Kadir Muhamad and Minister for Immigration and Border Protection (Citizenship)
[2019] AATA 351
•8 March 2019
Kadir Muhamad and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 351 (8 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0300
Re:Kharaman Kadir Muhamad
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:8 March 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 – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009
CASES
Butrus v Minister for Immigration and Border Protection [2019] AATA 239
Atef Khodeir and Minister for Immigration and Border Protection, [2015] AATA 499
Farhan v Minister for Immigration and Citizenship [2010] AATA 36
Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
Rahman v Minister for Immigration and Citizenship [2010] AATA 930
Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012
REASONS FOR DECISION
Chris Puplick AM, Senior Member
8 March 2019
SUMMARY OF THE ISSUES
Mrs Kaharaman Kadir Muhamad (the Applicant) appeals to this Tribunal against a decision made by a delegate of the Minister for Home Affairs to refuse her application for citizenship by conferral.
Citizenship by conferral (that is where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Australian Citizenship Act 2007 (the Act). One of those requirements is that the Applicant sits for and passes the citizenship test. However, if an applicant has “an enduring physical or mental incapacity” which is of such a nature that they cannot undertake the citizenship test, then they may be granted citizenship without so doing.
It is on this basis that the Applicant comes before the Tribunal seeking to have the Minister’s decision set aside.
HISTORY OF THE APPLICATION
The Applicant lodged an application for citizenship by conferral on 18 January 2016 and during the period April to May 2016 she sat the Citizenship Test (at Standard level – see below)) on three occasions, failing at each. The Applicant was then invited to attend a Course Based Test which she was unable to complete and then an Assisted Test, which again she failed.
On 3 January 2018 the Minister’s delegate rejected the application for citizenship and that decision was appealed to this Tribunal by the Applicant on 22 January 2018. The appeal was heard on 28 February 2019. The Applicant was assisted by her daughter and an interpreter in the Kurdish language.
THE APPLICANT’S HISTORY[1]
[1] This information is drawn primarily from the report of Dr Gary Banks: Respondent’s Statement of Facts, Issues and Contentions, Attachment report of Dr Gary K Banks dated 6 August 2018.
Mrs Muhamad was born in Iraq on 1 July 1960. Her birthplace was Suleymaniyah which is in the Kurdish heartland of Iraq and Kurdish is her native tongue. She had limited schooling in Iraq and while she is fluent in the Kurdish language she cannot read or write it.
She arrived in Australia in October 2011.
She has two sisters who live in Australia and a brother still living in Iraq. She has six children, three of whom arrived in Australia before she did and one of whom arrived with her in 2011. Two remain in Iraq. All four of her children in Australia have obtained citizenship. One of those children obtained citizenship after being exempted from undertaking the citizenship test due to his intellectual disability.
During 2012 and 2013 the Applicant attended some classes designed to help her learn English which were being undertaken at the same time by several of her children.[2] However she ceased attending these classes in order to provide care for one of her (adult) children suffering from mental health problems. For a variety of reasons the applicant encountered difficulties in her attempts to enrol in subsequent English language classes.
[2] Report of Dr Gary K Banks dated 6 August 2018 [4].
The Applicant has a long history of suffering from major depression and has been clinically diagnosed and treated accordingly.
The Applicant also has a very limited ability to recall basic information such as the exact ages of her children or her own current address. She is largely dependent upon her daughter (Bahar) who accompanied her at the Tribunal hearing for a range of support activities, although she is capable of generally looking after herself in terms of hygiene and daily activities.
THE LEGISLATIVE PROVISIONS
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.[3]
[3] 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 s 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.”[4]
[4] 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”).[5]
[5] 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[6] 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.
[6] 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.” [7]
[7] 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.
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.
SITTING 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 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 is used for those who have failed the Standard or Assisted Test on three or more occasions and involves a detailed tuition programme.[8]
[8] The Course-Based Test is no longer offered by the Department and has not been available since mid-2017. Respondent’s Statement of Facts, Issues and Contentions at [28].
The Instrument to which reference has already been made provides that a score of 75% is required and this minimum threshold cannot be varied.[9] This arrangement has been in place since the Instrument was made in March 2012.
[9] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [10], [26], [43)(iii)].
The Applicant sat the citizenship test on three separate occasions: 18 April 2016, 30 April 2016 and 7 May 2016, but failed on each occasion.[10]
[10] Respondent’s Statement of Facts, Issues and Contentions at [10].
The Applicant was invited to attend a Course-based test on 2 March 2017 which she commenced but was unable to complete (see above). On 30 June 2017 she sat an Assisted Test but again was unsuccessful.[11]
[11] Ibid at [11]-[13].
There is evidence before the Tribunal, in the form of a statement from the Applicant’s daughter (who also gave oral evidence) to the effect that the Applicant was not supplied with sufficient support, by way of either written material or personal assistance, in the Kurdish language.[12] This is also a matter to which Dr Banks makes reference in his evidence (see below).
[12] Statement by Bahar Muhamad dated 19 August 2018, Applicant’s Submission at Tab [2].
It would be most unfortunate if the Applicant’s ability to sit for and pass the citizenship test were compromised by her not being able to access assistance in her native language, or that there was any failure on the part of the Department to recognise Kurdish (as apart from Arabic) as a separate language requiring specifically designed support material. However the Tribunal is not in any position to determine whether or not that is the case.
In the event that such material and assistance were available in the Kurdish language, there is every reason to believe that the Applicant would have a much better chance of passing the citizenship test on an assisted basis.
Consequent upon this history, the Applicant subsequently advanced her claim for citizenship by conferral under the grounds provided in s 21(3)(d), namely that she has a permanent on enduring physical or mental incapacity which vitiates the requirements of ss 21(2)(d),(e) and (f).
THE MEDICAL EVIDENCE
The Tribunal has before it a number of statements from a variety of medical practitioners.
Dr M Dowla (a Consultant in Neurology and Clinical Neurophysiology) reports simply that the Applicant “is suffering from severe depression and bereavement.”[13]
[13] Applicant’s Submission at Tab [1]. Dated 23 June 2016.
Mr Arsaneh Jolan (an Endorsed Clinical Psychologist), writing in support of the applicant’s application for a Disability Support Pension reports her as suffering from severe anxiety, major depression and chronic pain.[14] In a further letter related directly to the citizenship application, Mr Jolan states: “Ms Muhamad is currently unfit to prepare or sit for the citizenship test due to psychological and physical limitations.”[15]
[14] Applicant’s Submission at Tab [1]. Dated 5 June 2017.
[15] Section 37 Tribunal Documents at [106].
Neither of these reports is accompanied by any suggestion that relevant tests have been carried out to establish these diagnoses.
On the other hand the Tribunal has a detailed report from Dr Gary Banks (a Consultant Clinical Psychologist) prepared for the specific purposes of this hearing at the request of the Minister.[16] Dr Banks (who unfortunately was not able to give evidence in person to the Tribunal) provided both a detailed history of the Applicant but also administered a series of appropriate tests and conducted a four hour assessment (which the Applicant says she does not remember) in coming to his conclusions.
[16] Respondent’s Statement of Facts, Issues and Contentions, Attachment report of Dr Gary K Banks dated 24 August 2018.
These are as follows:
(34) Mrs Muhamad presented as a sincere individual who acknowledged some awareness and understanding of the privileges for Australian citizenship. It is my considered opinion however, that in and of itself, her psychological profile would not be considered sufficient to warrant excluding her from the application processes for Australian citizenship. It is acknowledged that she continues to experience symptoms of Major Depression, though the assessed level of distress is not considered to be pervasive enough to impact her learning, as shown during testing.
(35) On the basis of supplied documentation, information attained at Mrs Muhamad’s interview, administration of measures to assess Mrs Muhamad’s cognitive functioning, it is my view that she does not appear to be suffering from a permanent or enduring physical or mental incapacity, nor to have been suffering from such a condition that would mean that she was not capable of:
Understanding the nature of the application; or
Demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
(36) There is little evidence however to suggest that Mrs Muhamad is able to demonstrate anything but a most basic knowledge of the English language (at a receptive language level), though this in part is also attributable to lack of exposure to English in her day to day living. This combined with the absence of any instructional citizenship material in Kurdish, means that achieving a functional knowledge of citizenship requirements will present a considerable and ongoing challenge for Mrs Muhamad, hence the government delegate representing the Minister may need to be able to detail for the Tribunal what additional support measures are going to be provided for Mrs Muhamad to assist her.”
CONSIDERATIONS
It is not possible for the Tribunal to go beyond the evaluation, assessment and conclusions of Dr Banks. The Tribunal acknowledges that the report of Ms Jolan comes to a different conclusion and thus the Tribunal has to prefer one report over another in relation to its own conclusions. Preference is given to Dr Banks’ conclusions due to the more detailed and thorough assessment presented, the evidence of the application of relevant tests and a more detailed appreciation of the processes of the citizenship test regime.
The Tribunal must thus conclude that the evidence before it establishes that the Applicant fails to meet the requirements as set out in s 21(3)(d) of the Act and the relevant guidelines in the Citizenship Policy.
The Applicant indicated that one of the reasons why she sought citizenship was that it
might facilitate her ability to travel and that she wanted to be able to return to Iraq to
see remaining family there. A desire for citizenship to facilitate travel is not unusual in
applications bought under this section of the Act, see Ravichandran,[17]Khodeir,[18] Farhan[19] and Rahman.[20]
[17] Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463 at [5] and [9].
[18] Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499 at [18].
[19] Farhan v Minister for Immigration and Citizenship [2010] AATA 36 at [7].
[20] Rahman v Minister for Immigration and Citizenship [2010] AATA 930 at [13].
This stated intention also displays some appreciation of one of the privileges of Australian citizenship and, in her oral evidence the Applicant noted that, although she could travel on Australian documents because she holds a permanent resident visa,[21] she would feel more secure with a “real” document, namely an Australian passport.
[21] Respondent’s Statement of Facts, Issues and Contentions at [42].
AN ALTERNATIVE PATH
The Applicant will attain the age of 60 years on 1 July 2020. At that stage she will be eligible to make an application for citizenship under section 21(4) of the Act. That provides:
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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) understands the nature of the application at the time the person made the application; and
(d) 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
(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.
Although it is not within the remit of the Tribunal in these proceedings to make a determination in relation to this matter, it does appear that the Applicant would satisfy the requirements of subsections (a)(i), (b), (d), (e) and (f) and Dr Banks’ report suggests (as did her evidence before the Tribunal) that she would also satisfy the requirement of subsection (c).
It is open to the Applicant to make such an application next year and in that fashion she may, all other things being equal, be able to satisfy her genuine desire to join the Australian community as a full citizen.
That however is a matter for another day and another determination.
Decision
The Applicant fails to satisfy the requirement of s 21(3)(d) of the Act because she does not have “an enduring physical or mental incapacity” which is of such a nature that she cannot undertake the citizenship test.
The decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 8 March 2019
Date(s) of hearing: 28 February 2019 Advocate for the Applicant: Ms B Muhamad Solicitors for the Respondent: Ms R Law, Clayton Utz
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