Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Amiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4817 (1 December 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6035
Re:Zahara Amiri
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:1 December 2020
Place:Sydney

The reviewable decision is affirmed.
.........................[sgd]...........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – rejection – citizenship test – eligibility requirements for citizenship – whether applicant has permanent or enduring physical or mental incapacity – consideration of medical evidence – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
SECONDARY MATERIALS
Australian Citizenship Policy (1 June 2016)
Australian Citizenship Procedural Instructions (2 March 2019)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
1 December 2020
Introduction

On 11 November 2016 Ms Amiri lodged an application for citizenship by conferral under s 21(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) on a Form 1290 Application for Australian citizenship – other situation, indicating that she has a “permanent or enduring mental incapacity”.[1]
[1] T4/110.
A delegate of the Respondent Minister refused Ms Amiri’s application on 25 September 2018. She then applied to this Tribunal for review of that decision on 16 October 2018.
The regulatory regime
A person who applies for Australian citizenship under s 21(1) of the Citizenship Act is eligible for conferral in accordance with s 21(3), if the Minister is satisfied that the person meets several criteria. The issue in this case is whether Ms Amiri satisfies s 21(3)(d), that is, that she:
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 Respondent sought to rely on the Australian Citizenship Procedural Instruction (ACPI) which came into effect on 2 March 2019. The ACPI supersedes the Australian Citizenship Instructions which were in force on the date of the application for citizenship by conferral. The delegate in refusing Ms Amiri’s application for citizenship by conferral applied the Australian Citizenship Instructions in force on 1 June 2016.[2]
[2] T2/14.
The evidence
Ms Amiri gave oral evidence and provided letters from Dr M A Chaudhary, consultant psychiatrist, Dr Reza Pishyar, clinical psychologist and her general practitioner, Dr Khalil Hamid.
The Respondent relied on the evidence of Dr Gary Banks, consultant clinical psychologist who provided two reports and gave oral evidence. There were also further documents from Dr Chaudhary, Dr Pishyar and Dr Hamid which were produced under summons and provided by the Respondent to Dr Banks for his second report. Those documents were not tendered into evidence. They were considered to the extent that Dr Banks referred to them.
Ms Zahara Amiri
In her application for citizenship, Ms Amiri provided the following information. She was born in Kabul, Afghanistan in 1983 and is a citizen of that country. She included in the application her son who was born in 2003. She also has a son who was born in 1998. Both were born in Kabul. She listed the names and dates and places of birth of her parents and indicated that they had no other names and had not held Australian citizenship. She stated that her mother was deceased and her father was living in Afghanistan. She lived in Pakistan from 22 September 2011 to 7 August 2012. The “No” box was ticked in answer to each of the questions 38(a) to (j) which are largely concerned with criminal offences. Ms Amiri signed the application. She did not nominate a person to make enquiries about the application on her behalf.
Ms Amiri provided the following additional information in the Form 1399 Declaration of service. She stated her religion and her ethnic group. Her husband Ismael was deceased. She listed the names of three siblings, their country of birth and residence and dates of birth. None of them has lived in Australia. She had no schooling and had never worked. She denied having assistance with the form. She signed the form.
Ms Amiri signed a statutory declaration in English explaining why she did not have a birth certificate for her son who was included in her application. There was no indication that an interpreter had assisted. A Justice of the Peace witnessed the document.
Her Document for travel to Australia states that she is widowed and arrived in Australia on 8 August 2012.
The response to the question “Why do you claim the decision is wrong?” in the application for review to the Tribunal, was:
I claim that the decision is wrong because I am mentally disabled due to my depression and anxiety that I experience. I have also not been to school or taken any course to learn english, therefore I can not speak read, write or understand English.
Ms Amiri signed the application which was dated 12 October 2018.
Dr Khalil Hamid
Ms Amiri provided a letter from Dr Hamid dated 2 September 2016 in support of her application. Relevantly, Dr Hamid wrote:
This is to certify that the above patient is under my care.
She suffers from major depression, anxiety, low mood, low self esteem, loss of interest, insomnia and poor concentration.
…
She is under care of psychiatrist, Dr Chaudhary, and psychologist, Dr Reza Pishyar, with no improvement.
Due to her multiple medical problems, she is not able to work or study. She is an invalid pensioner. She is not able to sit for Citizenship exam. I would appreciate if you could consider her medical condition.
Dr Hamid wrote further letters in support of Ms Amiri which repeated some of that information but provided additional information. In the letter dated 12 December 2018, Dr Hamid said that Ms Amiri also suffers from bereavement, chronic discogenic lower back pain, cervical spondylosis and radiculopathy, is illiterate and unable to speak English and due to her mental and physical disorders and the language barrier is unfit to sit the English Exam.
In a letter dated 5 February 2019, Dr Hamid stated Ms Amiri suffers from chronic bereavement following the loss of her husband and her missing son.
In a letter dated 29 November 2019, Dr Hamid repeated much of the content of the previous letters. He also wrote that Ms Amiri has a very poor memory, she is not able to learn, she has never been to school in Afghanistan, and is unable to study and pass her examination for citizenship. Dr Hamid did not mention cervical spondylosis and radiculopathy.
