Idem and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 68

Idem and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 68 (6 February 2025)
Applicant/s:  Wansa Idem
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/0183

Tribunal:General Member M. Carey
Place:Melbourne
Date:6 February 2025

Decision:The Tribunal sets aside the Minister’s decision of 12 December 2023 under review and remits the matter for reconsideration in accordance with the following Direction:
At the time of the decision of 12 December 2023, and all times subsequent, the Applicant suffered and continues to suffer from a permanent or enduring physical or mental incapacity that means she is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship or a basic knowledge of the English language within the meaning of s 21(3)(d)(ii) and (iii) of the Australian Citizenship Act 2007 (Cth).

................................[sgd]........................................
General Member M. Carey
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – permanent or enduring physical or mental incapacity – incapacities both physical and mental to be considered – whether incapacity means applicant for citizenship is not capable of demonstrating a basic knowledge of the English language – whether incapacity means applicant for citizenship is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship – section 21(3)(d) Australian Citizenship Act 2007 (Cth) – decision under review is set aside and remitted for reconsideration
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Butrus v Minister for Immigration and Border Protection [2019] AATA 239
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FFFL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 394
Kalali and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1209
Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Procedural Instructions – CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Statement of Reasons

Ms Wansa Idem is a 55 year old woman from Iraq who arrived in Australia in April 2017 as the holder of a Global Special Humanitarian (subclass 202) visa granted a little time earlier. She was then living in Syria as a refugee from Iraq. Ms Idem left Iraq in early 2007.
Having lived in Australia for 6 years, Ms Idem made an application for Australian citizenship by conferral on 3 January 2023. That application was lodged with the Department of Home Affairs on 13 January 2023.
Her application was rejected by the Minister's delegate on the grounds that she did not satisfy s 21(3)(d) of the Australian Citizenship Act 2007 (the Citizenship Act). She was advised of the Minister's decision by letter sent on 12 December 2023 attaching a decision record.[1] The reasons for decision explained:[2]
I am not satisfied that the information in the reports provided by Dr Samir Ibrahim and psychologist Stevie Marcus are sufficient to demonstrate that your incapacity was present at the time of applying for citizenship. The letter dated 29 September 2021 addresses the psychological condition of Wansa Rahhana IDEM. Wansa a client since April 2020, has a history of severe trauma from time in Iraq and as a refugee in Syria. The experiences have led to depression, anxiety, chronic health issues, and social isolation. Despite receiving psychotherapy and medication since 2020, the condition has not improved. Psychologist, Stevie Marcus, opines that the mental state is severe, chronic, and unlikely to change, hence the recommendation and support for citizenship exemption. The provided letter doesn't explicitly mention specific psychological testing having been conducted. The provided letter focuses on history, presentation and the psychologist's assessment of the current state of your mental health condition.
On the basis of all the evidence provided, I am not satisfied that you are suffering from a permanent or enduring physical or mental incapacity that impacts on your ability to understand the nature of the application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship. I therefore find that paragraph 21(3)(d) has not been satisfied.
[1] T12, 102–7. References with the prefix ‘T’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[2] T3, 14–5.
Ms Idem applied to the Administrative Appeals Tribunal on 9 January 2024 for review of the Minister's decision. In that application she stated that she met all the criteria for the citizenship application and in particular, she met the disability criteria due to her ‘lifelong diagnosis’.
The Minister now accepts that the Applicant suffers from a permanent or enduring mental incapacity and did so at the time that the decision was made. The Minister accepts that this mental incapacity was ‘the PTSD and Depression diagnosed by Dr Ibrahim’.[3] Dr Samir Ibrahim is Ms Idem’s treating psychiatrist, a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP).
[3] Respondent’s Amended Statement of Facts, Issues and Contentions, [52].
The Minister however maintains the opposition to Ms Idem’s application on the ground that the existence of the identified incapacity does not mean that Ms Idem is not capable of understanding the nature of the application for citizenship or demonstrating either a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. In addition, the Minister rejects that there is any other permanent or enduring mental or physical incapacity relevant to Ms Idem’s capability in respect of the matters set out in the relevant provision.
Legislation
Section 24 of the Citizenship Act, so far as is relevant to this review, states:
24 Minister's decision
(1)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.
Note: The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Section 21(3) of the Citizenship Act states:
(3)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)       is aged 18 or over at the time the person made the application; and
(b)       is a permanent resident:
(i)        at the time the person made the application; and
(ii)       at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i)is not capable of understanding the nature of the application at that time; or
(ii)is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii)is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f)is of good character at the time of the Minister's decision on the application.
The Minister’s decision noted that all other requirements save for subsection (3)(d) were satisfied, though no assessment was made of the ‘good character’ requirement at s 21 (3)(f) of the Citizenship Act.
The Minister’s representative referred me to various decisions of this Tribunal in relation to the manner in which this section had been construed in the past. In one decision by Senior Member Puplick, Butrus and Minister for Immigration and Border Protection [2019] AATA 239 (Butrus), there was a helpful discussion of the background to s 21(3)(d) of the Citizenship Act which I reproduce:
