Al-Gburi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2248

Al-Gburi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2248 (9 June 2021)

Division: GENERAL DIVISION

File Number(s):      2020/5402

Re:Suhama Najm Abdulwahid Al-Gburi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:9 June 2021

Date of written reasons:        13 July 2021

Place:Sydney

The Tribunal sets aside the reviewable decision made by a delegate of the Respondent on 6 August 2020 and remits the matter to the Respondent with a finding that the Applicant satisfies paragraph 21(3)(d)(ii) of the Australian Citizenship Act 2007 (Cth).

..............................[SGD]..................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – citizenship test – eligibility requirements for citizenship – permanent or enduring physical or mental incapacity – consideration of medical evidence – PTSD - depression in remission - decision set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Administrative Appeals Tribunal Act (Cth) s 37

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020

WRITTEN REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

13 July 2021

INTRODUCTION

1. The Applicant, an Iraqi citizen, was granted a refugee visa in 2015.[1] In 2019 she lodged a claim for Australian citizenship without doing the citizenship test, on the ground that she was suffering from a permanent or enduring mental incapacity, meaning that she not capable of demonstrating a basic knowledge of the English language at the time of her application.[2]  She included four children in her application.[3]

   [1] The applicant’s Refugee (Subclass XB-200) visa granted on 26 May 2015, and she arrived in Australia on 7 July 2015: T2/27.

   [2] The original application for citizenship was made on 24 July 2019 and was received by the Department of Home Affairs on 7 August 2019.

   [3] T6/91.

2. She provided a number of medical and psychiatric reports which referred to her experiencing PTSD and major depressive disorder. PTSD was said to be caused by witnessing the death of her brother and other traumatic experiences caused by the Iraq war. A 2019 medical report suggested that her depressive disorder was in partial remission. A delegate of the Minister asked for clarification, and she provided a further psychiatric report.

3. On 6 August 2020, the delegate rejected her citizenship application (‘the reviewable decision’), whereupon the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.[4] The Tribunal heard the matter by videoconference on 9 June 2021.

   [4] On 31 August 2020.

4. The documentary evidence before the Tribunal consisted of the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), including the medical reports considered by the delegate. The Applicant tendered a further psychiatric report (dated 21 March 2021) to the Tribunal for the present proceedings.

5. The Applicant and her husband gave evidence to the Tribunal through an Arabic interpreter. The Applicant’s 15-year-old son also gave evidence to the Tribunal.

6. After considering the medical reports, and hearing from both parties, I indicated that I was satisfied that at the time of her application she was suffering from a permanent or enduring mental incapacity, meaning that she was not capable of demonstrating a basic knowledge of the English language. I therefore decided to set aside the decision made on 9 August 2020 by the delegate refusing the application, and remitted the matter with a finding that the Applicant satisfies paragraph 21(3)(d)(ii) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).

7. On 15 June 2021, the Respondent asked for written reasons for my decision.

   LEGISLATIVE REQUIREMENTS

8. Section 21(2) of the Act sets out the general eligibility requirements for citizenship including that the Applicant understands the nature of a citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.  For present purposes, these are called the ‘knowledge requirements’.

9. By virtue of s 21(2A), the knowledge requirements are taken to be satisfied if and only if the Minister is satisfied that the Applicant has successfully completed a prescribed test (‘the Citizenship Test’) within the approved time.

10. Section 21(3)(d) provides a health exception to this requirement. In effect, a person may acquire citizenship even without doing the test 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; 

    THE CITIZENSHIP POLICY

11. The Citizenship Policy (‘the Policy’) is intended to provide policy guidance to decision makers on the interpretation of and exercise of powers under the Act. Although a policy is not binding on the Tribunal unless specifically adopted by Parliament, it is accepted that a decision maker will generally apply departmental policy unless there are cogent reasons not to do so.[5]

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

12. In relation to the evidentiary requirements regarding persons with a permanent or enduring mental incapacity for the purpose of subsection 21(3), the Policy states:

    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.

13. The Policy adds 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.

    THE MEDICAL EVIDENCE

14. The Tribunal was provided with three medical reports by Dr Mukesh Kumar (9 November 2017; 18 January 2018; 4 July 2019), and three reports (27 July 2020; 24 August 2020; 21 March 2021) from Dr Assad Saboor. There was also a report from Ms Rhavika Chauhan (Health Information Release and Support Officer) dated 11 March 2021.

