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

MLBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 319 (1 March 2021)
Division:GENERAL DIVISION
File Number: 2019/6377
Re:MLBR
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:1 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Senior Member D. J. Morris
CATCHWORDS
CITIZENSHIP – applicant satisfies various criteria for grant of Australian citizenship by conferral – applicant fails to complete citizenship test on several occasions – delegate refuses application – applicant claims permanent or enduring physical or mental incapacity to undertake test at time he applied for citizenship – consideration as to whether applicant had such incapacity – medical evidence – enduring mental incapacity found on medical evidence – enduring mental incapacity at time application for citizenship lodged not found – decision under review is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33A, 35, 37, 38AA
Australian Citizenship Act 2007, ss 21, 23, 24, 52
Social Security Act 1991, s 94
CASES
Butrus and Minister for Immigration and Border Protection; Re: [2019] AATA 239
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2021] AATA 72
Drake and Minister for Immigration and Ethnic Affairs (No 2); Re: (1979) 2 ALD 63
Minister for Home Affairs v G and Another (2019) 266 FCR 569
SECONDARY MATERIALS
Cambridge Dictionary on-line (dictionary.cambridge.org/dictionary/English); Cambridge University Press (Viewed on 10 February 2021)
Citizenship Policy, Department of Immigration and Border Protection (dated 1 June 2016)
Revised Citizenship Procedural Instructions, Department of Home Affairs (commenced 1 January 2019)

REASONS FOR DECISION
Senior Member D. J. Morris
1 March 2021
GENERAL BACKGROUND

On 9 February 2021, the Tribunal made an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant in these proceedings. MLBR is a citizen of the Syrian Arab Republic. He was born in 1988. MLBR first arrived in Australia at the end of January 2010 as the holder of a Tourist (subclass 676) visa which had been granted offshore two weeks earlier. In October 2012, he was granted a Bridging class A (Subclass 101) visa and in July 2015 a Protection (subclass 866) visa, which he still holds. On 12 June 2018, MLBR applied for Australian citizenship.
On 4 September 2019, a delegate of the Respondent refused MLBR’s application for Australian citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (the Act). The delegate found, in respect of relevant provisions of the Act, that the Applicant satisfied section 21(2)(a) of the Act in that he was aged over 18 when he applied for citizenship. The delegate also found that MLBR satisfied section 21(2)(b) of the Act, that he is a permanent resident at the time of the application and the time a decision is made on the application. The delegate also found that MLBR satisfied section 21(3)(c), the general residence requirement in section 22 of the Act.
However, the delegate was not satisfied that MLBR fulfilled the5 requirements of section 21(3)(d) of the Act, and so halted consideration of his application at that point, without assessing the other requirements of section 21(3)(e) of the Act, that the person is likely to reside in, or continue to reside in, Australia or maintain a close and continuing relationship with Australia if the application is approved, and the good character requirement under section 21(3)(f) of the Act. Because the good character requirement was not assessed, the delegate did not go on to consider other relevant sections, namely whether sections 24(2),(4),(4A),(5),(6) or (7) of the Act apply to the Applicant.
Under section 52(1)(b) of the Act, MLBR has brought this decision to refuse his application for citizenship because he did not satisfy section 21(3)(d) of the Act to the Tribunal for review. If the Tribunal finds in his favour, the matter would be remitted to the Respondent with an appropriate direction, so that the remaining mandatory requirements for approval of Australian citizenship by conferral could then be assessed.
Hearing
A hearing was held on 24 November 2020 by videoconference under section 33A of the AAT Act, owing to the current public health emergency. The Applicant was represented by Ms Fatimah Elhouli, of FE Lawyers. The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers. MLBR gave evidence and was cross-examined. The Tribunal was assisted by an interpreter in the Arabic language.
The Tribunal took into evidence the following documents:
Submitted by the Applicant:
(a)Extract of Applicant’s application for a disability support pension (DSP), dated 14 June 2019 (Exhibit A1);
(b)Letter from the Disability Network Manager of Services Australia – Centrelink, dated 3 July 2020, advising of grant of DSP (Exhibit A2);
Submitted by the Respondent:
(a)Volume of ‘T’ documents lodged in compliance with section 37 of the AAT Act (‘TD’) (Exhibit R1);
(b)Volume of Supplementary ‘T’ documents lodged in compliance with section 38AA of the AAT Act (‘STD’) (Exhibit R2);
(c)Report by Dr Abdul Khalid, Associate Professor and consultant psychiatrist, dated 24 March 2020, including consent form from Applicant (Exhibit R3);
Migration and related background
As mentioned above, MLBR first arrived in Australia in January 2010 as the holder of a tourist visa. He subsequently departed and returned to Australia on a further tourist visa (STD, p 59) to visit his father who was unwell (STD, p 83). He was granted a permanent protection visa in July 2015 (TD, p 7).
