Alghazali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 2733

Alghazali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2733 (28 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/5349
Re:Ms Zainab Alghazali
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:28 August 2023
Place:Brisbane

The decision under review is set aside and in substitution the Tribunal finds that the Applicant satisfies the requirements of s 21(3) of the Act and is eligible to become an Australian citizen.
..................[SGD]..................
Deputy President J Sosso
Catchwords
CITIZENSHIP – applicant fails to complete citizenship test on several occasions – delegate refuses application – applicant claims permanent or enduring physical or mental incapacity to undertake test at time she applied for citizenship – consideration as to whether applicant has such incapacity – enduring mental incapacity found on medical evidence – decision under review set aside and substituted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Butrus and Minister for Immigration and Border Protection [2019] AATA 239
Chaang and Minister for Immigration, Citizenship Services and Multicultural Affairs [2021] AATA 72
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FFFL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 394
Harbi and Minister for Immigration, Border Protection, Citizenship Services and Multicultural Affairs [2020] AATA 1347
Laalaa and Minister for Immigration and Border Protection [2015] AATA 579
Minister for Home Affairs v G and Another (2019) 266 FCR 569
MLBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21
Secondary Materials
Citizenship Procedural Instructions 2 – Permanent or Enduring Physical or Mental Incapacity
REASONS FOR DECISION
Deputy President J Sosso
28 August 2023

Ms Zainab Alghazali (the Applicant) seeks a review of a decision of a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) of 15 June 2022 refusing the Applicant’s application for Australian citizenship by conferral. The Delegate refused the Applicant’s application on the basis that she did not meet the requirements of

s 21(3) of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T3 pp. 7-14.
Subsection 21(3) provides that a person is eligible to become an Australian citizen if the Minister is satisfied, inter alia, 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 Applicant was born in July 1976 in Najaf, Iraq – Exhibit 1 T4 p. 17. She was one of four children, and attended school in Najaf until she was 12 or 13 years old. After school she assisted her mother as a dressmaker, but never worked outside the family home. According to the Applicant, her birth and life milestones were normal, and neither she nor any members of her family suffered from mental health issues. Further, she claimed that she had never been involved in any kind of trauma or torture situations while living in Iraq – Exhibit 4

pp. 11-12.
On 24 November 2008 the Applicant married Mr Saad Hussein Jabr in Najaf – Exhibit 1 T4q p. 49. Mr Hussein is 18 years her senior, and he had been living in Australia for a lengthy period before the marriage. Until the death of her son Ali in November 2019, the Applicant claimed that she was a happy woman who was busy caring for her children – Exhibit 4

p. 12.
She first arrived in Australia on 13 December 2012 as the holder of a Partner (Provisional) (subclass 309) visa and was subsequently granted a permanent residence Partner (Migrant) (subclass 100) visa – Exhibit 1 T3 p. 8.
On 18 December 2018, the Applicant lodged an Application for Australian citizenship by conferral. Unfortunately, on a number of occasions in the period 2019–2020, the Applicant failed to pass the citizenship test, and on 29 July 2021 she withdrew this application – Exhibit 1 T3 p. 8.
On 17 August 2021, the Applicant lodged an Application for Australian citizenship by conferral – Other situations (Form 1290) – Exhibit 1 T4 pp. 17-30. The Applicant provided the following evidence of her mental incapacity:
(a)letter dated 16 August 2021 from Ms Kholoud Abdulla, Accredited Mental Health Social Worker – Exhibit 1 T4a p. 31;
(b)letter dated 3 March 2020 from Mrs Heather Peall, Bereavement Counsellor with Red Nose – Exhibit 1 T4g p. 38;
(c)letter dated 12 July 2021 from Dr Nagwa Farag General Practitioner, Pacific Family Medical Practice, Calamvale – Exhibit 1 T4h p. 39;
(d)report dated 8 June 2021 of Dr Yaser Baqir, Psychiatrist and Psychotherapist, Wickham Terrace – Exhibit 1 T4i p. 40;
(e)medical certificate dated 13 July 2021, provided by Dr Rachel Daniels General Practitioner, Harbourtown Medical Centre, Arundel Exhibit 1 T4n p. 45; and
(f)
a support letter from the Islamic Shia Council of Queensland – Australia, dated

6 July 2021 – Exhibit 1 T4o pp. 46-47.
The views expressed by the above persons is discussed below.
On 23 December 2021 the Department wrote to the Applicant requesting the provision of further information – Exhibit 1 T6a pp. 58-59.
In response, the Applicant supplied the Department with a completed Declaration of Service form (Form 1399) dated 18 January 2022, as well as copies of various documents –

Exhibit 1 T8a-I pp. 65-84. Included in those documents was a further report from Dr Baqir dated 7 December 2021 – Exhibit 1 T8f p. 73.
On 15 June 2022, a Delegate of the Minister decide to refuse the Applicant’s application for Australian citizenship by conferral – Exhibit 1 T3 pp. 7-14. The Delegate provided the following reasons – Exhibit 1 T3 pp. 11-12:
“Citizenship Policy states that applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner. The specialist must also be a fellow of a specialist organisation as defined in Schedule 1 of the Health Insurance Regulations 2018. I found that the medical letters Dr Nagwa Farag, General Practitioner (GP) and Dr Rachel Daniels, GP do not meet the requirements set out in the Citizenship Policy. This is because they are not general practitioners who are fellows of the Royal Australian College of General Practitioners (FRACGP),who have practice endorsement in the area relevant to your incapacity…
However, I am satisfied that Dr Yaser Baqir, Psychiatrist is a specialist in the field of your claimed medical condition as there is evidence before me that he is a fellow of the Royal Australian and New Zealand College of Psychiatrists, which is defined as a specialist organisation in the Schedule 1 of the Health Insurance Regulations 2018…
Nevertheless, I am not satisfied that this information is conclusive evidence that your medical condition is a permanent or enduring incapacity which means that you are not capable of understanding the nature of your citizenship application, not capable of demonstrate [sic] a basic knowledge of the English language. Or that you are not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at time of application.

