Hussaini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2023] AATA 655
•31 March 2023
Hussaini and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 655 (31 March 2023)
Division:GENERAL DIVISION
File Number: 2021/2449
Re:Zahra Hussaini
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:31 March 2023
Place:Melbourne
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review dated 14 April 2021 and remits the matter for reconsideration with a direction that the Applicant satisfies ss 21(3)(d)(ii) and (iii) of the Australian Citizenship Act 2007 (Cth).
...............................[sgd].........................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – where applicant applied for Australian citizenship by conferral – where there are different pathways to citizenship – where applicant contends permanent or enduring physical or mental incapacity – legislative provisions – citizenship policy – medical evidence – where Tribunal accepts applicant suffers from certain medical conditions – where illiteracy by itself generally not sufficient to satisfy exemption – where Tribunal satisfied there is sufficient medical evidence that enduring mental incapacity provision is met – decision under review is set aside and matter remitted with a direction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 37
Australian Citizenship Act 2007 (Cth), ss 21, 23A, 24, 26, 28, 52
Cases
Drake and Minister for Immigration and Ethnic Affairs; Re: (No 2) (1979) 2 ALD 63
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Secondary Materials
Department of Home Affairs – Australian Citizenship Procedural Instructions (CPIs) – CPI 2: Australian Citizenship by Conferral – Permanent or enduring physical or mental incapacity (Reissued 1 January 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
31 March 2023
The Applicant, Mrs Zahra Hussaini, is a citizen of Afghanistan. She is aged 50. She first arrived in Australia in 2016 as a visa holder. Her life before coming to Australia has been characterised by adversity. Her mother died when she was very young. As a child, she faced deprivations from her stepmother. In adulthood, she married and subsequently, because of the conflict in Afghanistan, she and her husband and children fled to Pakistan. For these reasons and others, Mrs Hussaini had a disrupted and substandard education. She struggles with writing, in both her native Farsi and especially in English.
In August 2020 Mrs Hussaini applied for Australian citizenship by conferral. When she did so, she filled in Form 1300t provided by the Department of Home Affairs (‘the Department’). This is the form used by persons applying for citizenship under the general eligibility provisions in the Australian Citizenship Act 2007 (Cth) (‘the Act’).
In the form, Mrs Hussaini said she had not previously sat and passed the citizenship test, and in response to question 16 on the form which asks, ‘Do you need help with the Citizenship test?’, she wrote ‘Refer to doctors [sic] description’.
Among the documents Mrs Hussaini attached to Form 1300t was a letter from
Dr Minaakshi Tolat, FRANZCP, a consultant psychiatrist, headed ‘Letter of support regarding exemption from citizenship test’.
On 14 April 2021 a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Mrs Hussaini’s application. The delegate was not satisfied that the Applicant had a permanent or enduring physical or mental incapacity so as to satisfy s 21(3)(d) of the Act at the time of her application. Having decided that
s 21(3)(d) of the Act was not met, the delegate refused the application under s 24(1) of the Act.
On 19 April 2021 Mrs Hussaini applied for this refusal decision to be reviewed by the Tribunal, as is provided for under s 52(1)(b) of the Act.
HEARING
A hearing was held on 27 February 2023. The Applicant gave evidence. She was supported by her son Mr Asif Hussaini, as her lay advocate. The Respondent was represented by
Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers. The Applicant called two witnesses who gave evidence: Dr Zahra Tabrizi, her treating general practitioner, and
Ms Shagufta Riaz, a clinical psychologist. The Respondent called one witness,
Mr Martin Jackson, a clinical neuropsychologist. All the witnesses except the Applicant gave evidence by electronic means, as provided for under s 33A of the Administrative AppealsTribunal Act 1975 (Cth) (‘the AAT Act’). The Tribunal appreciates the assistance of an interpreter in the Dari language.
The Tribunal admitted into evidence the following documents:
(a)Respondent’s documents (‘TD’) lodged under s 37 of the AAT Act (Exhibit R1);
(b)Neuropsychological report of Mr Jackson dated 26 July 2022 (R2);
(c) Briefing letter to Mr Jackson dated 30 March 2022 (R3)
(d) AUSTRAC records, various dates (R4);
(e) Letter of Ms Riaz clinical psychologist dated 9 May 2021 (A1);
(f) Further letter of Ms Riaz dated 3 June 2021 (A2);
(g) Respondent’s questions to Ms Riaz and her responses (A3); and
(h) Psychological report of Dr Hoda Barazandeh, clinical psychologist (A4).
The Respondent submitted a Statement of Facts, Issues and Contentions on 10 February 2023, to which the Tribunal had regard.
THE LEGISLATIVE SCHEME
A person can apply to the Minister to become an Australian citizen by conferral under s 21 of the Act. Section 24(1) of the Act provides that the Minister must, in writing, approve or refuse to approve the person becoming a citizen. Section 24(1A) of the Act provides that the Minister must not approve a person becoming a citizen unless that person is eligible under one of the provisions in ss 21(2) to (8) of the Act.
Section 21(2) requires that the Minister be satisfied, among other things, that the person understands the nature of an application (s 21(2)(d)); possesses a basic knowledge of the English language (s 21(2)(e)); and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (s 21(2)(f)). Collectively, these are referred to as the knowledge requirements.
It can immediately be seen that these requirements are somewhat subjective. Because of that, s 21(2A) of the Act provides that ss 21(2)(d), (e) and (f) are taken to be satisfied if, and only if, the person has sat and successfully completed a ‘citizenship test’. The form of the test must be approved personally by the Minister under s 23A(1) of the Act.
There is, however, a pathway for a person who cannot successfully complete the test to still become an Australian citizen. The pathway is, however, narrow. It is set out in s 21(3) of the Act, which provides as follows:
(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 capacity, 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.
It is important to note that each subsection of s 21(3) of the Act is conjunctive, i.e., each must be satisfied, except for the stipulations at s 21(3)(d)(i) to (iii), where only one of the requirements need be satisfied.
Section 26(1)(b) of the Act is also relevant, because it exempts a person who has been found to have a permanent or enduring mental or physical incapacity under s 21(3) from having to make the Pledge of Commitment, which is otherwise a requirement for an adult to attain citizenship. Australian citizenship generally commences on the day a person makes the required Pledge, but if a person is not required to, his or her citizenship commences on the day it is approved by the Minister (see s 28(2) of the Act).
There was no contest between the parties that Mrs Hussaini is aged over 18, that she is and remains a permanent resident and that she satisfies the general residence requirement. These were also findings of the delegate. However, having decided that the Applicant did not have a permanent or enduring physical or mental capacity such as to satisfy s 21(3) of the Act, the other requirements were not assessed. If the Tribunal finds that Mrs Hussaini does satisfy s 21(3), the matter would be remitted to the Minister’s Department with a direction, so that the remaining requirements for citizenship could be considered.
Therefore, the question before the Tribunal is whether Mrs Hussaini meets the requirements of s 21(3)(d) of the Act, such as to exempt her from the need to pass the citizenship test.
OPENING ORAL SUBMISSIONS
Mr Hussaini told the Tribunal that it was hard for his mother to speak in English or to write in it. He said she had difficulty even writing the 26 letters of the English alphabet.
Mr Hussaini said that when they first came to Australia, his mother attended some TAFE English courses in South Australia but found them too stressful. She would get headaches and forget what she had been taught. He said this makes it hard for her to learn.
Mr Hussaini said that his mother did understand graphical signs, and gave the examples of a stop or a give way sign. He said that she is now the only member of the immediate family who has not become an Australian citizen. Mr Hussaini said he has become an Australian citizen, as has his father, brother, and sister, who is his mother’s carer.
