KRWV and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 110

KRWV and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 110 (26 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2740
Re	KRWV
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	26 February 2016
Place	Sydney

The Tribunal affirms the decision under review.

.......................[sgd].................................................

Senior Member J F Toohey

CATCHWORDS

CATCHWORDS - citizenship – whether applicant had a permanent or enduring mental or physical incapacity at the time of his application – whether incapacity meant the applicant was not capable of demonstrating a basic knowledge of the English language – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 s 21

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member J F Toohey

26 February 2016

Background

1. The applicant was born in Syria and is 44 years old.  He arrived in Australia in late 2009 and became a permanent resident in 2010.  He is married and lives with his wife and their two young children.   

2. On 8 October 2014, the applicant applied for Australian citizenship.  He indicated in his application that he had a “permanent or enduring physical or mental incapacity”.  On 12 May 2015, a delegate of the Minister for Immigration and Border Protection (“the Minister”) decided the applicant did not satisfy the requirements for citizenship in the Australian Citizenship Act 2007 (“the Act”).  The applicant seeks review of that decision.

3. The Tribunal has made an order in these proceedings under s 35(3) of the Administrative Appeals Tribunal Act 1975 prohibiting the disclosure of information tending to reveal the identity of the applicant.

   The eligibility requirements

4. Ordinarily, a person who wishes to become an Australian citizen must satisfy all of the requirements in s 21(2) of the Act.  In particular, the Minister must be satisfied that the person understands the nature of an application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship: s 21(2)(d),(e) and (f).  A person may only be taken to satisfy these requirements if he or she has successfully completed an approved test: s 21(2A).

5. The Act provides that certain persons may be eligible to become a citizen despite not meeting all of the requirements in s 21(2).  By s 21(3)(d), they include a person who satisfies the usual age, residence and character requirements but who is not capable, by reason of permanent or enduring physical or mental incapacity, of:

   (i)understanding the nature of the application at the time of the application; or

   (ii)demonstrating a basic knowledge of the English language at that time; or

   (iii)demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

6. The effect of s 21(3) is that a person whom the Minister, and so the Tribunal, is satisfied meets this description is exempted from having to sit the approved test.

   The issues

7. As I understand his application, the applicant relies on his lack of knowledge of the English Language.  I have to decide, firstly, whether he has a permanent or enduring mental incapacity.  If so, I will have to decide whether that incapacity means that he was not capable of demonstrating a basic knowledge of the English language when he made his application. 

   Information before the Tribunal

8. The applicant gave evidence before the Tribunal.  Ms S, a mental health social worker who has been assisting him for approximately two years, spoke to the Tribunal on his behalf.

9. The Minister has provided a bundle of documents which includes a number of medical reports.

10. The Minister says that it does not follow, because a person suffers from a diagnosed mental illness, that he or she has a mental incapacity for the purposes of the Act, or that he or she is not capable of demonstrating the basic knowledge of the English language.

    Has the applicant a permanent or enduring mental incapacity?

11. After leaving Syria, the applicant spent several years in a neighbouring country before coming by boat to Australia where he was granted a protection visa.  He was tortured in Syria and witnessed the death of close family members, and his journey by boat to Australia was perilous and frightening.  Close members of his family in Syria were killed after he arrived in Australia. 

12. In July 2011, the applicant’s general practitioner referred him to Mr A, a clinical psychologist, because his health was deteriorating and he suffered from acute stress, insomnia, depressed mood, problems with attention and concentration, poor appetite, and lack of energy and motivation. In July 2011, Mr A reported that the applicant was suffering from post-traumatic stress disorder (PTSD), severe depression, anxiety and panic attack, and “distractibility” and “lack of concentration”.

13. The applicant says that, as a result of his psychological condition, he was not capable of demonstrating a basic knowledge of the English language at the time of his application for citizenship, and that he is still not capable of demonstrating that basic knowledge.  I do not understand him to say that he is not capable of understanding the nature of his application; it was clear from his evidence before the Tribunal that he has a basic understanding of the nature and purpose of his application. 

14. Nor do I understand the applicant to say he is not capable of demonstrating adequate knowledge of Australia and the responsibilities and privileges Australian citizenship, although he does say he has tried to complete a mock test several times with the help of his wife, each time without success. 

15. The Minister does not dispute that the applicant suffers from severe depression with anxiety and panic attacks, and symptoms of PTSD, as a result of events that occurred while he was in, and since leaving, Syria.  However, the Minister says the Tribunal cannot be satisfied, on the information before it, that he has an enduring or permanent mental incapacity.

    Medical information

16. In a report dated 2 August 2014, Mr A stated that the applicant had been under his care since July 2011.  In fact, for reasons which are not entirely clear, the applicant only saw Mr A two with three times in all.  Mr A confirmed in his report that clinical testing had shown the applicant was suffering “a severe case of depression with anxiety and panic attack (sic) and PTSD symptoms”.  He said the applicant needed psychological intervention in order to cope.  He recommended continued therapy to help the applicant recover from his severe anxiety and depression, and long-term treatment in order to recover from his chronic depression.

17. On 12 August 2014, the applicant’s general practitioner completed a Mental Health Assessment for the purposes of a GP Mental Health Plan.  He noted the applicant had suffered depression and anxiety for eight years, and had a history of PTSD.  (It is not clear on what basis the general practitioner indicated eight years but nothing turns on this).

