Kalali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 1209
•27 May 2024
Kalali and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1209 (27 May 2024)
Division:GENERAL DIVISION
File Number: 2023/4775
Re:Sawsan Fadhil Khorshid Kalali
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:27 May 2024
Place:Brisbane
The decision under review is affirmed.
.............[SGD]............
Member D. Cosgrave
Catchwords
CITIZENSHIP – refusal of application for citizenship – citizenship test – citizenship by conferral – Citizenship Procedural Instructions (CPI 2) – permanent or enduring physical or mental incapacity – claim for exemption based on mental incapacity – whether applicant suffers from a permanent or enduring mental incapacity – medical evidence considered –decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Butrus v Minister for Immigration and Border Protection [2019] AATA 239
Chaang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
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
Harbi v Minister for Immigration, Border Protection, Citizenship Services and Multicultural Affairs [2020] AATA 1347
Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
Laalaa v Minister for Immigration and Border Protection [2015] AATA 579
Minister for Home Affairs v G and Another (2019) 266 FCR 569
MLBR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Re Aston v Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429
Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21Secondary Materials
Australian Citizenship Procedural Instruction 2 – Permanent or Enduring Physical or Mental Incapacity
REASONS FOR DECISION
Member D. Cosgrave
27 May 2024
INTRODUCTION
Application for Review
Ms Kalali was born in 1967 and is an Iraqi citizen. On 18 October 2017, Ms Kalali was granted a Partner (subclass 100) permanent visa.[1] She arrived in Australia on 21 December 2017.[2]
[1] Exhibit R2: T12, page 208.
[2] Exhibit R2: T1, page 207.
On 7 April 2022, Ms Kalali applied for Australian citizenship by conferral under section 21 (2) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3] After applying, Ms Kalali indicated that she wished her application to be assessed against s 21(3) of the Act on the basis that she had a ‘permanent or enduring mental or physical incapacity’.[4]
[3] Exhibit R2: T5, page 145.
[4] Exhibit R2: T12, page 13.
Ms Kalali provided two letters of support from Dr Syed Alam dated 18 March 2022 in support of her application.[5]
[5] Exhibit R2: T4, page 124-125 and page 126-127.
On 28 June 2023, a delegate of the Minister (‘the Respondent’) refused Ms Kalali’s citizenship application as they were not satisfied that Ms Kalali met the criteria under s 21(3)(d) of the Act (‘the Reviewable Decision’).[6]
[6] Exhibit R2: T1, pages 8 - 23.
The delegate found that the medical evidence provided by Ms Kalali was insufficient to establish that Ms Kalali was suffering from a permanent or enduring physical or mental incapacity that impacted on her ability to understand the nature of her application, demonstrate a basic knowledge of English or demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship.
On 29 June 2023, Ms Kalali applied to the Tribunal for review of the Reviewable Decision.[7]
[7] Exhibit R2: T1, page 1.
The matter was heard in Brisbane via video on 4 March 2024. Ms Kalali attended the hearing in person and represented herself with the assistance of her daughter Fatema. Ms Kalali gave evidence with the assistance of an Arabic language interpreter. Ms Ervin of Clayton Utz appeared for the Respondent.
The following documents were tendered into evidence (they are attached to this Decision and marked ‘Annexure A’):
·Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1).
·Section 37 T-Documents (including Ms Kalali’s driver’s licence[8]) (Exhibit R2).
·Letter from Clayton Utz to Ms Kalali dated 29 August 2023 (Exhibit R3).
·Ms Kalali’s Physiotherapy Progress Report dated 28 August 2023 (Exhibit R4).
·Ms Kalali’s Occupational Therapy Progress Report dated 28 August 2023 (Exhibit R5).
LEGISLATIVE FRAMEWORK
Australian Citizenship Act 2007 (Cth)
[8] Exhibit R2: T4, page 136.
Consideration of citizenship application
Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve a person becoming an Australian citizen.
Subsection 24(1A) of the Act provides that the Minister (or a person delegated by 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) of the Act.
