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

[2020] AATA 1346

Elhassan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1346 (17 April 2020)

Division:GENERAL DIVISION

File Number:          2019/3697

Re:Mrs Rayan Elhassan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:17 April 2020

Date of written reasons:         18 May 2020  

Place:Melbourne

The Tribunal sets aside the decision of the Delegate dated 21 June 2019, refusing Mrs Elhassan’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, that the Applicant has an enduring mental incapacity and should be exempted from sitting the citizenship test.

.................[sgd].......................................................

Ms Anna Burke AO, Member

Catchwords

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – citizenship test exemption – whether Applicant suffers from a permanent or enduring mental incapacity at the time of application – medical evidence considered – decision set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials
Australian Citizenship Instructions (ACI)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Ms Anna Burke AO, Member

18 May 2020

INTRODUCTION AND BACKGROUND

1. Mrs Rayan Elhassan (the Applicant) is a 29 year old citizen of Lebanon who arrived in Australia on 24 April 2010 on a provisional Spouse visa (Subclass 309), which was granted offshore on 9 March 2010. She was subsequently granted a permanent Spouse visa (Subclass 100) onshore on 23 May 2012.

2. On 27 February 2018, Mrs Elhassan lodged an application for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act), seeking exemption from sitting the citizenship test as she had a permanent mental incapacity. 

3. On 21 June 2019, a delegate of the Minister for Home Affairs, which is now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  ('the Respondent') refused Mrs Elhassan’s application for citizenship as she did not meet the criteria under s 21(3)(d) of the Act ('the Reviewable Decision') stating:

   Policy states that 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.

   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 (GP)…

   With your application you provided evidence from Ms Meagan Phelan who is a registered clinical psychologist with Headspace dated 5 January 2018. In this letter Ms Phelan outlines that you have attended counselling with headspace. You present with mixed anxiety, depression and adjustment issues and also recommends that you be exempted from sitting the test as performance situations are challenging for you.

   Ms. Meagan Phelan provided a one off report and did not state whether your mental incapacity is permanent or enduring. She also did not explain that due to your mental incapacity, you are not capable of understanding the nature of the citizenship 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.

   I am not satisfied based on the evidence provided that you are suffering from a permanent or enduring physical or mental incapacity that impacts on your ability to understand the nature of the application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship.

4. On 21 June 2019, Mrs Elhassan applied to the General Division of the   Administrative Appeals Tribunal ('the Tribunal') for review of the Reviewable Decision.           In her application form, her husband stated the reason for disagreeing with the decision:

   The decision to refuse my wife her citizenship application was wrong. They should have asked for more information regarding her mental health and we would have sent that information rather than waiting 16 months to see the words 'you have been refused'. Her condition has actually gotten worse since she submitted her application in February 2018. I will hopefully submit a letter from her psychiatrist as evidence of her situation.

5. At the hearing by telephone, Mrs Elhassan was represented by her husband.   Mr Cunynghame, of Sparke Helmore Lawyers, appeared on behalf of the Respondent.  Mrs Elhassan and Associate Professor (AP) Abdul Khalid gave evidence under affirmation. The Tribunal was assisted by an Arabic interpreter.

6. The Tribunal provided an oral decision at the hearing determining that Mrs Elhassan satisfied s 21(3)(d) of the Act. The Respondent has subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Act 1975 (Cth) (AAT Act); these are those reasons.

   ISSUE FOR THE TRIBUNAL

7. The issue for the Tribunal is whether the Applicant satisfied s 21(3)(d) of the Act, that is, did she have a permanent or enduring mental incapacity at the time she made her application for citizenship?

   LEGISLATIVE AND POLICY BACKGROUND

8. Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:

   (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.

9. Section 21(2A) of the Act sets out the citizen test criteria:

   (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.

10. Section 21(3) of the Act defines 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.

    (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.

11. Section 24 of the Act provides, in part:

    Minister's decision

    (1)       If a person makes an application under section 21, the Minister must, by                writing, approve or refuse to approve the person becoming an Australian   citizen.

    Note:   The Minister may cancel an approval: see section 25.

    (1A)    The Minister must not approve the person becoming an Australian citizen              unless the person is eligible to become an Australian citizen under   subsection 21(2), (3), (4), (5), (6), (7) or (8).

    (2)       The Minister may refuse to approve the person becoming an Australian                 citizen despite the person being eligible to become an Australian citizen   under subsection 21(2), (3), (4), (5), (6) or (7).

    (2A)    If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in          relation to the person, the decision under subsection (1) of this section   must be made by the Minister personally.

    Identity

    (3)       The Minister must not approve the person becoming an Australian citizen              unless the Minister is satisfied of the identity of the person

    The Citizenship Policy

12. The role of the Citizenship Policy is to provide guidance on the interpretation of the Act.    The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 367: Policy is not law. A statement of policy is not a prescription of binding criteria.

13. However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.

14. In relation to s 21(3), the Citizenship Policy states:

    For applications received on or after 9 November 2009 for consideration under             s 21(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.

    ...

    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.

    ...

    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.

    EVIDENCE

15. The evidence before the Tribunal included documents provided by the Respondent pursuant to s 37 of the AAT Act, referred to as the “T documents” and medical reports for Mrs Elhassan.

16. The Headspace Progress Notes dated 15 January 2016 record impression as:

    Recurrent v Chronic Depressive Illness arising from postpartum period after birth of second child. There does not appear to have been clear remission of symptoms between the birth of her last two children.

17. The Headspace Progress Notes dated 10 February 2016 record impression as:

    Mood 'low all the time'; affect tearful and depressed with anxiety

    Thought form normal. Content-depressive themes of guilt. hopelessness and worthlessness, multiple worries about the future inc accommodation, children, safety of her parents in Lebanon etc .. States that she wishes she was dead at times but denies any active suicidal thoughts or plans. Not psychotic

    Cognition grossly intact

    Insight present

    Risk/Issues: Imp: Mod-Severe Episode of Depression vs ?continued PND

18. The Headspace Progress Notes dated 17 February 2016 record impression as:

    Risk/Issues: Imp: Severe MDE with intermittent suicidal thoughts (diff PND)

    Risks: Depressed with guilty ruminations and feelings that she is burdening the family currently, also experiencing passive suicidal thoughts and intermittent active suicidal thoughts which she disclosed that she recently attempted to act upon. Currently moderate risk of suicide attempt. She is being monitored by family and has stated that her children are usually protective factors.

    Risks of carer burnout, bonding/relationship with her children

    Plan: D/W Dr Sareen (Consultant Psychiatrist)

    -I have referred to Monash CATT team for daily follow up due to severity of depression, risk issues raised today and presence of young children

    -I feel that if her mental state does not improve there would be a low threshold for admission

    -Continue Pristiq 100mg for further 2-4 weeks as there has been a slight response so far, then consider increasing dose further

    -Letters for Centrelink and MoH provided

    -I will look at referring to perinatal mental health team or CCT

    -Husbnd now aware of Rayan's suicidal thoughts and will ensure that she is monitored re this. They have crisis numbers and Mohammed is managing her medications

19. In the Headspace letter of 6 February 2017 to Dr Deborah Davidson, Mrs Elhassan’s general practitioner, seeks review of her mental health plan stating:

    Thanks for referring Rayan El Hassan to headspace for counselling. Rayan has attended 6 sessions (1 this year) and so I've asked her to see you for a review of her Mental Health Care Plan.

    Rayan presents with anxiety and depression, which includes low mood for most days for several months, hopelessness, low motivation, low energy, and weight gain. She has tried several things to address her mood, but situational stressors continue to overwhelm and perpetuate these. Stressors include long term unemployment for her husband Mohammed, speech issues with 2 of 3 children, housing issues, and social isolation for Rayan. Rayan misses her family in Lebanon significantly, and she has not yet learned to speak English which might help her to develop new supports. She has gained weight and this is impacting on her significantly. She has tried to address each stressor but barriers continue to present. For instance, the diet appears to have caused physical symptoms (hormonal, migraine?), issues with her documents prevented her trying for her driver's licence, she stopped English classes when motivation declined with mood, they can't get appropriate public housing, and long term unemployment limits their access appropriate housing in the private rental system. I have offered to find them Arabic services and supports but Rayan declines.

    We hope you might approve of further sessions of counselling for us to continue supporting Rayan to address her mood using CBT and address her stressors.

20. Dr Davidson in reports dated 12 October 2017 and 26 October 2018 opined Mrs Elhassan had treatment-resistant postnatal depression and had been attending counselling with Headspace since 2015. In a referral letter to Dr Amir Tosson she stated:

    Thank you for seeing Mrs Rayan El Hassan, age 26 yrs, for assessment of treatment-resistant postnatal depression with associated bulaemia and mild trichotillomania.

    Birth of 3rd child in Sept.2014 -- now has 3 children aged 6½ yrs. 5 yrs and 3 years.