25.This section of the Act resulted from the government’s consideration of the Australian Citizenship Test Review Committee (Woolcott Committee) report, Moving Forward …Improving Pathways to Citizenship which reported in August 2008.
26.Prior to that date s 21(3)(d) established citizenship eligibility where the person had
“a permanent physical or mental incapacity, at the time the person made the application, that means the person is not capable of understanding the nature of the application at that time.”
27.      The Woolcott Committee recommended as follows:
In looking closely at the legislation, the Committee believes that there is scope for improving the exemption provisions regarding “mental incapacity”.
For survivors of torture and trauma, the use of a formal test which requires a high level of English proficiency, a large amount of study and familiarity in the use of a computer, significantly disadvantages them. There are many people who come to Australia under the Humanitarian Program who fall into this category.
The Committee considers the current exemption criteria do not take into consideration the effect of severe and chronic symptoms resulting from the experience of torture and trauma. These may include strong anxiety associated with learning difficulties, and while some symptoms are permanent, others, though severe, are not necessarily permanent.
Section 23A sets out the process for a citizenship test and it states in the note that the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d) understanding the nature of the application, (e) a basic knowledge of the English language and (f) an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
Therefore, “mental incapacity” is only being used as an exemption in relation to section 21(2)(d) (understanding the nature of the application) but is not included in section 21(2)(e) and (f) which require a basic knowledge of the English language and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. However, they are all relevant to citizenship testing.
Moreover, permanent physical and mental incapacity uses the words “at that time” in relation to when an application for Australian citizenship is lodged. The Committee considers that the use of “permanent” and “at that time” are contradictory when discussing mental incapacity, and in light of the consultations, is of the view that the physical and mental incapacity may not need to be permanent to satisfy the principle underpinning this exemption.
The Committee believes there will be people in this enlarged group who may never fit into the suggested alternative pathways discussed earlier in this report because their past traumatic experiences affect their ability to retain the necessary information required to pass a test.
28.It is suggested that section 21(3)(d) could be amended in the spirit of the existing Act to read:
“has a physical or mental incapacity at that time means the person is not capable due to the physical or mental incapacity of:
·     understanding the nature of the application at that time; or
·     demonstrating a basic knowledge of the English language at that time; or
·     demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.”
29.      In specific reference to the citizenship test, the Committee recommended:
Section 21(3)(d) of the Australian Citizenship Act 2007 be amended in the spirit of the Act to include an inability to demonstrate a basic knowledge of English and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship due to mental incapacity, resulting in those individuals not being required to sit a test.
30.The Government accepted the recommendations of the Committee agreeing to amend section 21(3)(d) to
“ensure that the test does not disadvantage vulnerable people who most need our support.”
31.The change to the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009.
Examining the test of the Act and understanding the nature of the amendment in its setting it can be seen that incapacity may arise from any physical or mental ailment or disorder and not to the exclusion of any one element contributing to the incapacity. The applicant for citizenship under such a disability rendering them vulnerable ought not be disadvantaged by artificial separation of physical incapacity against mental incapacity. All may contribute to the relevant incapacity I must consider.
Secondly, the adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship is very much one that would otherwise be ‘demonstrated’ (to use the word in subs 21(3)(d)(ii) of the Citizenship Act) by passing the Citizenship test. An incapacity that means an applicant could not sit such a test is a relevant consideration.
The Minister’s submissions
The Minister submits that on the reading of the reports of Dr Samir Ibrahim, the treating psychiatrist, no conclusion could be reached that Ms Idem’s enduring or permanent condition means that she has no capacity to understand ‘the nature of the application for citizenship’, demonstrate ‘a basic knowledge of the English language’ or demonstrate an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ at the time of the Minister’s decision 12 December 2023.
The Minister further submits that in coming to any decision as to whether the Applicant satisfies the requirements of s 21(3)(d) of the Citizenship Act, I ought to be guided by the Citizenship Procedural Instruction CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2).[4] The Minister’s submission highlighted two particular paragraphs from CPI 2, particularly 6.3 and 7, so far as they are relevant, which read as follows:
[4] T15b, 142–52.
6.3. The incapacity is the reason the person is incapable
The second part is that 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). [Emphasis in the original]
…
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.
From these passages, the Minister submits that the evidence from Dr Ibrahim could not rise so high as to demonstrate that Ms Idem’s mental incapacity was the direct cause of the relevant incapacities. Further, I ought not give credence to the opinion of Ms Stevie Marcus because, though she is a treating psychologist, she lacked the relevant registration set down in CPI 2 at paragraph 7. If I were to accept such evidence from Ms Marcus, I was urged to give little weight to it.
The Minister submitted that while CPI 2 was a policy document and therefore not binding upon me, it was nonetheless relevant to my decision, and I ought to apply it unless there were cogent reasons for doing so. I was referred to the decision in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, 644–5 concerning the use by a tribunal of a statement of lawful policy as a reference point guiding the exercise of a discretion. The statement from the reasons of Brennan J (as he then was) reads:
If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.
These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

