Kozal and Minister for Immigration and Border Protection (Citizenship)

Kozal and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1571 (24 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6076
Re:Mr Haitham Kozal
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Professor R McCallum AO, Member
Date:24 June 2019
Place:Sydney

The decision under review is affirmed.
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Professor R McCallum AO, Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – suffered from a permanent or enduring physical or mental incapacity which exempted him from sitting the citizenship test – application for citizenship was refused – exemption from sitting citizenship test – must satisfy the Tribunal that the applicant has a mental incapacity – permanent or enduring – if the Applicant chooses to, he is required to sit and pass the citizenship test – decision under review is affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(2), (2A), 21(3)(d)
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth)
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill Explanatory Memorandum Item 27.
Migration Legislation Amendment Act (No. 1) 2008 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Khodeir and Minister For Immigration And Home Affairs [2015] AATA 499
secondary materials
Citizenship Policy
REASONS FOR DECISION
Professor R McCallum AO, Member
24 June 2019
INTRODUCTION

The Applicant, Mr Haitham Kozal was born in Iraq. In 2001 Mr Kozal married, and throughout this decision I shall refer to his wife by her married name of Mrs Zinah Kozal.
In 2009, Mr and Mrs Kozal fled Iraq with their two children. After spending some time in Lebanon, they were granted refugee status.
Mr Kozal was issued with an Australian subclass 200 (permanent) visa on 27 February 2012. Mr and Mrs Kozal and their two children arrived in Australia on 12 April 2012.
Since settling in Australia, Mr Kozal has not worked. He is in receipt of Disability Support Pension.
On 20 July 2016, Mr Kozal applied for Australian citizenship by conferral. In his application, Mr Kozal sought to rely on section 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). Mr Kozal asserted that he suffered from a permanent or enduring physical or mental incapacity which exempted him from sitting the citizenship test.
Mr Kozal’s application for citizenship was refused and he now appeals to the General Division of the Administrative Appeals Tribunal.
EXEMPTION FROM SITTING THE CITIZENSHIP TEST
Applications for Australian Citizenship are governed by the Citizenship Act.
Persons aged 18 or over may apply for Australian citizenship by conferral. The requirements which applicants must fulfil are set out in Part 2, Division 2 subdivision B of the Citizenship Act. Applicants are usually required to sit and to pass the Australian citizenship test. Section 21(2) and (2A) of the Citizenship Act relevantly provide as follows:
21 Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(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; …
…
(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.
However, persons with enduring physical or mental incapacities are exempted from sitting the citizenship test if they can bring themselves within the criteria set out in section 21(3)(d) of the Citizenship Act. Section 21(3)(d) provides as follows:
(3)A person is eligible to become an Australian citizen if the Minister is satisfied that the …person:…
…
(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;
…
In Khodeir and Minister For Immigration And Home Affairs [2015] AATA 499, Senior Member P W Taylor QC helpfully explains the origins and operation of the section 21(3)(d) exemption in the following words.
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 (Cth) (“ACA 2007”). Those criteria include three matters of particular relevance to Mr Khodeir’s application. I paraphrase those three matters as:
(a)AWARENESS:- understanding the nature of the citizenship application:- ACA 2007 s 21(2)(d)
(b)ENGLISH:- possessing a basic knowledge of the English language:- ACA 2007 s 21(2)(e)
(c)KNOWLEDGE:- having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship:- ACA 2007 s 21(2)(f).
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”): see - ACA 2007 s 21(3)(d) and the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill Explanatory Memorandum Item 27.
In Mr Kozal’s circumstances, to obtain an exemption from sitting the citizenship test, he must satisfy the Tribunal first, that he has a mental incapacity. Secondly, that this incapacity is permanent or enduring. Finally, that his mental incapacity prevents him from understanding any one of the following three matters. One, the nature of the Australian citizenship application; two, possessing a basic knowledge of the English language; and three, having a basic knowledge of Australia and of the privileges and responsibilities of Australian citizenship.
GOVERNMENT POLICY
The Australian government has written a detailed policy to give guidance on the application of the Citizenship Act. It is titled the Citizenship Policy. The Tribunal is not bound by government policy if its application would lead to an unjust outcome (see Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). In the circumstances of the matter before me, I shall apply the Citizenship Policy as its application will not lead to an injustice.
The section 21(3)(d) test is analysed at pp 66-67 of the Citizenship Policy. These pages relevantly provide as follows:
Permanent or enduring physical or mental incapacity (s21(3))
…
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:
a.    understanding the nature of their application
b.    demonstrating a basic knowledge of the English language or
c.     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.
…
The department may also seek its own independent professional advice regarding the claimed permanent or enduring physical or mental incapacity.
…
Mental incapacity
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.
Specialist’s qualifications can be confirmed by using the credentials which appear on the medical certificate, or by contacting the specialist concerned. For example, a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists should have FRANZCP on the evidence provided.
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
…
THE HEARING
Mr Haitham Kozal attended the hearing in person. He was accompanied by his wife Mrs Zinah Kozal who represented her husband. The Respondent was represented by counsel. The Tribunal was assisted by an interpreter in the Arabic language.
Mr Haitham Kozal gave evidence by affirmation in the Arabic language and his words were interpreted into English by the interpreter.
At times, Mr Kozal was evasive when answering questions. On occasions he became angry when the Tribunal required him to answer questions.
Doctor Patricia Jungfer who is a clinical psychiatrist gave evidence by affirmation over the telephone.
The Respondent had requested Dr Jungfer to examine Mr Kozal, and this examination took place on 27 May 2019.
Dr Jungfer had written a report dated 29 May 2019 which is before the Tribunal. In her evidence, Dr Jungfer confirmed the truth of her report.
I found Dr Jungfer’s evidence to be clear and cogent and she did her best to assist the Tribunal.
CONSIDERATION
The sole issue before the Tribunal is whether Mr Kozal complies with the criteria specified in section 21(3)(d) of the Citizenship Act. If I find that he does not fulfil the criteria, my task is to affirm the decision under review. If however, I find that Mr Kozal does come within the criteria specified in the provision, my task is to set aside the decision under review with a direction that Mr Kozal fulfils the criteria set out in section 21(3)(d) of the Citizenship Act. This means that Mr Kozal will be exempted from sitting the citizenship test.
Does Mr Kozal Have a Mental Incapacity?
In his evidence before the Tribunal, Mr Kozal said that in 2009 he was kidnapped in Iraq. He said that he was kidnapped because he worked in a club which sold alcohol. He also said that several persons were killed in front of him.
From 2013, Mr Kozal has been treated by Dr Leo Tsang who is a clinical psychiatrist. It is my understanding that Dr Tsang was not available to give evidence to the Tribunal. Three letters from Dr Tsang are before the Tribunal and they are dated 15 January 2013, 17 June 2016 and 16 June 2018. In his letter of 15 January 2013, Dr Tsang writes in part as follows:
“Many thanks for referring Haitham [Mr Kozal], who is … years old. He was interviewed with the help of an Arabic interpreter. His wife, Zinah [Mrs Kozal], was also present in our interview at their request. Haitham appeared depressed and had his head down avoiding direct eye contact for most of our interview. His history was largely related by Zinah.
Haitham said he was working as a waiter in a club in Iraq. In 2009, Zinah said he was kidnapped by fundamentalist Moslems from his work place because he was involved in the serving of alcohol. Haitham said he has very little memory of what happened after he was kidnapped. It is possible he did not want to talk about it. Zinah said he was held in captivity for a month by the kidnappers. Haitham said he was blindfolded most of the time and could not tell night from day during his ordeal. He said he was made to witness a number of executions, with the kidnappers slitting the throats of other captives and killing them. After threats for him not to return to work with alcohol, Haitham was released. He and Zinah with their 2 sons fled Iraq in December 2009.
Zinah said they went to Lebanon where they stayed for 2 years. The family was resettled into Australia in April 2012. Haitham's mother and 2 brothers had resettled in Australia 2 months before their arrival.
Since his ordeal, Zinah said Haitham has become very irritable and withdrawn. She said he has been isolating himself and spends most of the day by himself in the bedroom. She said he cannot tolerate any noise and she has to try to keep the boys, age 5 and 10, as quiet as possible. She said Haitham was a normal and loving father before his kidnapping. Haitham said he has frequent and intrusive flashbacks of what he witnessed when he was kidnapped. He said he has nightmares and bad dreams of the murders. He said his mind is preoccupied with what happened and cannot concentrate on anything else. He said his sleeping is disturbed, waking up at 3 to 4 am and unable to return to sleep. He said his appetite is normal and his weight is stable.”
