Husseiyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 3011

Husseiyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3011 (19 August 2020)

Division:GENERAL DIVISION

File Number:          2019/3914

Re:Fatme Husseiyan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:19 August 2020

Place:Sydney

The Tribunal affirms the decision under review.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring physical or mental incapacity – hip dysplasia – osteoporosis – major depressive disorder – illiterate in Arabic and English – never attended English classes – never attempted the citizenship test – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

19 August 2020

INTRODUCTION

1. The applicant, Ms Fatme Husseiyan, is a citizen of Lebanon. She first arrived in Australia on 10 August 2006 and currently holds a Resident Return (subclass BB-155) permanent visa.

2. On 24 April 2018, Ms Husseiyan lodged an application for Australian citizenship by conferral (other situations) under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). In her application, Ms Husseiyan declared that she had ‘a permanent or enduring physical or mental incapacity’.[1]

   [1] Exhibit T-T3, page 19.

3. This application was refused by a delegate of the Minister for Home Affairs (the Minister)[2] on 12 June 2019, on the basis that Ms Husseiyan did not meet the requirement in paragraph 21(3)(d) of the Act, namely that she had a permanent or enduring physical or mental incapacity at the time she made her application.

   [2] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 28 June 2019, Ms Husseiyan made an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard by the Tribunal in Sydney on 29 July 2020. Ms Husseiyan attended the hearing and gave oral evidence by conference telephone with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Relevant to this application, the general eligibility requirements for Australian citizenship are set out in subsection 21(2) of the Act as follows:

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (d)  understands the nature of an application under subsection (1); and

   (e)  possesses a basic knowledge of the English language; and

   (f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; …

8. Pursuant to subsection 21(2A) of the Act, paragraphs 21(2)(d), (e) and (f) of the Act are met if, and only if, a person has sat and successfully completed a citizenship test.

9. Subsection 21(3) of the Act sets out the following requirements for a person who has a permanent or enduring physical or mental incapacity:

   (3)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (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; …

10. In practical terms, paragraph 21(3)(d) of the Act operates to exempt persons who have a permanent or enduring physical or mental incapacity from being required to sit and pass a citizenship test: see paragraphs 21(2)(d), (e) and (f) and subsection 21(2A) of the Act.

    Citizenship Policy

11. The Citizenship Policy offers guidance on the interpretation and application of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

    [3] [1979] AATA 179; (1979) 2 ALD 634.

12. The Citizenship Policy provides the following guidance on the evidence that is required to establish that a person has a permanent or enduring physical or mental incapacity:

    …applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

    -    understanding the nature of their application

    -    demonstrating a basic knowledge of the English language or

    -    demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    …

    To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.

    A temporary physical or mental condition does not meet the requirement.

    …

    Physical incapacity

    Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner. The specialist must also be a fellow of a specialist organisation as defined in Schedule 4 of the Health Insurance Regulations 1975…or the Federal Register of Legislation website.

    Mental incapacity

    Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

    -    psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

    -    medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

    -    psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

    …

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

    General Practitioners

    General practitioners who also could be 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 4 of the Health Insurance Regulations 1975…[4]

    [4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7, pages 71-73.

    EVIDENCE OF MS HUSSEIYAN

13. In her application for review to the Tribunal, Ms Husseiyan stated:

    I was born in a village. I have no education neither Arabic or English and I suffer major depression and I am on many medications. I ask the Tribunal to review my case because I cannot do the English test.[5]

    [5] Exhibit T-T1, page 2.

14. At the hearing, Ms Husseiyan said that she did not learn to read or write Arabic in Lebanon. She came to Australia in 2006 with her nephew; however, she did not participate in English language classes because she was ‘helping with her nephew’.

