Ahmad Khan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2019] AATA 5308

Ahmad Khan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5308 (11 December 2019)

Division:GENERAL DIVISION

File Number:          2018/5556

Re:KUBRA AHMAD KHAN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:11 December 2019

Place:Melbourne

The Tribunal affirms the decision under review.

......[sgd]..................................................................

R CAMERON SENIOR MEMBER

Catchwords

CITIZENSHIP – refusal to grant Australian Citizenship by conferral – citizenship test exemption – section 21(3)(d) of Australian Citizenship Act – whether applicant had permanent or enduring physical or mental incapacity – applicant must demonstrate permanent or enduring incapacity at time of citizenship application – all treatment from psychiatrists undertaken after time of application – illiteracy does not satisfy permanent or enduring mental incapacity requirement – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Australian Citizenship Act 2007

Cases

Ahmadzai and Minister for Home Affairs [2019] AATA 669
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
El Mobayed and Minister for Home Affairs [2019] AATA 2447
Minister for Home Affairs v G [2019] FCAFC 79
Plaintiff M64 v Minister for Immigration and Border protection (2015) 258 CLR 173

Skaf and Minister for Immigration and Border Protection [2016] AATA 429

Secondary Materials

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

11 December 2019

INTRODUCTION

1. The Applicant seeks a review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) on 29 August 2018 refusing her application for Australian citizenship by conferral (“the reviewable decision”).

   THE EVIDENCE BEFORE THE TRIBUNAL

2. The following documentary evidence was before the Tribunal:

   (a)The documents lodged by the Respondent pursuant to their obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”);

   (b)Two reports of a Consultant Psychiatrist Dr Geoffrey Hogan dated 23 June 2019;

   (c)A further report from Dr Hogan dated 12 November 2019;

   (d)A report from a Consultant Psychiatrist Dr Kanishka Muruththettuwegama dated  24 September 2018; and

   (e)A referral dated 24 October 2018 from Dr Aram Sehat.

3. No witnesses gave oral evidence before the Tribunal at the hearing of the application.   The Applicant was invited to give evidence from the witness box but declined to do so.

   ISSUE FOR DETERMINATION BY THE TRIBUNAL

4. The issue for determination by the Tribunal is whether the Applicant had a permanent or enduring physical or mental incapacity at the time she made a citizenship application within the meaning of section 21 (3) (d) of the Australian Citizenship Act  2007 (“the Act”).

   THE LEGISLATIVE FRAMEWORK

5. The relevant sections of the Act need not be reproduced for the purposes of these reasons. However, reference will be made to the key elements of the applicable sections.

6. Under section 21 (1) of the Act, a person may make an application to the Minister to become an Australian citizen. Section 21 (2) “General eligibility” identifies applicable criteria that an applicant must satisfy in order to be eligible to become an Australian citizen. For the purposes of this application the criteria identified in section 21 (2) (d), (e) and (f) are applicable. Section 21 (2A) provides that the criteria identified in section 21 (2) (d), (e) and (f) are taken to be satisfied if and only if, the Minister is satisfied that the applicant has passed a test approved in a determination under section 23A.

7. Section 21 (3) (d) provides that a person who is an applicant for citizenship is eligible to become an Australian citizen without sitting an approved test under subsection (2A) of section 21, if he or she can establish that they have a permanent or enduring physical or mental incapacity at the time they made the application for Australian citizenship, meaning that they are not capable of:

   (a)understanding the nature of the application at that time; or

   (b)not capable of demonstrating a basic knowledge of the English language at that time; or

   (c)demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time.

8. Section 24 (1) of the Act provides that if a person makes an application under section 21 the Respondent must, by writing, approve or refuse the application.

9. Section 24 (1A) of the Act provides that the Respondent must not approve an applicant becoming an Australian citizen unless that person is eligible under subsections 21 (2), (3), (4) (5), (6), (7) or (8).

10. Under section 24 (2) of the Act the Respondent may refuse to approve an applicant becoming an Australian citizen despite being eligible to become so under subsections 21 (2), (3), (4), (5), (6) or (7).