Mr Hussaini said that the Applicant lost her own mother when she was a child. No member of her own family is in Australia, and her traumatic experiences when young have affected her memory. In terms of driving, Mr Hussaini said that his mother will only drive to the local shopping centre and back, and will not drive on a highway. He said she frequently forgets medical and other appointments.
Mr Orchard, for the Minister, said that the Respondent’s position is the same as the delegate’s: that Mrs Hussaini did not have a permanent or enduring physical or mental incapacity such as to fulfil the requirements of s 21(3) of the Act.
Mr Orchard noted that the citizenship test consists of 20 multiple-choice questions and completing it does not require a person to write in English. Mr Orchard noted that
Mrs Hussaini has cared for family in Pakistan, was able to drive a car in Australia, has bank accounts, can make money transfers, receives social security payments, and has travelled internationally. He noted the delegate found that Mrs Hussaini was capable of understanding her citizenship application, demonstrating knowledge of English and her knowledge of Australia and the privileges and obligations of citizenship.
Mr Orchard noted that Mrs Hussaini had a low level of schooling, but that illiteracy was not a permanent or enduring incapacity. He contended that the citizenship test is simple, and the level of English required is also simple.
Mr Orchard noted that among the medical letters and reports the Applicant has provided is one from her treating general practitioner, Dr Zahra Tabrizi. The delegate found that, because a general practitioner is not ‘a specialist organisation [sic] listed in Schedule 1 of the Health Regulations 2018’, Dr Tabrizi’s letter ‘does not meet the evidentiary requirements set out in the policy’. Mr Orchard said that the Respondent does not say, as the delegate did, that Dr Tabrizi’s letter should be excluded entirely, but contended that Dr Tabrizi’s qualifications should affect the weight that the Tribunal attaches to her report, in terms of assessing whether a permanent or enduring physical or mental capacity exists.
ORAL EVIDENCE
The Applicant
Mrs Hussaini took the oath and gave evidence, with questions being interpreted for her, and her responses then interpreted from Dari into English.
Mrs Hussaini was asked about her family. She said she had one grandchild, whom she named. She could not recall the age of the grandchild but said she was of walking age. She said that she and her husband own the house they live in, and that her daughter and grandchild live with them.
The following exchange took place:
Mr Orchard: How long have you lived in that house?
Mrs Hussaini: A long time.
Mr Orchard: Since you came to Australia?
Mrs Hussaini: Yes.
Mr Orchard: Where is the house? Which suburb?
Mrs Hussaini: I just forget it. It’s somewhere in my mind but I just cannot remember it just now.
Mr Orchard: Which part of Melbourne is it in? Is it in the west or is it in the north?
Mrs Hussaini: I don’t know which side of Melbourne, but I know it is in Melbourne.
Mr Orchard: When did you come to Australia? What year?
Mrs Hussaini: I can’t remember that exactly.
Mr Orchard: How long ago do you think you arrived in Australia? How many years ago?
Mrs Hussaini: All of my children have become Australian citizens already, but just not me. I can’t remember exactly how long; how many years.
Mr Orchard: When did you say that your memory and mood issues begin?
Mrs Hussaini: A long time; not sure exactly. It’s been going for a long time. But eventually it’s gotten worse. Worse and worse. To the point now where even if I leave something – I leave my wallet somewhere – after a short time I forget where I put it. If someone says something to me, I cannot remember it. I forgot it there. Last night I couldn’t sleep really well so right now I’m feeling kind of, like … because I couldn’t sleep well last night.
Mr Orchard: Did your mood and memory issues begin after you came to Australia?
Mrs Hussaini: It has been going on for some time. Even since I was in Pakistan, I had some symptoms and had, like, severe headache and that made me really sick and the memory problem, by time, eventually has gotten worse and I have other symptoms – I begin shivering or shaking, my heartbeat gets faster and I’m feeling drowsy so that’s the type of symptoms I’ve been getting, and my memory has been getting worse and worse. My memory problem, I cannot remember things much anymore.
Mr Orchard: Before you came to Australia, you lived in Pakistan, is that right?
Mrs Hussaini: Yes.
Mr Orchard: And you raised your children there?
Mrs Hussaini: Yes, my children were there.
Mr Orchard: And where was your husband?
Mrs Hussaini: He was there, too.
Mr Orchard: He was in Pakistan with you before you came to Australia?
Mrs Hussaini: Yes.
Mr Orchard: Did he work in Pakistan?
Mrs Hussaini: We had a vehicle. He was driving, carrying passengers.
Mr Orchard: And you would raise the kids at home?
Mrs Hussaini: Yes, I was at home.
Mr Orchard: Raising the children?
Mrs Hussaini: Yes. They sent me to a course to learn something, but I couldn’t because I got some headache, and I was suffering from headaches. I couldn’t learn or couldn’t continue or sitting staying in the class.
Mr Orchard: Did your children go to school in Pakistan?
Mrs Hussaini: Yes.
Mr Orchard: How many children were living with you in that house in
Pakistan?Mrs Hussaini: You mean our house?
Mr Orchard: Your children in that house in Pakistan.
Mrs Hussaini: Three children.
Mr Orchard: So, you would help them get ready for school every day?
Mrs Hussaini: Yes.
Mr Orchard: Prepare food for them every day?
Mrs Hussaini: I did, and also, we were living in the same house with our landlord. When I got severe headaches, they would help me.
Mr Orchard: Mrs Hussaini, did you recently travel overseas?
Mrs Hussaini: Some days ago, yes.
Mr Orchard: This year?
Mrs Hussaini: Yes, this year.
Mr Orchard: And where did you go?
Mrs Hussaini: Pakistan.
Mr Orchard: Why did you go to Pakistan?
Mrs Hussaini: My son, Asif, who is next to me, he was getting married. He took me there and said maybe if you go there, you might get better or feel better. But after going there, I felt worse rather than feeling any better.
Mr Orchard: Did you attend your son’s wedding?
Mrs Hussaini: Yes, I went with my son.
Mr Orchard: What document did you use to travel to Pakistan from Australia?
Mrs Hussaini: My son arranged some documents. Like, they have the passport. They arranged some documents for me that I could travel with.
Mr Orchard: There are some records here of monetary transfers being made from you to people overseas. I’ve got the document here, Senior Member, for the Applicant’s benefit printed off if that would assist.
Mr Orchard: On page 1, and Asif I’ll ask if you could help, on the right-hand column where it says OC/Payer role. And your name is there – Zahra Hussaini. And there are transfers in 2017, 2020 and 2021 – four transfers. It’s got your address here. Now, Mrs Hussaini, these money transfers, who were they to?
Mrs Hussaini: To where?
Mr Orchard: Who did you send the money to?
Mrs Hussaini: I cannot remember. I’m not remembering. I cannot even remember where I sent it to.
Mr Orchard: One of the transfers – second column on page 1 - was made on 1 May 2021. That’s after Ms Riaz had spoken to you about your cognitive impairment. Based on these records, Mrs Hussaini, do you accept that you were able to arrange international money transfers in 2021 despite having this mild cognitive impairment?
Mrs Hussaini: Even if I did that, I went there and I did it with the help of my daughter. I cannot exactly remember how it was done but even if I did it, I would’ve done it with the help of my daughter.
Mr Orchard: Do you remember making these monetary transfers, or not, Mrs Hussaini?
Mrs Hussaini: No, I cannot remember these kind of things I always go with my daughter, with her assistance. If I have done it with her assistance, right now I cannot remember exactly.
Mr Orchard: If you can’t remember you did these transfers, you can’t remember or not whether your daughter helped you?
Mrs Hussaini: I cannot remember it at all – when or how I sent it.
Tribunal:Do you remember – you might not remember the date, but do you remember going to the bank to send some money to Pakistan?
Mrs Hussaini No, I cannot remember. I cannot go without my daughter, without her support … But with this one, I cannot remember it at all.
Mr Orchard: Do you keep your money in a bank account?
Mrs Hussaini: I cannot remember exactly but if that happened – the money transfer – I would’ve gone with my daughter and my daughter would’ve helped me and I would’ve sent the money to my brother in Afghanistan.
Tribunal:Mrs Hussaini, the question wasn’t about the transfers. It was only if you keep your money in a bank account.
Mrs Hussaini: About the transfer I cannot remember if – my money would’ve been in my bank account….
Mr Orchard: Do you have a bank account now?
Mrs Hussaini: I don’t know myself. I don’t know how to access it. My daughter isn’t here to help me, but my son is allowed to check.
Tribunal:Don’t worry about the transfers. Mr Orchard is only asking if you have a bank account of your own.
Mrs Hussaini: Yes, but I don’t know the details.
Mr Orchard: Do you receive Centrelink benefits?
Mrs Hussaini: Yes; Centrelink pays me.
Mr Orchard: Which Centrelink benefit are you on?
Mrs Hussaini: They pay me some money, but I don’t know the name. But when I need money, my daughter is assisting me to access that money.
Mr Orchard: You just said when I need money – can you explain to the Tribunal when you might need money when you ask your daughter to withdraw it?
Mrs Hussaini: Buying groceries from the Afghan shop, buying clothes, those kinds of things.
Mr Orchard: And to buy groceries and clothes, Mrs Hussaini, that requires you to understand how much money you have and how much money you can spend, doesn’t it?
Mrs Hussaini: I go always with my daughter. She’s the one who’s assisting me, helping me with access or spending the money and accounting and how much, yeah, I don’t go without her. I always go with her.
Mr Orchard: But you do go, don’t you, Mrs Hussaini? You do go to the Afghan grocery store, and you do spend money?
Mrs Hussaini: I go with her. I haven’t gone by myself, alone.
Mr Orchard: Doing things like shopping and shopping for clothes means that you are aware of certain things that you need. Going shopping means you are aware of certain things you need.
Mrs Hussaini: Yes. I know what I need.
Mr Orchard: You’ve taken some English language classes, is that right?
Mrs Hussaini: I went to English classes. I can’t remember if I went for a few classes or for many. I cannot remember. But I tried, I tried hard, but I couldn’t learn … I have problem with my lower back sitting, I have severe headache or teary or watery eyes. I couldn’t learn.
Mr Orchard: If you were not illiterate, you would be able to take the citizenship test, wouldn’t you?
Mrs Hussaini: If I didn’t have any issue with my memory or if I wasn’t illiterate, I wouldn’t be in this position right now.
Mr Orchard: And it’s actually your illiteracy that is the main barrier to you taking the citizenship test, isn’t it?
Mrs Hussaini: The main reason is my memory. I cannot learn things, I am stressed. Even today you cannot understand how stressed I am, how under pressure I am because of everything happening today. I couldn’t sleep last night. It’s because I cannot remember things. It’s because of my memory, that’s the main thing.
Tribunal: When you saw Mr Jackson, Asif was with you?
Mrs Hussaini: Asif went with me. But I can’t remember if they let him inside the consulting room, I cannot remember that. But Asif went with me.
Tribunal:Asif told Mr Jackson that you don’t drive much, but you do occasionally drive to the local shops to get ‘small stuff’.
Mrs Hussaini: Yes, sometimes to the shops close by, I go there. But I don’t go further distance.
Tribunal:And, for instance, if you needed milk, bread, or something for cooking, would you get it at the local shops?
Mrs Hussaini: Yes. My memory’s really bad. I forget things. Even sometimes I bought things at the shop and forgot to get it and I had to go back to pick it up.
Tribunal:Are you saying that you sometimes would go to the shop to get something that you’ve already got, or that you forgot to pick up when you go to buy it?
Mrs Hussaini: Many times, yes, that’s happened to me that I bought something but forgot to bring it; I just left it. I just came home. I left it at the shop.
Ms Shagufta Riaz, clinical psychologist
Ms Riaz gave evidence by telephone. She confirmed that she had written two reports relating to the Applicant, the first dated 9 May 2021 and the second 3 June 2021. She confirmed that she had administered a Mini-Mental State Examination (MMSE) to
Mrs Hussaini.
Ms Riaz explained that the MMSE is a quick screening tool which helps clinicians understand the cognitive functioning of a person. She said it is not a defined tool and gives an overall score. Ms Riaz said she administered the MMSE once. She said it usually takes between 30 and 40 minutes, depending on the person.
Mr Orchard suggested that the MMSE is not used for diagnosis of a mental health condition and is more in the nature of a snapshot. Ms Riaz agreed with that characterisation, but said it was a ‘really reliable screening tool, as well’.
Mr Orchard noted that the Applicant scored 14 points (TD, p 37) and asked what the average score is. Ms Riaz responded that thirty is the highest score and that is reflective of average functioning. When asked what it means when someone scores 25, Ms Riaz responded that any result below 24 is considered not to be average or normal and that the lower the score, the lower the functioning.
Mr Orchard noted that Mrs Hussaini can drive and shop on her own, and that she had travelled with her son to Pakistan. He said in her evidence she cared for her children in Pakistan and made money transfers and has taken some language classes. He then asked Ms Riaz whether that summary matches with the exceptionally low score. She responded:
“It is my understanding that someone has assisted her – for example, if they have a smartphone, they can receive and take a phone call but if they have to take a message, then they have to ask their children. My experience with this population is quite extensive because of my language speciality. I work a lot with these people. My whole understanding of their whole psychological functioning is that they can do basic functioning of day to day to life and most of them can drive as well in local areas. But if you ask them to go on a freeway, to go and find a new address, to put addresses in GPS, they are unable to do those things … she has been through trauma, war and that has caused a lot of mental and psychological issues. That actually affects their capacity to learn at an adult age. They may be able to function normally with day-to-day life functions with help of someone else if they need. For example, if they have done the money transaction then I would assume or understand that they might not be able to do it by themselves, knowing their BSB number, transactions, details of converting the money and all that. But if someone helped them, they could just sign it and put the transaction through. Because [driving] is a manual thing and they have instructors, that makes it possible for them to get a licence. But if you look at a citizenship test, they have to do it in English, a language they do not know and they are unable to learn, maybe because of their, you know, medication or mental health issues.”
Mr Orchard asked Ms Riaz what her understanding was of the citizenship test requirements. She responded: “They have to have a knowledge of English to understand the test. There are 20 questions, and they have to pass, maybe, 16. That is what I roughly know.”
Ms Riaz said that there are 30 questions in the MMSE, including sub-questions.
Mr Orchard asked if Mrs Hussaini answered all 30 questions. She responded: “She didn’t answer all of them, that’s why she scored 14. These are general knowledge, different and simple compared with the citizenship test.”
Ms Riaz agreed that Mrs Hussaini was able to sit down and engage for over 30 minutes when being examined by her. She said that, in total, she had five sessions with the Applicant, the first on 1 June 2020 and the last on 22 June 2021.
Mr Orchard noted that Ms Riaz had concluded that the Applicant has a mild cognitive impairment, and asked her to explain that. Ms Riaz said: “It means she is not capable of functioning, for example, in doing calculations. Observation about time and place might be affected. She may not know an address. Short-term memory, reading and writing, orientation may all be affected. This is basic screening. It is not an IQ test – it is a snapshot of cognitive functioning.”
Ms Riaz said the exam represents the general cognitive functioning of her life. Mr Orchard said that Ms Riaz had recorded that Mrs Hussaini had ‘suffered for life’. She responded: “I say that generally, but don’t have evidence, obviously.”
Mr Orchard suggested that the Applicant tending for her children means she is capable of complex tasks. Ms Riaz responded:
“Raising children obviously is a very demanding role. But they are well-equipped to address the physical needs of children like feeding, washing clothes or cooking. But when we talk about educating their kids or managing their special needs for their emotional development or giving them social education, I don’t believe that they would have done as much over there [in Pakistan]. Obviously, there is family help there ... the joint family system or the neighbourhood help a lot, even with cooking or cleaning. I don’t know how much help she would’ve needed for this manual work, but when we talk about citizenship test it definitely needs academic skills. Academic skills in my personal view and professional view are different from manual work, housekeeping skills.”
Mr Orchard suggested that if Mrs Hussaini was able to manage household tasks, she should be able to sit for the questions in the citizenship test. Ms Riaz responded: “If she has to learn a new language … she does not have the capacity at this point in time to learn a new language to a level where she can understand the content of the test and then pass all the items, it’s not about manual skills.”
Mr Orchard asked if it was possible for the Applicant to be assisted because of her poor literacy skills, would she able to engage in the test. Ms Riaz replied:
“I would say maybe she’s able to read the question, but I would really doubt she would have the capacity to comprehend and find the right answer. Because if there’s anything related to the constitution or if there’s anything related to some historical knowledge that she has to memorise or recall, I would doubt that she would be able to do that with her current psychological functioning.”
In response to a direct question from the Tribunal that Mrs Hussaini presented with depressive symptoms in Pakistan and whether this was based on what the Applicant told her, Ms Riaz responded: “Exactly, we do our clinical interview; I haven’t diagnosed her because I couldn’t go back in the past and diagnose her. But according to her report she was dealing with the symptoms of depression from that stage of her life.”
Dr Zahra Tabrizi, general practitioner
Dr Tabrizi gave evidence by telephone. Dr Tabrizi agreed she had written a letter dated
15 June 2020 about the Applicant and that she is her treating general practitioner.
Mr Orchard asked Dr Tabrizi if she had specialist qualifications in psychology or if she is a member of any of the psychological associations in Australia. She responded: “No, I’m not a member. I have done some training regarding the care plan, and I am eligible to do the mental health care plan for my patients to get the Medicare support for my patients.”
The Tribunal asked Dr Tabrizi about her diagnosis of Chronic Mood Disorder. She responded:
“My impression is that Mrs Hussaini has been suffering from chronic depression disorder with cognition problem. The Chronic Mood Disorder has affected her cognition, memory, concentration definitely. Later on, the chronic pain, tendinopathy, sciatica pain and shoulder bursitis, have caused some chronic pain syndrome. In context of this mood disorder, the chronic pain syndrome really affecting and aggravating or maybe deteriorating her cognition and her mood-related problem. I think the mood disorder comes first.”
The Tribunal noted a medical history recording in 2017 (TD, p 33) of the Applicant’s diagnosed ‘depression and anxiety disorder’. Dr Tabrizi said that was the diagnosis as found in the Diagnostic and Statistical Manual of Mental Disorders (DSM): Chronic Depressive Disorder with an anxious mood.
The Tribunal asked Dr Tabrizi whether she had made that diagnosis. She responded that it was made by psychiatrists at a particular clinic.
The Tribunal asked Dr Tabrizi if chronic pain can feed into a person’s memory problems. She responded: “Yes, it can affect mental issues.” Dr Tabrizi then went through the medication prescribed for Mrs Hussaini and said she started with a dual therapy of two anti-depressants in 2021, recommended by a psychiatrist.
Mr Orchard asked Dr Tabrizi when the Applicant’s chronic pain started. She responded:
“She came from another state … According to our investigations and MRI/CT scan, we confirmed that she had this problem for many years, and it started many years ago. When we visited her, she has been suffering from this chronic pain, tendinopathy, sciatica. The investigations confirmed the ultrasound tendinopathy of the shoulder (bursitis), and CT scan of lumbar spine confirmed the discopathy and neuropathic pain.”
Mr Orchard asked whether, with medication, her problems will improve over time. Dr Tabrizi responded:
“Some issues are sustained. We haven’t seen much improvement in the pain management or lots of improvement in her mood. Reasonable and satisfactory response to medication at least makes her functional in her daily routine. Initially, when she came to our clinic from another state, she was really unable to talk to us and even refused a psychotherapy session, and was totally mute and couldn’t explain her pain. After starting her on medication, at least there was improvement in her mental status.”
Mr Orchard asked if there has been an improvement in her mental status. Dr Tabrizi responded: “Definitely, yes. Otherwise, we couldn’t continue the treatment. There was some improvement.”
Mr Orchard noted that Mrs Hussaini’s disorder was different from an acquired brain injury, or something acquired at birth. Dr Tabrizi replied:
“As she has been on medication and pharmacotherapy for a long time … it doesn’t mean we’re expecting that she will get a full recovery and off the medication. Because it’s a minimal impaired condition, it shouldn’t really be completely reversible. Maybe it’s not like a brain injury and we can definitely say there is no cure for that but for this one, as my understanding, we can’t really expect improvement more than this. I think we can just stabilise the patient at this stage and delay the deterioration of the cognitive problem … Pain management [in the other state] was very poor and they haven’t engaged her to different therapies. With this medication and pharmacotherapy, her condition really has improved … But, really, we don’t expect her to completely improve and get really cured from the mental condition. With the pharmacotherapy we are just delaying deterioration of the cognitive problem. On the other hand, her depression and anxiety is really getting under control in comparison with the past … she needs to be on pharmacotherapy for end of her life.”
Mr Orchard asked Dr Tabrizi whether she would agree that Mrs Hussaini’s mental condition was not as bad as severe Alzheimer’s disease. Dr Tabrizi responded, “No.”
The Tribunal asked Dr Tabrizi whether Mrs Hussaini’s condition was only able to be stabilised, but not improved. She responded: “There isn’t any guarantee to stop deterioration.”
The Tribunal then asked Dr Tabrizi whether she was suggesting the Applicant’s condition is akin to something like early dementia. She responded: “It’s not a dementia but it’s a meaningful impairment cognition. It’s the terminology or initial stages of forgetfulness. Dementia is different. According to the assessment and the other tests we are doing, she is at the stage of the impaired cognition disorder.”
Mr Martin Jackson, clinical neuropsychologist
Mr Jackson gave evidence by video-link. He confirmed he had written a report dated
26 July 2022 in relation to the Applicant, and that he examined her on 23 June 2022.
Mr Jackson said he administered reports relating to the presentation of the person, performance on formal testing, language skills, perceptual skills, attention assessment – how fast, whether they are able to focus and not get distracted. He administered executive skills tests and tests on effort to indicate whether the person is trying on assessment.
Mr Orchard asked Mr Jackson what difference there was between a MMSE and the tests he administered. Mr Jackson responded:
“The Mini-Mental State Examination is a screening test which is predominately used by medical practitioners or some other practitioners which tries to screen potential cognitive difficulties. It is a very simple test which covers orientation, memory, concentration, and some very basic executive skills. It is not a diagnostic tool per se and, if anything, it should be a tool that leads to whether or not there is a need for further examination. As I said it is a very simple tool. As I say in my report, it is used predominately for dementia screening. And so, somebody who scores less than 25 would generally be referred for a more thorough diagnostic assessment. So, it’s not diagnostic; it’s a very simple screening test and it should be used as a tool to determine what pathway you go after that.”
Mr Orchard asked what the difference between the approach a general practitioner would take and what a neuropsychologist would do. Mr Jackson responded:
“The main difference is the thoroughness of the cognitive assessment. So, any form of capacity or clinical assessment involves an assessment of a person’s mental status. So, how they present, both in terms of their cognition like, for example, if someone has a significant memory problem, we might be looking for repetition of information, forgetting details of important bits of information. You’re also looking for signs of mood problems, whether someone might be depressed – in which case they might not have any positive affect, no smiling, etc. So, any clinician will use a person’s MMSE or clinical examination as part of their work up to somebody’s current status. The difference is that the form of assessment that I’ve given is only allowed to be given by psychologists, so a lot of these tests are restricted to use by psychologists, so a GP actually can’t give them. Even within the psychological field there are specialist areas and so, for example, neuropsychology is the specialty area in the assessment of cognition using these tests.”
Mr Jackson added that the suite of tests he applied was the ‘gold standard’ approach for the assessment of cognition. He told the Tribunal that he often is asked to make assessments for VCAT matters to see if a person is able to manage his or her finances, or make a will, and these are the tests he would use to make a neuropsychological assessment.
Mr Orchard asked Mr Jackson what his overall conclusion was about the mental health profile the Applicant presented. He responded that his overall conclusion was that she did not produce a valid profile. He said that the Applicant performed poorly on even basic tasks that six- or seven-year-old children could do. For example, one of the tests required the person to remember a list of 15 words. Mr Jackson said that remembering 12 or 13 words is average for someone the Applicant’s age. Even though the Applicant was provided with a reduced list of 10 words to begin with, the Applicant could only remember one word. This particular test, Mr Jackson said, also contains a forced choice component which requires the patient to choose one of two options. Mr Jackson indicated that even people with severe memory difficulties can identify the correct option, to a high level. Mr Jackson reported that even if a patient is randomly guessing, they will generally achieve a score between four and six. The Applicant, however, only scored three out of 10.
On this basis, Mr Jackson concluded that the Applicant was not putting in appropriate effort and the testing profile was completely invalid. Similarly, on the Kaufman Hand Movement Test which requires the patient to copy a series of hand movements, the Applicant obtained a score of one out of 21. Again, on the Kaufman Gestalt Closure Test, Mr Jackson gave evidence that people average 22 out of 25. Mrs Hussaini scored two. She was extremely slow on testing. Mr Jackson concluded that her results were simply not believable. If they were true, he said she would require 24-hour care; she would have no functional memory and could not undertake personal care. This is inconsistent with her performance in the community. There is no way anyone with this profile, Mr Jackson said, could drive a car. Mr Orchard asked if someone with these results could remember her time in Pakistan. Mr Jackson replied: “I would be surprised if they had any memory of anything because their memory is so poor, not just their recall, but their recognition memory as well.”
Mr Orchard asked if the results were invalid, or had any use at all. Mr Jackson responded: “It cannot be used at all. The testing results simply aren’t real, and it is not possible to determine what Mrs Hussaini’s actual abilities are.”
Mr Orchard asked how common these sorts of results are. Mr Jackson replied that, “it is reasonably uncommon to be this bad. Occasionally people will fail one effort test”.
Mr Orchard noted that Ms Riaz had recorded that Mrs Hussaini had a Mild Intellectual Impairment. Mr Jackson responded: “A Mild Intellectual Impairment is a full-scale IQ between 45 and 60. She’s obtained a full-scale IQ of 42. The lowest score you can get is a 40.”
Mr Orchard asked Mr Jackson if he felt there was forethought, and that the results suggested the Applicant was deliberately trying to deceive him. He responded that “it does, and that he had assessed people over the years who generally do a poor job of it, but they make the mistake of performing badly on every test”. Mr Jackson said that a person with a real disability actually has some strengths. Driving two kilometres to buy items is completely incongruent. A person with these results would not even get a learner’s permit.
Mr Orchard noted that Dr Tabrizi was of the view that Mrs Hussaini’s chronic pain conditions have led to diminished cognitive functioning and led to depression and asked if this could explain the test scores. Mr Jackson responded that her pain conditions could not explain the test scores and that he regularly saw people with chronic pain who are taking opiates. He said it can affect cognition, but they still pass effort tests.
The Tribunal asked Mr Jackson to assume that if chronic pain affects and aggravates her mood-related problems, if he was still of the view that the test results were unbelievable. He responded that depression could affect cognition and slow down processing speed, but recognition memory is still intact.
The Tribunal asked Mr Jackson to assume that the cognitive impairment diagnosis was correct, and asked if the Applicant would be incapable of performing particular tasks. He responded: “If the Applicant did have a mild intellectual disability, that is, a person with an IQ between 55 and 70, would usually still have rote learning skills. Such a person can get a permit and learn to drive, and pass the test. They might need someone to read the questions out.”
PARTIES’ CLOSING SUBMISSIONS
Mr Hussaini referred to the questions regarding the Applicant raising her family in Pakistan. He said the daily routine is very different there; there were between five and 20 people in the house, and with others helping it makes it much easier for mothers bringing up children.
He said that he and his siblings would go to school by themselves. He said that his mother’s main problem is illiteracy – she cannot write her own name in Persian. He gave the example that she did not read items on the social media platform ‘Facebook’ but did look at pictures and videos on it.
In respect to Mrs Hussaini’s recent travel to Pakistan, Mr Hussaini said she travelled on an Afghanistan passport, he went on:
“We arranged everything for her because she doesn’t know these things. We arranged travel and everything because we can’t leave her here by her own. And we took her with our own and she came back with my sister. She can’t travel alone … Everything we did for her. When it comes to driving as well, as I said, graphical images she can understand. Even when she goes to shop, which is five minutes away from our house, it’s an Afghani shop, which makes it really easy for her to buy things because they speak Persian. Because I know those guys and sometimes, she grabs some stuff, doesn’t pay for it but I know those guys when we go there, I can pay for it … She said that she buys some stuff like bread, milk, or something, she forgets in the shop and come home without it. Later on when we ask did you go to shop, she says ‘yes’, but ‘where are the things, where are the groceries’, she said ‘oh well, I don’t have it’ … Her brother is in Afghanistan [under the Taliban]. She recently lost her father.”
In response to a direct question from the Tribunal, Mr Hussaini said that the family went to Pakistan for his marriage in October 2022. He stayed for three months but his mother and sister stayed for two months, before returning to Australia.
Mr Orchard submitted that it was the Respondent’s submission that the Applicant is capable of complex tasks, such as driving a car and effecting monetary transfers. He said she has a bank account and receives Centrelink payments and was able to interact with the questions asked of her during the hearing. He said the Applicant was able to recall her time in Pakistan caring for her children and talked about transferring money, albeit with the help of her daughter. He said that the Minister submits that the Applicant was assisted because of her illiteracy and innumeracy, not because of any enduring incapacity.
In respect of Ms Riaz’s evidence, the Respondent submitted that she did one MMSE, which is effectively a screening test prior to any diagnosis. In respect of Dr Tabrizi’s evidence,
Mr Orchard submitted she does not have specialist qualifications in the field the Tribunal is dealing with, which affects the weight that should be attached to her evidence.
Mr Orchard submitted that Mrs Hussaini’s current condition is treatable and will likely change. In terms of Mr Jackson’s evidence, the Respondent noted he felt the Applicant was giving deliberately incorrect answers or, at best, was not trying at all, in relation to the different cognitive assessment tests he applied. Mr Orchard reiterated Mr Jackson’s evidence that Mrs Hussaini’s responses to the tests were inconsistent with a person who can drive a car and shop and perform household tasks.
The Respondent contended that Mrs Hussaini was not incapable of understanding the nature of the citizenship application. Mr Orchard said that the Applicant’s lack of English related to her illiteracy, not to a cognitive condition. He said that the Applicant can be assisted in undertaking the citizenship test if she meets the threshold of English language classes. Mr Orchard submitted that, if the Applicant sits the test and fails, it is open to her to re-apply, citing the incapacity criteria. The Respondent submitted that the evidence before the Tribunal is inconclusive and proffered that Mr Jackson’s was the ‘best evidence’ and was highly sceptical of the Applicant’s evidence.
