Musawi and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 231

Musawi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 231 (14 March 2016)

Division	GENERAL DIVISION
File Numbers	2015/3695
Re	Khadija Musawi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Prof R Deutsch, Deputy President
Date	14 March 2016
Date of written reasons	11 April 2016
Place	Sydney

The Tribunal affirms the decision under review.

............................. .[Sgd]..........................................

Prof R Deutsch, Deputy President

CATCHWORDS

CITIZENSHIP – eligibility – applicant suffering permanent or enduring physical or mental incapacity – whether capable of demonstrating basic knowledge of the English language – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 12(23)(d)

CASES

Re Khodeir and Minister for Immigration and Border Protection [2015] AATA 499
Re Lalaa and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579
Re Ravichandran and Minister for Immigration and Citizenship [2010] AATA 463

WRITTEN REASONS FOR DECISION

Prof R Deutsch, Deputy President

11 April 2016

1. The facts in this case concern Mrs Khadija Musawi who is a 34 year old national of Afghanistan. She holds a sub-class 100 permanent visa which was granted on 5 September 2009.[1] On 26 September 2014 Mrs Musawi lodged an application for Australian citizenship[2] in which she claimed that under section 21(3)(d) of the Australian Citizenship Act 2007 she had a permanent or enduring physical or mental incapacity which meant that she was not capable of demonstrating a basic knowledge of the English language at that time.[3]

   [1] T2, p 10.

   [2] T2, p 10.

   [3] For the purposes of s 21(3)(d)(ii) of that Act.

2. In support of her application she has either filed or has been the subject of various summonses being issued to third parties, thereby giving rise to a number of medical reports. The medical reports were provided by a number of practitioners, namely Dr Reza Pishyar,[4] Dr Blagoje Kuljic, Dr Fahima Bahram,[5] and Dr Wajma Ebrahimi. All four practitioners gave written opinions and the four practitioners are variously clinical psychologists, psychiatrists and general practitioners.

   [4] T1, p 3; T10, p 69.

   [5] T4, p 37; T7, p 62.

3. I note in particular that I accept the evidence that Mrs Musawi does suffer from a permanent and enduring physical and mental incapacity. The question, however, for me, is not simply whether she suffers such a permanent or enduring mental or physical incapacity but whether that is the reason or one of the main reasons why she was not capable of demonstrating a basic knowledge of the English language, particularly at the time of her citizenship application.

4. Having regard to the four medical practitioners’ reports I am not able to conclude that there is a direct link between the permanent and enduring physical and mental incapacity which Mrs Musawi suffers from, and her incapacity to demonstrate the basic knowledge of the English language. From the evidence it is clear that Mrs Musawi does suffer from a particular type of debilitating permanent and enduring physical and mental incapacity but the link between that and her inability to demonstrate a basic knowledge of the English language has not been demonstrated.

5. I note from the medical practitioners’ reports that at least two of them have made reference to the fact that Mrs Musawi could grasp the English language if she had a sufficient commitment and determination for doing so. In other words, the medical practitioner’s in question believe that she has the mental capacity to learn basic English. A number of cases have already been determined by the Tribunal in which it is noted that mental incapacity is distinct from a lack of motivation, education and application. A mere lack of confidence in ability is not enough see in particular the decisions in Khodeir, Lalaa and Ravichandran.[6]

   [6] Re Khodeir and Minister for Immigration and Border Protection [2015] AATA 499; Lalaa and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579; Ravichandran and Minister for Immigration and Citizenship [2010] AATA 463 at [9] and [12].

6. Whilst the Tribunal appreciates the applicant’s strong desire to become an Australian citizen, I would hope that she is not too discouraged by this decision. She can apply for citizenship again at any time of her own choosing. However, I would strongly urge her to seek help in achieving the required standard of English language before doing so.

7. For the reasons outlined above, I am not satisfied that Mrs Musawi was not capable by reason of her permanent and enduring physical and mental incapacity of demonstrating a basic knowledge of the English language.

8. The decision under review is affirmed.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Prof R Deutsch, Deputy President

.............................[Sgd]...........................................

Associate

Dated 11 April 2016

Dates of hearing	29 February 2016 and 14 March 2016
Advocate for the Applicant	Mr S J Musawi
Solicitors for the Respondent	Australian Government Solicitor