Bagherizadeh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 4219
•22 October 2020
Bagherizadeh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4219 (22 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/6300
Re:Abbas Bagherizadeh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 October 2020
Place:Sydney
The decision under review is affirmed.
...................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied subsection 21(3)(d) – permanent or enduring physical or mental incapacity at the time of the citizenship application – depression – anxiety – PTSD – citizenship test – incapability to understand the nature of the application – incapability to demonstrate a basic knowledge of the English language – incapability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth)
CASES
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Shi v Migration Agents Registration Authority [2008] HCA 31
Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (American Psychiatric Publishing, 5th ed, 2013)
Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020
Citizenship Policy, 1 June 2016, ch 7
Determination for the Approval of a Citizenship Test (Section 23A) – IMMI 11/088
Revised Citizenship Procedural Instructions, 1 January 2019, CPI 2
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 October 2020
Mr Abbas Bagherizadeh (Applicant) is a citizen of the Islamic Republic of Iran. He was born there in 1979 and first arrived in Australia in 2011. The Applicant currently holds a Resident return (subclass 155) visa which was granted in September 2019.
There is considerable confusion about the details of the Applicant’s early arrival and stay in Australia. The decision record of the delegate of the Minister (Respondent) states that his first arrival was in November 2011 but gives no further details.[1] Since his arrival the Applicant has lived in various places including the Gold Coast, Melbourne and Wagga Wagga before eventually settling in Sydney.[2] In 2014 he took a holiday to Thailand and recently has also travelled back to Iran.
[1] Section 37 documents (T documents) at 23.
[2] Ibid 120-121.
The Applicant himself claims no clear recollection of many of these details.[3]
[3] Transcript dated 21 September 2020 (Transcript) at 7 [42] – 8 [27].
He has no immediate family or relatives in Australia. His mother recently passed away in Iran and he has a 16 year-old daughter there who he would like to bring to Australia. The Applicant and his ex-wife separated some 10-11 years ago and his daughter lives with her biological mother and her maternal grandmother.[4]
[4] Clinical psychological evaluation by Dr Gary Banks dated 2 April 2020 (Banks report) at [16].
On 1 August 2018 he applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (Act). On 26 August 2019 he was notified that a delegate of the Minister had refused his application.
On 3 October 2019 the Applicant applied to this Tribunal for a review of that decision and the matter came before the Tribunal for hearing on 21 September 2020.
The hearing was conducted under conditions imposed as a result of the COVID-19 pandemic and the limitations thereby placed on the Tribunal’s normal procedures. At the time of the hearing the Applicant was in Iran having been stranded there due to cancellation of his previously booked return flight to Australia scheduled for 14 September 2020.[5] He participated in the Tribunal proceedings by telephone with the assistance of a Farsi language interpreter. The Respondent and the Tribunal, and also Dr Gary Banks (a witness called by the Respondent), participated using the Microsoft Teams platform. Although this arrangement was less than ideal, and on several occasions telephone reconnections to Iran had to be made, the Tribunal is satisfied that procedural fairness was accorded to all participants through this mode of hearing.
[5] Transcript at 6 [32]. The Tribunal notes that it was 3:30am in Iran at the time of the hearing.
During the course of his evidence the Applicant indicated that he had made previous applications for citizenship by conferral which had not been successful. There was no documentary evidence before the Tribunal in relation to previous applications. In any event, the Tribunal is required to determine the individual matter on its merits and in accordance with the statutory requirements, using the material before it at the time of its hearing.[6]
[6] Shi v Migration Agents Registration Authority [2008] HCA 31, [37].
LEGISLATIVE SCHEME
There are several ways through which Australian citizenship may be obtained, one of which is by conferral.
The provisions of section 21 of the Act are applicable to applications for citizenship by conferral.
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
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 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; 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.
In short, the system is such that a person may make an application for citizenship by conferral and under subsection 24(1) of the Act the Minister must make a decision to approve or refuse that application.
In order for an application to be granted, generally an applicant must satisfy all of the 8 requirements that are listed in subsection 21(2).