CONSIDERATION
The legislative scheme is set out above in these reasons. In practical terms, section 21(3)(d) of the Act operates to exempt persons who satisfy the decision-maker that they have a described incapacity from being required to pass the citizenship test. It is not in contest that this provides an alternative pathway to satisfy this part of the Act in the quest for citizenship.
The Respondent referred to a document used by officers of the Minister’s Department who have a delegation from the Minister to exercise powers under the Act, namely the Revised Australian Citizenship Procedural Instructions (CPIs). A version was provided in the papers before the Tribunal (TD, pp 178-183). The current document, which is the one to which the Tribunal should have regard, was reissued on 1 January 2023.
The Tribunal, standing in the shoes of a decision-maker, will generally apply policy unless there are cogent reasons not to do so: Re: Drakeand Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 63 (‘Drake’).
The relevant policy instruction, CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (‘CPI 2’), provides guidance on the evidence required for a person to establish a permanent or enduring incapacity for the purpose of section 21(3) of the Act. It relevantly states:
6.3. The incapacity if the reason the person is incapable
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 and the responsibilities and privileges of Australian citizenship.
A person who is illiterate in their native language and English may not necessarily have an incapacity. Only if the illiteracy was due to an incapacity, such as an acquired brain injury or a learning disorder, would the person meet the requirements of paragraph 21(3)(d).
CPI 2 goes on to state:
7. Mental incapacity
To ensure the integrity and consistency of decision-making, applicants claiming permanent or enduring mental incapacity must 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; or
·Psychologist who is registered with the Psychology Board of Australia and has a practice endorsement in an area relevant to the claimed incapacity. Examples of psychologists who have a relevant area of practice endorsement are clinical psychologists, forensic psychologists, and clinical neuropsychologists.
The specialist’s qualifications can be confirmed by reference to the credentials that appear on the medical certificate, or by contacting the specialist concerned. For example, a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists should have “FRANZCP” on the evidence provided.
In cases where an applicant fails to seek treatment that is recommended by a specialist that would assist them in rectifying the incapacity in the shorter term, it may be reasonable to accept that their mental incapacity is such that they are unable to seek treatment. A letter from the treating specialist confirming the applicant is not capable of seeking/undergoing treatment is sufficient to consider the incapacity as permanent or enduring.
7.1. General Practitioners
General practitioners, who are fellows of the Royal Australian College of General Practitioners (FRACGP) or the Australian College of Rural and Remote Medicine (FACRRM), are not defined as specialists under Schedule 1 to the Health Insurance Regulations 2018. A report from a general practitioner is generally not acceptable.
However, access issues for rural and regional clients may be a factor for some applicants and, therefore, delegates may accept evidence from a general practitioner who is a fellow of the Australian College of Rural and Remote Medicine.
Care must be taken with applying policy. The wise exhortation of President Brennan, which he made in Drake, echoes in the Tribunal’s ears, but His Honour was not saying that policy must be applied by the Tribunal if, and in exactly the same way that, it was applied by the primary decision-maker in making a reviewable decision. His Honour was saying that it is consonant with good administrative decision-making that, where a policy exists and is applied, the Tribunal should have due regard to it. That encourages consistency in approach.
However, where the policy might be inconsistent with the law, or where its application might lead to a manifestly unjust outcome, it would clearly be wrong to resolutely apply it. The first paragraph of part 7 of CPI 2 would seem to the Tribunal to be ultra vires, because it adds a purportedly compulsory requirement in regard to the nature of medical evidence which has no basis in the Act, or any legislative instrument made under it. It is enigmatic what the phrase ‘to ensure integrity [sic] and consistency in decision-making’ means. Presumably those who wrote the policy do not want decision-makers considering s 21(3)(d) claims to rely solely on medical evidence provided by general practitioners or others without the stipulated professional qualifications. However, if that is what is meant, it would be better if the policy said that.
The delegate considering Mrs Hussaini’s application found that the letter from Dr Tabrizi, the Applicant’s treating general practitioner “does not meet the evidentiary requirements set out in policy”. The Full Court of the Federal Court of Australia has made clear that the Citizenship Policy Instructions (CPIs) have no force in law. They are policy guidelines, not delegated legislation.
In Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky, and O’Callaghan JJ) Their Honours observed, at [18]:
There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.
And at [58]-[62]:
58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created …
59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision- maker] will make in the circumstances of a given case”; Drake (No 2) at 641.
60. However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies” ...
62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations ...
Therefore, the CPIs serve as useful and important guidance to Department officers, but do not bind an officer exercising the Minister’s statutory discretion. Where they overreach, they certainly do not bind this Tribunal. There is no requirement in the Act that evidence from a general practitioner should not be given due regard. That does not mean that the policy cannot guide delegates to give greater weight to evidence from medical practitioners or other health professionals with specific qualifications, but it does mean that the report of a general practitioner about a person’s capacity cannot be given no weight by a decision-maker.
In this case, it was clear from her oral evidence that Dr Tabrizi was referring to the diagnosis of a mental health condition of the Applicant previously made by a psychiatrist at a named clinic. The Tribunal notes that Dr Minaakshi Tolat is a consultant psychiatrist at the same clinic and assessed Mrs Hussaini in July 2020 (TD, p 32).
The Respondent (RSFIC, paragraph 23) appeared to cast some doubt on whether Dr Tolat is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) and submitted it was unclear whether her letter ‘meets the evidentiary requirements set out in the policy’. That was a serious thing to suggest. The Tribunal is empowered under
s 33(1)(c) of the AAT Act to inform itself on any matter in such manner as it thinks appropriate. On 6 March 2023 the Tribunal contacted the College. The College confirmed Dr Tolat is indeed an FRANZCP.
In her letter, Dr Tolat relevantly wrote that she assessed the Applicant with the assistance of a Dari interpreter. She remarked that Mrs Hussaini has been experiencing an ongoing depressive disorder on the background of early life losses, trauma, and other factors.
Dr Tolat remarked that the Applicant had a difficult life in Afghanistan and has had no opportunity to attend school and remains illiterate in her own language. She goes on:
Her diagnosis is that of a major depressive disorder with features of traumatisation and anxiety symptoms. Her symptoms have been longstanding and her response to various medications while she was in Pakistan has been moderate. She continues to remain quite challenged by her symptoms and is unable to pay attention or concentrate on her English classes as she is unable to understand the English language given the fact that she has had no formal education in her country of origin.
Given the longstanding nature of her illness, I do believe that Ms Hussaini’s condition is an enduring mental incapacity, and she is unable to demonstrate a basic knowledge of the English language as she has not been able to apply herself to the study of the English language classes, which increases her stress levels and further decline in her mental state.
Some of this summary, such as Dr Tolat’s remarks about Mrs Hussaini’s response to medications when she was living in Pakistan, would axiomatically appear to be the reporting of the patient herself, or perhaps a family member accompanying her, in the absence of any evidence of corroborative material. However, relevant to the Tribunal’s consideration is that Dr Tabrizi records a mental health diagnosis in ‘2017’, i.e., one year after Mrs Hussaini settled in Australia, and intimated that this stemmed from an earlier psychiatric consultation.
In evidence was a report from Dr Hoda Barazandeh, clinical psychologist, dated
19 September 2022 (A4). Dr Barazandeh is Mrs Hussaini’s treating psychologist and recorded that she had first seen Mrs Hussaini on 14 July 2021 on referral from Dr Tabrizi, and had at that time seen the Applicant on twelve subsequent occasions. Dr Barazandeh speaks Farsi. She relevantly wrote:
She [i.e., the Applicant] stated that she had seen another psychologist during the almost three years when she lived in Adelaide and another psychologist in Melbourne before our treatment. My treatment approach was EFT for Trauma-related chronic stress and CBT for the treatment of depression. She attended the sessions regularly.
Mrs. Hussaini’s daughter reported that Zahra and her children arrived in Australia in 2016. Based on my assessments, Zahra presents with symptoms of post-trauma stress disorder. She suffers from hypertension and a high level of anxiety in her body. She also suffers from sleep problems, intrusive thoughts, vigilance, nightmares, and startle reactions. She avoids driving, shopping, and participating in social gatherings because of her tension. She also presents depressive symptoms such as sadness, low pleasure level, lack of interest in activities, poor memory and concentration, hopelessness and helplessness.
Dr Barazandeh administered the Farsi version of the Wechsler Memory scales III assessment tool in September 2022. She recorded:
She scored 58, which is almost three standard deviations below the norm. This means her memory score is extremely low (≤ 2 %). Her visual memory was better than her capability to remember numbers and words. She was cooperative and responsive to the test questions.
In one of the assessment reports, it was mentioned that Zahra passed the driving test. I asked about Zahra’s driving test method in my assessment by questioning an informant. Zahra’s Daughter said, “the driving test was visual and oral. For the oral test, she had an interpreter. And for the visual, she practiced a lot and did not pass at once. It was only Give way and video hazard test. The test was taken practically by the Farsi assessor. Thus, both visual and oral tests were done in her language.”
Dr Barazandeh also relevantly stated:
Her poor memory affects her ability to learn new materials. Learning new materials has been challenging, given that she was deprived of education in her language, resulting in illiteracy. She also experiences severe pain in her shoulder, knee and back and uses painkillers to control the pain. She stated that she could never sit in the classroom due to headaches and severe pain and often left the classes soon. After several years of trying to learn English, she can only write her name and address with very poor reading, writing and comprehensive [sic] skills. As such, she is not capable of demonstrating basic knowledge of English. I believe she suffers from an enduring mental incapacity.
Dr Barazandeh diagnosed Mrs Hussaini with PTSD with comorbid severe depression. It would appear to me, assembling all the different material together, that the recording in
Dr Tabrizi’s medical clinic’s patient history of ‘2017’ for the Applicant’s diagnosis of a mental health condition was gleaned from Mrs Hussaini’s consultation with psychologists in South Australia before she moved to Victoria in 2019 and before Dr Tabrizi became her treating doctor. As Dr Tabrizi’s oral evidence showed she was clearly aware of Mrs Hussaini’s consultations at the clinic where Dr Tolat practises, it may also be that Dr Tabrizi’s practice had the advantage of medical correspondence from the psychiatric clinic where Dr Tolat is a consultant. But that is informed speculation. However, on the documentary evidence, I am persuaded there has been a diagnosis around 2017 which has been reaffirmed by a psychiatrist in 2020, that the Applicant has an established mental health condition.
While the Tribunal is not reviewing the delegate’s decision, the Respondent in the hearing said that the Minister’s position was essentially the same as the delegate in these proceedings. Accordingly, it is relevant that the delegate wrote (TD, p 50):
[Dr Tolat] has not provided results of any cognitive or other clinical testing that would have been undertaken prior to your diagnosis, nor has he [sic] provided an explanation of what those results mean to support your claimed incapacity.
[Dr Tolat] has also not provided any information on when you first became aware of your claimed incapacity, when you were first diagnosed with your claimed incapacity or the length of time he [sic] has been treating you, including commencement dates and number of consults [sic].
[Dr Tolat] has also not provided any evidence of your treatment plan, on the basis that if your claimed incapacity is such, one would expect there to be a formal treatment plan.
The Tribunal is somewhat puzzled by these observations by the delegate, and does not understand the last paragraph reproduced above at all. There is sparse logic, if a person has what a medical professional diagnoses as a permanent or enduring incapacity, that there would axiomatically be a treatment plan. There might be, but it is a sad reality that many permanent and even enduring impairments are not treatable. They are instead managed, often non-medically.
The delegate had proof of a diagnosis by a specialist clinician which the delegate accepted was in a category referred to in CPI 2. That clinician concluded that Mrs Hussaini cannot study English classes because she cannot apply herself owing to what Dr Tolat described as the Applicant’s ‘enduring mental incapacity’. The officer then appears to add layers of additional requirements – for example, no evidence of cognitive testing and lack of a treatment plan – that are not referred to in CPI 2, much less the Act, in terms of how he or she should then weigh Dr Tolat’s report.
The Tribunal finds that Dr Tolat’s conclusions merit strong weight. It would appear she had access to a clinical history, in referring to the mental condition diagnosis which, married with the records at Dr Tabrizi’s practice, support a date of 2017. She also considers that Mrs Hussaini would have difficulty studying in order to undertake the citizenship test because of her illiteracy stemming from a poor standard of education.
Ms Riaz’s evidence is that she saw Mrs Hussaini over five sessions spanning one year. In her 9 May 2021 report, she states that ‘in my knowledge’ Mrs Hussaini presented with depression symptoms ‘for many years while she lived in Afghanistan’. She clarified in her oral evidence in the hearing that this was based on what she had been told, because she did not have any independent evidence of any treatment the Applicant undertook in Afghanistan. Ms Riaz said that she had administered a MMSE, which she described as a ‘snapshot’ indicating whether a person might have cognitive deficits which warranted further investigation. She emphasised that this test did not, by itself, found a diagnosis. Her description of what a MMSE was and how it is used was echoed almost exactly by
Mr Jackson, when he gave evidence. He also used the word descriptor ‘snapshot’. Both said that the MMSE is a useful tool for busy practitioners who might have a suspicion that someone could have a mental health condition.
In her 3 June 2021 report, Ms Riaz referred to Mrs Hussaini having ‘enduring mental incapacity’ and that her ‘memory, recall, orientation to time & place, simple mental math [sic], drawing, vocabulary and expressions’ were observed as ‘very low’. Ms Riaz observed that the Applicant has not engaged in psychotherapy and ‘prior assessment’ because of language barriers and cultural issues of stigmatization. She opined that it was ‘not likely that her mental capacity could reach to the level required to learn a new language (English) and knowledge required to pass the citizenship exam’.
Mr Jackson’s evidence was that he was unable to assess Mrs Hussaini’s mental health profile because, in his blunt assessment, none of her attempts for the range of psychometric tests he administered were effortful. The Tribunal notes that Mr Jackson has a particular specialist endorsement in neuropsychology and has long experience in assessing persons in terms of their mental capacity. The Tribunal accepts his evidence that, if Mrs Hussaini’s results were a genuine reflection of her functional ability, she would essentially require 24- hour care, would have no recognition or recall memory, and would be unable to drive a motor car or shop alone.
In terms of the Tribunal’s observations of Mrs Hussaini’s oral evidence at the hearing, I have deliberately set out a large section of the exchanges she had with the Minister’s lawyer and with the Tribunal earlier in these reasons. Taking account that it was interpreted, some of the evidence Mrs Hussaini gave was inaccurate. For instance, in response to questions she said that she has lived in her current house since she arrived in Australia. That is factually not the case, because she previously lived for a period in South Australia, before the family moved to Victoria. She also said that she travelled to Pakistan for her son’s wedding this year, and she was particularly pressed on the timeline by Mr Orchard. Mr Hussaini in his submissions said that he was married in Pakistan in October 2022, and I accept his evidence. The papers also appear to reflect that the Applicant’s husband preceded her to Australia in 2016, which is also contrary to her evidence. However, I did not get the impression that she was intending to give inaccurate answers.
The Respondent sought to place some importance on the fact that Mrs Hussaini had been able to travel internationally in recent months. I do not put particular weight on that, in terms of an evaluation of mental impairment, because I accept the submissions that she travelled with other family members to Pakistan, and was accompanied by her daughter on the return journey, and that the family “did everything for her” in terms of the travel documents she needed for her trip. This was an important family occasion, and it was unremarkable that she went to Pakistan for it; had there been evidence that she travelled solo, that might indicate more independent capacity.
On the other hand, if a person is exempted from the requirement to pass the citizenship test because of an impairment under s 21(3)(d), then they are not required to make the Pledge of Commitment. The basis of that is that the person may either be physically unable to do so or may, because of a mental impairment, be unable to properly make the Pledge before an authorised officer (or, perhaps, to understand the nature of the Pledge, in certain cases of mental debility). Mrs Hussaini was able, albeit with an interpreter, and after a couple of attempts, to take an oath before the Tribunal and give her evidence.
I accept that Mrs Hussaini has both physical and mental health conditions. I am satisfied that she has a range of physical ailments which were detailed in the medical letter from
Dr Tabrizi which are not necessary to itemise here. However, I also accept that one of these relevant to her mental health is chronic back pain, and I note Mr Jackson’s evidence that chronic pain can contribute to depression which can also bleed into cognitive deficits.
I conclude that Mrs Hussaini did deliberately under-perform when she attended
Mr Jackson’s rooms for the tests he administered. There is little profit in speculating why she may have done so. It may be that she thought that poor results would help her with the exemption. It may be that she was uncertain about the purpose of the tests: Dr Tarbizi’s evidence was that she took some time to build a rapport when the Applicant moved from South Australia and came to her practice. The Tribunal found Mr Jackson’s evidence that even persons with significant cognitive impairment can nonetheless have strengths persuasive: it is not accurate to say that such people have no strengths or abilities. However, because Mr Jackson in both his report and his oral evidence was firm that he was unable to offer a mental health assessment, his evidence does not assist the Tribunal in terms of s 21(3)(d) of the Act.
Mr Asif Hussaini struck the Tribunal, in his submissions on behalf of his mother, as offering a reliable narrative of her activities of daily living. He recounted how she could go by herself to the local shop, which he said was a short driving distance from her home, but it was a familiar shop where the proprietors spoke her language. He said sometimes
Mrs Hussaini would come back, having left the item she bought – the purpose of her visit – at the shop. On other occasions he said the shopkeeper would let him know his mother had forgotten to pay. He also spoke about the important role his sister plays in caring for her mother, by accompanying her to medical appointments and to the bank. I do not place much weight on the Respondent’s submissions about the money transfers to family members abroad; I accept Mrs Hussaini’s evidence that her daughter always went with her to the bank and helped her with any such transactions, as well as her other banking needs.
The Tribunal must however look carefully at the provisions of s 21(3)(d) of the Act. It is not enough for the Tribunal to be satisfied, as I am, that Mrs Hussaini has both physical and mental incapacity, and that they are at least enduring, and deep-seated. This part of the Act requires that the Tribunal must also be satisfied that the found incapacity must be such that means the person lacks the capabilities set out in s 21(3)(d)(i), (ii) and (iii).
In respect of s 21(3)(d)(i) I am not satisfied that Mrs Hussaini was, or is, not capable of understanding the nature of her citizenship application. She was able (with assistance from her son) to conduct herself at the hearing, and (with a high-quality interpreter) give relatively cogent, if sometimes inaccurate and inapposite, evidence. On her own evidence, she drives locally and shops solo, at least for small items at a familiar local store, where she can converse in her own language.
However, s 21(3)(d) of the Act is disjunctive. It is necessary for a person only to satisfy one of the provisions in (i), (ii) and (iii). I am satisfied that Mrs Hussaini is not capable of demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. The consistent evidence of a psychiatrist, two clinical psychologists and her treating general practitioner points to Mrs Hussaini’s mental health condition having a significant effect on cognition.
Dr Tolat (TD, p 32) is of the opinion that the Applicant is unable to pay attention or concentrate, and therefore cannot study to understand the English language. Ms Riaz was of the opinion that Mrs Hussaini’s cognitive function was limited by, inter alia, ‘poor memory, limited concentration and incapacity to recall information’. I place special weight on the report of Dr Barazandeh. Dr Barazandeh was able to make a more longitudinal assessment of Mrs Hussaini’s condition and the result of the WMS-III assessment tool – of which the Farsi language notably was applied – clearly indicates an established memory impairment.
I make one observation, without wishing to be too critical of Ms Riaz. Some of her evidence at the hearing was of her experience with patients with a similar background to
Mrs Hussaini. Her insights are of value, but there can be a danger in extrapolating general characteristics applying to a class of persons (in this case a woman whose education was disrupted, who had a traumatic childhood for family reasons and faced further trauma through displacement as an adult) and deciding that, ergo, these general characteristics are part of a mental health condition. In this assessment, the Tribunal must look at what incapacity may or may not be applicable to Mrs Hussaini personally, not because of her background.
I note that there are differing opinions about whether Mrs Hussaini has a permanent mental health condition. Dr Tolat thought so. Ms Riaz considered her cognition was affected by her current medication regimen, so might alter. Dr Barazandeh said it was an enduring mental incapacity. There is insufficient basis for me to find that the Applicant has a permanent mental incapacity in terms of the relevant part of the Act, but I do find that she has an enduring mental incapacity. Sometimes in medical or general references, the word ‘enduring’ is used as a synonym for ‘permanent’. However, this cannot be the intention of the Parliament in s 21(3)(d) of the Act because of the disjunctive ‘or’. Therefore, it is logical that the shade of meaning of ‘enduring’ in this subsection is an incapacity that may not be unchangeable, but where there is no predictable or anticipated timeframe for a change. CPI 2 supports this view. It states that ‘An enduring incapacity is one for which there cannot be a predicted recovery, or where, if there is, it is long-term.’ Considering all the evidence before the Tribunal, I am satisfied to conclude that is the case in terms of Mrs Hussaini’s cognitive deficits.
I agree with the Respondent’s submissions (as reflected in CPI 2) that illiteracy, by itself, is not suggestive of a permanent or enduring incapacity such as to satisfy the statutory intention in s 21(3)(d). Mr Asif Hussaini’s own closing submission was that illiteracy, both in Farsi and in English, was his mother’s ‘main problem’. However, the consistent medical evidence supports a different conclusion and expands what are the real challenges for
Mrs Hussaini, beyond her illiteracy. In a situation where the practical cognitive effects on the person are commonly reported, it is immaterial to my mind that different practitioners have given different labels to the impairment.
The purpose that the Parliament inserted the citizenship test provisions into the Act was so that the general expectation is that persons seeking citizenship by conferral will have a working knowledge of English, because that is the language of Australia. Such a knowledge is part of becoming a full member of the society of this country. There are provisions in the Act, and a determination made by the Minister under it, for a person who has difficulty reading English to have the multiple-choice questions in the test read out by an invigilator, and for the person then to nominate an answer. Mr Orchard in his closing submissions noted that Mrs Hussaini had not even attempted the test. This was a fair point for the Respondent to raise. However, I am satisfied that the memory deficiencies that have been identified would block Mrs Hussaini from undertaking even the assisted version of the test. It would be beyond the capacity of the Applicant. In a nutshell, I am satisfied that Mrs Hussaini’s inherent and diagnosed memory deficits are the key reason why she could not pass the test, and why the exemption applies to her.
Having come to this conclusion, the correct finding of the Tribunal is to set aside the reviewable decision and remit the matter to the Minister’s Department with a direction that the Applicant satisfies s 21(3)(d)(ii) and (iii) of the Act. The remaining requirements of her application for citizenship can then be considered.
DECISION
Pursuant to s 43(1)(c) of the AAT Act, the decision under review dated 14 April 2021 is set aside. The matter is remitted with the direction that the Applicant satisfies subsections 21(3)(d)(ii) and (iii) of the Act.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
................................[sgd]........................................
Associate
Dated: 31 March 2023
Date of hearing: 27 February 2023 Applicant:
Advocate for the Applicant:
In person
Mr Asif Hussaini (lay advocate)
Advocate for the Respondent: Mr Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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