Benbrika and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1341

Benbrika and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1341 (14 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/4946
Re:Halima Benbrika
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:14 May 2021
Place:Sydney

The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – does not have a permanent or enduring physical or mental incapacity – application of Citizenship Procedural Instructions – suffers from Major Depressive Disorder – not permanent or enduring – functionally illiterate – incapacity not a direct cause – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
CASES
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964
SECONDARY MATERIALS
Citizenship Procedural Instruction 2 – Permanent or Enduring Physical or Mental Incapacity
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition; 2013
REASONS FOR DECISION
Chris Puplick AM, Senior Member
14 May 2021

Ms Halima Benbrika (the Applicant) is a citizen of Morocco. She was born in 1978 and first arrived in Australia in 2013.[1] The Applicant’s personal statement says that she arrived in Australia in 2016, but this is incorrect.[2] She currently holds a Permanent Partner visa (subclass BS-801) which was granted in May 2016.[3]
[1] Department of Home Affairs movement records, Tribunal documents (T-documents) at 49.
[2] Applicant’s Statement (22 January 2021).
[3] T-documents at 51.
Ms Benbrika was married to Mr Jim Traboulsi (an Australian citizen) after her arrival in Australia[4] and the couple have two young children.
[4] T-documents at 39.
On 29 May 2020 the Applicant applied for Australian citizenship by conferral, but that application was rejected by a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) on 22 July 2020.
On 17 August 2020 the Applicant sought a review of that decision by this Tribunal which heard her application on 27 April 2021. The hearing was conducted using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant was represented in the proceedings by her husband and parties were assisted by an Arabic-language interpreter.
CITIZENSHIP BY CONFERRAL
Applications for citizenship by conferral are made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). Once an application is made, the Minister must either approve or refuse the application.[5]
[5] Australian Citizenship Act 2007 (Cth) (Act) s 24(1).
An applicant must meet certain qualifications as specified in the Act[6] and, if they do, they must then undertake and pass the Citizenship Test[7] (unless they are exempted from so doing).[8] Once that is complete, a qualified applicant must make the Pledge of Commitment[9] (unless they are exempted from so doing) before their citizenship is finally granted.
[6] Act s 21(2).
[7] Act s 23A.
[8] Act ss 21(3)(d), 21(4)-(8).
[9] Act s 26.
As stated, in order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Paragraphs (d), (e) and (f) of subsection 21(2) require the Minister to be satisfied that the applicant:
(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
…
In order for the Minister to be “satisfied”, subsection 21(2A) provides for a “Citizenship Test” to be undertaken by the applicant:
(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.
However, under paragraph 21(3)(d) of the Act, the Minister may, in effect, waive the requirements of this provision in circumstances where the applicant:
(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
…
The Applicant submitted that she suffers from mental health problems, specifically Major Depressive Disorder (MDD) such that she cannot comply with the requirements of the Act in relation to the Citizenship Test and should be granted an exemption under paragraph 21(3)(d).
These claims were assessed by the Delegate and rejected.[10]
[10] T-documents at 11-17.
The Tribunal notes that in making decisions about the grant of citizenship, a decision-maker is to have due regard to the Australian Citizenship Policy Statement and the relevant provisions of the Citizenship Procedural Instructions (CPIs) published by the Department of Home Affairs. CPI 2 – Permanent or Enduring Physical or Mental Incapacity (CPI 2) specifies that supporting evidence is required from medical practitioners who possess recognised levels of specialist qualification,[11] and that assessments of the mental health of applicants must address certain specified diagnostic criteria.
[11] Citizenship Procedural Instruction 2 – Permanent or Enduring Physical or Mental Incapacity at [3.4].
THE APPLICANT’S CLAIM
The Applicant claims that she suffers from Major Depressive Disorder (MDD) which manifests itself in a symptomatology of low moods, tearfulness, irritability, constant emotional fatigue, panic attacks, forgetfulness, social isolation, low tolerance for stress, inability to sleep, lack of capacity to concentrate and general anxiety, among other symptoms.
In addition, the Applicant claims to be functionally illiterate in the English language and to have “a moderate level of” literacy in the Arabic language. She states that she only attended school briefly in Morocco and while she engaged in some TAFE-style training she never completed any courses.
The Applicant had some form of employment in Morocco looking after children (without any formal qualifications being necessary) but since arrival in Australia she has never worked in paid employment.
The Applicant also states that while she has been able to undertake some preparation for sitting the Citizenship Test, she “freezes” and “panics” when she actually has to sit for it.
There is also a passing reference in the Applicant’s personal statement of difficulties with her vision, but there is no medical evidence in support of this and the matter is not pressed further in any submissions.
PROFESSIONAL MEDICAL EVIDENCE
There are several reports before the Tribunal from a variety of medical practitioners. For the sake of completeness, a brief summary of them should be made (in chronological order):
Mr Emad Girgis: 21 May 2020
Mr Girgis is a clinical psychologist who has been treating the Applicant since mid-2018. On 21 May 2020 he provided a report which contains the following relevant observations:
Ms Benbrika cannot read or write in English and a moderate (sic) level of literacy in Arabic.
…
Ms Benbrika was alert and oriented to time, place and person and did not present with associated disturbances or impaired judgement. Ms Benbrika was able to answer questions and recall her past without difficulties.
…
When questioned about her condition, Ms Benbrika accepted the fact that she still requires treatment. Ms Benbrika identified the importance of her treatment and attendance at her psychological appointments in assisting her rehabilitation.
Ms Benbrika reported however that she has demonstrated slow signs of improvement nevertheless, Ms Benbrika stated that she is aware she has not completely recovered but has noticed changes in herself.
…
Ms Benbrika’s disorder is not yet stabilized nor managed, therefore additional stressors should not be placed. Ms Benbrika’s treatment plan will exceed 24 months, commencing from the date stated above.
Mr Girgis undertook some psychometric testing of the Applicant and concluded that she suffered from MDD.
There is some level of doubt about the Applicant’s degree of literacy in Arabic. Mr Girgis’ report is consonant with the Applicant’s own written submission to the Tribunal but the reliability of that is in doubt.[12] The Tribunal cannot be confident on this point one way or another.
[12] For example, it gives both an incorrect date of birth and an incorrect date of arrival in Australia. It clearly was not composed by the Applicant herself.
Dr Shahrian Chowdhury (Boon Health Centre): 8 September 2020
Dr Chowdhury, who is the Applicant’s general practitioner, in a report to the Tribunal stated that the she was suffering from “severe anxiety and phobic disorder”. He references Mr Girgis’ report to which he adds comments to the effect that the Applicant has suffered mental health problems for many years and traces these back to her childhood experience of civil conflict trauma in Morocco.
There is also a letter to the effect that the Applicant has been referred to a psychologist (Mr Medhat Metry) although there is no report from Mr Metry before the Tribunal. Dr Chowdhury’s letter also confirms that the Applicant has “no regular medications”.
Mr Joseph D’Silva: 13 November 2020
The Applicant saw Mr D’Silva who is a registered psychologist on the referral of the Applicant’s General Practitioner (Dr Chowdhury). It is not clear from Mr D’Silva’s report whether or not he undertook any specific testing of the Applicant but he came to a firm diagnosis of her rating at an extreme level on the Depression Anxiety Stress Scale and gave a diagnosis of Mixed Anxiety and Depression in terms of DSM-5[13] categorisation. Mr D’Silva noted that the Applicant was undertaking treatment by way of various therapies, although making no mention of any medication and reported:
However, it is important to note that her condition is considered to be diagnosed, treated and stabilized; likely to continue in the long term.
[13] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition; 2013.
DISCUSSION OF MEDICAL EVIDENCE
There appears to be some discrepancies in the medical evidence, especially between Mr Girgis and Mr D’Silva.
Mr Girgis regards the Applicant’s condition as not fully stabilized and treated. He further states that there has been some improvement in the Applicant’s condition and that, with adherence to a plan exceeding 24 months there are prospects of further improvement.
Mr D’Silva on the other hand regards the Applicant’s condition as fully diagnosed, treated and stabilized. He expects it to persist in the long term but notes that treatment is being undertaken “in order to improve ability to deal with symptoms of depression and anxiety”. In other words, Mr D’Silva’s report admits of possible improvement in at least aspects of the Applicant’s condition which, as a result, should not be taken to be permanent.
It is at this stage that the Tribunal has to note that while Mr Girgis, a clinical psychologist, is taken to be a medical practitioner qualified to the degree required by CPI 2, Mr D’Silva is not. Nor is Dr Chowdhury.
Additionally, Mr Girgis’ report was prepared prior to the lodgment of the citizenship application (21 May 2020 and 29 May 2020 respectively) while that of Mr D’Silva post-dates the application (13 November 2020). The legislation requires decisions to be made on the evidence as it was at the date of the application. The Tribunal also notes that Mr Girgis has had an ongoing professional relationship with the Applicant for over two years and hence has been able to give an informed opinion based on more than one, or only one recent, consultation.
A further issue arises in that it was Ms Benbrika’s evidence to the Tribunal that she was no longer prepared to attend her previous psychological counselling sessions but rather has put herself in the hands of Ms Kathy Stirrup whose business card describes herself as a “Counsellor and Play Therapist”.
The Tribunal also finds it somewhat unusual that despite all of the Applicant’s reported symptoms it does not appear that any medication or pharmacological interventions have been prescribed.
Exclusion of Mr D’Silva and Dr Chowdhury’s evidence – as a result of the policy prescription of CPI 2 – leaves only that of Mr Girgis before the Tribunal.
The essence of his findings is that the psychological condition undoubtedly suffered by the Applicant is not yet stabilized and remains open to treatment.
As such, the Tribunal cannot conclude on the basis of the acceptable medical evidence before it that the Applicant’s condition is “permanent or enduring” as required under paragraph 21(3)(d) of the Act.
OTHER CONSIDERATIONS
The Applicant has drawn attention to her alleged lack of literacy. The Tribunal accepts that she is functionally illiterate in English, but her degree of Arabic literacy is open to question. Regardless, CPI 2 states clearly that “a person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d)”.[14]
[14] CPI 2 at 8.
Merely having some degree of impairment, even if that is permanent and enduring is not of itself, sufficient to meet the statutory test.
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 at [61].
CPI 2 states that: “[t]he incapacity must be the direct cause”[16] of the applicant’s inability to meet the requirements. There is no medical evidence which establishes this causal connection, especially when considering Mr Girgis’ comments about the improvements in the Applicant’s conditions and prospects of further improvement, provided she contributes by co-operating with prescribed treatment regimes.
[16] CPI 2 at 8 [emphasis in original].
According to information supplied at the Tribunal’s request, after the hearing, the Applicant sat for the citizenship test on 4 December 2019 (completing three attempts on that day); 22 January 2020 (also three attempts) and 26 February 2020 (one attempt). The pass-mark on the test is 75% correct (over a range of 20 questions) and the Applicant’s mean score was slightly over 50% with a degree of variation between the three sets of attempts.
The Tribunal notes the adverse conclusion drawn by the Delegate in his/her statement of reasons touching on the tests:[17]
Furthermore, Departmental records indicate you were previously refused Australian citizenship on 01/04/2020 under s21(2A) Citizenship Test Requirements Not Met. Departmental records also indicate that you Attempted the citizenship test on 3 separate occasions, however you failed to pass.
You lodged your application for Australian citizenship on 29/05/2020 on the basis of suffering a permanent or enduring physical or mental incapacity and provided a letter from Emad Girgis dated 21/05/2020, approximately 8 days prior to lodging your current application.
Prior to this, you did not disclose your claimed incapacity to the Department. As a delegate of the Minister, this casts doubt in my mind about the genuineness of your said incapacity as it seems you may have sought medical advice/treatment from a psychologist due to your previous attempts of the citizenship test and the previous result of your citizenship application.
[17] T-documents at 15.
The Tribunal does not necessarily endorse this conclusion but it does share some of the Delegate’s concerns in that the Applicant’s husband told the Tribunal that the report from Mr D’Silva was sought as “a second opinion” after considering the report of Mr Girgis which was somewhat qualified in its support of the Applicant’s contentions.
UNAFFECTED RIGHTS
Any decision to refuse citizenship by conferral does not affect any rights which the Applicant has consequent upon her holding her Permanent Partner visa. It does not inhibit her travel overseas (which she has done on two occasions). There is no limitation on the ability of an applicant to submit further applications for citizenship by conferral[18] and, if an applicant’s conditions either improve or deteriorate that would be taken into account at the time when the decision on the application is made. However, there may be limits on the number of times an applicant can sit and yet still fail the citizenship test.[19]
[18] Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931 at [8].
[19] Nicholls and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 964 at [24]; Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828 at [31]-[37].
DECISION
The decision under review is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 14 May 2021

Date(s) of hearing: 27 April 2021

Date final submissions received: 28 April 2021

Advocate for the Applicant: Mr J Traboulsi

Solicitor for the Respondent: Ms S Prasad, Minter Ellison

Date(s) of hearing:	27 April 2021
Date final submissions received:	28 April 2021
Advocate for the Applicant:	Mr J Traboulsi
Solicitor for the Respondent:	Ms S Prasad, Minter Ellison