On 27 January 2017, MLBR applied for Australian citizenship by conferral. He sat the citizenship test but failed on three occasions (STD, p 107). On 8 September 2017, a delegate of the Minister refused this application for citizenship (STD, p 105).
On 12 June 2018, MLBR lodged a second application for Australian citizenship. Question 21 of the application form for Australian citizenship relevantly asks applicants:
Which of the following circumstances apply to you?
I have a permanent or enduring physical or mental incapacity that means I am unable to:
·Understand the nature of my application; or
·Demonstrate a basic knowledge of English, or
·Demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
MLBR ticked a box to indicate that one of these circumstances apply to him (TD, p 20).
MLBR provided two letters from Dr Ian Katz, consultant psychiatrist, in support of this contention. The first letter from Dr Katz is dated 9 May 2018 (TD, p 50). The second letter from Dr Katz is dated 19 March 2019 (TD, p 51). The Applicant also provided a letter (accompanied by a translation) from a public hospital in Turkey regarding another person, Ms LF (TD, pp 56-57).
LEGISLATIVE FRAMEWORK
The Act provides at section 21 that a person may apply to the Minister to become an Australian citizen. Section 24(1) of the Act provides that the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(2) of the Act relevantly provides that a decision-maker must be satisfied that an applicant for Australian citizenship meets eight criteria set out in section 21(2)(a) to (h). Relevantly in the case of MLBR, the person must:
·Understand the nature of an application made under section 21(2) (section 21(2)(d));
·Possess a basic knowledge of the English language (section 21(2)(e)); and
·Have an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (section 21(2)(f)).
Section 21(2A) of the Act provides that these three sections are satisfied only if the person applying for citizenship has sat and successfully completed a citizenship test in the form approved by the Minister under section 23A(1) of the Act.
However, section 21(3) of the Act sets out requirements for an applicant for Australian citizenship who has a permanent or enduring physical or mental incapacity. The person must still satisfy the provisions relating to being aged 18 or over at the time of application, being a permanent resident, the general or special residence requirement, or defence service requirement, and, at section 21(3)(d), that the person 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; and
….
This part then goes on to require that the decision-maker must be satisfied that the person is likely to reside in, or to continue to reside in Australia, or maintain a close association with Australia if the application for citizenship were to be approved and is of good character at the time of the decision on the application.
Submissions of the Applicant
Ms Elhouli submitted that MLBR had attended three appointments at the Department of Home Affairs (the Department) where he sat the citizenship test. On 28 April 2017, he attempted the test twice. On 10 August 2017, he attempted the test three times. On 5 September 2017, he attempted the test four times.
Ms Elhouli says that her client’s failure to satisfactorily complete the citizenship test pursuant to section 21(2A) of the Act renders him ineligible for the general pathway to citizenship, and submits that the alternative pathway that is provided for persons who can prove permanent or enduring physical or mental incapacity is open to, and relevant to the circumstances of, MLBR.
Ms Elhouli submitted that MLBR was referred to a psychiatrist (Dr Ian Katz) by his general practitioner on 3 March 2018. She noted that Dr Katz is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and was formerly the Victorian Local Examinations Co-ordinator for that royal college.
Ms Elhouli submitted that since MLBR was first referred, he has been seeing Dr Katz on a regular basis and “attended consultations with Dr Katz once a month on average”. She provided comprehensive documents, arranged chronologically, of 25 medical reports, medical letters and a dispensary chart, dated between 10 April 2018 to 14 December 2019.
Dr Katz relevantly wrote in his report dated 10 April 2018 to MLBR’s general practitioner as follows:
[MLBR] began by informing me that he has been depressed for over two years. Some two years ago was a very stressful time for [MLBR] with the death of his younger brother, at the age of twenty, from cancer. He said not long after that time his mother and surviving sibling, namely his sister, were able to gain refugee status from Syria and moved to Turkey. He said for an entire six months, while his mother and sister were in transit, he lost contact with them. He said this was an utterly stressful period for him, particularly as it occurred in proximity to the untimely death of his brother. He said that even though he speaks with his mother extremely regularly possibly several times a week, she is not able to come to Australia and [MLBR] being of Syrian nationality and descent, apparently is not able to gain entry into Turkey because of the security issues surrounding the War and concerns of terrorism.