One particularly good reason for not following CPI 2 at paragraph 6.3 is because it does not reproduce the language of the statute at s 21(3)(d), which refers to ‘incapacity that means the person … is not capable’, and instead substitutes the words ‘the incapacity must be the direct cause of the applicant not being capable’. This departure from the words of the statute is evident in the decisions to which the Minister referred me for guidance:
(a)Butrus suggesting that the Applicant must have enduring incapacity ‘which results in’ the subsequent abilities, but later stated that meeting the requirements needs a ‘clear causal connection’ between ‘a significant physical or mental incapacity’ and the inability subsequently referred to in the section.[5]
(b)FFFL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where the formulation in Butrus concerning a ‘clear causal connection’ was adopted and then paraphrased as ‘a direct causal link’.[6]
(c)Kalali and Minister for Immigration, Citizenship and Multicultural Affairs where the formulation in Butrus concerning a ‘clear causal connection’ was again adopted.[7]
[5] [2019] AATA 239, [36], [61].
[6] [2021] AATA 394, [90]–[91].
[7] [2024] AATA 1209, [43].
The words of the statute characterise the ‘permanent or enduring … incapacity’ as either physical or mental but not in such a way as to be mutually exclusive. Incapacity can, and often does, come about because of the interaction of both physical and mental consequences of an injury or ailment. Many elements may act together to produce a relevant incapacitation.
Secondly, the adoption of the words ‘direct cause’ following ‘incapacity’ does not assist in the application of the words of the statute which are that the incapacity ‘means the person … is not capable’. It is an unnecessary gloss. The words incapacity ‘which results in’ adopted in Butrus are also not identical, but that expression has been given much consideration in other areas of law such as workers’ compensation where the question of incapacity for work that ‘results from’ injury have been repeatedly considered. It is worth considering the words from Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120, 129:
In determining whether incapacity results from an injury the law necessarily adopts an idea of causation which, in a sense, isolates the injury as a causative element from other elements which are taken for granted or ignored. If the addition of the injury to other concurrently existing facts brings about the incapacity, then the incapacity is regarded as resulting from the injury, although in fact it results from the injury taken together with the other circumstances.
Without pronouncing definitively on the meaning of the words ‘incapacity … that mean the person … is not capable’, I do take it that those words in the Citizenship Act at s 21(3)(d) will require a similar analysis of identified physical or mental incapacity in addition to ‘other concurrently existing facts’ and whether they are sufficient to mean that the Applicant is not capable of the various things mentioned in the section.
The analysis cannot isolate mental from any permanent or enduring physical incapacities that may have a relevant bearing on whether incapacity means that Ms Idem is not capable of the things required by the section. Hence, the reports of medical practitioners other than those in the psychiatric field cannot be excluded from consideration.
Finally, I can see no apparent good reason why I should exclude the evidence of Ms Stevie Marcus, the treating psychologist, merely because she does not hold the endorsement referred to in CPI 2. She does hold membership of the Australian Psychological Society and her post nominals notes a qualification with a higher degree in Professional Psychology. These qualifications were not disputed by the Minister beyond suggesting that they did not meet the descriptor for CPI 2’s preferred endorsements.
I do not need to rely upon Ms Marcus’ report of 29 September 2021[8] for the diagnosis of the relevant mental conditions. That has been supplied by Dr Ibrahim who is a qualified medical practitioner who holds the relevant fellowship in psychiatry. I do note that there is no difference between the two on the question of diagnosis. Ms Marcus is in a position to provide valuable insight into cognitive abilities that have been gained by Ms Idem’s engagement in psychotherapy.
[8] T4(d), 35–7.
The enduring physical or mental incapacity
Ms Wansa Idem was born in Zakho District within the Governate of Dohuk in the far northern Kurdish region of Iraq.[9] It is a few kilometres from the border with Turkey to the north and Syria in the west. Following the first Iraq war it was part of an area to provide a haven for Kurds fleeing the Saddam Hussein Region. There has been a continual history of violent attacks, bombings and intersectional conflict since that time.
