Jarusheh and Minister for Home Affairs (Citizenship) - [2019] AATA 711

Jarusheh and Minister for Home Affairs (Citizenship) [2019] AATA 711 (12 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3131
Re:Raja Jarusheh
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:12 April 2019
Place:Sydney

The decision under review is affirmed.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship test exemption – whether the applicant suffered from a permanent or enduring physical or mental incapacity – evidence of mental incapacity – tribunal not satisfied that there is evidence of mental incapacity – decision affirmed
LEGISLATION
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth)
Citizenship Act 2007 (Cth)
CASES
Atef Khodeir and Minister for Immigration and Border Protection, [2015] AATA 499
Butrus v Minister for Immigration and Border Protection [2019] AATA 239
Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429
SECONDARY MATERIALS
Australian Citizenship Policy, effective 1 June 2016
Determination for the Approval of Citizenship Test IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012
REASONS FOR DECISION
Chris Puplick AM, Senior Member
12 April 2019

This is an appeal by Mrs Raja Jarusheh (the Applicant) against a decision made by a delegate of the Minister (the Respondent) to refuse her application for citizenship by conferral.
The original application for citizenship appears to have been signed on 12 May 2016 and date-stamped for receipt by the Department on 23 May 2016. However there is a second date-stamp on the application bearing the date 27 June 2016.[1]
[1] Section 37 Tribunal Documents at [21].
The original form is an application form (1300t) which relates to claims for “General Eligibility”. Following receipt of the original form, the Applicant provided letters from her general practitioner (Dr Solav Shareef) and a clinical and forensic psychologist (Ms Hanan Dover) to the effect that the applicant was suffering from chronic forms of post-traumatic stress disorder (PTSD) which would prevent her from undertaking the Australian citizenship test.
The relevance of the test in the schema of citizenship conferral will be discussed below but suffice it to say, at this stage, that advice caused the Delegate to assess the application under the special provisions of section 21(3) of the Citizenship Act 2007 (the Act).[2] It was an assessment based on this section of the Act which resulted in the application being formally refused on 15 May 2018.
[2] Respondent’s Statement of Facts, Issues and Contentions at [5].
On 29 May 2018 the Applicant applied to this Tribunal for a review of that decision and the matter was heard on 5 April 2019. At the hearing Mrs Jarusheh was assisted by an interpreter in the Arabic language and had the support of her son, Mr Mohammed Badawi.
PERSONAL DETAILS
The Applicant is a Palestinian lady who was born in Iraq in 1963. She is a Jordanian citizen and holds a current Jordanian passport.[3] Her family lived in Iraq and she attended school there up until Fourth Year (primary school). She says that while in Iraq her family were the subject of discrimination because of their Palestinian nationality and that she was also unable to cope very well at school. She learned to read a little Arabic and it is the only language in which she has any competence.
[3] It does not appear that the Applicant has ever visited either Jordan or Palestine.
It appears that some time in 2011 the family fled Iraq and then spent the next 5 years and 6 months in a refugee camp in Syria. The family (consisting of herself, her husband, her son and her father-in-law) were granted refugee status and all arrived in Australia in May 2012 holding Refugee (subclass 200) (permanent) visas.
Her son is now married and is an Australian citizen. The Applicant has other children, two daughters and a son living in Sweden (where there are now 10 grandchildren) and another daughter who is apparently in a “refugee camp” in Indonesia.
THE LEGISLATIVE FRAMEWORK
Claims such as this are dealt with under the provisions of s 21 of the Act which is set out below.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 21
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) 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) 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; and
(g) 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
(h) is of good character at the time of the Minister's decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period ) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
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:
(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.
In short, the system is such that a person may make an application for citizenship and, under s 24(1) of the Act the Minister must make a decision to grant or not grant that application. The Minister is obliged to make a decision and has no power to defer such decision-making.[4]
[4] The Australian Citizenship Instructions state: 39.2 Deferral of decision not possible: “Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The new Act does not allow for the deferral of decisions.”
In order for an application to be granted, an applicant must satisfy all of the 8 requirements that are listed in s 21(2);
Subsections (d), (e) and (f) of s 21(2) can only be satisfied if the applicant understands the nature of their application, possesses a basic knowledge of the English language and has an adequate knowledge of the responsibilities and privileges of citizenship.
This is established by the Applicant having to undertake and pass the citizenship test established by section 21 (2A). Ministerial Determination (Instrument) 11/088 provides that: “There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless a person has commenced a Course-Based Test.”[5]
[5] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012.
However, if the Minister is satisfied that an applicant cannot meet the requirements of ss 21(2)(d),(e) or (f) due to having “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, then the Minister may proceed to grant the citizenship application.
More generally, the provisions of this section and its operations were outlined by Senior Member Taylor SC in Khodeir:
[2] Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007…… I paraphrase those three matters as
(a) AWARENESS: — understanding the nature of the citizenship application:
(b) ENGLISH: — possessing a basic knowledge of the English language;
(c) KNOWLEDGE: — having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship.
[3] As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in ACA 2007 s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English” and “knowledge”).[6]
[6] Atef Khodeir and Minister for Immigration and Border Protection, [2015] AATA 499.
This Tribunal has set out the legislative history of section 21(3)(d) in its determination in Butrus[7] and this need not be repeated here, other than to indicate that the current form of the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 and this in turn led to the adoption of policy guidelines indicating how decision-makers should approach claims made under this section.
[7] Butrus v Minister for Immigration and Border Protection [2019] AATA 239 at [25]-[30].
They are found in the Australian Citizenship Policy which states:
“For applications received on or after 9 November 2009 for consideration under s21(3) 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.
……….
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.
……………
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.” [8]
[8] Australian Citizenship Policy at [71]-[74].
Thus, in order to meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizen application, acquiring basic English language competency or being able to understand the responsibilities and privileges of citizenship. The mental incapacity must be a causative factor.
In order to demonstrate this, the applicant must, in line with the Citizenship Policy, produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
If those conditions are satisfied, then “s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test.”[9]
[9] Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
THE CITIZENSHIP TEST
This application is significantly different from those which come before the Tribunal where applicants have actually sat for, and failed, the citizenship test and then apply to the Tribunal as per the provisions of s 21(3)(d) to have the test requirement waived on the grounds of their “enduring physical or mental incapacity”.
In this instance the Applicant claims that her “enduring physical or mental incapacity” is such that he should not be required to undertake the citizenship test at first instance. In her original citizenship application dated 12 May 2016[10] she indicated that she would need help with any such test.
[10] Section 37 Tribunal Documents at [22].
In order to assess this claim it is necessary to outline the provisions and processes of the citizenship test.
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A (4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)) and the time limits within which the test must be completed (s 23A(5A)).
Passing the citizenship test is an integral requirement for the consideration of grant of citizenship. The test is designed to establish that an applicant both understands what citizenship is all about and what their application actually means. It also establishes a basic requirement in regard to competency in the English language.
There are actually several versions of the test. The Standard Test is simply computer-based. The Assisted Test is available for persons with low literacy skills and is conducted on the computer but with the assistance of a test administrator. The Course-Based Test was used for those who have failed the Standard or Assisted Test on three or more occasions and involved a detailed tuition programme.[11]
[11] The Course-Based Test is no longer offered by the Department and has not been available since mid-2017.
The Instrument to which reference has already been made provides that a score of 75% is required and this minimum threshold cannot be varied.[12] This arrangement has been in place since the Instrument was made in March 2012.
[12] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [10], [26], [43)(iii)].
MEDICAL EVIDENCE
The Applicant submitted three sets of medical evidence, however two of these cannot be taken into account by the Tribunal in its deliberations.
There is a brief report from Dr Solav Shareef who has been treating the Applicant for some years on a regular basis.[13] His recorded diagnosis of PTSD cannot be taken into account because the Policy mandates that such a diagnosis may only be accepted where the medical practitioner is a psychiatrist, a fellow of the Australian Society of Psychological Medicine or a psychologist registered with the Psychology Board of Australia.[14] Dr Shareef possesses none of these mandated qualifications.
[13] Section 37 Tribunal Documents at [20].
[14] Australian Citizenship Policy at [63].
There are further medical reports from Dr R E Pope (a specialist neurosurgeon), Dr Nazeem Akhter (a rehabilitation specialist) and Dr Hamid Almafragy (a consultant and intervention cardiologist) all of which relate to the Applicant’s physical condition, particularly problems with her spine. However none of them relate to matters of an “enduring physical incapacity” nor a mental incapacity and, as such, they are not relevant for the Tribunal to consider.
The weight of the Applicant’s evidence rests upon the written testimony of Ms Hanan Dover, a clinical and forensic psychologist whose qualifications are accepted by the Respondent as meeting the mandated requirements of the Policy.
The Tribunal had indicated to the Applicant that the Respondent wished to have Ms Dover give oral testimony to the Tribunal at its hearing as some of her conclusions are contested by the Respondent. The Applicant informed the Tribunal that they had put Ms Dover on notice to be ready to give evidence by telephone to the hearing. During the course of the hearing both the Applicant and the Tribunal itself were in touch with Ms Dover’s office and were assured that she was present and understood that the Tribunal wished her to participate in its proceedings. However, in the event, and despite repeated adjournments and attempts, Ms Dover failed to make herself available as requested and the Tribunal had no option but to proceed on the basis of her written testimony only, without the benefit of any further interrogation or cross-examination by the Respondent. This was a most unfortunate occurrence.
Ms Dover’s evidence is contained both in a short statement dated 12 April 2016[15] and in a lengthy report dated 6 July 2018.[16]
[15] Section 37 Tribunal Documents at [18-19].
[16] Tribunal Evidence [A1].
Ms Dover’s diagnoses/conclusions may be summarised as follows, from her report of 12 April 2016:
The Applicant suffers from PTSD “that stems from her experiences during the war in Iraq before arriving in Australia as a refugee…”
“She is not competent in her literacy in the Arabic language so it will be even more difficult to be able to read the content required to read and study for the citizenship test even in Arabic.”
“Her attempts at learning English after arriving in (sic) had also proven to be unsuccessful.”

