Mheich and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 2569

Mheich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2569 (18 May 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1434

Re:Ibrahim Mheich

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:18 May 2018

Date of written reasons:        27 July 2018

Place:Sydney

The Applicant’s application for an extension of time is refused.

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

Senior Member M J McGrowdie

CATCHWORDS

CITIZENSHIP – whether Applicant has permanent or enduring physical or mental incapacity at the time of making his application for citizenship – further professional medical opinion required – prospects of success for the Applicant’s application for review considered - extension of time application refused

LEGISLATION

Australian Citizenship Act 2007 (Cth) – s 21

REASONS FOR DECISION

Senior Member M J McGrowdie

27 July 2018

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 18 May 2018, at the conclusion of an interlocutory hearing to determine the extension of time application that the applicant Mr Mheich lodged with the Tribunal on 19 March 2018. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

   BACKGROUND

2. On 22 March 2017, the applicant, Mr Mheich, made an application for Australian citizenship to the Minister for Immigration and Border Protection (the Minister) which was refused by a delegate of the Minister on 28 November 2017. On 19 March 2018, Mr Mheich lodged with the Tribunal both an application for review of the delegate’s decision, as well as an application for an extension of time to lodge his application for review.  

3. As part of his application for citizenship, Mr Mheich submitted a letter from clinical psychologist Dr Girgis dated 7 December 2016. In this letter, Dr Girgis states that Mr Mheich was referred to the Pain and Trauma Clinic by his General Practitioner Dr Latif for the assessment and treatment of his psychological difficulties following a motor vehicle accident; that Mr Mheich’s minimal literacy skills will cause him difficulty to learn new information and that his psychological symptoms interfere with his cognitive ability to adequately perform during the citizenship test; and that Mr Mheich’s lack of knowledge of the English language is due to the fact that he only had 2 years of primary education and that his literacy skills are not strong.

4. Section 21(3) of the Act provides that a person is eligible to become an Australian citizen if … 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:

   (ii) is not capable of demonstrating a basic knowledge of the English language at that time.

5. I think that Mr Mheich has had a difficult time since he had a motor vehicle accident.  But, I do not know whether it is because of the motor vehicle accident that Mr Mheich would now have difficulty doing a long course in English that would assist him to pass a citizenship test, or that he is just simply not capable of doing it because of some condition.  The report of Dr Girgis does not say that it is a result of a condition that the Applicant would not be able to do such a course. 

6. It is open to Mr Mheich to lodge another application for citizenship with the Department, an application that may be assisted with the provision of further professional medical opinion on whether or not Mr Mheich would be able to participate in a program of English language learning, or whether some physical or mental condition from which he suffers would prevent him from doing so.

7. I accept the fact that Mr Mheich was late with this application for review of the decision that the Department made on his application for citizenship, as he was overseas and that it took him some time to get a copy of the letter of determination. 

8. Leaving the issue of delay to one side for a moment, in dealing with an application for extension of time, I also look at the prospects that the application for review might have to succeed, if it proceeded. 

9. In Mr Mheich’s case, given that the medical opinion currently before the Tribunal does not adequately address the issue of Mr Mheich’s mental and physical condition as it relates to his capacity to learn English, the application for review of the Minister’s decision would be unlikely to succeed. 

10. The Tribunal has no difficulty in accepting that Mr Mheich does have problems with English and that he cannot, at the moment, do any better with English than he is now, certainly without a program. But, Mr Mheich could only do such a program if he were capable of doing it. 

11. If a further medical opinion, properly stated and explained, is that Mr Mheich could not even try to do such a program, because of what has happened following the motor vehicle accident or as a result of some other permanent or enduring physical or mental incapacity, that would likely assist Mr Mheich with any further application.

12. For all the reasons I have given, I refuse this application for an extension of time. 

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 27 July 2018

Date of hearing:	18 May 2018
Advocate for the Applicant:	Omar Jamal, Omar Interpreting Centre
Solicitor for the Respondent:	Karwan Eskerie, Sparke Helmore