Dr Reza Pishyar
Dr Pishyar, PhD, is a Member of the Australian Psychological Society (APS), a member of the APS College of Clinical Psychology and registered as a Clinical Psychologist by Australian Medicare. Dr Pishyar wrote a letter to the Department of Immigration and Citizenship[3] dated 1 September 2016 which stated the following. Ms Amiri had been under his care since 18 June 2013. She had asked him to support her application for Australian citizenship by conferral due to her current mental health conditions. She was receiving disability support pension (DSP) and having regular psychological sessions in relation to her major clinical depression and post traumatic stress disorder (PTSD). She received Cognitive Behaviour Therapy. Dr Pishyar listed her symptoms as including:
(i)Short memory problem with limited concentration on daily tasks.
(ii)Feeling of hopelessness and helplessness
(iii)Poor sleeping and early morning severe fatigue symptoms mixed with loss of interest.
(iv)Low energy with constant headache and tiredness
(v)Intrusive memory/thoughts
(vi)Period of crying most of the time.
[3] Superseded by the Department of Home Affairs on 20 December 2017.
Dr Pishyar concluded:
Given the chronic course of her PTSD and depression, it is unlikely that her mental health condition will improve enough in the future. In my opinion, Mrs Amiri is not capable of understanding citizenship test due to her limited English skills. I believe the impact of her psychological conditions on her cognitive functioning is expected to persist for next two years and the current rational treatment strategy is helping her preventing further deterioration.
Dr Pishyar wrote further letters repeating much of the same information but including additional or varied information. In the letter dated 12 December 2018 Dr Pishyar wrote that Ms Amiri suffers anxiety disorder. Her symptoms from her conditions included depressed moods, flat affect, loss of interest and motivation, excessive worry with constant feeling of agitation, irritability and jittery, nightmares, flashback and intrusive memory. Dr Pishyar’s opinion was that Ms Amiri was incapable of understanding the nature of the application but does know it is about her becoming an Australian citizen.
Dr Pishyar’s letter concluded:
I have assessed Ms Amiri as having lack of understanding of basic English, although there is a minimal degree of understanding as she can speak a few words in simple language to the best of her limited ability and language skills. She never attended to school in her country of origin Afghanistan. She was suffering from a permanent and enduring mental incapacity at the time she made the application.
In a letter dated 29 November 2019, Dr Pishyar wrote that Ms Amiri suffered anxiety disorder with panic reaction and PTSD in the context of unresolved grief and traumatized loss. Ms Amiri’s psychological symptoms have affected severely her cognitive capacity and mental functionality and made it difficult to integrate into her host country and means that she is not capable of demonstrating a basic knowledge of the English language.
Dr M A Chaudhary
Dr Chaudhary, psychiatrist, wrote two letters in support of Ms Amiri. In the letter dated 6 December 2018, Dr Chaudhary wrote that Ms Amiri had been a patient since 1 September 2015 and has been diagnosed as suffering from depression, anxiety disorder and from bereavement following the loss of her husband as well as her missing son. In the doctor’s opinion, she is illiterate and does not understand the questions in the Citizenship test and he certified that “she will be unfit to sit this test” and recommended that she be given an exemption from “such a written test”.
In the letter dated 1 November 2019 Dr Chaudhary repeated the diagnoses as before and continued:
I am of the opinion that she is:
1.    Not capable of understanding the nature of her Application or;
2.    Not capable of demonstrating basic knowledge of the English language or;
3.    Not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
I hope that this brief summary of her conditions will help to understand that she will be unable to sit the Citizenship Examination because she is illiterate and has a very poor knowledge of the English language.
Dr Gary Banks
Dr Banks, consultant clinical psychologist, Fellow APS College of Clinical Psychologists and Fellow, APS College of Forensic Psychologists, prepared reports dated 24 June 2019 and 24 March 2020, and gave oral evidence. He assessed Ms Amiri on 23 May 2019. The second report addressed documents sent to Dr Banks including three letters of Dr Chaudhary, five reports of Dr Pishyar, and a letter and records of Dr Hamid. The documents included some that Dr Banks had considered in his first report.
Ms Amiri had the assistance of a Dari interpreter. Dr Banks’s report was comprehensive. Following is his Evaluation which appears at the end of the report:
32. Ms Amiri attended an interview and assessment over the span of five hours, which in and of itself is highly informative about her capacity to sustain and concentrate, (though she did frequently yawn openly, having reportedly slept and eaten inadequately for the assessment). Ms Amiri was less than fully cooperative with the assessment process. During her interview she was frequently vague or evasive in her responses to questions, requiring persistent questioning to obtain information about which she often initially denied remembering or knowing. During testing she demonstrated an unwillingness to make a sincere effort to respond with correct answers to test items. Indeed, as explained above, Ms Amiri’s performance on these cognitive tests was so universally abysmal that it would be implausibly poor results even for the most severely impaired individual, which, in any case, is hardly a description consistent with Ms Amiri’s behaviour and reported life history, which provides significantly greater evidence of functional capacity than Ms Amiri was inclined to admit. While the insincerity of her engagement with cognitive testing made it impossible to determine her true capacity, insufficient evidence of functional impairment was provided to suggest the presence of any substantial mental impairment.
