VCA Submission – on the Australian Citizenship Legislation Amendment

Sydney 21/07/17


VCA Submission                                                    on the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill)




The Vietnamese Community in Australia/NSW Chapter (the VCA/NSW) would wish to bring this submission relating to the Bill to the attention of the Senate Legal and Constitutional Affairs Legislation Committee.


The VCA/NSW is part of the Vietnamese Community in Australia (the VCA) and this submission reflects the view of the VCA State and Territory Chapters representing Australians of Vietnamese background.


Executive Summary:


The VCA/NSW expresses its deep concern at the proposed changes in the Bill because they are inconsistent with the underlying principle of national unity and social harmony as expressed in the Government’s Policy Statement entitled Multicultural Australia: United, Strong, Successful”. The VCA/NSW would particularly object to the proposed amendments in the Bill in relation to the newly required 4-year permanent residency, university-level English test, and excessive decision-making power of the Minister.


  1. General

In its Multicultural Statement which was released on Harmony Day 2017, the Government states that Australian values are based, among other things, on the principle of equality which includes equality of men and women and equality of opportunity for all. Migrants regardless of cultural and linguistic backgrounds are encouraged to become Australians as “feeling connected to their new home and being a part of Australian society creates a sense of worth and belonging”.


However, under the Bill, female applicants would face much more difficult hurdles than male migrants because of their traditional role in home-building and lack of educational opportunities. Also under the Bill, migrants from non-English speaking countries would be discriminated against in that they would be required to pass a university-level English test whereas migrants who are citizens of  English speaking nations (such as the United Kingdom, Canada or New Zealand) would be exempt. There is no evidence supporting the assumption that an Asian Canadian citizen possesses a higher proficiency in the English language than an applicant who has migrated to Australia from Asia.


Generally under the “Australian values” and evidence of “integration”, an applicant may be assessed subjectively and this discretionary decision-making is hardly consistent with the Australian concept of “Fair Go” which the Prime Minister referred to when he launched the Multicultural Statement.


  1. New Requirement of Permanent Residency


Under current legislation, the requirement is 4 year lawful residence which includes one year as permanent resident. Under the Bill, a period of 4-year permanent residency would be required. If nothing else is changed, a migrant would have to live in Australia at least 7 years before she/he could apply for citizenship by conferral.


The VCA/NSW believes this would be too long a period for most migrants who want to be part of this beautiful multicultural Australia in the most meaningful way i.e. as a citizen.


We therefore recommend a period of 5 years which include 2 years as a permanent resident.


  1. New Requirement of university-level standard of English


The VCA/NSW agrees that a certain level of English is important for successful settlement. But whether a university-level standard is required for citizenship remains debatable and certainly unrealistic for many migrants and particularly for refugees and others accepted under humanitarian program, unless the Government would be prepared to devote commensurate additional resources in the teaching of English to migrants and refugees.


Currently, the Adult Migrant English Program (AMEP) for new arrivals expects only an outcome of a “functional” level of the English language proficiency.


For many adult refugees – who may have minimal first language literacy, fragmented educational experiences, and limited opportunities to gain feedback on their written English – “competency” may be prohibitive to gaining citizenship. This is also more likely to impact refugee women, who are less likely to have had formal schooling and more likely to assume caring duties. The challenges faced in resettlement contexts, such as pressures of work and financial responsibilities to extended family, often combine to make learning a language difficult, and by extension, prevent residents from passing the newly required test.


There are a number of issues regarding the proposed language proficiency test:


  • What support mechanisms will be provided to assist applicants to study for the test?
  • Will financially-disadvantaged members of the community be expected to pay for classes / materials in order to prepare for the citizenship test?
  • The IELTS test costs A$330, with no subsidies available. Will the IELTS-based citizenship / language test attract similar fees?


There are also questions about the fairness of requiring applicants to demonstrate a specific type and level of English under examination conditions that is not required of all citizens. Those born in Australia are not required to pass an academic test of language in order to retain their citizenship.


An English language test may appear to be a compelling motivation to learn the language, but without the opportunity to learn and proper tuition over time, the test would not become a motivation. It would be an unfair barrier to anyone for whom English is not their mother tongue. This new policy may produce an unintended outcome similar to the intended purpose of the Dictation Test during the “White Australia Policy” of yesteryears.


We therefore recommend the level of “Basic Knowledge of English” be retained


  1. Excessive Discretionary Ministerial Power


Minister may in the public interest set aside certain decisions of the Administrative Appeals Tribunal


The proposed additional clause in the Bill would have the effect of conferring on the Minister personal powers to override decisions of the Administrative Appeals Tribunal relating to citizenship applications – presumably to enable the Minister to overturn decisions of the AAT setting aside decisions by the Department to refuse citizenship applications.


In essence, the proposed amendments would grant the Minister personal powers similar to those which now exist under the Migration Act, which enable the Minister to set aside decisions of the AAT concerning the cancellation of visas on character grounds.


Although the Minister has defended the proposed new personal power to set aside citizenship decisions of the AAT by claiming that such Ministerial decisions could still be subject to judicial review i.e. by appealing to the Federal Courts and the High Court, it is clear that such reviews would necessarily be limited in scope and would be restricted to examining whether the Ministerial decision to set aside the AAT was affected by “jurisdictional error”. In reality, who among the financially poor migrants could afford this very expensive exercise?


This proposed change would potentially render the entire AAT review process meaningless, because the Minister would have the power to overturn the AAT if he doesn’t like the outcome in the AAT.


The proposed changes to the current Citizenship Act would no doubt greatly enlarge the Minister’s personal powers. It would erode the principle that Australia is a country of laws, and not of men.


We therefore recommend this proposed change be rejected.


  1. Conclusion


During the Howard years, the Coalition Government had times and again to promote the Australian citizenship among migrant groups of English speaking background because of their lower percentage of applications compared to that of NESB migrants. The proposed changes in the Bill would potentially result in a cumulative large number of committed and contributing NESB migrants without Australian citizenship.


By proposing tougher changes to the Australian Citizenship Act 2007, the government would in effect create second class resident of Australian society.


By any standard, multicultural Australia is a very successful and harmonious society and in today’s world, it certainly needs effective protection against violent and terrorist attacks. But we hope that security would not be misused as the reason for these proposed changes in the Bill.


Best regards,

Peter Thang Ha (PhDs)

President (Vietnamese Community in Australia – NSW Chapter)

Mobile: 0449112792

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This submission has also been endorsed by VCA Federal President Mr Bon Nguyen