion Paper and the Department of Immigration and Border Protection sought submissions to this Discussion Paper by 1 June 2017. A Bill was then introduced into Parliament. We opposed that Bill in an inquiry into that Bill by the Senate Legal and Constitutional Affairs Committee. The Bill is still before the Senate.
Our key concerns
RCOA expresses its deep concern at the changes to the test and requirements for Australian citizenship proposed in the Discussion Paper. The inclusive nature of Australian citizenship is a crucial element in the success of our multicultural society. Gaining citizenship should be an enabling, positive and welcoming process for applicants and one which is seen to contribute to building a cohesive and dynamic nation.
The Government has justified the proposed changes as ways to improve social cohesion and to ensure that citizenship is valued. Yet by effectively excluding some people from citizenship, these proposals will undermine social cohesion, and deny citizenship to those who value it most highly. Indeed, the proposed changes are most likely to affect those who are most vulnerable. Our submission sets out our key concerns about these proposals, including:
- The value of citizenship to people from a refugee background
- The disproportionate impact on people from a refugee background
- The proposed English language requirements and other measures limiting the accessibility of the citizenship test;
- The need for demonstrated ‘integration’, and
- The supposed ‘strengthening’ of ‘Australian values’.
The value of Australian citizenship for refugee and humanitarian entrants
The right to a nationality is an essential human right. On top of this Citizenship is essential in realising and accessing a number of human rights. Citizenship has particular significance for refugee and humanitarian entrants. Australian citizenship is often the first effective and durable form of protection that many refugees receive, and is celebrated and cherished by them. Gaining citizenship plays a central role in resolving the situation of refugee and humanitarian entrants.
This is recognised by the 1951 Refugee Convention, as two of the three durable solutions for refugees promoted by the United Nations High Commissioner for Refugees (UNHCR) – local integration and resettlement – rely on refugees becoming citizens of another country. For many refugee and humanitarian entrants, obtaining citizenship represents the culmination of their journey: the point at which they are no longer displaced; can rebuild their lives in safety and security; and feel the sense of belonging which was denied to them in their country of origin. The status of stateless people can only be resolved by obtaining citizenship.
The significance of citizenship for refugees has been a focus of our work in the past two years. In October 2015, we published a report documenting the prolonged delays experienced by thousands of refugees and humanitarian entrants in gaining citizenship. In December 2016, RCOA, together with pro bono lawyers, successfully challenged the Minister’s delay in deciding these applications in the landmark case of BMF16 v Minister for Immigration and Border Protection  FCA 1530. The Federal Court found that the Minister for Immigration had unreasonably delayed in deciding whether to grant citizenship to two of these former refugees who were waiting for over 14 months. Despite this ruling, however, thousands of former refugees continue to face lengthy delays, with thousands of people waiting over one year. These delays deny people of refugee background in Australia their basic rights to stability, security and family reunion, leaving many families in war zones and unsafe environments while they wait to reunite with family in Australia.
In February 2017, as a follow up to our October 2015 report, RCOA conducted a second survey of nearly 980 people of refugee background. Of these, 928 were still awaiting a response to their citizenship application. The Federal Court decision found that a delay of over six months is unreasonable and unlawful – yet 92% of respondents have experienced delays greater than this length. The average waiting time was over 16 months. Two-thirds of those waiting have been waiting over a year, while 13% (120 people) have been waiting over two years.
Excluding the most vulnerable
While the Government’s stated intention is to ensure that citizenship is valued, the proposed changes 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.
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.
Splitting families apart
Obtaining citizenship is especially important for people who wish to sponsor family members to come to Australia. The Ministerial Directive 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. A lack of citizenship makes it very difficult for people to visit their family overseas.
Many refugee say 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 result in leaving families in limbo, with children becoming Australian citizens while their parent/s are not. The current testing regime has already contributed to this.
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. 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”. T
he impact of the proposed changes 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.
The new English language test
The proposed changes would see people sit a separate English language test with a minimum level of “competent” English —an IELTS score of at least six (6) in each category. This level of English is 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. Many citizens who do not have ‘competent’ English contribute enormously to this country’s economy, culture and society (for example, the Snowy Mountain hydroelectric scheme, people working on our farms and in our factories).