…
He said as a result of his mental health issues and particularly his anxiety and concentration, he recently failed his citizenship test, and this seemed to have been the precipitant to him coming into psychiatric care for treatment.
…
In terms of his mental health issues, as stated he has been depressed for a considerable period and certainly for more than two years. He said his energy and motivation is quite impaired and he has difficulties enjoying himself. He said he gets no enjoyment out of life. He has not been suicidal. He said his sleep can be broken and he wakes in the early hours of the morning. His appetite is unchanged. He said anxiety has been a prominent issue and he has been quite tremulous and has been experiencing muscle tension. This is unusual for him. He denied suicidal ideation, past attempts, features of psychosis or mania, any significant medical problems or any history of drug or alcohol abuse. He informed me he has had depression before but was vague with details and said he had not been treated. As I understand he is not taking the [drug named] you have prescribed for him.
In his 4 August 2019 report, Dr Katz stated that the formal diagnosis of the Applicant’s conditions is post-traumatic stress disorder, generalised anxiety disorder and major depressive disorder. Dr Katz’s opinion was that the conditions have been present “since at least mid-2016”, and that MLBR had had no significant treatment prior to coming into his care. Dr Katz went on to state that current treatment MLBR is receiving is regular specialist psychiatric care under his auspices, and several (five) named medications, of various titrations.
Dr Katz listed symptoms he observed in MLBR and then said they were severe enough for MLBR to have difficulties completing his activities of daily living and having to leave his employment in recent times and that MLBR was, “currently on psychiatric grounds incapable of working”. Dr Katz stated:
Your condition is chronic, and you are likely to have symptoms for months, if not years. It is unclear whether the condition is likely to improve and it would be my view that the condition has stabilised and improvement is likely to be modest at least in the short to medium term.
Ms Elhouli submitted that Dr Katz’s report supported the submission that MLBR’s mental disorders are chronic and fulfilled the description of an enduring mental health condition which she said was present at the time of MLBR’s citizenship application on 27 January 2017.
Ms Elhouli noted, that, relevantly, on 14 June 2018 MLBR applied to the Department of Human Services (Centrelink) for the disability support pension (DSP) on the ground of his major depression, PTSD and that he is receiving ongoing psychiatric treatment and medication. Initially the application for DSP was rejected but on 3 July 2020, Centrelink overruled its own earlier decision and accepted that MLBR’s conditions met the requirements in section 94 of the Social Security Act 1991 of being permanent in nature and rendering him unfit to work or retain work (Exhibit A2).
Submissions of the Respondent
The Respondent submitted that in practical terms, section 21(3)(d) of the Act operates to exempt persons who satisfy the decision-maker that they have a described incapacity from being required to pass the citizenship test. It was common ground that this provides an alternative pathway to satisfy this part of the Act in the quest for citizenship.
The Respondent referred to two documents used by officers of the Department who have a delegation from the Minister to exercise powers under the Act, namely the Citizenship Policy, and the Revised Citizenship Procedural Instructions. The latter document came into effect on 1 January 2019 and replaced the Australian Citizenship Instructions.
The Respondent submitted that the Tribunal, standing in the shoes of a decision-maker, will generally apply policy unless there are cogent reasons not to do so (citing Re: Drakeand Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 63).
The Respondent submitted that the Citizenship Policy provides guidance on the evidence required for a person to establish a permanent or enduring incapacity for the purpose of section 21(3) of the Act (TD, p 91). The Policy requires that the person must produce evidence from a qualified medical practitioner that 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 the responsibilities and privileges of Australian citizenship at that time.
The Policy goes on to state:
To qualify, incapacity must be either permanent, or sufficiently long-standing as to be enduring. An enduring capacity 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 the person has suffered a stroke. A temporary physical or mental condition does not meet the requirement.
The Respondent submitted that the Australian Citizenship Instructions “relevantly provide that the incapacity must be the direct cause” of an applicant satisfying sections 21(3)(i),(ii) and (iii) of the Act.
The Citizenship Policy states that an applicant for citizenship may provide evidence from a psychiatrist who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists or a medical practitioner who is a Fellow of the Australian Society of Psychological Medicine, or a psychologist who is registered with the Psychology Board of Australia, has a practise endorsement in an area relevant to the ‘problem’ (by which the Tribunal interprets the author of the Citizenship Policy means the claimed cause of the incapacity), and is registered with Medicare for these purposes.
