Hamid and Minister for Home Affairs (Citizenship)
[2019] AATA 382
•13 March 2019
Hamid and Minister for Home Affairs (Citizenship) [2019] AATA 382 (13 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3062
Re:Wafaa Jamil Hamid
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:13 March 2019
Place:Sydney
The decision under review is affirmed.
..............................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship test exemption – whether the applicant suffered from a permanent or enduring physical or mental incapacity – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth)
CASES
Atef Khodeir and Minister for Immigration and Border Protection [2015] AATA 499
Butrus v Minister for Immigration and Border Protection [2019] AATA 239
Farhan v Minister for Immigration and Citizenship [2010] AATA 36
Rahman v Minister for Immigration and Citizenship [2010] AATA 930
Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012
REASONS FOR DECISION
Chris Puplick AM, Senior Member
13 March 2019
Ms Wafaa Jamil Muhamad (the Applicant) appeals to this Tribunal against a decision made by a delegate of the Minister for Home Affairs to refuse her application for citizenship by conferral.
Citizenship by conferral (that is where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Australian Citizenship Act 2007 (the Act). One of those requirements is that the Applicant sits for and passes the citizenship test. However, if an applicant has “an enduring physical or mental incapacity” which is of such a nature that they cannot undertake the citizenship test, then they may be granted citizenship without so doing.
It is on this basis that the Applicant comes before the Tribunal seeking to have the Minister’s decision set aside.
THE APPLICANT’S CIRCUMSTANCES
The Applicant was born in Kirkuk, Iraq in 1973 and in 1993 she left Iraq and settled in Germany where she remained for 14 years. Although the evidence is not entirely clear it then appears that she was resident in Turkey for some little time before she arrived in Australia on 23 January 2008 on a German passport. Her native tongue is Turkish.
She is currently the holder of a subclass BO- 116 (Carer) permanent visa. In this capacity she provides care for her aged father and, at an earlier stage of her life in Australia, also provided some care for her mother. The father lives in his own home and the Applicant provides care for him there. At present her mother is cared for by other members of her family in Australia. She has three siblings in Australia all of whom are citizens.
The Applicant has experienced an unhappy marriage resulting in her husband leaving her and taking another wife (apparently in Germany). She obtained a divorce approximately 18 months ago. She has care of her three children: an adult daughter who is studying at University (and apparently lives independently), a son born in 2001 and a daughter born in 2009, both of whom live at home and are attending school.
It appears that since her arrival in Australia she has made only one trip abroad, that being to Turkey sometime in 2018.
Details of her medical history will be discussed below.
DETAILS OF APPLICATION
The Applicant lodged an application for citizenship by conferral on 17 November 2016 and this was refused by a delegate of the Minister’s on 24 May 2018. The Applicant then appealed that decision to this Tribunal on 4 June 2018. The matter was heard in the Tribunal on 1 March 2019 with the Applicant appearing by telephone (being at home to care for a sick child) with the assistance of a Turkish language interpreter.
THE LEGISLATIVE FRAMEWORK
Claims such as this are dealt with under the provisions of s 21 of the Act which is set out below.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 21
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.
(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.
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.
In short, the system is such that:
(a)A person may make an application for citizenship and, under s 24(1) of the Act the Minister must make a decision to grant or not grant that application. The Minister is obliged to make a decision and has no power to defer such decision-making.[1]
(b)In order for an application to be granted, an applicant must satisfy all of the 8 requirements that are listed in s 21(2);
(c)Subsections (d), (e) and (f) of s 21(2) can only be satisfied if the applicant understands the nature of their application, possesses a basic knowledge of the English language and has an adequate knowledge of the responsibilities and privileges of citizenship.
(d)This is established by the applicant having to undertake and pass the citizenship test established by s 21 (2A). Ministerial Determination (Instrument) 11/088 provides that: “There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless a person has commenced a Course-Based Test.”[2]
(e)However, if the Minister is satisfied that an applicant cannot meet the requirements of ss 21(2)(d),(e) or (f) due to having “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, then the Minister may proceed to grant the citizenship application.
[1] The Australian Citizenship Instructions state: 39.2 Deferral of decision not possible: “Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The new Act does not allow for the deferral of decisions.”
[2] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012.
More generally, the provisions of this section and its operations were outlined by Senior Member Taylor SC in Khodeir:
[2] Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007…… I paraphrase those three matters as
(a) AWARENESS: — understanding the nature of the citizenship application:
(b) ENGLISH: — possessing a basic knowledge of the English language;
(c) KNOWLEDGE: — having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship.
[3] As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in ACA 2007 s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English“ and “knowledge”).[3]
[3] Atef Khodeir and Minister for Immigration and Border Protection, [2015] AATA 499.
This Tribunal has set out the legislative history of section 21(3)(d) in its determination in Butrus[4] and this need not be repeated here, other than to indicate that the current form of the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 and this in turn led to the adoption of policy guidelines indicating how decision-makers should approach claims made under this section.
[4] Butrus v Minister for Immigration and Border Protection [2019] AATA 239 at [25]-[30].
They are found in the Australian Citizenship Policy which states:
“For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
……….
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
……………
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
medical practitioner who is a fellow of the Australian Society of Psychological Medicine or
psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
……………
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.” [5]
[5] Australian Citizenship Policy at [71]-[74].
Thus, in order to meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizen application, acquiring basic English language competency or being able to understand the responsibilities and privileges of citizenship.
In order to demonstrate this, the applicant must, in line with the Citizenship Policy, produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
If those conditions are satisfied, then “s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test.”[6]
[6] Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
THE CITIZENSHIP TEST
This application is significantly different from those which come before the Tribunal where applicants have actually sat for, and failed, the citizenship test and then apply to the Tribunal as per the provisions of s 21(3)(d) to have the test requirement waived on the grounds of their “enduring physical or mental incapacity”.
In this instance the Applicant claims that her “enduring physical or mental incapacity” is such that she should not be required to undertake the citizenship test at first instance. This claim was made in her original citizenship application dated 9 September 2016.[7]
[7] Section 37 Tribunal Documents at [24].
In order to assess this claim it is necessary to outline the provisions and processes of the 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)), that the Minister make a determination about what constitutes passing the test (s 23A(2)) and the time limits within which the test must be completed (s 23A(5A)).
Passing the citizenship test is an integral requirement for the consideration of grant of citizenship. The test is designed to establish that an applicant both understands what citizenship is all about and what their application actually means. It also establishes a basic requirement in regard to competency in the English language.
There are actually several versions of the test. The Standard Test is simply computer-based. The Assisted Test is available for persons with low literacy skills and is conducted on the computer but with the assistance of a test administrator. The Course-Based Test is used for those who have failed the Standard or Assisted Test on three or more occasions and involves a detailed tuition programme.[8]
[8] The Course-Based Test is no longer offered by the Department and has not been available since mid-2017.
The Instrument to which reference has already been made provides that a score of 75% is required and this minimum threshold cannot be varied.[9] This arrangement has been in place since the Instrument was made in March 2012.
[9] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [10], [26], [43)(iii)].
THE MEDICAL EVIDENCE
In order to take advantage of the provisions of s 21(3)(d) of the Act, an applicant needs to provide the sort of evidence, from the designated sources, as is outlined above in the extract from the Citizenship Policy.
The Applicant has provided a series of letters from Dr Mukesh Kumar[10] who is a specialist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He is thus well qualified to provide a diagnosis on relation to the Applicant, as is conceded by the Minister.[11]
[10] Section 37 Tribunal Documents at [41]-[46]. Reports are dated 15 January 2016; 26 February 2016; 6 May 2016 and 22 July 2016.
[11] Respondent’s Statement of Facts, Issues and Contentions at [18].
Dr Kumar makes a number of findings in relation to the Applicant but, in each instance, the Minister challenges their relevance or application to this particular claim for exemption from the citizenship test. Specifically:
1.Dr Kumar reported that the Applicant says that she has been suffering from depressive symptoms for some 12 or 13 years.[12] In her own evidence to the Tribunal, the Applicant relates this condition back to her time of living in Germany. The Minister contends that this should be taken only as self-reporting by the Applicant and that Dr Kumar has made no formal finding or diagnosis of such a condition.[13] The Tribunal notes however, that Dr Kumar states “Opinion: Adjustment Disorder with depressed mood.” The Tribunal fails to see the difference between a “finding” and an “opinion”, especially as Dr Kumar’s report goes on to suggest following steps to be taken and medications to be prescribed as a result of his “opinion”.
2.Dr Kumar states that, “there is a history suggestive of post-natal depression with the birth of (the applicant’s) second child.”[14] In this instance the Minister argues that there is no time framework related to this finding, nor to the persistence or otherwise of that condition up until, at least, the time of the citizenship application being lodged. The information about the treatment and management of this condition is also not complete in terms of its commencement, change, discontinuation or outcome.[15] In this respect the Tribunal agrees with the challenge mounted by the Minister.
3.In a final letter, Dr Kumar recommends a change in treatment (which the Tribunal suggests is further evidence that he made a “finding” in relation to the condition being treated) and a new course of medication.[16] It is to be presumed that this was intended to bring about a more favourable outcome for the Applicant and in this respect the Tribunal again agrees with the Minister that this is suggestive of a condition which is susceptible to treatment and where there is some prospect of the condition improving. In other words the condition is not regarded as being “enduring”. Conditions which are temporary are excluded from consideration under this section of the Act as is made clear in the Citizenship Policy.
[12] Section 37 Tribunal Documents at [41]. Report dated 15 January 2016.
[13] Respondent’s Statement of Facts, Issues and Contentions at [20].
[14] Section 37 Tribunal Documents at [41]. Report dated 15 January 2016.
[15] Respondent’s Statement of Facts, Issues and Contentions at [20].
[16] Section 37 Tribunal Documents at [46]. Report dated 22 July 2016.
CONSIDERATIONS
Careful reading of all of Dr Kumar’s reports however, fails to disclose a direct connection between any of the symptoms or manifestations of impairment suffered by the Applicant which would preclude her from either learning English or coming to an understanding of the nature of her citizenship application[17] and the responsibilities and privileges of Australian citizenship.[18]
[17] Farhan v Minister for Immigration and Citizenship [2010] AATA 36 at [11].
[18] Rahman v Minister for Immigration and Citizenship [2010] AATA 930 at [15].
Indeed, in her oral evidence the Applicant indicated a number of things that the Tribunal finds essentially undermining of her contentions. These include:
1.During her time living in Germany the applicant was able to learn, via her children, at the very least, basic German and managed to apply for and subsequently be granted a German passport;
2.She has two children living at home who attend school in Australia and from whom she would clearly be able to learn a degree of English, let alone being able to attend English language classes during the time that her children are in school (although noting her caring responsibilities for her father);
3.During the hearing the Applicant evidenced a degree of comprehension of the English language., on a number of occasions taking issue with the interpreter as to the interpretation of her comments;
4.She asserted several times in relation to questions posed by the Minister’s representative, “I am not stupid” and the Tribunal certainly agrees with that. Her answers to questions and issues raised was indicative of a person of intelligence and understanding;
5.She has a bank account which she uses, and while she suggested that her capacity to manage financial matters was related primarily to her ability to read and understand numbers, rather than any accompanying written material, this is itself indicative of an ability to learn and retain information;
6.Her answers revealed a reasonable understanding of the privileges of citizenship in that she was able to respond effectively to questions about why she wanted citizenship and the advantages of having an Australian passport.
The Applicant has not sat for the citizenship test at any stage and there is no reason to believe that with the assistance of her children she would not be able to read material relevant to the test (either in English or in the Turkish language version) nor that she would be unable to address the undertaking of the test in its Assisted form with the aid of a test administrator. She does not appear to have any difficulty in remembering details or being able to provide caring services for her father.
There thus exist significant doubts as to whether the Applicant’s condition, subject to remedial medication, is in essence an “enduring” condition, and to that extent that it may be, whether or not it is directly causative of any inability on the part of the Applicant to sit the citizenship test with the assistance which is available to applicants in circumstances such as hers.
DECISION
The decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 13 March 2019
Date(s) of hearing: 1 March 2019 Applicant: By phone Solicitors for the Respondent: Mr Andrew Clarke, Minter Ellison
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