Dr Yaser Baqir’s medical letters do not provide information on how long he has been treating you to manage your mental incapacity. The medical letters do not indicate of the results of any cognitive or other clinical testing that may have taken and an explanation of what the results mean. The letters do not include any evidence of ongoing treatment or treatment plan for your incapacity. In summary, he states that your depression has affected your attention, concentration and ability to learn and therefore, you are not fit to sit the Australian citizenship test. I am not satisfies [sic] that the medical letters from Dr Baqir provide sufficient information to support your claimed incapacity and therefore, I give them very limited weight.
As you are claiming permanent and enduring incapacity, it is imperative that the medical reports from appropriate specialist, for example, a registered clinical psychologist who have practice endorsement in the area relevant to your incapacity and is registered with Medicare for these purposes or other qualified specialists listed in Schedule 1 of the Health Insurance Regulations 2018. The evidence you provided from other support people, for example Social Worker and Bereavement Counsellor, do not meet the requirements set out in the Citizenship Policy. Nevertheless, I have considered the information provided and I am not satisfied that the information regarding your claimed incapacity sufficiently demonstrates you meet the requirements set out in subsection 21(3)(d) of the Act. In summary, the information indicates that you suffer severe depression after the loss of your son to a drowning incident in 2019. The information states that it affected your concentration, memory and your ability to learn and requested you to be exempted from the Australian citizenship test. I acknowledge that the loss of your son would be a dramatic event in your life. However, it would be common for anyone to grief [sic] over the loss of a loved one, for example, a spouse, brother or son and thus, I am not satisfied that the loss of your son that caused you grief (depression) would be so profoundly and compellingly beyond the natural grieving to be considered it a permanent and enduring incapacity. The information from the other support people also requested you be exempted from taking the Australian citizenship test.
On the basis of the evidence provided, I am not satisfied that you are suffering from a permanent or enduring physical or mental incapacity that impacts on your ability to understand the nature of the application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship. I therefore find that paragraph 21(3)(d) has not been satisfied.”
On 24 June 2022, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal – Exhibit 1 T2 pp. 4-6.
In that part of the application headed “Why do you claim the decision is wrong?”, the Applicant gave the following reason – Exhibit 1 T2 p. 5:
“Because I have provided them with letters from my psychiatrist and my GP regarding my adverse mental health condition.”
LEGAL OVERVIEW
Pursuant to s 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen.
A person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the general eligibility criteria prescribed by s 21(2).
As previously noted, a person is deemed eligible to become an Australian citizen, if the Minister is satisfied that the person has a permanent or enduring physical or mental incapacity as prescribed by s 21(3).
It should be noted that the requirements of s 21(3) are conjunctive, and accordingly each of the requirements set out in s 21(3)(a)-(f) must be satisfied at the time the person made the citizenship application – FFFL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 394 at [26] (FFFL).
If a person makes an application pursuant to s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen – s 24(1).
The Minister must, by written determination, approve a citizenship test – s 23A(1). Three of the eligibility requirements prescribed by s 21(2) are as follows:
(d)the person understands the nature of the citizenship application;
(e)the person possesses a basic knowledge of the English language; and
(f)the person has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
A person is deemed by s 21(2A) to have satisfied these eligibility criteria if they have successfully completed the citizenship test.
This general principle is obviated in the case of a person who the Minister is satisfied has a permanent or enduring physical or mental incapacity by the deeming operation of s 21(3)(d). A person to whom s 21(3) applies does not need, therefore, to successfully complete the citizenship test.
The Minister also relies on the Citizenship Procedural Instructions – Permanent or Enduring Physical or Mental Incapacity (CPI 2).
Before turning to the Citizenship Procedural Instructions, reference should be made to the following observations of the Full Federal Court (Murphy, Moshinsky and O’Callaghan JJ) in Minister for Home Affairs v G and Another (2019) 266 FCR 569 at [18]/574 (G):
“There is no power conferred by the Australian Citizenship Act to make Instructions. Despite appearing in a form that resembles a legislative instrument or has that statutory source, the Instructions are made in the exercise of executive power.”
Although there is no express statutory power to make policy guidelines, nonetheless it has long been recognised that not only does the Executive have the power to make guidelines, but it is desirable that the exercise of broad discretionary power be guided by guidelines so that the values of consistency and rationality by decision-makers are promoted. In

Plaintiff M64/2015 v Minister for Immigration and Border Protection
(2015) 258 CLR 173 their Honours French CJ, Bell, Gageler, Keane and Gordon JJ said (at [54]):
“Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help promote consistency in ‘high volume decision-making’…The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent.”
Nonetheless, in G their Honours provided the following guidance on the application of the Citizenship Procedural Instructions and related documentation [58]-[62]/586-587:
58“It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…
59An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641.
60However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies”.
…
62An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations…”
Part 3.4 of CPI 2 is headed “Assessing incapacity”. The first two paragraphs of Part 3.4 provide the following guidance to decision-makers:
“Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case. Decision-makers should consider whether it is necessary to query any inconsistency or ambiguity that may bear on the question of whether paragraph 21(3)(d) is satisfied.
When applicants are requested to provide reports from a specialist they should be given the incapacity form (under development at the time of publication of this instruction). This will assist the specialist to identify what should be included in the report.”
The CPI goes on to define an “enduring incapacity” as “one for which there cannot be a predicted recovery, or where there is, it is long term.”
Of relevance to this matter, one of the examples given is assessing whether a person suffering from long-term depression has an enduring incapacity. The following advice is given:
“…one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression. These are factors that need to be addressed specifically in the evidence provided by the applicant.”
Another example of relevance is that of a person suffering a mental condition involving depression or grief over the passing of a close relative:
“…one consideration would be whether there are short term or long term conditions. Short term conditions would not usually meet this criterion.”
The CPI goes on to state, to ensure the integrity and consistency of decision-making, applicants claiming permanent or enduring mental incapacity should generally be required to provide evidence from one of the following:
·“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 for Psychological Medicine (ASPM) (note – the ASPM was the Australian College of Psychological Medicine, which had a fellowship program; the ASPM may not have an equivalent program); 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.”
Under the heading “Evidence of mental incapacity” the CPI states that decision-makers may require the following information as evidence of mental incapacity and may request them to assess the criteria if they are not already contained in specialist reports. It will be noted the discretionary term “may” is used instead of the mandatory “shall” or “must”. Clearly the CPI is providing guidance to decision-makers, and is not attempting to inappropriately shackle a decision-maker by prescribing the provision of material which may not be available, relevant or outside the knowledge of the treating specialist.
The following information is prescribed by the CPI:
·“the full name and date of birth of the applicant
·information on how long the specialist has been treating the applicant
·whether the applicant received treatment from any other specialist
·when did the claimed incapacity commence
·how many sessions has the applicant attended with the specialist
·does the applicant attend consultations regularly
·is the applicant currently being treated under a treatment plan: if not, why not; and
·results of any cognitive or clinical testing that has been undertaken.”

The CPI then goes on to list various psychological tests that may be used by specialists and details a “one off mini mental state examination”.
In the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 3) at [26], reference is made to FFFL, and the observation made by the Tribunal that the requirements of CPI 2 “set a high evidentiary threshold to be met by an applicant to demonstrate that they have a ‘permanent or enduring physical or mental incapacity’ to exempt them from completion of the citizenship test” at [40]. The “high evidentiary threshold” suggested in

CPI 2 is discussed below.
Finally, before considering the submissions of the parties, it is important to refer to the overarching policy instructions in CPI 2 dealing with permanent or enduring physical or mental incapacity. The following guidance is given under the heading of “Purpose” –

Exhibit 1 T12 p. 124:
“Decision-makers are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for decision-makers. To the extent that the Act so allows for discretion, decision-makers should consider the Department of Home Affairs’ (the Department) approved policy and procedures where relevant and appropriate in decision-making. This ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.

However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, delegates should give policy documents due weight, but should not apply policy inflexibly and should consider the merits of each individual case. In order to give a fair, reasonable and lawful decision, it may be necessary to depart from the approved policy and procedures, depending on the facts of the particular case....”
This is, with respect, a carefully worded and correct summation of the law.
THE HEARING
A Hearing was convened in Brisbane on 4 July 2023.
The Applicant appeared by telephone and was self-represented. She was assisted by an Arabic interpreter, Ms Fatima Muhieddine.
The Minister was represented by Ms Gabrielle Gutmann, who also appeared by telephone.
The Applicant gave evidence and was cross-examined by Ms Gutmann.
No witnesses were called by either the Applicant nor Ms Gutmann.
Leave was given for the Minister to provide written closing submissions. On 21 July 2023 the Minister provided to the Tribunal and the Applicant, Respondent’s Written Closing Submissions (RWCS).
The Applicant was contacted by the Tribunal, and through the interpretation assistance of one of her daughters, informed the Tribunal that she did not wish to provide any further material or respond to the RWCS.
CONSIDERATION
Introduction
The Minister submits that the Applicant has not established the “high evidentiary threshold” to demonstrate that she has a permanent or enduring mental incapacity to exempt her from completion of the citizenship test – Exhibit 3 para 28.
Reference was then made by the Minister to the medical evidence presented to the Tribunal. After referring to that evidence, the Minister contended that CPI 2 indicates that only the letters from Dr Baqir and Dr Grant may be considered as some evidence of the Applicant’s incapacity.
It is important at the outset to deal with these submissions because they go to the heart of how the Tribunal should perform its review function.
It will be recalled that s 21(3) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person complies with factors outlined in

s 21(3)(a)-(f).
A similar situation presented itself to the Tribunal in Chaang and Minister for Immigration, Citizenship Services and Multicultural Affairs [2021] AATA 72 (Chaang), albeit in the context of an applicant wishing to renounce her Australian citizenship.
In that matter the Tribunal referred to the following observations of the Full Federal Court in Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21 at [49]/30:
“Third, in the context of s 33(7) of the Act, the criteria must be met in order to avoid the refusal of the application for renunciation of citizenship are expressed in terms of whether or not the minister holds the requisite degree of satisfaction as to the matters identified in s 33(7). In other words, the criteria turn upon the existence of a subjective state of mind in the decision-maker…”
In Chaang, the Tribunal then made these observations (at [86]):
“In each and every case it is incumbent on the decision-maker to determine if they have reached the particular state of satisfaction mandated by s 33(7). If the decision-maker has reached that state of satisfaction based on the material adduced, then the duty imposed by s 33(7) has been met. It would be an error, then, to contend that a decision-maker can only reach that state of satisfaction based on an executive policy about the need for nominated documentation, which documentation is not mandated by the Act…”
The same analysis is applicable to a decision-maker reaching the requisite degree of satisfaction for the purposes of s 21(3). In reaching the requisite degree of satisfaction, a decision-maker must take into account, and weigh, the evidence presented. For some factors, either reaching or not the requisite degree of satisfaction is straightforward. In the case of s 21(3), being satisfied that an applicant is aged 18 or over (s 21(3)(a)) and being satisfied that the applicant was a permanent resident, at the time of making the application (s 21(3)(b)), is a straightforward exercise.
However, being satisfied that a person has a permanent or enduring physical or mental incapacity, having regard to the factors set out in s 21(3)(d), is not a straightforward matter, and involves a potentially difficult exercise of carefully weighing the documentary evidence as well, as in this matter, the Applicant’s testimony.
It was pointed out in Chaang (at [89]) that it is contrary to settled law to submit that the Tribunal, when exercising its review function, is restricted in reaching the requisite degree of satisfaction by only relying on documentation nominated by the Minister, or in this matter, placing particular weight on nominated documentation. It is open for the Executive Government to publish policies (in this matter the CPI) and set out therein the preferred way in which a decision-maker will undertake their duties and reach the requisite degree of satisfaction. However, it is not open to the Executive Government to attempt to place arbitrary fetters on a decision-maker weighing the evidence and reaching the requisite degree of satisfaction.
Reference can be made to the following helpful observations of Brennan J (as he then was) in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at

640-641:
“Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute...Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules...The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.”
The above analysis, in the context of s 21(3) was adopted by Senior Member Morris in MLBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 319 at [81]-[84].
The Minister referred the Tribunal (RWCS para 6) to observations made, firstly, in FFFL that the requirements of CPI 2 “set a high evidentiary threshold to be met by an applicant to demonstrate they have a ‘permanent or enduring physical or mental incapacity’ to exempt them from completion of the citizenship test…”. The Tribunal agrees with those observations insofar as they describe the evidentiary threshold mandated by CPI 2. However, as discussed above, the evidentiary threshold mandated by CPI 2 does not prevent a decision-maker reaching the requisite degree of satisfaction. Clearly, if a decision-maker has reached that degree of satisfaction, but nonetheless rigidly applied CPI 2 and rejected a review application, then the decision-maker would be in error.
The Minister then referred the Tribunal (RWCS para 6) to observations made in Harbi and Minister for Immigration, Border Protection, Citizenship Services and Multicultural Affairs [2020] AATA 1347 (Harbi). Set out below are not just the observations referred to by the Minister, but those observations in context:
52“In this case, as in many others, the decision comes down to a final judgment about the applicant’s capacity to acquire a basic understanding of English.
53The critical issue is whether, at the time she applied for citizenship, she was, by reason of a permanent or enduring physical or mental incapacity, not capable of demonstrating a basic knowledge of the English language at that time.
54For 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.
55But to say that a task is difficult is not to say that it is impossible. The statutory requirement of incapacity is effectively equivalent to a requirement that for a particular individual the task is a practical impossibility.”
The Tribunal agrees with the above analysis.
Subparagraph 21(3)(a) – is the Applicant aged 18 years or older?
It is not contested that at the time the Applicant made her citizenship application she was aged 18 years or older. Her Iraqi Passport states that her date of birth was July 1976 –Exhibit 1 T8b p. 66.
Subparagraph 21(3)(b) – is the Applicant a permanent resident?
It is not contested that both when the Applicant made her citizenship application and at the time of the Minister’s decision on the application, she was a permanent resident – Exhibit 1 T3 p. 8.
Subparagraph 21(3)(c) – general residence requirement
It is not contested that the Applicant satisfies the general residence requirement mandated by s 22.
Subparagraph 21(3)(d) – permanent or enduring physical or mental incapacity
Introduction
The Minister contends that the Applicant has not established “the high evidentiary threshold” to demonstrate that she has a permanent enduring mental incapacity to exempt her from completion of the citizenship test – Exhibit 3 para 28.
The Minister then set out the medical evidence then before the Tribunal (subsequently supplemented at the Hearing) and submitted that CPI 2 indicates that only the letter from Dr Baqir and Dr Grant may be considered as some evidence of the Applicant’s incapacity – Exhibit 3 para 29.
The Minister’s submission is correct so far as it goes. It does accurately reflect what CPI 2 provides. However, CPI 2 provides policy guidance only to a decision-maker. Clearly, the weight given to the opinions of medical specialists would in almost all cases be much higher than given to General Practitioners and non-medically qualified persons. In this matter, the Tribunal places much greater weight on the opinions of Drs Baqir and Grant, who are psychiatrists over, Drs Farag and Daniels, who are GP’s as well as the other non-medically qualified persons. However, insofar as the Minister submits that the Tribunal is precluded from considering the views and information provided by the persons other than Drs Baqir and Grant as to the Applicant’s incapacity, then the Tribunal respectfully disagrees. The Tribunal can consider any relevant evidence in reaching, or not reaching, the requisite satisfaction mandated by s 21(3). The weight given to the relevant evidence of course is dependent on a range of factors.
Evidence of Dr Baqir
Turning first to the reports of Dr Baqir. In his letter of 8 June 2021 sent to the Department of Immigration and Border Protection, he stated that he assessed the Applicant on 12 April and 8 June 2021. Dr Baqir referred to the death of the Applicant’s son on

24 November 2019 and then made the following observations – Exhibit 1 T4i p. 40:
“…Zainab had a severe and protracted depression with melancholic features since then. She saw two psychiatrists Dr Sinani and Dr Randhawa and had a trial of sertraline 50 mg and fluoxetine 20 mg with no improvement.
I started her on Mirtazapine 15 mg nocte and then increased it to 30 mg which she has tolerated but have not improved in her mood. She still has sever [sic] low mood, anhedonia, poor sleep, poor energy, poor attention and concentration and poor memory. Zainab still has regular counselling with Heather Peall through red nose.
On review today I have started her on Duloxetine 60 mg nocte while continuing on Mirtazapine 30 mg nocte.
In my opinion her depression had a severe impact on her attention, concentration and capacity for learning and capacity for communication. This had impaired her capacity in learning factual and historical details related to her citizenship test. In my opinion her impairment is permanent and she is not fit to do the citizenship test…”
The Tribunal was presented with a second report of Dr Baqir dated 7 December 2021. After reviewing her that day, Dr Baqir opined as follows – Exhibit 1 T8f p. 73:
“Zainab has a treatment resistant depression which has not responded to treatment, despite adherence to medications and grief counselling. She has been on a combination of Duloxetine 60 mg, Mirtazapine 30 mg and Olanzapine 5 mg since 30/7/2021 up to date.”
The final report of Dr Baqir provided to the Tribunal is dated 1 December 2022 – Exhibit 5. Dr Baqir opined as follows:
“In my opinion she has a persistent depressive disorder which has been treatment resistant.
In my opinion she has different trials of medication with limited response and received psychological interventions and trauma counselling through mental health counsellor and grief counsellor since 2020 up to date. Her medication and therapy has helped in preventing further deterioration but her condition is not improving.
In my opinion all treatment options have been fully explored and I am not aware of any evidence based treatments that would be helpful in her condition due to the severity and complexity of her condition.
In my opinion she is fully diagnosed, fully treated and fully stable on her current impairment and disability.
In my opinion Zainab has a Psychosocial impairment as a result of a diagnosis of Persistent Depressive Disorder. Zainab’s Psychosocial Impairments are permanent in nature and extremely brittle to the psychological stressors and despite bio-psychosocial interventions, substantial functional gains have not been forthcoming and ongoing treatment will not remedy her functional impairments. Zainab’s Psychosocial Impairments are permanent in nature and affect her daily living across multiple functional domains.
…
In my opinion her Depression is permanent and have led to a permanent and enduring mental incapacity. She is not capable of learning and demonstrating basic knowledge of English language. She is not capable of learning and demonstrating adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
In my opinion her impairment was established and evidence since my first consultation on 21.4.2021.
In my opinion she remains unfit to sit the citizenship test due to her Mental health conditions and their impact on her cognitive capacity and capacity for learning the requirements of the test…”
Evidence of Dr Grant
The Tribunal has been provided with a copy of a detailed report of Dr Grant dated

12 October 2022 – Exhibit 4. Dr Grant examined and assessed the Applicant, with the assistance of an Arabic interpreter, on 7 October 2022 for the purpose of the preparation of an Independent Medical Report – Exhibit 4 p. 3.
Dr Grant set out the Applicant’s background, gave a detailed report on the events leading up to the death of the Applicant’s five year old son, Ali, in November 2019 as well as the sequelae of Ali’s death – Exhibit 4 pp. 4-7.
Under the heading of “Current Symptoms”, Dr Grant opined as follows – Exhibit 4 p. 7-9:
“Ms Alghazali describes her mood as always sad. She thinks about Ali a lot. She still has some of his belongings having donated some to charity, however she kept some of his special things and a pillow. She looks at his things and hugs his pillow and cries a lot. All kind of things remind her of Ali and bring her to tears. She has not experienced any suicidal ideation.
Ms Alghazali said her sleep is disturbed. She tends to wake repeatedly. She dreams about Ali and sees him in her dreams and hears his voice.
…
Ms Alghazali’s appetite is somewhat impaired…
Ms Alghazali said her energy is poor. She does not do very much. She experiences various pains in different parts of her body, including her legs and back…
Ms Alghazali said her motivation has been markedly reduced. She does not want to do very much. Her selfcare is impaired. She only showers every three or four days, where used to be meticulously clean. She is not interested in doing housework and tends not to do very much…
Ms Alghazali does some cooking; however the family tend to eat out quite a lot going to fast food restaurants. She has very little interest in the food.
…
Ms Alghazali’s social activities have reduced considerably…She tends to be withdrawn and does not want to see people very much. However, she goes to the mosque and has some interaction with the Iraqi community…
Ms Alghazali said she has a car licence and is able to drive. She transports her children to and from school.
Ms Alghazali describes poor concentration. She does not have an interest in watching television…She finds it hard to concentrate on reading. She was doing some studies at Technical and Further Education (TAFE) College learning English prior to Ali’s death, however gave those away and could not concentrate. She has been occupied in trying to do the Citizenship test to obtain Australia Citizenship, however she finds it very difficult to remember things, and attend to learning what she has to learn…Her concentration in general is quite poor and she tends to be forgetful…”
Dr Grant made the following assessment of the Applicant – Exhibit 4 pp. 14:
Ms Alghazali has had great difficulty coping in the almost three years since the death of her son. She has been suffering from significant depressive symptoms and anxiety with some post traumatic features.
Diagnostically, Ms Alghazali is suffering from a Chronic Depressive Disorder complicating a persistent Complex Bereavement Disorder in relation to the loss of her son.
…While she has been in Australia for about ten years, her English skills are still very limited. She has been unable to pursue English classes since the death of her son because of difficulties with her concentration and memory. Those difficulties have also resulted in her being unable to pass the Citizenship exam, even after three attempts.
Ms Alghazali has had a range of psychiatric treatment including psychiatric consultations, a range of medications and quite extensive psychological and counsellor support.
Ms Alghazali describes a significant level of symptoms and secondary disability and needs to continue in psychological and psychiatric treatment.”

Dr Grant opined that the Applicant’s prognosis was guarded – Exhibit 4 p. 15:
“The prognosis is guarded, given the chronicity of her symptoms at this stage, almost three years since her son died. There is therefore likely to some degree of permanent impairment.”
Dr Grant was asked a series of questions. Many of those questions and his answers are reflected in his opinions quoted above. One key question was whether the Applicant has, or may in the future, have a permanent disability and if so, the degree of disability expressed as a percentage. Dr Grant opined as follows – Exhibit 4 p. 16:
“In view of the persistent symptoms, it is likely that Ms Alghazali will have a degree of permanent impairment. I have assessed that impairment using the Psychiatric Impairment Rating Scale. Using that instrument, I estimate that she will have a degree of Permanent Impairment of 7%...”
When asked if the Applicant would be likely to suffer an exacerbation or relapse of her condition in the future, and what stressors would be likely to give rise to such an exacerbation, Dr Grant opined – Exhibit 4 p.17:
“Ms Alghazali would be vulnerable to further episodes of trauma in her life which could cause an exacerbation of her current symptoms.”
Dr Grant opined that the Applicant would need further treatment and rehabilitation. When asked what the probable outcome would be of that treatment or rehabilitation, he opined as follows – Exhibit 4 p. 17:
“The outcome is somewhat guarded, given her lack of response to treatments so far however, hopefully over time her symptoms will gradually reduce leaving her in a more capable position to deal with her life and the demands of her family.”
Evidence from Mrs Heather Peall
The Tribunal was provided two letters from Mrs Peall, who is a Bereavement Counsellor with Red Nose. The first was dated 3 March 2020 and the second 9 August 2021 –

Exhibit 1 T4g p. 38, T4t p. 52.
In both letters Mrs Peall describes the Applicant’s distress and grief following the death of her son. In her letter of 9 August 2021, Mrs Peall states that the Applicant informed her that the deep and consuming grief she is suffering from the death of her son, makes “it very difficult to focus on the citizenship test”.
The Tribunal has no doubts that Mrs Peall has provided sincere and truthful accounts of her dealings with the Applicant, but her letters do not provide much assistance in resolving the legal questions before the Tribunal. The Tribunal places little weight on the letters of

Mrs Peall.
Evidence from the Shia Council of Queensland – Australia
The Tribunal was provided a letter from Sh Enayatullah Zara, Resident Scholar of the Islamic Shia Council of Queensland dated 6 July 2021 – Exhibit 1 T4o pp. 46-47.
Mr Zara outlines the devastating consequences to the Applicant from the death of her son, Ali. However, the letter provides little assistance to the Tribunal in determining the questions to be determined pursuant to s 21(3)(d). As such, little weight is placed on this letter.
Dr Nagwa Farag
The only evidence before the Tribunal from Dr Farag is a letter dated 12 July 2021. Dr Farag made the following observations – Exhibit 1 T4h p. 39:
“This is to advise that Mrs Zainab Alghazali, age 45 yrs, suffers sever [sic] Depression anxiety disorder, post traumatic [s]tress disorder.
This happened after the very traumatic loss of her son in swimming pool 24/11/2019.
She is currently under the care of Dr Yaser Baqir psychiatrist and receiving multiple antidepressants.
Her mental health condition and the past trauma result in lack of concentration and attention, poor communication and impaired capacity to learn.
She is not suitable to sit the exam for citizenship.”
The Tribunal was not provided with any information about the length of time that Dr Farag has been treating the Applicant, or any particular experience that Dr Farag has in the field of diagnosing and treating patients with mental health issues.
The Tribunal accepts that Dr Farag, as an apparently experienced GP, is able to make informed medical opinions about her patients, whilst, of course, deferring to specialists to make definitive diagnoses of, inter alia, mental health ailments.
In this instance it would appear that Dr Farag has repeated the diagnoses of Dr Baqir, but, in addition has expressed the opinion (which she is entitled to) that the Applicant’s mental health ailments deleteriously impact on her poor concentration, attention and communication and capacity to learn.
The Tribunal has given appropriate weight to the opinion of Dr Farag on the manifestations of the Applicant’s mental health ailments on her ability to communicate and learn.
Dr Rachel Daniels
The Tribunal has been provided with two short letters from Dr Daniels: 13 July 2021 and

17 January 2022.
It would also appear that the letter of 13 July 2021 was prepared solely for the purpose of supporting the contention that the Applicant was unable to sit for a citizenship test.

Dr Daniels made the following observations – Exhibit 1 T4n p. 45:
“I have examined Mrs Zainab Alghazali who in my opinion is unfit to sit a Citizenship test.
She suffered an extreme trauma in the context of watching her son drown in a swimming pool. Despite counselling and psychiatric involvement, she remains depressed, has insomnia and impaired cognition (problems with concentration/attention and focusing)”.
Fortunately, in the letter of 17 January 2022, Dr Daniels addressed the key issue of how long she has been treating the Applicant – Exhibit 1 T8g p. 74:
“Ms Alghazali has been seeing me for several years.
She has treatment resistant Depression since the death of her son 11/2019 despite medications and grief counselling.
She has had regular appointments with her counsellor, is compliant with her medications and attends her Psychiatrist every 4 months.
Her condition is severe and stable and stationary.”
The Tribunal gives both letters due weight, and notes that Dr Daniels has had the benefit of assessing and treating the Applicant over a period of years.
Ms Kholoud Abdulla – Mental Health Social Worker
Ms Abdulla as a non-medically qualified person is not in a position to diagnose the Applicant’s mental health condition. However, as her treating social worker, is in a position to make observations about her day-to-day ability to communicate and interact.
Ms Abdulla, in her statement of 16 August 2021 made the following observations –

Exhibit 1 T4a p. 31:
“As a result of this tragic accident Zainab has not been functioning well. Her mental and physical health has become impaired. Zainab suffers from poor sleep, she has cut herself off from her friends and family, completely isolating herself. She does not attend any functions. She spends the majority of her time in her room. She feels anxious all the time and fearful. She is crying often and emotional. She often imagines that her son is still alive and waits for him to appear. Her mind is constantly disturbed by flashbacks which occur several times a day. She has intrusive disturbing memories and images of seeing her son drowning in the pool. This is a recurring image that plays on her mind all throughout the day. Further, she is having trouble concentrating, and is absent minded and forgetful. Having trouble comprehending things and making sense of things. She is on anti-depressants. It is unknown at this stage how long her condition will remain; however, I anticipate that it will last a very long time…”
Did the Applicant suffer from a permanent or enduring mental incapacity at the time of her application?
The Tribunal was presented with the unambiguous diagnosis of Dr Baqir that “her Depression is permanent and have lead [sic] to a permanent and enduring mental incapacity” – Exhibit 5.
Dr Grant was somewhat more guarded. He opined that “in view of the persistent symptoms, it is likely that Ms Alghazali will have a degree of permanent impairment” – Exhibit 4 p. 16.
Psychiatry is an inexact science, and both diagnoses and treatments are constantly evolving. The slow acceptance of a diagnosis of PTSD, and the treatment for that ailment, is a glaring example of how, with the passage of time, psychiatry evolves. It is in this context that the diagnosis of Dr Grant that the Applicant is likely to have a degree of permanent impairment must be understood.
CPI 2 relevantly states that an “enduring incapacity is one for which there cannot be a predicted recovery, or where it is, it is long term” – Exhibit 1 T12 p. 126.
Dr Grant, as previously noted, opined as follows – Exhibit 4 p. 15:
“The prognosis is guarded, given the chronicity of her symptoms at this stage, almost three years since her son died. There is therefore likely to be some degree of permanent impairment.”
In addition, Dr Grant opined that despite undergoing intensive treatment and management since the death of her son, the Applicant “is still so symptomatic” – Exhibit 4 p. 16.
While recommending that the Applicant should receive further treatment and rehabilitation, Dr Grant opined that the outcome of that further treatment “is somewhat guarded, given her lack of response to treatments so far”. However, he was hopeful that “over time her symptoms will gradually reduce leaving her in a more capable position to deal with her life and the demands of her family” – Exhibit 4 p. 17.
Dr Baqir was even less optimistic about the prospects for the Applicant’s incapacity improving over time. In his report of 1 December 2022, three years after her son’s death, he opined as follows – Exhibit 5:
“In my opinion she has a persistent depressive disorder which has been treatment resistant…
…
In my opinion all treatment options have been fully explored and I am not aware of any evidence based treatments that would be helpful in her condition due to the severity and complexity of her condition.
In my opinion she is fully diagnosed, fully treated and fully stable on her current impairment and disability.”
This is not a matter where the Tribunal has been presented with conflicting medical opinions. Both Dr Baqir and Dr Grant have provided compatible and consistent reports which support the proposition that at the time the Applicant made her application she was suffering from a permanent or enduring mental incapacity. This matter can, therefore, be distinguished from Laalaa and Minister for Immigration and Border Protection [2015] AATA 579 and Butrus and Minister for Immigration and Border Protection [2019] AATA 239 where the Tribunal was confronted with widely divergent medical opinions about the mental state of the respective applicants.
The Applicant’s long term GP, Dr Daniels, also observed that in her opinion that she had “treatment resistant Depression” and that her “condition is severe and stable and stationary” – Exhibit 1 T8g p. 74. Whilst Dr Daniels is not qualified to make a diagnosis of mental diseases, nonetheless her observations about the Applicant’s condition are consistent with the opinions given by Drs Baqir and Grant.
An enduring incapacity, as CPI 2 explains, is one where an applicant’s recovery either cannot be predicted or, where it is, is long term. This comports with the diagnosis of

Dr Grant, who opined that it is likely that the Applicant’s mental health ailments are permanent, but hoped that ongoing treatment might lessen the impact of those ailments with the passage of time. It will be noted that Dr Grant did not opine that the Applicant would recover with the assistance of ongoing therapy and medication, only that the symptoms of her mental health ailments would be less severe. Even then, Dr Grant was “somewhat guarded” having regard to the Applicant’s lack of response to intense medical intervention over a three-year period.
All of the medical evidence before the Tribunal supports a finding that the Applicant had a permanent or enduring mental health incapacity at the time she made her citizenship application.
Knowledge requirements
The Tribunal must now turn to the knowledge requirements set out in s 21(3)(d)(i)-(iii). The issue to be determined is whether the presence of the Applicant’s mental incapacity means that at the time of making her citizenship application, she was incapable of acquiring or demonstrating one or more of the knowledge requirements? If there is a finding that any one of the three requirements is met, then the requirements of s 21(3)(d) are met.
It is helpful in this regard to summarise the Minister’s submissions as contained in the RWCS, as they also deal with the Applicant’s testimony at the Hearing.
The Applicant testified that she left school when she was approximately 10-11 years of age. She has resided in Australia since December 2012 and has completed 299.3 hours of English language courses. All of those studies were prior to the death of her son. The Applicant testified that she had difficulties learning the English language, she did not study well and was busy looking after her children. She learned enough English to deal with people outside the home – RWCS para 10.
The Minister therefore contends that the Applicant’s difficulties in learning English are attributable to her limited education and should not be understood as meaning that she is not capable of learning the requisite level of English or undertaking the citizenship test. Rather, in the Minister’s submission, it suggests that it will take longer for the Applicant to learn the requisite level of English, as compared to someone with a higher level of education – RWCS para 10.
Furthermore, the Applicant testified that she undertook other courses to prepare for the citizenship test, which related to Australia, Australian history and other information about citizenship. However, she did not complete any of those courses. The Minister contends that the Applicant has not provided any information about her ability to learn, nor any detailed information about her past attempts to learn English or about Australia. In short, the Minister contends that the Applicant had difficulty learning the requisite elements of the citizenship test prior to the death of her son and, therefore, the Tribunal cannot be satisfied that the Applicant’s incapacity, arising from her son’s death, is the reason why she cannot undertake the citizenship test now – RWCS para 11.
It is the Minister’s contention that the Applicant has not established a clear causal connection between a permanent or enduring mental incapacity and one of the three requirements in s 21(2)(d)-(f) in order for the requirements of s 21(3)(d) to be satisfied – RWCS para 13.
The factual matrix in this matter can be compared with that in Harbi. The following observations of the Tribunal in that matter highlight the stark differences between that applicant and the Applicant in this matter:
56“I have no doubt that the applicant presently lacks a basic knowledge of English. She certainly could not undertake the Citizenship Test in English. However, is she incapable of doing so with appropriate preparation? The applicant presented as an intelligent woman who did not appear to have any difficulty communicating in her own language. As noted above, she completed the equivalent of the HSC in Iraq.
57Having listened carefully to her evidence, and the evidence of her general practitioner, and in light of the various medical reports, including the psychological and psychiatric assessments, I am not satisfied that this articulate and intelligent woman is incapable of demonstrating a basic knowledge of the English language.
58I have no doubt that it will be difficult for her to acquire this knowledge, especially in light of her mental health issues and the need to take medication for pain management. Indeed, it will be far more difficult for the applicant than for many other non-English speaking applicants. But the medical evidence presented on her behalf relating to her physical or mental health conditions does not support a finding that she is incapable of doing so.
59I note that she completed the equivalent of HSC in Iraq. She is not incapable of educational achievement. The Adult Migrant English program offers language tuition, and if she completes 400 hours of tuition she will be eligible to sit for an Assisted Test.
60In my view, the evidence of Major Depressive Disorder or Post Traumatic Stress Disorder, considered within the context of her overall physical health, falls short of establishing that, by reason of physical or mental incapacity, she is not capable, with appropriate preparation, of demonstrating the English knowledge requirement.
61There is no doubt that her physical issues, including her morbid obesity, will present a hurdle. I note that at the hearing there was a suggestion that she was in receipt of a Disability Support Pension, although details thereof were not provided to the Tribunal. But she is capable of movement and attending locations outside her home. She attended the Tribunal hearing. Indeed, she said that the driving impetus for her to acquire citizenship is to be able to travel back to Iraq to see her mother. This demonstrates that in her own mind she has the potential to travel.”
[References omitted]
In this matter, as the Minister points out, the Applicant only received rudimentary schooling in Iraq. It is not disputed that she finished her schooling at some time between the ages of 12 and 13. In short, she only received the Australian equivalent of primary schooling and never advanced to secondary education, let alone higher education. In contrast, in Harbi the applicant had completed the equivalent of the HSC in Iraq.
The applicant in Harbi was described as an “articulate and intelligent woman”. In this matter the Applicant had trouble communicating without becoming emotional and had obvious difficulties understanding various questions and concepts in the course of her testimony.
It is manifestly clear that the Applicant experienced difficulties learning the English language and in sitting for the citizenship test. These difficulties existed, as the Minister pointed out, prior to the death of her son.
The Applicant lived a sheltered life in Iraq. After leaving school at a very early age, she lived and worked at home. She, apparently, never left home to work and therefore did not mix with members of the broader community. For reasons that are not dealt with in the evidence, she did not marry until later in her life, and her husband is considerably older than her. It would appear that her whole life has revolved around a narrow group of family members, and she has never developed a vibrant non-family social life.
The Tribunal explained in Harbi that in order to meet the requirement of s 21(3)(d)(ii), namely that an applicant is not capable of demonstrating a basic knowledge of the English language, it needs to be demonstrated that for a particular individual it is a practical impossibility and not just extremely difficult.
It is patently clear to the Tribunal that prior to her son’s death, the Applicant’s limited education, limited social life and related factors would have made it difficult for her to develop a basic knowledge of the English language. However, it would not have been sensible to state that she could not, with due effort, have reached that standard.
However, the Applicant’s situation at the time she made the citizenship application was considerably different.
Dr Grant observed that when he assessed the Applicant her mood was “constantly sad with a lot of crying and tendency to be emotionally labile”. While Dr Grant opined that she showed no evidence of a formal thought disorder, she had impaired concentration. During the interview she “described memory difficulties” and found it hard to recall details – Exhibit 4 p. 13.
Dr Grant observed that the Applicant “has been unable to pursue English classes since the death of her son because of difficulties with her concentration and memory” – Exhibit 4

p. 14.
In addition, Dr Grant opined as follows – Exhibit 4 pp. 16-17:
“Ms Alghazali’s current level of symptoms are interfering with her ability to engage in any employment. She describes much reduced efficiency in her household duties.
Ms Alghazali has never worked outside of the home and it would appear that at present, given her problems with depression and poor concentration, it would be difficult for her to undergo any training to work outside the home. She had to discontinue English classes after her son’s death because of her symptoms.”

Dr Baqir also opined that the Applicant was suffering, inter alia, from “poor attention and concentration and memory” – Exhibit 5.
In addition, Dr Baqir opined as follows – Exhibit 5:
“She is not capable of learning and demonstrating basic knowledge of English language. She is not capable of learning and demonstrating adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.”
In his report of 8 June 2021, Dr Baqir was more direct – Exhibit 1 T4i p. 40:
“In my opinion her depression had a severe impact on her attention, concentration and capacity for learning and capacity for communication….In my opinion her impairment is permanent and she is not fit to do the citizenship test.”
It is tolerably clear from the evidence, that the Applicant’s difficulties in learning English were initially attributable to her limited education in Iraq and her limited social life, both in Iraq and in Australia. To that extent the Tribunal agrees with the submissions of the Minister.
However, the undisputed evidence points to the fact that the death of her son in 2019 has had catastrophic consequences for the Applicant, and that she now suffers from serious mental health ailments. As set out above, some of the symptoms of those mental health ailments are depressed mood, poor attention, concentration and memory.
In short, the Applicant started from a relatively poor situation, with serious problems with her education, communication and interpersonal skills. It is not, as in Harbi, where the applicant was a well-educated, intelligent and articulate person. Here the Applicant is not well educated, is apparently of normal intelligence and finds difficulty communicating.
The Minister noted that both Dr Grant and Dr Baqir cited the Applicant’s difficulty with concentration and memory as the reason she is, in their opinion, unable to sit the citizenship test. However, the Minister further contends, that neither Dr Grant nor Dr Baqir sufficiently address how the Applicant’s incapacity results in these difficulties, or how those difficulties render the test a practical impossibility for the Applicant. Further, the Minister contends that neither Dr Grant nor Dr Baqir address the Applicant’s educational history, or her attempts to learn English, or about Australia, before the death of her son – RWCS para 12.
The Tribunal does not agree with the Minister’s submissions. The medical evidence before the Tribunal is very clear and uncontested. Following the tragic death of her son, the Applicant developed severe mental health ailments. The Tribunal accepts the diagnosis of Dr Grant, namely Chronic Major Depressive Disorder with Complex Bereavement Disorder with some post traumatic anxiety features – Exhibit 4 p. 16.
Dr Grant specifically opined that the Applicant’s current level of symptoms interfered with her ability to engage in any employment, and he further opined that due to her problems with “depression and poor concentration” it would be difficult for her to undergo any training or work outside her home. Most importantly Dr Grant noted that the Applicant “had to discontinue her English classes after her son’s death because of her symptoms” – Exhibit 4 pp. 16-17.
Both Dr Grant and Dr Baqir were explicit in their reports that the Applicant suffered concentration and memory problems as a result of her mental ailments and these conditions rendered her unemployable and incapable of completing a citizenship test. The Tribunal accepts that this is the case, and in doing so had the benefit of witnessing the Applicant giving testimony at the Hearing with all of the attendant issues that arose.
The Tribunal accepts that the evidence leads inexorably to the conclusion that the Applicant’s mental incapacity is the clear cause of her inability to successfully sit the citizenship test to the requisite high standard.
Conclusion
The Applicant clearly is suffering from serious mental ailments following the tragic death of her son Ali in November 2019.
Prior to her son’s death, there would appear to have been no mental health problems afflicting the Applicant, or any immediate member of her family.
The Applicant has an unexceptional upbringing in Iraq. She had rudimentary schooling, and after leaving primary school stayed at home and helped her mother with her dressmaking business.
The Applicant lived in Najaf, Iraq, which, from the evidence, appears to have escaped relatively unharmed from the ongoing civil wars in Iraq over the past 20 years. In short, the Applicant lived a quiet and uneventful life during and after her schooling.
In 2008 at the age of 32, she married and subsequently had four children with her husband. He was born in Iraq but had Australian citizenship.
Due to her limited schooling and social life, and her attention to her young family, the Applicant found it difficult to learn the English language.
This is not to say that with further effort and time she would not have developed those skills. But in the time up to the untimely death of her son, Ali, she had not developed those skills.
Then in November 2019 her son, Ali, died after an incident at a swimming pool. His drowning was witnessed by the Applicant. The mental health issues that have flowed from that tragic event continue to overwhelm the Applicant and limit her life choices.
The evidence before the Tribunal is that the Applicant has proved resistant to various medical interventions aimed at curing or ameliorating the mental health problems she suffers. Unfortunately, the prognosis for the Applicant appears to be negative. Further health interventions appear to be aimed at ameliorating the severe side effects of her mental health issues, rather than curing them.
The medical and other evidence presented is consistent and there appears to be no doubt that the Applicant is suffering from an enduring mental health incapacity. That enduring mental health incapacity renders her not capable of demonstrating a basic knowledge of the English language. That incapacity, from the medical evidence, is not of short-term duration. It is at least long-term, and perhaps is permanent. Certainly, since November 2019 there has been no significant improvement in the mental health of the Applicant, despite numerous interventions and the prescription of various drugs.
In conclusion, the Tribunal finds that the Applicant had a permanent or enduring mental health incapacity at the time she made her citizenship application, and as a result is not capable of demonstrating a basic knowledge of the English language pursuant to

s 21(3)(d)(ii).
In reaching this conclusion the Tribunal, as the decision-maker, has reached the requisite degree of satisfaction required by s 21(3). Having reached that degree of satisfaction, it is not necessary for the Tribunal to address any additional requirements set out in CPI 2.
Subparagraph 21(3)(f) – likely to continue to reside in Australia
It is not contested that the Applicant will continue to reside in Australia.
DECISION
The decision under review is set aside and in substitution the Tribunal finds that the Applicant satisfies the requirements of s 21(3) of the Act and is eligible to become an Australian citizen.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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

Dated: 28 August 2023

Date(s) of hearing: 4 July 2023

Date final submissions received: 27 July 2023

Applicant: By Telephone

Solicitors for the Respondent: Ms Gabrielle Gutmann
MinterEllison

Date(s) of hearing:	4 July 2023
Date final submissions received:	27 July 2023
Applicant:	By Telephone
Solicitors for the Respondent:	Ms Gabrielle Gutmann MinterEllison