Alabsawi and Minister for Immigration and Border Protection

[2014] AATA 465

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)No: 2013/4194

General Administrative Division               )

Re: Amira Alabsawi

Applicant

And: Minister for Immigration and Border Protection

Respondent

DECISION

TRIBUNAL:             Deputy President J W Constance

DATE:                      13 June 2014

PLACE:                   Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the decision of the respondent made 1 August 2013 is affirmed.

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

Deputy President

[2014] AATA 465

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4194
Re	Amira Alabsawi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

reasons for Decision

(EDITED TRANSCRIPT OF REASONS GIVEN ORALLY)

Deputy President J W Constance

introduction

1. In March of 2013 Mrs Alabsawi applied to the Minister for Australian citizenship in accordance with subsection 21(3)(d) of the Australian Citizenship Act 2007 (Cth).  That section requires an applicant to meet a number of conditions. 

2. The Minister has refused Mrs Alabsawi's application and set out the reasons for that decision in a letter and reasons of 1 August 2013.  He has indicated that Mrs Alabsawi meets all of the conditions, except the condition set out in paragraph (d) of subsection (3), and it is only the question of whether Mrs Alabsawi meets that condition that is before me today. 

   legislation and instructions

3. Subsection 21(3)(d) of the Act reads as follows:

   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

   …

4. The Minister has issued Australian Citizenship Instructions to guide a decision-maker in applying the provisions to which I just referred.  Those instructions are not binding on the Tribunal.  However, unless there is good reason not to do so, I should follow them.  On the facts before me, there is no reason why I should not follow and apply these Instructions and I intend to do so. 

5. In relation to subsection 21(3)(d), the Instructions state:

   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 a person to recover before becoming eligible for Australian citizenship. 

   consideration

6. The first issue I must decide is whether Mrs Alabsawi has a permanent or enduring physical or mental incapacity.  There is no suggestion that she suffers any physical incapacity, and the evidence has been directed towards her suffering a mental incapacity.  I particularly note that this incapacity must be shown to be either permanent or enduring.  To determine this I must rely on the medical evidence that is available to me.  With her application Mrs Alabsawi provided a copy of a report from Dr Asadi dated 5 February 2012.  This was more than 12 months before the application was lodged.  In that report, Dr Asadi said, in part:

   She does not have any major medical background, she is not taking any regular medication and she does not have any drug allergies., her only major problem is the stressful life with caring for her two disabled sons and because of her educational level only primary school that makes it difficult for her to attend citizenship language test.

7. Following her lodging the application, Mrs Alabsawi consulted Dr Ibrahim, a consultant psychiatrist, for the purposes of the citizenship application.  Dr Ibrahim reported on 5 July 2013 that Mrs Alabsawi presented:

   …a picture of a chronic adjustment disorder for the last four years…

   Dr Ibrahim also said that Mrs Alabsawi suffered depressed mood, lack of interest and motivation, and problems in attention and concentration. 

8. Mrs Alabsawi consulted Dr Ibrahim again on 8 October 2013.  He said that she then presented with a similar clinical picture to the previous occasion.  He said that Mrs Alabsawi told him:

   …she was more depressed when she was refused and felt pushed and obliged to attend a test in a foreign language, while she never attended any schooling, and knows no reading and writing in her mother tongue, let alone a foreign language. 

9. This is the extent of the medical evidence which I have before me. 

10. Of course, the first step is to look at the words used in the provisions of the Act and that requires that I be satisfied that Mrs Alabsawi has a permanent or enduring mental incapacity at the time she made her application for citizenship.  On the basis of the medical evidence to which I have just referred, I am not satisfied that Mrs Alabsawi has such an incapacity.  Whilst I accept that she suffers from a stressful situation, and may suffer depression from that situation, I cannot be satisfied that that situation is either permanent or enduring.  Mrs Alabsawi told me that the only treatment advised by

    
     

    Dr Ibrahim was that she, in effect, take a rest and go away and travel.  He did not prescribe any other treatment and Mrs Alabsawi told me that the only medication she had taken was some sleeping tablets whilst she was in Iraq. 

11. Mrs Alabsawi spent the six months prior to the middle of May this year in Iraq.  She has not sought any further treatment from Dr Ibrahim or, it appears, any other medical practitioner, for her condition since returning from Iraq.  I also take into account that Dr Ibrahim was prepared to diagnose a chronic adjustment disorder over a period of four years on his first consultation with Mrs Alabsawi in July 2013.   However, this does not seem to me to be consistent with the view expressed by Dr Asadi in February 2012, that she did not have any major medical background and was not taking any regular medication.  It may well be, if necessary, that Mrs Alabsawi's mental condition, however diagnosed, could be treated. For this reason, I am not satisfied that it is either permanent or enduring.  

12. Even without further treatment, I am not satisfied that her condition may not resolve within a reasonable time in the future if the situation at home improves.  Mr Alabsawi indicated that he had been advised that all the treatment that could be provided was that particular care be taken of Mrs Alabsawi. 

13. As I am not satisfied that any mental incapacity is either permanent or enduring, it is not necessary that I consider the further requirements of paragraph (d) of subsection 21(3). 

14. Mrs Alabsawi and Mr Alabsawi should understand that my decision relates to the application that has been lodged. There is nothing to stop Mrs Alabsawi making a further application for citizenship at some time in the future.  I am required to decide this matter on the basis of the evidence I have before me but in relation to the time that Mrs Alabsawi made the present application, that is back in March 2013.  The situation may well change and there may be further medical evidence that could be obtained on a new application.  I understand that the lawyers representing the Minister did suggest to Mrs Alabsawi some further information that could be obtained from Dr Ibrahim. Apparently that information was not obtained.  If it has been obtained it has not been provided to either the Minister's representatives or the Tribunal.  Information such as that may assist in a future application. 

    conclusion

15. For these reasons, the decision of the Minister refusing Mrs Alabsawi's application for citizenship, which was made on 1 August 2013, will be affirmed.  Mrs Alabsawi, this means that the decision of the Minister has not been changed and your application has not been successful.