Jafari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 570
•18 March 2020
Jafari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 570 (18 March 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6243
Re:Sayed Jafari
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:18 March 2020
Place:Sydney
The decision under review is affirmed.
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Mr Rob Reitano, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – whether permanent or enduring physical or mental incapacity at the time the applicant made the application – where insufficient evidence of permanent or enduring mental incapacity at the time of application – PTSD – major depression – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
National Health Act 1953 (Cth) s 9
Social Security (Administration) Act 1999 (Cth) Sch 2, cl 4
CASES
Fanning v Secretary, Department of Social Services [2014] AATA 447
Issa v Australian Community Pharmacy Authority [2012] AATA 374
REASONS FOR DECISION
Mr Rob Reitano, Member
18 March 2020
INTRODUCTION
This case is yet another illustration of the strictness of the conditions that apply to people who seek to obtain citizenship by conferral under ss.21(3)(d) of the Australian Citizenship Act 2007 (Cth) (Act). It emphasises the need for those people who seek to engage those provisions to bring persuasive evidence about their permanent or enduring physical or mental incapacity to show that they satisfy the requirements of that section.
On 7 July 2015 Dr Reza Pishyar (Dr Pishyar) wrote a letter to the Department of Immigration and Citizenship about Sayed Mohammad Taqi Jafari (Mr Jafari). The letter referred to the fact that Mr Jafari had been under her care since 30 May 2014 and had been diagnosed by her as suffering from major depression and post-traumatic stress disorder.[1] Dr Pishyar said in her letter that it was ‘difficult for Mr Jafari to fulfil all the requirements for his citizenship application regulations and policy for the citizenship without conferral’ and asked the Department of Immigration and Citizenship to reconsider Mr Jafari’s ‘citizenship application by conferral and helping this man to overcome his citizenship dilemma and mental distress.’[2]
[1] Exhibit T1 at p. 27.
[2] supra.
The next day Mr Jafari lodged with the Department for Immigration and Border Protection an Application for Australian Citizenship Other Situations.[3] The reference to ‘Other Situations’ on the form is, as I understand it, to distinguish the application from a general application that results in an applicant having to sit the citizenship test.
[3] Exhibit T1 at p. 15.
On 10 October 2018 that application was refused by a Citizenship Officer of the Department of Home Affairs on the basis that Mr Jafari did not meet the requirements of ss.21(3)(d) concerning physical or mental incapacity.[4]
[4] Exhibit T1 at pp. 3-14.
I have decided to affirm the decision of the Citizenship Officer and what follows are my reasons for doing so.
BACKGROUND
Mr Jafari was born in Baghlah, Ghazni. Afghanistan on 31 December 1975. He is a citizen of Afghanistan who first arrived in Australia in late 2009 or early 2010.[5] After about 18 months in detention on Christmas Island he moved to Adelaide and then later to Sydney.[6] His wife and children migrated to Australia to live with him in November 2017.[7]
[5] Exhibit T4 at [6].
[6] Exhibit T4 at [7] and [10]-[11].
[7] Exhibit T4 at [20].
Mr Jafari provided a statutory declaration which set out his evidence. I accept his evidence as truthful. In his declaration he sets out some important background information, including the fact that he has made a number of attempts to learn English without success.[8] He also refers to his memory difficulties and the prescribed medication he is taking for ‘psychological issues and sleep.’[9] He refers to his constant nightmares and shouting in his dreams.[10] He says in his declaration that his ‘psychological issues, memory and concentration issues, low level of education and literacy have not allowed [a] sufficient platform upon which to learn and continue to prevent [him] from being able to learn English as second language’.[11]
[8] Exhibit T4 at [12], [14] and [21].
[9] Exhibit T4 at [26].
[10] Exhibit T4 at [31].
[11] Exhibit T4 at [33].
LEGISLATION
Sub-section 21(3) of the Act provides for one of the several ways by which a person may become an Australian citizen. It provides:
(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.
