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

Mir and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2538 (27 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/5192
Re:Khalida Najia Mir
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 July 2021
Place:Sydney

The decision under review is affirmed.
..................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – does not have a permanent or enduring physical or mental incapacity – application of Citizenship Procedural Instructions – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
Australian Citizenship Act 2007 (Cth) (Act) ss 21, 23A, 24 and 26
CASES
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 2 - Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
REASONS FOR DECISION
Chris Puplick AM, Senior Member
27 July 2021

Mrs Khalida Najia Mir (the Applicant) is seeking a review by this Tribunal of a decision by a delegate of the Minister (the Respondent) to refuse her application for citizenship by conferral.
The Applicant’s matter has been before the Tribunal on several occasions but was delayed in coming to a final hearing by the unavailability of key medical personnel to give evidence upon which the Tribunal could rely in making its determination as well as issues regarding lodgement of the correct form in these proceedings.
APPLICATION PROCESS
The Applicant, who is aged 54 years and citizen of Afghanistan originally arrived in Australia in December 2012 and was subsequently granted a Subclass BB-155 Resident Return visa in April 2019. It was the evidence of the Applicant’s daughter (Ms Mina Amanullah) that the Applicant was originally granted a visa on the basis that she would be the carer for her own mother in Australia and was sponsored by her (and an uncle) for this purpose.
On 7 May 2018 the Applicant made a request for the grant of citizenship by conferral and, in the process of taking forward her application, applied to be considered as exempt from certain requirements of the Australian Citizenship Act 2007 (Cth) (the Act) on the basis that she “has a permanent or enduring physical or mental incapacity” preventing her from fulfilling all the requirements of the Act.[1] In making her claim the Applicant supplied medical evidence from Dr V Varatharajan (her General Practitioner) and Dr Abdal Khan (a Consultant Psychiatrist).
[1] Australian Citizenship Act 2007 (Cth) (Act) s 21(3)(d).
The Applicant was requested to provide further evidence in support of her incapacity claim which she did in July 2019. This evidence took the form of a subsequent medical report by Dr Abdal Khan.
The Minister’s delegate considered all the medical and other evidence presented by the Applicant and on 6 August 2019 refused the application. The delegate was not satisfied that the evidence supported a claim of incapacity as required by the Act.[2]
[2] Tribunal documents (T-documents) at 9-20.
On 22 August 2019 the Applicant sought a review of the delegate’s decision and, as a result it was arranged, by the Respondent,[3] that she should be examined by Dr Gary Banks, a consultant clinical psychologist. Dr Banks examined the Applicant over a two-day period on 13 and 14 May 2020 and was assisted by an accredited Dari interpreter.
[3] Respondent’s Letter of Instruction to Dr Banks dated 8 May 2020.
On 17 June 2020 Dr Banks provided a comprehensive report[4] which came to the conclusion that the Applicant was not suffering a permanent or enduring physical or mental incapacity such that she would be exempt from meeting the various requirements of the Act governing citizenship by conferral.
[4] Clinical Psychological Evaluation by Dr Banks (Dr Banks’ Report) dated 17 June 2020.
The Applicant sought to challenge Dr Banks’ findings and submitted a letter from her daughter[5] and a further report by Dr Khan responding to Dr Banks’ findings.[6]
[5] Letter from Ms Amanullah (undated), Further Supplementary T-documents at 53.
[6] Further Supplementary T-documents at 50.
An additional issue was raised prior to hearing that the review process had continued even though the Applicant had not been advised by the Respondent that they had not used the correct form in filing their application.
In the light of these circumstances this Tribunal, on 25 February 2021, issued a direction under paragraph 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for the matter to be reconsidered by the Respondent.
The Applicant re-lodged their submission on the correct application form following this direction of the Tribunal. That application was made on Form 1290 (Application for Australian Citizenship – Other Situations). It was dated 3 March 2021,[7] which was received by the Respondent on 5 March 2021.[8]
[7] Ibid at 71.