The Citizenship Policy goes on to state:
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
(Emphasis in the original.)
The Respondent submitted that the Tribunal cannot be satisfied that MLBR met any of the requirements set out in section 21(3)(d) of the Act on 12 June 2018, being the date of his application for citizenship.
The Respondent accepted in the hearing that Dr Katz was a medical practitioner with relevant qualifications to make a professional assessment of the Applicant’s mental capacity.
Oral Evidence of Applicant
MLBR gave evidence by video-link. He said he could not remember when he first arrived in Australia; he said he has difficulties with his memory. He did remember he first arrived on a tourist visa. When asked when he first went to see Dr Katz and the reason he was referred, MLBR said “The reason for me to see Dr Katz was because I was sick. I don’t remember the date”.
Ms Elhouli asked MLBR what was he experiencing when he first went to see Dr Katz. The Applicant responded: “Something to do with the nerves. Shivering. Everything was shaking and anxious”.
He agreed that he was prescribed some medication for anxiety and that he had been seeing Dr Katz since April 2018 “once a month”. He said that Dr Katz had increased the medication dosage “because I was going downhill”.
Ms Elhouli asked MLBR whether Dr Katz had discussed a plan for recovery and when that would happen. MLBR said “No, he didn’t mention a recovery time”.
Under cross-examination, MLBR confirmed he returned to Australia for a second time in November 2011 and that he had returned because his father (who lives in Australia) was ill.
Mr Orchard took MLBR to documents (at STD, pp 110-249) which include details of certain international money transfers made by the Applicant. MLBR agreed that he had sent money back to his mother’s sister in Turkey. He was asked whether he was working in October 2017, and MLBR confirmed he was working as a kitchenhand and not at that time receiving any social security benefits. MLBR said that “there were other people helping me withdrawing money from the bank”.

MLBR said that he enrolled in English language courses and tried to undertake the lessons but was not able to continue “because my concentration was poor; I couldn’t comprehend”.
In answer to direct questions from the Tribunal about how he was able, given his work at the time was as a kitchenhand for, on his evidence, between 2 and 4 hours a day, to send more than $50,000 AUD to Turkey, MLBR said that he received help from other people who knew that his mother was sick in Turkey, which was how he was able to send funds to Turkey to assist her. He told the Tribunal that his mother’s treatment cost a lot of money.
Evidence of Dr Abdul Khalid, expert witness
Dr Khalid gave evidence by telephone. He confirmed that he wrote a report dated 24 March 2020 which was before the Tribunal (Exhibit R3).
Dr Khalid said he examined MLBR on 16 March 2020 with the assistance of an interpreter in the Arabic language. MLBR was accompanied by his stepmother. Dr Khalid said he had read three reports Dr Katz had made on the Applicant.
Dr Khalid said his understanding of MLBR’s time in Syria was that it was traumatic and led to his PTSD condition. Dr Khalid said that the Applicant told him he saw people killed and dying and was directly threatened, which fulfilled the preconditions for a diagnosis of PTSD.
Under cross-examination, Dr Khalid was asked why he couldn’t obtain a medical history from MLBR. He responded: “He was agitated, shaking. It was difficult to get anything from him despite the help from the interpreter and his stepmother. He was able to provide a limited history”.
In terms of the impact on his activities of daily living, Dr Khalid said that MLBR’s stepmother cooks for him and washes his clothes. He has no libido. He formerly was able to drive but cannot anymore, but he does sometimes go to the shops.
Dr Khalid said that MLBR had previously been generally able to undertake his employment as a kitchenhand and drive, but the Applicant told him he wasn’t able to concentrate. He said MLBR’s cognition was affected on the day he saw him.
Dr Khalid confirmed the conclusion at page 10 of his report that MLBR has no current ability to learn English and prepare for the citizenship test. Asked whether the Applicant would have had the capacity to learn English in June 2018, Dr Khalid said it was his opinion that MLBR would not, but he improved in July 2018. In answer to a direct question from the Tribunal, Dr Khalid said there was a temporary improvement in the Applicant’s mental condition in the period between April and July 2018 and then a decline.
Dr Khalid said that he assessed MLBR as having a depressive disorder and PTSD. He said PTSD does not impair judgement, but it acts to impair a person’s mood. Dr Khalid said it was his opinion that MLBR’s condition was unlikely to improve in the next two years and that ECT is another option of treatment that could be considered.
CONSIDERATION
It was agreed between parties, and echoed in the written submissions by both the representatives of the Applicant and the Minister, that the question before the Tribunal is whether MLBR meets the requirements in section 21(3)(d) to be exempted from being required to pass a citizenship test in his quest for Australian citizenship by conferral.
