Qaddo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2804 (6 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5290
Re:Rakan Ahmed Qaddo
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:6 Aug 2021
Place:Sydney
The Tribunal affirms the reviewable decision, dated 14 August 2020.
.............................[sgd]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – application form - citizenship test – substantial compliance – permanent or enduring physical or mental incapacity – causation – link between physical condition and knowledge elements not established –medical evidence – decision affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15AA , 25C
Australian Citizenship Act 2007 (Cth) s 21, s 46
CASES
Burns and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2114
Commissioner for Railways (NSW) v Agalianos ((1955) [1955] HCA 27
Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 58
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623
MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] (27 November 2020)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
Revised Citizenship Procedural Instructions CPI 2 – Australian Citizenship By Conferral – Permanent or Enduring Physical or Mental Incapacity
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
6 Aug 2021
1.The Applicant, an Iraqi citizen, was granted a refugee visa in April 2014. He arrived in Australia a few months later.[1] He came from war torn Iraq, carrying shrapnel in his foot as a war souvenir. His injury has caused permanent damage and his foot may need to be amputated. He also suffers from type 2 diabetes. In December 2020 he was admitted to the National Disability Insurance Scheme (NDIS).
[1] T16/153; T17/154.
During the course of visa processing he indicated that his health was good. Apparently, his health has deteriorated during the intervening years. The prospect of amputation terrifies him. His Australian doctor offered that radical surgery, but he preferred to receive wound care treatment in the Middle East. His Movement Record shows that he has departed Australia 13 times since he arrived in 2014, making five trips in 2019, three trips in 2018, and three trips in 2017, and one trip in 2015 and 2020 respectively.[2] Most of the trips were about three weeks long. He says that each trip was solely for the purpose of receiving medical treatment in Amman, Jordan.
[2] T16/152.
On 27 July 2018, he applied for Australian citizenship by conferral.[3]
[3] T3/18.
There are seven situations in which a person is eligible for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’).
The ‘standard’ pathway involves satisfying the general eligibility criteria and completing a citizenship test. Section 21(2) sets out the general eligibility requirements including that the applicant understands the nature of a citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. The knowledge requirements are taken to be satisfied if and only if the Minister is satisfied that the applicant has successfully completed a prescribed test (‘the Citizenship Test’) within the approved time: section 21(2A).
Section 21 refers to six other situations, where the requirement to sit and pass the citizenship test is dispensed with. These include:
·having a permanent or enduring physical or mental incapacity at the time of application: subsection 21(3); or
·being aged 60 or over or hearing, speech or sight impaired: subsection 21(4); or
·being under 18: subsection 21(5); or
·being born to a former Australian citizen: subsection 21(6); or
·being born in Papua: subsection 21(7); or
·being a stateless person: subsection 21(8).
Section 21(3)(d) is relevant to the present application. This provision is satisfied if the Minister is satisfied 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.
When the Applicant applied for citizenship by conferral in 2018, he applied on the standard pathway using the general eligibility Form 1300t, and provided some health information at the time of his claim.[4]
[4] These included various medical reports (T4/47-52) which are discussed below: see paras [80] – [87]. [].
In January 2020, he sat but failed the citizenship test, receiving 40%. In February 2020, he wrote to the department requesting an exemption from the test on medical grounds, stating:
My health condition is very bad, I’m suffering from kidney problems and my leg is badly suffering from gangrene. Therefore I’m receiving [sic] very intensive drugs that is causing drowsiness and lack of concentration most of the time. In addition my ability to understand English is very low. Because of these reasons above, I find it hard to prepare for the citizenship exam. [5]
[5] T6/57.
In June 2020, the Department of Home Affairs (the Department) wrote to the Applicant acknowledging his request and indicating that additional information was required in order to assess his application for citizenship on health grounds and outlining in detail the evidence required. For example, it stated that evidence of a specialist in the relevant field was required and that the specialist needed to be a Fellow of the relevant medical college. The applicant was invited to provide such evidence. In response, the Applicant collected various medical reports, and sent them to the Department.
On 14 August 2020, the delegate made a decision to refuse the application for citizenship. The decision record states[6]:
The application for conferral of Australian Citizenship: General Eligibility made by you on 27 July 2018 is in accordance with the requirements of section 46 of the Act and the Regulations and is an application on which I must make a decision…
I have considered your application against the requirements set out in subsection 21(3) of the Australian Citizenship Act 2007 (the Act). To become an Australian citizen you must meet all the requirements for citizenship set out subsection 21(3) of the Act. I am not satisfied that you meet all such requirements.
[6] T2, 6 - 8
The Applicant now seeks merits review before the Administrative Appeals Tribunal (‘the Tribunal’) of the delegate’s decision of 14 August 2020 (the ‘reviewable decision’).
JURISDICTION - THE RESPONDENT’S CONTENTION
The matter was heard by the Tribunal on 12 May 2021. The Applicant was assisted by an Arabic interpreter.
The Respondent’s representative raised a preliminary point relating to the scope of review, or alternatively, the jurisdiction of the Tribunal.
The Respondent referred to subsection 46(1), which provides that an application under a provision of the Citizenship Act ‘must’ be on the relevant form approved by the Minister for the purposes of that provision. Form 1300t was not the relevant form approved by the Minister for the purpose of assessing incapacity under subsection 21(3). The relevant form was Form 1290, relating to ‘other situations’. Contrary to the delegate’s statement, the application was not in accordance with subsection 46.
The Respondent contended that because the Applicant applied on Form 1300t under the general eligibility pathway, the jurisdiction of the Tribunal is limited to determining the Applicant’s application according to the general eligibility criteria in subsection 21(2) of the Act. The Tribunal would therefore be unable to review the finding made by the delegate that the Applicant did not satisfy the capacity requirements: subsection 21(3). Because the Applicant had not passed the citizenship test, then by reason of subsection 21(2A), the delegate’s decision to refuse citizenship would have to be affirmed.
The Respondent also referred to section 25C of the Acts Interpretation Act 1901 (Cth) (‘the Interpretation Act’), which states that where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient. He argued that section 25C was impliedly excluded by section 46(1) of the Citizenship Act.
CITIZENSHIP BY CONFERRAL - APPROVED FORMS
Subsection 46(2) of the Citizenship Act provides that the Minister may, by writing, approve one or more forms for the purposes of a provision of the Act under which an application may be made. The subsection also states (in a Note):
For example, there are 2 ways to become an Australian citizen by descent under section 16. The Minister may approve 1 form for the purposes of that section or may approve 2 different forms.
It was put to the Tribunal (without evidence) that the Minister has approved two and only two forms for the purposes of Australian citizenship by conferral under section 21: Form 1300t, for ‘general eligibility’, and Form 1290 for ‘other situations’. They are headed as follows:
·Form 1300t - Application for Australian citizenship – general eligibility.
·Form 1290 - Application for Australian citizenship – Other situations.
Both forms are headed ‘Application for Australian citizenship’. Neither refers to the relevant provisions (sections or subsections) of the Citizenship Act. Form 1290 does not refer to Form 1300t, while Form 1300t refers to Form 1290, but only in relation to children. Neither form refers to the statutory provisions listed in the dot-points above.
Each form indicates on the first page when the form should be used. For example, Form 1300t states:
Step 1 – Eligibility
You should use this form if you meet the general eligibility criteria for Australian citizenship, that is, you:
• are aged 18 years or over and under 60
• are a migrant who is a permanent resident
• satisfy the residence requirement (see Step 2)
• are likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, and
• are of good character.
The equivalent part of Form 1290 states:
Step 1 – Eligibility
You should use this form if you:
• are aged 60 and over – you will need to show you understand the nature of your application, or
• have a permanent or enduring physical or mental incapacity that means you cannot: – understand the nature of your application, or – demonstrate a basic knowledge of English, or – demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship, or
• have a permanent loss or substantial hearing, speech or sight impairment.
If you belong to any of the above categories, you will also need to:
• be a permanent resident, and
• satisfy the residence requirement, and
• be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.
….
THE RELEVANT FORM
I accept that Forms 1300t and 1290 have been approved by the Minister for the purposes of citizenship applications under section 21; Form 1300t for the purpose of subsection 21(2), and Form 1290 for the purpose of each of the six remaining ‘other situations’, including subsection 21(3).
As a matter of simple words and logic, the relevant form for an application under subsection 21(2) is Form 1300t; and Form 1290 may be regarded as the relevant form for each of the six situations dealt with in subsections 21(3)-(8), including the incapacity ground under subsection 21(3). However, Form 1290 cannot be considered as the relevant form for the purposes of subsection 21(2). Nor can Form 1300t be regarded as the relevant form for each of the six situations including in section 21(3)-(8).
Section 46(1) of the Citizenship Act provides that an application under a provision of the Citizenship Act must be on the relevant form approved by the Minister for the purposes of that provision.
Did the Applicant apply on the relevant form?
The Applicant applied on Form 1300t. This was the relevant form approved by the Minister for the purpose of subsection 21(2). When he asked the Department to be exempted from the citizenship test, he was asked to provide further health information so that his claim could be assessed under subsection 21(3). There is nothing to suggest that he provided that information on Form 1290. There was no suggestion in the letter of invitation sent by the Department that he should do so.
It follows that (through no fault of his own) the Applicant did not comply strictly with subsection 46(1) in relation to an application under subsection 21(3).
I turn then to consider the question of substantial compliance. This raises two questions: first, is the doctrine of substantial compliance in section 25C of the Interpretation Act impliedly excluded by subsection 46(1); and if not, did the Applicant substantially comply with the requirement of section 46(1), even though he applied on Form 1300t?
SUBSTANTIAL COMPLIANCE - THE AUTHORITIES
The Respondent says that section 25C cannot be invoked in a case where a person applies on the wrong form. He relies upon SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 (SZJDS) for the proposition that an application on the wrong form cannot be cured by section 25C. In that case the issue arose as follows. The applicant applied to the Migration Review Tribunal for merits review of an adverse decision under the Migration Act 1958 (Cth) (‘the Migration Act’). The applicant used a form designed to be used by those in immigration detention, but he was not in detention. Section 347(1) of the Migration Act states that an application must be made ‘in the approved form’. The registry officer tried to fix the error by attaching contact information extracted from the incorrect form to the correct form, which the applicant then signed. A certain section (which contained information about the applicant’s authorised representative) was appended to the correct form. Unfortunately, this information was inconsistent with one of the boxes ticked by the applicant on the correct form. The applicant ticked that he had a personal representative, but he did not identify the person whose name was carried over from the ‘wrong’ form.
Under those somewhat unique circumstances, the Federal Court (Rares, Cowdrey JJ, Jessup J dissenting) held that strict compliance with the requirement to use the approved form was required. It was not appropriate to rely upon information carried over from the ‘wrong’ form to authorise a person previously named as his agent to receive information from the Tribunal. The Court held that because he was not actually informed of the hearing date, he had been denied natural justice.
Given the similarity between paragraph 347(1)(a) of the Migration Act (requiring an application to be made ‘in the approved form’) and subsection 46(1) of the Citizenship Act (requiring the application to be ‘on the relevant form’), the Respondent relies on the following passage in the decision of the majority[7]:
Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.
The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act 1901 (Cth) which provides that where “an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.
The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity.
[7] SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, at [26] – [28].
Few will quibble with the result in SZJDS, but these statements, taken at face value, have far reaching consequences. For example, the use of a superseded form (that is, a form that is no longer approved) could not be cured by section 25C, even if the form contained sufficient information to enable processing.
The use of a superseded form was the subject of a unanimous decision of the Full Federal Court (Kenny, Tracey, Buchanan, Robertson and Mortimer JJ) in MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156 (MZAIC). The Court expressed criticism of the passage above, stating[8]:
This analysis does not seem to us to be required or appropriate absent a comparison of the application that was in fact made with the application as it should have been made in the approved form. It is only that comparison which will show whether there has been substantial compliance with the (approved) form. To the extent that the reasoning in these paragraphs suggests that s 25C does not apply to s 412(1)(a) of the Migration Act we respectfully disagree with that reasoning.
And at [30]:
Read out of context, what was said in SZJDS at [26] may suggest that in all cases s 25C is not addressed to the form of the form. That was the construction adopted by the Tribunal and by the primary judge. We do not criticise the Tribunal or the primary judge for following SZJDS however, in our opinion, outside the perhaps special circumstances in SZJDS, that is not the correct construction of the section. That construction is inconsistent with the Explanatory Memorandum which we have set out at [13] above. In our opinion, s 25C of the Acts Interpretation Act, subject to a contrary intention, applies both to the arrangement of the material (the form) and to the content of the material.
The ‘special circumstances’ of SZJDS were described at [25] as follows:
SZJDS is readily to be distinguished as in that case the appellant was not within the particular class of applicant for review contemplated by the form he used as he was not in immigration detention. So much is clear, in our opinion, from [32] and [35] of the judgment of the majority where reference was made to the form the appellant used not being capable of being used by him as an approved form to make an application for review. Each of the forms, the majority said, had been approved for different purposes and classes of applicants.
The Full Federal Court drew a distinction between a merits review application, where the decision in question was identified, and a visa application, where an applicant was often required to provide precise and detailed information on forms devised for different purposes and classes of applicants.
The Respondent suggested that SZJDS governed the present case, insofar as the Citizenship Act identified seven distinct classes of individuals, and the classes were associated with one of two possible application forms.
In Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 58 (Hashim), an application for citizenship under the general eligibility provisions (subsection 21(2)) was rejected on character grounds. The delegate did not give consideration to the incapacity grounds under subsection 21(3). The applicant applied to the Tribunal for review of the decision to refuse the application. The Tribunal held that the substantive review was confined to the general eligibility criteria under s 21(2) and did not embrace the incapacity criteria under s 21(3). It was not appropriate to consider, as part of the merits review process, alternative pathways to citizenship which had not been the subject of any assessment by the delegate. Senior Member Poljak noted that:
If the Tribunal were to undertake a review of the delegate’s decision having regard to the requirements under subsection 21(3) of the Act, it would be considering aspects of the Citizenship application and evidence for the first time.
As a subsidiary ground for decision, the Senior Member noted that the applicant applied under Form 1300t relating to general eligibility under subsection 21(2) and had not at any point completed Form 1290 relating to ‘other situations’ under subsection 21(3). The Tribunal stated[9]:
MZAIC is distinguishable from this matter, as although both Form 1300t and Form 1290 are the prescribed forms for an application for Australian citizenship, they each concern different provisions of the Act which have distinct requirements. The forms used under the Citizenship Act fall within the circumstance in SZJDS and not in MZAIC. The conclusions of MZAIC are not applicable to this matter.
[9] Hashim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 58 at [25]
In Hashim the delegate’s decision was confined to subsection 21(2), whereas in the present case, the delegate made a decision under subsection 21(3).
It is undoubtedly true that citizenship applications require detailed information and have much in common with visa applications. Nevertheless, it is difficult to reconcile the approach taken in MZAIC with the formalism of SZJDS. With respect, I am not persuaded that the present case is governed by SZJDS or that MZAIC has no bearing on this situation.
However, neither SZJDS nor MZAIC were decisions on section 21 of the Citizenship Act. In MZAIC the Full Court emphasised that in all cases involving section 25C it is important to compare the application that was in fact made with the application as it should have been made in the approved form. ‘It is only that comparison which will show whether there has been substantial compliance with the (approved) form.’[10] The Court noted that SZJDS involved, perhaps, special circumstances.
MZAIC was considered in a recent decision of the Tribunal in Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623, (Miller), where, by a curious twist, the Tribunal consisted of Deputy President Cowdroy AO QC (who participated in the decision in SZJDS), as well as Senior Member Puplick AM.[11]
[11] Justice Cowdroy retired from the Federal bench in 2014.
Miller involved an application to the Tribunal for merits review of a decision by a delegate of the Minister not to revoke a visa cancellation, under subsection 501CA(4) of the Migration Act. The applicant applied on an electronic general application form, rather than a dedicated form. The general form did not contain any space for expressing reasons for the application. Written reasons were subsequently provided, but outside the limitations period set by subsection 500(6B) of the Migration Act. Paragraph 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), relevantly provides that an application ‘must contain a statement of reasons for the application’.
The case was therefore one in which a specific form was required to be used to make an application. The distinction drawn in SZJDS would suggest that in such a case it was essential that the specified form be used, and that there would be no scope for partial or substantial compliance with the requirement to use the particular form.
The Tribunal noted that there was nothing on the electronic form that marked it as inappropriate to support an application to the Tribunal. The applicant had uploaded the delegate’s decision with the electronic application form. The Tribunal considered that this amply indicated his purpose in making the application, namely, to seek review of the decision. There was no requirement to use any particular form of words. The registry had accepted the application as valid and issued a case number.
The Tribunal held that to construe the requirement to provide reasons for the application as a mandatory requirement would lead to invalidity on a technicality, with potentially grave consequences for the applicant. The learned members stated[12]:
The Tribunal does not consider that this could have been the intention of Parliament. The Tribunal considers that the Applicant has placed before the Tribunal everything which the form provided required; whether another form should have been used is a matter which can be excused, on the basis of the reasoning in MZAIC. At [50] in that decision the Full Court observed:
Indeed, in the present case, such is the similarity of the forms that those not versed in the identification system in very small print at the foot of each page would be hard pressed to tell whether or not the form currently approved was being used.
By analogy, the same observations can be made of the fact that the website of the Tribunal did not suggest any form other than the form which was provided by the Applicant was the correct form for use in his application for review.
[12] Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623 at [46] – [47].
I interpose to note that in the present case the position is perhaps more acute in that despite some indication on the face of the form (as noted above) as to the purpose for which each form was to be used, the Department’s letter of invitation did not refer to the need for a different form to be used. The Tribunal continued[13]:
The Tribunal respectfully adopts the observations of the majority of the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 where the majority observed that:
a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute” …
Their Honours further noted that legislation should be constructed with an eye to ensuring consistency and fairness reflecting the public policy expressed in the relevant legislation:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos ((1955) [1955] HCA 27; 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (authorities omitted).
[13] Ibid at [48] – [49]
In Burns and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2114, the Tribunal followed and applied Miller in identical circumstances. I note that neither Miller nor Burns referred to SZJDS.
Although cases such as Miller and Burns are quite different from cases such as Hashim and the present case, I consider, with respect, that the Tribunal’s analysis in Miller, based as it is on MZAIC, provides a more certain guide to the application of section 25C in contested cases.
SUBSTANTIAL COMPLIANCE – SUBSECTION 46(1)
I turn then in light of the authorities to consider the question of substantial compliance. As noted above, this raises two questions: first, is the doctrine of substantial compliance impliedly excluded by subsection 46(1); and if not, did the Applicant substantially comply with the requirement of section 46(1), even though he applied on Form 1300t?
Section 46(1) states: ‘An application under a provision of this Act must be on the relevant form approved by the Minister for the purposes of that provision…’ The Respondent suggests that the words of subsection 46(1) bespeak a mandatory requirement such that there is no scope for substantial compliance. To construe the provision in this way will substantially reduce the scope for the operation of section 25C.
What emphasis should be placed on the word ‘must’? Like the words ‘should’ and ‘shall’, the word ‘must’ has a degree of imprecision that defies precise definition. It may convey a mandatory obligation, but it does not necessarily do so in all cases.
In MZAIC the Full Court emphasised the importance of construing the legislation as a whole in seeking to discover the legislative intent of the provision in question.
In Miller the Tribunal referred to important statements by judges of the High Court that were referred to by the Full Court in MZAIC:
[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. (per Dixon CJ).
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid...(per McHugh, Gummow, Kirby and Hayne JJ).
Unfortunately, neither the words of the statute nor the material available on Hansard (the reporting service of the proceedings of the Australian parliament and its committees) provide a decisive answer. When in 2005 the responsible Minister introduced the legislation that became the Citizenship Act, he stated:
It is not compulsory to become a citizen. However, the act of becoming a citizen is a formal commitment to our country and the values that uniquely define us as Australians. Most of those who come under the humanitarian program apply to become full participants of our society as soon as they become eligible. They eagerly grasp the opportunity to feel the sense of belonging, to make the commitment, to become one of us.
The Revised Explanatory Memorandum explained the purpose of section 46 as follows:
Clause 46 Application requirements
Clause 46 outlines the requirements for an application under the Act.
Subclause (1) provides that an application under a provision of this Act must:
(a)be on the relevant form approved by the Minister for the purposes of that provision; and
(b)contain the information required by the form; and
(c)be accompanied by any other information or documents prescribed by the regulations; and
(d)be accompanied by the fee (if any) prescribed by the regulations.
Approval of forms
Subclause (2) specifies that the Minister may approve one or more forms for the purposes of a provision of this Act relating to the making of an application. The approval by the Minister should be in writing,
A note is added to the end of this subclause to serve as an example. This indicates that there are two ways to become an Australian citizen by descent under section 16. It also specifies that the Minister may approve one form for the purposes of that Section or may approve two different forms.
There is little of assistance that can be found in the extrinsic aids. One is left to decide the matter according to notions of administrative fairness. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
I note that under the Citizenship Procedural Instructions CPI 2 – Australian citizenship by conferral – permanent or enduring mental or physical incapacity (‘CPI 2’) paragraph 3.2 states:
There are two forms approved for the purposes of applying for Australian citizenship by conferral under section 21 of the Act (form 1300t and form 1290 and their electronic equivalents).
In some cases the applicant will be required to lodge a new application if the incapacity was not present at time of application. This is because paragraph 21(3)(d) requires that the person has a permanent or enduring physical or mental incapacity at the time of application. The Act does not make any allowance for a person who acquired an incapacity after making their application. (emphasis added)
For example, a person who made an application in December 2016 seeking assessment under General Eligibility and was involved in a car accident in January 2017 and suffered permanent brain damage would need to make a new application that can be assessed under ss21(3) of the Act.
In the present case, there is no issue about non-compliance with instructions on the face of the form. The Applicant applied on Form 1300t which was the correct form for someone aiming to pass the citizenship test.