[8] Ibid at 82.
On 17 March 2021 the Respondent again refused the request on the same grounds as the original refusal.
Therefore, the matter came before the Tribunal on 9 July 2021. The proceedings were conducted using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was represented by her daughter and assisted by an interpreter in the Dari language.
A matter of timing arises in that the legislation requires that a decision be made about the condition of an applicant at the time the person made the application for citizenship. The original application was made on 7 May 2018 but after the Tribunal’s Direction of 25 February 2021 a further application (via a Form 1290) was lodged and received on 5 March 2021. The second refusal decision, the decision under appeal, was made on 17 March 2021. However, the record of that refusal nevertheless records the “date of lodgement” of the application as still being 7 May 2018.
The Tribunal considers that the relevant date in these proceedings is 7 May 2018 but will, for the avoidance of doubt, indicate that its findings are applicable to either or both dates.
CITIZENSHIP BY CONFERRAL
Legislative framework
Applications for citizenship by conferral are made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). Once an application is made, the Minister must either approve or refuse the application.[9]
[9] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[10] and, if they do, they must then undertake and pass the Citizenship Test[11] (unless they are exempted from so doing).[12] Once that is complete, a qualified applicant must make the Pledge of Commitment[13] (unless they are exempted from so doing) before their citizenship is finally granted.
[10] Act s 21(2).
[11] Act s 23A.
[12] Act ss 21(3)(d), 21(4)-(8).
[13] Act s 26.
As stated, in order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Paragraphs (d), (e) and (f) of subsection 21(2) require the Minister to be satisfied that the applicant:
(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
…
In order for the Minister to be “satisfied”, subsection 21(2A) provides for a “Citizenship Test” to be undertaken by the applicant:
(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, under paragraph 21(3)(d) of the Act, the Minister may, in effect, waive the requirements of this provision in circumstances where the applicant:
(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;
Policy considerations
Assessments of applications for citizenship must be made against both the statutory requirements set out in the Act, but also in line with the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPIs) which have been issued to assist decision-makers. It should be noted that such Policy Statement and Instructions are just that, they exist to inform and guide decision-makers, but they do not have the force of law nor are they absolutely binding on those decision-makers.
The relevant CPI is CPI 2 - Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity. It sets out the tests which are held to be appropriate in the evaluation process as follows (emphasis in original):
3.4 Assessing incapacity
Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case. Decision-makers should consider whether it is necessary to query any inconsistency or ambiguity that may bear on the question of whether paragraph 21(3)(d) is satisfied.
When applicants are requested to provide reports from a specialist they should be given the Incapacity form (under development at the time of publication of this instruction).
This will assist the specialist to identify what should be included in the report.
Each limb of the provision must be met
There are two limbs to this provision.
·The applicant must have a permanent or enduring incapacity at the time of application. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.
oExamples include but are not limited to where a person has a congenital birth defect or suffered a stroke and their prognosis of recovery is not predictable.
oWhen 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. These are factors that need to be addressed specifically in the evidence provided by the applicant.
oWhen assessing applicants who suffer from physical or mental condition [sic], such as broken limbs, postnatal depression, or grief over the passing of a close relative, one consideration would be whether these are short term or long-term conditions. Short term conditions would not usually meet this criterion.
·The incapacity must be the direct cause of the applicant not being capable of:
ounderstanding the nature of the application; or
odemonstrating a basic knowledge of English; or
odemonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).
MEDICAL EVIDENCE: DR KHAN
Although the Applicant provided medical evidence from Dr Varatharajan, this is in the form of a Health Summary Sheet which is very brief, and which does not convey any sense of a detailed clinical analysis of the Applicant’s medical condition(s).[14] Further, Dr Varatharajan is not a specialist in the relevant field. As such, the Tribunal places no significant reliance upon his submission.
[14] Health Summary Sheet by Dr Varatharajan dated 11 June 2019, Supplementary T-documents at 1-2.
By contrast, Dr Khan has provided a number of reports (dated 14 June 2019, 10 July 2019 and 4 August 2020).[15] He is a specialist in the field and has been treating the Applicant since May 2018.
[15] Ibid at 3; T-documents at 7-8; Further Supplementary T-documents at 50.
Dr Khan’s letter of 14 June 2019 states:
“Mrs Mir does not have capacity to study for the Australian citizenship examination given her major mental illness.
Mrs Mir suffers from schizoaffective disorder, post-traumatic stress disorder and major depressive disorder, which are severe in nature and impact on her cognitive functioning. She regularly attends psychiatrist appointments and is prescribed psychiatric medications (the antidepressant medications fluoxetine and mianserin and antipsychotic medication olanzapine) for her mental illness.”
Dr Khan’s report of 10 July 2019 states (inter alia):
“Ms Mir first became aware that she had an incapacity when she engaged in psychiatric treatment in 1991 in Afghanistan.
Ms Mir was first diagnosed with an incapacity in 1991 when she engaged in psychiatric treatment in 1991 in Afghanistan. Although medical records are not available to determine what incapacity she was diagnosed with, based on Ms Mir’s history, it is likely that she was diagnosed with post-traumatic stress disorder and major depressive disorder.
The clinical testing taken to assess Ms Mir’s mental state and cognition has been mental state examinations, which have been conducted during the psychiatric consultations with a Dari-speaking interpreter. During these mental state examinations, Ms Mir has described her mood in depressed terms and has presented as emotionally withdrawn, despondent and tearful in her affect. Her thought content has comprised symptoms of depression, anxiety, trauma and psychosis as well as chronic suicidal ideation. Her cognition has shown limited attention and concentration. She has appropriate insight into her mental health conditions.
Ms Mir’s prognosis is poor with regard to her permanent and enduing mental health conditions of schizoaffective disorder, post-traumatic stress disorder and major depressive disorder.
Ms Mir’s diagnosed incapacity is directly linked to her inability to demonstrate that she meets certain legal requirements for citizenship. She speaks only the language Dari and is therefore ‘not capable of demonstrating a basic knowledge of the English language’. Furthermore, her permanent and enduring mental health conditions impact on her cognition, particularly her attention and concentration, which means she is ‘not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’.”
In a report of 4 August 2020, Dr Khan states further (inter alia):
“Ms Mir has engaged in extensive longitudinal psychiatric assessment and treatment, which has demonstrated that she suffers from permanent and enduing mental health conditions of schizoaffective disorder, post-traumatic stress disorder and major depressive disorder. These mental health conditions affect her cognition, particularly her attention, concentration and memory, which in turn impact upon her ability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
With regard to her education, training and experience, Ms Mir has not had any formal education, training or work experience. She demonstrated an attempt to learn English previously when she first arrived in Australia but her attention, concentration and memory affected her ability to learn English. She has never worked and cannot work due to the aforementioned permanent and enduring mental health conditions.”
Dr Khan’s letter of 4 August 2020 was written after he had been provided with a copy of Dr Banks’ report of 8 May 2020. Dr Khan went on to make certain observations about Dr Banks’ report in the following terms:
“I have reviewed the report of Dr Banks and have no further comment to make. It is evident from the rudimentary nature of Dr Banks’ report that he does not have the clinical expertise to understand the complex presentation of Ms Mir in the context of her sociocultural background and her longitudinal psychiatric assessment and treatment. Dr Banks relies on cross-sectional assessment, simple diagnostic criteria and cognitive assessment measures, which are not socioculturally sensitive, to draw his conclusions and recommendations.”
He concludes by calling on the Tribunal to “consider obtaining an independent opinion from a consultant psychiatrist with expertise in transcultural mental health rather than rely on the opinion of a clinical psychologist.”
Dr Khan was not available to give oral evidence to the Tribunal.
THE OBJECTION OF MS AMANULLAH
On 2 October 2020 Ms Mina Amanullah, the Applicant’s daughter filed a statement in which she recorded her concerns about her mother’s interview with Dr Banks. The Tribunal reproduces that statement as it is written, because it is not sure that the summary of it given in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) (at [12.1] and [12.2]) is entirely accurate. It reads:
“I have some Objections in Dr banks report,
1. which starts from the translator the translator didn’t translate my mother exact like word by word he was adding or cutting some word which I was setting[sic] with her and thin[sic] when the tests started I left the room and they took the test he was encouraging and somehow forcing my mother to repeat other wise you can’t get your citizenship.
2. in Dr banks report he told that Khalida najia mir is able to sit in a citizenship test and I am saying how just with writing the alphabet and the word which she was forced to tell or write with the translator who[sic] it is possible.”
Paragraph 12.1 of the Respondent’s SFIC[16] summarises the first paragraph of Ms Amanullah’s statement as:
“The translator did not translate the mother’s words exactly when the applicant’s daughter was present, then when she left the room Dr Banks was ‘encouraging and somehow forcing [her] mother to repeat him otherwise she could not get her citizenship.’”
[16] Paragraph 12.2 of the SFIC makes no sense at all. It reads: “The applicant was forced to tell or write the alphabet or word with the translator who it was possible for.”
However, it is equally possible to read Ms Amanullah’s statement as implying that it was the translator [“he”] who was allegedly pressuring her mother into repeating something, and this was certainly the import of her oral evidence to the Tribunal. There is some concern for the Tribunal as to the extent to which Ms Amanullah can be clear on this point since she was in the process of leaving or had already left the room.
In his oral evidence to the Tribunal Dr Banks explained the care which he took in the selection of appropriately qualified and experienced interpreters to assist in such evaluations and how he took steps to ensure that their role was limited to that of providing the best possible direct interpretations of “what the person in front of them is saying.”
Dr Banks also noted that Ms Mir was generally more forthcoming in her responses to his questions when Ms Amanullah was not present whereas when she was present Ms Mir was significantly deferential to her. This is also mentioned in paragraph 7 of his formal report.
MEDICAL EVIDENCE: DR BANKS

On 8 May 2020 the Respondent issued a letter of instruction to Dr Gary Banks asking him to undertake an evaluation of the Applicant specifically related to her claim under section 21(3)(d) of the Citizenship Act.[17] Dr Banks provided his report on 17 June 2020 (Dr Banks’ report).
[17] Respondent’s Letter of Instruction to Dr Banks dated 8 May 2020.
The Report runs to some 69 paragraphs over 21 pages and is accompanied by a 6-page curriculum vitae which, inter alia, list details of 10 cases before this Tribunal in which Dr Banks has appeared as an expert witness.[18]
[18] Dr Banks’ Report, Curriculum Vitae at 6.
Dr Banks interviewed the Applicant over a two-day period during which time he administered a number of psychometric tests including:
·Test of Memory Malingering (TOMM) – which discriminates between true memory impairment and malingering or deliberately under-performing.
·Rey Auditory Verbal Learning Test (RAVLT) – testing verbal memory in patients aged 16-89 years so as to evaluate the nature and severity of memory dysfunction. This test was conducted using a Dari translation version.[19]
·Wide Range Achievement Test (WRAT) – an achievement test measuring a subject’s ability to read words, comprehend sentences and address certain mathematical problems.
·Life Events Checklist for DSM-5 (LEC-5)-PTSD – which provides an understanding of the life experiences and traumas through which the subject has passed.
[19] Dr Banks’ Report at [39] footnote 5.
In addition, Dr Banks was provided with copies of all the reports of Dr Khan and all the medical notes of Dr Varatharajan,[20] together with two further letters from Dr R Duad (a neurologist) supplied to him by the Applicant.
[20] These were obtained under summons. The record of some 19 consultations with Dr Varatharajan between January 2013 and July 2019 are analysed in Dr Bank’s report at 3.
