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

[2020] AATA 2837

Akhlaghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2837 (11 August 2020)

Division:GENERAL DIVISION

File Number:          2019/3305

Re:Maryam Akhlaghi

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:11 August 2020  

Place:Sydney

The decision under review is affirmed. 

.......[sgd].................................................................
Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring physical or mental incapacity – depression and anxiety – insufficient evidence – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Mr S Evans, Member

11 August 2020

INTRODUCTION

1. The applicant, Maryam Akhlaghi, is a citizen of Iran who arrived in Australia in October 2010.  Having initially held a Protection visa, she was granted a subclass BB-155 (Resident Return) visa in May 2018.  On 24 April 2018, Ms Akhlaghi applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). 

2. Ordinarily, a person who applies to become an Australian citizen is required to satisfy the Minister that, amongst other things, they understand the nature of an application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.  A person can only be taken to have satisfied these requirements if he or she has successfully completed an approved test, known as the citizenship test. 

3. An exemption exists under subsection 21(3)(d) of the Act for applicants who have a permanent or enduring physical or mental incapacity which would prevent them from completing the citizenship test and render them incapable of satisfying the requirements.  Ms Akhlaghi claims that she meets the criteria for such an exemption on account of a permanent and enduring mental incapacity.    

4. A delegate of the Minister (“the Minister” or “the Respondent”) refused Ms Akhlaghi’s application on 20 May 2019. The Minister determined that Ms Akhlaghi has not provided sufficient evidence to demonstrate that she has an incapacity that would satisfy the criteria required to be exempt from taking the citizenship test.

5. Ms Akhlaghi sought review of the Minister’s decision on 11 June 2019 to the Administrative Appeals Tribunal (“the Tribunal”).  She wrote as her reasons for seeking review:

   I suffers from depression and generalised anxiety disorder.  Under exam condition, I am feeling panic and due to my high level of stress, my mind getting blocked.  I supported my citizenship application by conferral with supportive psychological letters.  I request to re-consider the decision made on my application. 

   [errors in original]

6. The application was heard by the Tribunal on 26 June 2020. Ms Akhlaghi and the representative for the Minister appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Ms Akhlaghi was self-represented and provided evidence under affirmation with the aid of an interpreter of the English and Arabic language.

   LEGISLATIVE FRAMEWORK AND POLICY

7. Generally, a person is eligible to become an Australian citizen if they meet the eight criteria set out in subsection 21(2) of the Act. Paragraphs 21(2)(d)(e) and (f) require: 

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

   …

   (d)       understands the nature of an application under subsection (1); and

   (e)       possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship;

   …

8. Pursuant to subsection 21(2A) of the Act, paragraphs 21(2)(d)(e) and (f) are met if, and only if, a person has sat and successfully completed a citizenship test. 

9. Subsection 21(3) of the Act provides for people who the Minister is satisfied had a permanent or enduring physical or mental incapacity at the time of their application for citizenship:   

   Permanent or enduring physical or mental incapacity

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

   …

   (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 a basic knowledge of the English language at that time; or

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

   …

10. If a person satisfies the criteria in subsection 21(3) of the Act, they are not required to sit the citizenship test in order to obtain Australian citizenship.

11. The Act does not define permanent or enduring physical or mental incapacity. The Citizenship Policy (“the Policy”) contains guidance for decision-makers in relation to paragraph 21(3). Pages 72 to 73 of the Policy states:

    … 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.

    …

    Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.

    …

    Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

    ·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

    ·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

    ·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

    …

    It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.[1]

    [1] Australian Citizenship Policy, pp. 72-73.

    ISSUES FOR THE TRIBUNAL

12. The issues for the Tribunal to determine are whether:

    (a)at the time of her citizenship application, Ms Akhlaghi had a physical or mental condition which meant that she was not capable of understanding the nature of the citizenship application, or demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and if so

    (b)the condition is permanent or enduring.

    EVIDENCE

13. Before the Tribunal is a report dated 12 April 2018 from clinical psychologist Dr Reza Pishyar.  Dr Pishyar writes that Ms Akhlaghi was referred to him two weeks prior on 28 March 2018, in relation to ‘her chronic depression and anxiety disorder’. 

14. Dr Pishyar writes that Ms Akhlaghi’s ‘psychological symptoms appear to be of adequately [sic] to warrant a clinical diagnosis of major clinical depression with social anxiety component such as test and examination and performance anxiety in the public’. 

15. Dr Pishyar details Ms Akhlaghi’s ‘psychological problems’ which relevantly include feeling hopeless and helpless, ‘severe short term memory problem with limited concentration on daily given tasks’, poor sleep, lack of energy, loss of motivation and depressed mood.  Dr Pishyar concludes: 

    Given [Ms Akhlaghi’s] long history of mental illness and her social isolation and cognitive incapacity, it is difficult for Mrs. Akhlaghi to be able to fulfill all the requirements for her citizenship application.  In regards to her long standing history psychological problems, her current medical intervention and antidepressant medication (laxapro, 10mg), it is unlikely that her memory and her English learning capacity has been affected by her long term mental illness.  I believe client’s current psychological problems will remain unchanged for more than two years. 

    [errors in original]

16. Dr Pishyar follows up the April 2018 report with a second report dated 10 September 2019.  This report observes that Ms Akhlaghi is in a ‘vicious cycle’ where her mental health problems affect her medical issues, and this exacerbates her depression and anxiety.  Dr Pishyar does not identify the medical problems he is referring to.  He states that any major improvement in Ms Akhlaghi’s mental health is ‘highly unlikely’ and consequently she would be unable to ‘improve her English learning skills and [prepare] herself for her citizenship test’ and that she was ‘suffering from a permanent mental incapacity at the time she made the [citizenship] application’. 

17. Dr Ali Sahebi is a clinical psychologist whose report dated 30 August 2019 confirms Ms Akhlaghi has been receiving treatment from him beginning in September 2011.  Following a structured clinical interview to determine the presence of psychiatric disorders and administering the Beck Depression Inventory, Dr Sahebi concludes that Ms Akhlaghi was ‘moderately depressed, moderately anxious and severely stressed.’  She ‘did not present any organised disorder as per DSM-IV diagnosis’.  He observed, however, that Ms Akhlaghi’s mood was ‘very low and sad’ but she was able to ‘express her thoughts and emotions clearly’.  Dr Sahebi diagnosed Ms Akhlaghi as suffering from ‘stress related [s]ymptoms including depression, worry and sleep disturbances’.

    Evidence of Ms Akhlaghi

18. Ms Akhlaghi sat the citizenship test three times, scoring 14 out of 20 on one occasion. An applicant is required to achieve a score of 15 or more.  She told the Tribunal that following her unsuccessful attempts to sit the citizenship test she was told by the officials administering the test to apply for an exemption, which she has done. 

19. Regarding her mental health, Ms Akhlaghi told the Tribunal she was taking anti-depressant medication for two to three years, but the medication had side effects and impacted on her physical health conditions, particularly her bone density. 

20. She ceased taking the medication for her mental health two years ago but continues to see a psychologist once a month.  She finds the sessions worthwhile and says that talking to her psychologist is therapeutic.  Ms Akhlaghi told me that the medication was helpful and sometimes she felt ‘peaceful’ when taking it; but now, as she is not taking medication, she often feels confused and does not know what is happening. 

21. Ms Akhlaghi holds a NSW driver license which she was able to obtain with the assistance of her son and an interpreter.  She told the Tribunal that she learnt to drive when she was 27 and indicated that she would not be able to learn to drive now that she is 52 years of age.  She currently has her own car. 

22. Ms Akhlaghi does not work and she is her husband’s carer.  Whilst her and her husband are separated, they continue to live together.  Ms Akhlaghi cooks for her husband and gets his medication. 

23. Ms Akhlaghi is able to read and write Farsi and has read the Australian citizenship booklet which is printed in Farsi.  She concedes that her ability to understand spoken English is ‘not bad’ but she cannot read or write English.  She attended English classes when she first immigrated to Australia but submits that she is unable to remember what she learns.  She could not recall how many hours of English language lessons she completed. 

24. Ms Akhlaghi described her journey from Iran to Australia.  She came with her husband and her son, who was then aged 13.  They travelled initially to Darwin and then to Sydney.  She said it was a difficult time and the experience was hard. 

25. She has travelled back to Iran on a number of occasions since.  The last time was in 2017 when her mother was ill. 

    CONSIDERATION

26. The Respondent submits that the Tribunal cannot be satisfied that Ms Akhlaghi had a permanent or enduring mental incapacity at the time of her application as she has not provided sufficient medical evidence. 

27. I must first determine if Ms Akhlaghi had a mental incapacity which qualifies under the Act.  It is argued by the Respondent that the reports by Dr Pishyar do not formally diagnose Ms Akhlaghi’s condition. 

28. The Policy requires that applicants claiming a permanent or enduring mental incapacity provide evidence from medical practitioners who meet certain professional qualifications or areas of specialty.  I accept that Dr Pishyar is a specialist in the field of the claimed medical conditio,n as he is a psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. 

29. Though Dr Pishyar meets the evidentiary requirements set out in the Policy, he makes no reference to any testing he has performed.  His assessment, made just a fortnight after Ms Akhlaghi was referred to him, appears to be based on self-reporting by Ms Akhlaghi and information received from Dr Sahebi.  He writes that Ms Akhlaghi is taking medication for her condition; however, this is inconsistent with Ms Akhlaghi’s account that she had ceased taking medication at that time. 

30. Dr Pishyar makes no formal diagnosis of Ms Akhlaghi’s condition but concludes her undiagnosed condition will remain unchanged for two years.  He writes also that it would be ‘difficult’ for Ms Akhlaghi to fulfil the requirements of her citizenship application, which is distinct from not being capable of.  For these reasons, I place minimal weight on Dr Pishyar’s opinion of Ms Akhlaghi’s capacity and abilities. 

31. Dr Sahebi has been treating Ms Akhlaghi since 2011.  His treatment was initially for her mood disorder and anxiety related symptoms.  He writes that Ms Akhlaghi is moderately depressed, stressed and anxious.  Whilst Dr Pishyar’s report appears to be focussed on the citizenship test, Dr Sahebi’s report provides a more detailed clinical assessment of Ms Akhlaghi based on having treated her since 2011. 

32. Whilst Ms Akhlaghi’s treatment is focussed on her low mood, she maintains that her primary difficulty was related to her memory.  She told the Tribunal at hearing that she was unable to remember what she learns and cannot absorb new information.  She indicated that she would not be capable of obtaining her driver license should she be required to apply for it now.

33. Dr Pishyar refers to Ms Akhlaghi’s short term memory problems, but there is no evidence before the Tribunal of testing or formal diagnosis of her ability to retain information.  Whilst Dr Pishyar links Ms Akhlaghi’s condition to her inability to improve her ‘English learning skills’, it is unclear how the two are related based on his reports. 

34. In the circumstances, Ms Akhlaghi presented as an articulate and reasonable individual.  I accept that she has a mental health condition characterised by low mood, primarily on the basis of her consistent treatment by Dr Sahebi and his reporting. 

35. Whilst I accept that Ms Akhlaghi views herself incapable of performing the citizenship test, the evidence before me suggests that she is far more able than she herself has come to believe.  She has learnt to use a smartphone and she has navigated the process of moving to a new country and establishing a new life with her family.  She has cared for and raised her son under challenging and disruptive circumstances.  She has travelled overseas on her own.  She is her husband’s carer.  These factors indicate to me that Ms Akhlaghi has considerable capacity to learn and overcome obstacles. 

36. In circumstances where there is no clear diagnosis of Ms Akhlaghi’s condition, these factors weigh heavily.  Whilst Dr Pishyar has indicated that Ms Akhlaghi is unlikely to see any improvement and that her condition is permanent, there is scarce evidence to support this conclusion.  Ms Akhlaghi achieved some improvement in her condition when taking medication, but she has ceased doing so.  Though her stated reasons are understandable, in the absence of medical evidence which addresses this issue, it would appear that Ms Akhlaghi has reasonable treatment options to consider before her condition could be considered permanent or enduring. 

    CONCLUSION

37. For the reasons stated above, I am not satisfied that Ms Akhlaghi has a permanent or enduring physical or mental incapacity such that she meets the requirements of subsection 21(3)(d) of the Act. 

    DECISION

38. The decision under review is affirmed. 

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 11 August 2020

Date of hearing:	26 June 2020
Applicant:	In person
Solicitors for the Respondent:	Ms Emily Hill, Minter Ellison