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.
The proposed English test has caused enormous anxiety among refugee communities already, creating yet another barrier to the increasingly elusive dream of Australian citizenship. Another 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.
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. 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. There remain, however, other issues that still need to be addressed. 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.
Exemptions from English language test
RCOA welcomes the commitment in the Discussion Paper to retain the existing exemptions from the citizenship test for the English language test, 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.
English course option and cap on citizenship tests
There was the option of a citizenship course for those that are unable to pass the current 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 removal of this option will further exclude many vulnerable people from citizenship.
RCOA also opposes 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.
Supporting integration and inclusion
The Discussion Paper also proposes that citizenship applicants will now need to ‘demonstrate’ integration by providing proof that they are working, seeking work or studying; actively involved in community or voluntary organisations; paying taxes; ensuring their children are educated; and are not breaching criminal or social security laws. Refugees themselves are often desperate to achieve these things: work, study, a renewed sense of community and educating their children.
The citizenship test is fundamentally counterproductive to integration, because it makes people vulnerable and their situation precarious. For refugees, who already have had to cope with so much vulnerability and uncertainty, the denial of citizenship will only undermine their efforts to rebuild their lives and to connect with the wider community.
In our view, these changes also tend to conflate being a citizen with being a ‘model citizen’. If these are the proposed indicators of ‘integration’, there are many Australian-born citizens who are likely to fail these tests. Formal volunteering also fails to capture informal volunteering within communities. RCOA has heard often of community members taking phone calls for help at 2am, helping other community members to navigate Australia’s complex health system, negotiating rental agreements and disputes, and providing care and support for people.
Conduct ‘inconsistent’ with Australian values
We also oppose proposals that the applicant will also be assessed for any conduct “that is inconsistent with Australian values, such as domestic or family violence, criminality including procuring or facilitating female genital mutilation and involvement in gangs and organised crime”. These are already crimes that can be considered under the existing legislation, and more generally in terms of the very broad ‘character’ test. They are dealt with best under the criminal law, where a person will be accorded due process and where the gravity of such offences can be properly assessed. In particular, referring to domestic violence within the citizenship test is likely to be deeply counterproductive.
RCOA has already heard in its community consultations of the counterproductive effects of imposing a Code of Conduct on people seeking asylum. Social workers have reported to us that this has made women more reluctant to report concerns, because of the fear that their partners will be detained and their children left destitute. Fear of exclusion from a community, especially when such a community is a critical source of support for new arrivals, is also a powerful influence. Increasing sanctions for domestic violence, therefore, is likely to make people less likely to report their concerns and to seek help for them.
Extension of residence requirement
The proposals are likely to be counterproductive to the protection of victims of domestic violence is the extension of the permanent residence requirement. As our members have reported to us, a common experience of victims of family violence in this situation is that they have not been allowed to apply for permanent residence during this time, so requiring them to obtain permanent residence for four years may result them in staying longer in violence relationships before they gain citizenship and feel safe to leave. Another significant concern about this proposal is the effect of this change on people who have come by boat and who are now currently only given temporary protection.
Current legislation and policy would allow only a small number of these people ever to become citizens, but this change would extend this time even further. Many of these people had to wait years even to have their claims for protection heard, and will have to complete a five-year visa before becoming eligible for any kind of permanent visa. This means that, for people in this group, who may have arrived in Australia in 2012 who are granted protection in 2017 will not become eligible for permanent residence until 2022, and will now have to complete another four years of permanent residence after that before becoming eligible for citizenship in 2026.
This means that these people could be living for 14 years in the country before they become eligible for citizenship, and for 10 of those years they cannot even visit their families overseas other than in exceptional circumstances, and under current law could not effectively reunite with them until they became citizens. This requirement is counterproductive to the goal of ensuring people’s commitment to Australia.
Strengthening ‘Australian values’
The Discussion Paper also proposes that the citizenship test also test for ‘Australian values’ and that the existing Australian Values Statement should be ‘strengthened’. By singling out these values as Australian, however, a signal is clearly being sent that some of our newer communities do not accept these values. At the same time, these proposals themselves are inconsistent with some of those stated values.
The impacts of these proposals on women, and the counterproductive effects noted above in relation to domestic violence, are inconsistent with the stated Australian value of rejecting family violence. Most importantly, in their racially discriminatory impact these proposals do not reflect the Australian values of ‘equality of opportunity for all’, and ‘respect of all individuals regardless of background’.
Unfair, unnecessary and divisive
Asking more from the most vulnerable
As we have outlined above, these proposals impose unfair barriers for citizenship for the most vulnerable. In doing so, they disproportionately impact those who already face barriers to inclusion in Australia, further isolating and excluding them from the Australian community. Yet so far there has been no evidence or justification for these proposed changes.
Far from improving our social cohesion, these proposals actively undermine it by fostering a sense of exclusion. As former Deputy Secretary of the Department of Immigration Peter Hughes put it, “An ‘over the top’ testing regime may simply have the impact of shutting a growing pool of people out of Australian citizenship and alienating them from society.” These proposals would reinforce the exclusion fostered by existing policies and political discourse, for example:
- The denial of permanent residency and access to key settlement services to refugees who arrived in Australia without a valid visa, which undermines their ability to settle successfully in Australia and contributes to poor mental health outcomes.
- Limited access to family reunion opportunities to people from refugee backgrounds (including restrictions on access to family reunion for refugees who arrived without valid visas), which is likely to make it more difficult for people to recover from pre-arrival trauma, move on with their lives and fully engage with the settlement process (such as through learning English and securing sustainable employment).
- The serious negative impacts of prolonged indefinite immigration detention on health and well being, which in turn undermine positive settlement outcomes for people who were formerly detained (particularly children).
- Negative political rhetoric (such as labelling people seeking asylum who arrive by boat as ‘illegal arrivals’ and describing refugees as a ‘burden’), which can weaken community support for the Refugee and Humanitarian Program, fuel negative attitudes towards people from refugee backgrounds, and contribute to feelings of isolation and exclusion among refugee and humanitarian entrants settling in Australia.
RCOA has repeatedly expressed its increasing concern at the tenor of the public and political debate on refugees and, more recently, particular communities of new migrants. We have done so this year in respect of changes to section 18C of the Racial Discrimination Act, on an inquiry into migrant settlement outcomes, and on strengthening multiculturalism. The current proposals can only be properly understood as part of this wider political context.
Quite apart from the flaws in the proposed policies, these proposals clearly send a message both to migrant communities and to the wider Australian community. For the past four decades, Australia has transformed itself successfully and peacefully from an almost exclusively white society to one of the world’s most diverse nations. It has done so in part through strong political leadership and a commitment to an inclusive multicultural agenda. Indeed, as our current Prime Minister said earlier this year at the release of the Multicultural Statement:
The glue that holds us together is mutual respect. A deep recognition that each of us is entitled to the same respect, the same dignity, the same opportunities. The mutuality of that respect is of critical importance. Our achievement in creating this harmonious nation is not an accident. It has been carefully crafted and we must not take it for granted. You have to continue nurturing it.
We strongly affirm this view. If people are made to feel unwelcome, if racism is not only tolerated but implicitly encouraged, and if the focus of government policies shifts to exclusion from inclusion, we are setting people up to fail. At the same time, we risk undermining the cohesive and largely harmonious nation we have fought so hard to build.
People should not be tested separately on their English language ability as a requirement for citizenship.
The course-based citizenship test should be maintained for those who face difficulties completing a formal computerised test.
Those who fail the test more than three times should be encouraged to take up the course-based citizenship test, rather than being prevented from repeating the test.
The proposal to demonstrate ‘integration’ to obtain citizenship should be rejected.
There should be no change to existing residence requirements for Australian citizenship. If this recommendation is not accepted, concessions should be made for people from refugee backgrounds, stateless people and victims of family violence.
The proposal to demonstrate ‘integration’ to obtain citizenship should be rejected.