Paragraphs (d), (e) and (f) of subsection 21(2) can only be satisfied if an applicant understands the nature of their citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and the responsibilities and privileges of citizenship.
This is established by an applicant having to undertake, and passing, the citizenship test established by sections 21(2A) and 23A.
THE CITIZENSHIP TEST
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be a permanent resident (s 23A(4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)) and the time limits within which the test must be completed (s 23A(5A)).
Passing the citizenship test is an integral requirement for the grant of citizenship. The test is designed to establish that an applicant both understands what citizenship is about and what their application actually means. It also establishes a requirement regarding basic competency in the English language.
There are several versions of the test. The Standard Test is simply computer-based. The Assisted Test is available for persons with low literacy skills or who have a physical or cognitive impairment (whether permanent or temporary) that prevents them from sitting the Standard Test and is conducted on the computer but with the assistance of a test administrator. A Course-Based Test was used previously for those who have failed the Standard or Assisted Test on three or more occasions and involved a detailed tuition programme. The Course-Based Test is no longer offered by the Department and has not been available since mid-2017.
In February 2020 a new ministerial Determination, Australian Citizenship (LIN20/085: Approval of a Citizenship Test) Determination 2020 (LIN20/085), came into effect.[7] It sets out the two types of citizenship tests (Standard and Assisted Tests, both of which are computer-based) that may be administered to applicants. Both rely upon the selection of a random set of 20 questions which are extracted from information contained in the book Our Common Bond that is provided to all applicants. The Assisted Test is available to persons who are eligible to sit the Standard Test[8] but have either:
(a)low literary skills demonstrated by completing at least 400 hours of English language tuition under the Adult Migrant English Program (AMEP) and are assessed by the AMEP provider as having less than basic reading skills in English; or
(b)a physical or cognitive impairment (whether permanent or temporary) that prevents them from sitting the Standard Test, even with the assistance from the test administrator.[9]
[7] It replaced Determination for the Approval of Citizenship Test (Section 23A) - IMMI 11/088 made by the Minister on 1 March 2012 and in effect from 24 March 2012.
[8] That is, they are a permanent resident whose identity has been verified and who have made an application for citizenship under section 21 off the Act: Australian Citizenship (LIN20/085: Approval of a Citizenship Test) Determination 2020 (LIN20/085) s 8.
[9] LIN20/085 s 14.
Whereas the previous relevant ministerial Determination was explicit in stating that the citizenship test could be undertaken on any number of occasions, there is no such specific provision in LIN20/085. However, there is also no prohibition on the taking of the test on multiple occasions. LIN20/085 also sets the “pass mark” for both the tests (75% correct answers) and the time limits for the completion of the tests (Standard = 45 minutes; Assisted = 90 minutes).
As from 15 November 2020 there will be an additional layer of testing, namely a test of “values” with five additional “values” questions added to the test which must be answered with 100% accuracy. These questions are “focussed on assessing the applicant’s understanding of Australian values”.[10]
[10] Ibid 18.
However, if the Minister is satisfied that an applicant is not capable of meeting the requirements of paragraphs 21(2)(d),(e) or (f) due to having “a permanent or enduring physical or mental incapacity, at the time the person made the application”, and is otherwise aged 18 or over, is a permanent resident, satisfies the requisite residence requirements, is likely to reside in, continue to reside in or maintain a close relationship with Australia, and is of good character, then the Minister may proceed to grant the citizenship application.
More generally, the provisions of this section and its operations were outlined by Senior Member Taylor SC in Khodeir:
Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007 (Cth). Those criteria include three matters of particular relevance to Mr Khodeir’s application. I paraphrase those three matters as
(a)AWARENESS:- understanding the nature of the citizenship application
(b)ENGLISH:- possessing a basic knowledge of the English language
(c)KNOWLEDGE:- having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship
As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in … s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English” and “knowledge”).[11]
[11] Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499, [2]-[3]. Citations omitted.
This Tribunal has set out the legislative history of paragraph 21(3)(d) in Butrus[12] and this need not be repeated here, other than to indicate that the current form of the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth) and this in turn led to the adoption of policy guidelines indicating how decision-makers should approach claims made under paragraph (d).
[12] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239, [25]-[30].
They are found in the Citizenship Policy (Policy) which states:
For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
…
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
…
Physical incapacity
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…
Mental incapacity
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
· 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 of Psychological Medicine 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.
…
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.[13]
[13] Citizenship Policy, 1 June 2016 (Policy) ch 7.
ASSESSING THE INCAPACITY CLAIMS
Paragraph 21(3)(d) of the Act requires that the Applicant’s condition be assessed as it was at the date of the citizenship application itself, being 1 August 2018,[14] and not at the time of the Tribunal’s decision. This is important because medical evidence as to the Applicant’s condition being considered by the Tribunal must be related to the date of the application itself and not to any conditions which have arisen subsequently.
[14] T documents at 125.
In order to meet the criteria under the Act, an applicant must have a “permanent or enduring physical or mental incapacity” which results in the applicant not being able to understand the nature of their citizenship application, to demonstrate basic English language competency, or to demonstrate adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
In order to demonstrate this, the applicant should, in line with the Policy, produce evidence from a qualified practitioner which shows that the incapacity is permanent or enduring meaning that it is one for which there can be no predictable recovery, or where it is predictable that recovery is long-term such that it would be unreasonable to expect recovery to take place before the applicant otherwise becomes eligible for a grant of citizenship.
It is important to note that the physical or mental incapacity must be the causative factor in relation to subparagraphs 21(3)(d)(i) to (iii).
As this Tribunal said in Butrus:
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 basis knowledge of the English language.[15]
[15] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239, [61].
If those conditions are satisfied, then “s.21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test”.[16]
[16] Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429, [7].
Assessments of physical and mental incapacity are also guided by the provisions of the Citizenship Procedural Instructions (CPI). These guidelines provide that a decision maker “may require the following information as evidence of mental incapacity”[17] and then go on to outline what details may be required or what tests might be appropriate to administer in order to make findings.
[17] Revised Citizenship Procedural Instructions, 1 January 2019 (CPI) CPI 2 s 3.4; T documents at 89. Emphasis added.
As the Tribunal has stated previously:
Policy is not law. A statement of policy is not a prescription of binding criteria.[18]
[18] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306, [21]. This is also recognised in CPI 2 s 1.
Nevertheless, the Policy cannot be ignored,[19] but rather must be read with a sensitivity to the context of the individual circumstances of each case. It is important to make this point because when considering the evidence presented to the Tribunal an Applicant is often placed at a disadvantage to the extent that their medical referees do not usually set out their evidence in strict conformity with the guidelines in the Policy and CPI whereas the highly experienced consultants for the Respondent generally adhere to the outlined formula. That is certainly the case in this instance.
[19] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
Some of the criticisms of the medical evidence submitted by the Applicant advanced by the Respondent is an attack on their form of presentation rather than on the quality of their diagnosis or conclusions.[20] The fact that a qualified clinician does not undertake the exact tests referred to in the Policy or CPI does not, ipso facto, invalidate their conclusions. Where the Tribunal is invited to disregard or accord limited weight to a professional opinion, that invitation must go to the quality of the assessment and not to some failure to accord with procedures laid down in some bureaucratic ukase.
[20] Respondent’s statement of facts, issues and contentions (SFIC) dated 12 June 2020 at [23] and [33].
EXPERT EVIDENCE
The Applicant has provided evidence from three practitioners: Dr Drew (a consultant psychiatrist); Dr Pishyar (a clinical psychologist) and Dr Mirzaie (a child, youth and family psychiatrist), all of whom meet the qualifications for expertise set out in the Policy.[21]
[21] Policy ch 7.
Dr Kathryn Drew
Dr Kathryn Drew[22] gives details of the Applicant’s admission to the Psychiatric Emergency Care Centre of the Northern Sydney Local Health District in December 2018 following an apparent intentional overdose of prescription medication. This incident was described by the Applicant in his interview with Dr Gary Banks as “I tried. I ate them. I don’t know what they were, I just put them all together. It was one or two times”.[23]
[22] T documents at 128-129. Letter is dated 24 December 2018.
