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

[2021] AATA 3985

Bibi Hava and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3985 (28 October 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0338

Re:Ameneh Bibi Hava

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M O'Loughlin

Date:28 October 2021

Place:Adelaide

The Tribunal finds that the applicant satisfies s 21(3)(d) of the Act and remits the application for consideration against the remaining criteria in the Australian Citizenship Act 2007 (Cth).

...............[SGND]....................

Member M O'Loughlin

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether applicant has a permanent or enduring physical or mental incapacity – whether applicant exempt from taking citizenship test – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

Secondary Materials

Australian Citizenship Policy – Chapter 7

Citizenship Procedural Instruction no. 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

Member M O'Loughlin

28 October 2021

Introduction

1. Mrs Ameneh Bibi Hava applied for conferral of Australian citizenship on 13 December 2017.

2. The Australian Citizenship Act 2007 (the Act) regulates conferral of Australian citizenship.

3. Generally, an applicant must pass a test (the citizenship test) to demonstrate that the applicant has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship[1]. The applicant has not sat or passed the citizenship test.

   [1] Section 21(2A) of the Act.

4. Paragraph 21(3)(d) of the Act sets out exceptions in relation the requirement that an applicant must pass the citizenship test. The applicant claims to fall within these exceptions.

5. On 17 October 2019, a representative of the respondent decided that the applicant does not satisfy the requirements of paragraph 21 (3)(d) of the Act and so she does not fall within the exceptions.  The delegate refused the application.

6. The applicant has asked this Tribunal to review that decision.

   Background

7. The applicant is from Afghanistan and is a citizen of that country. 

8. She came to Australia in October 2013 and is a permanent resident of Australia.

9. The applicant seeks to be relieved of the obligation to sit and pass the citizenship test because of an enduring physical or mental incapacity. She asks the Tribunal to find that she is not capable of understanding or demonstrating the matters set out in section 21 (3)(d)(i) - (iii) of the Act.

10. That provision provides as follows:

    (3)  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 applicant does not distinguish between the 3 parts of subparagraph (d). They are expressed in the alternative and the applicant will succeed if she satisfies the Tribunal under any one of them.

    Evidence

12. The applicant was assisted in presenting her argument by her husband Mr Hamdard.

13. At the beginning of the hearing, the respondent tendered the T Documents[2] which were accepted as evidence.

    [2] Exhibit R1.

14. The applicant tendered the following reports:

    (i)Ekaterina Orozco, Psychologist, dated 8 June 2018[3]; 

    (ii)Dr Muhammad Ayaz dated 22 May 2020[4]; and

    (iii)Dr Nada Asceric, Clinical Psychologist, dated 12 January 2021[5].

    [3] Exhibit A1.

    [4] Exhibit A2.

    [5] Exhibit A3.

15. As the applicant had not provided a written statement, in the circumstances the Tribunal undertook preliminary questioning of the applicant to obtain her evidence-in-chief.

    The Applicant

16. The applicant gave evidence that she was born in Afghanistan but she left there and lived in Iran for 20 years or more.  She came to Australia on 24 October 2013.

17. She was not sure of her exact age or of the length of time that she lived in Iran, but it seems that she was about 50 years old at the time of the hearing and she had left Afghanistan about 27 years earlier, so she was about 23 when she left Afghanistan.

18. She said that she went to Iran from Afghanistan and lived in Iran as a refugee. She said that her life there was okay but that her son was killed, and the family decided to move to Australia.

19. She said that she had been extremely upset by the death of her son whom she loved very much.

20. She said that she thinks that the family left for Australia about 1 to 1 ½ years after her son was killed.

21. She said that after her son was killed she suffered from pain. Before that, she said that her health had been fairly good.

22. She was asked about the history in the report of Ms. Orozco, Psychologist[6] that she had suffered a head injury in Afghanistan. She said that she had suffered a cannon shot wound.

    [6] Exhibit A1, page 1.

23. She told the Tribunal that she was knocked out and taken in a roundabout way to a hospital in Kabul where she had been x-rayed and treated. She said that she spent about 1 to 1 ½ months in hospital after that. She did not remember how old she was, although she was quite young.

24. She was asked whether she thought the shrapnel wound had affected her ability to think and to remember things. She said she had a headache and she believes someone said she should have surgery, but her family decided that it would be too risky.

