Mohammad Bavi and Minister for Home Affairs (Citizenship)

[2019] AATA 4390

Mohammad Bavi and Minister for Home Affairs (Citizenship) [2019] AATA 4390 (30 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2397

Re:Hassan Mohammad Bavi

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:30 October 2019

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – citizenship test – whether applicant has permanent or enduring physical or mental incapacity – mental health conditions – capacity to understand English – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(3)

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Mr S Evans, Member

30 October 2019

OVERVIEW

1. This is an application by Hassan Bavi (“the applicant”) for a review of a decision of the Minister for Home Affairs (“the respondent”) to deny his claim for Australian citizenship by conferral.

2. The applicant applied for Australian citizenship in July 2015 and contends that the requirement to undertake the citizenship test should be waived due to an enduring mental incapacity.

3. The matter was heard in Sydney on 1 October 2019. Mr Bavi attended the hearing and was self-represented. He stated at the beginning of the hearing that he did have a legal representative but the representative was unable to attend the hearing. The Tribunal offered Mr Bavi an opportunity to adjourn the hearing but Mr Bavi determined that he wished to proceed as the matter was causing him ‘enormous stress’. Mr Bavi appeared engaged during the hearing but at times showed signs of being indifferent and dismissive of the proceedings. He provided evidence with the assistance of an interpreter. Dr Gary Banks also gave evidence at the hearing.

4. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the applicant.

   LEGISLATIVE FRAMEWORK AND POLICY

5. Generally, a person is eligible to become an Australian citizen if they meet the criteria in s 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”). In order to satisfy the requirements of ss 21(2)(d), (e) and (f) a person is required to sit what is known as the ‘citizenship test’.

6. Section 21(3) of the Act provides for people who the Minister is satisfied had a permanent or enduring physical or mental incapacity at the time of their application for citizenship. Under s 21(3)(d) a person is eligible to become an Australian citizen if, at the time the person made the application, they had a permanent or enduring physical or mental incapacity which means that they were not capable of understanding the nature of the application at that time, or not capable of demonstrating a basic knowledge of the English language at the time, or were not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time. If they satisfy the criteria in s 21(3) an applicant is not required to take the citizenship test.

7. The Citizenship Policy (“the Policy”) contains guidance for decision-makers in relation to paragraph 21(3). At pages 71 to 73 it states:

   For applications received on or after 9 November 2009 for consideration under s 21(3) 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.

   …

   Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.

   …

   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.[1]

   [1] Australian Citizenship Policy, pp. 71-73.

   ISSUES FOR THE TRIBUNAL

8. The key issues for the Tribunal to determine are:

   (a)at the time of application, did Mr Bavi have a medical condition which meant that he was not capable of understanding the nature of the citizenship application, or demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and if so

   (b)is the condition permanent or enduring.

   BACKGROUND

9. Mr Bavi was born in 1975 and is currently stateless. He arrived in Australia as an ‘unauthorised maritime arrival’ in November 2009 and consequently spent a period of time in immigration detention prior to being granted a visa in July 2011.

10. Mr Bavi applied for Australian citizenship by conferral in July 2015. In the application form Mr Bavi stated that he has a permanent or enduring physical or mental incapacity. He attached a detailed psychological report prepared in May and June 2015 by Ms Tajana Opacic who is a clinical psychologist at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma survivors (“STARTTS”).

11. In April 2018 a delegate of the Minister refused Mr Bavi’s application for Australian citizenship having concluded that he did not meet the criteria required to qualify under s 21(3)(d).

    EVIDENCE AND HEARING

12. The applicant contends that he is unable to sit the citizenship test because of his depression, post-traumatic stress disorder and generalised anxiety disorder. He indicated that his English language skills were inadequate and unlikely to improve in spite of attending 592 hours of English language training through the Adult Migrant English Program.

13. Mr Bavi wants to become an Australian citizen so that he can get ‘an identification’ like anyone else, so that he can vote and in order to travel and visit his family in Iran who he has not seen for 10 years. He testified that he determined he would not sit the citizenship test during the process of completing the application form. He says he ‘knew himself’ and that as his English was of a poor standard he knew that if he sat the test he would fail and that it would be stressful for him. He emphasised to the Tribunal on multiple occasions during the hearing that whenever he has tests he gets stressed and that his English is of a poor standard making completing tests additionally stressful. Anxiety relating to taking tests is something he has experienced since school.

    Medical conditions

14. Mr Bavi has provided the Tribunal with a copy of a report from STARTTS which was prepared by psychologist Ms Sejla Tukelija in May 2010. Minimal weight can be placed on the report given its date and that it was prepared whilst the applicant was being detained in immigration detention. I note however that the author states that ‘it appears that Mr Bavi Mohammad has symptoms of affect and dysregulation particularly anxiety and depression’. The report concludes that ‘Mr Bavi’s symptoms that are associated with trauma and depression will not change significantly for as long as his status in Australia is not determined and he remains in a situation of insecurity’. Clearly the issues of his detention and residency status in Australia have long since been resolved.

15. The applicant testified that he has seen a psychologist 135 times over a period of five years and he provided a list of handwritten dates which appear to show regular meetings with a variety of psychiatrists, psychologists and counsellors over a period of years beginning in 2011.

16. As mentioned previously, in support of his citizenship application Mr Bavi provided a second psychological report prepared by STARTTS, dated 26 June 2015. The report was compiled by Ms Tajana Opacic who is registered with AHPRA and a member of the Australian Psychological Society. The author reports that Mr Bavi experienced ongoing trauma since his early childhood in Iran due to his ethnicity as well as a number of traumatic events since arriving in Australia, primarily related to his time in immigration detention. Ms Opacic also states that the boat journey to Australia was a ‘horrifying experience’ for Mr Bavi, ‘due to the rough conditions and scarce food and water availability’.

17. The STARTTS report states that Mr Bavi ‘described his time in detention as “mental torture”’. Regarding treatment Ms Opacic writes:

    “For the past three and a half years he [Mr Bavi] has been receiving counselling at STARTTS with regards to his psychological difficulties and emotional distress associated with his detainment and traumatic experiences. Mr Mohammad Bavi is currently taking 300mg of Endep, an antidepressant medication to assist in the management of his psychological difficulties and currently being monitored by STARTTS Psychiatric Registrar”.

18. She concludes that Mr Bavi’s symptoms are causing him moderate to severe distress and difficulty in his overall functioning. She writes that Mr Bavi is struggling to manage everyday tasks that form part of his normal life cycle, including studying, up-skilling towards securing employment and developing and securing meaningful social relationships.

19. Mr Bavi has also provided letters from Dr Assad Saboor who wrote in August 2018:

    ‘He [Mr Bavi] presented with depressive symptoms characterised with low mood, lack of interest, poor appetite, lack of energy, poor concentration, poor motivation, and poor sleep.

    …

    [Mr Bavi]…reported ongoing stressors related to his family and issues related to the immigration department. He has been waiting for his citizenship since 2015’.

20. Shortly before the hearing, in September 2019 Dr Saboor wrote that Mr Bavi’s ‘anxiety is chronic and severe and has been interfering with his psychosocial functioning and rendered him severely incapacitated regarding his daily functioning’. Dr Saboor also reports that Mr Bavi’s anxiety has ‘interfered with his performance such as attending classes and participating in exam process. He becomes overwhelmed with his anxiety and leading to his inability to continue and finish the required task’. Dr Saboor concludes:

    “…[Mr Bavi] has incapacities including depression and anxiety disorders. His conditions are chronic and significantly severe affecting his psychosocial functioning as well as attention, concentration, learning new information and performance in variety of circumstances and situations including setting [sic] for exam required for Australian citizenship”.

21. Mr Bavi has also provided a medical report from clinical psychologist Dr Reza Pishyar, who has been treating him for depression and generalised anxiety disorder mixed with panic symptoms since December 2017. Dr Pishyar writes:

    “Mr Mohammad [sic] Bavi dose [sic] have an impairment or enduring mental incapacity and the impairment impacting on his relationship and/or ability to engage in a full life roll [sic].

    As I mentioned previously and above, full recovery is not possible but requires taking his medications to prevent further deterioration and maintaining his mental stability”.

22. Dr Pishyar wrote in a previous report provided to the Tribunal dated August 2018 that Mr Bavi ‘is completely unfit for preparing himself for the citizenship test, and would find attendance at English class for the preparation in his capacity extremely difficult’.

    Assessment by Dr Banks

23. After the rejection of his citizenship application and the commencement of the present review application, the Minister arranged for Mr Bavi to be assessed by Dr Gary Banks. The assessment was to determine whether Mr Bavi had a permanent or enduring mental incapacity at the time of his application for citizenship. Dr Banks is a clinical psychologist and he provided a detailed report based on a clinical interview and psychometric testing with Mr Bavi which was conducted on 28 March 2019 and assisted by a Persian speaking interpreter. His full report was provided to the Tribunal.

24. Dr Banks notes in his report that Mr Bavi was asked to read a passage from the citizenship reading materials in Farsi and that he was able to do so fluently. Dr Banks writes that this suggests Mr Bavi’s reading level is remarkably high. Dr Banks reports that Mr Bavi was able to follow instructions interpreted by the interpreter without any difficulties and remained attentive throughout tasks and the lengthy assessment.

25. Dr Banks performed cognitive and psychological functioning tests to measure Mr Bavi’s current level of cognitive functioning and his capacity to learn new information. Dr Banks writes in relation to these tests:

    “… the number of incorrect responses made by Mr Mohammad Bavi was so far greater than that which could statistically be attributed to ‘chance’ (i.e were Mr Mohammad Bavi simply to have guessed his answer to every item) that his results could only reasonably be explained by the hypothesis that for the great majority of items presented he had in fact remembered the previously-presented picture and instead pointed to the other item. Conversely, the increasingly poor results produced, indicated that he was in fact demonstrating an intact capacity to learn, albeit being increasingly correct at identifying the wrong response.

    Unfortunately, Mr Mohammad Bavi’s responses to the remaining assessments continued this pattern, meaning that his test scores were invalidated by his refusal to cooperate honestly with the test instructions which called for his best effort. On the contrary, in certain tests he responded without having even had time to adequately consider the question, instead appearing to guess, or prematurely give up on solving the task”.[2]

    [2] Exhibit R2, paragraph 27-28.

26. Dr Banks concludes that the applicant’s poor performance during formal cognitive testing was as a result of efforts on his part to deliberately answer items incorrectly. In doing so he demonstrated intact cognitive abilities to learn the correct answer and then deliberately select the incorrect one. He also reports that Mr Bavi’s responses, manner and demonstrated linguistic competencies during the assessment were consistent with a person of considerable intellectual ability and did not evidence any significant level of impairment.

    CONSIDERATION

27. There is considerable evidence to support a finding that Mr Bavi has a more advanced understanding of the English language than he has been prepared to concede. He has achieved a reading score of 1- on the ISLPR scale, described as the ‘Minimum ‘Creative’ Proficiency’. It means a person is able to ‘satisfy own immediate, predictable needs, using predominantly formulaic language’, and the completion of his own application for citizenship would seem to confirm this. Mr Bavi told the Tribunal that he uses a banking app, Centrelink app, MyGov app and transport apps on one of his mobile phones, which are all in English. He says that he has travelled by train three times to the Tribunal. He goes shopping on his own.

28. Medical evidence provided by Ms Opacic of STARTTS does not meet the criteria outlined in the Policy. There is no evidence before the Tribunal that she has a practice endorsement in a relevant to Mr Bavi’s mental incapacity. Moreover, her evidence is primarily based on self-reporting from Mr Bavi. The timing of the second report, having been written just prior to his application for citizenship, does indicate that the assessment may have been instigated by Mr Bavi for the sole purpose of supporting his application.

29. Mr Bavi told the Tribunal that it was when completing the application that he decided he would not sit the citizenship test. I do not accept this. Mr Bavi testified that he knew of people in a similar situation to him who were able to obtain citizenship without taking the citizenship test. He also told the Tribunal that he had been told by his psychiatrist that he could obtain citizenship without taking the test.

30. The evidence of Dr Saboor does not provide detail on how he reached his conclusion that Mr Bavi is unable to sit for the citizenship test. Dr Pisyar’s conclusion that Mr Bavi is unfit to attend English classes in preparation for a citizenship test is at odds with the applicant’s attendance at over 500 hours of English lessons provided through the Adult Migrant English Program.

31. I found Dr Banks to be a credible witness and his detailed explanation of the testing he performed with Mr Bavi and the reasons why he concluded that the applicant demonstrated a ‘pronounced lack of sincere effort’ was not challenged in any meaningful way by the applicant. Mr Bavi appeared to adopt a position that Dr Banks’ role was to ‘reject’ him and consequently he was not required to engage in the substance of his findings, despite prompting by the by the Tribunal.

32. Dr Banks informed the Tribunal that on one test he performed Mr Bavi scored lower than an individual with massive physical brain trauma. Subsequent repeats of the test demonstrated that Mr Bavi became ‘increasingly correct at being wrong’. This was not challenged by the applicant.

    CONCLUSION

33. Whilst I am satisfied that Mr Bavi suffers from medical conditions which impair his performance and impact his mood and motivation, on the available evidence I am not satisfied that the applicant had a permanent or enduring physical or mental incapacity at the time he made his application for Australian citizenship such that he was not capable of understanding the nature of the application; was unable to demonstrate a basic knowledge of the English language; or was unable to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    DECISION

34. For the reasons stated above, the decision by the delegate of the Minister to refuse to grant the applicant Australian citizenship by conferral is affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated:  30 October 2019

Date(s) of hearing:	1 October 2019
Applicant:	In person
Solicitors for the Respondent:	Ms E Knight, Australian Government Solicitor