Eligibility criteria
The criteria and general eligibility requirements for the conferral of Australian citizenship are set out in section 21 of the Act. The provisions relevant to the determination of this application are as follows:
Application and eligibility for citizenship
1A person may make an application to the Minister to become an Australian citizen.
General eligibility
2A 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.
Subsections 21(2)(d), (e) and (f) can only be satisfied if an applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
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)).
Successful completion of the citizenship test is an integral requirement for the consideration of a grant of citizenship. The test is designed to establish that an applicant both understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement regarding their competency in the English language.
Exemption from the citizenship test
By virtue of s 21(3) of the Act, if the Minister is satisfied that an applicant who meets the general eligibility and residence requirements but is unable to meet the requirements of ss 21(2)(d),(e) or (f), due to ‘a permanent or enduring physical or mental incapacity, at the time the person made the application’, is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, then the Minister may grant citizenship to them. The relevant provisions of s21(3) are as follows:
‘Permanent or enduring physical or mental incapacity
3A 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’
Senior Member Taylor SC outlined the operation and effect of s 21 in Khodeir and Minister for Immigration and Border Protection:
‘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.
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”).’[9]
[9] Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499 at [2].
Citizenship policy
Australian Citizenship Procedural Instruction 2 - Permanent or Enduring Physical or Mental Incapacity (‘CPI 2’) provides policy guidance to decision-makers on the interpretation and exercise of powers under the Act. The Tribunal will generally apply such policy unless there are cogent reasons not to do so.[10]
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] (Brennan J).
CPI 2’s role is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply CPI 2 as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
‘Policy is not law. A statement of policy is not a prescription of binding criteria.’
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so.[11]
[11] Ibid.
In relation to s 21(3), CPI 2 states:[12]
[12] Exhibit R2: T3, pages 102-104.
6. Assessing incapacity
Delegates may require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of a particular case. For example, a person who has a genetic condition that was diagnosed many years previously by a biochemical or genetic test, does not require updated testing. Confirmation from their General Practitioner as to the management of their condition is acceptable.
Delegates may also obtain an applicant’s migration files, which may confirm that they have a genetic condition or congenital anomaly. Especially if there is any inconsistency or ambiguity on whether paragraph 21(3)(d) of the Act is satisfied.
When applicants are requested to provide reports from a specialist, they must be given the form available in SM - Request for evidence of a permanent or enduring physical or mental incapacity (VM-6889).
6.1 The two parts of paragraph 21(3)(d) of the Act must be met
There are two parts to paragraph 21(3)(d) of the Act. The first part is the applicant must have a permanent or enduring physical or mental incapacity at the time of application. The second part is the incapacity is the direct cause of the applicant not being capable of:
·understanding the nature of the application; or
·demonstrating a basic knowledge of the English language; or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
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).
6.4. Disability pensioners
Recipients of disability pensions may not meet the requirements set out in paragraph 21(3)(d) of the Act. While they may have a physical or mental incapacity that prevents them from working, it may not prevent them from being capable of:
·understanding the nature of the application; or
·demonstrating a basic knowledge of the English language; or
·demonstrating an adequate knowledge of Australia, and the responsibilities and privileges of Australian citizenship.
The eligibility test undertaken by Centrelink for disability payments may be undertaken to assess the person’s ability to work, however, is not relevant to the requirements set out in the Act.
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.
and
7.3. Evidence of mental incapacity
Delegates rely on the evidence of mental incapacity that is contained in the specialist reports.[13]
[13] Exhibit R2: T3, page 104.
To meet the criteria under the Act, an applicant must have a ‘permanent or enduring mental incapacity’ which results in an applicant being unable to understand the nature of their citizenship application or acquire basic English language competency or understand the responsibilities and privileges of citizenship.
To demonstrate this, the applicant must produce evidence from a qualified medical practitioner which shows that their 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.’[14]
EVIDENCE BEFORE THE TRIBUNAL
Medical reports
[14] Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
Dr Syed Alam, Consultant Psychiatrist
In his reports dated 18 March 2023,[15] Dr Alam stated that:[16]
‘Ms Kalali is a current client of our service and I am writing this letter in my capacity of her treating psychiatrist. Ms Kalali is well known to the health services for a long standing history of Major Depression which was diagnosed many years back in context of Post-Traumatic Stress Disorder.’
and
‘Diagnosis:
As mentioned earlier Ms Kalali suffers from Major Depressive Disorder and Post Traumatic Stress Disorder. Both conditions are fully diagnosed and considered permanent.’
and
‘Ms Kalali gives short and brief answers. Her ongoing depressive symptoms include low mood, inability to enjoy life, lack of motivation, lack of energy levels, blunted affect, cognitive slowing, social isolation, apathy and poverty of speech along with poor problem-solving skills and decision making ability and her memory remains poor. All these findings seem to be directly related to his underlying depressive illness. She has good insight into her condition and remains adherent with her medications. Ms Kalali denied any current or past thoughts, plans or intensions of harm to self or others and her overall judgment seems to be intact. Ms Kalali continues to have symptoms of PTSD including nightmares, flashbacks, panic attacks, social anxiety and hypervigilance.’
[15] Exhibit R2: T4, pages 124-127.The only apparent difference between the 2 reports is a handwritten correction on one about the quantity of Lovan prescribed whereas on the other it is printed.
[16] Exhibit R2: T4, pages 126-127.
Dr Syed repeats the Post Traumatic Stress Disorder observation in his 27 January 2023 letter of support.[17]
[17] Exhibit R2: T10, page 204.
Mr Kevin Ho, Physiotherapist
Mr Ho’s 29 August 2023 report was conducted under the auspices of the National Disability Insurance Scheme (NDIS) to determine Ms Kalali’s physical performance and whether she requires support care, allied health therapy intervention or other services to address any dysfunctions she may have.[18] The report clearly states that it goes to physical performance, as opposed to mental impairment.
[18] Exhibit R4.
Ms Chante Marone, Occupational Therapist
Ms Marone’s 28 August 2023 report also appears to have been conducted under the auspices of the NDIS.[19]
[19] Exhibit R5.
Ms Marone states that:
‘Sawsan is known with several conditions such as major depressive disorder, post-traumatic stress disorder, suicidal ideation, and adhesive capsulitis, as well as several other conditions affecting her daily functioning - as sighted in the Functional Capacity Evaluation made available to the therapist.’
and
‘Sawsan is receiving the following services (as reported by Sawsan and her daughter, and sighted in the previous Functional Capacity Evaluation dated 09/08/2022):
·Support coordination: Appropriate
·Support workers: Support workers
·Occupational Therapy for assessment, reporting and therapy.
·Sawsan also previously engaged with a Mental health Support Worker Practitioner, however reported that she does not see her any longer.
·Sawsan also receives medical invention, such as GP visits and Psychiatry appointments.
Sawsan currently lives in a department of housing property with her two daughters. Sawsan has not learned English and requires complete assistance from her eldest daughter Zahra. Zahra has since started working, in order to receive an income on behalf of the household; however, still assists Sawsan with her activities of daily living.
The following concerns/obstacles were reported at the start of intervention:
·Sawsan reported that she has functional engagement in her personal care tasks, and requires no assistance or therapy, therefore.
·Sawsan required assistance with self-management tasks such as administering medication and engaging in a routine.
·Sawsan experienced difficulty engaging in social settings, due to her social skills, confidence, and language barriers.
·Sawsan required the appropriate assistive technology devices to assist her with her personal and hygiene tasks.
The above are direct obstacles that were preventing Sawsan from reaching her NDIS goals.’
Ms Kalali’s oral testimony
Ms Kalali told the Tribunal she had experienced difficult psychological times since she was young and that after losing her husband some time ago her mood was not good, she could not sleep well, she did not socialise, and she is always worried.[20] She said that she sees a psychologist under NDIS and that she is not on a mental health plan. [21]
[20] Transcript, page 4, lines 20-32.
[21] Transcript, page 6 and page 7.
In cross examination she admitted that she did not see Dr Alam is frequently as he had recommended.[22]
[22] Transcript, page 9, lines 11-28.
She also provided the following rationale in cross-examination:
‘Ms Kalali: Okay. I’ve got a question about me being granted a citizenship. Given my conditions, I’m not able to sit or pass the exam 25 (indistinct). I’ve got two brothers left in Germany, I want to visit them. One of my daughters has to be with me all the time, I want to be – we’ve been here for six years, we want to travel overseas, without a citizenship I am not able to travel to see my brothers. Is there a way for me to be granted a citizenship to be able to travel with my daughters?’[23]
[23] Transcript, page 10, lines 23-29.
The Tribunal, noting the difficulties in accurately assessing witnesses’ credibility due to translation, assessed Ms Kalali as a self-interested witness with a tendency to avoid detail where it did not help her position.
Respondent’s submissions
The Respondent contends that Ms Kalali has not provided sufficient evidence to support her claim that she satisfies the requirements of s 21(3)(d) of the Act.
Ms Kalali has provided four reports from various medical practitioners, described above, in support of her application. However, only Dr Alam was suitably qualified as there is no evidence that Mr Ho or Ms Marone is, as required under CPI 2, 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 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.
The reports of Mr Ho and Ms Marone appear to have been prepared for the purpose of supporting a request to extend supports provided to Ms Kalali by the NDIS. While it could be contented that, if Ms Kalali is a participant in the NDIS, this suggests that she has an incapacity of some kind, the Respondent contends that there is insufficient information available to the Tribunal to draw an inference that any incapacity is of the sort specified in s 21(3)(d) of the Citizenship Act, and doing so would be contrary to the guidance set out in paragraph 6.4 of the CPI (quoted above). In particular, there is no information about any disability that may have formed the basis of a decision to grant Ms Kalali access to the NDIS or what impact that disability may have on her.
While Dr Alam describes certain symptoms that he has observed Ms Kalali to display and has expressed the view that those symptoms seem to be directly related to her psychiatric illness, he does not explain why or how Ms Kalali’s depression or post-traumatic stress disorder cause those symptoms. He also does not explain how Ms Kalali’s depression, or post-traumatic stress disorder, or the symptoms that he describes observing, would cause one of the three matters (understanding the application, basic knowledge of English and adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship) that the Tribunal needs to be satisfied on.
Dr Alam’s reports do not address:
·the treatment provided to the Applicant at any treatment sessions;
·the effectiveness of the sessions on Ms Kalali over time;
·when or how Dr Alam reached his diagnoses that Ms Kalali suffers from Major Depression and Post-Traumatic Stress Disorder - notably, there is no discussion in the results of any cognitive or other clinical testing that was undertaken prior to the Applicant's diagnoses;
·whether, and if so how, the suggested Major Depression or the suggested Post-Traumatic Stress Disorder impacts Ms Kalali 's mental capacity;
·when Ms Kalali's claimed mental incapacity commenced;
·whether Ms Kalali is currently being treated under a treatment plan;
·if Ms Kalali is being treated under a treatment plan - the number of treatment plans developed for the Applicant, the treatment(s) recommended for Ms Kalali in each of her treatment plan(s) and the duration of each of Ms Kalali's treatment plan(s);
·whether any formal psychometric, cognitive or clinical assessments have been administered to Ms Kalali (and, if administered, the results of those assessments);
·whether, and if so how, Ms Kalali's claimed mental incapacity impacts her ability to understand the application for Australian citizenship (s 21(3)(d)(i)) or demonstrate knowledge of the English language (s 21(3)(d)(ii)) or the responsibilities and privileges of Australian citizenship (s 21(3)(d)(iii)); and
·whether her mental incapacity prevents her from accessing and benefitting from services provided to those who claim poor English literacy.
The Respondent contends that in those circumstances, the evidence currently before the Tribunal is not sufficient to establish that Ms Kalali had (or now has) a relevant ‘permanent or enduring physical or mental incapacity’ for the purposes of paragraph 21(3)(d) of the Citizenship Act.
The Respondent further argues that even if the Tribunal were to accept that Ms Kalali had a ‘permanent or enduring physical or mental incapacity’, none of the evidence before the Tribunal articulates any causal connection between that incapacity and any of the matters specified in paragraph 21(3)(d) of the Citizenship Act.
In particular, the Respondent contends that the evidence before the Tribunal does not establish that Ms Kalali had a ‘permanent or enduring physical or mental incapacity’, preventing her from:
·understanding the nature of her citizenship 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.
The Tribunal should not be satisfied that, at the time of the application, Ms Kalali had a permanent or enduring mental incapacity such that she meets the criteria in s 21(3)(d) of the Act.
CONSIDERATION AND REASONS
The Tribunal is required to consider and determine whether Ms Kalali qualifies under s 21(3)(d) of the Act to be granted an exemption from having to undertake the citizenship test.
As Senior Member Puplick observed in Butrus v Minister for Immigration and Border Protection [2019] AATA 239 at [61], in order for the requirements of s 21(3)(d) to be satisfied, there must be established a ‘clear causal connection’ between a permanent or enduring physical or mental incapacity at the time of the citizenship application and one of the three requirements in s 21(2)(d), (e) and (f) termed by Senior Member Taylor SC in Khodeir as ‘awareness’, ‘English’ and ‘knowledge’.
To address whether Ms Kalali qualifies under s 21(3)(d) of the Act for an exemption, the evidence and testimony before the Tribunal must be considered and assessed to determine whether they support the following findings:
·that Ms Kalali has a permanent or enduring physical or mental incapacity; and
·that there is a direct causal link between this incapacity and her lack of understanding of the nature of the citizenship application (‘awareness’), or her lack of basic knowledge of the English language (‘English’), or her lack of adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship (‘knowledge’).
Did Ms Kalali have a permanent or enduring mental incapacity at the date of her citizenship application?
In assessing the professional opinions before it, the Tribunal finds that only Dr Alam has the prerequisite qualifications (as a psychiatrist) specified in CPI 2.
The Tribunal observes that in reaching his observations and conclusions contained in his reports or letters of support in relation to Ms Kalali, Dr Alam did not conduct any objective or standardised psychometric tests of Ms Kalali.
Consequently, the Tribunal considers and finds that Ms Kalali has not established that she has a ‘permanent or enduring physical or mental incapacity’ under the Act’s requirements.
Is there a causal link between any permanent or enduring mental incapacity and any of the matters specified in paragraph 21(3)(d) of the Act?
While it may be that Ms Kalali has some level of ‘permanent or enduring physical or mental incapacity’ based on the medical reports before the Tribunal, none of the evidence before the Tribunal articulates any causal connection between that incapacity and any of the matters specified in paragraph 21(3)(d) of the Act.
CONCLUSION
Based on the evidence before it, the Tribunal is not satisfied that Ms Kalali had a permanent or enduring mental incapacity at the date of her citizenship application, nor that she has established a causal connection between any such incapacity that she may have and the matters specified in paragraph 21(3)(d) of the Act. The result is that Ms Kalali does not meet the requirements of s 21(3)(d) of the Act entitling her to an exemption from the citizenship test.
DECISION
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member D Cosgrave
.............[SGD]...........
Associate
Dated: 27 May 2024
Date of hearing: 4 March 2024 Applicant: Self-represented with assistance from her daughter, Ms Fatema Kalali Solicitors for the Respondent: Ms Kate Ervin
Clayton UtzANNEXURE A – DRAFT EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT’S DOCUMENTS
R1
Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’)
R
20/12/2023
20/12/2023
R2
Respondent’s T Docs
R
Unknown
24/07/2023
R3
Attachment A - Letter to the Applicant requesting further information
R
29/08/2023
28/02/2024
R4
Sawsan Kalali - Physiotherapy Progress Report August 2023
R
29/08/2023
29/11/2023
R5
Attachment C - Sawsan Kalali OT Progress Report-August 2023
R
28/08/2023
29/11/2023
1
3
0