33. It is my considered opinion then, that in and of itself, Ms Amiri’s psychological profile would not be considered sufficient to warrant excluding her from the application processes for Australian citizenship. It is acknowledged that Ms Amiri continues to experience symptoms of depression, likely due to a range of factors including unresolved distressing life events, limited social interaction and purpose, poor lifestyle habits, and a lack of therapeutic engagement with any effective change-oriented psychological intervention. That said, there has been presented for this assessment no compelling evidence that would suggest that Ms Amiri’s level of distress is pervasive enough to impact her learning. Noting that Ms Amiri has completed only limited education in the English language, her lack of concerted effort is the simplest explanation for her lack of ability to speak English now.
34. On the basis of supplied documentation, information attained at Ms Amiri’s interview and in consultation with her son Naveed, and administration of measures to assess Ms Amiri’s cognitive functioning, it is in my view then that Ms Amiri does not appear to be suffering from a permanent or enduring physical or mental incapacity, nor to have been suffering from such a condition that would mean that she was not capable of:
Understanding the nature of the application; or
Demonstrating an adequate knowledge of Australia and of the responsibilities
and privileges of Australian citizenship.
In his second report, Dr Banks reviewed two letters from Dr Chaudhary which were produced under summons as follows and stated the following. In the letter dated 8 September 2015 to Dr Hamid, Dr Chaudhary summarises his initial assessment of Ms Amiri and noted that the assessment was aborted after Ms Amiri said that Dr Chaudhary asked “too many questions and she had a headache”. The second letter was dated 14 April 2016 in support of Ms Amiri’s application for DSP. Dr Chaudhary claimed that Ms Amiri cannot work and diagnosed “Post-Traumatic Stress Disorder, Grief reaction following the death of her son, Depression [and] Anxiety” that is “chronic, permanent and unlikely to improve further despite treatment”.
Dr Banks also considered the additional documents from Dr Hamid and Dr Pishyar.
In brief, the additional documents did not give Dr Banks any reason to review the opinion expressed in his earlier report dated 24 June 2019. Dr Banks concluded:
On the contrary, these documents reinforce my concerns regarding what appears to be absolute pessimism expressed by these three professionals concerning Ms Amiri’s functioning. These concerns are underlined by an apparent lack of supporting evidence from any objective psychometric assessments establishing cognitive impairment, together with an apparent lack of engagement by Ms Amiri with any structured, evidence-based psychological therapy (without which, claims that any impairment was ‘permanent’ might well be viewed as premature). Insofar as these professionals appear instead to have accepted Ms Amiri’s own pessimistic expressions without question, I find their approach puzzling in context, noting that Ms Amiri’s initial presentation for psychological and psychiatric treatment appears to have coincided with her efforts to obtain their support, first for a Disability Support Pension application and then for an exemption from normal requirements to sit the Citizenship Test.
Consideration
I find that Ms Amiri suffers from major clinical depression, anxiety disorder with panic reaction and PTSD in the context of unresolved grief and traumatized loss. She has had no formal education, is illiterate in her own language, and speaks little English.
Dr Banks elicited from Ms Amiri some information about her grief and loss. Her husband died in an explosion from a rocket attack after which Ms Amiri identified him at the local mosque. After her husband died and her oldest son went missing in Kabul, Ms Amiri fled to Pakistan with her other two sons from where she eventually travelled to Australia. Ms Amiri told Dr Banks that although she had not heard from her eldest son, she intended to return to Kabul to attempt to find him. She admitted that “there was no one to ask and no government procedure to follow” and that she mainly wanted to go “for closure”. When asked why she was applying for Australian citizenship, Ms Amiri said that “everyone is entitled to a passport” and said that she had been told by an organisation which she could not remember that her current travel documents would not allow her to go to Kabul to find her lost son.
Ms Amiri’s symptoms are as described by Dr Pishyar at [17] and [19] above.
Despite some differences between Ms Amiri’s account and her son’s account of Ms Amiri’s daily activities, Dr Banks said:
Nonetheless both Ms Amiri and her son presented a view of someone who appears to be demonstrating a strong tendency to withdraw from social situations, active parenting, and domestic responsibilities while neglecting her own self-care.
However, as a result of his assessment, including psychometric testing, Dr Banks found that there was no compelling evidence that would suggest that Ms Amiri’s level of distress is pervasive enough to impact her learning.
Dr Banks noted that Ms Amiri has completed only limited education in the English language and concluded that her lack of concerted effort is the simplest explanation for her lack of ability to speak English now.
At [14] of its Amended Statement of Issues, Facts and Contentions, the Respondent critiqued the reports of Dr Pishyar and Dr Chaudhary concluding that they did not meet the requirements of the ACPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (ACPI 2) at [3.4]. The Respondent did accept that those doctors were appropriately qualified.
I find that Ms Amiri has demonstrated an understanding of her citizenship application based on her statements to Dr Banks and does not satisfy s 21(3)(d)(i).
I find that neither Dr Pishyar nor Dr Chaudhary has clearly explained how Ms Amiri’s psychological profile is causally linked with her claimed inability to demonstrate a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
I have not considered Dr Hamid’s opinion about Ms Amiri’s mental incapacity because he is not appropriately qualified.[4]
[4] Under both the ACPI 2 and the Citizenship Policy in force from 1 June 2016, Chapter 7.

