Mikha and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Mikha and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3007 (19 August 2020)
Division:GENERAL DIVISION
File Number: 2019/5071
Re:Itimad Mikha
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:19 August 2020
Place:Sydney

The Tribunal affirms the decision under review.
......[sgd]..................................................................
Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring mental incapacity – depression – posttraumatic stress disorder – psychotic features – applicant has never attended English classes – applicant has not seen a specialist on a regular basis – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
SECONDARY MATERIALS
Australian Citizenship Procedural Instructions – CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Dr L Bygrave, Member
19 August 2020
INTRODUCTION

The applicant, Ms Itimad Mikha, is a citizen of Iraq. She arrived in Australia on 3 July 2014 and currently holds a Global Special Humanitarian (subclass XB-202) permanent visa.
Ms Mikha lodged an application for Australian citizenship by conferral (other situations) in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) on 19 July 2018. In her application, Ms Mikha declared she had ‘a permanent or enduring physical or mental incapacity’.[1]
[1] Exhibit T-T4, page 86.
On 31 July 2019, Ms Mikha’s application was refused by a delegate of the Minister for Home Affairs (the Minister)[2] on the basis that she did not satisfy the requirement in paragraph 21(3)(d) of the Act for a permanent or enduring physical or mental incapacity at the time she made her application.
[2] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
On 15 August 2019, Ms Mikha made an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The application was heard by the Tribunal on 6 August 2020. Ms Mikha was represented by her daughter, Ms Narmin Shaba; she attended the hearing and gave oral evidence by videoconference with the assistance of an interpreter of the Arabic language.
RELEVANT LEGISLATION
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:
If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Relevant to this application, subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship as follows:
(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; …
Pursuant to subsection 21(2A) of the Act, paragraphs 21(2)(d), (e) and (f) of the Act are met if, and only if, a person has sat and successfully completed a citizenship test.
Subsection 21(3) of the Act sets out the following requirements for a person who has a permanent or enduring physical or mental incapacity:
(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 practical terms, paragraph 21(3)(d) of the Act operates to exempt persons who have a permanent or enduring physical or mental incapacity from being required to sit and pass a citizenship test: see paragraphs 21(2)(d), (e) and (f) and subsection 21(2A) of the Act.
Citizenship Policy
The Citizenship Policy offers guidance on the interpretation and application of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]
[3] [1979] AATA 179; (1979) 2 ALD 634.
The Citizenship Policy provides the following guidance on the evidence that is required to establish that a person has a permanent or enduring physical or mental incapacity:
…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:
-    understanding the nature of their application
-    demonstrating a basic knowledge of the English language or
-    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.
…
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.
…
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
General Practitioners
General practitioners who also could be fellows of the Royal Australian College of General Practitioners (FRACGP) or the Australian College of Rural and Remote Medicine (FACRRM) are not defined as specialists under Schedule 4 of the Health Insurance Regulations 1975…[4]
[4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7, pages 71-73.
Australian Citizenship Procedural Instructions (CPIs)
Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2) was issued on 2 March 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application’ for Australian citizenship under subsection 21(3) of the Citizenship Act.
Relevant to this application, CPI 2 outlines that:
When assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression.[5]
MEDICAL EVIDENCE
[5] CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity, section 3.4.
Dr Ashraf Philips (consultant psychiatrist)
Dr Philips provided a report dated 1 April 2016, which included the following information:
·He had provided care to Ms Mikha since 30 March 2015, which had comprised eight consultations.
·Ms Mikha had told him that the onset of her symptoms had occurred since her husband was kidnapped in Iraq in August 2010. The description of these symptoms included a ‘psychotic episode characterized by fearfulness at night of being attacked, perceptual experience of people talking to her’.[6]
·Ms Mikha was taking medications and seeing a psychologist.
[6] Exhibit T-T4, page 101.
Dr Philips described his impression of and plan for Ms Mikha as:
…[She] is presenting with symptoms suggestive of a psychotic episode with a background of PTSD [post-traumatic stress disorder]. Her symptoms are severe and causing significant impairment of her functioning.
Her prognosis is very poor… It is expected that the therapy will take [sic] long time.
I have prescribed…medications (antipsychotics and antidepressants) she will need to continue trauma focused psychotherapy.[7]
[7] Exhibit T-T4, page 102.
In a further report dated 14 February 2020, Dr Philips stated he had held 10 consultations with Ms Mikha since 30 March 2015 and noted she presented with ‘symptoms suggestive of a chronic PTSD with secondary depression and panic attacks’.[8] Relevantly, Dr Philips also reported:
…Ms Mikha stated that in her home country; she was not able to continue education and dropped out of school in what was equivalent to year 6 primary education. She has had no English education. She can hardly read or write her own mother tongue. She has never worked in any capacity other than a housewife.
Since she has moved to Australia, she has not been able to learn any English. She cannot express himself [sic] even in her mother language and relies on others (family/friends) to help in everything.
She doesn’t know how to navigate streets or get her shopping done. She relies on other people to get her to places or drive her.
On examination:
… There was no evidence of formal thought disorder, delusions or current suicidal ideas. She described some perceptual experiences.
Impression and Plan:
…Ms Mikha’s conditions are chronic and permanent and affect her ability to learn or understand the language.[9]
[8] Exhibit A1.
[9] Exhibit A1.
Mr Medhat Metry (psychologist)
In a report dated 16 April 2016, Mr Metry stated[10]:
It appears that Mr [sic] Mikha is suffering from Major Depression With Psychotic Features and Posttraumatic Stress Disorder.
[10] Exhibit T-T4, page 109.
Mr Metry provided a description of Ms Mikha’s treatment of cognitive behavioural therapy and antidepressant/ antipsychotic medications. He made no reference in his report about whether Ms Mikha’s condition was ‘permanent or enduring’ or caused her mental incapacity.
Dr Sabri Hasam (general practitioner)
Dr Hasam provided medical reports dated 26 March 2020 and 6 April 2020. Both reports stated that Ms Mikha has had ‘multiple chronic debilitating medical conditions’ since 2015, including major depression, PTSD and schizoaffective disorder.[11] Ms Mikha’s medical history, allergies and current medications were also listed by Dr Hasam.
[11] Exhibits A2 and A3.
Dr Hasam did not refer in his reports to Ms Mikha’s application for Australian citizenship and/or whether she has a permanent or enduring physical or mental incapacity that would mean she is unable to complete the citizenship test.
OTHER EVIDENCE
Ms Mikha
In her oral evidence to the Tribunal, Ms Mikha confirmed that she arrived in Australia with her four children in 2014. She said she made an application for Australian citizenship because she ‘likes to live here’. She accepted that she signed her application for citizenship but could not recall completing the form except that she was with her daughter, Ms Shaba. She said that she has never attended English classes in Australia.
Ms Mikha said she could not remember when she first experienced issues with her mental health, although she thought it was after she arrived in Australia. She submitted that she continued ‘therapy’ after 2016, which she described as taking medications prescribed by Dr Hasam.
Ms Mikha said that she currently lives on her own and receives disability support pension. She said Ms Shaba is her carer and assists her with daily care, taking her medications and attending appointments.
Ms Mikha confirmed to the Tribunal that she obtained her New South Wales (NSW) driver license ‘a while’ after she moved to Australia and that this process required her to complete a test in Arabic on a computer. She said that she has not driven a car for ‘a long period of time’ and relies on the assistance of Ms Shaba to leave her home.
In her oral evidence, Ms Mikha presented to the Tribunal as confused and found it difficult to answer questions without asking Ms Shaba for assistance.
Ms Shaba
Ms Shaba provided oral evidence and submissions to the Tribunal. Ms Shaba confirmed that she assisted her mother, Ms Mikha, to make her application for Australian citizenship; they attended an organisation together that assisted them to complete the application form.
Ms Shaba said Ms Mikha’s mental health issues occurred in about 2015, when she began to cry constantly and could not explain why. She said the 2016 reports by Dr Philips and Mr Metry were obtained to support Ms Mikha’s claim for disability support pension.
Ms Shaba explained that her mother wanted to apply for Australian citizenship because ‘she is afraid’ and ‘wants to be in a safe environment’.
CONSIDERATION
The issue for determination by the Tribunal is whether Ms Mikha meets the requirements for a permanent or enduring mental incapacity at the time she made her application for Australian citizenship pursuant to paragraph 21(3)(d) of the Act.
As set out in the Citizenship Policy, this requires Ms Mikha to produce evidence from an ‘appropriately qualified medical practitioner’ that she has a permanent or enduring physical or mental incapacity that means she is not capable of understanding the nature of her application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
I now consider the evidence in view of the requirements of the Act and Citizenship Policy.
I am satisfied Dr Hasam, a general practitioner, and Mr Metry, a psychologist, do not meet the appropriate qualification requirements in the Citizenship Policy. I further note the reports by Dr Hasam and Mr Metry contained no information about whether Ms Mikha has a medical condition that means she has a permanent or enduring physical or mental incapacity. In addition, Mr Metry’s report is dated over two years prior to Ms Mikha’s application for citizenship and Dr Hasam’s reports are written more than 20 months after Ms Mikha made her application for citizenship; consequently, these reports provide no contemporaneous evidence about Ms Mikha’s physical or mental capacity at the time of her application for Australian citizenship. For these reasons, I place no weight on the reports of Dr Hasam and Mr Metry.
I am satisfied that Dr Philips is a qualified psychiatrist and a fellow of the Royal Australian and New Zealand College of Psychiatrists; he is therefore a ‘qualified medical practitioner’ and ‘specialist’ as set out in the Citizenship Policy.
However, for the following reasons, I am not satisfied the reports by Dr Philips show Ms Mikha had a permanent or enduring mental incapacity that meant she was unable to sit and pass a citizenship test at the time of her application for Australian citizenship in July 2018.
First, the reports of Dr Philips are written in April 2016, a period 27 months prior to Ms Mikha’s application for Australian citizenship, and February 2020, 19 months after the date she made her application for citizenship. Neither of these reports refer to Ms Mikha’s mental capacity in July 2018 and therefore have limited relevance to whether she had a permanent or enduring mental incapacity at the date she applied for Australian citizenship.
Second, Dr Philips’ reports do not provide a clear diagnosis of Ms Mikha’s condition, set out a process of psychological assessment or explain the basis of any diagnosis. Dr Philips’ ‘impression’ of Ms Mikha’s condition also changes between reports: in April 2016, he stated Ms Mikha presented with ‘symptoms suggestive of a psychotic episode with a background of PTSD’, while in February 2020, he noted her ‘symptoms [were] suggestive of a chronic PTSD with secondary depression and panic attacks’.
Third, there is minimal evidence that Ms Mikha has continued to see Dr Philips or another specialist ‘on a regular basis’ as anticipated in the Citizenship Policy. In his report in February 2020, Dr Philips noted Ms Mikha had attended 10 consultations, which indicates Ms Mikha attended only two consultations with him between April 2016 and February 2020.
Fourth, Dr Philips provided no information about whether Ms Mikha’s mental incapacity is ‘permanent or enduring’; or supporting evidence that her mental incapacity means she is not capable of understanding the nature of her application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. I accept Dr Philips noted in his report on 14 February 2020 that Ms Mikha ‘has not been able to learn any English’ and ‘doesn’t know how to navigate streets or get her shopping done’; however, he provided no cognitive or psychological explanation for these statements.
Weighing all the evidence before the Tribunal, I am not satisfied Ms Mikha has a permanent or enduring physical or mental incapacity in accordance with the requirements in paragraph 21(3)(d) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 41 (forty - one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........[sgd]..............................................................
Associate
Dated: 19 August 2020

Date of hearing: 6 August 2020

Advocate for the Applicant: Ms Narmin Shaba, Applicant's daughter

Solicitors for the Respondent: Mr Tal Aviram, Clayton Utz

[2020] AATA 3007

19 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	6 August 2020
Advocate for the Applicant:	Ms Narmin Shaba, Applicant's daughter
Solicitors for the Respondent:	Mr Tal Aviram, Clayton Utz