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

[2020] AATA 3694

Anwar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3694 (21 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2012

Re:Karima Anwar

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member O'Loughlin

Date:21 September 2020

Place:Adelaide

The Tribunal affirms the decision under review.

.............[sgnd]...........................................................

Member O'Loughlin

Catchwords

MIGRATION – eligibility for Australian Citizenship application - permanent or enduring physical or mental incapacity – demonstration of English language and Australia - decision under review affirmed.

Legislation

Australian Citizenship Act 2007

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

REASONS FOR DECISION

Member O'Loughlin

21.09.2020

1. On 25 September 2017 Ms Anwar lodged an application for Australian Citizenship. She lodged applications on behalf of her 4 children at the same time.

2. Ms Anwar’s application was refused by a delegate of the Minister for Home Affairs in a decision dated 14 January 2019.

3. The eligibility criteria for citizenship are set out in S.21 of the Australian Citizenship Act 2007 (“the act”).

4. In this matter, the applicant is eligible to become an Australian citizen if the Minister (or the Tribunal standing in place of the Minister) is satisfied that she meets the criteria specified in S. 21 (3).

5. The applicant had indicated in her application form, form 1290[1], that she suffers from a permanent or enduring physical or mental incapacity[2].

   [1] T1, pp55-73.

   [2] T1, p57 question 21.

6. Effectively the applicant says that an enduring physical or mental incapacity means that she is not capable of demonstrating a basic knowledge of the English language or an adequate knowledge of Australia.

7. The evidence and submissions in this matter focussed on the applicant’s ability to learn the English language, and to some extent, to study for the citizenship test.

8. The delegate of the Minister, in the decision of 14 January 2019, was not satisfied that the applicant meets the criteria in S.21 (3) (d).

9. The Tribunal is asked to review the delegate’s finding that the applicant does not satisfy the criteria S.21 (3).

   Statutory Framework

10. S. 21(3) relevantly provides as follows; -

    a.    “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.”

11. The provision enables applicants to become Australian citizens despite suffering from an enduring physical or mental incapacity that prevents them from satisfying the general eligibility criteria set out in section 21 (2).

12. The important question for the Tribunal to resolve is whether, at the time of her application, the applicant had an enduring physical or mental incapacity that affects her in the ways described in section 21 (3) (d) (ii) and (iii).

13. The respondent submitted that the Tribunal should be guided in its consideration of that question by the relevant Citizenship Policy (“the policy”) published by the then Department of Immigration and Border Protection on 1 June 2016 which appears in exhibit R1 at pages 30 to 54.

14. The respondent referred to the decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[3] as authority for the proposition that although the policy is not binding on the Tribunal, the Tribunal will usually apply policy guidelines unless there are cogent reasons in a particular case not to do so.

    [3] (1979) 2 ALD 634 at 645.

15. The Tribunal has not identified any cogent reasons not to apply policy guidelines in this case and finds that it is appropriate to apply them in considering this matter.

16. Tribunal observes the policy, at page 72 (page 38 of Exhibit R1), provides that relevant incapacity must be either permanent or sufficiently long term as to be enduring.

17. The policy further explains that an enduring capacity “is one for which there cannot be a predicted recovery, or where if there is, it is a long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship.” The policy gives examples of applicants who may be suffering from long-term depression or post-traumatic stress disorder.

18. The policy specifically states that a temporary physical or mental condition does not meet the requirement.

19. Under the heading “Mental incapacity” the policy specifies the type of evidence that an applicant may provide in support of their claim that they suffer a relevant mental incapacity.

20. The policy contemplates that applicant may provide evidence from a psychiatrist, a medical practitioner who is a fellow of the Australian Society of Psychological Medicine or a psychologist who is registered with the Psychology Board of Australia and who has a relevant endorsement and Medicare registration.

21. The policy also indicates that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

22. It is evident that to fall within the policy an applicant should provide evidence from a relevant medical witness and such evidence should, relevant to this application, establish that the applicant is not capable of demonstrating basic knowledge of the English language or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

23. It is also clear that such evidence should indicate that there cannot be a predicted recovery or if there is, it is long-term and it would not be reasonable to expect the person to recover before becoming eligible for Australian citizenship.