Section 21(3)(d) of the Act is disjunctive. For a person to satisfy its provisions and thereby be exempted from passing the citizenship test, they must have a permanent or enduring physical or mental incapacity at the time they made the application for citizenship, and that incapacity must mean that either
·(section 21(3)(d)(i)) they are not capable of understanding the nature of the application at that time; or
·(section 21(3)(d)(ii)) they are not capable of demonstrating a basic knowledge of the English language at that time; or
·(section 21(3)(d)(iii)) they are not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
The person does not have to satisfy each of these sub-requirements, only one.
In the Applicant’s written submissions, Ms Elhouli submitted that MLBR was also a person of good character and had no criminal offences recorded against his name in Australia or any other country. Without disputing that assertion, the Tribunal makes clear that if a person satisfies, to use a simple term, the ‘alternative pathway’ to citizenship by being exempted from passing the test because of their personal incapacity, they must still satisfy section 21(3)(f) of the Act and there was insufficient evidence before the Tribunal on that question. As mentioned above, should the Tribunal find MLBR satisfied section 21(3)(d) of the Act, the matter would be remitted to the Minister for the other legislative requirements, including the good character requirement, to be assessed and satisfied.
Does MLBR have a permanent or enduring physical or mental incapacity?
Dr Kallab, the Applicant’s general practitioner, referred MLBR to Dr Katz for psychiatric treatment on 3 March 2018 (STD, p 1). MLBR’s first consultation with Dr Katz was on 10 April 2018 (STD, p 4 and p 8). He was re-referred to Dr Katz on 14 March 2019.
In his letter dated 19 March 2019 (TD, p 51), Dr Katz wrote a letter to MLBR in support of an ‘expedient Application for you to obtain citizenship in Australia’. Dr Katz wrote that he was providing specialist psychiatric care to the Applicant, that MLBR was suffering from severe depression, anxiety and post-traumatic stress as a result of events in Syria and also because he was separated from his mother who was unwell and currently living in Turkey. Dr Katz noted that MLBR’s psychiatric condition ‘continues to be substantially destablised’.On 9 May 2019 (TD, p 50), Dr Katz wrote directly to the Department about MLBR:
Currently as a result of his significant depression and post traumatic stress he does not have the concentration or volition to undertake the Citizenship Test for ongoing residence in Australia. He is currently on a significant amount of medication and has been really quite unwell and it would be my prediction/estimation that it will be a matter of weeks before he could be considered to be fit on medical/psychiatric/psychological grounds, to undertake the required test.
Dr Katz also wrote a further letter, this time to the Tribunal and to the Department, following the delegate’s refusal of MLBR’s application, which is dated 15 September 2019 (TD, pp 52,55). In this September 2019 letter, Dr Katz stated that the Applicant had been his patient for ‘several months’ and had been attending ‘monthly or thereabouts and at times more frequently’, and that:
My patient has been suffering from the symptomatology for at least a two year period based on his experiences within his homeland and other family events;
He is severely impacted by his condition to the point that he had had to give up work as an assistant in hospitality and kitchenhand because of his level of depression, anxiety, apathy, poor concentration, impaired cognition and organisation and impaired endurance in performing tasks.
...
It would be by view that his condition is likely to now follow a chronic course given the nature and severity of his symptoms, his ongoing stressors, and his notional response to a variety of psychotropic medication which has been provided to him and which he continues to take on a regular and appropriate basis.
Dr Khalid saw MLBR for psychiatric assessment and report at the request of the Respondent on 12 September 2020. In his report, Dr Khalid refers to earlier correspondence from Dr Katz and states:
Based on the history, mental state examination and the documents provided to me, in particular Dr Ian Katz’ report, in my opinion [MLBR’s] current diagnosis is a major depressive disorder with anxious distress and he also has residual symptoms of post-traumatic stress disorder.
Dr Khalid then proceeded to provide written answers to questions asked of him by the Respondent’s lawyers in their letter of instruction:
Question: Having regard to the enclosed clinical material and your assessment, please provide your opinion regarding the diagnosis of [MLBR’s] mental health condition/s (if any), including the date of onset:
Response: In regard to the enclosed clinical material and my assessment, in my opinion [MLBR’s] current diagnosis is a major depressive disorder with anxious distress, according to DSM-5 diagnostic criteria. [MLBR] also has residual symptoms of post-traumatic stress disorder. In my opinion, his major depressive disorder started around four years ago and his post-traumatic stress disorder would have occurred more than 10 years ago when he was in Syria.
Question: Do you consider these condition/s are permanent and enduring?
Response: I consider that his conditions are permanent and enduring.
Question: Do you consider that [MLBR’s] mental health condition/s affect his cognition? If so, please provide details including, how and to what extent [MLBR’s] cognition is affected.
Response: I consider that [MLBR’s] mental health condition affects his cognition. He is depressed and has difficulty concentrating. He is preoccupied with his past traumatic experiences and bereavement regarding the death of his brother eight years ago. He wants to meet with his mother and sister, whom he has not seen for nine years.
Question: Do you consider that as at June 2018, [MLBR] had a permanent or enduring physical or mental incapacity, which means he was not
(i) capable of understanding the nature of the citizenship application at that time.
Response: I consider [MLBR] had understanding of the nature of the citizenship application at that time.
(ii) capable of demonstrating a basic knowledge of the English language at that time; or
Response: I note that [MLBR] did not have a basic knowledge of the English language at that time.
(iii) capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
Response: I do not consider that his psychiatric condition would have prevented him from demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time. His English language skills may have been a barrier.
Question: Does [MLBR] continue to suffer the effects of the mental health condition/s? If not, when did the effects, such as incapacity and/or need for medical treatment cease:
[MLBR] currently suffers from a major depressive disorder and residual symptoms of post-traumatic stress disorder.
Question: If [MLBR] continues to suffer the effects of the mental health condition/s, what is your prognosis as to these condition/s?
Response: [MLBR’s] prognosis is poor, as he had moderately severe major depressive disorder and residual symptoms of post-traumatic stress disorder. He has received treatment with various psychotropic medications, which have not been effective in ameliorating his symptoms.
The Tribunal is satisfied on the medical evidence before it, the reports from Dr Katz, and the report and oral evidence from Dr Khalid, that the Applicant has a ‘permanent or enduring physical or mental incapacity’ in the way that term is expressed in section 21(3)(d) of the Act.
To borrow the wording from the Citizenship Policy, the mental conditions that MLBR has are ‘sufficiently long-standing as to be enduring’. There is not a predicted recovery: Dr Katz described his patient’s psychiatric conditions as ‘chronic’ and Dr Khalid’s opinion was that MLBR’s prognosis is ‘poor’.
This conclusion is supported by the additional evidence before the Tribunal that on 3 July 2020 Services Australia (Centrelink) advised the Applicant that an internal review of a decision of 1 July 2019 not to pay him Disability Support Pension (DSP) had found that decision was incorrect and granting the DSP. While the provisions relating to qualification for DSP in section 94 of the Social Security Act 1991 are different from those in section 21 of the Act, it is highly relevant that a different arm of government has assessed MLBR’ incapacity for work and, self-evidently by the grant, found that his impairment is fully diagnosed, fully treated and fully stabilised.
The Tribunal is further satisfied on the evidence that MLBR understands the nature of his application for citizenship. His evidence was significantly compromised by the obvious physical concomitants of his mental health condition, which the Tribunal accepts has affected his memory. In addition, what Dr Katz described as MLBR’s ‘tremulous’ demeanour was also apparent to me. However, I consider that he understood the nature of the hearing and was able, within constraints apparent from his symptoms, to cogently answer questions put to him by his lawyer and by the Respondent’s lawyer, and directly by the Tribunal, in the sense of appreciating the nature and purpose of his application for citizenship by conferral and his initiation of a merits review of the delegate’s refusal.
I am also satisfied that the significant mental health conditions of MLBR mean that he is not capable of demonstrating a basic knowledge of the English language. I am satisfied that the evidence points to the Applicant’s inability to demonstrate that basic knowledge being directly linked to his mental incapacity, not solely because English is not his first language. I am comfortably satisfied that the memory and concentration deficits which have been identified by his treating psychiatrist and by Dr Khalid as being present are directly linked to this inability. This satisfies the provisions of section 23(d)(ii) of the Act.
In the absence of a definition in the Act, the ordinary meaning of a word is considered. The Tribunal finds that, because of his deficits, MLBR is unlikely to be able to demonstrate (in the ordinary dictionary sense of that word, i.e. to “show or make something clear” (Cambridge Dictionary on-line, accessed 10 February 2021) an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship and thereby may meet the incapacity described in section 23(3)(iii). It is not necessary for the Tribunal to make a definitive finding on this last point, because as I have said above, section 23(d) is disjunctive and I have found that MLBR satisfies the requirements of section 23(d)(ii) of the Act.
The Respondent acknowledged that both Dr Katz and Dr Khalid have observed that MLBR’s English language is poor, “it has not been established that the applicant’s diagnoses of PTSD and depression are the direct causes of any poor English skills, as opposed to poor literacy”, and quotes the decision of Senior Member Puplick in Butrus and Minister for Immigration and Border Protection [2019] AATA 239 (Butrus). I am not satisfied that Butrus is on point. In Mr Butrus’s case there was evidence before the Tribunal, which was not in contention, that he was illiterate. The circumstances of MLBR are quite different. One of the symptoms of the MLBR’s mental health conditions is lack of concentration and ‘volition’. I accept that Dr Katz uses the term ‘volition’ in the medical sense of that word, meaning the cognitive process by which an individual decides on and commits to a course of action. Coupled with Dr Khalid’s views about the barriers faced by MLBR because of his ‘limited’ and ‘poor’ English language skills, I am satisfied that the permanent and enduring incapacity he has directly affects his functionality to learn English.
Did the Applicant have the permanent or enduring physical or mental capacity at the time he applied for Australian citizenship?
What is essential in this review is whether the Applicant satisfied section 23(d) of the Act at the time he made the application. While a person only needs to satisfy a decision-maker that their medical incapacity renders them incapable of one of the stipulations in section 23(d)(i), (ii) and (iii), each of them specifies that the incapability must be applicable to the person at that time, i.e. in MLBR’s case the day he made his application – 12 June 2018.
That is the clear legislative intent of section 23(d), underlined by the fact that it contains the words that the person applying for Australian citizenship must have an incapacity ‘at the time’ (of making the application) or ‘at that time’ in the wording of each of the subparagraphs (i), (ii) and (iii).
In his 9 May 2018 letter to the Department (TD, p 50), Dr Katz wrote that “currently” MLBR does not have the concentration or volition to undertake the citizenship test. He went on to say that:
it would be my prediction/estimation that it will be a matter of weeks before he could be considered to be fit on medical/psychiatric/psychological grounds, to undertake the required test.
(Tribunal’s emphasis)
Dr Katz wrote to Dr Kallab about their patient on 4 July 2018 (STD, p 47). He said:
[MLBR] has improved significantly in terms of his PTSD, anxiety and depression with a combination of multiple medications [medications and dosages named]. He has been worried about his mother although she has been discharged from hospital in Turkey. Currently he is somewhat concerned about his immigration status but we will deal with problems there as they arise.
In Dr Katz’s 19 March 2019 letter (TD, p 51) addressed directly to MLBR and written to assist the Applicant with his citizenship application, Dr Katz wrote:
I am providing this correspondence to you in support [of] an expedient favourable Application for you to obtain citizenship in Australia. This is on psychiatric grounds as your psychiatric condition continues to be substantially destabilised as a result of concerns you have in relation to your mother and the complication of the attendant immigration issues which you are facing.
(Tribunal’s emphasis)
The reference to the Applicant’s mother relates to her being in Turkey and having been substantially unwell, and to MLBR advising Dr Katz that he may have difficulties visiting her on a Syrian passport.
In his 15 September 2019 letter to the Department, Dr Katz relevantly wrote (at TD, p 54):
1)My patient suffers from severe depression, anxiety and post traumatic stress disorder;
2)My patient has been suffering from the symptomatology for at least a two year period based on his experience within his homeland and other family events.
3)He is severely impacted by his condition to the point that he has had to give up work as an assistant in hospitality and kitchenhand because of his level of depression, anxiety, apathy, poor concentration, impaired cognition and organisation and impaired endurance in performing tasks.
4)[MLBR] has been attending my Practice monthly or thereabouts and at times more frequently depending on whether there has been an exacerbation of his symptomatology;
5)It would be my view that his condition is likely to now follow a chronic course given the nature and severity of his symptoms, his ongoing stressors, and his notional response to a variety of psychotropic medication which has been provided to him and which he continues to take on a regular and appropriate basis.
(Tribunal’s emphasis)
The opinion of Dr Katz carries significant weight, because he is the treating psychiatrist who has been seeing MLBR for almost three years and because the Respondent’s expert witness, Dr Khalid, said in his report his own conclusions were based in part on reviewing Dr Katz’s correspondence.
