Ahmadzai and Minister for Home Affairs (Citizenship)

[2019] AATA 669

Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669 (11 April 2019)

Division:GENERAL DIVISION

File Number:           2018/2190

Re:Mohibullah Ahmadzai

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:11 April 2019

Place:Sydney

The decision under review is affirmed.

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

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – refusal to grant Australian Citizenship by conferral – applicant has limited understanding of English language – section 21(3) of Australian Citizenship Act - whether applicant had permanent or enduring physical or mental incapacity – whether not capable of understanding the nature of the application – whether not capable of demonstrating a basic knowledge of English – whether no capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – s 21

REASONS FOR DECISION

Senior Member K Raif

11 April 2019

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Act).

   BACKGROUND

2. The applicant is a national of Afghanistan born in December 1985. The applicant entered Australia in April 2011 and was granted a permanent visa on 13 July 2011. In May 2016 the applicant was granted a Resident Return visa. The applicant made the application for Australian citizenship by conferral on 28 July 2015. On 28 March 2018 the delegate of the Minister for Home Affairs refused that application because the delegate formed the view that the applicant did not meet the requirements in s 21(3)(d) of the Act. The applicant seeks review of the delegate’s decision.

   LEGISLATIVE FRAMEWORK

3. Section 21 of the Act deals with the general eligibility to become an Australian citizen. Relevantly, s 21(3)(d) relates to applicants who have permanent or enduring physical or mental incapacity. It is reproduced below:

   (3) A person is eligible to become an Australian citizen if the Minister is satisfied  that the person:

   (a)Is aged 18 or over at the time the person made the application; and

   (b)Is a permanent resident:

   (i)     at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (d)has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

   (i)     is not capable of understanding the nature of the application at that time; or

   (ii)    is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

   (e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (f)is of good character at the time of the Minister’s decision on the application.

4. The issue before the Tribunal is whether the applicant has a permanent or enduring physical or mental incapacity, at the time he made the application, that means he is not capable of understanding the nature of the application, or demonstrating a basic knowledge of English or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.

   MEDICAL AND OTHER EVIDENCE

5. The applicant provided a number of medical reports to the delegate and additional medical records and reports are before the Tribunal.

6. The applicant presented with his application a psychological report from Mr Mohammed Attai of Psych Central Psychological and Counselling Services dated 21 July 2015. Mr Attai states in that report that he has been providing consultation and treatment to the applicant since December 2013. Mr Attai describes a traumatic event for the applicant after his arrival in Australia, stating that such events led to the applicant to suffer from depressive illness and post-traumatic stress disorder (‘PTSD’) with symptoms persisting until today and which include inability to concentrate, low mood energy and motivation, sleep disturbances, restlessness and irritability. Mr Attai states that the applicant has a permanent mental incapacity that severely impacts his ability to remember, recall, recollect or recognise even basic information which makes it impossible for him to prepare for any test or examination.

7. There are reports from Mr Attai dated 30 March 2017 and 21 July 2015 which also refer to the diagnosis of major depressive disorder and PTSD.

8. On 26 February 2018 Mr Attai prepared a further report in relation to the applicant. Mr Attai states that he has seen the applicant for over 35 sessions. Mr Attai states that the applicant has never been able to read in any language and has a dyslexic condition. This report also refers to the applicant suffering from enduring mental incapacity in the form of PTSD and major depressive illness, which has hindered the applicant’s ability to demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. Mr Attai indicates that over the course of the treatment, the applicant had displayed signs of improvement in the form of functionality and has been able to function well in terms of working as a chef and performing chores at home and socialising. Mr Attai states that the prognosis in the form of functionality is positive with treatment but in the form of symptomatology it remains guarded because of the severity of the trauma, ongoing separation from his family his paranoia about the family’s well-being and the delay in their application process. Mr Attai states that the diagnosed incapacity severely hinders the applicant’s ability to learn new information because of his diminished concentration and inability to read, retain, recollect and store information.

9. The applicant presented a number of medical reports and a patient health summary, surgery consultation records and other materials which do not establish a permanent incapacity.

10. The applicant presented to the Tribunal a report from Dr Mayur dated 11 April 2018. In that report Dr Mayur states that the applicant has significant difficulties in reading, spelling and writing and that he meets the criteria for Specific Learning Disorder with impairment of learning and Specific Learning Disorder with impairment of written expression. Dr Mayur states that the applicant has a major depressive disorder. Dr Mayur states that there could be some remission to the depressive disorder but it is not likely that there will be a change in the applicant’s incapacity to read or write any language including English. The applicant subsequently provided to the Tribunal a statement from Dr Mayur confirming the dates of consultations with the applicant.