    Evidence

24. The applicant appeared before the Tribunal on 19 June 2020 to give evidence and make submissions.  She was unrepresented although she was assisted for part of the hearing by a care worker, Fatima Hassan Ali.

25. The respondent was represented by counsel.

26. In addition to documents exchanged under section 37 which were tendered and marked as exhibits, the Tribunal was provided with copies of the following medical reports;

    1.    report of Dr Singh dated 9^th of October 2019[4] ;

    2.    report of Dr Singh dated 14^th of November 2019[5] ;

    3.    report of Humera Rafiq 28^th of September 2019[6] ;

    4.    report of Dr Jaber 30^th of August 2019[7] ;

    5.    letter from Dr Somasundaram to Dr Jaber 8^th of May 2018[8] ;

    6.    report of Christine Bishop of Flinders Medical Centre Department of Neurosurgery dated 24^th of November 2016.[9]

[4] Exhibit A1.

[5] Exhibit A2.

[6] Exhibit A3.

[7] Exhibit A4.

[8] Exhibit A5.

[9] Exhibit A6.

1. The respondent asked that it be noted that included in exhibit R1 was a report from Dr Ghulam Jilani dated 5 September 2017.[10] Dr Jilani is a general practitioner.

   [10] Exhibit R1, p 74.

Dr Singh

1. Dr Singh is a psychiatrist who saw the applicant at the request of her GP. In his first report, dated 9 October 2019, he diagnosed Maj depression, chronic post-traumatic stress disorder and prolonged grief together with some other mental and physical conditions. He noted that she had been receiving treatment for mental health issues for 3 years.

2. In relation to the long-standing post-traumatic stress disorder and the depressive and anxiety symptoms as a result to her developmental experiences which included neglect, abuse, trauma, danger to life, and grief.

1. He started her on a medication, Mirtazapine 15 mg and contemplated that the dose could be increased in 15 mg increments to a maximum of 90 mg per day.

1. He said that if that failed there were other medications that he proposed to try. He also expressed the view that she would benefit from regular psychiatric follow-up monitoring of her mental state.

1. In his 2^nd report of 14 November 2019, he noted that she had attended again and that there had been small improvement in her depressive symptoms. She reported that her crying episodes had decreased but she continued to struggle with her other symptoms including anxiety irritability poor sleep and poor appetite.

1. He indicated that she had provided him with a letter from the Australian Government Solicitor asking for more information on psychiatric difficulties, treatment, and their impact on her life.

1. Dr Singh increased the dose of Mirtazapine to 30 mg per day and indicated that he would review her in two months’ time.

1. There was no further evidence from Dr Singh although the applicant did indicate that she had seen him since then and that her dose had been increased to 45 mg of Mirtazapine per day.

1. Although Dr Singh noted the applicant’s concern about undergoing the citizenship test because of her inability to use English, he did not comment on whether or not that was related to her mental disabilities.

1. Further he does not comment on whether the disabilities are permanent or enduring. It may be inferred from his report that he believes that some level of improvement could be anticipated but is not possible to determine whether he believes that her condition prevents her from learning English or studying for the citizenship test effectively.

1. The evidence from Dr Singh is not sufficient to satisfy the requirements of the policy.

Humera Rafiq

1. Humera Rafiq is a psychologist who prepared a report dated 20 September 2019 which was addressed to the South Australian Immigration Centre.

1. She says that she has been seeing Ms Anwar since 20 January 2017 for psychological treatment.

1. It is not clear whether Ms Rafiq has the qualifications and endorsements contemplated by the policy although it may well be that she does.

2. Ms Rafiq expresses the view that Ms Anwar is suffering from a Major Depressive Disorder with elements of PTSD and further to that condition prevents her from being able to demonstrate basic knowledge of the English language or performing adequately on the Australian Citizenship test.

3. Ms Rafiq does not express the view as to whether the applicant’s condition is permanent or enduring or what treatment options may be available to her.