From her report of 6 July 2018:
“In terms of ongoing treatment, Mrs Jarusheh has been regularly seeing since me since (sic) 18.01.2016. Just because she was assessed in 2016 for trauma does not mean she did not have psychiatric and/or psychological conditions prior to arriving in Australia. It wasn’t until the relevant referral was made that she had started on-going mental health treatment to deal with the pre-existing torture and trauma experiences that she witnessed in Iraq.”
“Mrs Jarusheh also reported taking multiple medications for both medical and psychological issues[17] and this has impaired her ability to focus, concentrate, learn new skills, and function effectively at home. She complains of regular headaches and poor motivation and lethargy.”
[17] There are no details provided regarding the nature of the medications prescribed for any form of psychological or psychiatric condition. Prescribed medications for physical conditions are provided in other reports before the Tribunal.
Ms Dover also refers in this latter report to having administered the Harvard Trauma Questionnaire in Arabic (Ms Dover is fluent in that language) but that it was necessary in administering that test to explain things to her “because she presented with symptoms of trauma resulting from being in a conflict zone.”
There are some significant difficulties in accepting Ms Dover’s latter report without question. Although it refers regularly to the Applicant by name, it is clearly a cut-and-paste document as is revealed by the following:
1.Repetition, word for word of paragraphs from the April 2016 report;
2.Repetition of whole paragraphs in the same document;
3.The inclusion of reference to the test results of a “Mrs Al-Jazani” so that a reader cannot be sure if the relevant paragraph which refers to the results of the Harvard Trauma Test are indeed those of the Applicant, or this other person, or indeed whether this is a standard paragraph interpreting the results of that test with different names filled in for different clients.
To that extent, it is neither a very professional nor very helpful document and this issue for the Tribunal is compounded by the fact that Ms Dover was not available for cross-examination by any of the parties.
Ms Dover’s conclusions are called into some further question by the evidence of the Applicant herself in telling the Tribunal that she manages the family home and takes care of her father-in-law (and has done so since before migrating to Australia). She goes to the shops with the assistance of her son but can manage quite well when dealing with the Arabic-speaking shopkeepers of Punchbowl.
Ms Dover’s recommendations that the Applicant’s lack of intellectual or mental capacity should be regarded as being of such a nature as to exempt her from being required to undertake the citizenship test should be evaluated in the light of these findings of the Tribunal.
On the other hand, the Tribunal does not call into question the basic diagnosis of PTSD. The Tribunal asked the Applicant to describe her life in Iraq and to say something of the horrors which she witnessed while there which, together with the discrimination which she suffered as a result of her Palestinian nationality and her experiences in the refugee camp in Syria, are all persuasive of the fact that this is a more than justifiable diagnosis.
CONSIDERATIONS
The Applicant presented before the Tribunal as a lively and engaged witness, albeit engaging with the Tribunal through an interpreter. When asked about her understanding of the value of Australian citizenship she referred cogently to the fact that Australia was a country in which she felt safe and secure; she said she loved the country for its values. She listed the right to vote as one of the responsibilities of citizenship and made particular reference to the value of having an Australian passport which would allow her to travel to Sweden to see her children and grandchildren.
Ms Dover’s report suggests that the Applicant was unable to learn any significant degree of English despite attendance at 245 hours of the Adult Migrant English Program and that this should be taken as indicative of a mental or intellectual incapacity to learn more generally.
The report prepared by the Minister’s delegate casts this in an entirely different light. It states, in relation to Ms Dover’s report:
“This information is contrary to what the Department records indicate. In 2012 you (ie the Applicant) attended and completed 245 hours of Adult Migrant Education Program which you were entitled (sic) of free tuition upon migration. This information indicates to me that you have been able to learn English and benefitted from the program especially so that the AMEP is structured to meet client’s cultural and learning needs.”[18]
[18] Section 37 Tribunal Documents at [12].
The Tribunal also notes that the Applicant has indicated on more than one occasion that she has some level of literacy in being able to read basic Arabic. The Department provides support material and a resource book in 37 community languages (including Arabic) as well as a DVD version of the material to assist people in preparing for the Citizenship Test. The Test itself is multiple-choice and does not require any written English responses and finally, there are arrangements (outlined above) for assistance to be provided with the actual undertaking of the Test itself.
While accepting the diagnosis of PTSD and some degree of depression, in order to meet the requirements of the legislation these must be demonstrated to be causally connected to the inability to undertake the test. Mere diagnosis itself is insufficient as a reason for any exemption to be granted.
Referring back to the trifecta of awareness, English and knowledge, the Tribunal is satisfied on the material before it and with the benefit of the Applicant’s personal testimony that she understands the nature of the application which she has made and was active in providing answers to her son who actually completed her application form. She understood what she is doing when she made the application. Equally she appreciates the benefits and responsibilities of citizenship, her knowledge in this regard is not deficient.
Her problems with learning English seem to the Tribunal to be more directly related to her low level of literacy (but not functional illiteracy) in Arabic. Low levels of literacy in one’s native tongue compromise an ability to learn another language, but that is not necessarily the result of any enduring physical or mental incapacity.
The Harvard Trauma Questionnaire itself (whatever the Applicant’s results) is used to assess the degree of trauma suffered by refugees and may lead to a variety of diagnoses, often PTSD. It is not however a tool for assessing the mental capacity or incapacity of its test subjects. Indeed, nowhere in the evidence before the Tribunal is there anything that could be taken as a clear diagnosis to the effect that the Applicant suffers from a degree of mental incapacity, let alone on an enduring basis.
At this stage the Tribunal cannot be satisfied that the Applicant meets the requirements set out in section 21 (3A)(d) of the Act. Evidence of an enduring physical or mental incapacity is simply not present.
The Applicant is now 56 years of age and the Tribunal draws to attention the fact that under section 21(4) of the Act persons over the age of 60 who are otherwise eligible (as the Applicant clearly is) are not required to sit the Citizenship Test at all.
DECISION
The decision under review is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

................................[sgd]........................................
Associate
Dated: 12 April 2019

Date(s) of hearing: 5 April 2019

Applicant: In person

Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers

Date(s) of hearing:	5 April 2019
Applicant:	In person
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers