Sahar and Minister for Home Affairs (Citizenship) - [2019] AATA 1232

Sahar and Minister for Home Affairs (Citizenship) [2019] AATA 1232 (7 June 2019)
Division:GENERAL DIVISION
File Number: 2018/2620
Re:Mr Jahad Sahar
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:7 June 2019
Place:Sydney

The decision under review is set aside on the basis that the Tribunal finds that the Applicant qualifies under s 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking the Australian Citizenship Test.
............................[sgd]............................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – citizenship test exemption – whether applicant suffers from a permanent or enduring mental incapacity – medical evidence considered – chronic conditions – applicant diagnosed with Post Traumatic Stress Disorder and Depressive Disorder – causal connection established between the applicant’s mental incapacity and his inability to demonstrate a basic knowledge of the English language – decision under review set aside and substituted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A,
CASES
Re ER Aston and Y Aston and Secretary, Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Butrus and Minister for Immigration and Border Protection [2019] AATA 239
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Khodeir and Minister for Immigration and Border Protection [2015] AATA 499
Skaf v Minister for Immigration and Border Protection [2016] AATA 429
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Senior Member Linda Kirk
7 June 2019
APPLICATION FOR REVIEW

Mr Jahad Bachay Sahar (‘the Applicant’) was born in 1963 and is a citizen of Iraq.[1] He arrived in Australia on 16 April 2011.[2] On 15 May 2015, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).[3]
[1] Section 37 T-Documents, T04, p.111.
[2] T04, p. 113.
[3] T04, p. 111.
On 29 March 2018, the application was refused by a delegate of the Minister for Home Affairs (‘the Respondent’) as the delegate was not satisfied that the Applicant met the criteria under s 21(3)(d) of the Act (‘the Reviewable Decision’).[4]
[4] T08, p. 167.
On 7 May 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[5]
[5] T01, p. 1.
The matter was heard in Sydney on 1 April 2019. The Applicant attended the hearing in person and was self-represented. The Applicant gave evidence with the assistance of an Arabic language interpreter. Dr Hecham Alhajali, Consultant Psychiatrist, also gave evidence at the hearing by phone.
LEGISLATIVE FRAMEWORK
Australian Citizenship Act 2007
The criteria for general eligibility requirements for the conferral of Australian citizenship are set out in section 21 of the Act. The provisions relevant to the determination of this application are as follows:
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) 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) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) 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
(h) is of good character at the time of the Minister's decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period ) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Permanent or enduring 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 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 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; 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.
In order for citizenship to be granted, an applicant must satisfy all of the eight requirements that are listed in s 21(2). Subsections 21(2)(d), (e) and (f) can only be satisfied if the applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of the responsibilities and privileges of citizenship. This is demonstrated by the applicant successfully completing the citizenship test provided for in s 21(2A) of the Act.
Citizenship Test
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A(4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)), and the time limits within which the test must be completed (s 23A(5A)).
Successful completion of the citizenship test is an integral requirement for the consideration of grant of citizenship. The test is designed to establish that an applicant both understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement in regard to competency in the English language.
Exemption from the Citizenship Test
By virtue of s 21(3) of the Act, if the Minister is satisfied that an applicant who meets the general eligibility and residence requirements but is unable to meet the requirements of ss 21(2)(d),(e) or (f) due to “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, they will be entitled to the grant of citizenship.
The operation and effect of s 21 was outlined by Senior Member Taylor SC in Khodeir and Minister for Immigration and Border Protection:
[2] Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007… I paraphrase those three matters as
(a) AWARENESS: — understanding the nature of the citizenship application:
(b) ENGLISH: — possessing a basic knowledge of the English language;
(c) KNOWLEDGE: — having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship.
[3] As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in ACA 2007 s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English” and “knowledge”).[6]
[6] Khodeir and Minister for Immigration and Border Protection [2015] AATA 499.
Citizenship Policy
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry(1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
In relation to s 21(3), the Citizenship Policy states:
For applications received on or after 9 November 2009 for consideration under s 21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
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.
…
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
…
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.
…
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis. [7]
[7] Australian Citizenship Policy, pp. 71-74.
To meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizenship application, or acquire basic English language competency or understand the responsibilities and privileges of citizenship.
In order to demonstrate this, the applicant must produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
If those conditions are satisfied, then “s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test”.[8]
EVIDENCE BEFORE THE TRIBUNAL
[8] Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].
Applicant’s Evidence
The Applicant told the Tribunal that he attended school in Iraq and studied until year 9. He learned to both read and write in the Arabic language. At school he attended one hour per week of English language classes. When he left school he worked in his father’s jewellery business.
When he came to Australia in 2011 he had very basic English language skills. He attended 140 hours of English language classes but did not complete the full 510 hours due to his health conditions. In 2012 he went onto the Disability Support Pension.