15. Ms Husseiyan said she has never attended or attempted to attend English language classes in Australia. She has not accessed resources available in the Arabic language to assist her to prepare for the citizenship test or attempted to sit a practice citizenship test online. She said she is unable to sit the citizenship test because she is ‘not able to concentrate’, suffers from ‘shortness of breath’ and hardly leaves her home due to a ‘problem with [her] legs’.

16. Ms Husseiyan told the Tribunal that she applied for Australian citizenship because she ‘lives in this country’ and ‘wants to vote’. She also said her Lebanese passport has expired and she wants to be able to travel to see her family in Lebanon.

    MEDICAL EVIDENCE

    Dr Victor Tadros (general practitioner)

17. Ms Husseiyan’s treating general practitioner, Dr Tadros, provided medical reports dated 30 April 2020 and 7 July 2020 that described her conditions as severe bilateral hip dysplasia, osteomalacia and osteoporosis, hypertension, chronic anxiety, panic disorder and major depression, and listed her current medications. In his report dated 30 April 2020, Dr Tadros wrote that Ms Husseiyan:

    …is illiterate, [and] never received any schooling back in her home country Lebanon. She is unable to speak English and is unfit to be trained for any vocation.[6]

    [6] Exhibit S-S3, page 106.

18. Dr Tadros’ medical records for Ms Husseiyan were produced under summons and are also before the Tribunal. These include Dr Tadros’ consultation notes from his appointments with Ms Husseiyan during the period from 3 May 2010 to 17 October 2019.[7] These records describe Ms Husseiyan’s medical conditions, referrals to specialists and medications; however, there are no references to her application for Australian citizenship or notes about whether she had a permanent or enduring physical or mental incapacity at the time she applied for Australian citizenship on 28 April 2018.

    [7] Exhibit S-S2, pages 35-51.

    Dr Ian Gotis-Graham (rheumatologist)

19. Dr Gotis-Graham has provided written reports dated 29 August 2013, 12 December 2013, 15 October 2014, 24 October 2016, 16 November 2016, 11 November 2019 and 23 July 2020.

20. Dr Gotis-Graham’s reports on 24 October 2016, 16 November 2016 and 11 November 2019 have most relevance to the time when Ms Husseiyan made her application for Australian citizenship on 24 April 2018. In his report on 24 October 2016, Dr Gotis-Graham stated Ms Husseiyan has been diagnosed with osteomalacia (a loss of bone density), and ‘bilateral hip dysplasia with destruction of both hip joints and superior localisation of the left hip joint’.[8] He described treatment for Ms Husseiyan’s bilateral hip dysplasia as:

    Panadol Osteo 4/day. She can use NSAIDs for more severe episodes of pain… she will eventually need hip replacement surgery. She does not want [to] consider hip replacement surgery at this stage.[9]

    [8] Exhibit S-S2, page 82.

    [9] Exhibit S-S2, page 82.

21. Dr Gotis-Graham noted that Ms Husseiyan had requested ‘a report for Centrelink’ and then stated:

    In view of the severe bilateral hip disease, she has permanent restrictions on her ability to work including: no standing for more than 10 minutes, no walking for more than 10 minutes and no lifting objects more than 5 kg.[10] [emphasis added]

    [10] Exhibit S-S2, page 83.

22. The report by Dr Gotis-Graham on 16 November 2016 also referred to Ms Husseiyan being diagnosed with and receiving treatment for osteoporosis.

23. Dr Gotis-Graham’s report dated 11 November 2019, more than 18 months after Ms Husseiyan’s application for Australian citizenship, provided the following review of her physical conditions:

    ·osteoporosis – Ms Husseiyan experienced no loss of bone density from 2017;

    ·bilateral hip dysplasia – Ms Husseiyan should continue with pain medication and ‘will eventually need hip replacement surgery’; and

    ·osteomalacia – Ms Husseiyan should continue vitamin D.[11]

    [11] Exhibit S-S3, pages 104-105.

24. Clinical notes by Dr Gotis-Graham produced under summons provide no information about Ms Husseiyan’s application for Australian citizenship or whether she had a permanent or enduring physical incapacity when she applied for Australian citizenship on 28 April 2018.

    Mr Emad Girgis (clinical psychologist)

25. Reports by Mr Girgis are dated 30 March 2017, 13 September 2019 and 28 April 2020.

26. On 30 March 2017, Mr Girgis noted Ms Husseiyan completed minimal education as a child, her ‘literacy skills are not strong’ and she ‘reported struggling to learn a new language’.[12]

    [12] Exhibit T-T3, page 59.

27. Based on Ms Husseiyan’s presenting symptoms and his clinical assessment, Mr Girgis diagnosed her with ‘Major Depressive Disorder with Panic Attacks’ in accordance with DSM-5[13] [emphasis in original]. He noted Ms Husseiyan’s:

    …psychological symptoms interfere with her cognitive ability to adequately perform during examination environment. In addition to her psychological symptoms interfering with her cognition, Mrs Husseiyan has minimal literacy skills and finds it difficult to learn new information. The fear of failing the test, has exacerbated her psychological condition. Thus, placing Mrs Husseiyan in a viscous [sic] cycle.[14]

    [13] Exhibit T-T3, page 59.

    [14] Exhibit T-T3, page 60.

28. In his report on 13 September 2019, a period more than 16 months after Ms Husseiyan’s application for Australian citizenship, Mr Girgis stated that she ‘reported experiencing significantly reduced concentration and memory’.[15] However, he observed that she did not exhibit ‘any formal thought disorders’, displays ‘normal perception’ and was:

    alert and orientated to time, place and person and did not present with associated disturbances or impaired judgement…[and] was able to answer questions and recall her past without difficulties.[16]

    [15] Exhibit S-S4, page 110.

    [16] Exhibit S-S4, page 110.

29. Mr Girgis then opined that Ms Husseiyan is not ‘fit [to] sit examinations as her cognitive performance will be hindered due to the severe nature of her mental disorder and physical ailments.’[17]

    [17] Exhibit S-S4, page 112.

30. On 28 April 2020, Mr Girgis reported Ms Husseiyan continues to suffer from ‘MDD [Major Depressive Disorder] (mild depression)’ and so ‘additional stresses should not be placed on her’.[18] He listed stressors such as Ms Husseiyan being required to seek employment and/or engage in training.

    [18] Exhibit S-S3, page 102.

    Dr Eddie So (consultant psychiatrist)

31. Medical records for Ms Husseiyan produced under summons also included a consultation report by Dr So dated 12 April 2019.

32. Dr So reported he had previously reviewed Ms Husseiyan two years earlier and her established diagnosis was ‘chronic anxiety, with anger issues and panic symptoms.’[19] He further noted:

    The patient [Ms Husseiyan] stated that she has been stable in the past two years. She has complied well with her medications with nil emergent adverse effects.

    On symptom review, the patient reported reduction of anxiety with no recent panic attacks. Sleep imporved [sic]. No pervasive depressed mood. She complained on [sic] chronic joint pain, otherwise nil recent hypochondriacal concerns. No binge or erratic eating. Same level of low self-esteem and increased sense of vulnerability.

    On examination, the patient was alert, attentive and passive. Mood stable, not anxious, more engaging. Reactive affect. Spontaneity. Speech concrete. Reduced burden of worries…[20]

    [19] Exhibit S-S2, page 98.

    [20] Exhibit S-S2, page 98.

    Dr Gary Banks (clinical psychologist)

33. For the purpose of this application to the Tribunal, Ms Husseiyan was referred by the Respondent’s legal representative to Dr Banks for psychological assessment.

34. Dr Banks produced a 22-page report on 17 March 2020, which set out details of a clinical interview and psychometric testing he conducted with Ms Husseiyan over a period of six hours on 11 February 2020 with the assistance of an interpreter of the Arabic language. This report included a comprehensive review of Ms Husseiyan’s background, presentation, medical and psychiatric history, understanding of Australian citizenship, and an assessment of her cognitive and psychological functioning.

35. In his evaluation, Dr Banks opined that Ms Husseiyan’s ‘clinical profile more appropriately meets diagnostic criteria for Depressive Disorder Due to Another Medical Condition, as per the DSM-5’, noting it ‘is evident that the congenital nature of her hip dysplasia has had profound and lifelong effects on her restricted mobility…’[21] [emphasis in original]

    [21] Exhibit S-S1, page 18.

36. Dr Banks concluded the following from his assessment of Ms Husseiyan:

    [A]fter assessing her ability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, it is my considered opinion that based on her performance on a battery of objective cognitive assessment measures, Ms Husseiyan’s current psychological profile would not be considered sufficient to warrant excluding her from the usual application processes for Australian citizenship. Indeed to the contrary, she demonstrated a sound ability and innate problem-solving skills when motivated and encouraged. One can speculate that from the lack of education Ms Husseiyan has received, she unfortunately has not been required to put considerable amount of cognitive ability and effort into her daily living, meaning that she has not needed to do so. With any new functioning, it takes time to learn this ability, just like it would for her to be able to learn to read Arabic and English. Further, she also demonstrated a basic knowledge of the English language as she has learnt some of the English numbers, and has acquired a receptive comprehension of quite a number of English words. It is acknowledged that she continues to experience pain issues relating to her hip and leg, which is supported by documentation and scans from radiologists, showing objective evidence to support her subjective claims of distress. Further, it is even more impressive that despite the fact Ms Husseiyan has not engaged in any English classes, she has still acquired some understanding of basic English, demonstrated the capacity to learn and retain new information, recall such information over time in the presence of distraction, as well as answer questions regarding content from the Citizenship book, and be able to retain that information over time. Considered together, these elements would, in my opinion negate, the suggestion as expressed by Mr Girgis that Ms Husseiyan ‘is not capable of demonstrating a basic knowledge of the English language’, such that she cannot undertake the Citizenship test via the usual pathway.[22] [emphasis added, footnotes omitted]

    [22] Exhibit S-S1, page 21.

    CONSIDERATION

37. The issue for determination by the Tribunal is whether Ms Husseiyan satisfies the requirements for a permanent or enduring physical or mental incapacity at the time she made her application for Australian citizenship pursuant to paragraph 21(3) of the Act.

38. As set out in the Citizenship Policy, this requires Ms Husseiyan to produce evidence from an appropriately qualified medical practitioner that she has a permanent or enduring physical or mental incapacity that means she is not capable of understanding the nature of her application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

39. I now consider the evidence in the medical practitioner’s reports in view of the requirements of the Act and Citizenship Policy.

40. In relation to Dr Tadros, I am satisfied he is a general practitioner but there is no information to show he meets the definition of a ‘specialist’ set out in the Citizenship Policy and therefore he does not meet the evidentiary requirements.

1. I make two further observations about Dr Tadros’ evidence. First, Dr Tadros’ reports dated 30 April 2020 and 7 July 2020 are more than two years after 28 April 2018, the date Ms Husseiyan made her application for Australian citizenship and the period I must consider in relation to deciding whether Ms Husseiyan had a permanent or enduring physical or mental incapacity. Second, neither the reports nor clinical notes of Dr Tadros contain any evidence to support a finding that Ms Husseiyan has a permanent or enduring physical or mental incapacity that means she is unable to sit and pass the citizenship test. For these reasons, I place no weight on the evidence of Dr Tadros.

2. With regard to Dr Gotis-Graham, Mr Girgis, Dr So and Dr Banks, I am satisfied they all meet the requirements of a ‘qualified medical practitioner’ as defined in the Citizenship Policy.

3. Dr Gotis-Graham’s reports provide detailed information about Ms Husseiyan’s physical medical conditions including her bilateral hip dysplasia, osteomalacia and osteoporosis. However, there is no information in these reports that show Ms Husseiyan has a permanent or enduring physical incapacity that means she is not capable of sitting and passing the citizenship test. Indeed, both in his reports in 2016 and 2019, Dr Gotis-Graham set out that Ms Husseiyan requires hip replacement surgery (which has been refused by Ms Husseiyan to date) and the potential for this treatment to resolve her bilateral hip dysplasia clearly raises questions about whether her condition is permanent or enduring. Further, Dr Gotis-Graham observes only that Ms Husseiyan’s bilateral hip dysplasia causes permanent restrictions on her ability to work and in particular, restricts her capacity to stand and walk for more than 10 minutes and lift more than five kilograms.

4. Based on Dr Gotis-Graham’s reports, I am satisfied there is no evidence to support a finding that Ms Husseiyan had a permanent or enduring physical incapacity at the time she applied for Australian citizenship that meant she was not able to complete the citizenship test.

5. I now consider whether Ms Husseiyan had a permanent or enduring mental incapacity at the time she made her application for Australian citizenship that means she is not capable of understanding the nature of her application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

6. I first note that the reports of Mr Girgis, Dr So and Dr Banks contain different diagnoses in relation to Ms Husseiyan’s mental health conditions.

7. Mr Girgis provided a diagnosis of major depressive disorder with panic attacks in 2017 and a diagnosis of major depressive disorder (mild depression) in 2020. Dr So stated in 2019 that Ms Husseiyan’s ‘established diagnosis’ is chronic anxiety with anger issues and panic symptoms. Dr Banks’ assessment in 2020 set out a diagnosis of depressive disorder due to another medical condition.

8. In considering the reports of Mr Girgis, I find a number of inconsistencies. Mr Girgis’ reports rely heavily on Ms Husseiyan’s reporting of her symptoms and, in particular, her perception of her concentration and memory. In contrast to Ms Husseiyan, Mr Girgis set out he observed that she has no formal thought disorders, displays normal perception, and was able to answer questions about her past without difficulty. Mr Girgis provided no clear explanation in his September 2019 report about why or how the ‘severe nature’ of Ms Husseiyan’s ‘mental disorder’ means she is unable to sit the citizenship test. He also does not explain how this view is consistent with his diagnosis in April 2020, eight months later, that Ms Husseiyan’s depression is ‘mild’. Mr Girgis does not consider that Ms Husseiyan’s illiteracy in English may relate (at least in part) to her never attending English classes or address why and how her depression affects her ability to learn and retain information. For these reasons, I place less weight on the evidence of Mr Girgis.

9. Dr So diagnosed Ms Husseiyan with chronic anxiety with anger issues and panic symptoms. In April 2019, 12 months after Ms Husseiyan’s application for Australian citizenship, Dr So reported that Ms Husseiyan had experienced a ‘reduction of anxiety’ and ‘no pervasive depressed mood’. I am satisfied the evidence of Dr So does not support a finding that Ms Husseiyan had a permanent or enduring mental incapacity at the time she made her application for Australian citizenship.

10. Finally, I note the report of Dr Banks provided a detailed assessment of Ms Husseiyan’s psychological conditions. On the basis of this assessment, Dr Banks concluded that Ms Husseiyan’s ‘current psychological profile’ did not mean that she is not able to complete the citizenship test. In view of the comprehensive and credible assessment undertaken by Dr Banks, I prefer his evidence.

11. I find there is no evidence before the Tribunal that shows Ms Husseiyan had a permanent or enduring mental incapacity at the time she applied for Australian citizenship that meant she was not able to complete the citizenship test.

    CONCLUSION

12. On the basis of all the evidence, I am not satisfied that Ms Husseiyan has a permanent or enduring mental incapacity in accordance with the requirements in paragraph 21(3)(d) of the Act.

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 19 August 2020

Date of hearing:	29 July 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Subasha Prasad, MINTER ELLISON