18. In August 2014, the applicant started seeing Mr O, a clinical psychologist.  Again for reasons which are not entirely clear, the applicant saw Mr O only two or three times.  On 15 September 2014, Mr O wrote to the Department of Immigration and Border Protection asking that the applicant be exempted from undertaking the citizenship test “due to an enduring mental incapacity, and insufficient literacy skill, which means that he is not capable of demonstrating a basic knowledge of the English language”.

19. Mr O reported that the applicant had attempted to learn the English language by commencing English classes but failed to make any progress “as he is illiterate and cannot read or write”.  He said the applicant’s inability to learn new information “leads to a worsening of self-esteem which then negatively impacts on his mood”.  Mr O did not think there would be a significant improvement in his condition in the foreseeable future.  On 13 November 2014, Mr O sent a further letter to the Department confirming his opinion.

20. In about June 2015, the applicant’s general practitioner referred him to Ms S, a Mental Health Social Worker.  She gave evidence that she sees the applicant approximately monthly, and his treatment comprises a range of counselling and related therapy.  Ms S expressed the opinion that he is not fit to undertake the test because of his severe memory impairment and mental health conditions.

    The meaning of “permanent or enduring”

21. The Act does not define “permanent or enduring physical or mental incapacity”.  Guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations is available in the form of the Australian Citizenship Instructions (ACIs), the most recent version of which was published on 1 July 2014.  The ACIs represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

22. The ACIs state:

    To qualify, incapacity must be either permanent, or sufficiently long term so 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.

23. The Minister submits that the applicant has received little real treatment for his condition.  He saw each psychologist only two or three times at most and has not had consistent treatment; he stopped taking medication because it made him sleepy.  The applicant gave evidence that he does not wish to apply for Disability Support Pension because he does not want to rely on Centrelink payments and he hopes to get better.  In these circumstances, the Minister submits, the Tribunal should not be satisfied that any mental health condition is permanent or enduring. 

24. I accept that, by his own evidence, the applicant seems to have received very little treatment, but he has been under the care of the general practitioner and, from time to time a clinical psychologist, for several years without any evidence of real improvement.  I accept that his prospects for substantial improvement appear low and that recovery cannot be predicted with any confidence.  I am satisfied he has an enduring mental health condition.

25. The Minister submits that, even if it is accepted that the applicant has a permanent or enduring mental health condition, it does not follow that he has a permanent or enduring mental incapacity.  I accept that argument in principle but I am not sure it has any practical significance.  I accept that the applicant suffers some loss of mental capacity in that his concentration and memory appear to suffer because of his condition. 

26. I am satisfied that the applicant has an enduring mental health condition as a result of which he has an enduring mental incapacity.  The question is whether that mental incapacity means he was not capable of demonstrating a basic knowledge of the English language when he made his application.

    Did the applicant’s mental incapacity mean he was not capable of demonstrating a basic knowledge of the English language when he made his application?

27. The applicant did not attend school in Syria.  I accept that he is illiterate.  He grew up speaking two languages but I accept that he cannot read or write in either.  He describes his English as “very very basic” and limited to greeting people and asking where they are going.  He says his comprehension is better than his ability to communicate in English.  He relies heavily on his wife who speaks English.

28. The Minister says, and I accept, that it does not follow, because a person has an enduring mental incapacity, that he or she is not capable of demonstrating a basic knowledge of the English language. 

29. The Act does not specify what comprises a basic knowledge of the English language, and the ACIs offer no guidance.  I interpret it to include such things as the ability to conduct a simple conversation, for example with neighbours, shopkeepers and children’s teachers.  It may include the ability to read labels on groceries or other items in a shop; and to read street signs and signs on shops and public buildings. 

30. As I read it, the Act does not require that a person’s mental incapacity be the sole reason he or she is not capable of demonstrating a basic knowledge of English.  However, it must be such that, of itself, it means a person is not capable of demonstrating that knowledge. 

31. I accept that the applicant’s mental incapacity makes it more difficult for him to acquire a new language.  I accept that his psychological conditions are likely to affect his motivation to learn.  I accept that his lack of motivation is likely linked to his depression.  That said, the medical reports make clear that his lack of education and illiteracy are significant factors in his difficulty learning English.  In particular, Mr O’s report attributes his failure to make any progress with English classes to his illiteracy.

32. I am not satisfied, on the information before me, that the applicant’s mental incapacity of itself means he was not capable of demonstrating a basic knowledge of the English language at the time of his application. 

33. For completeness, I would add that I am not satisfied that the applicant’s mental incapacity means he was not capable demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.  I understand the citizenship test comprises 20 multiple-choice questions.  If a person is unable to read, he or she may be assisted by another person when completing the questionnaire. 

34. The applicant gave evidence that he tried working through a mock questionnaire with the help of his wife but could not pass.  I accept what he says but I am not satisfied that his mental incapacity was the reason.  He gave evidence that, with the assistance of an interpreter, he was able to pass the written test associated with his driver’s licence.  I accept his evidence that he only passed after what he estimates were ten attempts.  Nevertheless, he was capable of passing.

    Conclusion

35. I appreciate the applicant’s strong desire become an Australian citizen and I hope he will not be too discouraged by this decision.  He can apply for citizenship again at any time.  There is no reason to think he would not make a fine citizen.  However, for these reasons, I am not satisfied that he was not capable, by reason of his enduring mental incapacity, of demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at the time of his application.

36. I affirm the decision under review.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

........................[sgd]................................................

Associate

Dated 26 February 2016

Date(s) of hearing	18 February 2016
Applicant	In person
Solicitors for the Respondent	H Dejean, Australian Government Solicitor