Dr S Jaber

1. Dr Jaber is a general practitioner. There is no evidence that he possesses the qualifications or certifications contemplated by the policy and his evidence does not therefore suffice to satisfy the policy.

2. Tribunal notes that he does hold the view, expressed in his report of 30 August 2019, that the applicant cannot learn English due to multiple health issues.

3. Tribunal notes that this report was prepared before the applicant had seen Dr Singh.

Dr. Daya Somasundaram

1. Dr Somasundaram prepared a report dated 8 May 2018 for the plaintiff’s GP, Dr Jaber.

1. Dr Somasundaram is a consultant psychiatrist who saw the applicant and prepared a report dated 8 May 2018.

1. His report does not provide a diagnosis although he does express concern about the amount and type of medication that the applicant was taking when she saw him.

1. His report does not address the matters relevant to section 21 (3) and does not assist the Tribunal in considering this application.

1. The Tribunal notes that there is also a report dated 24 November 2016 prepared after a result of the applicant’s attendance at the Department of Neurosurgery at the Flinders Medical Centre on 11 November 2016. This report does not purport to address the relevant issues and is not of assistance to the Tribunal.

Applicant’s evidence

1. The applicant gave evidence about her medical background and her involvement with various doctors including most of those who had provided reports.

1. She said that she had tried to learn English but she had been restricted because she did not have time to study and because she did not have much education even in her own mother tongue.

1. She said that she went to TAFE to study English for 3 years but that the demands of looking after her children and problems with her back meant that she could not go on.

1. She said that having 4 children in her care meant that she could not study effectively. She also gave evidence that her memory caused problems and, although she had obtained a translation of the citizenship test documents, she was unable to commit them to memory for more than about 2 weeks.

1. The applicant said that she had seen Dr Singh about 5 times in total and that she believes that her condition has improved under him.

1. She said that she did not believe her condition had improved significantly even before she had started seeing Dr. Singh, but that now her medication is starting to work, she feels better.

1. She said that there is a course at TAFE which she might do to help her take the citizenship test. She said she has applied for support to do that and is waiting to see if she can do the course. She also said that she has applied to the department to sit for another test and that if this review is not successful, she will sit again and her children will help her study.

1. She agreed that it was appropriate to summarise her evidence as being that she has improved and that she hopes to do English.

2. The applicant did not express a view that she is particularly confident about passing the test or that she is particularly confident about learning English.

3. She did express a view that her condition has improved under the care of Dr Singh.

4. The Tribunal notes for the sake of completeness that the applicant’s daughters Ilhama Salam and Rehana Salam were called to give evidence but their evidence related to their own applications, which were heard at the same time.

Conclusions

1. The Tribunal accepts the respondent’s submissions that the effect of re Drake and Minister for Immigration and Ethnic Affairs is that the Tribunal should apply policy guidelines unless there are cogent reasons in a particular case not to do so.

1. The Tribunal accepts the applicant’s evidence that her condition has improved recently and has reached the point that she now believes she may have some chance of learning English and of passing the citizenship test.

1. The medical evidence is insufficient to show that the applicant has a permanent or enduring physical or mental incapacity. Further, the applicant’s own evidence is that her condition has improved.

1. The question the Tribunal must answer is whether, at the time Ms Anwar made her application, she suffered from a relevant “permanent or enduring” incapacity.

1. Mrs Anwar made the application on 27 September 2017. She has recently enjoyed some improvement in her condition.

1. The Tribunal finds that, although the extent of the applicant’s improvement has not been attested to by a relevant expert, the applicant reported a marked improvement and expressed the hope that she would now succeed in the citizenship test.

1. The Tribunal finds the fact of this improvement shows that any incapacity from which the applicant was suffering was not an incapacity that was “permanent or enduring” as contemplated in subsection 21 (3) (d).

Decision

1. The Tribunal affirms the decision under review.

I certify that the preceding 70 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin.

............[sgnd].............................

Administrative Assistant Legal

Dated: 21.09.2020

Date of hearing: 19.06.2020  

Applicant: Ms Fatima Ali of Skylight.   

Respondent’s representative: Mr T Ellison of Australian Government Solicitor.