Keophomma and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 61
•3 February 2025
Keophomma and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 61 (3 February 2025)
Applicant/s: Souksavanh Keophomma
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2023/8334
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:3 February 2025
Decision:The Tribunal decides to set aside the reviewable decision to refuse the Applicant’s application for Australian citizenship by conferral and remits it for reconsideration in accordance with the direction that the Applicant satisfies s 21(3)(d) of the Australian Citizenship Act 2007.
.........................[SGD]....................................
General Member S. Fenwick
Catchwords
CITIZENSHIP – application for citizenship by conferral – citizenship test – multiple failures to complete test – whether Applicant suffers from a permanent or enduring mental incapacity at the time of application – consideration of evidence regarding mental health and intellectual functioning – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2023 (Cth)Australian Citizenship Act 2007 (Cth)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Statement of Reasons
BACKGROUND
Mr Keophomma applied on 9 November 2023 for review of the decision of a delegate of the Respondent Minister dated 14 October 2023 refusing his application for Australian citizenship by conferral.
Mr Keophomma is a national of Laos and has lived and worked in Australia since 1989, largely in a casual capacity in the agricultural sector. He applied for Australian citizenship by conferral on 21 March 2023, and subsequently during the course of that year Mr Keophomma either failed to attend or to pass the prescribed citizenship test on multiple occasions.
It was on this basis that the delegate determined that Mr Keophomma did not satisfy certain elements under s 21(2) of the Australian Citizenship Act 2007 (the Act) which, under s 21(2A) of the Act, are taken to be satisfied only if an applicant has successfully passed the test.
In his application to the Tribunal, Mr Keophomma lodged a range of medical material and stated as follows:
I have difficulty passing the Test because everytime I seat on the Test, I had anxiety and panic attack. No matter how hard I study and prepare the test, I just froze and and couldn’t do them.
I had this problem since my heart attack on 27/5/2022. Since the heart attack, I frequently have anxiety and panic attack when under pressure.
For this reason the application has been understood as enlivening s 21(3) of the Act, which addresses circumstances in which an applicant for citizenship by conferral may have a permanent or enduring physical or mental incapacity that inhibits their ability to satisfy the requirements of the Act.
Mr Keophomma lodged the following material:
(a)Report of Dr Paul Hancok, general practitioner, dated 14 May 2024;
(b)Report of Mr Robert Postlethwaite, clinical psychologist, dated 3 June 2024;
(c)Report of Mr Postlethwaite, dated 27 September 2024.
The Respondent lodged materials under s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents) and a Statement of Facts, Issues and Contentions (RSFIC).
The following persons gave evidence at the hearing: Mr Keophomma, with the assistance of an interpreter in the Lao language; his wife, Mrs Sokom Keophomma; and Mr Postlethwaite.
LEGISLATION
The relevant general eligibility requirements in s 21 of the Act are:
(2) A person is eligible to become an Australia citizen if the Minister is satisfied the that the person:
…
(d) understands the nature of an application under subsection (1); and
(e) possesses basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australia citizenship;
…
(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 the 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.
Subsection 21(3) provides for permanent or enduring physical or mental incapacity, relevantly, as follows:
…
(d) has a permanent and 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
…
The Citizenship Procedural Instructions (CPI) are a source of guidance to decision-makers and it is consistent with well-established judicial authority that these be taken into account to aid in consistency, unless there are good reasons not to do so. The relevant CPI in this matter is Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2). In summary, it provides:
(a)two different forms are provided for application for citizenship by conferral, one for those applying under general eligibility requirements, and one for other situations including physical or mental incapacity or impairment [4.2];
(b)in some cases, an applicant will be required to lodge a new application if incapacity or evidence to support a claim was not present at the time of application [4.3];
(c)a report from a specialist in the field of incapacity may be required [6];
(d)enduring incapacity is one for which there cannot be a predicted recovery, or where any predicted recovery is in the long term [6.2];
(e)the incapacity must be the direct cause of the applicant’s inability to satisfy the legislated requirements for citizenship [6.3];
(f)a person who is illiterate may not necessarily have incapacity, unless associated with a brain injury or learning disorder [6.3]; and
(g)mental incapacity must be supported by evidence from a psychiatrist or clinical psychologist [7].
ISSUES
The issue before me is whether the Applicant had a permanent or enduring physical or mental incapacity at the time of his application for citizenship.
EVIDENCE
Mr Keophomma gave evidence about his life and work, largely focused on his casual work in fruit picking in various locations. He acknowledged that he had applied for citizenship twice in the past. When taken to his latest application he was asked why he did not disclose an impairment. Mr Keophomma was unable to give particularly precise evidence about his understanding of his situation, stating that he did not know it was important to get diagnosed or treated.
When asked about intellectual impairment, Mr Keophomma stated that he did not see it this way. Rather, he considered that he was unable to understand English and had an inability to retain memories. When asked if he had ever undertaken English language training, Mr Keophomma responded that he was not interested because he knows that everything he learns does not go inside his brain; ‘it’s just really hard’. He stated that he found the citizenship test very hard and did not consider assistance would help because of his limited knowledge and education, referring again to his problems with memory.
Mr Keophomma acknowledged he took anti-depressant medication and had counselling with Mr Postlethwaite. In response to questions from myself Mr Keophomma stated that he was assisted when completing the application for citizenship, but was unable to recall discussing the questions when completing the form.
Mrs Keophomma stated that she and the Applicant do not speak the same language but communicate with some common understanding of Thai. She arranged for the Applicant to see a psychologist because of his constant repetition of things. Mrs Keophomma was unable to identify when she first noticed this but understood him to have a memory problem due to his repetition and considered that this was before his heart attack. She stated that her sister assisted the Applicant complete his application and that the Applicant has taken anti-depressant medication since his heart attack.
Mr Postlethwaite stated that he has seen Mr Keophomma on five occasions, and had not attempted to communicate with him in English. When asked if he thought the Applicant could pass the citizenship test with assistance he replied in the negative. This was because Mr Keophomma is ‘very borderline’ in terms of intellectual functioning, and his ability to understand questions and retain information is very limited. Mr Postlethwaite stated that he considers this to be a lifelong condition and a generalised impairment.
Mr Postlethwaite described the Applicant’s medication as being an old form anti-depressant prescribed for pain issues and sleep, and with no anti-anxiety impact. He agreed that there is a connection between what appears to be underlying anxiety and Mr Keophomma’s intellectual functioning.
I summarise briefly the contemporary medical material lodged in this matter:
(a)Dr Hancock confirms the Applicant’s experience of heart attack in 2022, together with some other conditions, and states: ‘illness and incapacity has been complicated by depression and a further decline in his cognitive and functional capacity’;
(b)he states further that he considers the Applicant has no capacity to understand the nature of his application for citizenship, to demonstrate a basic knowledge of English, or to understand the privilege of citizenship, and that he has permanent and enduring incapacity;
(c)Mr Postlethwaite states in his first report, based on one meeting, that the Applicant presents as ‘a man of below average intelligence’ and with minimal capacity to learn, and minimal grasp of abstract concepts;
(d)Mr Postlethwaite also opines that the Applicant has no self-confidence to undertake tests and experiences ‘paralysing anxiety’ when confronted with tasks that assess his ability or understanding;
(e)in his second report, Mr Postlethwaite describes his administration of psychometric testing to assess the Applicant’s intellectual functioning, using instruments that do not rely on English competency or knowledge of local culture or history;
(f)Mr Postlethwaite states that the outcomes generated are ‘consistent with a person of borderline intellectual capacity’ with better performance on practical problem solving but very limited capacity for abstract thinking at the most basic levels;
(g)Mr Postlethwaite states that the Applicant’s work history is consistent with this level of functioning and that he relies on his wife to manage his life; and
(h)he concludes: ‘[t]he results of the assessment are consistent with long term permanent intellectual impairment and he lies on the borderline of low average and borderline intellectual disability’.
CONSIDERATION
The Respondent submitted, in essence, that there was no evidence at the time of Mr Keophomma’s application for citizenship that he had a relevant form of incapacity. In response, Mr Keophomma’s representative submitted that he – the Applicant – was not aware of his condition at the time of the application.
I note that Mr Keophomma’s application for citizenship was made on the form designed for general eligibility, Form 1300t (T4). This form does seek confirmation of an Applicant’s need for assistance; whether they have a disability that means they need assistance using a computer; and whether they have low English literacy. Mr Keophomma stated ‘yes’ in response to the first and third question, and ‘no’ to any disability. Self-evidently, beyond this, the form is not designed to capture information about an enduring incapacity. The form is accompanied in this case by a total of 13 documents by way of supporting evidence.
In this matter, there is clear and unequivocal professional opinion evidence from Mr Postlethwaite to the effect that Mr Keophomma has a permanent condition being borderline intellectual functioning. This is evidence that I accept, and that goes unchallenged by other evidence.
In his particular case, there is what I might call collateral or supporting evidence from the same expert that this condition results in anxiety when under the pressure of testing, and coming with the added complication that Mr Keophomma has very limited English language and comprehension skills.
Having considered the documents, and in the context of the evidence, it appears to me that it is extremely unlikely that Mr Keophomma had the capacity to make his application unassisted. There is also no dispute in this matter that he has either failed to pass or failed to attend the citizenship test on multiple occasions.
Mr Keophomma’s matter has been somewhat complicated by the selection of application form. However, given the equivocal nature of the evidence about awareness of his condition, it may well be that the Respondent’s delegates would not in any event have been presented at an earlier time with relevant claims about incapacity. For the same reason, it may well be that further information or evidence would have been required to substantiate any claim that might have been documented at the outset.
The Act merely provides that a person may be eligible for citizenship in circumstances where they have a permanent or enduring physical or mental incapacity at the time they make their application, such that it prevents the specified requirements being satisfied. I consider that the evidence demonstrates that this is indeed the case for Mr Keophomma.
CPI 2 specifies causality between the incapacity and inability to satisfy the matters identified in s 21(3)(d) of the Act. It seems to me that this indeed follows from the intent of the provision in the context of the eligibility criteria overall. Based on my findings above, I also find that Mr Keophomma’s incapacity means that he was not capable of understanding the nature of his application, did not demonstrate a basic knowledge of English, and was not capable of demonstrating an adequate knowledge of Australia, and the responsibilities and privileges of Australian citizenship.
It is fundamental to administrative review that, in the absence of some legislative bar, a decision is made on the best available material at the time of review (Shi v Migration Agents Registration Authority [2008] HCA 31). There is no reason why, in this matter, any preference or priority should be given to the Applicant’s selection of form, or to a policy preference that a new application be made.
Accordingly, I consider that the correct or preferable decision is that Mr Keophomma satisfied s 21(3)(d) of the Act at the time of his application for citizenship by conferral.
DECISION
The Tribunal decides to set aside the decision under review refusing the Applicant’s application for Australian citizenship by conferral and remits it for reconsideration in accordance with the direction that the Applicant satisfies s 21(3)(d) of the Australian Citizenship Act 2007.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of General Member S. Fenwick.
.....................[SGD]...............................................
Associate
Date(s) of hearing:
Date final submissions received:
13 November 2024
31 October 2024
Applicant:
Solicitor for Respondent:
By Microsoft Teams
Courtney Hill, Minter Ellison
Dated: 3 February 2025
0
1
3