    Onset symptoms depression~ 6/12 postnatally. presented for assessment 3 months later. commenced on antidepressants and referred for counselling with a psychologist… Husband has revealed that she also has developed bulaemia since 2015 (intermittent) and has longstanding mild trichotillomania. Poor response to both Lexapro… and…Pristiq

21. Dr Tosson, consultant psychiatrist, in a report for this proceeding dated 28 July 2019 stated:

    This letter is prepared to support Mrs Elhassan's application to be exempted from the English test required for citizenship.

    I have been Mrs Elhassan's consultant psychiatrist since 14 March 2018.                   Mrs Elhassan is a 28-year-old married woman, a mother of three young children. Mrs Elhassan is from Lebanese background. Mrs Elhassan has the following confirmed psychiatric diagnosis, major depressive disorder, bulimia nervosa and trichotillomania.

    Mrs Elhassan suffered depression six months following the birth of her youngest child in 2015. She was diagnosed at that time with postnatal depression.                    Mrs Elhassan has not had any period free of depression since that time.   Mrs Elhassan has received counselling for period of years at Headspace. She has tried so far three antidepressant medications. Mrs Elhassan has some difficult psychosocial circumstances. Her husband after being a technician lab at the CSIRO for 18 years, was made redundant seven years ago. Mr and Mrs Elhassan have been waiting for Department of Housing Accommodation and they are living with her husband's family. Mrs Elhassan is willing to learn English; however, as soon as there is pressure to perform and pass tests, she gets very stressed and is unable to learn. The depression is an ailment that affects Mrs Elhassan's concentration and subsequently retrieval of information.

    The combination of major depressive disorder and the psychosocial stressors places Mrs Elhassan at a disadvantage for learning. Therefore, I would like to support her application for exemption from the English test.

1. AP Khalid, consultant psychiatrist, provided a report based on a once off psychiatric assessment of Mrs Elhassan for the purpose of her citizenship claim at the request of the Minister. He provided a medico-legal report of 12 December 2019, in which he opined:

   RESPONSES TO SPECIFIC QUESTIONS

   3.1 The claimed conditions

   (a)       Having regard to the enclosed clinical material and your assessment,

   please provide your opinion regarding the diagnosis of Ms Elhassan’s

   mental health condition/s (if any), including the date of onset.

   Ms Elhassan’s diagnosis is major depressive disorder, mild in severity,

   bulimia nervosa and trichotillomania. The date of onset of her

   psychiatric condition was about five years ago when her son was born.

   (b)       Do you consider these condition/s are permanent and/or enduring.

   I consider that her conditions are chronic but unlikely to be permanent.

   (c)       Do you consider that the Ms Elhassan’s mental health condition/s affect

   her cognition. If so, please provide details including, how and to what

   extent Ms Elhassan’s cognition is affected.

   Ms Elhassan psychiatric conditions affect her concentration and

   motivation. She is preoccupied with her psychiatric symptoms and is

   unable to focus on her studies.

   (d)       Do you consider that as at February 2018, Ms Elhassan had a permanent

   or enduring physical or mental incapacity, which meant that she was

   not:

   (i)        capable of understanding the nature of the application;

   (ii)       capable of demonstrating a basic knowledge of the English

   language at that time; or

   (iii)      capable of demonstrating an adequate knowledge of Australia and

   of the responsibilities and privileges of Australian citizenship at

   that time.

   Although Ms Elhassan has psychiatric conditions, namely major

   depressive disorder, mild in severity, bulimia nervosa and trichotillomania,

   I do not consider that these conditions cause mental incapacity.

   Ms Elhassan was capable of understanding the nature of the application

   if explained in her language. She was not capable of demonstrating a

   basic knowledge of the English language because she does not have

   English language skills, and although she attended TAFE, she could not

   focus and got frustrated and left the classroom.

   Ms Elhassan was capable of demonstrating an adequate knowledge of

   Australia and of the responsibilities and privileges of Australian

   citizenship at that time.

   3.2 Current condition

   (a)       Does Ms Elhassan continue to suffer the effects of the mental health

   condition/s? If not, when did the effects, such as incapacity and/or need

   for medical treatment cease?

   Ms Elhassan continues to experience symptoms of major depressive

   disorder, mild in severity, bulimia nervosa and trichotillomania.

   (b)       If Ms Elhassan continues to suffer the effects of the mental health

   condition/s, what is your prognosis as to these condition/s?

   Ms Elhassan’s psychiatric conditions can be treated with psychiatric

   and/or psychological treatment but her prognosis is guarded due to the

   chronicity of her symptoms and poor response to treatment.

