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

[2020] AATA 4315

Farah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4315 (29 October 2020)

Division:GENERAL DIVISION

File Number:          2019/4397

Re:Haboni Abdi Farah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:29 October 2020

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

R. Cameron, Senior Member

Catchwords

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – whether applicant has a permanent or enduring mental incapacity – depression – post-traumatic stress disorder – citizenship test – decision affirmed

Legislation

Australian Citizenship Act 2007

Health Insurance Regulations 1975

Cases

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

Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Secondary Materials

Australian Citizenship Policy, 1 June 2016

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

REASONS FOR DECISION

R. Cameron, Senior Member

29 October 2020

INTRODUCTION.

1. The Applicant is a 44-year-old woman from Ethiopia. She has resided in Australia since November 2006, being the holder of a permanent Global Special Humanitarian (sub-class 202) Visa.

2. Since her arrival in this country, her husband and all her children have obtained Australian citizenship by conferral. She seeks to have the same citizenship as all her family. It is clearly important to her.

3. The Applicant applied for Australian citizenship by conferral on 7 May 2018 (“the Application”).

4. In applying for Australian citizenship by conferral, the Applicant completed a prescribed form, “Application for Australian Citizenship”, known as “Form 1290”. This form requires the Applicant to respond to a series of questions. The questions are framed to require an applicant to furnish information in compliance with the requirements which must be satisfied under the provisions of the Australian Citizenship Act 2007 (“the Act”).[1]

   [1] Document T 6 of the T documents. The T documents are the material documents that the Respondent as decision maker, is obliged to lodge with the Tribunal under section 37 of the Administrative Appeals Tribunal Act's 1975.

5. The prescribed form at question 21 requires an applicant to state, among other things, whether they have a permanent or enduring physical or mental incapacity, meaning that they are unable to:

   (a)understand the nature of their application; or

   (b)demonstrate a basic knowledge of English; or

   (c)demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

6. This question adopts the language used in section 21(3)(d) of the Act which addresses “Permanent or enduring physical or mental incapacity”.

7. In her application for Australian citizenship by conferral, the Applicant ticked the box responding to question 21 in the affirmative.

8. Also accompanying the Application for Australian citizenship by conferral was a “Medical Certificate” comprising two sentences, signed by a general practitioner, Dr Myra Mpungu on 18 April 2018.[2] This medical certificate certified that the Applicant has

   “enduring mental incapacity and poor memory. She cannot demonstrate the basic knowledge of English and does not understand the nature of the citizenship application”.[3]

   [2] The medical certificate of Dr Mpungu of 18 April 2018 is at page 94 of the T documents.

   [3] The medical certificate from Dr Mpungu is at page 94 of the T documents.

9. The Application for citizenship by conferral was accompanied by a variety of documentation in the name of the Applicant, as is customary. Among these documents were a learner’s permit for driving a car issued by VicRoads, the statutory agency in Victoria which issues drivers’ licenses, a Medicare card and a card issued by a trading bank for the purposes of conducting electronic banking transactions.

10. By a decision made on 2 July 2019, a Delegate of the Respondent issued a notice of refusal for the Applicant’s Application for Australian citizenship by conferral (“The decision”). The Delegate refused the Application because she found that the requirements of section 21(3)(d) of the Act had not been satisfied.

11. The grounds relied upon by the Delegate in concluding that section 21(3)(d) of the Act had not been satisfied and, thereby, deciding to refuse the Application for Australian citizenship by conferral should be recorded in these reasons.

12. The first ground was that the letter from Dr Mpungu failed to provide: any particulars concerning the nature and history of the Applicant’s alleged incapacity; details of any assessment undertaken; and particulars of any past or ongoing treatment. Also, there was no reference in the medical certificate from Dr Mpungu of the prognosis for the Applicant’s alleged incapacity.

13. Another ground relied upon by the delegate was that Dr Mpungu is not a recognised medical specialist in psychiatry as defined in Schedule 1 of the Health Insurance Regulations 2018. More will be said about this later in these reasons.

14. The Applicant seeks a review of the decision before this Tribunal.

    THE ISSUE FOR DETERMINATION BY THE TRIBUNAL.

15. There is a very discrete issue to be determined by the Tribunal which is whether the Applicant is able to satisfy the requirements for Australian citizenship prescribed in section 21 (3)(d) of the Act.

    THE REGULATORY FRAMEWORK.

16. The text of section 21(3)(d) of the Act need not be reproduced in these reasons. Its substance is as set out in paragraph 5 above.

17. It is useful to make some observations concerning the construction and application of the whole of section 21(3) of the Act. The section is referred to in its entirety. In order to be eligible to become an Australian citizen, the Respondent must be satisfied an applicant meets each of the six criteria enumerated in the section.

18. The requirements of section 21(3) of the Act are conjunctive, and on their true and proper construction, each must be satisfied at the time the person makes the application for Australian citizenship by conferral. Section 21(3)(d) requires an applicant to have a permanent or enduring physical or mental incapacity at the time the person made the application. It is frequently referred to by lawyers construing sections of various acts using such language, as a “point in time requirement”.

19. Another factor relevant to the construction and application of section 21(3) of the Act is that the term “Permanent or enduring physical or mental incapacity” is not defined. Therefore, a decision-maker such as the Tribunal, stepping into the shoes of the Delegate, must look beyond the provisions of the Act in deciding whether an applicant satisfies this requirement.

20. In considering whether an applicant has a permanent or enduring physical or mental incapacity within the meaning of section 23(3) of the Act, a decision-maker is entitled to refer to the provisions of the Australian Citizenship Policy (“ACP”). A decision-maker will generally apply an executive policy, such as the ACP, unless there are cogent reasons not to do so.[4] Executive policies are designed to promote values of consistency and rationality in decision-making, together with the notion that administrative decision-makers should treat like cases alike.[5] Commensurate with this approach, a decision-maker can also refer to appropriate provisions of the Citizenship Procedural Instructions(“CPI”).

    [4] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.

    [5] Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173.

21. The ACP at Chapter 7 provides that to qualify within the meaning contained in section 21(3) of the Act, the incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is said to be 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. The ACP provides examples such as a person suffering from long-term depression, Post-Traumatic Stress Disorder (PTSD), or where the person has suffered a stroke. It also notes that a temporary physical or mental condition does not satisfy the requirement.

22. The ACP also provides that where an applicant claims permanent injury or mental incapacity, they may provide evidence from: a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists;  a medical practitioner who is a fellow of the Australian Society of Psychological Medicine; or a registered psychologist with the Psychology Board of Australia with a practice endorsement in an area relevant to such a problem, and registered with Medicare for such purposes.

23. Another important observation in the ACP concerning someone claiming a permanent or enduring physical or mental incapacity, is that it anticipates such applicants will have been consulting an appropriately qualified specialist on a regular basis. On this note, it should also be observed that with respect to general practitioners, the ACP provides that those who could also be fellows of the Royal Australasian College of General Practitioners and the Australian College of Rural and Remote Medicine are not defined as specialists under Schedule 4 to the Health Insurance Regulations1975.

24. In assessing incapacity under section 21(3)(d) of the Act, part 3.4 of the CPI[6] also notes that there are two limbs to this provision, each of which must be met. Those are firstly, that an applicant must have a permanent or enduring incapacity at the time of the application. Secondly, the incapacity must be the direct cause of an applicant not being capable of satisfying the requirements of the section.

    [6] Page 68 of the T documents.

25. The CPI under the heading “Evidence of mental incapacity” enumerates an extensive array of information that decision-makers may require as evidence of mental incapacity and may request if it is not already contained in specialist reports furnished with the application.[7] They need not be reproduced in full for the purpose of these reasons. However, it is useful to articulate several of the factors referred to in that section of the CPI.

    [7] This section of the CPI is found at page 69 of the T documents.

26. They include:

    (a)information on how long the specialist has been treating the applicant;

    (b)whether the applicant received treatment from any other specialists;

    (c)when did the claimed incapacity commence;

    (d)how many sessions as the applicant attended with the specialist;

    (e)does the applicant attend consultations regularly;

    (f)is the applicant currently being treated under a treatment plan: if not, why not; and

    (g)results of any cognitive or clinical testing that has been undertaken.

27. Importantly, this section of the CPI also specifies that reports should articulate a clear basis for the diagnosis and opinions expressed in them, including how the incapacity links to the person having a permanent or enduring physical or mental incapacity according to the criteria in section 21(3)(d) of the Act.

28. Collectively, it is a significant evidentiary threshold to cross to establish that an applicant has a permanent or enduring physical or mental incapacity in the relevant sense when relying on this ground in an application for Australian citizenship by conferral.

    THE EVIDENCE.

29. Following the decision made by the Delegate of the Respondent, several reports from medical specialists were obtained on behalf of the Applicant.

30. The first specialist report was from Nicole Withers, clinical psychologist, dated 17 July 2019. It accompanied the application to this Tribunal. Ms Withers had reviewed the Applicant on one occasion as at the date of that report following a request by her GP. Ms Withers recommended consideration of a review by a psychiatrist for the purposes of considering whether a neuropsychological assessment and further diagnostic clarification were warranted. She observed that the Applicant faced memory impairment and learning challenges which created concerns for her daily living. Also, upon completing aspects of the mini mental examination, Ms Withers observed that the Applicant had deficits in mental manipulation, recall and planning. Additional observations were that she had an inability to copy diagrams or complete clockface drawings. Ms Withers concluded that the Applicant appeared to meet the criteria for memory deficits, and Generalised Anxiety Disorder with impact upon access to community, sleep and general well-being.

31. Ms Withers prepared a further report on 26 November 2019.[8] By the time of this report, she had seen the Applicant on four occasions. Additionally, the Applicant had been referred to Mercy Mental Health and a preliminary assessment had been completed by a Psychiatric Registrar, Dr Bojir Perme, who has also furnished a report which is in evidence before the Tribunal. Ms Withers confirmed that by this time, the Applicant was being treated by a Mental Health Care Plan following referral from her general practitioner. She was described as engaging well with the process with a demonstrated commitment to therapy sessions and recommendations she had made in previous sessions. The Tribunal should observe that this commitment to therapy as described by Ms Withers does reflect the way the Applicant gave evidence. The Applicant appeared to the Tribunal to be committed to availing herself to all the opportunities of professional assistance that she has been directed to with the intention of her health in all respects. At each session, Ms Withers observed that the Applicant was subjected to a clinical assessment of her mental state and risk assessment which continued to consistently show deficits in regards to mental manipulation, memory and recall and recognition.

    [8] Document ST 1 of the ST documents.

32. Consequently, Ms Withers reported that the Applicant had been referred to a specialist area mental health service for intensive support and management including regular psychiatric reviews, linkage, medication management and supportive care by publicly available services. It is recorded in this report that she had been previously treated with antidepressant medication since 2014 and had diagnosed symptoms of mood disturbance since 2011 and PTSD since early adulthood.

33. An extensive patient history was then outlined by Ms Withers including the Applicant’s history of torture and abuse during her early childhood years in Somalia and Ethiopia. It records that she had no schooling or trade, is illiterate and has limited capacity for complex thinking and problem-solving. As was confirmed in evidence before the Tribunal, Ms Withers observed that the Applicant is married to her second husband, has five biological children and seven stepchildren with a total of 11 of them continuing to live with her and her husband under the one roof. As was emphasised by her husband and her children in their evidence to the Tribunal (indeed the Applicant gave evidence to similar effect) it is a household of 13 people under one roof which has caused her significant stress and lack of sleep. Ms Withers then identified no less than 12 specific conditions or symptoms which have affected her.[9]

    [9] They need not be repeated in this reason but can be found in Ms Withers’ report of 26 November 2019 at page 109 of the Supplementary T documents.

34. This led to a diagnosis by Ms Withers of the Applicant’s conditions being PTSD with comorbid Mood Disorder not otherwise specified, with a differential diagnosis of dysthymic disorder/agitated depression and somatization disorder (relying on the opinion of Dr Bojir Perme, Psychiatric Registrar of the Wyndham Community Mental Health Team of Mercy Health). A treatment plan was identified which included optimisation of medications with a consideration of mood stabilisers and case management together with ongoing psychotherapy regarding trauma, loss and mood regulation and emotional dysfunction. She concluded that based on these symptoms and the longevity of experience, it was her opinion that they would have been present at the time of the application for Australian citizenship and were enduring and permanent.

35. Dr Perme prepared a report on 27 November 2019.[10] He confirmed that the Applicant had as at that date, following a referral by Ms Withers, been assessed and accepted for case management allocation. She was allocated to him as well as Dr Anindya Banerjee, a Consultant Psychiatrist. Both Dr Banerjee and he were to be supported in their provision of treatment to the Applicant by the Mercy Health “multi-disciplinary team”. Somewhat differently to Ms Withers’ report, Dr Perme advised that the Applicant’s diagnosis was still being clarified, with suggestions however of mood disturbance, PTSD and possibly Somatisation Disorder. He described all of these conditions as enduring and requiring ongoing treatment and monitoring by mental health professionals.

    [10] Document ST 2 of the ST documents.

36. Dr Ayobami Ogunleye, a Consultant Psychiatrist, and Ms Sharon Evans, an Occupational Therapist and Case Manager, prepared a report on 5 May 2020.[11] As at the date of that report, it recorded that the Applicant was under the treatment of Dr Ogunleye, Dr Astrid Lower (a Medical Officer) and Ms Evans. Dr Ogunleye had by then only reviewed the Applicant once by telephone. The authors of that report stated that it was difficult to draw conclusions of the Applicant’s capacity to complete the citizenship test based upon the short timeframe in which she had been undergoing treatment. They noted previous reviews and material which observed several “prominent psychiatric symptoms”. These included fluctuations in mood suggestive of a mixed effective state, generalised anxiety symptoms, chronic pain and sleep disturbance, complicated by opiate and benzodiazepine prescriptions. It was further noted that the Applicant had been given a diagnosis of PTSD and possibly Somatisation Disorder. They concluded that these were likely long-term conditions which would need treatment and assertive follow-up. They further opined that given the fluctuations in the Applicant’s mental state, she would continue to receive treatment from their mental health service. This treatment would include monitoring, review of medications, regular psychiatric reviews and support around psychosocial concerns.

    [11] Document ST 3 of the ST documents.

37. Dr Mpungu also prepared a further report dated 10 June 2020.[12] Once again, it was a comparatively short compass. It reiterated that the Applicant has enduring mental incapacity and poor memory. Therefore, it concluded, she cannot demonstrate the basic knowledge of English and does not understand the nature of the citizenship application. It recorded that she had been experiencing depression and anxiety since 2012. These conditions were treated on and off with antidepressants. It observed that she is now taking medication as directed and keeping regular appointments with her psychologist and general practitioner. (The Tribunal observes that these observations concerning the Applicant’s treatment with prescribed medication were not included in her Medical Certificate of 18 April 2018 which accompanied the application for Australian citizenship by conferral. This is surprising indeed.)

    [12] Document ST 4 of the ST documents.

38. Dr Ogunleye and Ms Evans prepared a further report on 8 July 2020.[13] It recorded that what is known as the “Rowland Universal Dementia Assessment Scale” (“RUDAS”) was completed with the Applicant. It was described as a multicultural assessment scale and is a short cognitive screening instrument designed to minimise the effects of cultural wording and language diversity on the assessment of baseline cognitive performance. The Applicant’s score was 15. The authors observed that a score of 22 or less, suggests cognitive impairment. Applying this test, the authors concluded that the findings of that test identified that the Applicant would have difficulty undertaking the citizenship test due to cognitive impairment. It stated that this is further impacted by her mental health diagnosis of PTSD and possibly Somatisation Disorder.

    [13] Document ST 5 of the ST documents.

1. The Applicant, her husband and several of her children gave oral evidence before the Tribunal. Her husband and children gave moving evidence concerning the qualities of the Applicant, the demands that she faces in her daily life due to the sheer size of her household, which it will be recalled comprises 13 people, and her various medical and other problems. The difficulties caused to her by giving birth to multiple children, together with several complications that arose from those pregnancies were emphasised by them. They also highlighted that she has little sleep and is prone to episodes of pain, crying, tearfulness, memory loss, forgetfulness and outbursts. Notwithstanding these demands, she always wakes up early in the morning to make breakfast and lunch for all of them. It was described how one hour she will be so happy and the other she will be in pain. It was emphasised that she had not had a holiday for more than 12 years. The Tribunal accepts their evidence.

2. The Applicant herself gave evidence in which she canvassed her personal history prior to, and after, arrival in Australia, including complications with her pregnancies together with an array of mental health manifestations. At times she said she was so confused she did not know how to cross the road. Her evidence emphasised that she had several health problems that had caused her pain which remained undiagnosed. She stated that she had seen several doctors who kept informing her that there was nothing wrong. However, she did continue to suffer ill health despite this medical advice or diagnosis which she considered to be incorrect. It was recommended to her that she see a psychologist or psychiatrist, but she refused. She acknowledged that she had been prescribed, and periodically consumed antidepressants. That medication did give her some relief. Now that she has been seeing mental health professionals and has been prescribed additional medication, she feels that it does give her some relief. She stated that she is getting better because of the medication. The Applicant stated, and it is accepted by the Tribunal given the preponderance of the recent medical reports from treating health care practitioners, that she has now committed herself to mental-health treatment and that progress is being made.

3. The Applicant was probed in cross-examination on several matters. She acknowledged that she had attended English language classes at level 1 and level 2. Level 1 classes went reasonably well, but she discontinued level 2 as the teacher was hot tempered and bullied her. She did not try another school or another class and stated that she discontinued on medical advice. She readily conceded that she had obtained a learner’s permit for driving a motor car. The test was in the Somali language; her evidence was that she had assistance from a Somali interpreter when undertaking such test. She stated she only obtained her learner’s permit after failing the test several times.

4. The Tribunal observed the Applicant to be an articulate witness notwithstanding that she has had little, or no formal education. She did demonstrate a capacity to carefully consider questions put to her and answer them directly. She is not an unintelligent woman. Additionally, she also revealed quite a good capacity to advance her own interests. In no insignificant way, she was quite persuasive. To the observer, she did strike as an individual who also, at the very least, quite well understands the nature of an application for Australian citizenship. No doubt she has little skill in the English language. She also struck an observer as one who could have, and most probably does, quite good knowledge of Australia together with the responsibilities and privileges of Australian citizenship. After a difficult life prior to her arrival, she has done her best to embrace Australia and its values. Nowhere was this more evident than the efforts she had made and the pride she justifiably took in encouraging her children to advance their way in life. There is no doubt that she has had a difficult life both before and after her arrival in Australia. It was to quite a considerable degree a testament to her skills and character that her children who gave evidence were impressive young people. One daughter is undertaking a degree as a paramedic at Victoria University and another son is a builder. The other son who gave evidence is in his later years of secondary school and was also exceptionally articulate and quite persuasive. He is a proud Australian. There is no reason to doubt that he is capable of and will complete higher education leading to a successful career in whatever path he is inclined to follow. His devotion to his mother and the quality of the evidence he gave about her also reflected the contribution she has made, and will continue to make, to his personal development.

   CONSIDERATION.

5. The Respondent concedes that the Applicant has an incapacity. The Application is resisted in several ways. One ground is that the Applicant at the time she applied for Australian citizenship by conferral was not able to establish a permanent or enduring physical or mental incapacity as required by section 21(3)(d) of the Act. Indeed, he contends that the evidence as it is, whether at the time of the application or later, does not permit the Tribunal to conclude that the Applicant was not able to demonstrate an understanding of the nature of the application, a basic knowledge of English or an adequate knowledge of Australia and responsibilities and privileges of the Australian citizenship.

6. One of the difficulties with the medical evidence before the Tribunal was to some extent the level of inconsistency between it. This is not in any way to criticise any of the healthcare professionals who gave the reports. They are not lawyers. They were not instructed as one might expect an expert medical witness to be when seeking a medical report for tendering in evidence during the course of a conventional hearing. It is apparent they did their best.

7. The other issue that emerges from the medical evidence is that it is only comparatively recently that the Applicant has the benefit of specialist medical attention from Ms Withers and the Wyndham Community Mental Health Team at Mercy Health, including Dr Ogunleye.

8. Dr Mpungu’s reports were both very scant. It was not an analysis that one might have expected, and would encourage one to place more weight upon, as identified in the relevant sections of the ACP and CPI referred to in paragraphs 26 and 27 above. They were rather conclusory recording that she has “enduring mental incapacity and poor memory”. An appropriate factual and medical foundation for reaching this conclusion was not laid. Neither of her reports condescend to say that her incapacities (whatever they may be) were the direct cause of the Applicant not being able to satisfy the requirements of section 21(3)(d) of the Act.

9. As Dr Mpungu is a general practitioner, she is not an appropriately qualified medical specialist as required by the ACP and CPI also referred to earlier. As also observed above, the failure of Dr Mpungu to include in her first report of April 2018 any reference to the Applicant experiencing depression and anxiety since 2012, together with the consequent periodic treatment with antidepressants, as she recorded in her report of June 2020, is surprising indeed. Little weight therefore can be placed upon her reports. In any event the observations recorded by Dr Mpungu in the June 2020 report recommended ongoing treatment. This consists of taking medication as directed together with keeping appointments with her psychologist and Dr Mpungu (presumably also with any other mental health professionals she may consult). The indications are that if this treatment continues, the Applicant’s conditions will probably improve. How that would affect her ability to satisfy requirements of section 21(3)(d) of the Act in uncertain.

10. Mental health specialist, Ms Withers’ first report of 17 July 2019 has limited force and effect. It must be recalled that it was produced after only one consultation. It does identify a range of problems, referred to earlier, experienced by the Applicant that she considered. However, those conditions require further investigation by suitably qualified medical specialists. It also once again, must be repeated that Ms Withers is not a lawyer. She expressed an opinion that the Applicant’s concentration and literacy would impact her capacity to adequately complete an examination. This might well be so. However, this analysis does not strictly follow what is required.

11. Firstly, in terms of the obligations that must be satisfied under section 21(3)(d) of the Act. Secondly it does not go so far as to say that she would be unable to understand the nature of her application, a basic knowledge of English or demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. It did not go so far as to conclude that she has a permanent or enduring physical or mental incapacity. It also did not contain a pathway of reasoning as identified in the relevant sections of the ACP and CPI referred to in paragraphs 26 and 27 above. It also did not conclude that her incapacities were the direct cause of the Applicant not being capable of satisfying the requirements of section 21(3)(d) of the Act.

12. Ms Withers’ second report of 26 November 2019, for obvious reasons, is rather more comprehensive than her first. The contents of it are referred to in their entirety. The essential components of it have been referred to above. It covers many of the matters that the ACP and CPI identified as being important requisites in an appropriate medical specialist’s report. Some further matters which are highly relevant to this application should also be mentioned in this part of these reasons. Ms Withers opined that the Applicant is aware of her application for citizenship. However, she did conclude that she appears unrealistic and naïve as to the nature of the consequences should her application fail. Ms Withers also states that the Applicant is aware of the law and can acknowledge right from wrong. Also, she is acutely aware of what the privileges of Australian citizenship and residency provide which have been highlighted by her experience of war and torture in Somalia. (The Tribunal observes that this opinion expressed by Ms Withers is very much in accord with and reflects how it observed the Applicant herself in the oral evidence she gave at the hearing of this application).

13. Another feature of Ms Withers’ second report is that it is not specifically stated that the symptoms and conditions from which the Applicant suffers are ones for which there cannot be a perfected recovery. Alternatively, such conditions are so long-term that it would be unreasonable to expect her to recover before becoming eligible for Australian citizenship. Put another way, it is not contended that even with the program of treatment that she is now undertaking, and will continue to undertake, she would not be capable of satisfying the requirements of section 21(3)(d) of the Act, bearing in mind that in her opinion the Applicant does currently understand at least some of those requirements in respect of privileges of Australian citizenship. She does not conclude in her second report that the Applicant’s incapacities were the direct cause of her not being able to satisfy the requirements of section 21 (3)(d) of the Act. These opinions expressed by Ms Withers do not identify the hallmarks of a person with a permanent or enduring physical or mental incapacity in the relevant sense.

14. Dr Perme’s letter of 27 November 2019 was written at a time when the Applicant’s assessment by the Wyndham Community Mental Health Team was, as he said, still being clarified. He quite fairly stated that while her illnesses were enduring, they required ongoing treatment and monitoring. He does not go so far as to conclude that her incapacities were the direct cause of the Applicant not being capable of satisfying the requirements of section 21(3)(d) of the Act. In fairness, given that her assessment and treatment were in their infancy, he simply was not able to do so.

15. Dr Ognuleye and Ms Evans’ letter of 5 May 2020 also has limited weight that can be attached to it given the relatively early stage of the review, diagnosis and treatment by the Consultant Psychiatrist, Dr Ogunleye. The observation in that letter is that it is difficult to draw a conclusion of the Applicant’s capacity to complete the citizenship test given the short time she had been treated by them is relevant. Given such observations, it does not make it possible to rely upon this report to conclude that the Applicant’s incapacities were the direct cause of her not being capable of satisfying the requirements of section 21(3)(d) of the Act. Certainly, it could not be concluded that such was the case at the time of her application for Australian citizenship by conferral. This also reflects a level of inconsistency between their report and the opinions expressed by Ms Withers in her last report of November 2019, in which it will be recalled, she stated that the Applicant was aware of her application for citizenship and the privileges that attach to citizenship in the event that it is granted.

16. The letter of 8 July 2020 from Dr Ognuleye and Ms Evans does conclude that there was a cognitive impairment. This is acknowledged by the Tribunal. The authors of that letter, however, do not conclude that her incapacities are the direct cause of the Applicant not being capable of satisfying the requirements of section 21(3)(d) of the Act. No doubt it was and is a significant factor. In any event, the Tribunal, on the evidence before it concerning a cognitive impairment suffered by the Applicant, cannot conclude definitively that, by reason of the authors’ conclusion, the Applicant is a person with a permanent or enduring physical or mental incapacity, in the sense required or that she had such incapacity at the time she made her application for Australian citizenship by conferral. Further, their report and indeed their reports overall do not go so far as to enable a conclusion to be reached that there cannot be a predicted recovery or, where if there is, in the long-term it would be unreasonable to expect her to recover before becoming eligible for Australian citizenship, so as to enable her to satisfy the requirements of section 21(3)(d) of the Act.

17. Once again there were the observations of Ms Withers’ made in her second report of November 2019 concerning the Applicant’s awareness of the application for Australian citizenship and privileges conferred by referred to above. This is an inconsistency. There is also the evidence of the Applicant herself given to the Tribunal. She had a capacity to attend the Level 1 English class and complete it satisfactorily. She had the capacity, albeit with some difficulty, to complete the test for a learner’s permit to drive a car. There was the evidence she gave herself in which she was quite articulate for someone of limited education.

18. Additionally, the Tribunal is concerned that her period of treatment in consultation with mental health care professionals including the Consultant Psychiatrist, Dr Ognuleye, has been a comparatively limited duration. This limited duration of specialist mental health care treatment by specialists has not been of such timespan that it can be categorically stated that the Applicant is a person who had a permanent or enduring physical or mental incapacity at the time she made her application for Australian citizenship by conferral. Indeed, it cannot be said that this is the case now.

19. It seems possible on the evidence before the Tribunal that, with ongoing treatment, she will be able to understand the nature of the application and demonstrate a basic knowledge of English and, as she already seems to be possessed of, an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. Therefore, the Tribunal cannot conclude that the requirements of section 21(3)(d) of the Act have been established.

    CONCLUSION AND DECISION.

20. By reason of the foregoing matters the decision is affirmed.

21. In conclusion, the Tribunal should acknowledge and record that it is always open to the Applicant to make a further application for Australian citizenship by conferral.

22. Accordingly, the reviewable decision is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated:            29 October 2020

Date of hearing:	2 October 2020
Applicant:	By videoconference
Advocate for the Applicant:	Fatumo Elmi
Advocate for the Respondent:	Thomas Creedon
Solicitors for the Respondent	Australian Government Solicitor