Khaled and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 1412

Khaled and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1412 (26 June 2019)

Division:GENERAL DIVISION

File Number(s):      2017/7145

Re:Wafaa Khaled

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:26 June 2019

Place:Sydney

The decision under review is affirmed.

...........................[SGD].............................................

Senior Member M Griffin QC

CATCHWORDS

CITIZENSHIP – refusal of application for citizenship by conferral – where Applicant has a permanent or enduring physical or mental incapacity – where insufficient evidence of permanent or enduring physical incapacity – where substantial evidence of permanent or enduring mental incapacity – where no causal connection between Applicant’s incapacity and incapacities listed at paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

REASONS FOR DECISION

Senior Member M Griffin QC

26 June 2019

1. The Applicant has applied for review of a decision refusing her application for Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act).

2. At the time of the delegate's decision the Applicant claimed that she met the criteria for a permanent and enduring incapacity on the basis of mental incapacity. She now also claims to meet these criteria on the basis of physical incapacities.

   FACTS

3. The Applicant is a citizen of Lebanon, who arrived in Australia on 31 August 1999 and was granted a Subclass 801 (Partner (Residence)) visa on 27 June 2011.

4. On 28 October 2015, the Applicant lodged an application for Australian citizenship. The Applicant sought grant of Australian citizenship under subsection 21(3) of the Act on the basis that she suffered from a permanent or enduring physical or mental incapacity. The Applicant provided medical letters from Ms Taher, Dr Attia-Soliman, Dr Levy, Dr Tadros and an emergency department discharge referral letter.

5. The Department wrote to the Applicant on 7 August 2017 to request further medical evidence, as the information provided with the application did not meet the evidentiary requirements. The Applicant responded on 12 September 2017 and provided a letter from Ms Dover, a clinical and forensic psychologist.

6. On 8 November 2017, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the application for Australian citizenship. The delegate was not satisfied that the Applicant had a permanent or enduring physical or medical incapacity that meant that she was not capable of understanding the nature of the application, not capable of demonstrating a basic knowledge of English or not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

7. The Applicant sought review of the delegate's decision before the Administrative Appeals Tribunal (the Tribunal) by application dated 25 November 2017.

   RELEVANT LEGISLATION

8. Subsection 21(3) of the Act provides:

   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 228), 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.

   THE EVIDENCE

9. The Applicant has provided a number of medical reports from various qualified medical practitioners to support her application. Reports have been provided from Dr Tadros, general practitioner, and Dr Levy, neurologist, whose expertise appears to be relevant to the Applicant’s many physical disabilities. It is unnecessary to analyse these reports in detail even although some are of relatively recent origin. It is sufficient to say that the reports of those medical practitioners do not substantiate any physical disability which can be shown to affect the Applicant’s abilities under subsection 21(3) of the Act.

10. Of greater relevance are the reports provided by two psychologists, Ms Dover and Ms Taher and a report by Dr Attia-Soliman.

11. The report of Dr Attia-Soliman is dated 2 June 2015. She considered that the Applicant suffered from “no formal thought disorder” and her “cognition was slowed by her depression.” Dr Attia-Soliman opined that the Applicant “had insight into her condition”, “her judgement was reasonable” and that she had “difficulty adjusting to her current stressors.” The ultimate diagnosis was one of chronic depression.

12. Ms Taher saw the Applicant in April and again in July 2015 for 10 sessions of therapy, concluding mid-July 2015. She likewise treated the Applicant for depression and PTSD symptoms. Relevantly she opined that the Applicant’s “daily functioning and her relationships are still negatively affected by her mental state. She needs more counselling to help stabilise her mental state and improve her physical well-being”.

13. In Ms Dover’s report the opinion was expressed that the Applicant’s “psychological and medical conditions are chronic in severity and due to unresolved past trauma from the wars in Lebanon following trauma in Australia, and current psychosocial difficulties that are exacerbating her symptoms to have led to a permanent psychological condition. There is limited ability to be able to improve in her mental and cognitive skills as it is a permanent condition given his (sic) accumulative long standing symptoms over many years. Further, cognitively he (sic) is not in a position to be able to attempt the test to a level of passing it.”

14. I pause to mention that this report is relatively current; that is dated 12 September 2017.

15. The report continues:

    given her extremely poor cognitive skills and significant long-standing mental health issues she is:

    not capable of understanding the nature of the Australian citizenship application,

    not capable of demonstrating a basic knowledge of the English language,

    unable to also demonstrate the ability to understand the knowledge of Australia and of the responsibilities and privileges Australian citizenship. 

16. Relevantly the provisions of paragraph 21(3)(d) of the Act require a causal connection to be established between the permanent or enduring physical or mental incapacity and one of three stated categories of incapacity in subparagraph (d)(i), (ii) or (iii).

17. It is not merely sufficient to identify a permanent or enduring physical or mental incapacity. The relevant legislation requires that the incapacity affects the person’s abilities to understand the nature of the application at the time of the making of the application, affects a person demonstrating a basic knowledge of the English language at the time of the making of the application or affects a person demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

18. On the evidence presented by the Applicant, there is insufficient material to form a judgement on the basis of any permanent or enduring physical incapacity.

19. As to the evidence of a mental incapacity, although to my mind there is substantial evidence as to that category of incapacity, it has not been demonstrated on a proper analysis of that evidence that there is a causal connection between the disability and incapacities that affect subparagraphs (i), (ii) or (iii) of paragraph 21(3)(d).

20. In particular, the Dover report asserts the mental incapacity and resulting specific incapacities required by the legislation. The report, however, lacks an expression of opinion of that relevant causal connection to which I have referred. The report is deficient in establishing how the mental incapacity works to bring about the three stated incapacities, that is to say, there is no evidence of a causal connection.

    Conclusion

21. On the whole of the evidence, the material is insufficient to demonstrate that the Applicant qualifies for citizenship pursuant to paragraph 21(3)(d). I therefore dismiss the application.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.............................[SGD]...........................................

Associate

Dated: 26 June 2019

Date(s) of hearing:	13 July 2018
Applicant:	In person
Solicitors for the Respondent:	Minter Ellison