[23] Transcript at 31 [1]-[2].
Her report also references an earlier admission to Macquarie Hospital sometime in 2017 for a “prolonged admission”. While there he was treated with venlafaxine and electroconvulsive therapy (ECT). In January 2018 he was discharged into the care of his private psychiatrist (Dr Mohsen Mirzaie) with accommodation provide initially by the Salvation Army and then in Department of Housing public accommodation. Dr Drew reported on the Applicant’s social and emotional isolation and concluded that:
In my opinion, Abbas is likely to have ongoing difficulties completing the citizenship (scil. test) as a result of his ongoing difficulties with concentration and motivation. His continuing social isolation maintains his difficulties. He would likely benefit from receiving citizenship and being able to participate in a family reunion process.
However, it should be noted that Dr Drew’s letter does not actually proffer any specific diagnosis of the Applicant’s mental health condition nor any regime of ongoing treatment. It is unclear what cognitive or clinical testing was undertaken. It appears that Dr Drew’s comments about the Applicant’s incapacity to undertake the citizenship test are based only on the Applicant’s self-reporting.
Dr Reza Pishyar
Dr Reza Pishyar has been treating the Applicant for many years since 2016 and had, as at 18 July 2018, conducted 22 sessions with him.[24] He has supplied several reports dated 18 July 2018, 3 October 2019 and 21 May 2020.[25] These reports contain a diagnosis of depression, anxiety disorder, and a comorbid presentation of post-traumatic stress disorder (PTSD) and Major Depressive Disorder. They report various treatments including medication, psychotherapy and CBT (cognitive behaviour therapy). Dr Pishyar reports that the Applicant’s condition(s) “has not improved, but is fully stabilised”.[26] He also reports that he does not expect the Applicant’s condition to improve in the future.[27]
[24] T documents at 119.
[25] Ibid 18 and 119, and letter by Dr Reza Pishyar dated 21 May 2020.
[26] T documents at 119. The Tribunal notes that the Applicant’s condition is such that he has been granted the Disability Support Pension but the basis upon which that was granted is unknown.
[27] Ibid 18.
In the report of 21 May 2020, Dr Pishyar states:
I also assessed Mr Bagherizadeh as having a lack of understanding of basic English usage although there is a minimal degree of understanding he can speak in simple English to the best of his limited ability.
On mental state examination, he demonstrated abnormalities of attention, new learning immediate recall and short-term memory problem. The nature of the abnormalities was consistent with known cognitive abnormalities of depression and anxiety. Mr Bagherizadeh’s lack of awareness in terms of his orientation is in my opinion a reflection if his education, his lack of comprehension of English and Australian culture and his lack of interest which is associated with her (sic) depression and PTSD.
In the context of my five years clinical involvement of Mr Bagherizadeh I am satisfied that the abnormalities of cognition that he reported during the course of his five years of clinical intervention, that is, the difficulties with concentration, attention and memory that were (sic) prohibited him from acquiring English or basic knowledge requirements that are a prerequisite for obtaining citizenship was on the basis of his mental illness.
The Respondent challenges Dr Pishyar’s assessments on the basis that they fail to provide (in the Respondent’s view) a clear basis for the diagnoses given; that the diagnoses progress from one of depression and anxiety disorder (18 July 2018) to PTSD and Major Depressive Disorder (21 May 2020) without explanation; that there is no evidence of any CPI-suggested psychological tests being undertaken other than a mental state examination alone; and that no monitoring or treatment plan is outlined.[28]
[28] Respondent’s SFIC at [22]-[23].
These criticisms about form are of less concern (for the reasons outlined above) for the Tribunal. Notwithstanding this, Dr Pishyar’s reports do not state the basis for his diagnoses of the Applicant’s depression, anxiety, PTSD or Major Depressive Disorder other than to conclude, from a mental state examination documented in 21 May 2020, that the abnormalities determined during that examination are “consistent with known cognitive abnormalities of depression and anxiety”. They also do not provide the basis for a diagnosis, if any, as to whether the incapacity is permanent or enduring. The other problem is that it is difficult to relate the evidence of 3 October 2019 and 21 May 2020 to the Applicant’s condition at the relevant time, that is the time of the application in August 2018. Dr Pishyar, in his May 2020 report, draws his conclusions on the basis of his “five years clinical involvement” with the Applicant but does not provide further explanation or details about the basis of his diagnoses over time.
Dr Mohsen Mirzaie
Dr Mohsen Mirzaie has supplied reports dated 29 July 2017, 28 June 2018, 1 October 2019 and 28 May 2020.[29]
[29] T documents at [13], [115] and [118], and letter by Dr Mohsen Mirzaie dated 28 May 2020.
Dr Mirzaie reports the Applicant suffering from anxiety, depression and PTSD, and makes reference to several incidents of self-harm and attempted suicide. He finds the Applicant’s condition chronic, unlikely to improve and fluctuating between complete incapacity and slight functionality.
He concludes that:
As detailed in my initial assessment … Abbas has been completely incapacitated since his arrival in Australia in 2011. He was affected by depression and post-traumatic stress disorder for many years ago dating back to his time in Iran when he engaged in suicidal attempts and self-harm behaviour.
The combination of Abbas being of low IQ and having suffered Major Depression on the back of chronic trauma and forced migration has made it impossible for him to have a normal cognitive function. As a result, he appears to be incapable of registering and processing information and producing outcome as a normal person would. He will not be capable of demonstrating a basic knowledge of English language let alone obtaining an adequate knowledge of Australia.[30]
[30] T documents at 118.
Again, the Respondent challenges these assessments[31] on the basis that the CPI tests were not used, although Dr Mirzaie states that he administered to the Applicant a mini-mental state exam[32] and that his diagnoses are based upon DSM-V criteria.[33]
[31] Respondent’s SFIC at [32]-[33].
[32] T documents at 117.
[33] Ibid 13 and letter by Dr Mohsen Mirzaie dated 28 May 2020; American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (American Psychiatric Publishing, 5th ed, 2013).
The Respondent also contends that certain evidence by Dr Mirzaie suffers from the same defect of not referring back to the Applicant’s incapacity at the time of application. The Tribunal notes that Dr Mirzaie’s later reports do refer back to his report of 29 July 2017 which predated the application. However, aside from brief references in these reports to the use of DSM-V criteria, the reports do not provide detail as to the basis of Dr Mirzaie’s diagnoses of the Applicant’s mental health conditions or the basis for his diagnoses, if any, as to whether the incapacity is permanent or enduring.
Unchallenged is Dr Mirzaie’s reporting that the Applicant also suffers from a variety of somatic conditions including arthritis (especially of his knees) and gout. However, given that Dr Mirzaie in not a specialist in the fields relating to these physical incapacities, and as he has neither provided diagnoses for these conditions, nor demonstrated the basis for any conclusions that they are permanent or enduring, nor provided detail as to how these conditions are relevant to the matters addressed in subparagraphs 21(3)(d)(i) to (iii), the Tribunal does not give any weight to this aspect of the evidence.
Dr Gary Banks
Dr Gary Banks is a highly experienced consultant clinical psychologist who has provided numerous reports to this Tribunal, other tribunals and courts, and was requested by the Respondent to undertake a detailed examination and evaluation of the Applicant. His report is dated 2 April 2020 and comprises a detailed introductory statement and 75 paragraphs over 22 pages. It is the result of his examination of the Applicant which took place on 25 February 2020.
The Tribunal notes that Dr Banks’ examination and report in 2020 appears to suffer from the same defect that the Respondent alleges against some of the reports of Drs Pishyar and Mirzaie, in that they rely upon a projection back in time to come to conclusions which have relevance to the situation at the time of the Applicant’s citizenship application. This is the inevitable consequence of the Respondent seeking, as it must, evidence to present to the Tribunal, to refute what might otherwise be unsubstantiated or poorly substantiated claims. In the absence of material changes having occurred between the time of the citizenship application and the date of any assessment presented on behalf of the Respondent, the Tribunal must simply be mindful of this dilemma as it considers and weighs the evidence before it.
In evidence Dr Banks explained that he had spent approximately 3 hours from 09:20am to 12:30pm on that day taking the Applicant’s history and conversing with him (through the assistance of a Farsi interpreter) and then for approximately 3.5 hours from 1:05pm to 4:20pm administering a series of formal psychological tests.[34]
[34] Banks report at [11]-[52]; Transcript at 18 [26]-[35].
Dr Banks also had the opportunity to review the reports of Drs Drew, Pishyar and Mirzaie together with records and documents supplied to him by the Respondent.[35]
[35] Banks report at 2.
In his report Dr Banks paid particular attention to such matters as the Applicant’s association of his past failure to obtain citizenship with his inability to return to Iran to see his mother before she died, his enjoyment of life in Wagga Wagga and his attempts to buy a home there, his taking a holiday in Thailand, and some of his responses at the interview “indicating some level of English comprehension”,[36] his obtaining and use of a heavy vehicle drivers licence, and his degree of confidence about being able to look after his daughter should she be allowed to come to Australia.[37]
[36] This was based on the Applicant’s ability to fill out a pre-interview information sheet in English without the help of an interpreter and his capacity to answer some questions in English before they were translated from Farsi.
[37] Banks report at [10], [11], [14], [15], [19] and [66].
Dr Banks also outlined some of the Applicant’s somatic problems and in evidence the Applicant indicated that he had recently had surgery on both his knee and his eyes in Iran. Again, for the reasons given above in paragraph 48, the Tribunal does not give weight to these physical conditions in its consideration of paragraph 21(3)(d).
The diagnoses and conclusions to which Dr Banks comes are, in all significant respects, contrary to those of the medical reports submitted by the Applicant. They include the following:
Upon further examination, it appears that differentially a diagnosis of Major Depressive Disorder may be an inappropriate fit for Mr Bagherizadeh as it does not take into account his physical issues. That said, it is my opinion that Mr Bagherizadeh’s clinical profile more appropriately meets diagnostic criteria for Depressive Disorder Due to Another Medical Condition, as per the DSM-5. It is evident that the gout and multiple knee surgeries have had a substantial amount of impact upon his mobility, pain, associated psychological distress, coupled with becoming increasingly socially isolated and distant from others. All of these symptoms perpetuate one another, which turns into a cycle which Mr Bagherizadeh without ongoing structured therapeutic intervention will be unlikely able to moderate. This is also important as Mr Bagherizadeh did not state he had any depressive symptoms prior to the onset of his physical illnesses[38]
…
Importantly, it appeared that Mr Bagherizadeh held a degree of ‘blame’ and ‘anger’ which was directed towards the Citizenship test, application and the Citizenship book (“Our Common Bond”). Mr Bagherizadeh demonstrated no difficulty with reading through the responsibilities and privileges of Australian Citizens, where he was able to read the whole page … in Farsi. If this is combined with him attending further English lessons through an approved Adult Migrant English Program (AMEP) and engage in conversational English with other students/treating clinicians/eventually social network, he would be able to attempt the computer-based test in English.[39]
Further, after assessing his ability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, it is my considered opinion that based on her (sic) performance on a battery of objective cognitive assessment measures, Mr Bagherizadeh’s current psychological profile would not be considered sufficient to warrant excluding him from the usual application processes for Australian citizenship. Indeed to the contrary, he demonstrates a sound level of English comprehension and retention, as well as being able to apply himself to multiple cognitive assessment measures. One can speculate that from the lack of maintaining and applying his skills and cognitive ability which he would have learnt during his schooling in Iran, he unfortunately has not been required to put considerable amount of cognitive ability and effort into his daily living, meaning that he has not needed to do so. As stated above, he also demonstrated a basic knowledge of the English language as he has learnt some of the English numbers and has acquired both a receptive and expressive comprehension (as seen on the client information sheet completed at Sydney Counselling Centre) of English words. It is acknowledged that Mr Bagherizadeh continues to experience pain issues relating to his gout and multiple knee procedures, despite the lack of supporting documents to state whether this is the case. Further, it is to his credit that Mr Bagherizadeh attended over 600 hours of English lessons, despite the ongoing management of his physical and mental health problems. These elements taken together would, in my opinion negate, the suggestion as expressed by Dr Mohsen Mirzaie that Mr Bagherizadeh ‘appears to be incapable of registering and processing information and producing outcomes as a normal person would … not capable of demonstrating a basic knowledge of the English language’, such that he cannot undertake the Citizenship test via the usual pathway.[40]
[38] Banks report at [63]. Emphasis in original.
[39] Ibid [69].
[40] Ibid [70].
In his oral evidence, when asked to summarise his findings, Dr Banks stated:
WITNESS: So from the point of discharge in January 2018 through to the present time – sorry, correction, through to, obviously, my assessment in February 2020, I can reasonably conclude that the applicant has been living independently in the community, managing his finances and activities of daily life by himself …
WITNESS: ... So in summary, I found that the applicant does evidence some signs of depression, but I would not, in my opinion, consider that to be major depression and certainly not enduring nor resistant to treatment, indeed to the contrary.
…
WITNESS: And I also saw some signs of mental impairment or mental incapacity, but due to the variable nature of the results I obtained, I do not have confidence in my assessment of the severity and extent of that impairment, nor would I call it permanent in any way. Though in contrast, and just to sum up, finish, I did find an individual that appeared to be almost fully independent, able to problem-solve and manage himself in the city of Sydney, able to navigate his way to appointments with unknown clinicians like myself, able to manage finances, budgets and day-to-day living requirements and demonstrate capacity to learn, recall and comprehend …[41]
[41] Transcript at 28 [7]-[11], [31]-[34] and [38]-[46].
MR BAGHERIZADEH’S EVIDENCE
The Applicant took, and still takes, issue with some of Dr Banks’ findings. Apparently, the Applicant returned to Dr Banks’ surgery on 28 April 2020[42] after he had received Dr Banks report to challenge him about his conclusions that the Applicant did not have mental health problems which prevented him from sitting and completing the citizenship test, particularly because he was conscious of the need not to “self-sabotage or hurt himself”.[43] The Applicant claimed that he has constant bouts of suicidality and has attempted suicide on more than one occasion. He told the Tribunal that it was only by seeing and contemplating the photographs of his daughter in his home that he was prevented from killing himself with a knife on various occasions.[44]
[42] Ibid 17 [36]-[39].
[43] Banks report at [52].
[44] Transcript at 36 [10]-[24].
The Applicant repeatedly made statements along the following lines:
I have mental health problem. I made several attempts to kill myself. But aside from all this, if I really had the capacity to sit for this citizenship test, I would have done it. It is – and then I could – then I could have the chance to see my mother. Now my mother passed away. But I really could not sit for this test.[45]
[45] Ibid 29 [36]-[40].
He also challenged the findings that he was able to lead an effectively “independent” life due to his somatic conditions and his sense of social isolation.[46] In relation to his mental incapacity and ability to organise overseas travel by himself, the Applicant has said that “[s]omebody help me to organise my flight and departure from Australia…I think it was the travel agency who organised this thing for me”.[47]
[46] Ibid 29 [15]-[43].
[47] Transcript at 9 [6]-[8] and [12]-[13].
The Applicant also indicated that he had a heavy vehicle driver licence and had passed a test in order to obtain the licence.[48] However, regarding the test to obtain that licence, the Applicant explained to Dr Banks that:
I got a Farsi book, it was easy to read, then I practiced driving the trucks and then I did the test. It’s the same as everyone else.[49]
[48] Ibid 12 [12]-18].
[49] Banks report at [19].
The Applicant was asked by the Tribunal why he wanted to become an Australian citizen. His reply was to the effect that he had lived in Australia for many years but also primarily because he wanted to bring his daughter to Australia to study.[50] This desire is reflected in the comments of Dr Drew. The Applicant also expressed to Dr Banks that he would “look after her” were she to arrive in Australia.[51] There is no evidence that any such plans have been made or in hand. In any event, there appears to be dissonance between the Applicant’s assertion that he could and would look after her and his position that he is so incapacitated as a result of his mental health conditions such that he does not have normal cognitive function.
[50] Transcript 6 [41]-[43].
[51] Banks report at [66].
CONSTRAINTS OR CAUSATIONS
There is no doubt that the Applicant suffers under a number of constraints in terms of his ability to meet the requirements of Australian citizenship. He clearly suffers from a degree of depression and social isolation. He has a number of limiting, but manageable, somatic conditions and he equates the previous failures to be granted citizenship with the psychological suffering he experienced as a result of not being able to see his mother before her death in Iran.
In order to meet the requirements of paragraph 21(3)(d) what needs to be established is the clear causal connection between the existence of a permanent or enduring physical or mental incapacity and the inability to either understand the nature of the citizenship application, to demonstrate an adequate knowledge of Australia and the privileges and obligations of citizenship, or to demonstrate a basic knowledge of the English language.
He has attended some 600 hours of English language lessons and while he states that he was unable to learn and continued to attend only in order to socialise with other people,[52] the Tribunal accepts Dr Banks conclusion that this shows a degree of motivation and would “have the incremental benefit of developing his conversational English language skills”.[53]
[52] Transcript at 29 [34]-[36].
[53] Ibid 32 [4]-[7].
Despite Dr Mirzaie’s conclusion that the Applicant has been “completely incapacitated” since his arrival in Australia in 2011, that “[i]t is well documented in psychiatric literature that depression and trauma affect one’s ability to register, retain and process information” and that as a result of his mental health conditions “he appears to be incapable of registering and processing information and producing outcome as a normal person would”,[54] the Tribunal notes that the Applicant had successfully obtained his heavy vehicle driver licence. This meant, as per the Applicant’s own evidence, that he read (and presumably studied) material to satisfy the knowledge component to obtain that licence, albeit in Farsi. The timing of the Applicant obtaining this licence also appears to fall within the period when he was seeking psychological treatment from Dr Pishyar and when Dr Pishyar had eventually concluded that “Abbas is not capable of understanding the nature of the application but dose (sic) know that the application is about his becoming an Australian citizen”.[55]
[54] T documents at 118.
[55] Ibid 119.
Furthermore, in considering all the evidence from the qualified practitioners, the Tribunal is persuaded that the conclusions reached by Dr Banks are to be preferred to those reached by the other medical practitioners. Dr Banks’ lengthy description of multiple and various tests administered, and the results therefrom, are persuasive of the conclusions which he has reached and which the Tribunal has outlined above.
Despite its sympathy with the Applicant’s position and its understanding of his frustrations at being unable to obtain citizenship despite his multiple attempts, the Tribunal does not find the Applicant suffered from a permanent or enduring mental incapacity at the time of his application, being such that would have prevented the Applicant, at that time, from either understanding the nature of his citizenship application, demonstrating some basic English language skills, or demonstrating adequate knowledge of Australia and the privileges and responsibilities of citizenship.
The Tribunal notes that while Dr Mirzaie seems to suggest that he “cannot see the possibility of him sitting for Australian citizenship exam conducted in English”[56] and Dr Pishyar’s view that “his mental health condition is ongoing and not likely to improv (sic) in the future”,[57] Dr Banks suggests that “graded activity/cognitive behavioural intervention” and dietary management may assist in the improvement of his mental and physical health conditions and that steps can be undertaken to improve his level of English comprehension.[58]
[56] T documents at 15.
[57] Ibid 18.
[58] Banks report at [67]-[69].
This may well put the Applicant in a better position, at some stage in the future, to undertake the citizenship test, making use of the Assisted form of the test which is available for people with low levels of literacy or some degree of impairment.
However, at this stage, the Applicant has not satisfied paragraph 21(3)(d) of the Act and does not qualify for an exemption from sitting for the citizenship test.
DECISION
The decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd]...............................
Associate
Dated: 22 October 2020
Date(s) of hearing: 21 September 2020 Applicant: In person (by telephone) Solicitors for the Respondent: Ms L Hargrave, Clayton Utz
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