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

This matter concerned an application for Australian citizenship by conferral, which had been refused by the Minister. The applicant, an Afghan national and permanent resident of Australia, sought to be relieved of the obligation to undertake the citizenship test on the grounds of a permanent or enduring physical or mental incapacity. The Administrative Appeals Tribunal was asked to review the Minister's decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an exemption from the citizenship test under section 21(3)(d) of the Australian Citizenship Act 2007 (Cth). This required the Tribunal to determine if the applicant had a permanent or enduring physical or mental incapacity that rendered her incapable of understanding the nature of the application, demonstrating a basic knowledge of English, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of citizenship at the time she made her application. The applicant's case was that she satisfied at least one of these alternative conditions.

The Tribunal considered evidence including reports from a psychologist and a clinical psychologist, as well as the applicant's own testimony. It also had regard to government policy documents, specifically chapter 7 of the Australian Citizenship Policy and Citizenship Procedural Instruction no. 2. While acknowledging that these policies were not strictly binding, the Tribunal accepted the principle that it should have regard to them unless there was a good reason not to. The Tribunal noted that the Australian Citizenship Policy required an enduring incapacity to be one for which there could be no predicted recovery, or where recovery was long-term and it would be unreasonable to expect the person to recover before becoming eligible for citizenship. It also stated that those claiming mental incapacity should be seeing a specialist regularly. The Tribunal found that while the applicant had been assessed by psychologists and had some counselling, there was no clear evidence that she had been seeing a specialist on a regular basis. However, after considering all the evidence, including that of the applicant and Dr. Asceric, the Tribunal was satisfied that the applicant's incapacity brought her within the scope of section 21(3)(d) of the Act.

The Tribunal found that the applicant satisfied section 21(3)(d) of the Act and remitted the application for consideration against the remaining criteria for Australian citizenship.