RAVICHANDRAN Applicant And MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 463

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/4411

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATHMINI RAVICHANDRAN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal   Senior Member A K Britton

Date of oral decision        16 June 2010

Date of written reasons   21 June 2010

Place   Sydney

Decision   The decision under review is affirmed.

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

Senior Member A K Britton

CATCHWORDS

CITIZENSHIP – eligibility – applicant suffering permanent mental incapacity – whether applicant was capable of understanding the nature of the application for citizenship at the time it was made – Tribunal satisfied that applicant was capable of understanding the nature of an application for citizenship – decision under review affirmed

Australian Citizenship Act 2007 (Cth) ― s 21(3)(d)

REASONS FOR DECISION

16 June 2010 Senior Member A K Britton

1.      Mrs Pathmini Ravichandran applies to the Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to refuse her application for Australian citizenship. The stated reason for the delegate’s decision was Mrs Ravichandran’s failure to satisfy the eligibility requirements for citizenship as set out in the Australian Citizenship Act 2007 (Cth) (“the Act”), specifically s 21(3)(d) which provides:

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

…

(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

…

2.      It is agreed that the first limb of s 21(3)(d) is satisfied, that is, Mrs Ravichandran has a permanent mental incapacity, namely chronic schizophrenia and was suffering from that condition at the time she made her application for citizenship. The Minster contends, however, that she does not satisfy the second limb of the provision, namely, that she was not capable of understanding the nature of the application for citizenship at that time it was made.

Was Mrs Ravichandran capable of understanding the nature of her application?

3.      It is not in issue that Mrs Ravichandran has a 23 year history of schizophrenia.

4.      Mrs Ravichandran was educated in Sri Lanka and obtained her O levels. She claims she can neither speak nor understand English. Her husband corroborated that claim. In these proceedings she gave evidence through an interpreter.

5.      When she lodged her application for citizenship in December 2008 Mrs Ravichandran had been living in Australia for over two years. Mrs Ravichandran testified that one reason she applied for Australian citizenship was so she could travel on an Australian passport. She said she believed that this would make international travel safer and more convenient. On questioning she was unable to recall any other reason why she had applied for Australian citizenship.

6.      Mrs Ravichandran’s husband also gave evidence in these proceedings. Mr Ravichandran did not arrive in Australia until in March 2009. He was in regular contact with his wife after she left Sri Lanka. He testified that his wife told him that she was applying for citizenship because it would allow her to stay permanently in Australia, give her voting rights and enable her to travel on an Australian passport. He also testified that his wife had applied for an exemption from the “citizenship exam” because she was unable to learn English on account of her psychiatric condition.

7.      A copy of a report prepared by Mrs Ravichandran’s treating psychiatrist, Dr Bernard St George was tendered in these proceedings. Dr St George provided a diagnosis of schizophrenia and stated that Mrs Ravichandran had been suffering from the condition when she made her application for citizenship. He did not provide an opinion on whether the nature of her condition meant that she was incapable of understanding the nature of that application or prevented her from learning English.

Findings and conclusions

8.      The material before me does not support a finding that when she made her application for citizenship Mrs Ravichandran was incapable of understanding the nature of that application. Indeed, the evidence revels that at the relevant time she had a broad understanding of the nature of the application made.

9.      It is argued for Mrs Ravichandran that she lacks capacity for the purpose of s 21(3)(d) because she does not have a basic knowledge of the English language. It does not necessarily follow that a person with a permanent mental incapacity who has limited English is incapable of understanding the nature of an application for Australian citizenship. Whether that will be the case depends, among other things, on the nature of the person’s condition. As the evidence reveals in this case despite her medical condition and language problems Mrs Ravichandran was capable of understanding the nature of an application for citizenship.

10.     It follows that the second limb of s 21(3)(d) is not satisfied and therefore the decision under review to refuse Mrs Ravichandran’s application for citizenship, must be affirmed.

Amendment to the Australian Citizenship Act

11.     As pointed out by the Minister’s representative, since Mrs Ravichandran applied for citizenship, the Act has been amended to provide a number of alternatives under which a person who has a permanent or enduring mental incapacity can quality for citizenship. These include where the relevant condition means that the person is not capable of demonstrating a basic knowledge of the English language at the time the application for citizenship was made: s 21(3)(d)(ii).

12.     It is open to Mrs Ravichandran to make a fresh application for citizenship under the amended provision. Whether that application will be granted is a matter for the relevant decision-maker. It should be noted that under the amended provision it is not enough that Mrs Ravichandran establish that she lacks a basic knowledge of the English language but that the nature of her condition meant that she lacked that knowledge.

I certify that the preceding 12 paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         .................................[sgd].............................................

Associate

Date of Hearing  16 June 2010
Date of Oral Decision  16 June 2010
Date of Written Reasons                21 June 2010
Appearance for the Applicant        Arulpragasam Ravichandran
Appearance for the Respondent    Alison Tibell, Clayton Utz