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

[2021] AATA 2056

Et Tash and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2056 (2 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/3868

Re:Imad Et Tash

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:2 July 2021  

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 3 June 2020, is affirmed.

...................................[SGD].....................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – applicant applied for citizenship by conferral – claimed permanent or enduring physical or mental incapacity – provisions of the Australian Citizenship Act 2007 (Cth) considered – relevant policy/instructions considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

Mr S Evans, Member

2 July 2021

INTRODUCTION

1. The applicant, Imad Et Tash, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) to refuse his application for Australian citizenship by conferral. 

2. Ordinarily, a person who applies to become an Australian citizen is required to satisfy the Minister that, amongst other things, they understand the nature of the application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. A person can only be taken to have satisfied these requirements if he or she has successfully completed an approved test, known as the citizenship test. An exemption exists for applicants who have a permanent or enduring physical or mental incapacity which renders them incapable of satisfying these requirements. 

3. Mr Et Tash submits that he is unable to learn English and meets the criteria for such an exemption. The Respondent has determined that Mr Et Tash has not provided sufficient evidence to demonstrate that he had a permanent or enduring mental incapacity at the time of his application such that he satisfies the criteria.   

   BACKGROUND

4. Mr Et Tash was born in March 1969 in Syria. He arrived in Australia on 29 October 2014 as the holder of a subclass XB-200 visa. 

5. Mr Et Tash applied for Australian citizenship by conferral on 4 December 2018. On 13 January 2020 the Respondent wrote to Mr Et Tash asking him to confirm that he wished to proceed with his application under subsection 21(3) of the Australian Citizenship Act 2007 (Cth) (“the Act”), and if so that he provide medical reports. Mr Et Tash confirmed this to be the case and provided medical documentation stating he suffers from chronic depression, a lack of concentration, low motivation and is illiterate in the English language. 

6. On 3 June 2020 a delegate of the Respondent refused Mr Et Tash’s application for conferral of Australian citizenship having found he did not satisfy paragraph 21(3)(d) of the Act.

   LEGISLATION AND POLICY

7. Section 21 of the Act sets out the requirements for eligibility for Australian citizenship by conferral. The general eligibility requirements for Australian citizenship by conferral are set out in subsection 21(2) and include at paragraphs 21(2)(d) to 21(2)(f), requirements that a person understands the nature of an application for Australian citizenship, possesses a basic knowledge of the English language and has adequate knowledge of Australia and of  the responsibilities and privileges of Australian citizenship. 

8. Ordinarily the criteria at paragraphs 21(2)(d), 21(2)(e) and 21(2)(f) are satisfied by the applicant being eligible and successfully completing the citizenship test. Subsection 21(3) provides an alternative pathway to citizenship for applicants who have a 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: 

   …

   (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;

9. The Act does not define permanent or enduring physical or mental incapacity, but Citizenship Procedural Instructions provide guidance to decision makers on the interpretation and exercise of powers under the Citizenship Act. CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (“the Instructions”) sets out the requirements for assessing incapacity and determining whether paragraph 21(3)(d) is satisfied. 

10. Although the Tribunal is not strictly bound by departmental policy, the Tribunal as decision-maker will generally apply departmental policy unless there are cogent reasons not to do so.

11. The Instructions specify that evidence of a mental incapacity should generally be from a specialist in the field of incapacity who has assessed or is treating the applicant. Applicants must also have a permanent or enduring incapacity at the time of their application for citizenship. 

    ISSUES TO BE DETERMINED

12. The issues for the Tribunal to determine are:

    (a)whether Mr Et Tash had a permanent or enduring physical or mental incapacity at the time of his citizenship application; and, if so

    (b)is there is a causal relationship between the incapacity and Mr Et Tash not being capable of understanding the nature of the application at that time; or not being capable of the demonstrating a basic knowledge of the English language at that time; or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    EVIDENCE

    Mr Et Tash’s oral evidence

13. At the hearing, Mr Et Tash gave evidence that when he immigrated to Australia with his family it was his intention to start a business. Prior to immigrating he was a plumber and his goal was to open a plumbing store but he found his ambitions were frustrated by his poor English skills. Mr Et Tash gave evidence that he was also unable to work as a plumber on account of needing to speak English. Consequently, he has largely been unemployed since arriving in Australia. 

14. He began attending English classes with his wife shortly after his arrival in Australia, but he would leave class early. He found the classes difficult and when his wife graduated to the next class he felt more disheartened and eventually stopped attending all together. 

15. Mr Et Tash holds a NSW driver’s licence and spends his days taking his children to school, shopping, taking care of chores and seeing friends. He said he only shops at “Arabic” stores when he goes shopping. In his citizenship application Mr Et Tash described his occupation as “student and part-time plumber”.  

16. Mr Et Tash recalls that he had difficulty learning Arabic when he was younger and still has difficulty with some words in Arabic. He explained that the passing of his mother and siblings had affected his mood and the additional stress of those losses combined with the normal stressors of life had made him unable to learn English. 

17. In the course of giving evidence Mr Et Tash explained that he did not like formal education. His father was also a plumber and as a schoolboy Mr Et Tash would miss school in order to go to work with him. As he attended school intermittently, Mr Et Tash would fall behind his classmates when he did attend school. Whilst he likes the idea of gaining an education, Mr Et Tash has given-up hope of doing so because his physical and mental problems make it so difficult for him to learn.

    Did Mr Et Tash have a permanent or enduring physical or mental incapacity at the time of his citizenship application? 

18. I am required to establish if Mr Et Tash has provided evidence which supports that he had a physical or mental incapacity at the time of his citizenship application and whether that evidence satisfies the requirements set out in departmental policy.   

19. In a report dated 20 October 2020, Dr Ala’a Al-Zabin writes that he has been looking after Mr Et Tash for one year and confirms that Mr Et Tash has depression, poor concentration and difficulties learning a new language or skills. Dr Al-Zabin also writes that Mr Et Tash was referred to a psychologist and prescribed medication. He writes that Mr Et Tash has been trying to learn new skills for the last 4 to 5 years but with no improvement and has been taking the medications Escitalopram, Gabapentin and Micardis. 

20. Dr Hecham Alhajali is a fellow of the Royal Australian and New Zealand College of Psychiatrists.  As a psychiatrist he is a  specialist in the field of Mr Et Tash’s claimed medical condition and meets the evidentiary requirements set out in the Instructions. In a report dated 28 November 2020 Dr Alhajali states that he saw Mr Et Tash for a psychiatric assessment and opinion on management of his chronic depression and inability to undertake the citizenship test. He reports that Mr Et Tash has failed the citizenship test on two occasions and was frustrated and distressed at his inability to pass. Consistent with Mr Et Tash’s evidence, Dr Alhajali writes that after arriving in Australia Mr Et Tash attended English classes but was not able to learn and his English remained limited. He writes that over the last two years Mr Et Tash has developed symptoms of anxiety and low mood on the back of his deteriorating health and the loss of several family members who died in Syria. Dr Alhajali records that Mr Et Tash reported feeling sad and lonely with the deteriorating relationship with his wife and lack of respect from his children.

21. Dr Alhajali also reports that Mr Et Tash complains of feeling anxious and worried, unhappy, tired and fatigued. He becomes angry and irritable quickly. He worries about the future and not enjoying the present. He complains of becoming forgetful, frequently misplacing items and gets confused with daily chores. Dr Alhajali writes that in the past Mr Et Tash was diagnosed with depression and anxiety and was prescribed Lexapro 10mg but did not take the medication. He writes that Mr Et Tash regularly sees a psychologist. Dr Alhajali provides a diagnosis of chronic anxiety with low mood, adjustment disorder, chronic pain, migration and social difficulties. For treatment, he recommends a combination of psycho education and medication Cymbalta 30 mg. He proposes cognitive behaviour therapy (“CBT”) for anxiety and lifestyle changes such as more exercise. He concludes that Mr Et Tash should be exempt from undertaking the citizenship test due to his poor English language skills on account of him suffering a chronic and enduring mental illness affecting his ability to learn.

22. In a subsequent report dated 27 February 2021 Dr Alhajali writes that Mr Et Tash was in a similar state to when he last reviewed him and continued to complain of difficulty learning new information and his inability to learn English and acquire knowledge for the citizenship test. He writes that the requirements to provide additional information to the Respondent has caused Mr Et Tash distress and further anxiety. 

23. In a report dated 15 March 2021 Dr Ala’a Al-Zabin writes that Mr Et Tash has been treated for his chronic anxiety and depression by many psychologists and psychiatrists and that his mental illness has had an effect on  his ability to learn new tasks or languages.  He expects that Mr Et Tash’s condition will be a chronic and lifelong issue.

24. Mr Et Tash has also been consulting psychologist Mostafa El-Gashingi. Mr El-Gashingi writes on 27 November 2019 that Mr Et Tash was referred for mixed anxiety and depression by his general practitioner and had attended seven sessions of treatment. He reports that Mr Et Tash appeared to fit the criteria for panic disorder and writes in part: 

    He experiences sudden and unexpected surges of intense fear, discomfort that results in heart palpitations, sweating, trembling, sensations of shortness of breath, feelings of choking, chest pain, nausea, dizziness, and fear of losing control. 

    …

    These symptoms have been present for more 6 months and they are expected to continue. 

    …

    Treatment for Mr ET TASH will continue … focusing on Cognitive Behavioural Therapy (CBT) for Panic Disorder, and he is also receiving psychopharmacological treatment by his GP…

25. In August 2020 Mr El-Gashingi reported that Mr Et Tash had attended a total of eight sessions at that time. In addition to restating that he believed Mr Et Tash meets the criteria for a diagnosis of panic disorder, Mr El Gashingi writes that Mr Et Tash “has a complicated history of mental health concerns” and “reports not finishing past grade 6 in his home country as he struggled to learn”. Mr El-Gashingi also writes that testing for cognitive and learning difficulties are costly and beyond Mr Et Tash’s means. He notes that Mr Et Tash’s symptoms are consistent with PTSD and that he is in the process of being assessed for this.