Dr Banks’ report considers in detail each of the diagnoses made by other treating practitioners of mental incapacity; post-traumatic stress disorder; schizoaffective disorder and major depressive disorder with psychotic features. Dr Banks’ conclusion in relation to such diagnoses is:
“Such a differentiation alludes to a more appropriate diagnosis as being Generalised Anxiety Disorder. Though it is acknowledged that such a diagnosis would not fit the current exclusion criteria of the Citizenship test regulations.”[21]
[21] Dr Banks’ Report at [52].
In relation to any “enduring” incapacity, Dr Banks concludes:
“55) According to Dr Kahn[sic], Ms Mir’s ‘prognosis is poor with regard to her permanent and enduing mental health conditions.’ A review of his clinical notes combined with evidence from this interviews (sic) conducted here, would suggest that Ms Mir’s mental health is not treatment resistant. For example, Dr Kahn noted that Ms Mir’s ‘mental health has shown some improvement since fluoxetine was increased’ and in another letter to Dr Varatharajan, ‘Ms Mir reported significant improvement in her mental state’ [letter dated 6/07/2018]. Similarly, during the interview Mina reported that following an injection of a medication that she received in Afghanistan her mental health symptoms rescinded. Another example, ‘she states that in the past she was being treated also for depression but apparently this has improved and in under control’ [Dr Kenneth C Wong dated 17/122/2014]. The above examples highlight how Ms Mir’s symptoms appear to be responding well to medication. Her avoidant-type response to psychosocial stressors and her restricted physical lifestyle however, appear to be major contributors to the relapsing pattern of her mental health.”
Dr Banks further concluded that the Applicant’s problems were exacerbated by both her “severe overweight status” (at [66]) and that was significantly “disempowered” by the way in which her family encouraged and supported an attitude of “passivity and dependence” (at [57]). This family attitude manifested itself in maintaining the Applicant “living in an environment which appears to be reinforcing a systemic belief that she cannot learn and cannot change” (at [60]).
In his detailed examination of the Applicant’s life history Dr Banks noted the presence of several traumatic events surrounding the death of the Applicant’s husband and her potentially self-harming behaviour while in Afghanistan (at [12], [50], [51]) He also noted that she had been able to make four trips back to Afghanistan since first arriving in Australia[22] (at [25]) and that at various times she was the holder of a NSW learner driver’s permit (which requires passing a test) and held a Centrelink Pensioner Concession Card indicating that she was in receipt of a carer’s payment[23] hence had been assessed as capable of providing carer services to another person (at [5]). This may relate to an earlier visa held by the Applicant as carer for her own mother. In oral evidence Ms Mir initially denied holding a drivers’ licence but when prompted agreed that she had held one and that the relevant test had been undertaken with the help of a Dari interpreter.
[22] Most recently July/September 2019. T-documents at 62.
[23] See also details in Delegate’s Reasons for Decision, T-documents at 13-20; Further Supplementary T-documents at 81.
Dr Banks’ ultimate conclusion was:
“61) After assessing Ms Mir’s ability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, it is my considered opinion that based on her performance on a battery of objective cognitive assessment measures, Ms Mir’s psychological profile would not be considered sufficient to warrant excluding her from the usual application processes for Australian citizenship.
62) I believe in the preceding paragraphs I have outlined the current complexities which have faced Ms Mir’s treating clinicians and the Tribunal. The current assessment has explored the nature of Ms Mir’s enduring mental incapacity to find that there is only limited evidence to suggest that Ms mir’s mental incapacity is preventing her from obtaining Australian Citizenship through the usual pathway.”
Dr Banks gave oral testimony before the Tribunal in support of his written report, and it was entirely to the effect of confirming what he had stated therein.
Dr Banks was asked to address the basic criticism of Dr Khan to the effect that he was insensitive to issues of cross-cultural psychiatric evaluation and indicated that indeed he was deeply conscious of the issues arising, had considerable experience in dealing with such issues and that the tests which he administered were standardised in such a way as to accommodate such considerations.
When asked why he rejected some of Dr Khan’s diagnoses, Dr Banks opined that Ms Mir did not meet the test of suffering schizoaffective disorder because there was no evidence that she met the core criteria to be diagnosed with schizophrenia, especially the absence of a substantial and prolonged periods or episodes of delusional behaviour. Similarly, Dr Banks opined that (at [50]): “[i]n both clinical notes and letters to Dr Varatharajan it is difficult to discern why Dr Kahn[sic] gave Ms Mir a diagnosis of PTSD or indeed what these traumatic incidences were.”
Most importantly, from the Tribunal’s perspective were two findings and conclusions by Dr Banks: namely that the Applicant had demonstrated a clear capacity to learn over the two days of psychometric testing; and that her condition was amenable to further interventions and treatments which gave some prospect of her condition(s) improving.
In relation to the former, Dr Banks noted that the Applicant
“performed much better on the second day” (at [41]) of testing, which while to be expected, was nevertheless genuine evidence of a capacity to learn. He also remarked, in relation to her limited English language comprehension that the receptive and expressive language tests which he administered showed that (at [43]]): “not having attended formal language classes for more than seven years is a remarkably positive finding with respect to what she did gain from the initial round of language classes, and what she had still retained over time, despite minimal practice.”
Even accepting that the Applicant might be diagnosed as having a “mild intellectual disability”, it was Dr Banks’ opinion that adults in this situation “are still capable of learning vocational skills, seeking employment and living independently with minimal assistance.” (at [59]).
THE EVIDENCE OF MRS MIR
The Applicant herself gave oral evidence to the Tribunal. In almost all instances when questions or matters of fact were put to her she replied that she did not know or could not remember details. She did however remember her sessions with Dr Banks and undertaking the various tests, although she felt under a degree of pressure while completing them.
The Applicant was able to give coherent and appropriate answers when asked why she wanted to be a citizen and that one “should be a citizen” of where one lived. She saw Australia as a safe place for herself and her family.
The Applicant indicated that she had been able to travel back to Afghanistan on some 4 occasions (accompanied by her daughter) to keep in touch with family members and also told the Tribunal that she had originally arrived in Australia on a visa granted so that she could be the carer for her own mother, who was living here at the time.
EVALUATING DIFFERING OPINIONS
Clearly the Tribunal is faced with the dilemma of deciding whether it accepts the evidence of Dr Khan or that of Dr Banks in relation to the Applicant’s capacity to meet the requirements of the Act without exemption.
The Tribunal unambiguously prefers the evidence of Dr Banks.
This preference is based on the following factors:
(a)The reports of Dr Khan do not provide a clear basis upon which his ultimate diagnoses are based. At best they refer to “mental state examinations” without any explanation as to what this might mean or whether or not such examinations were based on recognised tools of mental health/psychiatric assessment.
(b)Dr Khan’s assertion that “[s]he only speaks the language Dari and is therefore ‘not capable of demonstrating a basis knowledge of the English language” is a non sequitur. What is required is the capacity to learn, not an immediate knowledge. It does not follow that speaking only Dari (or any other language) constitutes a barrier to learning.
(c)Dr Khan provides no reference to family histories or life experiences of the Applicant despite her own evidence to the Tribunal that she shared these with him, and he was fully aware of them.
(d)Dr Banks’ report is comprehensive and based upon assessment following extensive in-person examination and the application of various formal tests and assessment tools. It is cast within a framework which recognises the requirements of the Citizenship Act and Dr Banks has proven expertise in dealing with such matters.
(e)Drawing on available evidence from the clinical notes of other practitioners Dr Banks has been able to demonstrate that the Applicant is capable of achieving improvements in her mental health status and that the negative factors which inhibit this (obesity, family dependence) are matters which can be addressed provided the Applicant is willing to do so.