(emphasis added)
ISSUES
Mr Jafari sought to satisfy the Minister that he is a person to whom ss.21(3)(d)(ii) or (iii) applies; namely, that at the time he made his application he had a permanent or enduring mental incapacity that meant that he was not capable of demonstrating a basic knowledge of the English language or that he was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
The Minister contended that Mr Jafari did not have a permanent or enduring mental incapacity and that even if he did, that mental incapacity does not mean he was not capable of demonstrating a basic knowledge of the English language or that he was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
Although it was not initially raised by the Minister, the Minister adopted the suggestion that irrespective of what could be demonstrated as at the date of hearing, or even at some other time, it was necessary that the relevant state of permanent or enduring mental incapacity be proved to exist at the time of application, in this case, 8 July 2015.
MEDICAL EVIDENCE
There were at least 7 medical ‘reports’ from Dr Pishyar: 7 July 2015,[12] 19 November 2015,[13] 21 June 2016,[14] 15 March 2017,[15] 10 September 2019,[16] 29 January 2019[17] and 28 January 2020[18] which were provided to the Tribunal. All these medical reports, perhaps excepting the 29 January 2019 and 28 January 2020 reports, refer to various aspects of Mr Jafari’s condition describing it as ‘major clinical depression and post-traumatic stress disorder’ and referring to the medication he is on in some detail. None of the reports, other than the January 2019 and 2020 reports, say anything about the nature of the conditions and whether they are permanent or enduring. Far less do they address the consequences of these conditions in terms of ss.21(3)(d)(ii) or (iii) of the Act. Except for the 29 January 2019 report, they say nothing about Mr Jafari’s conditions at the time he made his application for citizenship.
[12] Exhibit T1 at p. 27.
[13] Exhibit T1 at p. 28.
[14] Exhibit T4, Annexure A.
[15] supra.
[16] Exhibit T4, Annexure D; Exhibit T6.
[17] Exhibit T7.
[18] Exhibit T4, Annexure E; Exhibit T5.
The report of 29 January 2019 restates the diagnosis of major depression and post-traumatic stress disorder. It says that Mr Jafari was suffering from a permanent and enduring mental incapacity ‘at the time he made the application’. Presumably, this is intended to be a reference to his major depression and his post-traumatic stress disorder. It says that ‘Mr Jafari is not capable of demonstrating an adequate knowledge of Australia and of the responsivities (sic) and privileges of Australian citizenship at the time.’[19] There is nothing to identify that Dr Pishyar had any knowledge of the date of the application. This is particularly important given that the application was made about 4 years earlier.
[19] Exhibit T7.
The report of 28 January 2020 repeats the previous diagnosis of major depression and post-traumatic stress disorder.[20] It says his mental incapacity is permanent (curiously then referring to the fact that it is unlikely to improve in the next two years rather than unlikely to ever improve) and that this permanent incapacity means that Mr Jafari is incapable of demonstrating a basic knowledge of English.
[20] Exhibit T4, Annexure E; Exhibit T5.
There are some other medical reports from a general practitioner, but these generally relate to Mr Jafari’s back condition which was not relied on at the hearing. This is not surprising as none of these reports would permit a finding of any kind about Mr Jafari’s condition as at 8 July 2015.
The Minister tendered a medical report of Dr Gary Banks dated 5 September 2019 which reflected the outcome of an assessment of Mr Jafari undertaken on 18 July 2019.[21] It is not necessary to refer to that report in any detail because of the findings I will make concerning the other medical evidence. It is enough to simply say that Dr Banks does not say anything in his report that casts much light on the nature and consequences of Mr Jafari’s mental incapacity as at 8 July 2015.
[21] Exhibit T8.
WHEN IS THE INCAPACITY TO BE ASSESSED?
In the hearing both parties attention was drawn to the words ‘at the time the person made the application’ in the chapeau to ss.21(3)(d) and the words ‘at that time’ in each of ss.21(3)(d)(i), (ii) and (iii). The Minister took up the invitation to express a view about those words and accepted that the relevant time for determining whether the criteria in the ss.21(3)(d) existed was at the time the application for citizenship was made: in this case, as I have said, 8 July 2015. Mr Jafari rejected that position and argued that such a construction was inimical to merits review.
In my opinion the words of ss.21(3)(d) clearly require that the relevant assessment of any condition be assessed by reference to the date of the application. The words ‘at the time the person made the application’ really do not admit of ambiguity. The words ‘at that time’ could only be referring to at the time the application was made and no other time.
