FFFL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 394
•4 March 2021
FFFL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 394 (4 March 2021)
Division:GENERAL DIVISION
File Number: 2018/2759
Re:FFFL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:4 March 2021
Place:Sydney
The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant’s application for citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth), is affirmed.
................................[sgd].................................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal to approve application – whether applicant has a permanent or enduring mental incapacity – depression – posttraumatic stress disorder – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Butrus and Minister for Immigration and Border Protection [2019] AATA 239.
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.
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366.
Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429.
SECONDARY MATERIALS
Australian Citizenship Policy Statement, 27 November 2020
Australian Citizenship Procedural Instructions – CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
REASONS FOR DECISION
Senior Member Linda Kirk
4 March 2021
CITIZENSHIP APPLICATION
FFFL (pseudonym) (‘the Applicant’) is a citizen of Iran born in March 1967. He arrived in Australia on 19 August 2011. On 6 August 2012, the Applicant was granted a Protection (subclass 866) visa.[1]
[1] T2, 6.
On 5 April 2016, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The Applicant completed and signed the prescribed form, ‘Form 1290 – Application for Australian Citizenship – Other Situations’ (‘citizenship application’).[2] The citizenship application requires an applicant to answer a series of questions in order to demonstrate satisfaction of the requirements of the Act for the conferral of citizenship.
[2] T5, 18-27.
Question 20 requires an applicant to state, among other things, whether they have a ‘permanent or enduring physical or mental incapacity.’ In his citizenship application, the Applicant ticked the relevant box to indicate he had a ‘permanent or enduring physical or mental incapacity.’
Included with the Applicant’s citizenship application was a letter dated 11 January 2016 provided by Dr Mohammad, Occupational Therapist and Mental Health Clinician.[3] In this letter, Dr Mohammad wrote the Applicant suffers from (among other things) depression, is illiterate, and that his English is ‘significantly limited’. He requested that the Applicant be offered an interview instead of completing the written citizenship test.
[3] T5, 28.
By letter dated 16 May 2016, the Department invited the Applicant to provide further evidence from a specialist to support his claim that he suffers from a permanent or enduring physical or mental incapacity which prevents him completing the written citizenship test.[4]
[4] T4, 16-17.
The Applicant provided to the Department a letter dated 8 June 2016 from Ms Hanan Dover, Clinical and Forensic Psychologist, who wrote that the Applicant suffers from chronic post-traumatic stress disorder and major depression. She opined that ‘cognitively, [the Applicant] is not in a position to be able to attempt the test to a level of understanding it.’[5]
[5] T3, 14-15.
On 11 April 2018, the citizenship application was refused by a delegate of the Minister (‘the Respondent’) as the delegate was not satisfied that the Applicant met the criteria under paragraph 21(3)(d) of the Act (‘the Reviewable Decision’).[6] That is, namely, that the Applicant had a permanent or enduring physical or mental incapacity at the time of the citizenship application.
[6] T2, 6-13.
While the delegate accepted the diagnosis of the Applicant’s condition by Ms Dover, who the delegate recognised is a specialist in the field of the Applicant’s claimed medical condition, the delegate was not satisfied that this information was conclusive evidence that the Applicant’s medical condition is a permanent or enduring incapacity.
APPLICATION FOR REVIEW
On 17 May 2018, the Applicant, by his representative, applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[7]
[7] T1, 1-2.
On 13 August 2018, the Applicant, by his representative, lodged a further application for review of the Reviewable Decision and an application for an extension of time for making an application for review, on the basis that the first application was lodged using the incorrect form. On 28 August 2018, the Tribunal granted the Applicant an extension of time to apply for review.
The application was listed for hearing on 13 May 2019. The matter was adjourned by the Tribunal as the Applicant and his then representative failed to attend the scheduled hearing.
At a resumed hearing on 2 July 2019, the Applicant and his then representative did not appear and the application was dismissed by the Tribunal pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
On 31 July 2019 the Tribunal granted a reinstatement of the Applicant’s review application pursuant to subsection 42A(9) of the AAT Act.
The review application was scheduled for a hearing on 30 October 2019 at which the Applicant gave evidence and was cross-examined. The hearing was adjourned, and directions were made for the filing by the parties of further medical evidence.
The matter was relisted for hearing on 26 and 27 November and 7 December 2020. The Applicant attended the hearing in person and was self-represented. The Applicant gave evidence with the assistance of an interpreter in the Arabic and English languages. The Tribunal also received oral evidence from the following witnesses who gave evidence by phone:
·Ms Hanan Dover, Clinical and Forensic Psychologist
·Dr Mahmoud Abu-Arab, Clinical Psychologist
·Mr Thomas O’Neill, Clinical Psychologist
The following documents were before the Tribunal:
·Applicant’s Statement of Facts, Issues and Contentions;
·Respondent’s Updated Statement of Facts, Issues and Contentions dated 12 November 2020;
·Section 37 T-Documents (T1-T8, pages 1-150) (‘Exhibit R1’);
·Supplementary T-Documents (T9-10, pages 151-559);
·Medical report from Mr Thomas O’Neill, Clinical Psychologist dated 11 March 2020 (‘O’Neill Report’).
RELEVANT LAW AND POLICY
Australian Citizenship Act 2007 (Cth)
Consideration of citizenship application
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister) must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8).
Eligibility criteria
The criteria and general eligibility requirements for the conferral of Australian citizenship are set out in section 21 of the Act. The provisions relevant to the determination of this application are as follows:
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(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.
In order for citizenship to be granted, an applicant must satisfy all of the eight requirements that are listed in subsection 21(2).
Subsections 21(2)(d), (e) and (f) can only be satisfied if an applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
This is demonstrated by an applicant successfully completing the citizenship test provided for in subsection 21(2A) of the Act:
(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.
Citizenship Test
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A(4)), and that the Minister make a determination about what constitutes passing the test (s 23A(2)) and may specify the period within which the test must be completed (s 23A(5A)).
Successful completion of the citizenship test is an integral requirement for the consideration of a grant of citizenship. The test is designed to establish that an applicant both understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement of competency in the English language.
Exemption from the Citizenship Test
By virtue of subsection 21(3) of the Act, if the Minister is satisfied that an applicant meets the general eligibility and residence requirements but is unable to meet the requirements of paragraphs 21(2)(d), (e) or (f) due to “a permanent or enduring physical or mental incapacity, at the time the person made the application”, and is likely to reside, remain or maintain a close relationship with Australia and is of good character, they will be entitled to the grant of citizenship. The subsection provides:
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
The requirements of subsection 21(3) are conjunctive such that each must be satisfied at the time the person makes the application for Australian citizenship.
If these requirements are satisfied, then ‘…s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test’.[8]
[8] Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
Paragraph 21(3)(d) requires an applicant to have a ‘permanent or enduring physical or mental incapacity’ at the time the person made the application. The term “permanent or enduring physical or mental incapacity” is not defined. In deciding whether an applicant satisfies this requirement a decision-maker may be guided by relevant policy.
Australian Citizenship Policy Statement
The Australian Citizenship Policy Statement (‘ACPS’) came into effect on 27 November 2020, replacing the Australian Citizenship Policy.
The purpose of the ACPS is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the ACPS, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so.[9] To do so ‘promote[s] values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike.’[10]
[9] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
[10] Plaintiff M64 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54].
Australian Citizenship Procedural Instructions
In accordance with this approach, a decision-maker should also refer to provisions of the related Australian Citizenship Procedural Instructions (‘CPIs’), which supplement the ACPS, as a guide to the interpretation of the Act.
Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (‘CPI2’) is relevant to the Applicant’s citizenship application. Its stated purpose is to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application’ for Australian citizenship under subsection 21(3) of the Act.
Section 3.4 of CPI2, under the heading ‘Assessing incapacity’, notes that there are two limbs to paragraph 21(3)(d), each of which must be met.
Firstly, an applicant must have a permanent or enduring mental or physical incapacity at the time of the application, and secondly, the incapacity must be the direct cause of an applicant not being capable of satisfying the requirements of the section. The policy provides as follows:
The applicant must have a permanent or enduring incapacity at the time of application. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.
…
When assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression. These are factors that need to be addressed specifically in the evidence provided by the applicant.
…
The incapacity must be the direct cause of the applicant not being capable of:
· understanding the nature of the application; or
· demonstrating a basic knowledge of English; or
· demonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).
Section 3.4 of CPI2 also provides guidance under the various headings noted below. Under the heading ‘Mental incapacity’ CPI2 provides:
An applicant may be found to lack capacity in some areas of their life and not in others. It is necessary to establish whether the applicant’s reported incapacity is of a nature that the applicant cannot meet the requirements set out in para 21(3)(d) of the Act.
For example, it may be that the specialist has found that the incapacity is limited to other aspects of the applicant’s life rather than those related to the knowledge requirements for citizenship.
…
To ensure the integrity and consistency of decision-making, it is stated that applicants claiming permanent or enduring mental incapacity should generally be required to provide evidence from one of the following:
·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 for Psychological Medicine (ASPM) (note – the ASPM was the Australian College of Psychological Medicine, which had a fellowship program; the ASPM may not have an equivalent program); 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.
Under the heading “Evidence of mental incapacity” CPI2 enumerates 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. Among this list of information is the following:
·information on how long the specialist has been treating the applicant
·whether the applicant received treatment from any other specialist
·when did the claimed incapacity commence
·how many sessions has the applicant attended with the specialist
·does the applicant attend consultations regularly
·is the applicant currently being treated under a treatment plan: if not, why not; and
·results of any cognitive or clinical testing that has been undertaken.
This section of CPI2 also specifies that reports should articulate a clear basis for the practitioner’s 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 paragraph 21(3)(d) of the Act.
These collective requirements in CPI2 set a high evidentiary threshold to be met by an applicant to demonstrate they have a ‘permanent or enduring physical or mental incapacity’ to exempt them from completion of the citizenship test.
APPLICANT’S EVIDENCE
Background and family
In his oral evidence, the Applicant confirmed that he grew up in Iran and had a ‘normal childhood’. He speaks both Arabic and Farsi but cannot read or write in either language.[11] He did not attend any formal schooling in Iran. He started working in a bakery when he was eight or nine years old. From the age of 15 years, he worked as a baker and, during the five years prior to him coming to Australia, he successfully ran his own bakery business. He bought the materials, engaged in transactions, baked bread, and earned enough money for his family.[12]
[11] Transcript, 26 November 2020, 7.
[12] Transcript, 26 November 2020, 7-9.
The Applicant’s family were part of a minority Arabic group within Iran and were repeatedly discriminated against if they participated in group marches protesting against government policies.[13] The Applicant fled Iraq leaving behind his wife and children with a plan for them to follow him. He travelled to Australia by boat via Jakarta and arrived in Australia in August 2011.[14] He was granted a protection visa in August 2012 and subsequently applied for visas for his wife, son and two daughters, who joined him here at the end of 2014. He and his wife separated in June 2015 and they later divorced.[15] The Applicant has not had contact with his children for more than a year as his wife will not allow him to see them.[16]
[13] O’Neill Report, 2.
[14] Ibid.
[15] Transcript, 30 October 2019, 16.
[16] Transcript, 30 October 2019, 19.
Daily living and income
For the past five years the Applicant has lived alone in rented accommodation. He is currently in receipt of a disability support pension (DSP).[17] Prior to him being approved for DSP he was in receipt of Newstart Allowance and he did look for jobs as he was required to do by Centrelink. He worked as a cleaner in the construction industry for about a year, but he had to cease this work following surgery.[18] The other jobs for which he applied were as a shop assistant.[19]
[17] Transcript, 26 November 2020, 11.
[18] Transcript, 26 November 2020, 20-21.
[19] Transcript, 26 November 2020, 20.
The Applicant told the Tribunal that he spends most of his time at home watching television. He does not leave his home very often other than for necessities.[20] His social network is very limited. He can take public transport and use an Opal card, but he needs to get directions because he cannot read maps or signs. He can manage his household, including doing the cleaning, cooking and shopping for groceries.[21] He manages his own finances, including buying groceries, using an ATM, paying rent to his landlord and topping up his Opal card and pre-paid mobile phone.[22] He is able to shower and dress himself and attend to his daily care.[23]
[20] Transcript, 26 November 2020, 13.
[21] Ibid.
[22] Transcript, 26 November 2020, 15.
[23] Transcript, 27 November 2020, 75.
Medical conditions and treatment
The Applicant confirmed that he first started seeing his general practitioner, Dr Kifah Al Shadidi in August 2012. He agreed that he saw him at this time for a mental health plan. He was not prescribed any medication nor was he referred to a psychologist.[24] He saw Dr Al Shadidi again in October 2012.[25] On this occasion Dr Al Shadidi referred the Applicant to a psychiatrist, Dr Mohammad Allam, to help him with his application for a disability support pension.[26] In November 2012, Dr Al Shadidi recorded that the Applicant had seen Dr Allam.[27] The Applicant told the Tribunal that he does not remember seeing Dr Allam.[28]
[24] Transcript, 26 November 2020, 22.
[25] T9, 418.
[26] T9, 166.
[27] T9, 418.
[28] Transcript, 26 November 2020, 24.
The Applicant saw Dr Al Shadidi again in relation to mental health issues in September 2013. Dr Al Shadidi diagnosed him with depression and adjustment disorder and prepared a mental health plan.[29] He provided a medical certificate for the Applicant and recorded that his condition was ‘temporary’ and that his symptoms were ‘likely to show considerable improvement within two years.’[30]
[29] T9, 169.
[30] T9, 172.
The Applicant was referred by Dr Al Shadidi to Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician, and he saw him two weeks later. Dr Mohammad provided the Applicant with counselling.[31]
[31] Transcript, 26 November 2020, 26.
The Applicant next saw Dr Al Shadidi in April 2014 as he was feeling down and not sleeping well. He was prescribed Avanza.[32] He returned to see Dr Al Shahidi in May 2014 as the Avanza was not helping him to sleep.[33]
[32] T9, 412.
[33] Transcript, 26 November 2020, 28.
The Applicant had further consultations with Dr Mohammad in April, May and August 2014.[34] The Applicant confirmed that he saw Dr Mohammad approximately nine times between September 2013 and January 2016.[35]
[34] Transcript, 26 November 2020, 27-28.
[35] Transcript, 26 November 2020, 32.
On 1 September 2014, Dr Al Shadidi wrote a letter of referral for the Applicant to see Dr Hecham Alhajali, psychiatrist.[36] The Applicant told the Tribunal he saw Dr Alhajali on one occasion.
[36] ST9, 190.
In December 2014, Dr Al Shadidi prepared a further mental health plan for the Applicant.[37] He reported that the Applicant had some issues with his mood effect, sleep, motivation and anxiety and recommended that he undertake cognitive behavioural therapy and interpersonal therapy. During 2015, the Applicant attended Dr Al Shadidi for further mental health plans and Centrelink certificates.
[37] ST9, 194.
In June 2015, Dr Al Shadidi recorded that the Applicant’s wife had left him and had taken the children.[38]
[38] ST9, 383.
The Applicant confirmed that he had two sessions with Ms Hanan Dover, psychologist, in 2016.[39] He agreed that he did not see Ms Dover during 2017 and the next time he had an appointment with her was in August 2018, after his application for citizenship was refused.[40] He saw her on four occasions in 2018 and three times in 2019. He told the Tribunal that his solicitor was pushing him towards seeing Ms Dover because he had lodged an appeal.[41]
[39] Transcript, 26 November 2020, 33-34.
[40] Transcript, 26 November 2020, 35.
[41] Transcript, 26 November 2020, 36.
The Applicant saw Dr Abu-Arab, psychologist, in August and November 2019.[42] In August 2020, he saw a psychiatrist, Dr Wael Wahaib Al Dori, who diagnosed the Applicant with Adjustment Disorder, and prescribed him medication and recommended he see a psychologist.[43] The Applicant told Dr Al Shadidi he did not wish to continue psychotherapy.[44]
[42] Transcript, 26 November 2020, 38.
[43] Transcript, 26 November 2020, 39-40.
[44] T9, 368.
English classes and citizenship application
The Applicant told the Tribunal that prior to applying for citizenship he had not undertaken any English language classes.[45] In 2019 he attended English classes in the afternoons from Monday to Friday for two or three months.[46] Once his DSP was approved, he was told he did not need to continue attending these classes and so he stopped going.[47]
[45] Transcript, 26 November 2020.
[46] Ibid.
[47] Transcript, 26 November 2020, 17.
The Applicant was asked why he wishes to become an Australian citizen. He told the Tribunal:
Like other people. To have citizenship and see myself as a citizen like other people living here, and to tell others that I have citizenship.[48]
[48] Transcript, 30 October 2019, 13.
The Applicant told the Tribunal that he understands that if he is granted citizenship he can obtain a passport, but that he is not thinking about travelling. He is aware that as an Australian citizen he will be able to vote, and that voting is both a privilege and a responsibility.[49]
[49] Ibid.
The Applicant confirmed that he has never attempted the citizenship test because he knows he cannot do it. Nor has he has not looked at any of the resources available in Arabic to assist applicants to learn about the test.[50] He agreed that if an Arabic speaker were to read out to him the information contained in the citizenship booklet, he would be able to understand it.[51]
MEDICAL EVIDENCE
[50] Transcript, 26 November 2020, 21-22.
[51] Ibid.
Dr Yaser Mohammad, Occupational Therapist and Mental Health Clinician
Dr Mohammad is an Occupational Therapist and Mental Health Clinician at Ware Street Medical and Dental Centre. He provided a report in relation to the Applicant dated 11 January 2016.[52]
[52] T5, 28.
In that report, Dr Mohammad stated that the Applicant is suffering from depression and he had been seeing the Applicant on a regular basis for ‘supportive counselling’. According to Dr Mohammad, the Applicant’s depressed mood had worsened over the last few months mainly due to ‘unresolved marital problems.’ He was suffering from a range of symptoms which made him ‘incapable of fulfilling many work-related duties.’ Dr Mohammad observed that ‘[the Applicant’s] current emotional state is greatly determined by his uncertainty about his life’s condition. It does appear likely that his condition would be responsive to a change of circumstances.’ The Applicant had been able to manage before the separation from his wife but in the past few months he ‘started to feel disabled and unable to do what he used to do.’ He noted that the Applicant is illiterate and that his English is ‘significantly limited.’ He requested that the Applicant be given the option of an interview rather than completing a written citizenship test.
Dr Mahmoud Abu-Arab, Clinical Psychologist
Dr Abu-Arab is a Clinical Psychologist and Fellow of the College of Clinical Psychologists, Fellow of the College of Health Psychologists and Fellow of the College of Counselling Psychologists.He provided a report in relation to the Applicant dated 25 November 2019.[53]
[53] T9, 304-306.
In that report, Dr Abu-Arab diagnosed the Applicant as suffering from Chronic Post-Traumatic Stress Disorder and Major Depressive Disorder. Although he did not conduct formal testing of the Applicant, he stated he was able to attest with confidence that the Applicant ‘functions at the level of mild intellectual disability.’[54] In his opinion, the Applicant’s condition ‘is permanent and long-lasting because it has been present for many years’ and he does not ‘expect significant improvement in his condition even with thorough and extensive training.’[55] The Applicant’s illiteracy in his native language (as well as in English) and non-attendance at school ‘caused irrevocable deficit to his intellectual ability’ and he does not ‘have the capacity to learn reading and writing in his native language and/or in English.’ He was satisfied that the Applicant ‘is not capable of demonstrating a basic knowledge of the English language.’[56]
[54] T9, 306.
[55] T9, Ibid.
[56] T9, Ibid.
During his oral evidence at the hearing, Dr Abu-Arab confirmed that he saw the Applicant on three occasions on 29 August, 19 November and 3 December 2019. He understands that the Applicant also saw the social worker at his medical centre on three occasions.[57]
[57] Transcript, 27 November 2020, 63-64.
In relation to the Applicant’s diagnosis, Dr Abu-Arab confirmed that the Applicant reported events of trauma in his home country, and anxiety and post-traumatic symptoms and depression, and he was satisfied the Applicant met the criteria for a diagnosis of PTSD.[58]
[58] Transcript, 27 November 2020, 65-67.
Dr Abu-Arab was asked whether formal cognitive testing should generally be conducted to adequately and fully assess a person’s cognitive function. He agreed that formal testing is better but said that in the Applicant’s case this would have been very difficult to undertake.
He can attest with confidence that the Applicant’s ‘cognitive ability is impaired’, and he is ‘functioning of a little of mild intellectual dysfunction disability.’ [59] He did not undertake formal testing of the Applicant because, as he said, it was unnecessary to do so and it would have been a waste of time and resources.[60] In cases such as the Applicant, he believes ‘a psychologist must use his or her own judgment and use some basic tools to solve the problem.’ [61]
[59] Transcript, 27 November 2020, 67.
[60] Transcript, 27 November 2020, 68.
[61] Transcript, 27 November 2020, 67.
Mr Thomas O’Neill, Clinical Psychologist
Mr O’Neill is a clinical psychologist and Fellow of the Australian Psychological Society, Member of the College of Clinical Psychologists and Member of the Australian Association for Cognitive and Behavioural Therapy.
Mr O’Neill saw the Applicant at the request of the Respondent on 26 February 2020 and 11 March 2020 and prepared a report dated 11 March 2020.[62] After taking a personal history from the Applicant and conducting a mental state examination, Mr O’Neill administered a range of formal psychological assessments. He found that it was possible that the Applicant has symptoms of a Persistent Depressive Disorder (mild) as a result of the breakdown of his marriage, separation from his children and not being granted Australian citizenship.[63] In his opinion, it appeared that the Applicant had not ‘received appropriate psychosocial, medication, or community-based interventions to treat him for this condition.’[64] He opined that, with appropriate intervention, recovery could occur within a three to six month period.
[62] Filed with the Tribunal on 17 March 2020.
[63] O’Neill Report, 8.
[64] Ibid.
Mr O’Neill noted a number of inconsistencies in the Applicant’s presentation and found evidence of exaggeration of cognitive and memory problems. In his view, the Applicant’s actual intellectual abilities are more superior than he reports. He observed inconsistencies on non-verbal tests of intelligence, with the Applicant scoring to a normal adult level on one test, borderline/low average on another, and with severe impairment on another. He concluded that the Applicant provided suboptimal efforts for cognitive and memory testing and this likely suggests exaggeration of feigning of memory impairment.[65]
[65] Ibid.
During his oral evidence at the hearing, Mr O’Neill was asked about the finding in his report that there was no evidence on his evaluation of the Applicant of Post-Traumatic Stress Disorder.[66] He said that the Applicant did not report to him experiences of trauma, but if he had done so he would have assessed these more closely and the impact they had on him.[67] He agreed that he cannot rule out the possibility that the Applicant has PTSD symptoms.[68]
[66] O’Neill Report, 7.
[67] Transcript, 27 November 2020, 90.
[68] Transcript, 27 November 2020, 91.
Mr O’Neill was questioned about how PTSD symptoms may impact on the Applicant’s ability to learn basic English. He stated that there is ‘no correlation between having PTSD and the capacity to learn, apart from that perhaps concentration and memory can definitely be impacted, but by more severe PTSD than is present.’ There is ‘no evidence historically that having PTSD symptoms interferes with learning capacity, unless it is very severe.’[69] Even in these cases, concentration can improve with appropriate interventions, including medication and psychological treatment.[70]
[69] Ibid.
[70] Transcript, 27 November 2020, 91-92.
Mr O’Neill confirmed his diagnosis of the Applicant as suffering from Persistent Depressive Disorder. He explained that this diagnosis captures the longer-term element of the Applicant’s reported depressive symptoms, particularly since the breakdown of his marriage and his inability to have access to his children. He said he did not agree with Dr Al Dori’s diagnosis of Adjustment Disorder as this would generally resolve in six months.[71] Mr O’Neill told the Tribunal that he found no evidence that the Applicant’s depressive disorder was impacting his capacity to learn English. Whereas concentration can be affected by persistent depression, it is ‘not to a level where it impairs the capacity to learn altogether.’[72]
[71] Transcript, 27 November 2020, 94.
[72] Ibid.
Mr O’Neill was asked how the Applicant’s illiteracy in his native languages impacts his cognitive ability or his mental capacity to learn basic English. He told the Tribunal that ‘[i]lliteracy doesn’t mean that there is no capacity to be able to learn.’[73] Individuals who are motivated to learn can do so. He has worked with individuals who ‘because of their determination and persistence were able to acquire functional literacy skills.’[74] In addition, he found there were inconsistencies in the Applicant’s cognitive testing in relation to his memory which indicated he was ‘providing suboptimal effort.’[75] In his opinion, the Applicant has ‘at least low average intelligence’ and such individuals ‘can learn with appropriate support even if they’ve got a longstanding history [of] illiteracy.’[76]
[73] Transcript, 27 November 2020, 95.
[74] Transcript, 27 November 2020, 95.
[75] Ibid.
[76] Ibid.
In support of his view that the Applicant has a ‘higher level of cognitive capacity’ than that reflected on the assessment, Mr O’Neill referred to the Applicant’s successful running of his own bakery business in Iran, his travel to Australia, and his capacity to live alone and to undertake daily activities. In his opinion, the Applicant ‘has close to normal cognitive capacities’ and ‘so there would be no reason to assume he would not have capacity to be able to learn language-based tasks that were accommodated to his level.’[77] The fact that a person has not learned to read does not mean they do not have the capacity to do so once they are provided with the opportunity and motivation to do so.[78]
[77] Transcript, 27 November 2020, 96.
[78] Ibid.
Mr O’Neill was asked about Dr Abu-Arab’s finding that the Applicant’s illiteracy had ‘caused irrevocable deficit to his intellectual capacity’ and that he does not ‘have the capacity to learn reading and writing in his native language and/or in English.’ He said that he absolutely does not agree with this finding.[79] The Applicant did not present with an intellectual disability and, if he did have such a disability, he would not have been able to provide the responses he did in the interview. Mr O’Neill also noted that Dr Abu-Arab did not do any form of cognitive testing of the Applicant, and to make a finding of mild intellectual disability without testing for it is ‘very substandard clinically.’[80] According to Mr O’Neill, in order to determine someone’s capacity to read and to learn it is necessary to do a series of cognitive and learning assessments and assessments of their ability to understand and process language.[81]
[79] Transcript, 27 November 2020, 96-97.
[80] Transcript, 27 November 2020, 97.
[81] Transcript, 27 November 2020, 96-97.
Ms Hanan Dover, Clinical and Forensic Psychologist
Ms Dover provided a report in relation to the Applicant dated 8 June 2016.[82] She diagnosed the Applicant as suffering from Chronic Post-traumatic Stress Disorder and Major Depression.
[82] T3, 14-15; T9, 231-232.
The Applicant reported that he had ‘witnessed and been exposed to multiple trauma experiences’ and ‘he is not literate in his native language of Arabic because he did not attend any formal schooling in Iran.’ Accordingly, in Ms Dover’s view, it will ‘be more difficult for [the Applicant] to learn to gain literacy skills to be able to study for the citizenship test.’
Further, as a result of his PTSD symptoms, ‘his cognitive ability has been affected where he also has difficulty remembering important dates and events.’
Ms Dover concluded that ‘given his extremely poor cognitive skills, significant mental health issues, and illiteracy in his native language’, the Applicant is ‘not capable of understanding the nature of the Australian citizenship application; not capable of demonstrating a basic knowledge of the English language; and ‘unable … to demonstrate the ability to understand the knowledge of Australia and of the responsibilities and privileges Australian citizenship.’
Ms Dover provided a further report in relation to the Applicant dated 10 August 2018.[83] In that report, she wrote that the Applicant ‘remains chronically symptomatic’ despite him having engaged in ‘mental health interventions by other mental health service providers.’ In her opinion, ‘[g]iven his extremely poor cognitive skills, significant mental health issues, and illiteracy in his native language’, he remained ‘not capable of understanding the nature of the Australian citizenship application; not capable of demonstrating a basic knowledge of the English language; and ‘unable … to demonstrate the ability to understand the knowledge of Australia and of the responsibilities and privileges Australian citizenship.’ She recommended he be exempt from the citizenship test for these reasons.
[83] T9, 273-275.
During her oral evidence at the hearing, Ms Dover confirmed that the Applicant saw her on ten occasions on the following dates: 1 and 8 June 2016, 21 and 27 August, 3 and 10 September 2018, and 14 January, 25 February, 29 April and 20 August 2019.[84] The duration of each appointment was between 60 and 90 minutes.[85] She confirmed that she prepared both her written reports based on her consultations with the Applicant in 2016.[86]
[84] Transcript, 27 November 2020, 49.
[85] Transcript, 27 November 2020, 50.
[86] Transcript, 27 November 2020, 55.
In relation to her diagnosis of the Applicant, Ms Dover stated that she believes the Applicant meets the criteria for PTSD based on the history he gave her of being part of a persecuted minority in Iran and being exposed and witness to trauma related experiences.[87] She agreed that the degree to which PTSD impacts on a person’s day to day functioning varies. If their condition is severe, they will have difficulty carrying out day-to-day activities and attending to their self-care. If the PTSD is mild or moderate, they will not have any problems with these daily activities. The impact of mild PTSD and/or depressive disorders on a person’s ability to learn new information is ‘probably minimal’. However, if the PTSD is clinically severe, the person will ‘experience difficulty learning new concepts because one of the symptoms of clinical depression is … being unable to concentrate or focus.’ For these individuals ‘to sustain attention whilst learning is going to be very difficult and this is going to be exceptionally more difficult if there’s also PTSD, because trauma has a lot more brain related problems in terms of learning.’[88]
[87] Transcript, 27 November 2020, 56-57.
[88] Transcript, 27 November 2020, 53.
Ms Dover agreed that it is possible for individuals with PTSD and/or depressive symptoms to improve if they receive consistent and ongoing treatment to manage their symptoms. If the patient’s symptoms are intense and severe, she recommends weekly interventions. She told the Tribunal that she recommended the Applicant attend weekly sessions, but he said he could not afford the cost of these. As a result, ‘his attendance was quite ad hoc’ and she ‘would remind him that in order for treatment to occur and be effective, it needs to be regular.’[89] Ms Dover told the Tribunal that Medicare currently pays for 20 psychological sessions per year for patients with a GP mental health plan and this was previously 10 per year. She does not bulk-bill patients but there are other psychologists who do so, including in her clinic.[90]
[89] Transcript, 27 November 2020, 51.
[90] Transcript, 27 November 2020, 52.
In her opinion, if the Applicant was to continue regular therapy for a period of 12 months his psychological symptoms could be improved to a manageable level.[91]
[91] Transcript, 27 November 2020, 79.
Ms Dover told the Tribunal that she wanted to undertake psychometric testing of the Applicant, but that she was unable to do so as the Applicant could not afford to pay for these tests. In 2016, her charge to patients to administer these tests was $1500. She told the Tribunal that this testing is very important as it is one of the tools used by psychologists to make an objective assessment of a patient’s condition.[92] However, as she was unable to do this testing on the Applicant, she relied on his clinical presentation and his inability to recall, remember and problem solve in reaching her conclusion that he was not a suitable candidate to be able to pass or understand the requirements of the citizenship test.[93]
[92] Transcript, 27 November 2020, 78.
[93] Transcript, 27 November 2020, 83.
Ms Dover was told about the Applicant’s evidence to the Tribunal and given time to review Mr O’Neill’s report dated 11 March 2020.
She said that given the current information about the Applicant’s day-to-day functioning and the extensive psychometric assessments undertaken by Mr O’Neill, in her clinical opinion the Applicant does not have a ‘permanent and enduring disability’.[94] Although he may have ongoing symptoms of depression and trauma, he does not have an ‘impairment in function’.[95] His adaptive functioning seems to be ‘very normal and very good’ although he cannot read English.[96]
[94] Transcript, 27 November 2020, 76, 79, 83.
[95] Transcript, 27 November 2020, 76.
[96] Transcript, 27 November 2020, 76.
She told the Tribunal that the memory malingering test undertaken by Mr O’Neill is very important in making a psychological assessment of a patient. The test indicated that the Applicant’s memory is good. In her view, although the Applicant will have difficulty learning English, if he were prompted and taught the content of the citizenship test, he may be able to learn it for the purpose of the assessment. She is aware of Arabic community organisations that help individuals learn the contents of the test and who could assist the Applicant to prepare for it.[97]
[97] Transcript, 27 November 2020, 77.
CONSIDERATION AND REASONS
The Tribunal is required to determine whether or not the Applicant qualifies under paragraph 21(3)(d) of the Act to be granted an exemption from having to undertake the Citizenship Test.
As Senior Member Puplick observed in Butrus and Minister for Immigration and Border Protection [2019] AATA 239 at [61], in order for the requirements of paragraph 21(3)(d) to be satisfied, there must be established a ‘clear causal connection’ between a permanent or enduring physical or mental incapacity at the time of the citizenship application and one of the three requirements in paragraphs 21(2)(d), (e) and (f).
For the Applicant to be exempt from the citizenship test, the Tribunal must be satisfied that, at the date of his application for citizenship, the Applicant met the following requirements:
a)He had a permanent or enduring physical or mental incapacity; and
b)There was a direct causal link between the incapacity and his:
(i)lack of understanding of the nature of the citizenship application; or
(ii)lack of basic knowledge of the English language; or
(iii)lack of adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
(a) Did the Applicant have a permanent or enduring physical or mental incapacity at the date of his citizenship application?
The Applicant claims he is illiterate in his native languages and suffers from PTSD and a depressive disorder. The Tribunal has had regard to the evidence before it, particularly the medical evidence, and makes the following findings in relation to whether at the date of his citizenship application the Applicant had a permanent or enduring physical or mental incapacity.
The three psychologists who provided evidence to the Tribunal, Mr O’Neill, Ms Dover and Dr Abu-Arab, meet the qualifications and expertise requirements specified by CPI2 and, accordingly, their opinions have been afforded appropriate weight in the Tribunal’s findings.
Dr Yaser Mohammed, an occupational and mental health clinician, does not have the requisite qualifications and expertise specified in CPI2, and his opinions have therefore been given limited weight by the Tribunal.
Inability to read and write
CPI2 states that ‘A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).’ Having regard to this policy guidance, and the medical evidence before it, the Tribunal is not satisfied that the Applicant’s illiteracy is a permanent or enduring mental incapacity that meets the requirements of paragraph 21(3)(d).
The medical experts agree that the Applicant is illiterate in his native languages of Arabic and Farsi. However, they differ in their views as to how the Applicant’s illiteracy impacts on his cognitive ability or his mental capacity to learn basic English.
Mr O’Neill told the Tribunal that illiteracy does not affect a person’s capacity to learn, and that with determination and persistence an individual can acquire functional literacy skills.
Ms Dover stated that although the Applicant will have difficulty learning English, if he were given appropriate assistance and taught the content of the test, he may be able to learn it for the purposes of the assessment. Both of these experts agreed that the Applicant’s illiteracy is not a consequence of an intellectual disability, that his cognitive functioning is normal, and his inability to read and write is because he did not attend school and have the opportunity to learn these skills.
Dr Abu-Arab however expressed the view that the Applicant’s illiteracy ‘caused irrevocable deficit to his intellectual ability’ such that he is incapable of learning to read or write in his native languages or English. Dr Abu-Arab reached this conclusion in relation to the Applicant’s cognitive functioning without undertaking any psychometric testing of him.
Mr O’Neill formed his views about the Applicant’s level of cognitive function after interviewing the Applicant and completing several different psychometric tests on him. He told the Tribunal that to make findings in relation to a person’s mental capacity without undertaking such tests is clinically substandard.
Ms Dover agreed that cognitive testing is an important tool in making a reliable objective psychological assessment of a patient.
The Tribunal finds that the Applicant’s illiteracy does not impact on his capacity to learn such that it can be said that it amounts to an incapacity of the kind that meets the requirements of paragraph 21(3)(d) of the Act.
In making this finding it has given weight to the opinions of Mr O’Neill and Ms Dover as to the impact generally of illiteracy on an individual’s capacity to learn and its affect specifically on the Applicant’s ability to learn English and understand the contents of the test.
The Tribunal prefers the opinion of Mr O’Neill and Ms Dover in relation to the level of the Applicant’s cognitive function over that of Dr Abu-Arab for the reason that Mr O’Neill’s findings, which Ms Dover endorsed, are evidence-based and rely on the results of his psychometric testing of the Applicant.
For the above reasons, the Tribunal finds that the Applicant’s illiteracy in his native languages does not amount to an incapacity that meets the requirements of paragraph 21(3)(d) of the Act.
Post-traumatic Stress Disorder and Depressive Disorder
Both Dr Abu-Arab and Ms Dover diagnosed the Applicant as suffering from PTSD.
In his written report, Mr O’Neill did not make a diagnosis of PTSD however in his oral evidence at the hearing he agreed that had the Applicant reported to him his experiences in Iran and the trauma it caused, he would have assessed the impact of these on the Applicant. He accepted that he could not rule out that the Applicant suffers from PTSD. The medical evidence before the Tribunal supports a finding that the Applicant suffered from PTSD at the date of his citizenship application, and that this condition was a mental incapacity for the purposes of paragraph 21(3)(d) of the Act.
Dr Abu-Arab and Ms Dover both diagnosed the Applicant as suffering from Major Depressive Disorder / Depression.
Mr O’Neill’s diagnosis of the Applicant’s condition is Persistent Depressive Disorder. The experts agreed that the long-term nature of the Applicant’s depression is such that the diagnosis of Adjustment Disorder made by Dr Al Dori is not appropriate in the Applicant’s circumstances.
The medical evidence before the Tribunal supports a finding that the Applicant suffered from a long-term depressive disorder at the date of his citizenship application, and that this condition was a mental incapacity for the purposes of paragraph 21(3)(d).
To satisfy the requirements of paragraph 21(3)(d) the mental incapacity suffered by the Applicant must have been ‘permanent or enduring’ at the date of his citizenship application.
CPI2 provides that ‘An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.’It further provides that in assessing whether a person suffering from long-term depression has an enduring incapacity, relevant considerations are whether the depression can be treated and the extent to which the person is incapacitated by the depression.
The evidence before the Tribunal is that the Applicant first sought treatment for his mental health conditions from his general practitioner, Dr Al Shadidi, in August 2012. He was referred to a psychiatrist, Dr Allam, in October 2012, but was not prescribed any medication. The Applicant was diagnosed with depression and adjustment disorder by Dr Al Shadidi in September 2013 and was referred to Dr Yaser Mohammed who provided him with on-going counselling until January 2016. Dr Al Shadidi prescribed anti-depressants for the Applicant in mid-2014, and in September 2014 he was referred to another psychiatrist, Dr Alhajali who he saw on one occasion. Dr Al Shadidi prepared a mental health plan for the Applicant in December 2014 and recommended he continue cognitive behavioural therapy and interpersonal therapy. In 2015, Dr Al Shadidi provided the Applicant with further mental health plans and Centrelink certificates.
The evidence demonstrates that at the time of the Applicant’s citizenship application in April 2016 he was not seeing a psychiatrist or a psychologist for ongoing treatment nor was he taking any prescribed medication for his mental health conditions.
The Applicant received counselling from Dr Mohammad and saw him on nine occasions between the period from September 2013 to January 2016. Dr Mohammad is an occupational therapist mental health clinician but is not a registered psychiatrist or psychologist.
The Applicant did not commence seeing Ms Dover, a qualified psychologist, until June 2016. His consultations with Ms Dover were irregular despite her recommending he attend weekly sessions with her. He had not seen Ms Dover for more than two years when he recommenced treatment with her in August 2018, after his citizenship application had been refused. The Applicant saw Dr Abu-Arab, psychologist, on two occasions in 2019 and Dr Al Dori, psychiatrist, only once in August 2020.
According to the medical experts, the Applicant’s psychological conditions are not, and were not at the time of his citizenship application, permanent or enduring.
Mr O’Neill’s evidence is that the Applicant had not ‘received appropriate psychosocial medication or community-based interventions’ to treat his persistent depressive disorder. In his view, with appropriate intervention, the Applicant could recover within three to six months.
Ms Dover agreed that it is possible for individuals with PTSD and/or depressive symptoms to improve if they receive consistent and ongoing psychological treatment. Whereas she had recommended to the Applicant in 2016 that he attend weekly sessions if his treatment was to be effective, he did not do so, and his attendances with her were ‘ad hoc’. In her view, with such regular therapy for a period of 12 months, the Applicant’s psychological symptoms could be improved to a manageable level.
The evidence of Mr O’Neill and Ms Dover support a finding that the Applicant’s psychological conditions were not ‘permanent or enduring’ at the date of his citizenship application in 2016. The symptoms of both his PTSD and depressive disorder had the potential to have improved significantly had the Applicant sought and committed to regular ongoing psychological treatment and other appropriate interventions.
Based on the medical evidence before it and for the above reasons, the Tribunal is not satisfied that the mental incapacities suffered by the Applicant were ‘permanent or enduring’ at the date of his citizenship application.
Having found that the Applicant did not have a permanent or enduring physical or mental incapacity at the date of his citizenship application, it is unnecessary for the Tribunal to consider whether there was a relevant causal link between such a permanent or enduring physical or mental incapacity and him not being capable of understanding the nature of the application; or demonstrating a basic knowledge of English; or demonstrating that he has an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship. However, the Tribunal has nevertheless considered the second limb of the test and finds, for the following reasons, that the evidence does not support a finding that there was the required causal link.
(b) Was there a direct causal link between the Applicant’s permanent or enduring incapacity and his ability to meet the requirements of the Act?
The Applicant’s evidence is that he understands the nature of a citizenship application. He told the Tribunal that he knows that as a citizen he will be able to apply for an Australian passport and will be able to vote, which he understands is both a privilege and a responsibility.
The Applicant also gave evidence that if someone were to read the contents of the citizenship information booklet to him in Arabic, he would be able to understand the subject matter and gain knowledge of Australia and the rights and privileges of Australian citizenship. The Applicant’s central claim is that he is incapable of demonstrating basic knowledge of the English language.
Even if the Applicant’s PTSD and depressive disorders were permanent and enduring, the medical evidence does not support a finding that there is a causal link between these psychological conditions and his inability to learn basic English.
Mr O’Neill’s evidence was that there is no recognised correlation between PTSD and depressive symptoms and an individual’s capacity to learn, other than in severe cases when concentration and memory may be impacted. The available evidence relating to the Applicant, including the results of the psychometric testing, indicates that his memory and concentration levels are not impacted by his psychological conditions to the extent that his capacity to learn basic English is impaired.
Ms Dover agreed that whereas the Applicant may have ongoing symptoms of depression and trauma, he does not have an ‘impairment in function’ that would affect his capacity to learn basic English. If he were provided with appropriate support and assistance, he could be taught and learn English for the purpose of the citizenship test.
Accordingly, even if the Applicant’s mental conditions were permanent and enduring at the date of his citizenship application, the Tribunal is not satisfied that there was the required causal link between the conditions and his lack of capacity to demonstrate a basic knowledge of English.
CONCLUSION
On the basis of the evidence before it, the Tribunal is not satisfied the Applicant had a permanent or enduring mental incapacity at the date of his citizenship application, and therefore he does not meet the requirements of paragraph 21(3)(d) of the Act entitling him to an exemption from the Citizenship Test.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
..........................[sgd].................................
Associate
Dated: 4 March 2021
Dates of hearing: 30 October 2019, 26 & 27 November 2020, 7 December 2020 Applicant: Self-represented Solicitor for the Respondent: Ms Donald, Sparke Helmore Lawyers
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