(f)Dr Banks also makes suggestions regarding further treatments which might be open to the Applicant, a relevant matter since CPI 2 refers to one consideration would be whether the depression can be treated when providing guidance to decision-makers.
(g)The Tribunal had the benefit of Dr Banks’ testimony at its hearing and was able to gain a deeper understanding of the basis of his conclusions whereas Dr Khan declined on two separate occasions to make himself available as a Tribunal witness.
The Tribunal explicitly rejects Dr Khan’s unwarranted ad hominen attack on Dr Banks’ inability to understand the Applicant’s “longitudinal psychiatric treatment and assessment” especially given that Dr Banks has had access to and considered all of the medical reports and notes provided by the Applicant’s treating clinicians. Dr Banks’ numerous appearances before the Tribunal as an accepted expert witness and his selection by the Respondent for this purpose negates any suggestion that he is insensitive to sociocultural factors or unaware of their impact. Moreover, to characterise his 21-page report as “rudimentary” is an egregious prostitution of the English language.
RESULTING CONSIDERATIONS
For any applicant to be able to claim exemption from the ordinary requirements for citizenship by conferral by virtue of their suffering an enduring physical or mental incapacity they must be able to show that such an incapacity exists, is permanent and is the direct cause of their inability to learn English or acquire an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
The Tribunal notes that the test to be met under the Act is that which this Tribunal outlined in Butrus:
In order to meet the requirements of s 21(3)(d) what needs to be established is the clear causal connection between a significant physical or mental incapacity and the inability to understand either the nature of the citizenship application or the privileges and obligations of citizenship and the ability to demonstrate a basis knowledge of the English language.[24]
[24] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 at [61].
Having accepted Dr Banks’ assessment and conclusions, the Tribunal can only conclude that there is no such evidence before it.
As stated above, although the Tribunal considers the relevant date to be 7 May 2018, for the avoidance of doubt any finding of the Tribunal must be related to a finding at a specific date, either 7 May 2018 or 5 March 2021. The Tribunal notes that the various reports of Dr Khan indicate some degree of deterioration in the Applicant’s condition between these dates and that Dr Bank’s report of June 2020 falls between these two dates. However, the Tribunal is satisfied that the degree of deterioration in the Applicant’s condition reflected in Dr Khan’s reports is not of such a degree or level of severity as to cause there to be two conflicting and incompatible points of evaluation for the Tribunal. Dr Banks’ careful evaluation through the processes of psychometric testing and the results derived therefrom can be both projected back to May 2018 and forward to March 2021 and are thus equally applicable at either date.
There is no doubt that the Applicant suffers a range of mental health conditions and that she has a limited degree of literacy. She also suffers some physical conditions related to her obesity and some reflux problems.[25] The degree of her incapacity in this regard has been assessed as sufficient for her to be granted the Disability Support Pension (DSP).
[25] Supplementary T-documents at 2.
The criteria for the grant of DSP are quite different from those appertaining to paragraph 21(3)(d) requirements in relation to which the Applicant’s conditions are insufficient to meet the level of incapacity set out in the Act and CPI 2.
Any such decision to refuse citizenship by conferral does not affect any rights which the Applicant has consequent upon her holding her current visa. It does not inhibit her travel overseas (which she has done at least four occasions). There is no limitation on the ability of an applicant to submit further applications for citizenship by conferral[26] which might be appropriate after she has considered the detailed recommendations for ongoing treatment made by Dr Banks and decided whether or not to follow his advice.
[26] Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931 at [8].
DECISION
The decision under review is affirmed.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 27 July 2021

Date(s) of hearing: 9 July 2021

Advocate for the Applicant: Ms M Amanullah

Solicitors for the Respondent: Ms O Hicks, Australian Government Solicitor

[2021] AATA 2538

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date(s) of hearing:	9 July 2021
Advocate for the Applicant:	Ms M Amanullah
Solicitors for the Respondent:	Ms O Hicks, Australian Government Solicitor