[9] T4(a), 16.
Ms Idem’s early life was said to be happy with no history of mental illness according to Dr Ibrahim’s history:[10]
She reported her childhood to be happy as she said her family was wealthy, and her father was working With the Saddam Hussein's regiment in Iraq. She was successfully in schooling, and she finished a diploma of accounting. She did not work as keeping with the tradition, but after her brother was killed, she had to contribute to the income of the family, and she worked as a hairdresser for almost 13 years.
[10] Exhibit A1: Report of Dr Samir Ibrahim dated 2 June 2024, 1.
That report noted that two of her five brothers were killed by militants in Iraq, her nephew was also kidnapped and tortured in Iraq and was released after a month and remained disabled, her father died when she was 10 years of age, but her mother was killed shortly after her brothers.
Ms Idem left Iraq as a refugee in January 2007,[11] some three years after the conclusion of the second Iraq war and went to Syria where she stayed for the next 10 years. Dr Ibrahim reported:[12]
After the emergence of ISIS Militants in Iraq, her family was forced to leave the country, and they all escaped to Syria. But unfortunately, the Civil War has erupted there, and she has witnessed numerous war atrocities in the form of bombings, cadavers and body pieces in the streets, blood everywhere, bodies left to rot, and other atrocities.
[11] T4(a), 27.
[12] Exhibit A1, 1.
Ms Marcus gives further background history:[13]
Wansa presented as a depressed and anxious woman who cried profusely during her psychological consultations. She reported longstanding history of trauma whilst living in Iraq. Wansa reported that she was severely traumatised following multiple traumatic experiences from having a letter with a bullet sent to her threatening to kill her if she did not shut her hairdressing salon, to having her brother kidnapped and killed to witnessing her mother die from stroke, to experiencing car bombings and car explosions whilst on her way to church to narrowly escaping a granite that hit her balcony and witnessing corpses and human remains on the streets of Syria and Iraq.
Wansa reported that she arrived in Australia in 2018 after having lived in Syria as a refugee for 13 years. Upon her arrival to Australia, Wansa stated that she lived with her sister and her family and was exposed to emotional and verbal abuse, which resulted in her becoming homeless and couch surfing for a period of approximately 7 months, and sleeping in her care/at her friends until she was able to rent a unit. This in turn took a significant toll on Wansa’s mental health and further exacerbated depression and anxiety.
[13] T4(d), 35.
That same report noted ‘issues’ with physical health mentioning her back, bilateral carpal tunnel and a migraine disorder.
The Applicant submitted reports from Dr Ihab Chasib, the treating general practitioner, dated 27 April 2024, and from Dr Reta Suliman, a chiropractor, dated 24 May 2024. Both of these reports had been exchanged prior to the hearing and addressed by the Minister’s representative in a Statement of Facts, Issues and Contentions as well as in submissions at hearing. I have taken them in evidence as Exhibits A2 and A3 respectively. Dr Suliman reported Ms Idem suffers chronic low back pain that, taken with the complexity of her health problems, ‘affect her ability to concentrate and learn new skill or language’. That report noted that she is ‘unable to sit for prolonged periods due to the pain and nerve irritation’ which ought to support her ‘getting exempted from sitting the citizenship examinations’. She required ongoing ‘pain and nerve medications’.
The Minister’s submissions caution me against the conclusion that this is a ‘permanent or enduring physical or mental incapacity’ since is does not specifically so state. I disagree. The report of Dr Suliman refers to the results of a CT scan of the lumbosacral spine that revealed ‘degenerative facet joint disease throughout the lumbar spine. Severe spinal stenosis at L4/5 and moderate spinal stenosis at L3/4 and L2/3’. The short report of Dr Chasib refers to the CT scan and noted that there are ‘lumbar disc protrusions with partial sacralisation of L5’. There is no doubt that such degenerative spinal disease causing that degree of radiological change in a 55 year old is irreversible and, given the degree of symptomatic expression through pain preventing Ms Idem from sitting for prolonged periods, qualifies as a ‘permanent or enduring physical … incapacity’ relevant to s 21(3)(d) of the Citizenship Act.
This permanent and enduring physical condition must be considered together with the diagnosed mental condition to determine the extent of incapacity that the Minister accepts is also a permanent and enduring incapacity.
Incapacity means that Ms Idem is not capable in relevant ways
In addition to the report of Ms Stevie Marcus, the Applicant has submitted four reports from Dr Ibrahim. The Respondent submitted that the reports of Dr Ibrahim did not go so far as Ms Marcus’. In the various reports, Dr Ibrahim identified the nature of the mental incapacity by reference to his diagnosis of post-traumatic stress disorder and depression. Dr Ibrahim noted that the diagnosed conditions could have affected Ms Idem’s cognitive capacity. In particular, the following parts of the four reports by Dr Ibrahim were highlighted by the Respondent in submissions:
(a)From the report of 30 August 2022: This report was sent to the treating referring general practitioner, Dr Chasib, diagnosing ‘PTSD and severe Depression’ but also recorded that Ms Idem ‘[d]escribed poor concentration and memory due to the severe condition’.[14] The reported symptoms were recorded: ‘…nightmares and flashbacks of the traumatic scenes, nocturnal Panic Attacks; palpitation, tremors, SOB [shortness of breath], chest pain and chest tightness, sweating, dry mouth, muscle tensions and twitches, hypervigilance, helplessness, hopelessness and despair, apprehension and poor energy levels. She gets agitated when she recalls the misery’. As a report to the referring practitioner, it ventured no opinion concerning Ms Idem’s capacity to understand or demonstrate those things stated in s 21(3)(d) of the Citizenship Act.
[14] T4(e), 38.
(b)From the report of 24 November 2023: ‘Post Traumatic Stress Disorder is a Chronic mental condition, usually unremitting, and usually lifelong with very poor prognosis according to literature of the War Trauma … Post Traumatic Stress Disorder, and Depression both can affect Cognitive capacity’.
(c)From the report of 17 January 2024: PTSD ‘coupled with Depression, can affect the basic ability to focus and concentrate, which, in itself will prevent her from getting a basic knowledge of a foreign language, in this case, the English language. This will disadvantage her from understanding the nature of the application and demonstrated adequate knowledge of the responsibilities and privileges of Australian Citizenship in English’.[15]
[15] T2, 8.
(d)From the report of 2 June 2024, more detailed report running to some 5 pages including the following answers to specific questions from the Minister’s delegate:[16]
[16] Not included in the Tribunal documents. I have taken the report in as Exhibit A1.
7.Post Traumatic Stress Disorder is considered to be a permanent chronic, and in most of the cases lifelong, mental disorder. Recovery from Post Traumatic Stress Disorder, specially if it is related to war atrocities, is very difficult.
8.The treatment plan has been drawn since the first meeting, and the medications are changing in nature as well as in doses according to clinical needs and tolerability.
9.I believe the above named has been genuine in her presentation, and in her compliance in taking her medication.
10. There is no cognitive testing that was applied on her.
11.The prognosis of Post Traumatic Stress Disorder is not favourable an improvement is not complete.
12.Post Traumatic Stress Disorder and Depression can both affect the ability to be focussed as evidenced by Studies (please Review Bremner 2000). The working memory could be affected, and hence prevent the person to learn new language. This in tum affects her ability to demonstrate a basic knowledge of the English language and knowledge about Australia, and hence comprehend the application for citizenship.
The Respondent submits that the expression of the opinion that PTSD and Depression ‘can both affect the ability’ to be focussed, remember, etc, must be seen as mere possibility and not an actual conclusion that the doctor has reached, and hence I could not be satisfied that Ms Idem meets the test set down in s 21(3)(d) of the Act.
The conclusion as to whether the effects of the incapacity means that Ms Idem is not capable of the things required by the test is guided by available medical evidence. The decision is not one for the expert medical witness to feel a state of satisfaction and express an answer in the terms of the statutory test, leaving the Minister, or this Tribunal on review, to merely adopt the expert opinion. Further, the analysis of the effects will be made on all the available relevant evidence.
I have noted already that the physical effects of injury have in the opinion of Dr Suliman affected the Applicant’s ‘ability to concentrate and learn new skill or language’, that she is ‘unable to sit for prolonged periods due to the pain and nerve irritation’ and which ought to her ‘getting exempted from sitting the citizenship examinations’. I accept that conclusion.
Further to that I note the opinions of Ms Stevie Marcus, the treating psychologist in her report, that Ms Idem suffers:[17]