   (c)       Do you consider that Ms Elhassan currently has a permanent or enduring

   physical or mental incapacity, which means that she is not:

   (i)        capable of understanding the nature of the application;

   (ii)       capable of demonstrating a basic knowledge of the English

   language; or

   (iii)      capable of demonstrating an adequate knowledge of Australia and

   of the responsibilities and privileges of Australian citizenship.

   I do not consider that Ms Elhassan has permanent or enduring physical

   or mental incapacity.

   3.3 Other factors

   (a)       Is there any evidence of non-organic factors and voluntary or involuntary

   exaggeration of the symptoms or signs? If so, please explain.

   Ms Elhassan has difficult life circumstances as her husband has been

   unemployed for eight years and they do not have a stable

   accommodation. I do not consider that Ms Elhassan voluntarily or

   involuntarily exaggerated her symptoms.

   (b)       Are there any other comments you wish to make relevant to your

   assessment of Ms Elhassan or the materials enclosed in your brief?

   Although Ms Elhassan has psychiatric conditions, these are not severe

   enough to cause mental incapacity.

   Ms Elhassan has limited English language skills and although she tried to

   attend TAFE, she could not focus. She also has personal stressors and

   has to look after three children which may be a barrier for her to learning

   English. Due to her limited English language skills, she is anxious about

   sitting the citizenship test.

2. Mrs Elhassan advised the Tribunal that:

   ·she suffers greatly from her condition and is sad, depressed and anxious all the time;

   ·she has tried to learn English, but she just cannot concentrate;

   ·that it took her four attempts to pass her test for a learner driver’s licence; the first time she did the test in Arabic and failed; the next two times she did the test with an interpreter and failed; and finally on her fourth attempted with an Arabic interpreter she passed the test; she was embarrassed by this;

   ·she cries in her room all the time and pulls her hair out;

   ·she wants to be a citizen as Australia is her home, she has lived here for 10 years, her children are Australian citizens and she loves this country;

   ·she would love to get better but now and when she lodged her application, she was really incapable, could not concentrate and was taking a lot of medication which impacts her greatly, making her more anxious; and 

   ·it was difficult speaking and she felt the words and speech she needed were missing/evading her.

3. AP Khalid advised the Tribunal that:

   ·he had interviewed Ms Elhassan for about an hour and reviewed 94 pages of      Mrs Elhassan’s medical records;

   ·in the interview he assessed her mental health condition as chronic but not permeant, advising that her condition was chronic because she had been suffering from the mental health condition for a long period of time, but did not consider her condition to be  permanent as it was related to her significant psychosocial stressors, such as her husband’s unemployment, lack of housing, financial, worry over her children, and if those stressors resolved in the future her mental health condition would improve;

   ·Mrs Elhassan’s mental health symptoms currently prevent her from sitting an English language test as they directly affect her concentration and motivation; additionally she gets stressed at the thought of sitting an English language test which in turn impacts her mental health; if her stressors were removed her depression could resolve and she would have capacity; and

   ·Mrs Elhassan’s mental health condition was resistant to medication and would only improve once the underlying factors causing her condition improved, but there was no way of putting a time frame on when this would occur.

   CONSIDERATION

4. Mr Cunynghame contended that the Tribunal cannot be satisfied that Mrs Elhassan met any of the requirements set out in s 21(3)(d) of the Act on 27 February 2018, being the date of her citizenship application.

5. Mr Cunynghame contended that the detailed and up to date report of AP Khalid supported the Minister’s argument that Mrs Elhassan did not have a permanent or enduring mental incapacity at the time she applied for citizenship, which meant that she was not capable of demonstrating a basic knowledge of the English language at the time, for the purposes of s 21(3)(d)(ii) of the Act. Mr Cunynghame argued that AP Khalid’s report was the only report before the Tribunal that directly addressed whether Mrs Elhassan satisfied the criteria at s 21(3)(d), and for that reason should carry significant weight.

6. Mr Cunynghame contended that Dr Tosson’s treatment and diagnosis occurred subsequent to Mrs Elhassan’s application for citizenship and he did not specify a long-term prognosis or state that the condition was “permanent”.  Mr Cunynghame argued that Dr Tosson’s observations about Mrs Elhassan’s health prior to February 2018 did not detail how her mental health conditions impacted upon her ability to understand the nature of the citizenship application, or demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

7. Mr Cunynghame contended that Dr Davidson was not, at the relevant time, a qualified specialist and that her reports did not detail how Mrs Elhassan’s mental health conditions impacted upon her ability to understand the nature of the citizenship application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

8. Further, Mr Cunynghame contended there is nothing in the evidence before the Tribunal to suggest that Mrs Elhassan could meet either of ss 24(3)(d)(i) or (ii) of the Act. He argued that Mrs Elhassan’s major depression was not permanent at the time of her application; and was not the “direct cause” of her inability to demonstrate a basic knowledge of the English language at the time; rather, personal barriers arising from her role as carer to three children, the effects of her trichotillomania, and additional stressors arising out of her personal circumstances, impeded her ability to learn English whilst at TAFE.

9. Mr Cunynghame fundamentally contended that Mrs Elhassan did not meet the requirements of the Act to be exempted from the citizenship test as the stressful factors in her life were the direct cause of her inability to demonstrate a basic knowledge of English and Australia, not her mental incapacity.

10. Mr Elhassan argued that his wife was suffering greatly from her condition, that it had been that way for the past five years and was not improving but getting worse. He said that she lacked the ability to concentrate; she would read a few sentences and would lose focus; she lacked the motivation to learn English because of her mental health; and she had no energy for anything else because she is drained from just trying to cope with life on a daily basis. Mr Elhassan also said that she puts enormous pressure and stress on herself trying to learn things which wears her out, she gets headaches and constantly needs his attention.

11. Mr Elhassan said that he hoped his wife’s condition was not permanent and he would love her to get better, but she was getting worse. He stated that he had no way of removing the stressors in her life at present and he could not predict when that would ever happen. The present application had been going on for over two years and in that time his wife had shown no improvement in her mental capacity.

12. Mr Elhassan relied upon AP Khalid’s opinion that his wife’s condition was chronic and that there was no way of predicting when her condition would ever improve or how it would ever change.

13. Mr Elhassan argued that he did not believe his wife would ever have the ability to demonstrate a basic knowledge of English and Australia as was evidenced in her inability to pass her learners test with an Arabic interpreter. He said he just could not see his wife’s situation improving and he argued her present situation should not be used to prevent her from becoming a citizen because no one can predict the future.

14. The Tribunal found Mrs Elhassan had provided evidence of her claimed mental health condition which had been diagnosed by a psychiatrist following referral from her general practitioner. The Tribunal relied upon Dr Tosson’s diagnoses of Mrs Elhassan (which was also the opinion of Headspace in 2016): suffered depression six months following the birth of her youngest child in 2015. She was diagnosed at that time with postnatal depression. Mrs Elhassan has not had any period free of depression since that time.

15. The Tribunal found that in accordance with the Citizenship Policy, Mrs Elhassan suffered from a mental illness that was sufficiently long-term for it to be enduring and for which it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. The Tribunal relied upon the testimony of AP Khalid who had diagnosed Mrs Elhassan as suffering from a psychiatric condition, namely major depressive disorder, describing the condition as chronic. Whilst the Tribunal noted AP Khalid did not consider that this condition caused mental incapacity as he believed Mrs Elhassan’s depression could be resolved, he could not predict when her condition would resolve. The Tribunal again noted his report found prognosis is guarded due to the chronicity of her symptoms and poor response to treatment. The Tribunal based upon the above found Mrs Elhassan did meet the requirements set out in s 21(3)(d) of the Act on 27 February 2018.

16. The Tribunal found that Mrs Elhassan was not capable of understanding the application or demonstrating a basic knowledge of the English language at the time of her citizenship application; or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time. The Tribunal relied upon AP Khalid’s report of 12 December 2019 where he stated that Mrs Elhassan was capable of understanding the nature of the citizenship application if explained in her language, but was not capable of demonstrating a basic knowledge of the English language. Additionally, the Tribunal relied upon the 28 July 2019 report of Dr Tosson who opined: Mrs Elhassan is willing to learn English; however, as soon as there is pressure to perform and pass tests, she gets very stressed and is unable to learn. The depression is an ailment that affects Mrs Elhassan's concentration and subsequently retrieval of information. Mrs Elhassan’s inability to pass her learners test was a clear demonstration of her inability to concentrate and focus sufficiently to comprehend the requirements needed to sit her citizenship test. 

17. The Tribunal found Mrs Elhassan should not be denied the ability to seek to become an Australian citizen by conferral because her enduring mental health condition prevented her from sitting the citizenship test.

    DECISION

18. The Tribunal sets aside the decision of the Delegate dated 21 June 2019, refusing Mrs Elhassan’s application for the Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act that the Applicant has an enduring mental incapacity and should be exempted from sitting the citizenship test.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

...........[sgd]..................................

Associate

Dated: 18 May 2020              

Date of hearing:	17 April 2020
Advocate for the Applicant:	Mr Elhassan (Husband)
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers