Al Hellani and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 562

Al Hellani and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 562 (2 August 2016)

Division	GENERAL DIVISION
File Number	2015/2934
Re	Nohad Al Hellani
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	2 August 2016
Place	Adelaide

The Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant had a permanent or enduring physical or mental incapacity at the time she made the application – decision under review affirmed. 

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 21(2), 21(3)(d)  

CASES

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

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth) issued 1 July 2014

Citizenship Policy (Cth) issued 1 June 2016

REASONS FOR DECISION

Senior Member R W Dunne

2 August 2016

INTRODUCTION

1. Nohad Al Hellani (“applicant”) is a Lebanese national.  She first arrived in Australia on 12 December 2009 as the holder of a Partner (Provisional) visa (subclass 309) and on 2 December 2011 she was granted a Partner (Migrant) visa (subclass 100).

2. On 31 March 2015, the applicant lodged an application for Australian citizenship by conferral.  In her application, she did not indicate that she had a permanent or enduring physical or mental incapacity.  On 1 June 2015, the delegate refused the application for citizenship as he was not satisfied that the applicant had a permanent or enduring physical or mental incapacity pursuant to s 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (“Act”). 

3. On 16 June 2015, the applicant applied to this Tribunal for a review of the delegate’s decision.

4. At the hearing, the applicant represented herself (with her partner Mr Yasser Amro) and was assisted by an Arabic interpreter.  Ms C Stokes (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister.  I received into evidence the T documents[1] and the supplementary T documents[2] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. 

   [1] Exhibit R1.

   [2] Exhibit R2.

   ISSUE FOR THE TRIBUNAL

5. The issue for the Tribunal is whether the applicant satisfies s 21(3)(d) of the Act by demonstrating that she had a permanent or enduring physical or mental incapacity at the time of her application for citizenship.

   LEGISLATIVE AND POLICY BACKGROUND

6. Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen.  Specifically, s 21(3) sets out that 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 mean 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

   …”

   AUSTRALIAN CITIZENSHIP INSTRUCTIONS AND CITIZENSHIP POLICY

7. The Australian Citizenship Instructions (“Instructions”) have been issued by the Minister.  The Citizenship Policy (“Policy”) was also issued by the Minister on 1 June 2016.  The Instructions and the Policy have been adopted to guide those making decisions under the Act.  Chapter 5 of the Instructions relates to citizenship by conferral.  Paragraph 5.9 relates to permanent or enduring physical or mental incapacity for the purposes of s 21(3) of the Act.  Paragraph 5.9 relevantly reads:

   “…applicants 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:

   ·understanding the nature of their application

   ·demonstrating a basic knowledge of the English language or

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

   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.

   …

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

   …”

8. The Instructions and the Policy reflect Government policy and are not binding on the Tribunal.  However, the Tribunal should have regard to the Instructions and/or Policy unless there is good reason not to do so.[3]

   [3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

   BACKGROUND

9. When the applicant applied for citizenship, in her application form (at question 16) she did not indicate that she had a permanent or enduring physical or mental incapacity.  However, in support of her application, she provided letters from her GP (Dr Ahmad), her oncologist (Dr Taylor) and her specialist (Dr Bingham).  The letters contained the following information about the applicant:

   Dr Ahmad

   (b)The applicant was diagnosed with breast cancer in 2014 and is undergoing chemotherapy. 

   (c)Because of the pain and the side effects of the chemotherapy, she is, in her opinion, unable to do the English test prior to citizenship.  In particular, that chemotherapy can cause memory problems, headache, rash, nausea and vomiting, hair loss and abdominal pain.

   (d)The applicant is very depressed, unable to concentrate, socially isolated, has memory difficulties and it will be hard for her to sit any exam at this stage.

   Dr Taylor

   (a)The applicant is being treated for locally advanced breast cancer.

   (b)The applicant has just finished six months of chemotherapy which has caused poor memory, poor concentration, headaches, tiredness as well as nausea and vomiting. 

   (c)The side effects are expected to last several months making it impossible for her to do an English test prior to citizenship.

   Dr Bingham

   (a)The applicant has a locally advanced left breast cancer for which she has completed six months of pre-operative chemotherapy and has undergone a left mastectomy and auxiliary node clearance on 15 April 2015.

   (b)As a result of her treatment and recovery from surgery, in my (Dr Bingham’s) opinion, she is not fit at this time to undertake any examinations and has requested that this be postponed.

10. After filing her application for review, the applicant was referred by Dr Ahmad to a psychologist, Mr Medhi Abiyat.  The applicant was assessed by Mr Abiyat on 11 September 2015, 22 September 2015 and 29 September 2015.  He provided a report dated 29 September 2015 which was filed with the Tribunal Registry and revealed that, since his first meeting with the applicant, she “has undertaken few tests and questionnaires” which, in his opinion, showed the applicant has depression and anxiety issues such that she is incapable of retaining or learning new information.  And undertaking tasks that require memory and focus appear difficult.

11. The respondent arranged for a report from Associate Professor Philip Brinded, a Consultant Psychiatrist, dated 18 December 2015.  This was provided after an assessment appointment with the applicant on 2 December 2015.  Associate Professor Brinded reports that:

    (a)The applicant demonstrated signs and symptoms consistent with the diagnosis of a major depressive episode as defined in the Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association Edition 5 (DSM-5).

    (b)The applicant was initially diagnosed with a major depressive episode in September 2015 (some six months after her application for citizenship).

    (c)In his view, the applicant’s current symptoms of major depressive episode could not be considered to be permanent or long term.  He noted that depression was usually treatable and although her predicted date of recovery was unknown at the time of writing the report, he considered it was more likely that her condition would improve.

    (d)He was also of the view that her major depressive episode did not render her incapable of demonstrating a basic knowledge of the English language, or understanding the nature of the application for citizenship, or demonstrating an adequate knowledge of the responsibilities and privileges of citizenship.

12. In deciding to refuse the applicant’s application for citizenship, the Minister’s delegate reviewed the letters from Dr Ahmad, Dr Taylor and Dr Bingham.  In doing so, the delegate was not satisfied that the applicant’s incapacity is permanent or enduring because she is expected to recover following treatment and surgery.  As a temporary condition does not meet the requirement, the delegate was not satisfied that the applicant met s 21(3)(d) of the Act.

    EVIDENCE

    Evidence of applicant

13. It is the applicant’s evidence that she is a married woman who arrived in Australia to join her husband who is living here.  After her arrival she fell pregnant with her children twice.  She took on home duties and also to care for the children as her husband was attending school.  In 2014 she was diagnosed with cancer.  This was subsequently diagnosed as breast cancer.  It was her wish to return to Lebanon to visit her family there.

    Evidence of Nouha Jabel

14. Ms Jabel is the Chairperson of the Lebanese Community Advisory Centre.  She said she was giving evidence to support the applicant’s application for citizenship.  When asked whether she had seen the applicant, she said the applicant had not seen anyone at the Centre before lodging her application.  Ms Jabel said she was attending to support the applicant in making her application.   

    CONSIDERATION

    Did the applicant satisfy section 21(3)(d) of the Act by showing that she had a permanent or enduring physical or mental incapacity at the time of her application for citizenship?

15. When the applicant applied for citizenship, question 16 in the application form asked which of different circumstances applied to her.  The answers to these questions would have assisted the respondent in processing the application.  Detailing the circumstances that applied to her would have enabled the delegate to decide whether any of the provisions in the Act needed to be considered further.  The applicant did not answer question 16 to indicate whether she had a permanent or enduring physical or mental incapacity.  However, the other activities that were raised in question 30 of the application form, relating to crimes or offences, were all answered by the applicant in the negative.  Moreover, in support of her application the applicant provided letters from her GP (Dr Ahmad), her oncologist (Dr Taylor) and her specialist (Dr Bingham).  She was obviously alert to the need to provide these letters and the information contained in them, notwithstanding that she had omitted outlining her particular circumstances in question 16 in the application form.  Even though she did not answer question 16 in the way in which she did complete her application, this suggests that she was capable of understanding the nature of the application at the time she completed it.  In answering negatively all of the points raised in question 30, it suggests she was capable of demonstrating a basic knowledge of the English language at the time.

16. The respondent contends that the applicant has not provided sufficient evidence to support her claim that she satisfies the requirements of s 21(3)(d) of the Act.  The medical evidence from Dr Ahmad, Dr Taylor and Dr Bingham all relates to her successful treatment for breast cancer.  But that medical evidence does not indicate that at the time of her application the applicant had a permanent or enduring physical incapacity. 

17. The respondent further contends that, on the evidence before it, the Tribunal should not be satisfied that at the time of application the applicant had a permanent or enduring mental incapacity.  The limited report from Mr Abiyat dated 29 September 2015 that revealed he had conducted a “few tests and questionnaires” which, in his opinion, demonstrated the applicant had depression and anxiety issues, such that she is incapable of retaining or learning new information and undertaking tasks that require memory and focus, is difficult to comprehend and accept.  He did not provide an opinion as to whether her condition was permanent or enduring, nor did he expressly state that it would render her incapable of demonstrating a basic knowledge of the English language.

18. The applicant has argued, with the support of her medical representatives, that she suffered severely from breast cancer and radiotherapy treatment, which caused depression, anxiety and stress resulting in poor concentration, short term memory and constantly low mood.  However, in considering these issues, I note that:

    (a)Mr Abiyat said that he would work with the applicant for six sessions and inform of the outcome of the therapy in writing.  In fact there were only three sessions in September 2015, which suggests that Mr Abiyat no longer needed to meet with the applicant about her mental incapacity.

    (b)In a report to Dr Bingham dated 24 August 2015 from Dr Perkins at the radiation oncology clinic at the Royal Adelaide Hospital, he said that the applicant had completed her radiotherapy treatment “with minimal side effects”.

    (c)In a report by Dr Bingham to Dr Ahmad dated 24 November 2014, she said that the applicant was coping very well with her chemotherapy and she agreed that there is overall improvement. 

    (d)In a report by Dr Bingham to Dr Ahmad on 2 February 2015, she said the applicant had tolerated her chemotherapy very well and that overall this had reduced the size of her left breast lump.

    (e)In the K10 measure of psychological distress undertaken by the applicant on 18 August 2015, she achieved a score of 29 out of 50.  In this regard, the maximum score is 50, indicating severe distress, and the minimum score is 10, indicating no distress.  The applicant’s score is better than average.

19. In my view, in reviewing the applicant’s medical evidence it is necessary to take into account the above information when considering overall what material has been provided by or for the applicant.  In doing so, although paragraph 5.9 of the Instructions anticipates that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis, this has not occurred in the applicant’s case.

20. The respondent has arranged for a report from a Consultant Psychiatrist, Associate Professor P Brinded.  This report is dated 18 December 2015 and was provided after an assessment appointment with the applicant on 2 December 2015.  The main items in the report appear at paragraph 11 of these reasons.  Unlike Mr Abiyat’s report, Associate Professor Brinded’s report was compiled after taking a detailed history from the applicant as part of a specific psychiatric assessment.  Having examined the applicant, the Associate Professor opined that the applicant’s current symptoms of major depressive episode could not be considered to be permanent or long term, and that her condition did not render her incapable of demonstrating a basic knowledge of the English language, of understanding the nature of the application, or of demonstrating an adequate knowledge of the responsibilities and privileges of citizenship.  Further, the Associate Professor’s report concludes that the applicant was initially diagnosed with a major depressive episode in September 2015 (some six months after the application for citizenship was made on 31 March 2015). 

21. Because of all these circumstances, I agree it cannot be said that the applicant had any relevant mental incapacity at the time of her application for citizenship.

    CONCLUSION

22. Having reviewed all the medical evidence in this proceeding, including the medical evidence for the applicant, I am satisfied that the comprehensive report of Associate Professor Brinded is to be preferred.  Accordingly, I am not satisfied that the applicant meets the criteria in s 21(3)(d) of the Act.  It follows that she is not eligible to become an Australian citizen, but it would be open for her to reapply for citizenship at a later time.

    DECISION

23. For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 2 August 2016

Date(s) of hearing	19 May 2016
Applicant	In person
Advocate for the Respondent	Ms C Stokes
Solicitors for the Respondent	Australian Government Solicitor