Nor do I accept that such an interpretation is somehow inconsistent with merits review or even that it limits merits review. The legislature has identified that time as the applicable time in which the relevant state of affairs is required to be assessed. Such an approach is not at all uncommon in legislative provisions.[22] Merits review is directed at ascertaining whether the correct or preferable decision has been made and the fact that the criteria defining the correct or preferable decision is to be assessed at a particular time does not narrow or inhibit the process of review at all.
[22] Section 9 of the National Health Act 1953 (Cth) that was considered in Issa v Australian Community Pharmacy Authority [2012] AATA 374 is one example of a like provision, as is clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
Confining the time at which the state of affairs must be found to exist to a particular time or period of time does not prevent the use of evidence that comes into existence after that time or period of time if that evidence casts light on the situation at that time or during that period.[23] A medical report produced later, even years later, could be relied upon to support the existence of a condition that might have existed previously. A medical report that simply finds the existence of a condition at some later time will usually not be of great assistance to resolving the existence of the condition at some earlier time.
[23] Fanning v Secretary, Department of Social Services [2014] AATA 447 at [31] – [34] which considered the effect of Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth).
Sub-section 21(3)(d) requires me to determine whether at the time Mr Jafari made his application on 8 July 2015 he satisfied any of the conditions in ss.21(3)(d).
PERMANENT OR ENDURING MENTAL INCAPACITY?
The only medical evidence before me that directly concerns Mr Jafari’s medical condition on 8 July 2015 is Dr Pishyar’s report that was prepared one day earlier on 7 July 2015.[24] The report contains some detail, referring to Mr Jafari’s symptoms and some of his circumstances. Albeit brief it contains sufficient reasons to persuade the reader to accept the opinion expressed. I find based on that report that, at that time, Mr Jafari was suffering from major depression and post-traumatic stress disorder.
[24] Exhibit T1 at p. 27.
That unfortunately does not resolve the next issue: were those mental incapacities at that time permanent or enduring? There simply is no evidence about that. I do not accept that the 29 January 2019 report is sufficient to demonstrate that Mr Jafari’s conditions were permanent or enduring incapacities as at 8 July 2015. There are two reasons for this. The first is that it contains a bald assertion that the precise words of the statutory criteria are met without any explanation at all as to what the reasons are for the conclusion drawn. Nor does the conclusion sit neatly with the report of 7 July 2015. The second matter is, of course, is that it does not state Dr Pishyar’s understanding of what the words ‘at that (sic) time he made the application’ or ‘at the time’. I simply have no way of knowing what time Dr Pishyar’s is intending to refer to. I am unable to place any weight on this later ‘opinion’ as being something that relevantly casts light on the situation as at 8 July 2015.
I am unable to find that Mr Jafari’s major depression and post-traumatic stress disorder was a permanent or enduring mental incapacity as at 8 July 2015 when he made his application.
DID THE MENTAL INCAPACITY HAVE THE REQUIRED EFFECT?
As Mr Jafari was not suffering from a permanent or enduring mental incapacity at the time he made his application that is strictly sufficient to dispose of his application. Nonetheless, for completeness, I should add that there is no evidence before me that the incapacity he was suffering from as at 8 July 2015 was such that meant that he was not capable of demonstrating a basic knowledge of the English language or that he was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
On 7 July 2015 Dr Pishyar said that it was ‘difficult for Mr Jafari to fulfil all requirements of his citizenship application regulations and policy for the citizenship without conferral.’[25] It is true that she expressed a different opinion on 29 January 2019, but as I have explained that is not an opinion which persuades me about the effect of his condition. This is also because it is also inconsistent with the opinion Dr Pishyar expressed only one day before 8 July 2015.
[25] Exhibit T1 at p. 27.
There is no evidence that would satisfy me that Mr Jafari’s mental incapacity, even if it were permanent or enduring, was such that it meant he was incapable of demonstrating a basic knowledge of English or an adequate knowledge of Australia and of the responsibilities and privileges of citizenship as at 8 July 2015 such that satisfies the requirements of ss.21(3)(d)(ii) and (iii) of the Act.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member
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Associate
Dated: 18 March 2020
Date(s) of hearing: 16 March 2020 Solicitors for the Applicant: Ryburn Solicitors Solicitors for the Respondent: Australian Government Solicitor
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