11. There is additional medical evidence before the Tribunal. There is a clinical psychological evaluation from Dr Banks, dated 15 October 2018. Dr Banks has assessed the applicant at the request of the respondent. Dr Banks outlines in his report the applicant’s circumstances and family background and medical history. The report refers to the tests administered to the applicant. On the basis of the assessment, Dr Banks concludes that the applicant’s current psychological profile would not be considered sufficient to warrant excluding him from the usual application processes for Australian citizenship. Dr Banks confirms that the applicant continues to experience distress and grief but states that the distress is not pervasive enough to impact his daily activities and work. Dr Banks notes that the applicant has shown some understanding of basic English, demonstrated a reasonable capacity to learn and retain new information, recall and demonstrate reliable capacity to sustain demanding work and maintain independent living. Dr Banks formed the opinion that the applicant does not appear to be suffering from a permanent or enduring physical or mental incapacity, nor to have been suffering from such a condition that would mean that he is not capable of understanding the nature of the application, or demonstrating a basic knowledge of English, or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

12. There are statements from the applicant’s employers referring to his poor English and cognitive skills. The applicant’s present employer, Mr Nazari provided a statutory declaration in which he refers to the applicant being depressed and unable to sit the citizenship test. In oral evidence, Mr Nazari confirmed that the statement expressed his personal opinion and that he was not medically qualified to assess the applicant’s health condition or capacity.

    THE PARTIES’ CONTENTIONS

13. The delegate accepted that the applicant met the general residence requirements but was not satisfied the applicant was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. The delegate has had regard to the medical evidence presented by the applicant. The delegate noted that while the applicant referred to being illiterate, illiteracy was not in itself a mental incapacity. The delegate also noted that there is a range of support materials available to engage in the Australian citizenship testing process. The delegate noted that according to Mr Attai, the applicant has been able to function well in terms of working as a chef, performing chores at home and socialising and the applicant himself refers to working full-time as a chef and paying taxes. The delegate was not satisfied that a person who is sufficiently capable of participating in, and maintaining employment, would be so incapacitated that they are permanently or enduringly unable to engage in the citizenship test process.

14. In his Statement of Issues dated 14 December 2018 the applicant identified the issue for the Tribunal as to whether his other circumstances and / or his background as being an Afghan national and / or his educational background should be taken into account to suffice for the grant of the exemption. The applicant refers to the medical evidence, being reports from Mr Attai and Dr Mayur. The applicant notes that the medical reports which he presented and the report provided by the responded ‘do not match in principal’ [sic]. The applicant notes that both are qualified doctors, it is not known ‘who is right’ and that the benefit of the doubt should go to the applicant. The applicant sets out his background and refers to his employment. In oral evidence, the applicant noted that he saw Mr Attai and Dr Mayur on many occasions and he only saw Dr Banks once, so greater weight should be given to the evidence of his treating doctors.

15. The applicant presented to the Tribunal statutory declarations which relate to his employment. His former employer Mr Mohammadi states in his declaration that the applicant ‘can never ever pass English test for citizenship’ and also that the applicant is ‘intellectually very week’ [sic] and slow to understand things. While the Tribunal accepts that Mr Mohammadi holds these views, the Tribunal prefers the evidence of health professionals rather than the applicant’s employer who has not demonstrated the skills to make the relevant assessment as to the applicant’s incapacity or his medical condition. For the same reason, the Tribunal does not consider the declaration from Mr Nazari helpful. The Tribunal accepts that Mr Nazari holds the beliefs set out in his declaration but the Tribunal does not consider Mr Nazari to have the expertise to make the assessment of the applicant’s incapacity.

16. The respondent acknowledges the medical evidence presented and noted that Dr Banks, who conducted an independent review of the applicant’s condition, formed the view that the applicant’s symptoms were not sufficient to meet the diagnostic criteria for depression and the symptoms presented did not amount to ‘enduring mental incapacity’ sufficient to prevent the applicant from taking the citizenship test. The respondent submits that the applicant has not provided sufficient evidence to support his claim that he satisfies the requirement of s. 21(3)(d) of the Act. The respondent also submits that the applicant has not provided sufficient evidence to refute the assessment and conclusions reached by Dr Banks. The respondent accepts that the applicant may show some symptoms consistent with depression but claims that condition has been mediated by the applicant’s ability to hold down consistent employment, to be financially responsible, to live independently and obtain a driver’s license. The respondent accepted that the applicant may have limited intellectual and language skills but submits these do not constitute a ‘permanent or enduring mental incapacity’.

    DID THE APPLICANT HAVE A PERMANENT OR ENDURING PHYSICAL OR MENTAL INCAPACITY SO THAT THE EXEMPTION SHOULD BE APPLIED?

17. The applicant identifies the issue before the Tribunal as to whether his personal circumstances should be taken into consideration. The Tribunal has formed the view that the legislation does not permit that consideration be given to the applicant’s personal circumstances other than when considering the existence of a permanent or enduring physical or mental incapacity. There is nothing in s. 21(3)(d) that allows the Tribunal to consider other circumstances. The applicant’s personal characteristics, including his background, his educational background and any other factor may be relevant in establishing whether the applicant has an incapacity but unless the Tribunal is satisfied that the relevant incapacity exists, such characteristics do not assist the applicant.

18. The applicant also submits that if there is conflict between the medical opinion of those who provide support to the applicant and the doctor appointed by the respondent, the applicant should be given the benefit of the doubt. In the Tribunal’s view, such a claim is misguided. For the exemption to apply, the Tribunal must be satisfied that the applicant has the relevant incapacity. That assessment must be based on probative and persuasive evidence and it is for the Tribunal to determine the weight to be given to conflicting medical reports.

19. The Tribunal acknowledges that Mr Attai has been providing treatment to the applicant over a period of several years and has had many sessions with the applicant. The Tribunal also accepts that the applicant has seen Dr Mayur on multiple occasions. However, the Tribunal is mindful that these doctors are the applicant’s treating doctors and may have the desire to assist the applicant in his citizenship application. Dr Banks, however, is an independent professional with no interest in the outcome of this review. His assessment takes account of the applicant’s circumstances, including his educational background, his past and present experiences. Dr Banks has also had regard to the evidence produced by Mr Attai and Dr Mayur before reaching his conclusions. Because Dr Banks is an independent professional, the Tribunal prefers his evidence to that or Mr Attai and Dr Mayur.

20. In oral evidence, the applicant told the Tribunal that he is illiterate and cannot read in his own language or in English, and he does not have a good command of English. The applicant told the Tribunal that he read the Citizenship booklet with the help of his friend and he was able to understand the responsibilities and obligations. The applicant states that because he is illiterate, he cannot read. The applicant said that physically he is well but he has had learning difficulty from a young age and cannot remember things. The applicant told the Tribunal that he finds it difficult to write, even in his own language, but he is able to communicate at a basic level in English and also in his own language. The applicant suggested that if the citizenship questions were read to him, he would be able to answer these questions. This is consistent with the information the applicant presented when interviewed by Dr Banks. At paragraph 57 of his report, Dr Banks states that when the applicant became aware of the supported pathways, the applicant indicated his willingness to attempt the citizenship test. The applicant’s evidence to the Tribunal and his interview with Dr Banks suggests that the applicant’s main concern is his inability to read and answer questions in English, rather than lack of comprehension of the content. Indeed, the applicant’s evidence to the Tribunal is that when a friend did read the questions to him, he was able to comprehend and answer the questions.  That suggests that the applicant is capable of understanding the nature of the application and an adequate knowledge of Australia and responsibilities and privileges of citizenship. The claimed incapacity is primarily linked to the applicant’s illiteracy. The Tribunal does not accept that illiteracy amounts to permanent or enduring physical or mental incapacity contemplated by s. 21(3)(d).

21. The Tribunal is prepared to accept the applicant’s evidence that he found it difficult to succeed in a formal learning environment since the young age. However, the Tribunal is not satisfied that the presented evidence establishes the existence of a permanent or enduring physical or mental incapacity. The Tribunal is mindful that Mr Attai’s reports refer to the applicant showing signs of improvement in the form of functionality over the years. The applicant confirmed in oral evidence that he has been able to maintain several jobs performing the tasks of a chef and also a cleaner. He is able to live independently, maintain employment, undertake interstate and overseas travel and fulfil his social and financial responsibilities. The applicant told the Tribunal that he has been able to pass the theoretical test to obtain a driver license, although the applicant states that it has taken him several attempts to do so.

22. Overall, the Tribunal found the applicant to be a credible witness who was forthright and truthful in his evidence. The Tribunal accepts that the applicant has limited English and that he may be illiterate. The Tribunal does not consider these circumstances establish an incapacity. The Tribunal acknowledges the medical evidence which refer to the applicant suffering from depression due to his family circumstances but the Tribunal has formed the view that the applicant’s condition does not affect his daily functioning and, as such, does not amount to incapacity as required by s. 21. The Tribunal also notes that the diagnosis of a learning disorder has been dismissed by Dr Banks.

23. The Tribunal places significant weight on the report prepared by Dr Banks, who has had regard to the medical evidence of Dr Mayur and Mr Attai and who has been made aware of the relevant citizenship requirements. Dr Banks concluded that the applicant’s current psychological profile would not be considered sufficient to warrant excluding him from the usual application process for Australian citizenship. The Tribunal places greater weight on that report than on the medical evidence of the applicant’s treating doctors.

24. Having considered all the evidence before it, the Tribunal is not satisfied the applicant has a permanent or enduring physical or mental incapacity. The Tribunal is not satisfied the applicant meets s. 21(3)(d).

25. As the applicant does not meet s. 21(3)(d), the Tribunal finds that the applicant is not eligible to become an Australian citizen. The Tribunal affirms the decision under review.

I certify that the preceding 25 (twenty – five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

Associate

Dated: 11 April 2019

Date of hearing:	3 April 2019
Applicant:	In person
Solicitors for the Respondent:	Ms A Nanson Australian Government Solicitor