In cross-examination, Counsel for the Respondent drew Mr Kozal’s attention to his record of interview at the Australian Embassy in Beirut dated 20 October 2011. This record of interview is in English. I infer that Mr Kozal was interviewed in the Arabic language and that his words were translated into English to make the interview record.
Counsel for the Respondent requested the interpreter to read out passages from the record of interview. Thus, the interpreter translated the passages when she spoke them out in Arabic.
While the record of interview noted claims of persecution and discrimination, it did not mention that Mr Kozal had been kidnapped for a month.
Mr Kozal responded by saying that he only gave a summary of events in his interview.
On the evidence before me, I am unable to determine whether or not Mr Kozal was kidnapped. However, from the evidence before me, I find that in Iraq, Mr Kozal was subjected to threats and to discrimination. I note that Mr Kozal was accepted as a refugee and was re-settled in Australia.
Given Mr Kozal’s mental state, I surmise that he may well believe that he had been kidnapped and held captive for a month.
In his letter of 15 January 2013, Dr Tsang diagnosed Mr Kozal as suffering from Post-Traumatic Stress Disorder (PTSD). In his letter dated 16 June 2018, Dr Tsang notes that he has been treating Mr Kozal since 14 January 2013 and that he has seen him on about 30 occasions. He still suffers from a severe form of PTSD.
In her report dated 29 January 2019, Dr Jungfer wrote in part as follows:
“On the basis of the history provided by Mr Kozal he reports a history of intrusive recollective experiences, phobic avoidance symptoms, disturbance of sleep, altered arousal, symptoms of changes in cognition such as impairments of concentration and memory that are consistent with the symptom cluster that would be known as post-traumatic stress disorder. In addition, Mr Kozal reports pervasive disturbance of mood, a lack of enjoyment of activities that would be consistent with a major depressive illness. He reports a functional incapacity from these disorders.”
In her oral evidence, Dr Jungfer confirmed that Mr Kozal’s behaviour was consistent with him suffering from PTSD.
Having regard to the medical evidence before me, I find that Mr Kozal has suffered from a mental incapacity of PTSD since 14 January 2013.
Is Mr Kozal’s Mental Incapacity Permanent or Enduring?
It will be recalled that I set out above the relevant portions of the Citizenship Policy. For convenience, I repeat what the policy says about permanent or enduring incapacities.
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.
Dr Tsang has been treating Mr Kozal since 14 January 2012. In his letter of 16 June 2018, Dr Tsang wrote in part as follows:
“I consider Mr Kozal to have a permanent and enduring incapacity. As he has not shown significant improvement with treatment over the last five and a half years, it is likely his current level of functioning is the best that he can achieve.”
In her report of 29 May 2019, Dr Jungfer wrote in part as follows:
“Mr Kozal has been referred to a trauma counselling service and he refused to participate in that intervention and therapy. Therefore, it is difficult to comment on how he might benefit from treatment when taking into account the knowledge that Mr Kozal has been uncooperative from a treatment perspective. It would be expected that appropriate trauma and counselling therapy over a period of one to two years, with the participant participating and being cooperative, that there would be sufficient symptomatic improvement that Mr Kozal's condition would show signs of improvement.
Mr Kozal's pharmacotherapy in my opinion has not been aggressive. He has had one antidepressant agent and one antipsychotic. He has not been prescribed some of the other agents that might be used in post-traumatic stress disorder such as Mirtazapine or Prazosin to determine whether his symptoms would be able to change by pharmacotherapy. With a further twelve months of adequate pharmacotherapy by a trauma specialist psychiatrist there is the expectation that there could be some improvement.
…
Based on Mr Kozal ' s clinical presentation, the inconsistencies between his functional performance and the history he has given, within the context of his not co-operating with treatment I cannot consider the applicant to have an enduring or permanent mental incapacity.”
In her evidence before the Tribunal, Dr Jungfer opined that with appropriate treatment, she could get improvement but not complete recovery.
In making the following finding, I have had regard to the written evidence of Dr Tsang who is Mr Kozal’s treating psychiatrist. I have also had regard to the written, but more especially to the oral evidence of Dr Jungfer. Given that Dr Jungfer is of the view that it is unlikely that Mr Kozal will make a complete recovery, I find that his PTSD incapacity is enduring within the meaning of section 21(3)(d) of the Citizenship Act.
Does Mr Kozal’s enduring mental incapacity of PTSD mean that he is unable to comprehend the nature of the Citizenship Application, or have a basic knowledge of English, or a basic knowledge of Australia and the Privileges and Responsibilities of Citizenship?

The final question which I am required to answer is as follows. Does Mr Kozal’s enduring mental incapacity of PTSD prevent him from understanding any one of the following three matters, that is, the nature of the Australian citizenship application, possessing a basic knowledge of the English language, and having a basic knowledge of Australia and of the privileges and responsibilities of Australian citizenship.
In his letter dated 16 June 2018, Dr Tsang wrote in part as follows:
“Mr Kozal’s PTSD has affected his ability to concentrate and to retain new information learnt. He continues to be preoccupied with flash-backs and severe mood disturbances such that he is unable to engage with external and other social stimuli, including basic normal interactions with his family and children.
I take into account his limited formal education and lack of psychological coping repertoire.
It is therefore unlikely he will be able to benefit from further English classes or to be able to become proficient in English, to the extent of passing the Citizenship Test.”
In his evidence before the Tribunal, Mr Kozal said that he had obtained his driver’s licence after settling in Australia. He said that he had learned the road rules as they were in Arabic and that he understood the road signs.
Mr Kozal said that his wife drives most of the time, which I take it to mean that he still drives on occasions.
Under cross-examination, Mr Kozal agreed that he did own an iPhone. He said he used it to call his wife for her name is written in Arabic. He said he can read Arabic. Mr Kozal also said that he uses his iPhone to go onto the internet and to read material.
Mr Kozal also said that he could not remember the ages of his children, although he could recall his own age. I found his answer surprising because his first two children were born in Iraq before he was kidnapped or threatened or suffered discrimination.
In her report dated 29 May 2019, Dr Jungfer wrote in part as follows:
“Mr Kozal's condition could in a number of circumstances be considered to be permanent or sufficiently long-term that it may affect his ability to learn and recall. In the case of Mr Kozal there are inconsistencies in his presentation that suggest that he is making inadequate effort and this is deliberate. For example, failing to provide biographical information, being uncooperative in the assessment, in contrast to Mr Kozal's functional capacity should he be sufficiently motivated to do so, such as, for example, obtaining his licence and drive a motor vehicle. While Mr Kozal completed the knowledge test in Arabic, he was able to sufficiently learn the rules to be able to pass the test which indicates that his ability to recall and remember would be sufficient for him to be able to acquire adequate knowledge of Australia and the responsibilities and privileges of citizenship. I would also argue that he should be able to acquire a basic knowledge of English if he is able to sufficiently learn the rules to drive a vehicle and the rules of the road. Driving is a demanding cognitive task; he does not report problems when driving which suggests intact cognitive functioning.
Mr Kozal understands the nature of his application for Australian citizenship.”
In her oral evidence before the Tribunal, Dr Jungfer said that in her opinion Mr Kozal’s level of functionality is better than he is prepared to convey. Dr Jungfer noted that Mr Kozal can learn the road rules and pass a driving test.
I recounted to Dr Jungfer Mr Kozal’s evidence that he owns an iPhone, that he calls his wife and also goes onto the internet.
Dr Jungfer said that this information about the iPhone confirms her view that Mr Kozal can concentrate and can learn and retain information to learn English and to understand the responsibilities of citizenship.
Having regard to the written and oral evidence before the Tribunal, I find that Mr Kozal’s enduring mental incapacity of PTSD does not prevent him from understanding the nature of the Australian citizenship application, or from possessing a basic knowledge of the English language, or from having a basic knowledge of Australia and of the privileges and responsibilities of Australian citizenship.
In particular, I note that Mr Kozal obtained a driver’s licence in Australia and that he does drive. I further note his ownership of an iPhone which he uses, including going onto the internet.
CONCLUSION
In the body of this decision, I have set out the evidence before the Tribunal and have written my reasons for making the following findings.
First, that Mr Kozal has suffered from a mental incapacity of PTSD since 14 January 2013.
Second, that Mr Kozal’s PTSD incapacity is enduring within the meaning of section 21(3)(d) of the Citizenship Act.
Third, that Mr Kozal’s enduring mental incapacity of PTSD does not prevent him from understanding the nature of the Australian citizenship application, or from possessing a basic knowledge of the English language, or from having a basic knowledge of Australia and of the privileges and responsibilities of Australian citizenship.
These findings mean that Mr Kozal has not fulfilled the criteria set out in section 21(3)(d) of the Citizenship Act. Therefore, if Mr Kozal chooses to further his application for Australian Citizenship he will be required to sit and to pass the citizenship test.
DECISION
The decision under review is affirmed.

I certify that the preceding 56 (fifty- six) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 24 June 2019

Date(s) of hearing: 5 June 2019

Applicant: In person

Solicitors for the Respondent: Mr H McLaurin - Minter Ellison

[2019] AATA 1571

24 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	5 June 2019
Applicant:	In person
Solicitors for the Respondent:	Mr H McLaurin - Minter Ellison