11. It has been held that section 24 (1) of the Act confers a broad and unfettered discretion to approve or refuse an application made under section 21 to become an Australian citizen. The breadth of the discretion is confirmed by section 24 (2), which provides that the Respondent may refuse approval of an application despite the person otherwise being eligible under several subsections of section 21.[1]

    [1]See Minister for Home Affairs v G [2019] FCAFC 79 at [64].

12. Also relevant to the task of the delegate in the context of the legislative framework applicable to this application is the “Australian Citizenship Policy” (“the Citizenship Policy”).[2] As is noted in the “Introduction to Citizenship Policy”, the Citizenship Policy provides guidance on the interpretation of, and exercise of powers under, the Act and applicable Regulations.

    [2] Document T 15 of the T documents.

13. Executive policies are developed and applied in relation to various statutes that cast obligations upon decision-makers. Indeed, as was recently noted by the Full Court of the Federal Court of Australia in Minister for Home Affairs v G, the executive has historically had a large role in deciding admission into the people of the Commonwealth. The Full Court also observed in that case that an applicable Revised Explanatory Memorandum for the Australian Citizenship Bill 2005, which led to the passing of the Act, envisaged the introduction of an applicable executive policy.[3] Executive policies are designed to promote consistency and rationality in decision-making, together with the notions that administrative decision-makers should treat like cases alike.[4] A relevant decision-maker will generally apply an executive policy unless there are cogent reasons not to do so.[5]

    [3] Minister for Home Affairs v G supra at [68] and [69].

    [4] Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173.

    [5] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.

14. To avoid doubt, if there is an inconsistency between an executive policy and an enabling act, in that it does not allow a decision-maker to take into account relevant considerations, or requires the decision-maker to take account irrelevant considerations, or it serves a purpose foreign to that for which the discretionary power was created, it will be unlawful.[6]

    [6] Ibid at 641.

15. Some portions of the Citizenship Policy that are applicable to this application should be reproduced in these reasons.[7]

    [7] The applicable portions of the Citizenship Policy are reproduced in document T 15 of the T documents.

16. The section in the Citizenship Policy under the heading “Permanent or enduring physical or mental incapacity (s 21 (3))” is particularly relevant. Where an applicant seeks to rely upon the provisions of section 21 (3) they must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

    (a)understanding the nature of their application; or

    (b)demonstrating a basic knowledge of the English language; or

    (c)demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

17. The Citizenship Policy also provides that:

    To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.

    A temporary physical or mental condition does not meet the requirement.

18. With respect to mental incapacity, the Citizenship Policy provides that applicants claiming a permanent or enduring mental incapacity may provide evidence from a psychiatrist or an allied specialist healthcare professional. Additionally, and critically to this application,        it also provides that it is anticipated that applicants claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

    BACKGROUND

19. The Applicant is a citizen of Afghanistan. She arrived in Australia on 15 March 2014 as the holder of a temporary visa. She was granted a permanent visa on 5 January 2017. She lodged an application for Australian citizenship by conferral on 20 March 2018.

20. After seeking further medical information that was provided, on 29 August 2018 a delegate of the Respondent refused the application on the grounds that they were not satisfied that the applicant met the requirements of section 21 (3) (d) of the Act. The fulcrum of the delegate’s decision was that the Applicant had not provided any evidence from an appropriately qualified specialist which demonstrated that she met the requirements of section 21 (3) (d) of the Act.

    CONSIDERATION

    Dr Geoffrey Hogan’s Reports

21. The Applicant has relied on several medical reports that are in evidence. The first report, dated 23 June 2019 by Dr Hogan, concludes that the Applicant is suffering from a major depressive disorder. It does not express an opinion as to how long she has suffered from such depressive disorder. In that report, he also noted that the Applicant had attended the Monash Medical Centre on a date that he did not identify, where she had been diagnosed as having a minor stroke. Save for the difficulties with memory and impairment of concentration, that report does not conclude whether she has a permanent or enduring mental incapacity rendering her incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

22. A further report from Dr Hogan dated 23 June 2019 was also tendered. It is addressed to the Department of Immigration. Amongst other things, that report states that he had seen the Applicant for a psychiatric assessment. Dr Hogan notes that the Applicant has had no formal education and is not literate in her own language. He concludes that it is more probable than not that she would not be able to successfully attend English language classes or a citizenship test. Once again, that report does not conclude whether the Applicant has a permanent or enduring mental incapacity rendering her incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

23. Dr Hogan prepared a further report dated 12 November 2019. It was prepared in relation to the forthcoming hearing in this Tribunal concerning her citizenship application.            He recorded that subsequent to the Applicant’s initial assessment on 17 June 2019, she had attended him for a consultation on seven further occasions between July and November 2019.

24. The November 2019 report did repeat some of the matters canvassed in the earlier two reports prepared by him, and referred to previously in these reasons. It does to some extent amplify the earlier opinions expressed. Under the heading “Assessment, Treatment and Progress” he records that the Applicant presented with symptoms clearly indicative of the diagnosis of a major depressive disorder of several years duration. Although he states of several years duration it is not possible for the Tribunal to determine precisely how many years. Dr Hogan does not indicate whether he took a history from her as to how long she had suffered from these symptoms. He repeated that her depressive symptoms together with impairment of memory and concentration precluded her from attending English language classes. Additionally, he records that since her initial interview she has commenced a trial of various forms of medication. He concludes that the Applicant’s long-standing major depressive disorder has shown no significant positive response to treatment. The prognosis remains uncertain. He repeated his observations about her inability to carry out English language studies and the citizenship test because her cognitive symptoms, which are a major component of her depressive disorder,         are unaltered. Once again however, apart from these comments, that report does not conclude whether the Applicant has a permanent or enduring mental incapacity rendering her incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

    Dr Kanishka Muruththettuwegama’s Reports

25. A report from another Consultant Psychiatrist, Dr Kanishka Muruththettuwegama, dated  24 September 2018 was tendered in evidence by the Applicant. It was stated to have been prepared after a referral from a general practitioner for an assessment and management plan. There are some differences between Dr Muruththettuwegama’s report and Dr Hogan’s report of 12 November 2019. Dr Hogan’s report states that the Applicant was able to undertake some household tasks but slowly. Dr Muruththettuwegama recorded that the Applicant was able to function normally at home, attending to household chores such as cooking and cleaning. It is not clear to the Tribunal why this distinction is so. This report also confirms that she is unable to read or write any language at all. However, she is able to count. In terms of a mental state examination and prognosis,   Dr Muruththettuwegama found the Applicant to be mildly anxious and somewhat stressed. She stated there were no perceptual disturbances. Her insight into her situation appeared to be adequate and she was open to get help. Dr Muruththettuwegama’s conclusions were that the Applicant appeared to possibly have depression; however no higher opinion is expressed. For instance, there was no opinion expressed about how long these symptoms may have been present if indeed they amounted to a clinical diagnosis of depression. Dr Muruththettuwegama also recommended other tests be undertaken to exclude all possible other causes. A “Plan of Management” was recommended.            The contents of the Plan of Management are strongly indicative of an inconclusive clinical diagnosis.

26. Critically for this application, although Dr Muruththettuwegama specifically acknowledged that the Applicant sought the report for the purposes of her application for Australian citizenship, there was no opinion expressed in that report that the Applicant had a permanent or enduring mental incapacity rendering her incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

    Dr Aram Sehat’s Reports

27. Dr Aram Sehat, a general practitioner from the Dandenong Superclinic, produced a short report dated 15 March 2018 stating that the Applicant had been a patient of hers since July 2014. It stated that she is illiterate. The Tribunal accepts the evidence from several doctors which supports the conclusion that the Applicant is illiterate. Little weight can be placed upon this report beyond this conclusion because, as the Respondent contends,   the doctor concerned is a general practitioner and not a psychiatrist or specialist mental healthcare professional as defined by the Citizenship Policy in the section addressing “Mental incapacity”.

28. A document that appeared to be a referral from Dr Sehat dated 24 October 2018,          was also in evidence. It identified past medical history and current medications. This document is only relevant for the purposes of this application for identifying a past medical history of depression. It does not contain detail as to the date of onset, the extent of the condition or any other treatment options. It expresses no opinion that the Applicant had a permanent or enduring mental incapacity rendering her incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

29. Another matter for the Tribunal’s consideration is a letter the Applicant’s son, Kazim Ali Zakir Husain (who she appointed as her authorised contact or person in the application for citizenship),[8] wrote in response to a request from the Respondent seeking further medical information.[9] In the letter dated 23 August 2018,[10] Mr Husain stated that his mother does not have any medical problems. He stated and repeated that she did not speak English and unfortunately tends to forget what she learns when she attends English and citizenship courses. He also opined that she understands the responsibilities and privileges of living in Australia and becoming a citizen. It should be noted that the Applicant acknowledged that Kazim Ali Zakir Husain is her other son. She stated, not on oath but from the bar table, that she had not seen the letter of 23 August 2018 before. However, as it has come from her authorised representative it must be an admission against her interest. Despite this, the Tribunal does not place particularly significant emphasis or weight upon its contents.

    [8] See document T 3 in the T documents at pages 26 and 27.

    [9] Document T 7 of the T documents.

    [10] Document T 11 of the T documents.

30. As noted earlier in these reasons, the discretion conferred upon the decision-maker in section 24 (1) to approve or refuse an application is broad and unfettered. This discretion must be considered in the light of the language adopted by the legislature in           section 21 (3) (d). It is a significant threshold that an applicant has to cross to be eligible to become an Australian citizen without sitting an approved test under subsection 21 (2A).    It should be borne in mind that the construction of the section requires this decision-maker to reach the relevant state of satisfaction of the applicant’s permanent or enduring physical or mental incapacity at the time they made their application, not later. All the medical evidence before the Tribunal (other than the report of Dr Sehat of 15 March 2018 which does not address the considerations concerned) is well after the date of the application.

31. The doctor with the best ability to express an opinion that would satisfy the test created by this subsection, or perhaps more accurately, permit the Tribunal to conclude that the Applicant has crossed its threshold, is Dr Hogan who is a Consultant Psychiatrist.           His conclusion in his most recent report of 12 November 2019 (not at the time that the applicant made the application) is that her prognosis remains uncertain. This conclusion is not one that indicates a permanent or enduring physical or mental incapacity at the time that the application was made. Even now it is extremely uncertain. Dr Hogan does not express an opinion that the Applicant was incapable of understanding the nature of the application at that time it was made, namely 20 March 2018.

32. As noted earlier in these reasons, the Citizenship Policy provides that it is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis. At the time of her application for Australian citizenship on 20 March 2018, the Applicant had not done so. All of her psychiatric consultations took place after the application was made.

1. Further, and for the sake of completion, it should also be observed that the report of       Dr Muruththettuwegama does not go so far as to reach the conclusion that, as at the time of her making her application for Australian citizenship on 20 March 2018, the Applicant had a permanent or enduring physical or mental incapacity so that she was incapable of understanding or demonstrating each of the matters referred to in section 21 (3) (d).

2. The Tribunal further observes that whilst there is significant medical evidence that the Applicant was not capable of demonstrating a basic knowledge of the English language at the time of her application for Australian citizenship, there is simply no evidence to demonstrate she was not capable of understanding the nature of the application, or of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time, as a result of permanent or enduring physical or mental incapacity. She did to her credit, make a submission from the bar table about her background. She also gave a most unfortunate story of having a son in Japan and not being able to obtain a visa from the Japanese government to visit him. She did demonstrate a significant level of cognitive ability to the outside observer.

3. By way of completeness it should be noted that there have been several previous decisions of this Tribunal which have held that illiteracy does not amount to permanent or enduring physical or mental incapacity as contemplated by or within the meaning of section 21 (3) (d) of the Act.[11]

   [11] See Ahmadzai and Minister for Home Affairs [2019] AATA 669, El Mobayed and Minister for Home Affairs [2019] AATA 2447 and Skaf and Minister for Immigration and Border Protection [2016] AATA 429.

   CONCLUSION

4. The Tribunal considers that the Applicant has not produced sufficient evidence to enable it to conclude that she had a permanent or enduring physical or mental incapacity at the time she made her application for Australian citizenship so that she eligible to become an Australian citizen without sitting an approved test under subsection 21 (2A) of the Act.

5. Therefore, by reason of the foregoing matters, the reviewable decision is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...[sgd]............................................................

Associate

Dated: 11 December 2019

Date of hearing:	28 November 2019
Advocate for the Applicant:	Ghulam Haidar Zakir Husain
Advocate for the Respondent:	Danielle Nicholson
Solicitors for the Respondent:	Sparke Helmore Lawyers