Harbi and Minister for Immigration and Border Protection, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 1347

Harbi and Minister for Immigration and Border Protection, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1347 (18 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/0155

Re:Rita Harbi

APPLICANT

AndMinister for Immigration and Border Protection, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:18 May 2020

Place:Sydney

The Tribunal affirms the reviewable decision.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – rejection – citizenship test – eligibility requirements for citizenship – whether applicant has permanent or enduring physical or mental incapacity – consideration of medical evidence – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Administrative Appeals Tribunal Act (Cth) s 37

CASES

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

Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239

Toma and Minister for Home Affairs (Citizenship) [2019] AATA 505

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

18 May 2020

INTRODUCTION

1. On 2 July 2013, the applicant, a citizen of Iraq, arrived in Australia on a Refugee (Subclass XB-200) visa. On 21 November 2017, she applied for Australian citizenship by conferral under s 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). On 21 November 2018, a delegate of the Minister (‘the Citizenship Officer’) refused her application (‘the reviewable decision’). On 10 January 2019, the applicant applied to the Tribunal for review of the Citizenship Officer’s decision.

   THE LEGISLATIVE FRAMEWORK

2. Section 21(2) of the Act sets out the general eligibility requirements for citizenship including: that the applicant understands the nature of a citizenship application; possesses a basic knowledge of the English language; and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.  For present purposes, these are called the ‘knowledge requirements’.

3. By virtue of s 21(2A), these requirements are taken to be satisfied if and only if the Minister is satisfied that the applicant, being eligible to do so, has successfully completed a prescribed test (‘the Citizenship Test’) within the approved time.

4. A person who suffers from a permanent or enduring physical or mental incapacity may in some extreme cases qualify for Australian citizenship without being required to pass the Citizenship Test. This is a major concession to those suffering from disability, but there are important limitations, the most important being the need to link the ‘permanent or enduring physical or mental incapacity’ with the incapacity to acquire or demonstrate one or more of the specific knowledge requirements referred to in s 21(3).

5. Section 21(3)(d) provides that a person is eligible to become an Australian citizen if the Minister is satisfied, along with other requirements, that the person:

   (d)  has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

   (i)  is not capable of understanding the nature of the application at that time; or

   (ii)  is not capable of demonstrating a basic knowledge of the English language at that time; or

   (iii)  is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; 

6. Two points should be noted about s 21(3)(d).  First, the word ‘or’, between subclauses (i), (ii) and (iii), indicates that the knowledge requirements are put in the alternative. They are not cumulative. A person may satisfy the requirements of the section if the Minister is satisfied that the person is not capable of satisfying any one of the knowledge requirements. It is not necessary for the person to be disabled in respect of each. Therefore, for example, a person may satisfy the section if they are, at the relevant time, by reason of the permanent or enduring physical or mental incapacity, not capable of demonstrating a basic knowledge of the English language; even if they are, at that time, capable of understanding the nature of the application, or the concept of citizenship.

7. Second, s 21(3)(d) is satisfied only when a person has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person is not capable of satisfying the knowledge requirements. This tends to suggest that a very high degree of mental or physical impairment is involved. Only then can the Citizenship Test can be dispensed with. One must therefore consider the nature and effect of the physical or mental impairment put forward as a basis for exempting a person from the test.

8. It is often the case that in giving evidence before the Tribunal the applicant demonstrates, perhaps unwittingly, that he or she has an understanding of one or more of the knowledge requirements. For example, applicants frequently indicate that they wish to acquire Australian citizenship so that they can travel freely abroad, often to visit family members they have not seen for years. A person who has at least that level of understanding will be hard pressed to demonstrate that they are incapable of understanding the responsibilities and privileges of Australian citizenship at that time, let alone that they are incapable of understanding the nature of the citizenship application.