25. In relation to other medical treatment, the applicant agreed that when she came to Australia she had knee pain that restricted her and that she saw the Migrant Health Service about a week after she arrived.

26. She said that she was examined by a doctor there who looked after her for about 3 ½ years. Having regard to the medical certificates appearing in pages 101 and 102 of the T documents[7], it appears that her general practitioner was Dr Joy O’Hazy of the Central Adelaide Local Health Network.

    [7] Exhibit R1.

27. She said that she went to see the doctor because she had back and knee pain which she had had since her son died in Iran.

28. The Tribunal had regard to Dr. O’Hazy’s medical certificate that appeared page 102 of Exhibit R1. The applicant agreed that at that stage she was suffering from osteoarthritis in her knees and also from grief.

29. She said that she still suffers grief which interferes with her sleep.

30. She said that she had been referred for counselling in relation to the grief and found it helpful. She said she went 2 or 3 times to a place in the city but that it was too far from where she lived so she could not follow up.

31. She said that she went to see the same woman somewhere closer to home, though she did not remember exactly where. She said she attended for about 1 to 1 ½ years on a monthly basis.

32. The Tribunal notes that in her report of 8 June 2018, Ms Orozco says that the applicant was referred for counselling sessions at Sefton Park in February 2014 and she was discharged in November 2016 as her overall emotional health was considered stable.[8]

    [8] Exhibit A1, page 2.

33. It is not clear from whom the counselling was received but it may have been from a social worker, Patricia Nesci[9].

    [9] Exhibit R1 page 102 under heading “treatment”.

34. The applicant discussed the medical certificate that appears at page 101 of Exhibit R1 and is dated 4 April 2016, about 2 years and 3 months after the first certificate.

35. She said Dr O’Hazy was still treating her for her knee pain and giving her injections in her shoulders and hips. She said that she also diagnosed heart problems and had found a whistling sound in her heart which causes her pain every month or so.

36. The applicant also agreed that she is still suffering from grief and panic attacks as suggested in the medical certificate. She said she gets panic attacks once or twice a month and feels as though her throat is being blocked.

37. The Tribunal observed that Dr O’Hazy said that she cries easily and isolates herself from family. The applicant agreed with these observations and said that she still suffers from these symptoms.

38. She said that she is taking medication but does not know the names of them. There is one for her bones and one for diabetes.

39. The Tribunal asked if she knows whether she is taking medication for grief or mood. She believes that she is although she did not know which of her tablets would relate to that. She said that Dr O’Hazy had helped her a lot but that the medications she had been taking changed and she was not sure what they were.

40. Later, she changed general practitioners and started to see Dr Ayaz instead. That was because she was told that the Migrant Health Service was a temporary service and she was told to find her own general practitioner.  Dr Ayaz’ clinic was closer to her home.

41. She said she thinks that he has given her tablets for depression, but she is not sure which of her tablets they are.

42. She says she still sees him and has seen him about once per month for 2 or 3 years.

43. In cross-examination, the applicant said that all she and her husband receive Centrelink benefits although her husband had done some part-time driving in the past.

44. She said that when she needs to go somewhere her husband usually drives her and that she would not feel comfortable taking public transport by herself.

45. She said that at home she speaks Pashto and Farsi and that she tried to learn English but could not because she is not well.

46. When asked if she had ever tried to take the Australian citizenship test, she said that she cannot do it. She says that she gets confused and that she can’t learn. She said that she even gets confused with her children’s names.

47. She said that she can recognise her name in written English but that she can’t sign it.

48. She was asked about a psychologist’s report of Dr Nada Asceric that had been provided on the day of the hearing[10].

    [10] Exhibit A3.

49. She agreed that the statement that she had some psychological assessments done on 7 November 2020 might be correct.  She said that she only saw Dr Asceric once and did not know whether a doctor had referred her to Dr Asceric.

50. The applicant could not say whether she had mentioned her mood medication to Dr Asceric.  She could not say whether she had mentioned the imaging and treatment she had received in Kabul and in Australia for the head injury she had suffered. 

51. In relation to the report of Ms Orozco of June 2018[11], she said that she remembered going to see her although she did not remember where that was.

    [11] Exhibit A1.

52. She could not remember whether she had told Ms Orozco about the medication that she was taking for her mood problems. She said that she did not really remember what she had discussed with Ms Orozco at all.

53. She was asked how often she sees her general practitioner, Dr Ayaz. She said that she sees him once or twice a month and that her husband goes with her. She said that Dr Ayaz speaks Pashto and referred her to an Iranian psychologist. She said that she went 2 or 3 times then stopped.

54. She was asked why she had asked Ms Orozco to provide a report and not the Iranian psychologist who had been treating her. She replied that she did not know and it “wouldn’t work for me”.  She said she had stopped going there.

55. The applicant also clarified under cross-examination that when she had seen Dr O’Hazy she had gone with her husband and an interpreter.

56. In response to questions from the Tribunal, the applicant indicated that Dr Ayaz had not changed her medications.  She also said he may not know that she is no longer seeing the Iranian psychologist to whom he had referred her.

    The Applicant’s husband

57. With the respondent’s permission, the applicant’s husband, Karimolla Hamdard, also gave evidence.

58. He said that his wife suffered from memory problems and is easily confused.  He said that she sometimes forgets her children’s names.  He explained that she saw a social worker in Sefton Park called Patricia for counselling. This is clearly the counselling to which Ms Orozco refers in her report.

59. He also said that she thinks that her son is coming to see her, suggesting that she suffers from delusions about his death.  There is no history of this type of delusional thinking reflected in any of the medical reports.

60. He also said that she has ongoing counselling about every 3 months but Mr. Hamdard was not sure if that was with a psychologist or a social worker.

    Medical Evidence

61. The applicant referred to 3 expert reports which were tendered by consent. The Tribunal also had access to some medical certificates.

    Report of Ekaterina Orozco, Psychologist, dated 8 June 2018

62. Ms. Orozco is a psychologist with the Migrant Health Service at 21 Market St, Adelaide 5000.

63. She starts her report by stating that it is prepared in support of the subject application.  She says of the applicant in the first paragraph of the report that she “… has been identified as having an enduring mental incapacity and is not capable of understanding the nature of the application.”

64. Ms Orozco has apparently prepared the report having considered the Migrant Health Service notes relating to the applicant.  The applicant in evidence could not say whether she had seen Ms Orozco.

65. In the second paragraph of her report, Ms Orozco seems to suggest that she conducted a “semi-structured comprehensive psychological assessment” of the applicant on 9 May 2018.  She also says that she had regard to the primary health care and counselling records held at the Migrant Health Service, and those of her previous counsellor and her treating general practitioner.

66. The Tribunal is satisfied that Ms Orozco saw the applicant once to conduct an assessment and has also had regard to various health records in preparing the report.

67. She finds that the applicant presented with symptoms consistent with Major Depressive Disorder as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).

68. She sets out details of the applicant’s history which appear consistent with the applicant’s evidence to the Tribunal.

69. She noted that the applicant appeared to suffer from compromise of certain cognitive skills, importantly memory recall and judgment.

70. Ms Orozco believed that the citizenship test would require similar cognitive skills and that compromises of these skills will be a barrier to the applicant in undertaking the test.

71. She further notes that the applicant’s general practitioner was not aware of any medical cause for the concerns and understood them to be a part of her presentation of Major Depressive Disorder. The Tribunal takes this to mean that the concerns are not thought to be secondary to a brain injury but are caused by depression.

72. Ms Orozco provides brief descriptions of the tests that the applicant had administered to her and it appears that they were designed to assess levels of functioning rather than cause and, in particular, were not intended to isolate the effects of any brain injury.

73. Ms Orozco notes in the second paragraph on page 2 of her report that the applicant was counselled by the Migrant Health Service until November 2016 and that her mental health has been managed by her general practitioner using antidepressants.

74. She says the applicant’s mental health incapacity was “…of an enduring nature and unlikely to show further significant improvement in the near future.”[12]  She stated that she did not believe that the applicant is capable of understanding the nature of the application.

    Report of Dr Muhammad Ayaz, General Practitioner, dated 22 May 2020

    [12] Exhibit A1, Page 2.

75. Dr Ayaz provided a note to say that the applicant has been suffering from anxiety and depression for a long time[13]; ever since her son was murdered while they were living in Iran.

    [13] Exhibit A2.

76. He said that she has been seeing a specialist psychologist regularly for her mental health condition.

77. He does not say who the psychologist is or how often the applicant was seeing that practitioner.  It is not clear whether this is the Iranian psychologist who the applicant in fact stopped seeing.

78. He said that she also takes regular oral medication to help with mood disorder. 

79. There is no suggestion of a brain injury in his report.

    Report of Dr Nada Asceric, Clinical Psychologist, dated 12 January 2021

80. Dr Asceric provided a report shortly before the hearing. She is a clinical psychologist.

81. She apparently saw the applicant on 7 November 2020 and administered a series of tests.

82. In assessing the applicant’s intellectual ability, she concluded that the applicant suffers from mild intellectual disability.

83. She had a history of lifelong impaired intellectual functioning and significant reliance on her family for most aspects of living.  Dr Asceric also refers to a history of “unspecified traumatic brain injury” later in life, which she said has “further impacted on her already poor functioning”[14].  This is presumably the shrapnel injury the applicant suffered as a young woman.

    [14] Exhibit A3, page 4.

84. Dr Asceric says that the purpose of her evaluation was to formally assess the applicant’s intellectual abilities in the context of suspected disability.

85. She concludes that the applicant suffers a mild degree of intellectual disability which has been present her whole life[15].

    [15] Exhibit A3, page 5.

86. Dr Asceric reports that she was provided with a history by the applicant’s family[16] who described her functioning. Dr Asceric further lists the applicant’s medical conditions as apparently reported to her by the family at the second paragraph of the second page of her report.

    [16] Exhibit A3, page 1.

87. She does not record any reference to depression or to a Major Depressive Disorder.  It does not appear that she had seen Ms. Orozco’s report.

    Dr Joy O’Hazy, General Practitioner

88. Dr O’Hazy is a medical practitioner at the Central Adelaide Local Health Network who appears to be associated with the Migrant Health service at 21 Market St, Adelaide 5000.

89. She has provided medical certificates dated 4 April 2014 and 4 April 2016 which appear in Exhibit R1 at pages 102 and 101 respectively.

90. The first certificate describes the applicant as suffering from knee pain and grief.  The grief is said to date from the death of her son 3 years earlier.

91. The certificate notes that the prognosis is uncertain and that the applicant is having counselling.

92. The later certificate notes that the applicant is suffering osteoarthritis, heart failure, and, relevantly, “Depression/Grief/Panic attacks”.  It further says that the condition is likely to persist. 

93. The later certificate lists the applicant’s medications of which one, Aropax, is an antidepressant.  It also suggests that the applicant is seeing a psychologist, although it does not say who.  The Tribunal notes that this may in fact mean counselling through the Migrant Health Service at Sefton Park which Ms Orotzo refers to, though that seems to have been with a social worker rather than a psychologist.

    Consideration

94. The applicant was not represented and did not make formal submissions, but the Tribunal is content that she relies on her evidence and the medical evidence tendered to support her claim that she satisfies s 21(3)(d) of the Act.

95. The respondent submits that the Tribunal should be guided by two sources of government policy in assessing this application. The first is chapter 7 of the Australian Citizenship Policy[17]. The second is Citizenship Procedural Instruction no. 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity[18].

    [17] Exhibit R1, T5, pages 28 – 52.

    [18] Exhibit R1, T6, pages 53 – 60. 

96. The respondent acknowledges that these documents reflect government policy and are not strictly binding on the Tribunal, but makes the usual submission that the Tribunal should have regard to such policy unless there is a good reason not to do so.[19]

    [19] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

1. The Tribunal accepts this general statement of the law.

2. The relevant part of the Australian Citizenship Policy[20] (the ACP) states: –

   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.

   [20] Exhibit R1, T5, pages 36.

3. The ACP goes on to provide that those claiming a relevant mental incapacity “… will have been seeing a specialist on a regular basis.”[21]

   [21] Exhibit R1, T5, page 37.

4. This construction is awkward. For the purposes of this matter, the Tribunal is not satisfied that the applicant is seeing or has seen a specialist on a regular basis in relation to her mental incapacity.

5. The ACP says that clinical psychologists are relevantly specialists, but general practitioners are not.

6. The evidence is that the applicant had counselling with her social worker at the Migrant Health Service and has been assessed on two occasions by psychologists. There is also evidence that she was referred to a psychologist by her GP but that she did not attend often. There is no clear evidence that she has been seeing any psychologist on a regular basis.

7. Ms Orozco assessed the applicant in May 2018, having observed her as presenting with symptoms consistent with Major Depressive Disorder. She noted a history of a shrapnel injury to the applicant’s head in Afghanistan but does not appear to consider that the applicant suffered a relevant brain injury.

8. Ms Orozco accepts the applicant’s history of the murder of her son as being the most significant traumatic experience and describes it as “… a central point of her mental health difficulties.”[22]

   [22] Exhibit A1, page 1.

9. In the penultimate paragraph of her report she says that the applicant was discharged from counselling in November 2016 as her condition was stable.  She notes that the applicant’s condition is managed by medication prescribed by her general practitioner.

10. She concludes that the:

    …comprehensive psychological assessment and her history of mental health and treatment outcomes to date indicate that her mental health incapacity is of an enduring nature and unlikely to show further significant improvement in the near future.

11. The Tribunal takes this as a clear indication that Ms Orozco views the applicant as having suffered a Major Depressive Disorder since November 2016 which had not improved as at 8 June 2018.

12. It follows that she holds the view that the applicant was suffering incapacity at the time of the application in December 2017.

13. Dr Asceric assessed the applicant as meeting the criteria for a Mild Intellectual Disability. Under the heading “Summary and Recommendations” she suggests that the applicant has a “lifelong” history of such disability and that it was further impacted by an unspecified brain injury later in life (presumably the shrapnel wound suffered in Afghanistan).

14. It follows that Dr Asceric was also of the view that the applicant was suffering incapacity at the time of the application in December 2017.

15. The difficulty from the Tribunal’s perspective is that the diagnoses are fundamentally different.  One suggests a depressive condition stemming from grief at the murder of the applicant’s son, the other suggests a mental incapacity that has essentially always affected the applicant, though probably aggravated by a head wound.

16. The first part of the Tribunal’s task is to assess whether or not the applicant suffered from a relevant incapacity at the time of her application. There is evidence from both psychologists that she did.

17. On the other hand, the two opinions are based on fundamentally different conclusions and each finds that she was suffering from a different type of incapacity.

18. If she has an intellectual disability, her condition is likely to have been relevantly disabling in the past, including at the time of her application.  In that event, it is unlikely that specialist medical treatment will help or would have helped the applicant.  In those circumstances the Tribunal would have a good reason not to apply the portion of the ACP cited at paragraph 99 above.

19. On the other hand, much of the evidence suggests that she has a depressive disorder with related grief and perhaps anxiety.  Although it appears that this is relevantly disabling, it is not clear that the applicant has complied with the treatment arranged by her GP. 

20. If the applicant has a depressive disorder, there may not be a good reason not to apply the portion of the ACP cited above.

    Conclusion

21. The medical evidence provided by the applicant is not consistent. 

22. There are two psychology reports which appear to conflict with each other.

23. One says that the applicant was suffering from a Major Depressive Disorder at the time of her application.  It does not address the applicant’s intellectual ability.

24. The other says that she was suffering from a Mild Intellectual Disability at the time of her application.  It does not address the applicant’s mood.

25. The medical evidence, including the report of Dr. Asceric, was tendered by consent.  The contents of that report therefore comprise the unchallenged evidence that that expert would have given.

26. She concludes that the applicant’s mild degree of intellectual disability has been present all her life.  She further says that there is no known treatment.

27. In those circumstances it would be unreasonable to expect the applicant to “have been seeing a specialist on a regular basis” as contemplated by the ACP.

28. As the Mild Intellectual Disability has been present for the whole of the applicant’s life, it must have been present at the time of the application, and the Tribunal so finds.

29. The Tribunal is further satisfied that the Mild Intellectual Disability is permanent and there is no available treatment for it.

30. On that basis, the Tribunal finds that there is a good reason not to apply the portion of the ACP set out above and further finds that the applicant’s incapacity is an “enduring incapacity” for the purposes of s 21(3)(d) of the Act.

31. The Tribunal, having considered the evidence and particularly that of the applicant and of Dr. Asceric, is satisfied that the applicant’s incapacity brings her within subparagraphs (i), (ii) and (iii) of s 21(3)(d) of the Act.

    Decision

32. The Tribunal finds that the applicant satisfies s 21(3)(d) of the Act and remits the application for consideration against the remaining criteria in the Australian Citizenship Act 2007 (Cth).

I certify that the preceding one hundred  and twenty-eight (128) paragraphs are a true copy of the reasons for the decision herein of Member M O'Loughlin

….……[SGND]…………..
Associate

Dated: 28 October 2021

Dates of hearing:	14 January 2021
Applicant:	In-person with assistance of husband
Advocate for the Respondent:	Alice Ashby, Australian Government Solicitor