Babawy and Minister for Immigration and Citizenship (Citizenship)
[2025] ARTA 1915
•19 September 2025
Babawy and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 1915 (19 September 2025)
Applicant/s: Antanyos Faraj Antanyos Babawy
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/5684
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:19 September 2025
Decision:The Tribunal affirms the decision under review.
......................[SGD].....................
General Member A. Maryniak KC
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – Australian Citizenship Act 2007 (Cth) – whether Applicant had a permanent and enduring mental incapacity within the meaning of s 21(3)(d) of the Citizenship Act 2007 (Cth) – Tribunal not satisfied there is evidence of the requisite mental incapacity – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Butrus v Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Secondary Materials
Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Statement of Reasons
The Applicant seeks review of a decision of the delegate of the Respondent made on 17 July 2024 pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) refusing his application for Australian citizenship by conferral.
The delegate refused the application because it was not satisfied the Applicant had a permanent or enduring mental or physical incapacity at the time he made his application, and therefore did not satisfy s 21(3) of the Act.
BACKGROUND
The Applicant is a 33-year-old Iraqi citizen who first arrived in Australia on 27 June 2014 as the holder of a permanent residence (subclass XB-202) visa granted on 29 May 2014.
On 8 May 2023 the Applicant lodged an application for Australian citizenship by conferral under s 21(3) of the Act on the basis that he had a permanent or enduring physical or mental incapacity. The application was accompanied by letters from Dr Fadia Isaac, clinical psychologist, received by the delegate on 23 October 2023 and 6 December 2023 stating that the Applicant suffered from anxiety, depression and insomnia due to him witnessing his father’s death in childhood and the breakdown of his relationship in 2021.
On 21 November 2023, the Respondent requested further evidence of the Applicant’s permanent or enduring physical or mental incapacity. On 6 December 2023, a letter dated 27 November 2023 was provided by the Applicant to the delegate which indicated that four months was required in order to address and treat the abovementioned symptoms with fortnightly sessions. The delegate granted the Applicant an extension until 30 May 2024 to undergo psychological treatment in order to determine whether he had an enduring mental incapacity.
The delegate did not receive further information from the Applicant in relation to whether any assessments were undertaken, details of past or ongoing treatment, or the prognosis for the Applicant’s incapacity, and therefore was unable to determine that the Applicant’s conditions were the direct cause of his inability to understand the nature of the application or demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
On 17 July 2024, the delegate refused the Applicant’s citizenship application on the basis that he did not satisfy the requirement in s 21(3)(d) of the Act.
On 5 August 2024, the Applicant sought review of his refusal decision to the then Administrative Appeals Tribunal.
CONSIDERATION
The Tribunal received into evidence the following materials:
(a)Exhibit A1: The Applicant's Statement of Facts, Issues and Contentions (‘SFIC’) dated 16 June 2025 comprising 2 pages of material;
(b)Exhibit A2: Two further letters from Dr Fadia Isaac, psychologist, dated 28 October 2024 and 10 May 2025;
(c)Exhibit R1: Respondent’s T-documents lodged on 9 May 2025 pursuant to s 37 of the Administrative Review Tribunal Act 2024 (Cth) comprising 141 pages of material; and
(d)Exhibit R2: Respondent’s SFIC dated 10 July 2025 comprising 31 pages of material.
The Tribunal has considered the documentary evidence before it, comprising the T Documents and the letters from Dr Isaac. The Applicant’s representative relied upon the Applicant's SFIC and did not lead any evidence by way of testimony from the Applicant or any other witness. The Applicant’s representative indicated that no written statement by the Applicant directed to his application was before the Tribunal. The Applicant was assisted by a Lebanese-Arabic interpreter. The Applicant was cross-examined and questioned by the Tribunal.
Section 21 of the Act relevantly provides:
Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include payment of a fee).
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Permanent or enduring physical or mental incapacity
(3)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i)at the time the person made the application; and
(ii)at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)has permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i)is not capable of understanding the nature of the application at that time; or
(ii)is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii)is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f)is of good character at the time of the Minister’s decision on the application.
Section 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.
The Tribunal is to determine, pursuant to s 21(3)(d) of the Act, whether as at 8 May 2023 the Applicant had a permanent and enduring mental incapacity resulting in him being incapable of (relevantly):
(i)Understanding the nature of the citizenship application; or
(ii)Demonstrating a basic knowledge of the English language.
Hence, the Tribunal must be satisfied that the Applicant had a “permanent or enduring…mental incapacity” and that resulted in the Applicant not being able to understand the nature of his citizenship application or him not being able to demonstrate a basic knowledge of the English language.
Paragraph 21(3)(d) of the Act requires that the Applicant’s condition to be assessed [and confirmed] as it was at the time of the citizenship application, being 8 May 2023, and not at the time of this decision. Only medical or other relevant evidence directly relating to the Applicant's condition on 8 May 2023 may be considered.
As the predecessor to this, the Tribunal stated in Butrus v Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 at [61]:[1]
In order to meet the requirements of s 21(3)(d) what needs to be established is the clear causal connection between a significant physical or mental incapacity and the inability to understand either the nature of the citizenship application or the privileges and obligations of citizenship and the ability to demonstrate a basic knowledge of the English language.”
[1] Butrus v Minister for Immigration and Border Protection [2019] AATA 239 [61] (Senior Member Chris Puplick AM). See also Bagherizadeh and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4219 at [28] to [30].
A person may make an application for citizenship by conferral and under section 24(1) of the Act the Minister (here the Tribunal) must make a decision to approve or refuse that application.
The Revised Citizenship Procedural Instructions (‘CPI’) (reissued on 26 February 2021) provides guidance for decision-makers exercising power under the Act, and while not binding on the Tribunal, should generally be applied by decision-makers unless there are cogent reasons for not doing so.
The relevant CPI in this matter is CPI 2 – Citizenship by conferral – Permanent or Enduring Physical or Mental Incapacity which provides guidance as to how decision-makers should approach applications made under paragraph 21(3)(d) of the Act.
Its purpose is to identify the legal requirements and related policy and procedures applicable to the assessment of an application for conferral of Australian citizenship pursuant to section 21(3) of the Act.
(a) Paragraph 6 of CPI 2 relates to assessing incapacity. Paragraph 6.1 provides as follows:
There are two parts to paragraph 21(3)(d) of the Act. The first part is the applicant must have a permanent or enduring physical or mental incapacity at the time of the application. The second part is the incapacity is the direct cause of the applicant not being capable of:
· understanding the nature of the application; or
· demonstrating a basic knowledge of the English language; or
· demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
(b) Paragraph 6.3 provides incapacity must be the direct cause of the applicant not being capable of:
· understanding the nature of the application; or
· demonstrating a basic knowledge of English; or
· demonstrating that they have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
A person who is illiterate in their native language and English may not necessarily have an incapacity. Only if their illiteracy was due to an incapacity, such as an acquired brain injury or a learning disorder, would the person meet the requirements of paragraph 21(3)(d).
On 3 April 2023 Dr Isaac first reported that the Applicant had symptoms consistent with depression and anxiety associated with ‘severe trauma’ following a then recent break up. Dr Isaac observed that it may take the Applicant a long time to recover from the breakup trauma, but he did not say that the Applicant would not recover. Dr Isaac’s concern was that the Applicant should not sit the Australian Citizenship Test at that time because “sitting the test will cause an escalation of his current symptoms [of depression and anxiety] especially that (sic) he had sat the test multiple times in the past”. Dr Isaac was essentially concerned that sitting the test “will cause further stress and it would be detrimental to [the Applicant’s] mental health. Dr Isaac did not state that the Applicant did not understand the nature of the citizenship test or application.
The Applicant specifically relies upon reports of Dr Isaac dated 14 September 2023, 28 October 2024 and 10 May 2025. The Tribunal has also considered the 3 April 2023 report, as discussed above, being over a month before 8 May 2023.
In his 14 September 2023 report Dr Isaac states “I will only provide clinical assessment and no psychological treatment will be provided due to my full time commitment with my PhD research.” Dr Isaac states that generally ‘both insomnia and depression disorders can be successfully treated... However [the Applicant] refuses [as at 27 November 2023] to seek treatment...”. The Applicant reported various conditions usually associated with a Major Depressive Disorder Single Episode severe with anxious distress features" An insomnia disorder was also noted. Importantly, the Applicant “did not display a cognitive delay, disability, or behavioural abnormalities to warrant the need for a (sic) cognitive testing.”
Dr Isaac was unable to say whether the Applicant expected to show improvement because it was “outside my professional boundaries to give an answer... as [the Applicant was] not receiving psychological treatment” from Dr Isaac. Relevantly, Dr Isaac concluded that the Applicant simply “cannot demonstrate a basic knowledge of English” and that such “can be a major barrier in passing his Australian Citizenship test”. Critically, Dr Isaac does not state that the Applicant’s condition prevents him from “an understanding of the nature of the application for Australian citizenship” despite being specifically asked to report on that issue. Nor does Dr Isaac state that for any cognitive reason the Applicant is unable to acquire a basic knowledge of the English language should he wish to.
On 28 October 2024 Dr Isaac reported that the Applicant was referred to him on 12 August 2024. Again, Dr Isaac highlights the difficulties the Applicant had due to his “current limitations ... directly hinder his capacity to learn English and fully engage in daily life, which impacts his ability to comprehend, study for, and complete the citizenship test”. However, Dr Isaac does state that if the Applicant’s mental health was to improve, his English reading and writing abilities could be ‘enhanced’ with “dedicated language education and intervention”. Further, Dr Isaac states that, as at October 2024, the Applicant “experiences persistent mental health challenges that are permanent and require ongoing therapy for the next 24 months’, noting that a mental health plan was initially prepared by his previous general practitioner, on January 24, 2024.
The content of the 28 October 2024 report does not establish that as at 8 May 2023 the Applicant had a permanent or enduring mental incapacity rendering him incapable of “understanding the nature of the [citizenship] application at that time” or incapable of “demonstrating an adequate knowledge of the English language at that time”. Dr Isaac’s letter of 10 May 2025 does not rectify the Applicant’s evidentiary deficiency on this fundamental issue, nor does any other material before the Tribunal. Further, no aspect of the Applicant’s testimony rectified this evidentiary deficiency.
For completeness, there is no evidence before the Tribunal to establish that the Applicant had, at 8 May 2023, a permanent or enduring mental incapacity rendering him incapable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
In light of the consideration above, the Tribunal finds that he has not satisfied the requirements of paragraph 21(3)(d) of the Act and therefore the exemption provided therein does not apply to the Applicant.
DECISION
The Tribunal affirms the reviewable decision.
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General Member A. Maryniak KC
19 September 2025
Date of hearing: 12 August 2025 Applicant: Antanyos Faraj Antanyos Babawy Applicant’s advocate: Mr Robert Peter McMahon of McMahon International Migration of Australia Group Respondent’ solicitor: Ms Samantha Liddy of Sparke Helmore
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