When he applied for an exemption on health grounds in February 2020 after failing the citizenship test, the Department invited him to apply on the revised ground of incapacity, indicating that he would need to support his application with specialist reports. The Department did not inform the applicant that if he wished to seek an exemption from the citizenship test on health grounds, he needed to fill out a different form. In fairness to the Department, CPI 2 proceeds on the basis that this would only be necessary if the incapacity was not present at the time of application. The information before the Tribunal suggests that the Department proceeded on the basis that his application for citizenship could be granted if the requirements of the incapacity ground were met at the time of application, regardless of the application form used. This was in accordance with the Australian Citizenship Policy (ACP) (since replaced the Australian Citizenship [Policy Statement]) which at the time stated:
‘[If the applicant] appears to have applied on the alternative form it is open to an officer to find that the application meets the requirements of s46 if all other requirements are met.’
This approach is consistent with the palliative effect of section 25C.
The argument put to the Tribunal is that the application process does not contemplate and cannot accommodate a change of situation after an application form has been lodged. Acceptance of this proposition would mean that if a person mistakenly believes that he is under sixty at the time of application, and uses the relevant form (1300t), he cannot be processed in the ‘aged 60 or over’ category if the true situation comes to light. Conversely, a 16 year old, who uses Form 1300t in the mistaken belief that she is over 18 at the time of application, will be rejected, even if her age is properly ascertained and rectified at the time of processing.
The Respondent asks the Tribunal to accept that the invitation to the Applicant to provide additional information to support his existing claim made on Form 1300t was entirely pointless. To accept this conclusion would be an extraordinary triumph of form over substance.
The Full Court in MZAIC emphasised that in all cases involving section 25C it is important to compare the application that was in fact made with the application as it should have been made in the approved form. ‘It is only that comparison which will show whether there has been substantial compliance with the (approved) form.’[14]
In the present case, if the forms are considered as a vehicle for providing information, there was no practical difference between the two forms. In terms of streamlining internal administrative processes, the Respondent has not established that strict compliance was necessary as a matter of administrative efficiency or as a cost-saving device, or that such factors should outweigh other considerations.
Miller underlines the importance of practical consequences in resolving issues to do with substantial compliance. The consequence of excluding section 25C in that case was the possibility of deportation on a technicality without a merits review hearing. It is hard to imagine that such dire consequences were intended by Parliament in requiring an applicant to provide reasons for his or her application on the relevant form.
In the present case, the direct consequence of excluding section 25C is that the Applicant is denied the opportunity for a merits review and may need to file a fresh application for citizenship on Form 1290. He will lose the possibility of citizenship in the near future and will have to make a fresh application.
Delays in processing citizenship applications can be considerable. I note that his present application has been in train for three years. Moreover, the effluxion of time may mean that in a particular case an applicant can no longer meet the residency requirements for citizenship.
It is also relevant that the Tribunal is dealing with a person with serious health concerns.
I am satisfied that on a proper interpretation of subsection 46(1) of the Act, section 25C is not impliedly excluded simply because the applicant applied on the wrong form. There is nothing to suggest that the power to approve forms in subsection 46(2) would or should detract from section 25C. There is nothing to suggest a predilection in favour of form over substance so that nothing less than strict compliance with the form requirement would satisfy section 46. Although the matter is not beyond argument, I favour the view that the doctrine of substantial compliance in section 25C is not excluded under subsection 46(1).
The Applicant provided, at the invitation of the Department, additional medical evidence required for assessment of his claim to have a permanent or enduring physical incapacity under subsection 21(3). I am satisfied that in so doing the Applicant substantially complied with the requirements of section 46(1), and that the delegate’s statement to that effect was correct.
Therefore, the jurisdiction of the Tribunal is not limited to considering eligibility under subsection 21(2), as suggested by the Respondent.
I turn then to consider the question whether the decision made by the delegate in relation to subsection 21(3) should be affirmed or set aside.
CITIZENSHIP POLICY
The Australian Citizenship [Policy Statement] (‘the Policy Statement’) 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.[15]
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
The Citizenship Procedural Instructions are imbedded within this Policy Statement. The latest revision of CPI 2 states:
Applicants claiming permanent or enduring physical incapacity must generally provide evidence from a specialist in the field they are claiming the incapacity, unless this would be unreasonable on the facts of the particular case. The specialist would generally be expected to be a fellow of a specialist organisation as defined in Schedule 1 of the Health Insurance Regulations 2018 (which may be found on the website ( or the Federal Register of Legislation website ( CPI 2, at p 6
Paragraph 3.4 of CPI 2 states:
3.4. Assessing incapacity
Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case. Decision-makers should consider whether it is necessary to query any inconsistency or ambiguity that may bear on the question of whether paragraph 21(3)(d) is satisfied…
The Australian Citizenship Policy, which was replaced by the Policy Statement in November 2020 but is relevant nonetheless, 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.
CPI 2 also includes a list of information that the decision-maker may request should they find it relevant, including how many sessions the applicant has attended with the specialist and the regularity of these sessions.
In relation to mental incapacity, paragraph 3.4 states:
To ensure the integrity and consistency of decision-making, applicants claiming permanent or enduring mental incapacity should generally be required to provide evidence from one of the following:
·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 for Psychological Medicine (ASPM) (note – the ASPM was the Australian College of Psychological Medicine, which had a fellowship program; the ASPM may not have an equivalent program); 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.
Specialist’s qualifications can be confirmed by reference to the credentials which appear on the medical certificate, or by contacting the specialist concerned. For example, a psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists should have “FRANZCP” on the evidence provided.
THE MEDICAL EVIDENCE
The Applicant filed various medical reports at the time of his initial application. The medical reports are comprehensively described in the Statement of Facts Issues and Contentions (SFIC) file by the Respondent, at [52].
These included various reports dated 2017 and 2018 from an orthopaedic consultant in Amman, Jordan, Dr Al-Armoti, referring to chronic osteomyelitis; reports from August 2017 and February 2018 by Dr Alexia Pape, a consultant endocrinologist at Wollongong Hospital; and a report from June 2018 by Dr Jasim, from the Wollongong Accident and Medical Centre.[17]
[17] T4/43-52. T4/51-52.
The report by Dr Jasim dated 8 June 2018 is important. Dr Jasim is a Fellow of the Royal Australian College of General Practitioners (FRACGP), which is a specialist general practice qualification accredited by the Australian Medical Council. Dr Jasim reported:
Reason for the report:
Severe mental health impairment with poor motivation and poor concentration
Very poor short term memory
Motivation and concentration very down
Insulin dependant diabetes with chronic osteomyelitis and diabetic foot
He is illetrate (sic) in English /Unable to read or write
He is unfit to sit citizenship immigration exam
Problem List:
Diabetes mellitus
Retinopathy; diabetic - Type 2 DM
Microvascular complications
Severe Non proliferative diabetic retinopathy and diabetic macula edema
Osteomyelitis; chronic
Neuropathy; peripheral
Sciatica
Osteomyelitis
Problem; foot/feet; diabetes - Chronic infection
Ulcer; diabetic - Chronic diabetic bone and wound infection
The Applicant subsequently provided the Department with a number of more recent reports.
The Respondent accepts that Drs Pape, Hassan, Alshimirti and Nguyen are specialists for the purposes of the Health Insurance Regulations, but contends that the evidence of the remaining doctors should be discounted. Indeed, much of the medical evidence is provided by medical practitioners, both in Australia and overseas, who are not recognised as experts under the Policy Statement for the purposes of processing an application for citizenship.
I am satisfied, based on all the evidence before the Tribunal, including, especially the reports from specialists recognised in terms of the Policy Statement, that the Applicant suffers from a permanent health condition relation to the condition of his foot, causing significant degradation of his enjoyment of life. He also appears to suffer from kidney disease and type 2 diabetes.
There is one report by Dr Jasim which states that the Applicant suffers from a ‘severe mental health impairment’. However, the statement is put as a blunt assertion, without any supporting diagnostic information. Dr Jasim is not a recognised specialist within the Health Regulations in relation to mental health matters.
In terms of his physical ailments, I am satisfied on the evidence that at the time of his application the Applicant suffered from a permanent physical condition, relating to his foot, with significant complications arising from type 2 diabetes. His condition has deteriorated over the past three years.
CAUSATION
The Tribunal must decide whether the Applicant’s permanent physical condition means that he was not capable of demonstrating the knowledge requirements at the time of his application.
In terms of the ‘recognised’ specialists, none of the medical reports is directed specifically to the causal link between the Applicant’s permanent physical capacity and the knowledge requirements contained in paragraph 21(3)(d).
The Respondent’s SFIC summarised the position as follows:
Dr Pape
68. Dr Pape is a consultant endocrinologist and a fellow of Royal Australasian College of Physicians. However, in neither of her reports does Dr Pape comment on the broader impacts of the applicant’s many conditions, which are unquestionably very serious, on his general functioning or his ability to meet the knowledge requirements. The reports are confined to reporting on the management and treatment of those conditions and, respectfully, do not assist the applicant in this application.
Dr Hassan
69. Dr Hassan is a nephrologist and a fellow of Royal Australasian College of Physicians. He stresses in his reports that the applicant’s most serious conditions, end stage kidney disease and permanent foot osteomyelitis, are permanent and, while treatable, the available treatment will not improve the impacts of these conditions on the applicant’s functioning. Dr Hassan focuses on the physical effects of these conditions and does not expand in any meaningful in relation to the asserted fatigue caused by the applicant’s renal condition. Otherwise, Dr Hassan, writing in 2020, does not say what, if any, effect these conditions may have had on the applicant’s ability to meet the knowledge requirements in July 2018, and are of little assistance.
Dr Alshimirti
70. Dr Alshimirti is a pathologist. …The Minister accepts, for the purposes of this application, that the report of Dr Alshimirti satisfies the evidentiary requirements in the CPIs. This notwithstanding, the doctor’s report is no more than a report of the findings of a biopsy of the first toe on the applicant’s right foot. It makes no connection between the finding of tissue necrosis and any inability of the applicant to meet the knowledge requirements.
Dr Nguyen
71. Dr Nguyen is a vascular and endovascular surgeon and a fellow of the Royal Australasian College of Surgeons. His letters relate to the applicant’s admission to Wollongong Hospital in October 2018 for diabetic foot protocol related to the ulceration of both his feet. The doctor reports that the applicant was advised to offload pressure on the right foot with specialised footwear, which would result in restricted mobility. Dr Nguyen provides no opinion as to how this admission, and the restriction of the applicant’s mobility if he took the doctor’s advice, may have affected the applicant’s ability to meet the knowledge requirements three months prior.
The Tribunal is required to assess the impact of the Applicant’s physical condition on his cognitive abilities at the time of his application. The impact of a physical condition on a person’s capacity to demonstrate knowledge and understanding may not be obvious to a lay person. There are no doubt extreme cases, such as brain injury causing a permanent vegetative state, where the facts speak for themselves. But overall, the purpose of medical evidence on the causal question is to enable the Tribunal, which is mostly staffed by non-medical experts, to make an informed medico-legal judgment.
In the present case, the evidence of a linkage between the physical incapacity and the knowledge requirements is tenuous. There is, for example, little evidence as to the impact of any particular pharmaceutical products on his mental state. Nor is there any report dealing specifically with the question of chronic pain, which one might accept would impact on a person’s capacity to demonstrate the knowledge requirements.
For completeness, and despite the unsupported assertion in Dr Jasim’s report, I am confident that the evidence does not support a finding that the Applicant suffers or suffered from mental illness to such a degree that at the time of application he was not capable of understanding the nature of his application; or of demonstrating a basic knowledge of the English language; or of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
The Applicant is focussed on securing citizenship and curing his infected foot, and has made rational decisions about both, as evidenced by his frequent trips to the Middle East over the past four years.
CONCLUSION
In terms of his mental health, I am satisfied that the Applicant was not suffering from a mental incapacity at the time of his application.
In terms of his physical health, I accept that the injury to his foot is a permanent condition. I accept that it causes the Applicant extreme discomfort and pain, and engenders considerable sympathy in any sympathetic person. I note the evidence relating to his admission to the National Disability Insurance Scheme (NDIS) in December 2020. I accept that his physical condition has grown worse over the past years, and that his foot injury has been beset by complications.
The Tribunal is required to focus on his health at the time of application, which takes one back to July 2018. I am not satisfied, based on the evidence before the Tribunal that, at the time he applied for citizenship in 2018, he was suffering from a permanent physical condition that resulted in him being incapable of demonstrating a basic knowledge of the English language.
DECISION
The Tribunal affirms the decision under review, dated 14 August 2020.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
....................[sgd]....................................................
Associate
Dated: 6 August 2021
Date(s) of hearing: 12 May 2021 Applicant: Self-represented Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
Discharge Referral Note of Dr Michael Chang 26 June 2020 Health Pathology Report of the Applicant from Wollongong Hospital 19 June 2020 Report of Dr Nick Adams, Infectious Diseases Physician 13 July 2020 Report of Dr Harnish Kalsi, General Practitioner 29 June 2020 Report of Dr Alexia Pape, Endocrinologist 15 August 2017 Medical Certificate of Dr Harnish Kalsi 29 October 2020 Medical Certificate of Dr Hicham Hassan, Nephrologist* 13 August 2020 Medical Certificate of David Allen (Podiatrist)* 9 November 2020 Medical Certificate of Dr Nick Adams, Infectious Diseases Physician 13 July 2020 NDIS Plan Approval Letter 24 December 2020 Medical Report of Dr Hicham Hassan, Nephrologist* 1 October 2020 Medical Certificate of Dr Harnish Kalsi 3 August 2020 Medical Certificate of Dr Harnish Kalsi 1 March 2021