Rahman v Minister for Immigration and Citizenship

[2010] AATA 930

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4498

GENERAL ADMINISTRATIVE DIVISION		)
Re		HANAN JAMIL ABDUL RAHMAN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date19 November 2010

PlaceSydney

Decision The Tribunal affirms the decision under review.

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Ms G Ettinger
  Senior Member

CITIZENSHIP – whether the Applicant was at the time of her application suffering from a permanent mental incapacity which rendered her incapable of understanding the nature of citizenship – relevant medical specialist has certified that the Applicant suffers from a mental incapacity – Tribunal satisfied the Applicant understands the nature of the application for citizenship – decision under review affirmed.

Australian Citizenship Act 2007, s 21

REASONS FOR DECISION

19 November 2010

SUMMARY

Ms G Ettinger, Senior Member

1.      The Applicant, Mrs Hanan Jamil Abdul Rahman, is a citizen of Lebanon, and has been in Australia since 2003. She came here on a temporary spouse visa.  She is applying for the review of a decision of a delegate of the Minister for Immigration and Citizenship, the Respondent in these proceedings, who made a decision under the Australian Citizenship Act 2007 (the Citizenship Act), refusing her application for Australian citizenship. Both the Applicant’s husband and their children are Australian citizens.

2.      Dr B St George, a psychiatrist, opined in his report that Mrs Abdul Rahman suffers from chronic depression and says that she has a permanent incapacity.  Dr St George also opined that Mrs Abdul Rahman’s illness affects her concentration and memory which prevent her from learning English.  Dr St George further opined that the Applicant’s mental incapacity prevents her from understanding and attending to the application for immigration.

3.      In order that she may qualify for citizenship in relation to the present application, I have to be satisfied that Mrs Abdul Rahman’s mental incapacity is permanent, and that this rendered her not capable of understanding the nature of her application for citizenship at the time she made it. 

4. I was not satisfied from the evidence before me that Mrs Abdul Rahman satisfied the tests in section 21(3)(d) of the Citizenship Act, and I have accordingly affirmed the decision under review.

RELEVANT LEGISLATIVE ENVIRONMENT

5. Section 21(3) of the Citizenship Act follows as relevant.

21  Application and eligibility for citizenship

…

Permanent physical or mental incapacity

(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 residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and

(d)  has a permanent physical or mental incapacity, at the time the person made the application, that means the person is not capable of understanding the nature of the application 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.

ISSUE BEFORE THE TRIBUNAL

6. I had to decide whether Mrs Abdul Rahman satisfies the tests in section 21(3) of the Citizenship Act.

CONSIDERATIONS

7.      I heard oral evidence from the Applicant and her husband.  I took into evidence the letter of Dr St George dated 25 March 2010 as Exhibit A1, and the T-documents as Exhibit R1.  We also had the benefit of the assistance of a very capable interpreter in the Arabic language.

8. Ms Linacre who appeared for the Respondent was also keen for me to take into evidence a copy of a letter which the Minister’s representatives had sent to the Applicant in November 2009, and again in April 2010. That letter was written to give the Applicant an opportunity of having Dr St George clarify his statements in order for her to possibly meet the tests in section 21(3)(d) of the Citizenship Act. The letter also informed Mrs Abdul Rahman of the opportunity of making another application under the amended Citizenship Act which would now apply to her situation. I am satisfied that the Applicant did not respond to that letter.

9.      When I asked Mrs Abdul Rahman about whether she suffered any illness, she replied that she did not, but that her only problem was that she could not learn English.  She also told me that Dr St George was her psychiatrist, that she consulted him every couple of months or perhaps once a year, and that he had been her doctor for some two to three years.  She told me that she had last consulted him seven or eight months ago, and that she does not take medication.  On further questioning, Mrs Abdul Rahman said that she had some medication from her family doctor, and takes it when she needs it occasionally.  She was unable to be more accurate than that about any condition which she suffers. I have reservations arising from the evidence Mrs Abdul Rahman gave or withheld about her depression.

10.     However, the Respondent was content to rely on the letter of Dr St George in which he indicated that Mrs Abdul Rahman suffers depression, a chronic illness, and a permanent mental incapacity.

11. I am mindful that there is no argument that Mrs Abdul Rahman meets the tests in all the subsections of section 21(3) of the Citizenship Act as it was at the time of her application in 2008, with the exception of subsection 21(3)(d). That is, Mrs Abdul Rahman was aged more than 18 at the time she made the application for citizenship, (section 21(3)(a)). She was then, and is now, a permanent resident of Australia (section 21(3)(b)). She satisfies the residence requirement, (section 21(3)(c)). As her husband and children are Australian citizens and reside here, she is likely to continue to reside in Australia, (section 21(3)(e)), and as she has had no adverse findings made against her, I accept she is of good character, and was so at the time of the Minister’s decision on her application (section 21(3)(f)).

12. However I must also address the requirements in section 21(3)(d)). Section 21(3)(d) states that in order to be eligible for citizenship, the Applicant must have a permanent physical or mental incapacity at that time (time of application for citizenship), that means the person is not capable of understanding the nature of the application at that time.

13.     Mrs Abdul Rahman told me that she applied for citizenship:

·because Australia is her country;

·that citizenship would make her part of the Australian community;

·that she would then have a right to vote in Australia;

·that she would be able to obtain an Australian passport; and

·that as an Australian citizen she would be able to enjoy the same status as her husband and children.

14.     Mr Abdul Rahman told me that due to her illness his wife was unable to concentrate in order to learn English, and that she had tried three times to do the English test in relation to citizenship.

15.     I was satisfied from the Applicant’s evidence at the hearing, and as detailed in paragraph 13 above, that she understood the nature of the application for citizenship, and what benefits result from a grant of citizenship.  I am also satisfied that it is more likely than not that she had that understanding at the time of lodgement of her application.

16. Accordingly she cannot meet the requirements of section 21(3)(d) of the Citizenship Act as it applied at the time of her lodgment of the application for citizenship.

17.     Both Ms Linacre and I explained to Mrs Abdul Rahman that the 2007 Act was amended after she had lodged her application, and should she be unsuccessful at the Tribunal, there was no impediment to her re-applying and having the application heard pursuant to the amended legislation.  As Mrs Abdul Rahman’s application was lodged before the 2007 Act was amended, I was not able to consider it pursuant to the new, and perhaps, to her, more favourable amended provisions.

CONCLUSION

18. Having considered all the evidence, I am satisfied that Mrs Abdul Rahman does not meet the requirements of section 21(3)(d) of the Citizenship Act, and that her application for citizenship cannot succeed on this occasion.

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for decision of Ms G Ettinger, Senior Member.

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Associate

Date of Hearing  11 November 2010
Date of Decision  19 November 2010
For the Applicant  Self represented
Solicitor for the Respondent     Ms A. Linacre, Clayton Utz