Both Dr Pishyar and Dr Chaudhary emphasise that Ms Amiri is illiterate. As the ACPI 2 states, being illiterate does not necessarily mean that she has an incapacity of the kind that would meet the requirements of s 21(3)(d).
The ACPI 2 states that when assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression.
Putting aside the question of whether other treatment may be beneficial to Ms Amiri, as Dr Banks suggests, neither Dr Pishyar nor Dr Chaudhary clearly explains the incapacity resulting from Ms Amiri’s major clinical depression, anxiety disorder with panic reaction and PTSD in the context of unresolved grief and traumatized loss that means that Ms Amiri is not capable of demonstrating a basic knowledge of the English language at the time she made the application or is not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at the time she made the application. That is a deficiency in the evidence relied on by Ms Amiri regardless of whether ACPI 2 is applied.
I am not satisfied that Ms Amiri had a permanent or enduring physical or mental incapacity, at the time she made the application for citizenship by conferral, that means she:
(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 the responsibilities and privileges of Australian citizenship at that time.
Ms Amiri does not satisfy s 21(3)(d) of the Act.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............................[sgd]........................................
Associate
Dated: 1 December 2020

Date of hearing: 24 August 2020

Applicant: In person

Solicitors for the Respondent: Mr C Brinley, Clayton Utz

[2020] AATA 4817

1 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	24 August 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C Brinley, Clayton Utz