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

[2020] AATA 1251

NXDP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1251 (5 May 2020)

Division:GENERAL DIVISION

File Number(s):      2018/7275

Re:NXDP

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:5 May 2020

Place:Sydney

The Tribunal affirms the reviewable decision.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – Refusal of application for Australian citizenship by conferral – citizen of Iraq –applicant is holder of refugee (subclass XB-200) visa – whether applicant has a permanent or enduring physical or mental incapacity – assisted test – citizenship policy – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21(3), 21(3)(d), 21(2A), 23A

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

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

Australian Citizenship Act 2007- Determination under section 23A- Determination for the approval of citizenship test- IMMI 11/088 (dated 24 March 2012)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

5 May 2020

INTRODUCTION

1. The applicant is a 45 year old citizen of Iraq who first arrived in Australia on 17 February 2009. He is currently the holder of a Refugee (Subclass XB-200) visa, granted on 4 December 2008.

2. On 10 November 2017, the applicant lodged an application with the Department of Immigration and Border Protection (now Department of Home Affairs) for Australian citizenship in which he indicated that he had a permanent or enduring physical or mental incapacity under ss 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[1]

   [1] T4/21.

3. Subsection 21(3) of the Act sets out the eligibility criteria for a person who has a permanent or enduring physical or mental incapacity.

4. The Minister must be satisfied that the person has a permanent or enduring physical or mental incapacity at the time they 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.

5. In practical terms, paragraphs 21(3)(d) of the Act operates so to exempt persons with a permanent or enduring physical or mental incapacity from the requirement to pass a citizenship test, pursuant to subsection 21(2A) of the Act.

6. On 7 November 2018, a delegate of the Minister refused to approve the application. On 10 December 2018, the applicant applied to the Tribunal for review of the delegate's decision.

7. The matter was heard by the Tribunal on 18 February 2020.

   THE DELEGATE’S DECISION

8. The delegate considered various medical and psychiatric reports provided by the applicant, pointing to dyslexia, short term and immediate memory loss, and a history of generalised anxiety disorder, chronic major depression and post-traumatic stress disorder.[2] These consisted of:

   (a)A psychiatric report by Dr Chris Sochan, consultant psychiatrist, dated 3 April 2017;[3]

   (b)A report by Dr Amil Dewan, general practitioner, dated 20 April 2019;

   (c)A CT brain scan report by Dr Jan Masesa, radiologist, dated 30 April 2019, and various pathology reports; and

   (d)A report by Ms Antonia Canaris, Associate member of the Australian Dyslexia Association, dated 11 September 2019.

   [2] T4/44.

   [3] T4/44.

9. In light of these reports the delegate was not satisfied that the applicant was incapacitated such that he was permanently or enduringly unable to engage in the citizenship test process and/or access relevant supporting resources and services in order to prepare for the citizenship test.

10. Specifically, there was no information as to the past and future treatment, his prognosis, and how the incapacity was linked to his inability to meet certain legal requirements for Australian citizenship.

11. The delegate also noted that the applicant’s business activities. He concluded:

    I am not satisfied that a person who is sufficiently capable of starting and maintaining their own business as well as applying for and maintaining a heavy vehicle driver licence, which requires a person to meet certain activity and computerised test requirements, would be so incapacitated that they are permanently or enduringly unable to engage in the citizenship test process and or access relevant supporting resources and services in order to prepare for the citizenship test.

12. The delegate therefore was not satisfied that the requirements in subsection 21(3) of the Act were met.

    THE CITIZENSHIP POLICY

13. The Citizenship Policy (‘the Policy’) is intended to provide policy guidance to decision makers on the interpretation of and exercise of powers under the Act. Although a policy is not binding on the Tribunal unless specifically adopted by Parliament, it is accepted that a decision maker will generally apply departmental policy unless there are cogent reasons not to do so.[4]

    [4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 640 per Brennan J.

14. Chapter 7 of the Policy deals with the application of subsection 21(3) of the Act:

    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.

15. In relation to the evidentiary requirements regarding persons with a permanent or enduring physical or mental incapacity for the purpose of subsection 21(3) of the Act, the Policy states:

    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.

16. The Policy adds that:

    It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

17. The Tribunal should approach the medical evidence mindful of any constraints imposed on, and taking into account, the Citizenship Policy in considering what weight, if any, to be given to the evidence.

    THE HEARING

18. The matter was heard on 18 February 2020. The applicant was assisted by a non-legal advocate, Mr Gamal Dawlatly.

19. The applicant gave evidence as follows. He came to Australia in 2008 as a refugee from Iraq. He said that he was kidnapped and tortured in Iraq. As a result, he suffers from post-traumatic stress disorder. He said that he had learning difficulties from childhood but the kidnapping had made it worse. He still occasionally experiences trauma as a result of his experiences; he said that he was constantly living with these things which were not going to end until his life ended. He could not sit in a class.

20. When asked about his successful business, he spoke with justifiable pride of his achievements. He had started the business from nothing. He started with one vehicle and gradually expanded. He was the manager and owner and responsible for everything. He relied upon employing the right people. He always employed someone he could rely upon who had full English, usually his accountant. He employed many indigenous and nonindigenous Australian, and other nationalities. As to the accounts of the business, he said they were in the hands of the accountant. When asked what matters he had responsibility for in his role as director of the company, he said making decisions. He said he had to follow up with the driver to check every detail on the practical level. He did not have to look at any paperwork. He communicated with employees either by telephone or face to face.

21. He was asked about seeing a psychologist and said that his pride prevented him. One of his friends had helped him a lot. He did see a doctor about 4 or 5 times. He was asked whether he had taken any steps to improve his Arabic as an adult. He said that during his school years he was put in a special class, but as an adult he had no time. He could read in Arabic. He learnt in school. Although he had to repeat classes. He had completed only 221.6 hours of English language studies.[5] He learnt at work but not in class.

    [5] See Reference Letter from Ms Cristina Mucea(Operations Team Leader) Navitas English SEE Program, 26 March 2019.

22. He was asked why he did not complete at least 400 hours of English language tuition under the Adult Migrant English program in order to be eligible to sit for an assisted test.[6] He said that because of his experiences as a kidnap victim he could not be in a closed room. He also suffered from dyslexia.

    [6] Australian Citizenship Act 2007- Determination under section 23A- Determination for the approval of citizenship test (section 23A)- IMMI 11.088 (dated 24 March 2012).

23. He was asked how he managed to pass the driving test. He got his licences soon after he arrived in Australia. He said that driving was his passion, and driving was the same all over the world. He said he had passed the driving test on his first attempt but did it in Arabic. As to the theory test, he had an Arabic interpretation and it was pictorial.

24. The respondent’s representative asked him about his reasons for applying for Australian citizenship. He said that some are psychological. His family is scattered. He had not seen his mother for 16 years. He said he had brothers and sisters and parents. His parents were in their 80s. It was not possible for them to come to Australia. He said that he could not travel to Turkey. He said that if he went back to Turkey without an Australian passport he would lose his life.

25. When asked whether he was aware that he could travel outside Australia on a special visa he said that Turkey would not allow him to enter. His sister was in Holland. He said he did not want to travel in this undignified manner.

26. He was asked about sitting the standard citizenship test with assistance. He said that most of his friends went that way but he did not want to take advantage of these resources. He said the people who went that path cheated the system.  He said that if he wanted to get to citizenship in the wrong way he would do that.

27. He also said that he had a disability support pension but gave it up because it was impossible to develop the business.

28. The applicant presented as a dynamic proud man with a lot of energy. He was clearly frustrated by his inability to take the test and get his citizenship.

    Ms Antonia Canaris

29. Ms Canaris, whose report has been referred to above, gave evidence to the Tribunal. She is an expert in adult literacy. She holds a postgraduate qualification in Education (Literacy and Numeracy) and a Graduate Certificate in Professional Studies majoring in Autism. She has no formal medical qualifications. 

30. Overall, her evidence was of some assistance to the Tribunal. She described the applicant as follows:

    "NXDP currently manages his own transport business with many employees. He has succeeded in business due to his perseverance, hard work and creative solutions in finding alternative ways of accessing information despite the handicap of illiteracy in English. He is a supportive and caring husband and father to his two adult children and a valuable member of the wider Australian society. NXDP has taken great effort to learn English through the informal help of his daughter and workmates. He understood my questions and provided answers in oral English throughout the interview and assessment."

31. She described the testing that she administered, stating that the applicant was very anxious, because he knew that a lot turned on her report. He needed reassurance that he was ‘not stupid’.  He tried as hard as he could, and it was apparent that his performance was marred not just by a lack of fluency in English. She thought he was genuine throughout the assessment.

32. Ms Canaris said that he suffered from dyslexia. When asked whether she had any recommendations to assist him to develop English language skills, she said he would be able to learn but it would take an individualised approach. Education had been a traumatic experience for him. He would therefore need a very sensitive or individual approach. She thought that would be effective. When asked whether he would be able to demonstrate rudimentary English skills at some point in the future she answered in the affirmative. She thought it could take up to 2 years.

33. She said he would require three to four sessions a week. She said one could not expect him to get to university level but he would progress. Obviously the more intensive the quicker he would learn. She gave some indication of the approximate cost of lessons (about $400 per week or $95-97/hour).

34. She said that a lot of dyslexics had difficulty learning a foreign language. She therefore supported his request for alternative testing arrangements. She said that trauma makes the learning process more difficult. Her “professional and considered opinion” was that “any compulsory examination would place him at considerable risk of rekindling traumatic responses.” She expressed the hope that he would be exempted from the citizenship test requirement.

    Dr Chris Sochan

35. The applicant provided a medical report from a consultant psychiatrist, Dr Chris Sochan, dated 3 April 2017. Dr Sochan is a psychiatric fellow of the Royal Australian and New Zealand College of Psychiatrists, and was accepted by the Minister’s representative as a competent expert in terms of the Citizenship Policy. He was not called as a witness.

36. Dr Sochan reported that the applicant had symptoms of "Generalised Anxiety Disorder, Chronic Major Depression and Post-traumatic Stress Disorder".[7]

    [7] T4/44.

37. While accepting that Dr Sochan was a qualified witness, the Minister’s representative was critical of his report, noting that it did:

    not provide any detail regarding the nature of the applicant's past psychological counselling (if any), the extent to which treatment was effective, and the prognosis or the date of onset of the conditions. Further, Dr Sochan has simply reported symptoms of the conditions, rather than provide a definitive diagnostic opinion. His assessment also appears to be based on one consultation, specifically for the purpose of the applicant's citizenship application, in the absence of the applicant's clinical records or typical diagnostic testing.

    Dr Amil Dewan

38. The report by Dr Amil Dewan, general practitioner, dated 20 April 2019 provides little that supports the application. Dr Dewan merely noted that the applicant had a long standing history of troubling short term and immediate memory, with dyslexia. He had no mental disorder and his blood tests and brain scans were normal.

39. The Respondent’s representative noted that:

    The report of Dr Dewan reported the applicant's neurological and cognitive assessment to be "normal", and this is consistent with the results of the applicant's brain CT scan. Further, there is no evidence of any objective testing to verify the diagnosis of dyslexia, nor evidence of the applicant receiving treatment for either impairment. The dates of onset of the impairments remain unknown, as does the applicant's prognosis with reasonable treatment. There is no contemporaneous medical evidence to verify the existence of either impairment at the time the applicant made his application for citizenship.

    CONSIDERATION

40. Despite some language and learning difficulties, it appears that the applicant is a successful businessman and has established a successful transportation service. He is a director of the company. He acquired a NSW Heavy Vehicle Driver License not long after coming to Australia, and completed the practical and theory tests required. It is very difficult to reconcile his achievements with the claim that he suffers from a permanent or enduring physical or mental incapacity meaning that he is not capable of satisfying the knowledge requirements under s 21(3)(d) of the Act.

41. The Minister’s representative contended that only Dr Sochan’s report was admissible under the Policy.

42. But even if one has regard to all the medical reports, and not just the psychiatric report, the evidence before the Tribunal falls short of demonstrating that the applicant is unable to undertake the tasks set out at subparagraphs 21(3)(d)(i)-(iii) of the Act.

43. There is some evidence that the applicant suffers from dyslexia, although hardly sufficient to sustain a positive finding on the balance of probabilities. The psychiatric report supports a finding that he suffers from anxiety and chronic depression. Nevertheless, he is capable of achieving considerable success in business. Even in the face of the psychiatric evidence, it is difficult to accept that the applicant is incapable of understanding the nature of the test or acquiring the knowledge required by s 21(3) of the Act.

44. It is impossible not to be impressed by his achievements since arriving in this country as a refugee. Through his diligence and his business acumen he has contributed to his community. I do not trivialise the applicant’s history or his present learning difficulties. It may be that the learning tasks will be harder for him than for some other non-English speaking migrants, but his success in other areas of his life gives every cause for optimism.

45. The applicant impressed me that he understood that the acquisition of Australian citizenship is a great privilege. It is a prize worthy of perseverance and effort. For a non-English speaker, improving English language skills is a worthy objective in its own right, and will be a most worthwhile investment in his business life, and enable his greater integration into the wider Australian community.

46. Without in any way underestimating the difficulties facing those from a non-English speaking background, I suggest that the reward of citizenship will be even more proudly felt if the additional English language tuition is undertaken so that, if necessary, the Assisted Test will be a pathway available to him.

    THE ASSISTED TEST

47. The question arose at the hearing as to whether the Tribunal had the jurisdiction to remit the matter to the Minister with a direction that the applicant should be allowed to sit the Assisted Citizenship Test without making a fresh application. The relevant instrument makes provision for both the Standard Test and the Assisted Test, including a requirement for the latter that the subject complete at least 400 hours of English language tuition under the Adult Migrant Program (AMEP). 

48. In the Assisted Test, the test administrator may talk the person through the computer-based test. The test administrator may read aloud the questions and possible multiple choice answers to the person, ask the person which answer they think is correct and select on the computer the answer that the person indicates.[8]

    [8] Australian Citizenship Act 2007- Determination under section 23A- Determination for the approval of citizenship test (section 23A)- IMMI 11.088 (dated 24 March 2012) cl 22.

1. The applicant indicated at the hearing that he wanted the opportunity to sit the Assisted Test but without the need for making a fresh application. The Minister’s representative said that administratively this was not possible. He also noted that the applicant had not undertaken the 400 hours of English language tuition required by clause 20 of the Determination.[9] He had completed 221.6 hours in 2009, falling well short of the 400 hours. Moreover, he submitted that the Tribunal did not have jurisdiction to make such a direction, and was not aware of any case in which such a direction had been made.

   [9] See Respondent’s Further Submissions, cl 14, dated 3 March 2020.

2. I accept the Minister’s submission that the jurisdiction of the Tribunal does not extend to the making of a direction along the lines considered.

   CONCLUSION

3. I find that the applicant does not satisfy paragraph 21(3)(d) of the Act for the reasons outlined above.

4. The correct and preferable decision is therefore to affirm the decision under review.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 5 May 2020

Date(s) of hearing:	18 February 2020
Date final submissions received:	3 March 2020
Applicant:	In person
Advocate for the Applicant:	Mr G Dawlatly
Solicitors for the Respondent:	Mr H McLaurin- Minter Ellison