15. Dr Kumar and Dr Saboor are well-qualified and experienced psychiatrists, and each is a Fellow of the Australian and New Zealand College of Psychiatrists. The Respondent did not challenge the qualification or experience of these specialists.

16. The Respondent’s Statement of Facts, Issues and Contentions, summaries the reports.[6] I have rearranged the summary in chronological order:

    [6] Paragraphs [12] to [23].

    Letter from Dr Mukesh Kumar dated 9 November 2017 (T1, f15-16)

    Dr Kumar states that:

    She is now on Mirtazapine 30 mg nocte. With this, there are some improvements. Her sleep and appetite are poor concentration which is still ongoing.

    …

    She was easy to engage in a conversation and was able to articulate her thoughts rationally and logically. She reported her mood as "low" and her affect was depressed. She denies any thoughts of self harm or suicide and there were no psychotic symptoms during the interview. Her insight and judgment are fair.

    Letter from Dr Kumar dated 18 January 2018 (T1, f17)

    Dr Kumar states (errors in the original):

    Though her sleep has improved on the Mirtazapine 30 mg note, her depressive symptoms have continued. The family report that she continues to remain "nervous" and upset. She ruminates about her past life events (the murder of her brother and the threats in Iraq) and if often noticed to be crying. Her appetite is variable her concentration is poor. She is quite forgetful and often makes "small mistakes" e.g. forgetting to put salt in food. Suhama isolates herself and her social contact is with only with her family. In terms of risks, she denies any thoughts, plans or intentions of self harm or suicide. There are no psychotic symptoms.

    …

    She was easy to engage in a conversation and was able to articulate her thoughts rationally and logically. She reported her mood as "low" and her affect was depressed. She denies any thoughts of self harm or suicide and there were no psychotic symptoms during the interview. Her insight and judgment are fair.

    Letter from Dr Kumar dated 4 July 2019 (T1, f18-19)

    Dr Kumar states that the Applicant has 'Major Depressive Disorder in partial remission', and that she 'has had difficulties in concentration which leads to forgetfulness and she is unable to learn English. She lacks capacity to learn a new language and is unable to take the Citizenship test'. Dr Kumar also states that although 'there have been some improvements in her depressive symptoms with treatment, the poor concentration is a significant symptom, not responding to treatment. It is unlikely that she will be able to learn English to the level that she can take the Citizenship test'.

    Report from Dr Saboor dated 27 July 2020 (T1, f20-22)

    Dr Saboor states that (errors in the original):

    She has ongoing longstanding forgetfulness. Her family was supporting her.

    She was not allowed at home to cook because of several incidences of burning the food and leaving the stove on. She needs full support at home with cleaning, cooking, shopping and self-care.

    He had not attended any TAFE courses to learn English and told me because she could not do it due to her depression, poor attention and concentration leading to forgetfulness. Therefore, she did not go to any English classes.

    She has ongoing untreated longstanding symptoms of PTSD and Depressive Illness including: Depressed mood, crying daily, feeling sad and upset, poor appetite, preoccupation with past traumatic event (her brother was killed in front of her In Iraq), socially withdrawn, poor energy level, lack of motivation, being on edge, hyper-vigilant, fearful, excessive anxiety, and recurrent experiences of intrusive memories of past trauma in the form of flash back and nightmare.

    These symptoms impacted negatively on her psychosocial and daily functioning requiring ongoing contact support. In addition, these symptoms affected negatively on her ability to register new information to learn due her PTSD and depressive symptoms affecting her attention and concentration leading to forgetfulness.

    I recommenced her on Citalopram 20mg and advised her to come for review and to recommence her psychological therapies.

    Report from Dr Assad Saboor (Psychiatrist) dated 24 August 2020 (T1, f12-14)

    Dr Saboor states that (errors in the original):

    I noted that she had seen Dr Mukesh Kumar Consultant psychiatrist form 2017 to 2019 for treating her depression. He had prescribed her Fluoxetine, Mirtazapine and Sertraline. I noted that she had not been compliant with her medication and had partially responded to her medication.

    She was not on medication for her depression when I asked her on the assessment.

    She presented with the following issues:

    She has ongoing longstanding forgetfulness. Her family was supporting her.

    She was not allowed at home to cook because of several incidences of burning the food and leaving the stove on. She needs full support at home with cleaning, cooking, shopping and self-care.

    He had not attended any TAFE courses to learn English and told me because she could not do it due to her depression, poor attention and concentration leading to forgetfulness. Therefore, she did not go to any English classes.

    She has ongoing untreated longstanding symptoms of PTSD and Depressive Illness including: Depressed mood, crying daily, feeling sad and upset, poor appetite, preoccupation with past traumatic event (her brother was killed in front of her In Iraq), socially withdrawn, poor energy level, lack of motivation, being on edge, hyper-vigilant, fearful, excessive anxiety, and recurrent experiences of intrusive memories of past trauma in the form of flash back and nightmare.

    These symptoms impacted negatively on her psychosocial and daily functioning requiring ongoing contact support. In addition, these symptoms affected negatively on her ability to register new information to learn due her PTSD and depressive symptoms affecting her attention and concentration leading to forgetfulness.

    I recommenced her on Citalopram 20mg and advised her to come for review and to recommence her psychological therapies.

    I subsequently review her on 17/08/20 and she was seated with the medication.

    There was no improvement with the medication. I ceased her citalopram and commenced her on Fluoxetine. I advised her to come for review in 1 month.

    Report from Dr Saboor dated 21 March 2021

    Dr Saboor states that the Applicant's date of incapacity is 'unclear', stating that she 'suffered trauma during the war in Iraq in which her brother was killed in front of her'.

    In relation to the amount of sessions she has attended, Dr Saboor confirms that the Applicant 'attended 5 times for consult in my rooms at Wentworthvile' and that she has been attending consultations on a regular basis.

    In relation to the cognitive or clinical testing that has been undertaken, he states that it is beyond his expertise to perform cognitive testing.

    Dr Saboor states that:

    Her ongoing symptoms have negatively impacted on her ability to focus and sustain attention which is a requirement for registration of new information. This resulted in her inability to learn any new information including learning basic level of English required for the Australian Citizenship Exam.

    Based on the provided information and regular review of her mental state and progress I am of the opinion she has a permanent or enduring mental incapacity. She is not capable of demonstrating a basic knowledge of the English language. The nature of her medical condition is a permanent and enduring incapacity which she is not capable of demonstrating a basic knowledge of the English language.

    Report from Ms Rhavika Chauhan (Health Information Release and Support Officer) dated 11 March 2021

    Ms Chauhan states that the Applicant was referred to STARTTS on 20 April 2018 and was first assessed by a Counsellor on 31 May 2018. The outcome of that assessment was that the Applicant had post-traumatic stress disorder symptoms, and anxiety and depression symptoms.

    Ms Chauhan states that the Applicant is recorded to have attended a total of six counselling sessions. She was discharged on 13 November 2018 and her treatment was recorded as complete. However, the Applicant was re-referred to STARTTS on 19 August 2020, but did not attend any sessions.

    The Applicant was reallocated a Counsellor on 22 February 2021 and was recorded to have attended 1 counselling session on 10 March 2021.

17. The delegate rejected Dr Kumar’s diagnosis on the basis that his medical reports did not provide an adequate basis for assessing the impact of the Applicant’s condition upon her capacity to satisfy the knowledge requirements required by s 21(3)(d).

18. The delegate rejected Dr Saboor’s finding on the basis that his report did not provide any specific information as to the length of time he had been treating the Applicant.  I note that the report by Dr Saboor was provided by the Applicant after the Department wrote to the Applicant suggesting that further information was required with regard to her condition.[7] Dr Saboor provided a fresh set of eyes, and not only interviewed the Applicant but reviewed the previous reports prepared by Dr Kumar.

    [7] Transcript/14

    CONSIDERATION

19. In determining whether the Minister can be satisfied that the Applicant meets the paragraph 21(3)(d) requirements, two issues arise. The first is whether the claimed physical or mental incapacity was permanent or enduring at the time of the application. The second is whether the claimed incapacity means that the Applicant is not capable of meeting one or more of the knowledge requirements.

    Did the Applicant suffer from a permanent or enduring physical or mental incapacity at the time of her application?

    Permanent or enduring incapacity

20. The Respondent argued that the medical evidence did not support a finding that the Applicant was afflicted by a permanent or enduring medical condition. The Respondent’s representative argued that the fact that Dr Kumar reported that the Applicant was responding well to treatment for depression and that her depression was “in partial remission” meant that her condition was not permanent or enduring. With regard to Dr Saboor, the Respondent’s representative argued that the various report reports did not clearly specify the date of diagnosis or whether Dr Saboor considered that she might recover at some point from her depressive illness.

21. In his report of 21 March 2021, Dr Saboor stated that he had seen the Applicant on five occasions since July 2020. Given the clear and categorical terms in which Dr Saboor has stated his opinion, and in the absence of any conflicting medical onion, I am satisfied that her underlying depressive illness and associated PTSD are in the nature of permanent or enduring conditions. The existence of some periods of remission is not inconsistent with there being an underlying permanent or enduring condition.

22. I note that Chapter 7 of the Policy provides:

    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.

23. I am satisfied, based on the opinions expressed in the medical reports provided by Dr Assad Saboor and Dr Kumar, that, at the time of her application, the Applicant suffered from a permanent or enduring physical or mental incapacity namely PTSD and depression.  The evidence is that this is a long-term condition, and I think that it would be unreasonable to expect the Applicant to fully recover before becoming eligible for Australian citizenship.

    The knowledge requirements

24. I turn to the second question for decision. Did the presence of an underlying permanent or enduring health condition mean that the Applicant was incapable of acquiring or demonstrating one or more of the knowledge requirements?

25. I have previously remarked that for non-English speakers, especially those of more advanced years who have never acquired even rudimentary English, acquiring a basic knowledge of the English language presents a daunting challenge. A permanent or enduring physical or mental incapacity will inevitably create an additional burden for those seeking to acquire a basic understanding of English.

26. The statutory requirement that a person be incapable of demonstrating a basic knowledge of English is equivalent in my view to a requirement that for a particular individual the task is a practical impossibility.

1. The Minister’s representative contended that the medical reports did not provide an adequate basis for assessing the impact of the Applicant’s condition upon her capacity to satisfy the knowledge requirements required by s 21(3)(d).

2. I refer to Dr Saboor’s report of 21 March 2021, (which was not before the delegate):

   She has ongoing long-standing forgetfulness. Her family was supporting her.  She was not allowed at home to cook because of several incidences of burning the food and leaving the stove on. She needs full support at home with cleaning cooking shopping and self-care.

   He (sic) had not attended any TAFE courses to learn English and told me because she could not get do it due to her depression, poor attention and concentration, leading to forgetfulness. Therefore she did not go to any English classes.

   She has ongoing untreated long-standing symptoms of PTSD and Depressive Illness including: Depressed mood, crying daily, feeling sad and upset, poor appetite, preoccupation with post-traumatic event (her brother was killed in front of her in Iraq), socially withdrawn, poor energy level, lack of motivation, being on edge, hyper-vigilant, fearful, excessive anxiety, and recurrent experiences of intrusive memories of past trauma in the form of flashbacks and nightmares.

   These symptoms impacted negatively on her psychosocial and daily functioning requiring ongoing contact support. In addition, these symptoms affected negatively on her ability to register new information to learn due to her to learn due her PTSD and depressive symptoms affecting her attention and concentration leading to forgetfulness.

   Based on these issues she has incapacity to learn new information which leading to her incapacity to understand or learn basic level of English requires for the citizenship exam.

3. In light of all the evidence presented in this case, I am satisfied that the Applicant was not capable of demonstrating a basic knowledge of the English language at the time she applied for citizenship.

   DECISION

4. The Tribunal sets aside the reviewable decision made by a delegate of the Respondent on 6 August 2020 and remits the matter to the Respondent with a finding that the Applicant satisfies paragraph 21(3)(d)(ii) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..............................[SGD]..................................

Associate

Dated: 13 July 2021

Date(s) of hearing:	9 June 2021
Applicant:	In person
Solicitors for the Respondent:	Ms Sarah Hardie, HWL Ebsworth Lawyers