26. In a report dated 20 November 2020 Mr El-Gashingi provides the results of the assessments undertaken by Mr Et Tash. He reports that the Beck Anxiety Inventory results “reflect a severe level of anxiety”. Similarly, the Beck Depression Inventory results indicate severe depression and the Harvard Trauma Questionnaire indicates Mr Et Tash is suffering from clinically significant symptoms associated with post-traumatic stress disorder. The Adaptive Behaviour Assessment System results place him in the “extremely low category”, meaning that compared to the rest of the population his functioning puts him at the lowest end of the curve. 

27. In a letter dated 17 September 2019 to Dr Neil Rajanayagam, consultant and interventional cardiologist Dr Hamid Almafragy reported that Mr Et Tash’s blood pressure was under control but that he was “still breathless at rest and this is almost certainly anxiety related rather than cardiac”. Dr Almafragy writes that following a discussion with Mr Et Tash he concluded that Mr Et Tash is “keen to try antianxiety tablets” and that he had started him on a “small dose” of Lexapro 10mg. 

    CONSIDERATION

28. The medical reports which were presented at the time Mr Et Tash confirmed he wished to proceed with his citizenship application under subsection 21(3) were prepared by cardiologist Dr Almafragy in August 2019, approximately eight months after he submitted his application. The earliest medical report which is related specifically to Mr Et Tash’s mental health conditions is a report from Mr El-Gashingi dated 27 November 2019. 

29. In this report Mr El-Gashingi states that Mr Et Tash appears to fit the criteria for the Diagnostic and Statistical Manual of Mental Disorders 5 (“DSM-5”) for Panic Disorder. He also confirms that Mr Et Tash had attended a total of seven session with him, but does not provide dates for the sessions nor the date of his diagnosis. It was not until 28 November 2020 – nearly two years after Mr Et Tash’s application - that Dr Alhajali diagnosed him with chronic anxiety and low mood, adjustment disorder and chronic pain.   

30. When Dr Almafragy wrote in September 2019 that he has prescribed medication for Mr Et Tash’s anxiety, it appears, based on the evidence, that this was the first time Mr Et Tash’s mental health had been treated. 

31. The Instructions provide that an incapacity should be permanent or enduring at the time of application for Citizenship. The first report relating to Mr Et Tash’s claimed incapacity is the correspondence to Dr Rajanayagam from Dr Almafragy written approximately nine months after his citizenship application. This report does not provide a definite diagnosis of anxiety, stating only that he will try medication for his anxiety. The Instructions also require applicants to provide evidence from a specialist in the field they are claiming the incapacity. As Dr Almafragy is a cardiologist, I do not consider his report meets the evidentiary requirements for Mr El Tash’s claimed conditions. I note also that in a subsequent report Dr Alhajali confirms that Mr Et Tash did not take the anxiety medication that was prescribed by Dr Almafragy. 

32. The earliest indication of his condition from a specialist in the field of the claimed incapacity is the letter from Mr El-Gashingi dated 27 November 2019. Mr El-Gashingi’s observation that Mr Et Tash “appears” to meet the criteria fall short of a diagnosis. In a subsequent report dated 26 August 2020 Mr El-Gashingi does not confirm a diagnosis, again stating that he appears to meet the DSM-5 criteria for panic disorder and is being assessed for PTSD as he experiences symptoms consistent with this condition. 

33. It is also relevant that whilst Mr El-Gashingi most recently reported that he has been treating Mr El Tash over eight sessions, he does not state when treatment began and it appears that he did not seek treatment between November 2019 and 26 August 2020. 

34. For a condition to be an enduring incapacity, there cannot be a predicted recovery, or where there is, it is long-term. Based on the evidence, it appears that Mr Et Tash’s treatment for his mental health has been irregular. Whilst I note that Mr El-Gashingi reported on 26 August 2020 that the symptoms had been present for more than six months and are expected to continue, the inconsistent treatment for his condition and evidence that he has not taken medications as prescribed militate against a finding that Mr Et Tash’s mental health condition is permanent or enduring. 

35. For these reasons, I am not satisfied that Mr Et Tash had a permanent or enduring physical or mental incapacity at the time of his application for citizenship. 

    CONCLUSION

36. Based on the absence of a suitable diagnosis for Mr Et Tash’s mental health condition at the time he made his application for Australian citizenship, I do not accept that he meets the requirements of subsection 21(3) of the Act, meaning the decision under review will be affirmed. 

37. Whilst Mr Et Tash may be disappointed in this outcome, he is able to apply for Australian citizenship again if he so chooses. 

    DECISION

38. For the reasons stated above the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 3 June 2020, is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

....................................[SGD]....................................

Associate

Dated:  2 July 2021

Date(s) of hearing:	11 May 2021
Advocate for the Applicant:	Ms N Et Tash
Solicitor for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers