Alali and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 278

Alali and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 278 (28 March 2025)
Applicant/s:  Kamal Rasheed Silo Alali
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/2165
Tribunal:General Member J Cipolla
Place:Sydney
Date:28 March 2025

Decision:The decision under review is set aside on the basis that the Tribunal finds that the Applicant qualifies under section 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking the Australian Citizenship Test.

……….…..[SGD]…………………………..
General Member J Cipolla
Catchwords

CITIZENSHIP – application for citizenship by conferral – applicant claiming permanent or enduring physical or mental incapacity within the meaning of paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) – applicant’s medical and personal history considered – relevant law and policy considered – decision under review set aside.

Legislation

Australian Citizenship Act 2007 (Cth)

Cases
Butrus and Minister for Immigration and Border Protection [2019] AATA 239
Secondary Materials
Citizenship Policy
Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

STATEMENT OF REASONS
INTRODUCTION

Mr Kamal Rasheed Silo Alali (‘the Applicant’) seeks review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse his application for Australian citizenship by conferral.
In the normal course of processing an application for citizenship, a person who applies to become an Australian citizen is required to satisfy the Minister that, amongst other things, they understand the nature of the 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 they have successfully completed the citizenship test. However, an exemption applies to applicants who have a permanent or enduring physical or mental incapacity that renders them incapable of satisfying these requirements by successfully sitting the citizenship test.
On 22 March 2024, a delegate of the Minister refused the Applicant’s application for Australian citizenship, as they were not satisfied that the Applicant had provided sufficient evidence to demonstrate that he had a permanent or enduring incapacity that would satisfy the criteria required to be exempt from taking the citizenship test. The delegate found that the Applicant’s incapacity was only temporary in nature.
The Applicant contends that the “content and circumstances” of the medical evidence he provided were not properly taken into consideration.
On 28 March 2024, the Applicant applied to the Tribunal for a review of the delegate’s decision.
ISSUES IN THE REVIEW
The issues for the Tribunal to determine are:
(a)whether the Applicant had a permanent or enduring physical or mental incapacity at the time of his citizenship application on 17 October 2023; and, if so
(b)is there a causal relationship between the incapacity and the Applicant not being capable of understanding the nature of the application at that time; or was not capable of demonstrating a basic knowledge of the English language at that time; or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
LEGISLATION AND POLICY
Section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) sets out the requirements for Australian citizenship by conferral. The general eligibility requirements for Australian citizenship by conferral are outlined in subsection 21(2). Paragraphs 21(2)(d) to 21(2)(f) specify that a person must understand the nature of an application for Australian citizenship, possess a basic knowledge of the English language, and have adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
Ordinarily the criteria at paragraphs 21(2)(d), 21(2)(e) and 21(2)(f) are satisfied when the applicant is eligible and successfully completes the citizenship test, as provided for in section 23A of the Act.
A person who applies for Australian citizenship under subsection 21(1) of the Act is eligible for conferral in accordance with subsection 21(3) if the Minister is satisfied that the person meets each of the requirements in paragraphs 21(3)(a) to 21(3)(f).
Paragraph 21(3)(d) requires 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 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 Act does not define permanent or enduring physical or mental incapacity, but the Citizenship Policy (‘the Policy’) and the Citizenship Procedural Instructions provide guidance to decision makers on the interpretation of and exercise of powers under the Act. CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (‘the Instructions’) sets out the requirements for assessing incapacity and determining whether paragraph 21(3)(d) is satisfied.
Although the Tribunal is not strictly bound by the Policy and the Instructions, the Tribunal as decision-maker will generally apply policy unless there are cogent reasons not to do so.
In relation to incapacity the Policy relevantly 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.
The Instructions also specify that the incapacity must be the direct cause of the applicant failing to meet the requirements in paragraph 21(3)(d) of the Act.
In a decision by then Senior Member Puplick in Butrus and Minister for Immigration and Border Protection [2019] AATA 239, reference is made to the findings of the Australian Citizenship Test Review Committee (the Woolcott Committee) report of August 2008, Moving Forward: Improving Pathways to Citizenship.
Senior Member Pulpick noted at paragraph 26 of his decision that prior to legislative amendments to the Citizenship Act which were effected by the passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009, section 21(3)(d) established that in cases of citizenship eligibility, where a person had “a permanent physical or mental incapacity at the time of the application, this meant the person was not capable of understanding the nature of the application at that time.”
Senior Member Pulpick notes that the Woolcott Committee (at page 34-35 of the report) recommended that:
In looking closely at the legislation, the Committee believes that there is scope for improving the exemption provisions regarding “mental incapacity”.
For survivors of torture and trauma, the use of a formal test which requires a high level of English proficiency, a large amount of study and familiarity in the use of a computer, significantly disadvantages them. There are many people who come to Australia under the Humanitarian Program who fall into this category.
The Committee considers the current exemption criteria do not take into consideration the effect of severe and chronic symptoms resulting from the experience of torture and trauma. These may include strong anxiety associated with learning difficulties, and while some symptoms are permanent, others, though severe, are not necessarily permanent.
Section 23A sets out the process for a citizenship test and it states in the note that the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d) understanding the nature of the application, (e) a basic knowledge of the English language and (f) an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
Therefore, “mental incapacity” is only being used as an exemption in relation to section 21(2)(d) (understanding the nature of the application) but is not included in section 21(2)(e) and (f) which require a basic knowledge of the English language and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. However, they are all relevant to citizenship testing.
Moreover, permanent physical and mental incapacity uses the words “at that time” in relation to when an application for Australian citizenship is lodged. The Committee considers that the use of “permanent” and “at that time” are contradictory when discussing mental incapacity, and in light of the consultations, is of the view that the physical and mental incapacity may not need to be permanent to satisfy the principle underpinning this exemption.
The Committee believes there will be people in this enlarged group who may never fit into the suggested alternative pathways discussed earlier in this report because their past traumatic experiences affect their ability to retain the necessary information required to pass a test.
It is suggested that section 21(3)(d) could be amended in the spirit of the existing Act to read:
“has a physical or mental incapacity at that time means the person is not
capable due to the physical or mental incapacity of:
• understanding the nature of the application at that time; or
• demonstrating a basic knowledge of the English language at that time; or
• demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.”
Senior Member Pulpick noted at paragraph 29 of his decision, that in specific reference to the citizenship test that the Woolcott Committee recommended:
“Section 21(3)(d) of the Australian Citizenship Act 2007 be amended in the spirit of the Act to include an inability to demonstrate a basic knowledge of English and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship due to mental incapacity, resulting in those individuals not being required to sit a test.”
APPLICANTS MATERIALS
The Applicant is not represented in the proceedings before the Tribunal, and the Tribunal has had regard to the evidence provided by the Applicant to the Department and at review.
The Applicant was born on 2 December 1972 in Iraq and arrived in Australia on 15 August 2018 as the holder of a Subclass 200 Refugee visa.
When the Applicant lodged his application for Australian citizenship by conferral on 17 October 2023, he indicated at question 21 of that application that he had a permanent or enduring physical or mental incapacity, meaning that he was not capable of understanding the nature of the application, demonstrating a basic knowledge of English, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
The evidence before the Tribunal indicates that the Applicant identified having mental health related issues from 2014, during the ISIS insurgency in Iraq, when the Applicant witnessed atrocities and the forced removal of women and girls from their homes. These circumstances led to the Applicant and his family to flee to Turkey as refugees. The evidence also indicates that the Applicant’s brother and his family attempted to travel to Greece by boat, however, they drowned at sea. The Applicant and his family remained in Turkey and were able to eventually secure asylum to Australia where they obtained Subclass 200 Humanitarian Refugee visas.
In support of the Applicant having a permanent or enduring physical or mental incapacity, which indicated that he was not incapable of understanding the nature of the citizenship application, the Applicant provided a report from Dr Fawaz Mufti, a consultant psychiatrist, dated 4 October 2023.
Dr Mufti reviewed the applicant in his clinic on 9 August 2023. There was no official interpreter used and Dr Mufti noted that the Applicant was accompanied by a neighbour who acted as an interpreter for him.
The report indicated that, at the time, the Applicant was a 51-year-old male who had been resident of Australia since 2018 and was originally from Iraq. The report noted that the Applicant had been married since 1993 and had three children, at that time aged 19, 17 and 3 years old. The report noted that the applicant was surviving on Centrelink payments in Australia, while his eldest son and daughter were supporting the family by working part-time. The Applicant reported that he had been having issues with his mental health since 2014, when he was living in Iraq, at which time the country was invaded by Daesh and ISIS. During this period, the Applicant witnessed significant killing, and the forced removal of women and girls from Iraq. The Applicant stated that he and his family fled to Turkey where they stayed for a few years and that his brother and family tried to travel to Greece by boat from Turkey but drowned at sea.
The report stated that, at the time of the assessment by Dr Mufti, the Applicant’s mood was low, and he reported experiencing anhedonia, finding it difficult to enjoy day-to-day things. The Applicant also reported a lack of energy and motivation, poor concentration, and disrupted sleep; characterised by early morning awakenings and interrupted sleep throughout the night. The Applicant tended to avoid traumatic incidents, such as watching the news on television, and found it difficult to travel outside his home. The Applicant reported having suicidal ideation until 2017, and that at one point in time he was considering taking poison. The report noted, however, that at the time of the assessment in August 2023, the Applicant was not exhibiting suicidal thoughts or tendencies. The Applicant reported having flashbacks and nightmares related to incidents in Iraq.
The report from Dr Mufti noted that the Applicant had not sought any treatment for mental health issues since arriving in Australia and had used alcohol from time to time. The report noted that the Applicant suffered from high blood pressure and diabetes, which were relatively well-controlled by his general practitioner and that he did not take illicit drugs.
The Applicant reported at his assessment with Dr Mufti, that he completed secondary school and worked in a restaurant in Iraq until the time of the invasion. He reported not having a previous mental health history.
During his assessment, Dr Mufti conducted a mental state examination of the Applicant whom he described as visibly anxious, his eyes being downcast, and difficulty communicating in English. The examination revealed the Applicant had a low mood and being quite depressed. The Applicant was described as not having suicidal ideation or having abnormal perceptions or thoughts. Dr Mufti noted that the application of the Rowland Universal Dementia Assessment Scale indicated “poor registration, recall, memory and judgement.”
Dr Mufti determined after conducting the mental state examination that the Applicant “suffers from symptoms of generalised anxiety disorder, major depressive disorder, and post-traumatic stress disorder. These symptoms are affecting his ability to concentrate and focus and learn new information. He has been studying English at TAFE, but he has not been able to gather much information due to poor focus and concentration”.
Dr Mufti recommended the possibility of starting a course of antidepressant medication to deal with the Applicant’s symptoms of trauma and anxiety, however, he noted that the Applicant was not keen at the time to try medications due to the fact that he was already taking medications for blood pressure and diabetes. Dr Mufti recommended a trial of sertraline 50mg in the morning with a gradual increase to a maximum dose of up to 200mg to determine the best response. The report noted that the Applicant would benefit from psychological therapy in the form of evidence-based treatment for post-traumatic stress disorder. Dr Mufti concluded that “due to his ongoing symptoms of post-traumatic stress disorder, anxiety and depression, I feel his concentration has been affected, which is making him not able to learn new information and I support his application for an exemption from the Australian citizenship test based on the above information.”
The evidence before the Tribunal indicates that the delegate, when processing the Applicant’s citizenship application, was not satisfied that the report submitted from Dr Mufti sufficiently addressed whether the Applicant satisfied the legislative requirement of having a permanent or enduring physical or mental incapacity. As a consequence, the delegate found he was not capable of understanding the nature of the application, demonstrating a basic knowledge of English or demonstrating an adequate knowledge of the responsibilities and privileges of Australian citizenship.
The delegate wrote to the Applicant on 13 February 2024, requesting further information.
In response to this request, the Applicant provided an earlier report from Dr Mufti dated 13 August 2023 which was very close in content to the report dated 4 October 2023. The Applicant also provided a medical certificate used for Centrelink purposes, issued by Dr Geraldine Duncan, a general practitioner, dated 29 September 2023. This certificate listed the Applicant’s primary condition as depression, with the date marked ‘onset unknown’. Dr Duncan in this certificate opined that the condition was temporary and would impact the Applicant’s ability to work or study for a period between 13 and 24 months.
As a result of the provision of this additional information the delegate determined that “I am not satisfied that the information in the reports provided is sufficient to demonstrate that you have an incapacity that is permanent or enduring in nature. I note that prior to seeing Dr Mufti, you had received no treatment whatsoever for your conditions and I consider that as you have not received any treatment for your particular conditions, it cannot be definitively said that you have an incapacity that is ‘permanent or enduring’ in nature. Furthermore, I note that Dr Duncan advised Centrelink, less than one month before you lodged this application that your condition is temporary.”
The Applicant also provided evidence with respect to his incapacity pertaining to his engagement with a counsellor from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 23 July 2024. The report was prepared by Jeanette Ninnis, a social worker, who worked as a counsellor with STARRTS.
Ms Ninnis notes that “STARRTS is the primary NSW expert service providing counselling and other expert interventions for people from refugee and refugee like backgrounds who have experienced torture and trauma in the context and consequence of war, armed conflict and state sanctioned violence”.
Ms Ninnis in her letter stated that she was providing the letter to support the Applicant’s application for exemption from having to pass the citizenship test to become an Australian citizen.
Ms Ninnis noted in her letter that she had assessed the Applicant and provided counselling to him from February 2024 to present. She noted that the Applicant is being treated for post-traumatic stress disorder.

Ms Ninnis notes that the Applicant “has endured poor mental health and distress, associated with his war experiences since 2014 when the events occurred, and ongoing from 16/8/2018 when he arrived in Australia as a Humanitarian refugee entrant. During this time, Mr Kamal Alali’s PTSD symptoms have severely impacted his focus and concentration so that he has been unable to learn English sufficiently to pass the citizenship test. Recovery from war associated post trauma symptoms as Mr Kamal exhibits, is likely to continue slowly over an extended period of time. I support Mr Kamal Alali being granted exemption from having to sit the Citizenship Test in order to become an Australian citizen”.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)
The Tribunal has duly considered the Respondent’s SFIC dated 29 August 2024.
The SFIC notes that the issue before the Tribunal is “whether the applicant has established that he had, at the time he made his citizenship application, ‘a permanent or enduring physical or mental incapacity ‘that is the direct cause of at least one of the prescribed consequences contained in paragraph 21(3)(d) of the Act.”
The Respondent submits that the evidence currently before the Tribunal is insufficient to establish that the Applicant has a permanent or enduring physical or mental incapacity that is the direct cause of at least one of the prescribed consequences in paragraph 21(3)(d) of the Act.
The submission notes that the Applicant is a citizen of Iraq who arrived in Australia on 15 August 2018 as the holder of a Subclass 200 Refugee visa. The Applicant lodged an application for citizenship by conferral on 17 October 2023. The submission notes that the application was accompanied by a letter from Dr Fawaz Mufti, a Consultant Psychiatrist, dated 4 October 2023, which indicated that the Applicant was having mental health issues, difficulty communicating in English, suffering generalised anxiety disorder, major depressive disorder and post-traumatic stress disorder, which were affecting the Applicant’s ability to concentrate, focus and learn new information. The Applicant was recommended to take medication and was advised that he would benefit from psychological therapy.
The submission notes that the Tribunal is required to assess the Applicant’s citizenship application against the criteria in subsection 21(3) of the Act. Furthermore, paragraph 21(3)(d), which is relevant for the purposes of this review application, provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘has a permanent or enduring physical or mental incapacity at the time that the person made the application’ for citizenship. This means that the person ‘is not capable of understanding the nature of the application at that time or is not capable of demonstrating a basic knowledge of the English language at that time or is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.’
The Respondent makes reference to the Citizenship Procedural Instruction (CP) 2, which addresses permanent or enduring physical or mental incapacity. It notes that the requirements of paragraph 21(3)(d) has two limbs. Firstly the ‘applicant must have a permanent or enduring incapacity at the time of application’. Secondly that the incapacity ‘must be the direct cause of the Applicant not being capable of understanding the nature of the application; or demonstrating a basic knowledge of English; or demonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship’.
The submission notes that there must be a clear causal connection between the incapacity and one of the three requirements relating to the Applicant’s awareness.
The submission notes that CP 2 states that ‘when assessing if a person suffering from long-term depression would be considered to have an enduring incapacity, one consideration would be whether the depression can be treated and to what extent the depression has caused the person to be incapacitated’. The relevant policy goes on to state that “in cases where an applicant fails to seek treatment that is recommended by a specialist that would assist them in rectifying the incapacity in the shorter term, it may be reasonable to accept that their mental incapacity is such that they are unable to seek such treatment. A letter from the treating specialist confirming the applicant is not capable of seeking/undergoing treatment is sufficient to consider the incapacity is permanent or enduring”.
The Respondent contends that CP 2 is relevant to the Tribunal’s consideration and should be followed and applied unless there are cogent reasons not to do so.
The Respondent notes that Dr Mufti, in his assessment of the Applicant concluded that the Applicant would benefit from psychological therapy and medications for his mental health conditions. Dr. Mufti also stated that, at the time of assessment, the Applicant was not keen to try additional medications due to the fact that he was taking medication for blood pressure, and diabetes. The Respondent posits that if the Applicant is unwilling to engage in treatment for mental health conditions, the Tribunal cannot be satisfied that any incapacity, which may exist, is permanent or enduring.
The Respondent makes reference to a Centrelink medical certificate from Dr Duncan, a general practitioner, dated 29 September 2023, noting that the Applicant suffers from depression but that the condition was temporary and likely to affect the Applicant for 13-24 months. The submission also notes that Dr Duncan is neither a psychologist nor a psychiatrist.
The submission also makes reference to the letter from Ms Ninnis, who is a torture and trauma counsellor. The Respondent submits that the Tribunal should not give weight to the letter on the basis that a social worker does not have the relevant expertise to comment on mental incapacity and determine whether it is a permanent condition. The submission notes that Ms Ninnis states in her letter that the Applicant has severe post-traumatic stress disorder, however she makes no mention of what treatment the Applicant is receiving for this, or who in fact is treating the Applicant with respect to this. The Respondent submits that this evidence does not establish that the Applicant has a permanent or enduring mental incapacity.
With respect to whether the Applicant’s incapacity, to the extent that it exists, affects the Applicant’s ability to understand the nature of the application, demonstrate knowledge of the English language, or demonstrate an adequate knowledge of Australia the Respondent submits the following:
That the Applicant has failed to establish that he has a mental incapacity that is permanent or enduring. Evidence from Dr Mufti indicates that despite the Applicant’s registration, recall, memory, and judgement being poor, his insight and judgement was reasonable. The Respondent submits that Dr Mufti’s evidence that the Applicant’s symptoms affected his ability to concentrate, focus and learn new things did not demonstrate that, at the time of making the citizenship application, the Applicant was not capable of understanding the nature of the application, demonstrating a basic knowledge of English or not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. The submission notes that there was no evidence provided with respect to difficulties that the Applicant was experiencing studying English at TAFE.
The Respondent notes that the medical certificate provided by Dr Duncan does not address the consequences of the Applicant’s mental health issues with respect to his ability to understand the nature of the citizenship application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of Australia and the responsibility and privileges of Australian citizenship.
With respect to the letter from Ms Ninnis, a social worker and torture and trauma counsellor who does not have medical qualifications, her evidence cannot be relied upon to establish that the Applicant’s symptoms are the direct cause of any of the prescribed consequences contained in paragraph 21(3)(d) of the Act.
In conclusion the Respondent posits that the Tribunal should not be satisfied that the Applicant has a mental incapacity that is the direct cause of any inability to understand the nature of the application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, and accordingly the Tribunal should affirm the decision under review.
REVIEW HEARING
The Tribunal conducted a review hearing on 18 March 2025. The Applicant was unrepresented in the proceedings. The Minister was represented by John O’Connell, of HWL Ebsworth Lawyers. Appearances were via video conferencing facilities. The Applicant and the Tribunal were assisted by an accredited Kurdish interpreter.
The Tribunal went into considerable detail at the outset of the hearing with respect to the process of merits review, the conduct of the hearing, the respective issues in the review and the prospective outcomes of the review.
It was agreed that in the absence of a legal representative the Tribunal could take the Applicant through his evidence.
The Applicant advised that he was born in the north of Iraq near Mosul.
The Applicant advised that he completed primary school but did not commence high school studies. The Applicant stated that he finished school in year 6 when he was approximately 12-13 years old. The Applicant stated that he failed year 5 and had to repeat that year.
The Tribunal asked the Applicant what he did when he left school and he advised that he was from a large family and that he was forced to go out to work and that from the time he left school until around the age of 18, he worked as a labourer in construction. The Applicant stated that when he was 18, he went to Baghdad and worked as a barman in clubs serving alcohol.
The Tribunal enquired of the Applicant whether he maintained that line of work until he left Iraq and he advised that he did not due to the fact that in around 1990, the government barred alcohol, so he returned to Mosul.
The Tribunal asked the Applicant whether he completed compulsory military service in Iraq. The Applicant stated that he was called to military service when his respective birth year came up and that he joined preliminary training, however, after attending training, he escaped and deserted the army.
The Tribunal asked the Applicant whether after leaving school at age 12-13 he could read or write Arabic or Kurdish. The Applicant stated that he could read and write Arabic, however he could only read and write a ‘little bit’ of Kurdish.
The Tribunal noted that the Applicant was found by the Australian government to be owed protection obligations. The Tribunal asked the Applicant what year he left Iraq and travelled to Turkey and the Applicant advised in 2014, and that he remained in Turkey for almost 5 years.
The Tribunal asked the Applicant what status he had in Turkey, and he advised that he had limited legal rights in Turkey, that the family initially applied for refugee protection through the United Nations, however, after 2014 because of the atrocities being committed against Yazidi Kurds, that the Australian government started accepting Yazidi refugees.
The Tribunal asked the Applicant what trauma he experienced as a Yazidi Kurd. The Applicant stated, “we saw what no one else on this earth has seen”. The Applicant confirmed that he witnessed human atrocities. The Applicant stated that he and his family arrived in Australia in 2018.
The Tribunal asked the Applicant what support he was given to help him settle into Australia. The Applicant stated that he will be forever grateful to Australia, that when he arrived here, there was a house for him, there was food in the fridge, there was bread and water and medical support and whatever services the family needed were available to them.
The Applicant stated that when he arrived in Australia in 2018, he had two children at that time, a son and a daughter, and that he has been blessed with two more children born in Australia, one who is four and the other, a one-year-old who was born in March 2024.
The Tribunal asked the Applicant whether he had a regular general practitioner, and he advised that he did. The Tribunal asked the Applicant whether he had worked in Australia, and he advised that he had never worked.
The Tribunal noted from the psychiatrist’s report from Dr Mufti dated October 2023 that he was suffering with a number of mental health conditions. The Applicant stated that this was correct and that he also suffered with blood pressure and diabetes and had a back problem. The Applicant stated that he suffered with depression and post-traumatic stress disorder. The Tribunal noted that the medical report from Dr Mufti suggested that the Applicant should take medication with respect to his mental health conditions and that he was reluctant to do so. The Applicant stated that he now takes the medication recommended by Dr Mufti. The Tribunal asked whether the medication was making a difference. The Applicant stated that he could not sleep at night prior to starting the medication and now he is now able to sleep better.
The Tribunal noted that the Applicant had attempted to study English language at Technical College (TAFE). The Applicant stated that he tried his best, however, English did not register with him. The Tribunal asked the Applicant whether he could identify the factors that inhibited his ability to learn and to register new learning. The Applicant stated that he had been traumatised by his background in Iraq, that Yazidi’s had been decapitated in the streets and that he had witnessed a number of atrocities. The Tribunal asked the Applicant whether he had been treated for his PTSD and the applicant stated that he was ‘not okay’.
The Tribunal asked the Applicant how he characterised the symptoms of his depression, and he stated that for 24 hours a day he felt sad and angry. The Tribunal asked the Applicant how he characterised his symptoms of PTSD. The Applicant stated that it made him feel like “I am a dead person. I am breathing but not living”.
The Tribunal noted that the evidence before it indicated that the Applicant’s brother, wife and their child drowned whilst crossing from Turkey to Greece. The Applicant confirmed that that was the case and that he lost his brother, his sister-in-law and his niece who were drowned in the Aegean Sea trying to get to Greece.
The Tribunal asked the Applicant how long he persisted with his English language studies at TAFE. The Applicant stated that he attended for six months at one stage, however, could not learn anything. He then attended for four months and once again could not learn anything, and he was not able to make any progress. The Applicant added that age was also taking a toll on him. The Tribunal asked the Applicant whether TAFE conducted written or oral examinations in English. The Applicant stated that he would be asked to write seven words in English and that he would fail these examinations.
The Tribunal asked the Applicant who was residing with him. He advised his wife and four children. The Tribunal noted that the evidence before it indicated that the Applicant’s eldest son and daughter worked part-time to help support the family. The Applicant confirmed this was the case. The Tribunal asked the Applicant whether his wife worked, and he advised that she did not and that she was a mother to their four-year-old and one-year-old. The Tribunal asked the Applicant whether the family were reliant on Centrelink benefits to survive. The Applicant confirmed that they were. The Tribunal asked the Applicant whether his family experienced financial constraints due to their situation and he advised that rent is high, food costs are high, and water and gas is expensive.
The Tribunal asked the Applicant whether he had been able to engage with a psychologist or psychiatrist on a regular basis and whether there was a financial problem with respect to that engagement. The Applicant stated, “yes for sure”.
Mr O’Connell questioned the Applicant. To confirm the Applicant’s background, Mr O’Connell noted that the Applicant was born in 1972, that he was married in 1993 and that he arrived in Australia on 15 August 2018. The Applicant confirmed these facts. Mr O’Connell noted that the Applicant had three children. The Applicant noted a fourth child was born in March 2024, who is now one year old.
Mr O’Connell made reference to the report from Dr Mufti located at page 54 of the tender bundle. Mr O’Connell noted that the report indicated that the applicant completed secondary school. Mr O’Connell asked the Applicant why this had been recorded in the report. The Applicant stated that it must have been an interpreter mistake.
The Tribunal noted that Dr Mufti’s report indicated that a neighbour assisted the Applicant as an interpreter in the medical appointment, and that an accredited interpreter was not engaged.
Mr O’Connell noted that the Applicant’s evidence was that his mental health conditions started in 2014, and the Applicant confirmed that this was the case. Mr O’Connell noted a report from Dr Duncan indicating that the Applicant had started antidepressants in 2023 soon after seeing Dr Mufti.
Mr O’Connell asked the Applicant whether he engaged in mental health treatment from 2014 until October 2023, when he engaged with Dr Mufti. The Applicant advised that the family left Iraq in 2014 to travel to Turkey. He advised that it was very expensive to seek medical support in Turkey, and there was no government medical support available to his family and that it was difficult to seek help.
Mr O’Connell noted that the Applicant was in Australia from August 2018, and did not appear to have sought any mental health assistance until October 2023. The Applicant stated that in the beginning he did not follow up with his mental health issues and that he did not get help until his mental health became worse at which time, he sought professional medical help.
Mr O’Connell asked the Applicant what he was asking the Tribunal to do for him today. The Applicant stated that his mental health was very bad, and that he is mentally and physically not in good shape. Mr O’Connell asked the Applicant whether he wanted the Tribunal to make a different decision to the delegate. The Applicant stated, “I would like with God’s help to find a solution”.
Mr O’Connell asked the Applicant whether the delegate’s decision was read to him. The Applicant stated that he could not remember as he is forgetful and has no recollection.
Mr O’Connell asked the Applicant why he wanted Australian citizenship. The Applicant stated that he wanted to be a citizen of Australia. The Applicant stated that it is a safe place, and that the government and people are very good. Mr O’Connell asked the Applicant whether he understood what it is to be a citizen of Australia, and the Applicant stated that whatever is requested of him he will do, and that becoming a citizen gives you rights and duties. The Applicant also advised that citizens could vote in elections. Mr O’Connell asked the Applicant how he knew this, and the Applicant advised because his adult children are citizens, and they vote in elections.
Mr O’Connell put to the Applicant that he understood the nature of Australian citizenship making reference to ‘rights’ and ‘duties’. The Applicant refuted this.
Mr O’Connell asked the Applicant whether he had difficulties with English and he advised that he did. Mr O’Connell asked the Applicant how he would describe his English-language ability. The Applicant by example, stated that if he was stopped for a breath test by the police, that he could not count all the way to 10. The Applicant states that he gets confused around number seven and eight. Mr O’Connell noted that the medical report from Dr Mufti indicated that he attended TAFE for 4 years. The Applicant stated he did not attend TAFE for four years, and perhaps this was an interpreting issue.

Mr O’Connell noted the report from Dr Mufti made reference to no suicidal ideation, and no evidence of abnormal perceptions or thoughts. The Applicant stated that he did not have suicidal thoughts at the meeting with Dr Mufti but that he had them in the past.
Mr O’Connell put to the Applicant that he did not receive mental health treatment between 2018 and 2023 because his mental health issue was not really that bad. The Applicant stated that financially he was not able to afford mental health treatment, his English was not good and there was no one to guide him through the system.
Mr O’Connell made reference to the fact that the Applicant had obtained an unrestricted driver’s licence in 2022 through Transport New South Wales. Mr O’Connell noted that the Applicant had an onset of mental health conditions in 2014, but he did not receive any treatment in Turkey, and yet despite this he was able to obtain his driver’s licence in 2019. Mr O’Connell asked the Applicant whether he took a driver’s licence test, and he advised that he did. The Applicant also confirmed undertaking a drivers knowledge test which he said was undertaken in his own language of Arabic. The Applicant stated he was given three options with each question and would choose an option.
Mr O’Connell noted that despite the Applicant suffering with mental health issues, he could take and then pass the drivers licence test. The Applicant stated that before he took the test, his son and daughter provided him with some assistance at home. Mr O’Connell noted that the Applicant was able to study for that test and the Applicant confirmed that he was able to read Arabic and Kurdish and the test was available in both languages.
Mr O’Connell noted that the Applicant’s youngest child was one and asked the Applicant whether he assisted his wife in the care of their child. The Applicant stated that he would look after his one-year-old when there was no one else available to do so, however, he would only do this for a short period of time. The Applicant stated that his elder son and daughter also provided their mother with support for the 1-year-old. The Applicant stated that when he was caring for his one-year-old, his older son or daughter were normally present with him. Mr O’Connell asked the Applicant whether he experienced any difficulty looking after his one-year-old. The Applicant stated that he could not carry him because of his back issues and that he was affected by loud noises.
Mr O’Connell asked the Applicant who assisted with his refugee application to Australia whilst he was in Turkey. The Applicant stated that there was an Arab gentleman who he paid for assistance to complete the application form.
Mr O’Connell asked the Applicant why he should be given an exemption from sitting the citizenship test. The Applicant stated “my situation is in front of you. I don’t have language. I have critical health issues. You know my mental problems. You have everything in front of you. I am very tired, as a result of my mental and physical health conditions. I do not have English at all. If I had the capability of English, I would not bring the application to the Tribunal and waste the Minister and the Tribunal’s time I would just sit the test”.
Mr O’Connell made closing submissions to the Tribunal with respect to the Minister’s position. Mr O’Connell put to the Tribunal that the Applicant did not have any permanent or enduring mental incapacity. Mr O’Connell stated that in the Minister’s view, the evidence of Dr Mufti is insufficient to establish that the Applicant’s mental health conditions are permanent or enduring. Mr O’Connell characterised Dr Mufti’s report as being a broad statement which indicated that the Applicant suffered with PTSD, depression, and anxiety. But nothing in the report establishes that the incapacity and mental health issues are permanent and enduring.
Mr O’Connell noted that the citizenship procedural guidelines give some guidance on making an assessment with respect to conditions that are of a permanent and enduring nature. Mr O’Connell posited that the Tribunal should follow that policy guidelines unless there are cogent reasons not to do so. He noted the policy requires an enduring or indeed a permanent incapacity and not one that is based on a predicted recovery. Mr O’Connell noted that the Applicant did not seek treatment for his mental health conditions until his initial meeting with Dr Mufti in August 2023. Mr O’Connell noted that the Applicant had now commenced antidepressants which had been prescribed by Dr Geraldine Duncan, his general practitioner, and that Dr Mufti also believed that the Applicant would benefit from psychological therapy, however, he had not engaged in this to date. Mr O’Connell noted that there was a treatment plan and a predicted pathway to recovery based on the evidence of Dr Mufti.
Mr O’Connell posited that the evidence of Dr Geraldine Duncan, general practitioner, did not meet the evidentiary requirements outlined in the citizenship procedural guidelines. Hence the Tribunal should give limited weight to that document as it is merely a Centrelink medical certificate. Further to this, Dr Duncan opined that the Applicant’s condition was ‘temporary’ and likely to affect the applicant for the next 13-24 months.
Mr O’Connell noted that the permanent or enduring incapacity must be evident to engage section 21(3)(d) of the Act and Mr O’Connell posited that the necessary link is missing in the evidence before the Tribunal. Mr O’Connell noted that Dr Mufti opined that the evidence before him led to a conclusion that the Applicant’s mental health condition causes difficulty with his learning of English. Mr O’Connell noted that there was nothing before the Tribunal that demonstrates problems with English being caused directly because of the Applicant’s mental incapacity. Indeed, the Applicant had demonstrated a basic knowledge of English insofar as he can count from 1 to 7, that Dr Mufti had noted that the Applicant had given some history during their assessment in English, and Mr O’Connell noted that the Applicant had used the word ‘sorry’ throughout the hearing. Mr O’Connell stated that there was no evidence that the Applicant’s lack of English is directly caused by his mental incapacity and consequently the applicant does not meet the requirements of s 21(3)(d).
Mr O’Connell stated that no weight should be given to the report from the social worker, Ms Ninnis of STARRTS, and that this evidence did not meet the relevant evidentiary requirements with respect to policy.
Mr O’Connell submitted that if the applicant was able to pass a driver’s licence test that the Tribunal could not be satisfied that he has the mental incapacity to not sit the citizenship test. The Applicant interrupted as this was interpreted and stated that he had studied for the driver’s licence test in Arabic, not in English.
Mr O’Connell also put to the Tribunal that the Applicant was able to demonstrate that he does understand the nature of Australian citizenship. He understands what he has applied for, he understands what the Tribunal’s task is, and he had that understanding at the time of the citizenship application. The Applicant demonstrated that he was capable of characterising adequate knowledge of Australian citizenship through identifying that it bestows rights and privileges and that he gave evidence that citizenship bestowed the right to vote in Australian elections. Mr O’Connell put to the Tribunal that the Applicant’s evidence was insufficient to establish he has a mental incapacity that is permanent or enduring and hence would preclude him from meeting the requirements of paragraph 21(3)(d) of the Act.
CONSIDERATION AND FINDINGS
The Tribunal is required to determine whether the Applicant had a permanent or enduring physical or mental incapacity at the time of his citizenship application, such that he meets the requirements in paragraph 21(3)(d) of the Act.
In order to meet the requirements of section 21(3)(d) the Applicant needs to establish that due to his permanent or enduring physical or mental incapacity, that at the time he made the application for citizenship, he was not capable of understanding the nature of the application at the time or that he was not capable of demonstrating a basic knowledge of the English language at the time or that he was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at the time.
The Tribunal gives significant weight to the medical evidence from Dr Mufti, a Consultant Psychiatrist, in this respect which indicates that the Applicant suffers from mental health conditions namely, a generalised anxiety disorder, a major depressive disorder, and post-traumatic stress disorder.
Dr Mufti conducted a mental state examination of the Applicant in his rooms on 9 August 2023, just prior to the lodgement of the citizenship application. Based on the examination, Dr Mufti made a range of clinical findings and found that the Applicant’s “symptoms are affecting his ability to concentrate and focus and learn new information. He has been studying English at TAFE for the last four years, but he has not been able to gather much information due to poor focus and concentration”.
Dr Mufti noted that, at the time of his examination the Applicant had not sought any treatment for his mental health symptoms. Dr Mufti recommended that the Applicant take an anti-depressant and could benefit from psychological therapy for his PTSD.
Evidence presented at the hearing indicates that the Applicant has been taking anti-depressants since 2023, and despite this still feels depressed, describing feeling both sad and angry most of the time. The Applicant did note that the antidepressants had assisted him with his sleep, but he continued to struggle with his other mental health symptoms which have been persistent and indeed enduring.
The Respondents’ SFIC states that there is no medical evidence to suggest that the Applicant’s mental health conditions caused him to struggle with English language tuition at TAFE. However, Dr Mufti found in his report that the Applicant had been attending TAFE and that his mental health conditions were clearly “affecting his ability to concentrate and focus and learn new information”. Furthermore that “he is not able to gather much information due to poor focus and concentration.”
The Applicant gave evidence that he had been attending TAFE to study English for various periods of time including a 7-month stint, and on another occasion, a 4-month stint. The Applicant advised that, despite these attendances, he was not retaining his learning. The Applicant noted that Dr Mufti’s reference to him attending TAFE for 4 years was incorrect and must have been attributable to an interpreting error.
The Citizenship Procedural Instructions provide that the Applicant’s incapacity must be the direct cause of an Applicant’s inability to fulfil the requirements outlined in paragraph 21(3)(d) of the Act.
The Tribunal finds that the medical evidence from Dr Mufti demonstrates that the Applicant’s mental health conditions have inhibited his ability to learn English due to a combination of poor focus and concentration. This is even though he had been attending TAFE English language classes, without the ability to make any progress.
The Respondent’s representative did not seek to call Dr Mufti to cross-examine him at the hearing with respect to his report. The findings of Dr Mufti have been given significant weight by the Tribunal and form the best evidence with respect to the Applicant’s mental health conditions and their impact on the Applicant at the time he applied for citizenship.
That report of Dr Mufti notes that the Applicant expressed that he had been experiencing mental health issues since 2014 due to the prevailing conditions in Iraq at that time. The Applicant characterised this period in his life as one in which Iraq had been invaded by ISIS and Daesh. Further to this, during this period he witnessed killings along with the removal of women and girls. The Applicant reported that he and his family were able to ‘escape’ to Turkey, however, his brother’s family attempted to travel by boat from Turkey to Greece and drowned. The evidence indicates that the cumulative impact of these events adversely impacted the mental health of the Applicant. Dr Mufti reported the Applicant suffering with anhedonia, a lack of energy and motivation, being constantly on edge, experiencing disrupted sleep, and avoidance with traumatic incidents such as news reporting.
The recommendations of the Woolcott Committee report at pages 34-35 in 2008 noted that the previous exemption provisions did not account for persons who arrived in Australia under the Humanitarian Program. The report recommended improvements to reflect the impact of “severe and chronic symptoms resulting from the experience of torture and trauma”:
In looking closely at the legislation, the Committee believes that there is scope for improving the exemption provisions regarding “mental incapacity”.
For survivors of torture and trauma, the use of a formal test which requires a high level of English proficiency, a large amount of study and familiarity in the use of a computer, significantly disadvantages them. There are many people who come to Australia under the Humanitarian Program who fall into this category.
The Committee considers the current exemption criteria do not take into consideration the effect of severe and chronic symptoms resulting from the experience of torture and trauma. These may include strong anxiety associated with learning difficulties, and while some symptoms are permanent, others, though severe, are not necessarily permanent.
The Tribunal finds that the Applicant clearly has enduring mental health conditions. The evidence is that these conditions have been apparent to the Applicant since 2014 and continue to this day.
The Respondent submitted the fact that the Applicant’s lack of engagement with mental health services in Turkey between 2014 and 2018, and in Australia until 2023, suggested that the conditions were not permanent, enduring, or fully treated.
The Applicant in response gave evidence that after fleeing to Turkey, it was difficult and expensive to access medical services. He further gave evidence that there was no government support available in Turkey, making it difficult to seek help. After arriving in Australia in 2018, the Applicant advised that he did not initially pursue assistance for his mental health conditions and that he only reached out when his mental health continued to deteriorate.
CONCLUSION
Th Tribunal finds that the Applicant’s generalised anxiety disorder, major depression and post-traumatic stress disorder have inhibited his ability to learn English despite his repeated attempts to do so. The conditions have impacted his focus and concentration. This is evidenced by the fact that the Applicant has not been able to engage in any work in Australia since his arrival in 2018. The evidence of Dr Mufti indicates that the Applicant during his last years in Iraq witnessed atrocities and along with the drowning deaths of close relatives had a profound impact on his mental health. The evidence of Dr Mufti indicates that the Applicant reported experiencing mental health symptomatology from 2014 and the Tribunal finds on the basis of this evidence that these symptoms have been “enduring” and have persisted since 2014 and continue to persist.
The Tribunal finds that the existence of the Applicant’s depression has been referenced in medical certificates for job exemption purposes with respect to Centrelink. These certificates confirm the Applicant’s depression has been present for a period of time, prior to the Applicants engagement with Dr Mufti.
Accessing psychiatric services is prohibitively expensive and the Applicant’s circumstances have impacted his ability to engage with mental health service providers. The Applicant engaged with Dr Mufti to provide evidence to corroborate his inability to satisfy section 21(3)(d) of the Act. The conduct of a mental health examination by Dr Mufti confirmed the existence of significant mental health conditions.
The Tribunal also notes that the Applicant has engaged in counselling with STARRTS since February 2024 and that his counsellor has found as a result of her engagements with him, that he “has endured poor mental health and distress associated with his war experiences since 2014”. Further to this that his mental health symptoms have “severely impacted his focus and concentration so that he has been unable to learn English sufficiently to pass his citizenship test”.
The respondent has argued that limited weight should be afforded to the findings of STARRTS as the opinion was provided by a social worker/counsellor and hence did not meet the higher evidentiary standard of a report by a psychiatrist or psychologist. The evidence indicates that STARRTS “is the primary NSW expert service for providing counselling and other expert interventions for people from refugee and refugee like backgrounds who have experienced torture and trauma in the context and consequence of war, armed conflict and state sanctioned violence”. Given this expertise, the Tribunal finds that Ms Ninnis is well-qualified to provide an opinion with respect to the Applicant’s “war associated post trauma symptoms” and that her report is complimentary to the medical findings made by Dr Mufti based on his clinical assessment.
The Tribunal finds, having regard to the evidence before it, that the requirements of paragraph 21(3)(d) of the Act have been met and the decision under review should be set aside. The Applicant clearly has an enduring mental incapacity at the time he made the application for citizenship by conferral that means he is not capable of demonstrating a basic knowledge of the English language at that time.
DECISION
The decision under review is set aside on the basis that the Tribunal finds that the Applicant
qualifies under s 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking
the Australian Citizenship Test.

Date of hearing: 18 March 2025

Solicitor for the Respondent:
Mr J O’Connell, HWL Ebsworth

Date of hearing:	18 March 2025
Solicitor for the Respondent:	Mr J O’Connell, HWL Ebsworth