   THE CITIZENSHIP POLICY

9. The Citizenship Policy (‘the Policy’) is intended to provide policy guidance to decision makers on the interpretation of and exercise of powers under the Act. Although a policy is not binding on the Tribunal unless specifically adopted by Parliament, it is accepted that a decision maker will generally apply departmental policy unless there are cogent reasons not to do so.[1]

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

10. Chapter 7 of the Policy deals with the application of subsection 21(3) of the Act.

    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.

11. In relation to the evidentiary requirements regarding persons with a permanent or enduring mental incapacity for the purpose of subsection 21(3), the Policy states:

    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.

12. The Policy adds that:

    It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

13. I approach the medical evidence mindful of the constraints imposed by, and taking into account, the Citizenship Policy in considering what weight, if any, is to be given to the evidence of particular witnesses.

    THE REVIEWABLE DECISION

14. The Citizenship Officer considered a number of medical reports, and for the most part, accepted the diagnoses contained therein. The Citizenship Officer stated:

    Whilst I acknowledge all the information provided, I am not satisfied that these are conclusive evidences (sic) that your medical condition is a permanent or enduring incapacity which means that you are not capable of understanding the nature of your citizenship application, not capable of demonstrating a basic knowledge of the English language or not capable of demonstrating an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship at [the] time of application.[2]

    [2] T-documents at T2, p 12.

15. I have collected the reports referred to by the Citizenship Officer in summary form in Appendix A. I note that there are additional health reports included in the T documents but not referenced by the Citizenship Officer.  These are collected in Appendix B.

    THE HEARING

16. The matter was heard by the Tribunal on 11 February 2020.

17. The applicant gave evidence. She was assisted by an Arabic interpreter and by her daughter, Maryam Yousuf. 

18. The applicant sought leave to call various witnesses, including her husband Adel Hanna, and her friend, Youram Mamluk.  I declined to allow these persons to be called. I allowed her daughter Maryam Yousuf to be called, although it was quickly established that she had no useful evidence in relation to the matter.

19. At the applicant’s request, and over objections from the Minister’s representative, I allowed the applicant’s general practitioner, Dr Faiz M. Said, to give evidence. He appeared by telephone. The Minister’s representative objected that the Minister had not received any notice or witness statement. Moreover, it was not clear whether Dr Said was appropriately qualified in terms of the Citizenship Policy. He was neither an appropriately recognised psychiatrist or psychologist, nor a medical practitioner admitted as a Fellow of the Australian Society of Psychological Medicine. I note, however, that under the Policy the evidence of GP’s is acceptable in some cases and in any case, the applicant laboured under a significant handicap in that she was self-represented.[3] I considered that her doctor might bring some much needed perspective to the medical history contained within the various medical reports before the Tribunal. I therefore permitted the doctor to be called, and reserved to the Minister the right to consider his evidence by way of adjournment if necessary.

    [3] T-documents at T7, p 148.

20. The documentary evidence before the Tribunal consisted of the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents) and two additional medical reports provided by the applicant.

    The applicant’s general practitioner

21. Dr Faiz M. Said was contacted by telephone and confirmed that the applicant suffered from a variety of physical health conditions, including multiple joint pain;[4] moderate to severe osteoarthritis, in multiple joints including the knees, hips and back;[5] cancer, and the removal of one of her kidneys;[6] and she underwent a hysterectomy[7]. She suffered from acute headaches and migraines and had seen various specialists.[8] He also expressed the view that her powers of concentration might be affected by her medication.

    [4] Transcript, 11 February 2020, page 39, at [35].

    [5] Transcript, 11 February 2020, page 39, at [37].

    [6] Transcript, 11 February 2020, page 40, at [10].

    [7] Transcript, 11 February 2020, page 40, at [10].

    [8] Transcript, 11 February 2020, page 40, at [15].

22. The Minister’s representative submitted that the Tribunal was not required under the Policy to accept the medical opinions of Dr Said, who was neither an appropriately recognised psychiatrist or psychologist, nor a medical practitioner admitted as a Fellow of the Australian Society of Psychological Medicine. Moreover, the opinion expressed by Dr Said, to the effect that the medication might affect her powers of concentration, fell well below establishing incapacity, and medicine-induced incapacity would not count anyway as a permanent or enduring incapacity.

    Mental Health issues

23. In relation to mental health issues, the applicant relied on a report dated 15 June 2016 by Christina Gilto, Clinical Psychologist; a report dated 9 October 2017 by Dr Marmoud Abu-Arab, Clinical Psychologist; and an undated report by Dr Wael Wahaib, Senior Consultant Psychiatrist, who saw the applicant on 23 May 2019.  None of these reporters were called as witnesses.

    Ms Christina Gilto

24. In her report dated 15 June 2016, Ms Gilto recorded that the applicant presented with good judgment, good insight, good decision making, alertness, orientation to time and place, accurate speech, coherence, logical thinking, and rationality. She recommended four further sessions with the applicant.

25. She also indicated that the applicant had difficulty concentrating and that work and study were not reasonable expectations. The fact that Ms Gilto had made this observation was stressed by the applicant’s daughter on her behalf at the hearing.[9]

    [9] Transcript, 11 February 2020, p 55, at [5].

26. The Minister’s representative submitted:

    Essentially, Ms Gilto’s report does not opine that any of the applicant’s conditions described are a direct cause of her being incapable of satisfying the knowledge requirements, as required under the policy and the citizenship instructions as well as section 21(3)…

27. It did appear that the applicant did not see Ms Gilto on a regular basis and has not seen her since 2016. In evidence the applicant stated that she went to see another psychologist (Dr Mortahario) because Ms Gilto was on maternity leave.[10] There was no report from Dr Mortahario before the Tribunal.

    [10] Transcript, 11 February 2020, p 26, at [30].

    Dr Marmoud Abu-Arab

28. Dr Mahmoud Abu-Arab, clinical psychologist, provided a report dated 9 October 2017.[11] He diagnosed Chronic Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, noting that:

    While living in Iraq, Mr Harbi was subjected to trauma and she witnessed the killing of many innocent people including her family members. Her husband served in the army for eight years. They were threatened and considered the threat to be serious. The patient reported she vividly remembers traumatic events from the war time…

    Recommendations: Even though Mrs Harbi has been living in Australia for over four years and, she had completed HSC in Iraq, she does not feel confident to attend the Citizenship Knowledge test due to her mental condition as well as due to poor literacy and numeracy skills in English. I believe that her current psychiatric condition following the numerous traumatic events she experienced in the past would affect her ability to learn and retain new material/information. Therefore, I recommend exempting her from the knowledge test for new citizens.[12]

    Based on my observations, I am satisfied that Ms Harbi’s condition is permanent and long lasting. Therefore, I am confident that it is unlikely that with further training her condition may change. In my view, she doesn’t have the basic knowledge of the English language to enable her to learn and retain information, such as the information required to pass the Citizenship exam.

    [11] T-documents at T3, pp 68-70.

    [12] T-documents at T3, p 70.

29. The Citizenship Officer accepted that Dr Abu-Arab was qualified in terms of the Citizenship Policy, and accepted his diagnosis of PTSD and Major Depressive Disorder.[13]

    [13] T-documents at T2, p 12.

30. On the other hand, the Minister’s representative argued that Dr Abu-Arab’s report should be given little weight. He submitted that his diagnosis lacked objectivity, because it was based on self-reported information provided by the applicant.  Moreover, the diagnosis did not link the knowledge requirements and the physical or mental health condition, emphasising a lack of confidence as the main issue.[14]

    [14] Transcript, 11 February 2020, at 47.

31. He also noted that the applicant had not seen Dr Abu-Arab since submitting her citizenship application.

32. The Minister’s representative also asked me to take into account the assessment made by the Tribunal on previous occasions where the evidence of Dr Abu-Arab had been criticised.[15] He referred me to some very adverse comments from Senior Member Puplick AM in Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239, at [42]-[47]. The Minister’s representative urged me to discount Dr Abu-Arab’s evidence on that basis alone.

    [15] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239; Toma and Minister for Home Affairs (Citizenship) [2019] AATA 505 at [21], per Dr L Bygrave, Member.

    Dr Wael Wahaib

33. The applicant tendered an undated report by Dr Wael Wahaib Al Doorie, a Fellow of the Royal Australian and New Zealand College of Psychiatrists.[16] Dr Wahaib reported that he saw the applicant on 23 May 2019.

    [16] Tender Bundle at TB2, pp 10-11.

34. Dr Wahaib referred to some highly stressful incidents in the applicant’s life.[17]

    Report long history of depression, started back in Iraq where 15 years ago, she witnessed a traumatic event to her husband [nearly fatal event], while when she escaped Iraq to [Syria], continued to struggled with her financial and stressful difficulties there, and when she landed in Australia 6 years ago, she was diagnosed with kidney cancer, had to get the kidney removed.(sic)

    [17] Tender Bundle at TB2, p 10.

35. Dr Wahaib diagnosed that the applicant was suffering from Major Depressive Disorder. He diagnosed cancer of the kidney, hypertension, pain and skin rash. He said that she had good eye to eye contact, easily got in rapport, speech was normal. Her mood was normal in reactive in intensity, appropriate and congruent. His final diagnosis was:

    MDD, Comorbid Physical disability [hypertension, diabetes, lost one kidney, idiopathic pain, and idiopathic skin rash]

36. He recommended duloxetine 30 mg every morning.

37. The Minister’s representative urged the Tribunal not to reply on Dr Wahaib’s report.  He said:

    The Minister submits that this report is insufficient in establishing that the applicant meets the requirements under section 21(3)(d). As confirmed by the evidence provided by the applicant today, she has not been seeing Dr Wahaib on a regular basis. Further, Dr Wahaib does not actually opine that the diagnosis he established would be the direct cause for the applicant being incapable of satisfying the knowledge requirements on 21 November 2017.[18]

    [18] Transcript, 11 February 2020, p 50, [35].

    The applicant’s evidence

38. The applicant gave evidence through an interpreter. She spoke at length about her poor health and challenged the Minister’s representative on a number of key issues.

    APPLICANT (THROUGH INTERPRETER):  [The Minister’s representative] said that the aches and pains that I have are not permanent or are not enduring.  How come he’s saying that?  Dr Fernandes has confirmed that I have pains and aches all over my body, and the other doctors that I have been seeing, so it’s just strange to me that he denies that besides the fact that these are mentioned in the reports.  I just want to say that I have so many health issues. I have arthritis; I have problems in my joints. They have even proposed that one of my limbs to be amputated, so I don’t know how come they say that I have no problem and you know I’m living this year, I’m alive this year but I don’t know what is going to happen next year or if I will be capable of walking next year.  I just - yes, and I just want to say that the pains and aches that I have, how come he is saying that they are not affecting me?  They are affecting me actually and they - yes, they have a great impact on me.

    I also have - I have headaches, I have migraines and migraines are so bad that I have to stay in a dark room and I can’t even - I can’t even get up, I have to stay in that room, and it stays with me for sometimes up to three days.  Not only that, I have pains all over my body, my legs, everywhere is aching and yes.  These pains have affected me mentally as well. And also now I have taken tablets for migraine and it’s causing me to feel dizzy. And I just want to say if my condition was not that bad, the doctor would not have prescribed four tablets a day for my condition. It’s not true that I stopped seeing doctors. I have been to the doctor only this recently, only last week but for me to see doctors all the time is very difficult. I only take - the only source of income that I have is from Centrelink and I barely survive, you know. I pay my rent and other expenses, it’s so difficult for me to go and see a specialist. Where - from where can I afford to pay them.

    I had cancer, I had it four years ago and every year I have to go back and do the checks again to see if the cancer came back or not. And every time when I go to do the checks it’s very draining time emotionally for me. I don’t know what’s going to happen to me, if I’m going to live or not. That is so difficult. It is draining me. My immunity is very weak and I might get cancer again and I don’t know how I’m going to fight it with weak immunity. And now I have only one kidney and I’m trying my best to be a fighter and to make my only kidney work well. I’m trying with everything, I don’t want to surrender to being sick or ill. I want to fight but I’m still weak.  I do the best I can but to be honest with you, I don’t want anything from this life.  I just - maybe, I don’t know, maybe tomorrow I will be in a wheelchair.  I feel helpless, I feel desperate.

    I have been through very, very difficult times, tough times. I don’t feel good. My situation is not good. I don’t know what’s waiting for me, if I’m going to have many surgeries, what’s going to happen to me. I don’t know.  All I want is just to go and see my mother.  I have - I have tried to make a visa for her to come here but that visa was rejected.  So all I want from this life is just to go and see my mother and if I go and see her and I have an Australian passport that of course will be different. But if I got with my Arab passport that will cause me a lot of troubles and a lot of problems and I know that. That’s the only reason that I want the citizenship. I want to just go see my mother and come back…

    CONSIDERATION

1. In determining whether the Minister can be satisfied that the applicant meets the s 21(3)(d) requirements, two issues arise. The first is whether the claimed physical or mental incapacity was permanent or enduring at the time of the application. The second is whether the claimed incapacity means that the applicant is not capable of meeting one or more of the knowledge requirements.

   Did the applicant suffer from a permanent or enduring physical or mental incapacity at the time of her application?

   Permanent or enduring incapacity

2. As to the first issue, the entire body of evidence, including the reports at Appendices A and B, suggests that the applicant suffers from a concatenation of debilitating conditions including medical arthritis, osteoarthritis, carpal tunnel syndrome, tinnitus, migraines, diabetes, and irritable bowel syndrome. She has had cancer, a kidney removal, and undergone a hysterectomy. Her physical health engenders considerable sympathy.

3. I am satisfied that, at the time of her application, the applicant suffered from a variety of physical and mental maladies and that she has been in pain and distress for a lengthy period. In combination these conditions are permanent or enduring in the lay sense. In light of the evidence, and her history, I do not expect that she will have respite from her physical or mental pains any time soon.

4. The mental health treatment received by the applicant has been sporadic and piecemeal. I make no criticism of the applicant.  This may well be the result of shortcomings in the provision of appropriate mental health services, especially those available for refugees. I note that in November 2017, the applicant received a Certificate of Participation from the Families in Cultural Transition (FICT) Program offered by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).[19]

   [19] T-documents, at T3, p 35.

5. There does not appear to be a record of regular psychiatric treatment. I have previously referred to the report by Dr Wael Wahaib, a Fellow of the Royal Australian and New Zealand College of Psychiatrists. His opinion is therefore to be accorded appropriate weight and respect. The Tribunal has been provided with his report which noted that he saw the applicant in May 2019.

6. According to the applicant’s evidence, she saw Dr Wahaib ‘about three times’.[20] This single report does not provide a safe foundation upon which to make judgments about the degree of her impairment, or upon her capacity to understand and demonstrate the knowledge requirements.

   [20] Transcript, 11 February 2020, p 29, [5].

7. Nevertheless, the diagnosis offered in Dr Wahaib’s report is not inconsistent with that provided by Dr Abu-Arab and with the overall body of evidence. Dr Abu-Arab diagnosed Chronic Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder.

8. I accept that the totality of medical and psychiatric evidence supports a finding that the applicant suffers from a permanent or enduring mental or physical incapacity. These conditions are either permanent or sufficiently enduring that they are not likely to dissolve or improve with any reasonable or expected time frame.

9. I therefore answer the first question in the affirmative.

   The knowledge requirements

10. I turn to the second question for decision. Did the presence of such incapacity mean that the applicant was incapable of acquiring or demonstrating one or more of the knowledge requirements?

11. The Minister’s representative contended that the medical reports did not provide an adequate basis for assessing the impact of the applicant’s condition upon her capacity to satisfy the knowledge requirements required by s 21(3)(d). He argued that:

    …none of these reports opine that any of the physical conditions described in the reports were a direct cause of the applicant being incapable of meeting the knowledge requirements for the grant of Australian citizenship [on 21 November 2017].

    (a)Nature of the application

12. I am not satisfied that by reason of her physical or mental ailments, the applicant was, at the time of the application, incapable of understanding the nature of the application at that time. I have no difficulty in finding that, at the time she applied for citizenship, she understood the application process. She gave evidence at the hearing from which it may readily be inferred that she has such an understanding. She certainly understood the nature and purpose of the Tribunal proceedings.

    (b)Knowledge of Australia and Citizenship

13. Nor am I satisfied that by reason of her physical or mental ailments, the applicant was, at the time of the application, not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and the privileges of Australian citizenship at that time. Again, her oral evidence demonstrated that she had some understanding of the privileges of citizenship. She referred in her evidence to the right to vote and the privilege of travelling on an Australian passport.[21] While other aspects of citizenship were not fully explored in her evidence, I have no doubt that she was capable of understanding the subject matter of the Citizenship Test. I find that she had an appreciation of the concept and implications of Australian citizenship.

    (c)Basic understanding of English

    [21] Transcript, 11 February 2020, p 25.

14. In this case, as in many others, the decision comes down to a final judgment about the applicant’s capacity to acquire a basic understanding of English.

15. The critical issue is whether, at the time she applied for citizenship, she was, by reason of a permanent or enduring physical or mental incapacity, not capable of demonstrating a basic knowledge of the English language at that time.

16. For non-English speakers, especially those of more advanced years who have never acquired even rudimentary English, acquiring a basic knowledge of the English language presents a daunting challenge. A permanent or enduring physical or mental incapacity will inevitably create an additional burden for those seeking to acquire a basic understanding of English.

17. But to say that a task is difficult is not to say that it is impossible. The statutory requirement of incapacity is effectively equivalent to a requirement that for a particular individual the task is a practical impossibility.

18. I have no doubt that the applicant presently lacks a basic knowledge of English. She certainly could not undertake the Citizenship Test in English. However, is she incapable of doing so with appropriate preparation? The applicant presented as an intelligent woman who did not appear to have any difficulty communicating in her own language.  As noted above, she completed the equivalent of the HSC in Iraq.

19. Having listened carefully to her evidence, and the evidence of her general practitioner, and in light of the various medical reports, including the psychological and psychiatric assessments, I am not satisfied that this articulate and intelligent woman is incapable of demonstrating a basic knowledge of the English language.

20. I have no doubt that it will be difficult for her to acquire this knowledge, especially in light of her mental health issues and the need to take medication for pain management. Indeed, it will be far more difficult for the applicant than for many other non-English speaking applicants. But the medical evidence presented on her behalf relating to her physical or mental health conditions does not support a finding that she is incapable of doing so.

21. I note that she completed the equivalent of HSC in Iraq.[22] She is not incapable of educational achievement. The Adult Migrant English program offers language tuition, and if she completes 400 hours of tuition she will be eligible to sit for an Assisted Test.[23]

    [22] T-documents at T3, p 70.

    [23] Australian Citizenship (LIN 20/085: Approval of a Citizenship Test) Determination 2020, Part 3; Department of Immigration and Border Protection, Citizenship Policy (1 June 2016), Chapter 7.

22. In my view, the evidence of Major Depressive Disorder or Post Traumatic Stress Disorder, considered within the context of her overall physical health, falls short of establishing that, by reason of physical or mental incapacity, she is not capable, with appropriate preparation, of demonstrating the English knowledge requirement.

23. There is no doubt that her physical issues, including her morbid obesity, will present a hurdle. I note that at the hearing there was a suggestion that she was in receipt of a Disability Support Pension, although details thereof were not provided to the Tribunal. But she is capable of movement and attending locations outside her home. She attended the Tribunal hearing. Indeed, she said that the driving impetus for her to acquire citizenship is to be able to travel back to Iraq to see her mother. This demonstrates that in her own mind she has the potential to travel.

24. In light of all the evidence presented in this case, I am not satisfied that the applicant was not capable of demonstrating a basic knowledge of the English language at the time she applied for citizenship. I stress, for the benefit of the applicant, that my finding relates to her capacity, as required by the s 21(3)(d)(iii) of the Act, not to her actual ability at that time.

25. I have considered the applicant’s eligibility for Australian citizenship under s 21(3)(d) in relation to each of the three knowledge requirements.  I am satisfied, in the case of each of those elements, that the applicant is not disabled to the point of satisfying the requirements of the section, as explained at paragraphs [5]-[7] above.

    DECISION

26. I therefore affirm the decision under review.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 18 May 2020

Date(s) of hearing:	11 February 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore Lawyers

APPENDIX A

18 October 2013; Dr Peter Walker; Orthopaedic Surgeon:[24]

[24] T-documents at T3, p 36; T2, pp 10-11.

·     medial arthritis causing significant pain

1 September 2015; Dr A J Sanki, General Surgeon;[25]

[25] T-documents at T3, p 41; T2, pp 10-11.

·     multiple aches and pains in the whole spine, particularly lower back and the joints of shoulders, arms, elbows, wrists and knees;

·     Conclusion, I fully support the patients application for a Disability Support Pension on account of her severe poly arthralgia involving the knee joints, plantar fasciitis, diabetes mellitus, hypertension, hyperlipidaemia, with side effects from the medication causing her to be unsteady in her walking and dizziness with drowsiness due to the Tramal. Patient is totally uneducated and she grew up in a rather primitive society and it is unlikely that she gain any benefit from rehabilitation or further education. I therefore support her application for a Disability Support Pension.[26]

[26] T-documents at T3, p 42.

15 June 2016; Christina Gilto, Registered Psychologist;[27]

[27] T-documents at T3, p 51; T2, pp 10-11.

·     Chronic pain due to joint pain; anxiety regarding her multiple symptoms including renal cancer and the removal of a kidney; diagnosis of Generalised Anxiety Disorder:

·     Rita’s mental health has also greatly been affected. She arrived in Australia in 2013 after having lived in Syria for 7 years after fleeing Iraq due to war.  She presents with flashbacks, intrusive thoughts and insomnia.  She has severe fear and often finds it difficult to complete daily tasks.  She also struggles with learning English as she presents with poor memory and concentration.[28]

[28] T-documents at T3, p 51.

22 June 2016; Dr Ibrahim Hanna; Consultant Physician Neurologist;[29]

[29] T-documents at T3, p 53.

·     headache due to common migraine with tension and cervicogenic component which is chronic; hand sensory disturbance and tinnitus, referred for brain and cervical cord MRI/MRA/MRV

31 August 2016; Dr Vahid Mohabbati, Pain Specialist, palliative medicine;[30]

[30] T-documents at T2, pp 10, 12.

·     osteoarthritis, hypertension, hyperlipidaemia, GORD, urinary incontinence, sleep apnoea, depression, irritable bowel syndrome, type II diabetes;

·     She reports pain almost all over her body. The only spare part is her hips and the thighs. Her pain started five years ago in Syria.  It initially started from the legs with the shooting upward pain, but gradually spread to her knees and the rest of her body.  She has seen numerous specialists overseas and here and has been involve in multiple programmes including physiotherapy…She is overweight and has difficulty losing weight.  Movements of any sort increases the pain and she often is in a sedentary position…

·     It appears that her chronic pain widespread pain is mostly musculoskeletal and related to her chronic osteoarthritis. She has low inflammatory type paid with stiffness in the morning, but her biggest health issue at the moment seems to be her morbid obesity.  Her low mood and depressive symptomatology plays a negative role in maintenance of her chronic pain.[31]

[31] T-documents at T3, p 62.

9 March 2017; Dr Ian Gotis-Graham; Rheumatologist and Consultant Physician;[32]

[32] T-documents at T3, p 65; T2, pp 11-12.

·     Moderately severe bilateral knee osteoarthritis; musculoskeletal problems as a result of altered weight bearing; lumbar spine degenerative disease; pain at the base of the left thumb; left shoulder rotator cuff syndrome; significant vitamin D deficiency; pain management issues and obesity.

9 October 2017; Dr Mahmoud Abu-Arab, Clinical Psychologist;[33]

[33] T-documents at T3, p 68; T2, pp 11-12.

·     Chronic Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder.

1 September 2015; Dr Joseph Sanki; Consultant Physician, Pain Specialist;[34] ??

[34] T-documents at T3, p 38.

·     renal cell carcinoma; osteoarthritis, hypertension, multiple aches and pains in whole spine particularly lower back and joints of shoulders, arms, elbows, wrist and knees.  

APPENDIX B

20 April 2016; Ms Natalie Pavlovic, Outpatient Physiotherapist;[35]

[35] T-documents at T3, p 49.

·     No improvement with physiotherapy.

29 April 2015; Ms Bernadette Brady, physiotherapist;[36]

[36] T-documents at T3, p 37.

·     Knee arthritis and widespread chronic pain affecting other regions of her body

4 January 2016; 1 March 2016; Dr Christopher Jones; Fairfield Imaging Centre[37]

[37] T-documents at T3, pp 47-48.

14 June 2016; Dr David Ho; Fairfield Imaging Centre; [38]

[38] T-documents at T3, p 50; see also report dated 9 September 2016 (T3, p 64) not referenced by Citizenship Officer.

·     XRay of left shoulder

·     Early degenerative changes in the AC joint.  There is cortical thickening and sclerosis of the joint margins with early spurring.

29 June 2016; Dr Quyen Nguyen; Nuclear Medicine;[39]

[39] T-documents at T3, p 55.

·      Whole Body Bone Scan 

·     Significant active osteoarthritis changes throughout both knees (especially medial compartments) with associated mild synovitis. Arthritic change elsewhere as described.

·     Mildly active degenerative changes in the lumbar spine…

·     No scan evidence of osteoblastic metastatic bone disease.  No other significant focal bony or joint abnormality was demonstrated.

1 July 2016; Dr Adrian Gale; Rayscan Imaging Liverpool[40]

[40] T-documents at T3, p 56.

·MRI scan of brain and cervical spine

·No significant abnormalities detected

13 July, Dr Ibrahim Hanna, Consultant Physician Neurologist

·She obviously does have multiple medical problems including chronic migraine headache affecting her daily living activities, cervical and lumbosacral spondylosis with inflammatory osteoarthritis under the care [of] a Rheumatologist.  Her nerve conduction study revealed bilateral moderate sensory-motor bilateral carpal tunnel syndrome on a background history of diabetes and hypertension.[41]

[41] T-documents at T3, p 57.

6 July 2017; Dr Naringan Ganeshan; Rayscan Imaging [42]

[42] T-documents at T3, p 67.

Undated; Associate Professor Antonio Fernandes, a plastic and reconstructive surgeon. On 3 October 2019, the applicant provided two letters from Professor Fernandes, addressed to the Tribunal, The letters state that the applicant was suffering from arthritis, osteoarthritis and tenosynovitis, and carpel tunnel syndrome.