Hussein and Minister for Immigration and Citizenship (Citizenship) - [2025] ARTA 1182

Hussein and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 1182 (28 July 2025)
Applicant:Yurub Mohamed Hussein
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2024/0333

Tribunal:General Member K Thornton
Place:Melbourne
Date:28 July 2025
Decision:The Tribunal sets aside the reviewable decision to refuse the Applicant’s application for Australian citizenship by conferral and remits it for reconsideration in accordance with the direction that the Applicant satisfies s 21(3)(d) of the Australian Citizenship Act 2007 (Cth) at the time she made her application.

.............................[SGD]...........................................
General Member K Thornton
Catchwords
CITIZENSHIP – application for citizenship by conferral – whether Applicant suffers from a permanent or enduring mental incapacity at the time of application – consideration of evidence regarding mental and physical health – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Statement of Reasons
INTRODUCTION

The Applicant (Ms Yurub Mohamed Hussein) seeks review of a decision of the delegate of the Respondent made on 12 January 2024 refusing her application for Australian citizenship by conferral.
The delegate refused the application because they were not satisfied that Ms Hussein had a permanent or enduring mental or physical incapacity, and therefore she did not satisfy s 21(3) of the Australian Citizenship Act 2007 (Cth) (the Act).
For the reasons that follow, the Tribunal has decided that the decision under review is set aside and remitted with the direction that the Applicant satisfies s 21(3)(d) of the Act at the time she made her application for Australian citizenship.
BACKGROUND
The Applicant is a Somali national. She arrived in Australia on 2 October 2012 as the holder of a Refugee (subclass 200) visa.[1] She was granted that visa on 27 August 2012.[2] She is married with four children. Her husband and three of her four children are Australian citizens.
[1] Exhibit R1, 10.
[2] Ibid.
On 16 August 2022 the Applicant applied for Australian citizenship by conferral under s 21(3) of the Act on the basis that she has a permanent or enduring physical or mental incapacity.[3] The application was accompanied by various identity documents and the following additional material:
(a)Letter from the Acting Assistant Principal of the Waratah Special Developmental School (undated).[4] The letter advised that the Applicant is the sole carer of a student at the school who has an intellectual disability and high support needs. The letter advised that because of these circumstances, the Applicant has been unable to access any opportunity to learn English and this has a direct impact on her capacity to complete the test.[5]
(b)Letter from Dr Sultan Noormohideen, General Practitioner, dated 8 April 2022 which stated the Applicant suffers from severe depression and is unable to study or prepare for the citizenship examination.[6]
[3] Ibid 18-46.
[4] Ibid 55.
[5] Ibid.
[6] Ibid 56.
On 12 June 2023 the Respondent requested the Applicant provide further evidence of her permanent or enduring physical or mental incapacity.[7]
[7] Ibid 69.
On 20 June 2023 the Applicant provided a completed ‘Request for evidence from specialist’ form from Dr Noormohideen dated 19 June 2023.[8] He indicated that the Applicant has a permanent physical incapacity, and that this incapacity was first diagnosed in February 2021. Dr Noormohideen wrote that the Applicant is unable to demonstrate a basic knowledge of English.[9]
[8] Ibid 86.
[9] Ibid.
On 31 July 2023 the Respondent requested further evidence of her permanent or enduring physical or mental incapacity.[10]
[10] Ibid 90.
On 1 August 2023 the Applicant provided further material including a statement regarding her identity documents.[11]
[11] Ibid 96.
On 27 November 2023 the Respondent requested further material including a detailed medical report.[12]
[12] Ibid 100.
On 15 December 2023 the Applicant provided the following material:[13]
(a)Letter from Dr Noormohideen dated 27 November 2023.[14] The letter stated that the Applicant suffers from severe depression and had recently been started on medication.
(b)Further letter from Dr Noormohideen dated 13 December 2023.[15] That letter confirmed that the Applicant has been a patient of his clinic since February 2021. He wrote that since her initial consultation her main issues were mostly related to generalised pain, and that her knowledge of English is very limited. He wrote that he sees her at least once a month and suspects that she suffers from underlying mental health issues.
(c)Letter from a Welfare Officer at the Waratah Special Developmental School dated 24 November 2023.[16] The letter stated that the Applicant has been diagnosed with clinical depression and that her mental health condition impacts her functional capacity. It stated that the Applicant is often bedridden and does not have the ability to engage with her caring duties, and that such mental health challenges also severely impact her ability to learn and acquire new information.[17] The letter confirmed that the Applicant is the primary carer to her 15-year-old son and his three brothers. Her 15-year-old son has cerebral palsy, an intellectual disability and autism spectrum disorder. The letter confirmed that he has been attending the school since 2012, and he is highly dependent on the Applicant.[18]
[13] Ibid 106.
[14] Ibid 108.
[15] Ibid 107.
[16] Ibid 109.
[17] Ibid.
[18] Ibid.
On 19 December 2023 the Applicant provided a further written statement in regard to the whereabouts of her birth certificate.[19]
[19] Ibid 110.
On 12 January 2024 the Respondent refused the Applicant’s citizenship application.[20] The application was refused on the basis that the Applicant did not satisfy the requirement in s 21(3)(d) of the Act.[21]
[20] Ibid 113.
[21] Ibid 10.
On 15 January 2024 the Applicant sought review of her refusal decision to the Administrative Appeals Tribunal.[22]
[22] Ibid 1.
Since filing her initial application, the Applicant has lodged the following further material with the Tribunal:
(a)Letter from Dr Tina Purdon dated 21 November 2013;[23]
(b)Clinical psychological report of Dr Paul Grech dated 20 June 2024;[24]
(c)Updated report of Dr Paul Grech dated 18 October 2024;[25]
(d)Supplementary updated report from Dr Paul Grech dated 24 January 2025;[26]
(e)Two-page letter from the Applicant’s husband detailing her mental health and physical health issues (undated);[27]
(f)Legal submissions from the Applicant’s former legal representatives, Farrell Rose Migration Lawyers dated 25 October 2024;[28]
(g)Various NDIS documents in relation to the Applicant’s son;[29] and
(h)Letter from Ms Sara-Lynn Hind, Speech Pathologist dated 22 January 2024 regarding the Applicant’s son.[30]
[23] Ibid 189.
[24] Ibid 165-73.
[25] Ibid 174-83.
[26] Ibid 184-8.
[27] Ibid 190-1.
[28] Ibid 192-6.
[29] Ibid 197-209.
[30] Ibid 210.
Tribunal hearing
A hearing was held in person at the Tribunal’s Melbourne Registry on 28 May 2025. The Applicant was represented by her husband (Mr Hussein Ibrahim Nur). The Respondent was represented by Ms Mary Baras-Miller, lawyer, from the Australian Government Solicitor. The Applicant was assisted during the proceedings by a Somali interpreter.
The Tribunal received into evidence the following materials:
(a)Exhibit R1: Joint Tender Bundle lodged 26 May 2025 comprising 210 pages of material;
(b)Exhibit R2: Respondent’s Statement of Facts, Issues and Contentions dated 29 November 2024; and
(c)Exhibit R3: Respondent’s Updated Statement of Facts, Issues and Contentions dated 14 May 2025.
The Applicant gave oral evidence to the Tribunal on 28 May 2025 and was cross-examined. It became apparent to the Tribunal that the Applicant was quite distressed during proceedings. At the completion of her evidence, the Tribunal made several unsuccessful attempts to make video contact with the Applicant’s next witness Dr Paul Grech. Following discussions with the Applicant’s representative and the Respondent, the Tribunal agreed to adjourn the hearing to 30 May 2025. The Tribunal suggested to the Applicant’s representative that the Applicant might feel more comfortable continuing the hearing via video at her home, which the Applicant’s representative agreed to.
On 30 May 2025 the Tribunal hearing resumed via video with the Applicant’s husband continuing to assist the Applicant. On this date, the Applicant called evidence from the following witnesses:
(a)Dr Paul Grech, Clinical Psychologist; and
(b)Dr Sultan Noormohideen, General Practitioner.
The hearing was concluded that day and the Tribunal reserved its decision.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(3) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets each of the six criteria listed under that section.
Section 21(3)(d) relevantly provides:
(3) A person is eligible to become an Australian citizen if the Minister is satisfied 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;
Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.
Citizenship Policy and Procedural Instructions
The Australian Citizenship Policy Statement (Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued on 26 February 2021) provide guidance for decision-makers exercising power under the Act. Whilst the Policy and CPI are not binding on the Tribunal, decision-makers should generally apply such policy unless there are cogent reasons not to do so.[31] The Tribunal finds that there is no reason why the Policy and CPI should not be applied in this case and has therefore relied upon it in considering the matter before it.
[31] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The relevant CPI in this case is CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2).[32] The purpose of CPI 2 is to identify the legal requirements and related policy and procedures that apply to the assessment of an application for conferral of Australian citizenship under s 21(3) of the Act.[33]
[32] Exhibit R1, 142.
[33] Ibid.
Paragraph 6 of CPI 2 deals with assessing incapacity. Paragraph 6.1 provides as follows:[34]
There are two parts to paragraph 21(3)(d) of the Act. The first part is the applicant must have a permanent or enduring physical or mental incapacity at the time of application. The second part is the incapacity is the direct cause of the applicant not being capable of:
• understanding the nature of the application; or
• demonstrating a basic knowledge of the English language; or
• demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
[34] Ibid 147.
Paragraph 6.2 provides that an enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.[35] The CPI provides that:[36]
When assessing applicants who suffer from physical or mental incapacity, one consideration would be whether these are short-term or long-term conditions. Short-term conditions generally do not meet this criterion.
[35] Ibid 148.
[36] Ibid.
Paragraph 6.3 provides that the incapacity must be the direct cause of the applicant not being capable of:[37]
• 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).
[37] Ibid.
Paragraph 7 provides guidance for assessing mental incapacity. That paragraph provides that to ensure the integrity and consistency of decision-making, applicants claiming permanent or enduring mental incapacity must provide evidence from either a psychiatrist, medical practitioner or psychologist.[38] That paragraph further provides:[39]
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 such 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.
(Emphasis added).
[38] Ibid.
[39] Ibid.
ISSUE TO BE DETERMINED
The Tribunal needs to determine whether it can be satisfied that, at the time the Applicant made her application, she was suffering from a permanent or enduring physical or mental incapacity that directly caused her to be incapable of understanding the nature of her application or demonstrating a basic knowledge of English or an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.[40]
EVIDENCE
[40] Exhibit R2, 4 [14].
Reports of Dr Paul Grech, Clinical Psychologist
Dr Grech provided the Tribunal with three expert reports in this matter. In his first report dated 20 June 2024, he advised that the Applicant was a patient of his since her referral to him in April 2024.[41] Dr Grech reports that the Applicant has been diagnosed with generalised anxiety, extreme stress, lowered energy, recurrent major depression, disturbed sleep and PTSD.[42] He reports that due to her depression and PTSD, the Applicant has been unable to learn English, study or prepare for the citizenship test.[43] He notes she is the primary carer of her son who has high care needs.[44]
[41] Exhibit R1, 165.
[42] Ibid.
[43] Ibid.
[44] Ibid.
Dr Grech noted that she has a mental incapacity due to her depression and PTSD. He stated that these conditions severely impact her ability to learn and acquire new information.[45] He reports that her major depression and PTSD is an enduring incapacity, in that her depression has been treated, but she is still considered incapacitated as a result of the depression.[46] He said that in his opinion, she has been suffering from a permanent and enduring mental incapacity that impacts her ability to understand the nature of the application, demonstrate a basic knowledge of the English language and demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship.[47]
[45] Ibid 166.
[46] Ibid 167.
[47] Ibid 168.
Dr Grech’s further report dated 18 October 2024 concluded that:[48]
In the examiner’s opinion, Ms. Hussein’s incapacity is enduring and permanent and is not treatable in the sense that she cannot and is unable to demonstrate a basic understanding of the application or a basic knowledge of English or an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship by way of an Australian citizenship test. Furthermore, on the balance of probabilities, her diagnosis of PTSD and Major Depression and the relevant symptoms would have been present at the time she lodged her citizenship application on 16 August 2022, based on the medical history, the temporal origin and enduring nature of the conditions.
[48] Ibid 178.
In Dr Grech’s further updated report dated 24 January 2025 further opined that the Applicant’s incapacity is indeed enduring and permanent and not treatable, and that she cannot and will not be able to demonstrate a basic or sufficient understanding of the application or a basic knowledge of English or an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.[49]
[49] Ibid 187.
He also concluded that in his opinion, her diagnosis and symptoms would have been present at the time she lodged her citizenship application on 16 August 2022 because of her psychiatric conditions of longstanding duration preceding 16 August 2022 (as per her history, the nature of her psychiatric conditions and the medical records considered together).[50]
[50] Ibid.
Dr Grech’s oral evidence
Dr Grech said the Applicant was referred to him by Dr Noormohideen in 2024. He said that he assessed and diagnosed the Applicant as suffering from complex PTSD, chronic fatigue, chronic depression, anxiety and poor sleep hygiene. He said in his opinion the Applicant was suffering from PTSD well before 2021, and that PTSD is not easily treated. He said it is a chronic, recurring condition. Dr Grech said that PTSD can be treated but it cannot be cured. He said that it is a serious, recurring psychiatric condition. Dr Grech said that complex PTSD can remain a disabling condition.
During cross-examination, Dr Grech agreed that the Applicant’s disrupted schooling and education might be a factor as to why she can’t undertake English classes but maintained that the primary issue is the Applicant’s PTSD. He said PTSD has a disabling effect on memory, capacity, and learning ability. He said it doesn’t appear that the Applicant’s PTSD can be treated or managed in the future and that in his opinion, it is a permanent condition. He said one might see a slight or transient improvement, but PTSD of the Applicant’s severity requires management over an extended period of time.
Correspondence from the Applicant’s treating doctors
Dr Tina Purdon provided a letter in support of the Applicant dated 21 November 2013.[51] Dr Purdon wrote that the Applicant has been a patient of her practice since May 2013. She reports that the Applicant has been suffering with low mood, stress, poor sleep and anxiety over concerns for her family abroad.[52]
[51] Ibid 189.
[52] Ibid.
Dr Noormohideen wrote in November 2023 that the Applicant suffers from severe depression and has recently started on medication.[53] In December 2023, he wrote that he sees the Applicant at least once a month, and that he suspects she is suffering from underlying depression and PTSD.[54] He also stated that the Applicant has presented to her local hospitals’ emergency department at least eight times in the last six months with multiple complaints.[55]
[53] Ibid 108.
[54] Ibid 107.
[55] Ibid.
Dr Noormohideen’s oral evidence
Dr Noormohideen said he has been her treating doctor since 15 February 2021. He said he commenced the Applicant on pain medication and a mood stabiliser in August 2021. He later commenced the Applicant on anti-depressant medication in November 2023.
Under cross-examination, Dr Noormohideen said he saw an improvement in her condition after commencing the Applicant on anti-depressant medication. He has also referred her for other treatments such as physiotherapy to help manage her pain.
Other material

The Applicant’s husband wrote a letter to the Tribunal in support of his wife.[56] He confirmed he and the Applicant have four children. He informed the Tribunal about his wife’s medical and mental health conditions. He stated that the Applicant is unable to sleep at night and displays high levels of anxiety. He needs to attend all of her appointments with her as she won’t attend unless he is present.[57] He said the Applicant is unable to complete daily living tasks without his support. He wrote that she experienced trauma in both Somalia and Uganda, and this has caused her a lot of distress. He said that the Applicant is unable to read or write in any language, even in her own language. He said she has struggled with her mental health since she arrived in Australia.[58]
CONTENTIONS
[56] Ibid 190-1.
[57] Ibid 190.
[58] Ibid 191.
Applicant’s contentions
The Applicant’s previous legal representatives wrote submissions on the Applicant’s behalf in October 2024.[59]
[59] Ibid 192-6.
It was submitted that it was Dr Grech’s expert opinion that the Applicant satisfies the two limbs of s 21(3)(d) being that she has an enduring and permanent mental incapacity that is not treatable and as a result is incapable of:
·understanding the nature of the application; or
·demonstrating a basic knowledge of the English language; or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.[60]
[60] Ibid 195.
It is further submitted that in Dr Grech’s expert opinion the incapacity existed at the time of the Applicant’s application for Australian citizenship on 16 August 2022.[61]
[61] Ibid 196.
Respondent’s contentions
The Respondent contends that the evidence before the Tribunal does not permit a finding that the Applicant suffers a permanent physical or mental incapacity that directly causes her to be incapable of demonstrating a basic knowledge of the English language or means that she cannot understand the nature of her application or demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.[62]
[62] Exhibit R3, 1 [5].
It is contended that there is no explanation as to how Dr Grech arrived at a conclusion that the Applicant is suffering from an incapacity that is ‘enduring and permanent and not treatable.[63]
[63] Ibid 2 [7].
The Respondent contends that Dr Grech’s findings are based on the Applicant’s self-report, and that it appears he did not conduct any clinical or cognitive testing to support his findings.[64] Further, the Respondent submits that Dr Grech appears to consider that the Applicant’s illiteracy is as a result of her disrupted education and inability to take English classes because of her carer responsibilities.[65] The Respondent submits that whilst her circumstances are sympathetic, and her reasons for being unable to undertake English study are understandable, they are not circumstances captured by s 21(3)(d) of the Act.[66]
[64] Ibid.
[65] Ibid 2 [8].
[66] Exhibit R2, 6 [32].
It is therefore contended that the Applicant does not satisfy s 21(3) of the Act, and the decision should be affirmed.[67]
[67] Exhibit R3, 2 [9].
CONSIDERATION
The Tribunal considers that there is clear expert opinion from Dr Grech that the Applicant has a permanent and enduring physical or mental incapacity that impacts her ability to understand the nature of the application, demonstrate a basic knowledge of the English language and demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship.[68]
[68] Exhibit R1, 168.
In Dr Grech’s expert opinion her incapacity is indeed enduring and permanent and not treatable.[69] The Tribunal accepts Dr Grech’s finding that her diagnosis and symptoms would have been present at the time she lodged her citizenship application on 16 August 2022.[70]
[69] Ibid 187.
[70] Ibid.
The Tribunal accepts Dr Grech’s opinion, which was clear, unequivocal and consistent across his three expert reports and oral evidence to the Tribunal. It was also consistent with the evidence of the Applicant’s current treating general practitioner, Dr Noormohideen. Dr Noormohideen stated that he has treated the Applicant since February 2021 (prior to her making her citizenship application) and noted that, in his opinion, the Applicant has been suffering from major depression and PTSD. Prior to this report, the Applicant was seen at the same clinic by a different treating physician (Dr Tina Purdon) who noted the Applicant’s high levels of stress and anxiety in 2013.
CPI 2 requires evidence from one of either a psychiatrist, medical practitioner or psychologist. In the Applicant’s case she has provided three expert reports from her treating psychologist, and two reports from her treating general practitioner. The Tribunal accepts their opinion both individually and collectively.
The Tribunal therefore considers that the Applicant satisfies the requirements of s 21(3)(d). The Tribunal finds that the Applicant has a permanent or enduring physical or mental incapacity, and that incapacity existed at the time she made her application. The Tribunal finds that her incapacity is the direct cause of the Applicant not being able to understand the nature of the application, demonstrate a basic knowledge of the English language, or demonstrate and adequate knowledge of Australia and the responsibilities and privileges of citizenship at that time. Again, this finding is consistent with Dr Grech’s expert opinion which is accepted by the Tribunal.
CONCLUSION
The correct or preferable decision in this case is that the Applicant satisfies s 21(3)(d) of the Act at the time she made her application for Australian citizenship.
DECISION
The decision under review is set aside and remitted with the direction that the Applicant satisfies s 21(3)(d) of the Act.

Dates of hearing: 28 and 30 May 2025

Applicant: In person

Advocate for the Respondent: Ms Mary Baras-Miller

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	28 and 30 May 2025
Applicant:	In person
Advocate for the Respondent:	Ms Mary Baras-Miller
Solicitors for the Respondent:	Australian Government Solicitor