While the Tribunal is comfortable to have found that MLBR now qualifies for the alternative pathway to Australian citizenship by reason of satisfying section 21(3)(d)(ii) of the Act, I am unable to find that the Applicant satisfied section 21(3) of the Act at the time he made his application. This is because almost exactly a month before the key date of 12 June 2018, Dr Katz was of the view that it would be a “matter of weeks” before MLBR was able to sit the citizenship test, and then, in July 2018 (i.e. a month after the citizenship application was lodged), reported to the Applicant’s general practitioner that MLBR’s mental health conditions had ‘improved significantly’.

My conclusions are bolstered by the evidence that Dr Katz then wrote in September 2019 that MLBR’s mental health conditions continued to be ‘destabilised’ not only by the traumatic experiences he had in Syria, but also by the more recent impact of concern about his mother’s sickness and his apparent inability to travel to see her. I accept Dr Katz’s September 2019 opinion that his view was that MLBR’s symptomatology which founds his significant mental health conditions has been present for ‘at least two years’, i.e. since at least September 2017, but given the first consultation MLBR had with Dr Katz was not until April 2018, this timeframe cannot be more than an educated guess by Dr Katz, if one that carries due weight because of his professional clinical expertise.
It is a sombre fact that Dr Katz’s initial hopefulness in May and June 2018 about the hopeful trajectory of MLBR’s health conditions has not eventuated, largely it would seem because of the Applicant’s lack of sustained responsiveness to various prescribed medications.
At the hearing, the Tribunal noted the concession by the representative of the Respondent that while the Minister submitted that MLBR’s incapacity was not ‘enduring or permanent’ at the time of his citizenship application, it may be now. That is the conclusion, on the medical evidence, at which the Tribunal has also arrived.
However, the disappointing outcome for MLBR is that the Tribunal must apply the law, and his incapacity must be established as at the lodgement date of the application for citizenship and be such that it satisfies one of the subparagraphs of section 23(d) at that time.
As I have found the medical evidence of his treating psychiatrist points away from that, the result is that the decision of the delegate to refuse MLBR’s application was the correct decision in law. This does not of course prevent MLBR from making a fresh application (indeed that is encouraged by the wording of the letter of rejection at TD, p 4). If the Applicant does so it would seem to me that, at least in this respect, the contemporary medical evidence, especially the opinion of Dr Khalid, would carry significant weight.
A cautionary note
The Citizenship Policy and Revised Citizenship Procedure Instructions are Departmental documents produced for the guidance of officers who hold a legal delegation from the Minister to make decisions on his behalf and are not statutory instruments. A good summary of the correct situation was set out by Deputy President Sosso in the recent decision Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
The Full Court of the Federal Court of Australia made the status of the Instructions and the Citizenship Policy clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [54]:
There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.
And at [58]-[62]
“58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...

59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.
60. However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....
62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...”
Where the contents of the document are not inimical to the purpose of the Act and are intended to ensure general consistency in decision-making and thereby promote objectivity in considering the circumstances of a person applying for citizenship, it is appropriate the guidance offered is followed. This is consistent with the wise pronouncement of Sir Gerard Brennan, the first President of this Tribunal, in his oft-quoted decision in Drake. But care should be taken by the Department not to use policy provided for guidance of officers to bind them in accepting or rejecting an application. For instance, while it is in the policy that a person claiming an enduring incapacity will have been seeing a specialist on a regular basis, this is not a requirement in the Act and would not, it would seem, be logical if the person’s incapacity was because of a stroke, as is one of the (appropriate) examples given in the policy.
CONCLUSION
The Tribunal is aware that it is Dr Katz’s view that uncertainty over MLBR’s ‘immigration status’ may be a contributory factor in his symptomatology, or at least may have a deleterious effect on his treatment. However, MLBR holds a permanent visa; it is not in prospect that this visa will be revoked. I am conscious that MLBR seeks Australian citizenship as part of the conclusion of his immigration journey, and that is entirely understandable, and I would urge him to make a fresh application where the findings of this Tribunal may assist him in how any such application is assessed.
However, much as the Tribunal is sympathetic to what the medical evidence agrees is a chronic and significant medical condition which affects the Applicant in his daily life, I am unable to find that the requirements of section 23(d) of the Act were met on 12 June 2018, which is what the law requires.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 1 March 2021

Dates of hearing: 24 November 2020

Counsel for the Applicant: Ms Fatimah Elhouli

Solicitors for the Applicant: FE Lawyers

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore

[2021] AATA 319

1 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Remedies

Dates of hearing:	24 November 2020
Counsel for the Applicant:	Ms Fatimah Elhouli
Solicitors for the Applicant:	FE Lawyers
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore