Nfaiel and Minister for Home Affairs (Citizenship)

[2019] AATA 1337

Nfaiel and Minister for Home Affairs (Citizenship) [2019] AATA 1337 (18 June 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2287

Re:Ahlam Amara Nfaiel

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:18 June 2019

Place:Sydney

The reviewable decision dated 28 March 2018 is set aside and the matter is remitted to the Respondent with the direction that the Applicant satisfies the requirements of section 21(3)(d) of the Australian Citizenship Act 2007 (Cth).

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

Senior Member K Raif

CATCHWORDS

CITIZENSHIP – application for Australian Citizenship by conferral – refusal of citizenship – humanitarian visa – applicant has limited understanding of English language – illiteracy in Arabic – applicant suffers from PTSD and MDD – whether the applicant has permanent or enduring physical or mental incapacity – whether not capable of understanding the nature of the application – whether not capable of demonstrating a basic knowledge of English language – whether not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21

CASES

Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] ATA 429

REASONS FOR DECISION

Senior Member K Raif

18 June 2019

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Act).

2. The applicant is a national of Iraq, born in June 1967. She travelled to Australia in February 2010 as a holder of a Class XB (Subclass 200) Humanitarian visa. The applicant made the application for Australian citizenship by conferral on 16 December 2015. On 28 March 2018 the delegate of the Minister for Home Affairs refused that application because the delegate formed the view that the applicant did not meet the requirements in s. 21(3)(d) of the Act. The applicant seeks review of the delegate’s decision.

3. The applicant and the respondent attended a Tribunal hearing on 7 February 2019. The applicant had some difficulty responding to the questions posed to her and the Tribunal determined that further medical evidence was required. This was provided to the Tribunal on 7 May 2019. Both the applicant and the respondent agreed to proceed without a further hearing.

   Legislative framework

4. Section 21 of the Act deals with the general eligibility to become an Australian citizen. Relevantly, s. 21(3) relates to applicants who have permanent or enduring physical or mental incapacity. It is reproduced below.

   (3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)Is aged 18 or over at the time the person made the application; and

   (b)Is a permanent resident:

   (i)     at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (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 an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

   (e)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (f)is of good character at the time of the Minister’s decision on the application.

5. The issue before the Tribunal is whether the applicant has a permanent or enduring physical or mental incapacity, at the time she made the application, that means she is not capable of understanding the nature of the application, or demonstrating a basic knowledge of English or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

   Medical evidence

6. When making the application, the applicant provided a report issued by Ms Dover, a clinical and forensic psychologist employed at psychCentral dated 24 April 2015. The report indicates that the applicant suffers from chronic forms of PTSD stemming from her experience living in Iraq during ongoing wars. The report indicates that the applicant is illiterate and with limited formal education and that it would be difficult for her to read and study the content for the citizenship test. Ms Dover states that the applicant is not capable of understanding the nature of the Australian citizenship application, not capable of demonstrating a basic knowledge of English and is unable to demonstrate the ability to understand the knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

7. The applicant presented with her application a report from Dr Sochan, a senior consultant psychiatrist to STARTTS. Dr Sochan states that the applicant has been undergoing counselling for trauma, which made it difficult for her to apply herself to the task of learning through failures in concentration and memory. Dr Sochan expresses an opinion that the applicant is significantly traumatised, which affects her ability to learn.

1. The applicant presented a report from Ms Pritchard, a counsellor at STARTTS. The report states that the applicant has been a client of STARTTS since 2010 and has received ongoing clinical intervention. The report refers to the applicant suffering from PTSD and symptoms of hyper arousal, hyper vigilance, avoidance and severe anxiety and depression. It states that her poor cognition, emotional health, illiteracy in Arabic and inability to have a basic grasp of English makes her unable to understand the Australian citizenship application and unable to sit the test.

1. The applicant presented a number of additional medical reports to the Tribunal. There is an updated report from Ms Dover which outlines past and ongoing treatment and the effect of the treatment on the applicant. It refers to the applicant having extreme difficulty processing information in a way that is used for leaning. Other reports from Ms Dover also refer to the past and ongoing treatment. There are further reports from STARTTS which refer to the treatment the applicant had received in the past and medical reports from Drs Gayed and Kalid. The applicant presented a number of updated statements from psychCentral.

2. Following the hearing the Tribunal received additional medical evidence and submissions from the parties. There is before the Tribunal a further report from Dr Sochan of STARTTS dated 24 April 2019. Dr Sochan refers to the events and the effect these had on the applicant. Dr Sochan states that Ms Nfaiel has ‘significant symptoms of trauma, anxiety and depression’. Dr Sochan suggests that the applicant’s dissociation symptoms have ‘taken over’ her capacity to think, learn and remember and states that she has difficulty in maintaining attention, which is critical to coding of new learning.

   The parties’ contentions

3. The delegate accepted the evidence contained in the report by Ms Dover and accepted that the applicant suffers from post-traumatic stress disorder (PTSD) and a major depressive disorder (MDD). The delegate noted that Ms Dover had not provided a conclusive indication whether the applicant’s condition was permanent or causing enduring incapacity rendering the applicant incapable of understanding the nature of the application or demonstrating knowledge of English and knowledge of Australia and citizenship responsibilities and privileges.

4. The delegate accepted the medical opinion of Dr Sochan in relation to the applicant’s medical condition and diagnosis. The delegate noted that Dr Sochan has not provided conclusive information to indicate whether the nature of the medical condition is permanent or causing enduring incapacity rendering the applicant incapable of understanding the nature of the application or demonstrating knowledge of English and knowledge of Australia and citizenship responsibilities and privileges.

5. The delegate noted that Ms Pritchard did not meet the specialist requirements set out in the Citizenship policy as there was no evidence that Ms Pritchard was a fellow of a specialist organisation.

6. The delegate noted that the medical evidence presented by the applicant failed to provide an accurate account of the length of time the applicant had been treated, the date of the first diagnosis, commencement date of treatment, the nature of ongoing treatment, future treatment plans and what clinical testing was conducted during sessions. The delegate notes that illiteracy is not in itself a mental incapacity and is not sufficient to avoid being required to undertake the citizenship test. The delegate noted that there are various resources available to assist people with limited literacy and English. The delegate also noted that the applicant had undertaken the health assessment in relation to her visa application in 2009 and passed the medical checks. The delegate also noted that the applicant provided evidence of being in receipt of a Carer payment, stating that if she was sufficiently capable of caring and maintaining another person, she was unlikely to be incapacitated as to be unable to engage in the citizenship test process. The delegate was not satisfied the applicant met the requirements of s. 21(3)(d).

7. In her application for review, the applicant stated that the delegate “was speculative in his interpretation” which made the decision inaccurate. The applicant states that she has a diagnosis by two experts in their field which indicates that she suffers from chronic PTSD and that indicates that the condition is ongoing and incurable. The applicant states that it took the delegate three years to make the decision and it was based on old information. She has been given a disability rating by Centrelink and granted a disability support pension and a carer, so there was no longer the basis for the decision. (The Tribunal is mindful that s. 21(3) refers to the permanent or enduring physical or mental incapacity at the time the application was made and not at the time of decision.)

8. The applicant provided a statement to the Tribunal dated 25 July 2018. She states that she was subjected to severe multiple traumas. Avoidance is one of the main symptoms associated with trauma survivors. She started treatment after arriving in Australia in 2010 and was diagnosed with PTSD, depression and anxiety. The applicant refers to the various medical reports and claims that the Minister’s decision was prejudicial. She notes that her DSP application was approved while the citizenship application was pending.

9. The applicant provided a further statement to the Tribunal dated 1 November 2018. The applicant outlines her family background. She states that Australia is her home, all her family is in Australia, as well as her priest and her church and she has nowhere to go. She wants to travel to America to visit her sister but she cannot have the Australian passport and has to wait for citizenship. She was told she has to do an examination and got very scared.

10. The respondent’s statement of facts, issues and contentions (SFIC) sets out the respondent’s arguments. Essentially the respondent accepts that at the time when the application was made, the applicant was suffering from an enduring incapacity in the form of PTSD. The respondent also accepts that the incapacity may have affected the applicant’s ability to satisfy the awareness, English or knowledge requirements but contends (by reference to Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] ATA 429) that the presented evidence does not establish that the incapacity meant she was not capable of meeting those requirements.

11. With respect to the presented medical evidence, the Minister states, in relation to Ms Dover’s report, that it does not indicate how Ms Dover reached the diagnosis of major depressive disorder and for that reason, that diagnosis should not be accepted. With respect to Ms Pritchard report, the Minister notes that it is unclear how Ms Pritchard formed the opinions with respect to the applicant’s condition, including the diagnosis of PTSD. The respondent had outlined various concerns with the medical evidence presented by the applicant.

12. In additional submissions put forward in the course of the hearing, the Minister submits that only four medical reports relevantly address the applicant’s medical submission. These are the reports provided with the citizenship application and Ms Dover’s report dated 5 May 2018. The Minister submits that the remainder of the evidence establishes the applicant’s condition but not the causal link that the incapacity causes the applicant to be unable to meet the requirements of s. 21(3)(d).

13. The respondent submits that Ms Dover’s letter of 24 April 2015 confirms that the applicant suffers from PTSD and states that due to the condition, she is not capable of understanding the nature of the citizenship application, demonstrate basic knowledge of English or the ability to understand the knowledge of Australia and responsibilities and privileges of citizenship. However, the respondent submits that this letter is not in the form that complies with the Tribunal’s Guidelines for giving expert evidence. The Minister also submits that the inability to meet the criteria is due in part to the applicant’s illiteracy, rather than incapacity. The Minister contends that Ms Dover’s report fails to identify how the conclusions had been reached.

14. The respondent contends that other medical reports, including the statement from Ms Andrea Pritchard do not meet the requirements of the citizenship policy as she is not a fellow of the relevant organisation and it is not in the form consistent with the Tribunal guidelines for expert witnesses. The Minister notes that Ms Pritchard’s report attributes the inability to the applicant’s illiteracy and other factors rather than incapacity. As noted elsewhere, the Tribunal does not accept that argument because the incapacity need not be the sole reason for the inability to understand or demonstrate and such inability can be caused by a combination of reasons.

15. In the further Statement of 21 May 2019 the respondent submits that the most recent report from Dr Sochan does not sufficiently establish that the applicant’s psychological condition meant that she was incapable of meeting the statutory criteria and does not provide a causal connection between the applicant’s mental incapacity and her ability to acquire new language or literary skills. The respondent also submits that Dr Sochan’s report fails to outline the tests or investigations undertaken in relation to the applicant but draws conclusions from the applicant’s demeanour and communications and is not in the form consistent with the Tribunal guidelines.

    Did the applicant have a permanent or enduring physical or mental incapacity?

16. There are a number of reports before the Tribunal concerning the applicant’s medical condition. The medical evidence refers to the applicant suffering from PTSD and MDD. The respondent accepts that the applicant had a permanent or enduring mental incapacity at the time of the application. On the basis of the presented medical evidence, the Tribunal is satisfied that the applicant suffers from PTSD and MDD. The Tribunal is satisfied and the respondent concedes that the applicant’s condition is permanent or enduring.

17. The issue before the Tribunal is whether the applicant’s condition means she is not capable of understanding the nature of the application or of demonstrating the basic knowledge of English language or capable of demonstrating an adequate knowledge of Australia.

18. The Tribunal acknowledges the respondent’s concerns with the format of the various reports, suggesting that the reports are not in the format required by the Tribunal guidelines. The Tribunal is mindful, however, that the applicant is unrepresented in this review, English is not her first language and she suffers from a number of medical conditions. In the circumstances, the Tribunal considers it is neither desirable, not appropriate, to demand strict compliance with the Guidelines and to disregard evidence that fails to comply. Such a course would not lead to a decision that is fair and just.

19. Ms Pritchard’s report dated 28 October 2015, was prepared around the time the application was made, states that the applicant’s poor cognition, emotional health, illiteracy in Arabic and an inability to have a basic grasp of English makes her unable to understand the citizenship application and an inability to sit for the test. Notably, it does not state that these matters are caused by the PTSD or the MDD. Several reports by Ms Dover of psychCentral refer to the applicant suffering from significant and chronic trauma symptoms and a condition resulting in functional impairment.

20. Dr Sochan’s report dated April 2019 refers to the trauma suffered by the applicant and dissociation that is pervasive and affecting her capacity to think, learn and remember.

21. The Tribunal also places significant weight on the report from Ms Dover dated 24 April 2015 which does indicate that due to the applicant’s poor cognitive skills, significant mental health issues and illiteracy, she is not capable of understanding the nature of citizenship application, of demonstrating a basic knowledge of English and of Australia and responsibilities and privileges of citizenship. While the Tribunal acknowledges the respondent’s concern that his report is not in the format consistent with the Tribunal’s guidelines, the Tribunal’s view on the issue have been set out above. The Tribunal also acknowledges the respondent’s submission that illiteracy has been identified as a contributing factor. However, there is nothing in the legislation that requires incapacity to be the sole factor. It is permissible, in the Tribunal’s view that the incapacity may be caused by a condition as well as other factors such as illiteracy. It is sufficient that the condition is a contributing factor, rather than the sole reason for the incapacity.

22. The Tribunal acknowledges that many of the reports presented by the applicant inadequately address the issues that must be addressed under s. 21(3)(d) of the Act and most are not in the preferred format. However, the Tribunal has formed the view that the combination of the presented evidence, and in particular the earlier report from Ms Dover from April 2015 and the most recent report from Dr Sochan, do establish that when Ms Nfaiel made the application, she had an enduring mental incapacity that meant the applicant was not capable of understanding the nature of the application; or not capable of demonstrating a basic knowledge of the English language at that time; or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. The Tribunal finds that the requirements of s. 21(3)(d) are met. 

    CONCLUSION

23. The Tribunal is satisfied that the applicant has a permanent or enduring physical or mental incapacity, at the time she made the application, that means the applicant was not capable of understanding the nature of the application at that time; or was not capable of demonstrating a basic knowledge of the English language at that time; or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time. Accordingly, the applicant meets the requirements of s. 21(3)(d).

    DECISION

1. The reviewable decision is set aside and the matter is remitted to the respondent with the direction that the applicant satisfies the requirements of s. 21(3)(d) of the Act.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif.

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

Associate

Dated: 18 June 2019

Date(s) of hearing:	7 February 2019
Date final submissions received:	21 May 2019
Applicant:	In person
Solicitors for the Respondent:	Mr H McLaurin - Minter Ellison