… from disc [pain] in her back and migraine disorder and bilateral Carpal Tunnel Syndrome, which has a significant impact on her mobility and overall functioning.
…
… symptoms including; chronic insomnia and nightmares, depressed mood, anhedonia, fatigue, withdrawal/isolation, low tolerance to frustration, low motivation, cognitive difficulties (including memory loss & poor concentration), and lack of interests in activities. In addition, she experienced post-traumatic stress symptoms including flashbacks, recurrent reminders to the trauma, anger outbursts, hyper vigilance, hyperarousal, nightmares and anxiety.
… Wansa is suffering from depression, PTSD and anxiety on a background of insomnia, multiple chronic health conditions, social withdrawal, chronic pain and changes to her lifestyle. As you can see, there are strong maintaining factors which make prognosis for this woman poor. Wansa has a substantially reduced function on a day-to-day basis. From a cognitive perspective, Wansa experiences significant cognitive defects including memory loss and lack of concentration.
[17] T4(e), 36–7.
There were no improvements to her psychological condition ‘despite prescribed psychotropic medications, as well as a undertaking psychotherapy since 2020’ according to Ms Marcus. Further:[18]
Thus, based on her presentation and the chronicity and severity of her conditions, it is my opinion that the psychological conditions have impacted on all areas of her functioning including ability to learn new things (processing information, retention, retrieval etc.,) interpersonal psychosocial and occupational.
It is my opinion, based on the history, presentation and my assessment of her condition, that her condition is severe, chronic and I do not foresee any change. Therefore, basis on my assessment of her condition(s), Wansa would not be able to successfully complete the Citizenship examination due to her mental state and I support her application for conferral without examination.
[18] T4(d), 37.
I infer from the last stated opinion, that Ms Idem would be unable to ‘demonstrate’ the ‘adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ that the Citizenship test is designed to elicit. I place emphasis on the word ‘demonstrate’ as it appears in the section in relation to ‘not capable of’ set out in s 21(3)(d)(iii) of the Act. That conclusion is not made on the basis that the test requires a knowledge of English, a language that Ms Idem does not have. I accept the opinion of Ms Marcus on that basis that assuming if it were possible to take the test in Arabic, her native tongue, that she would not be able to adequately complete it, because of the cognitive difficulties which would preclude her capacity to demonstrate adequate knowledge of Australia of the responsibilities and privileges of Australian citizenship.
Taken together with the physical ailment’s contribution, I find that Ms Idem’s incapacity from physical and mental conditions mean that she would not be capable of ‘demonstrating a basic knowledge of the English language’. There is ample evidence, which I accept, to show that her physical and mental conditions cause her great physical pain that needs treatment by medication and, with the cognitive effects of her mental condition, affect her ability to sit and concentrate for extended periods necessary to learn a language or acquire the knowledge of Australia and the responsibilities and privileges of citizenship, let alone be capable of demonstrating that knowledge.
Accordingly, I find that at least two limbs of the test set out in s 21(3)(d)(ii) and (iii) of the Citizenship Act were satisfied at the time of the Minister’s decision on 12 December 2023 and continue to the present time.
DECISION
It follows that the decision of 12 December 2023 must be set aside and the matter must be remitted with the following Direction:
At the time of the decision of 12 December 2023, and all times subsequent, the Applicant suffered and continues to suffer from a permanent or enduring physical or mental incapacity that means she is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship or a basic knowledge of the English language within the meaning of s 21(3)(d)(ii) and (iii) of the Australian Citizenship Act 2007 (Cth).

43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of General Member M Carey

...............................[sgd]..................................
Associate
Dated: 6 February 2025

Date of hearing: 28 January 2025

Advocate for the Applicant: Ms Emilia Nazari, Northern Community Legal Centre

Advocate for the Respondent: Mr Adam Slevison, Australian Government Solicitor

Date of hearing:	28 January 2025
Advocate for the Applicant:	Ms Emilia Nazari, Northern Community Legal Centre
Advocate for the Respondent:	Mr Adam Slevison, Australian Government Solicitor