The Applicant holds a NSW Driver Licence which took three years for him to obtain. He completed the knowledge part of the test in the Arabic language. He failed the practical driving test nine or ten times before he was successful. He agreed that he had to learn Australian road rules to be able to successfully pass the test.
The Applicant’s former wife, son and daughter live in Sydney. He also has two brothers and one sister who live in Australia. He sees his family from time to time. He currently lives with his nephew. He has problems with his family and he wants to travel to Sweden where two of his sisters live and spend time with them there. He is unable to travel to Europe on his Iraqi passport.
Medical Evidence
The Applicant submitted to the Tribunal numerous medical reports from a variety of medical practitioners:
- Reports by Dr Hecham Alhajali, Consultant Psychiatrist, dated 14 July 2012[9], 31 October 2015[10], 7 November 2015[11], 21 July 2018[12] and 19 January 2019[13];
- Report by Onsy Mattar, Consulting Psychologist, undated;[14]
- Report by Walid Ahmad, Psychologist, dated 14 June 2011;[15]
- Report by Dr Ishrat Ali, Consultant Psychiatrist, dated 24 February 2012;[16]
- Report by Dr Ibrahim Hanna, Consultant Psychiatrist, dated 21 March 2012;[17]
- STARTTS letter from Dr Tajana Opacic, Clinical Psychologist, dated 25 May 2012;[18]
- Report by Dr Bassel Hassan, Consultant Neurologist, dated 28 December 2013;[19]
- Letter from Dr Raiz Ismail, Consultant Psychiatrist, dated 17 August 2018;[20]
- Report by Dr Zaha Kalid, General Practitioner, dated 15 April 2015,[21] 4 November 2015,[22] 6 August 2018[23] and 7 February 2019;[24]
- Report of Dr Kasim Abaie, Registered Psychologist, dated 8 January 2017[25] and 13 August 2018.[26]
Dr Hecham Alhajali, Consultant Psychiatrist
The bulk of the evidence in relation to the Applicant’s mental health is contained in written reports from Dr Hecham Alhajali, MBBS, MD Psych, FRANZCP, a consultant psychiatrist who also gave evidence to the Tribunal by telephone, at the request of the Respondent.
Dr Hecham Alhajali provided reports for the purposes of the Applicant's citizenship application dated 7 November 2015 and 19 January 2019. In his report dated 7 November 2015, Dr Alhajali stated that the Applicant:
… has not been able to improve his English language skills … due to the effects of mental illness in addition to several other reasons, including limited cognitive abilities and a limited education and school history, exposure to stress and inability to cope with psychological stressors
… has a permanent and enduring mental incapacity with cognitive deficits.
… is incapable of demonstrating a basic knowledge of the English language and also incapable of demonstrating an adequate knowledge of Australian history and of the responsibilities and privileges of Australian citizenship.[27]
[27] T06, p. 163.
In his letter dated 26 January 2019, Dr Alhajali reported he:
·diagnosed the Applicant as suffering from Chronic Post Traumatic Stress Disorder and Chronic Depression;
·performed cognitive testing and mini mental state examination that has shown that the Applicant has global cognitive impairment in attention, concentration, memory and recall, and problem solving;
·considers that the Applicant is incapable of demonstrating and/or learning adequate English language skills to enable him to undertake the Australian Citizenship Test caused by cognitive deficits as a result of his chronic and permanent mental illnesses; and
·considers that the Applicant is not capable of demonstrating adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship due to the effects of his permanent mental illnesses on his cognitive abilities.
During his oral evidence at the hearing, Dr Alhajali told the Tribunal that he has seen the Applicant on five occasions, on 16 June 2012, 14 July 2012, 31 October 2015, 21 July 2018 and 19 January 2019. During this period he has not noticed much change in the Applicant’s condition. In Dr Alhajali’s opinion, the Applicant’s condition is chronic and unlikely to improve. If anything there will be periods where there will be exacerbation of his symptoms due to what is going on in his life and his compliance with his treatment regime. With this further exacerbation ‘there is likelihood of further deterioration in his cognitive ability.’[28]
[28] Transcript, p. 39.
During cross-examination, Dr Alhajali confirmed his view that the Applicant has a mental incapacity and that he is ‘not able to learn what’s required from him to learn in order to pass the test required for the citizenship.’[29] He was asked whether in his opinion it is because of the Applicant’s mental incapacity that he is unable to learn English or whether there are other factors that contribute to this inability. Dr Alhajali stated that the Applicant probably did have pre-existing learning difficulties or limited cognitive abilities, which were exacerbated by the trauma and circumstances he had experienced, and him being mentally unwell for a long period of time.[30] He was further asked whether, if the Applicant did not have his mental incapacity, he would have the same difficulties with studying and learning English. Dr Alhaljali stated that in his view the Applicant would have some difficulties, but these would not be ‘as profound or as severe as when you have a mental illness, because that sort of added insult to the injury in a way that made his cognition even more impaired …’[31] The mental illness the Applicant has developed ‘has made his cognitive skills even more impaired … and affected his ability to learn new information.’[32]
[29] Transcript, p. 35.
[30] Ibid.
[31] Transcript, p. 36.
[32] Ibid.

Dr Alhajali was asked whether the Applicant’s cognitive and mental state is such that he is unable to study and complete the citizenship test. He stated that in his view he is incapable because he has a limited attention span and would not be able to sustain it for the duration of the test. In his view, taking courses to prepare for the test would not assist the Applicant to improve his ability to satisfactorily complete the test.[33]
[33] Transcript, p. 39.
Dr Alhajali was asked whether he thinks the Applicant understands the nature of a citizenship application. He said that ‘citizenship really to him is a certificate that he will be given to say that he become (sic) and Australian citizen … I don’t think that he would understand what … that entails …’[34]
Reports of other medical practitioners
[34] Transcript, p. 40.
In his undated report, Mr Onsy Mattar, Consulting Psychologist, stated that in his clinical opinion, the Applicant’s symptoms meet the criteria of mental disorder according to ICD10 for Psychotic Depression and Post-Traumatic Stress Disorder.[35] Mr Walid Ahmad, Psychologist, saw the Applicant in May 2011, one month after his arrival in Australia on the referral by the Applicant’s general practitioner, Dr Zaha Kalid, for management of his Depression, Anxiety and Post Traumatic Stress symptoms.[36]
[35] Exhibit A1, p. 3.
[36] Exhibit A2.
In his report dated 24 February 2012, Dr Ishrat Ali, Consultant Psychiatrist, diagnosed the Applicant with panic disorder and dysthmia. He stated that the Applicant ‘appeared to be functioning at an average level of intelligence and had reasonable insight into his problems.’[37] Dr Hanna’s report dated 21 March 2012, mentions only the Applicant's migraine and spinal conditions.[38]
[37] T06, pp. 146-147.
[38] T06, p. 148.
Dr Tajana Opacic’s report dated 25 May 2012, states that the Applicant’s symptoms warrant a diagnosis of PTSD and Major Depression.[39] The report of Dr Bassel Hassan, dated 28 December 2013, details findings in relation to the Applicant's neurological symptoms. He notes that the Applicant's symptoms are highly unusual and not typical of any organic pathology. He questioned whether the Applicant’s symptoms are ‘psychosomatic'.[40]
[39] T06, pp. 149-150.
[40] T06, pp. 152-155.
In his report dated 17 August 2018, Dr Raiz Ismail reported that the Applicant has major depressive disorder with somatization with comorbid PTSD, and also suggested an IQ assessment for the Applicant to confirm any learning disability.[41]
[41] Applicant’s documents, Report of Dr Raiz Ismail dated 17 August 2018.
The reports of Dr Zaha Kalid dated 15 April 2016, 6 August 2018 and 7 February 2019, refer to the Applicant as suffering depression and PTSD.[42] Dr Kasin Abaie’s reports dated 8 January 2017 and 13 August 2018 note that the Applicant is suffering Chronic PTSD and sleeping disturbance.[43]
The Respondent’s Submissions
[42] Applicant’s documents, Reports of Dr Zaha Kalid dated 15 April 2016, 6 August 2018 and 7 February 2019.
[43] T06, pp. 164-165.
The Respondent accepts that the totality of the medical evidence indicates that the Applicant has a mental incapacity. However, it contends that the evidence does not establish the requisite causal connection between the Applicant’s mental incapacity and his inability to understand either the nature of the citizenship application, the privileges and obligations of citizenship and the ability to demonstrate knowledge of the English language.[44] The Applicant’s evidence demonstrates that he can learn and study as he successfully obtained his NSW driver licence. He has not attempted to improve his English language skills or prepare himself for the citizenship test. The Applicant understands the benefits of acquiring citizenship, including the benefits of holding an Australian passport as indicated by his stated intention to undertake international travel.
[44] Respondent’s Statement of Facts, Issues and Contentions paras 22 – 23.
The Respondent contends that whereas the Applicant has produced a number of medical reports which supports a finding that the Applicant has a mental health condition, the reports do not address the relevant criteria under the Act. The Respondent further contends that the Tribunal should not give any weight to the medical reports that were not prepared by a practitioner who holds the requisite qualifications under the Citizenship Policy.
The Respondent accepts that Dr Alhajali’s evidence most strongly supports the Applicant. It contends however that the Tribunal cannot be satisfied that the totality of Dr Alhajali's evidence establishes that the Applicant has a permanent or enduring mental incapacity for the purposes of section 21(3)(d) of the Act.[45] The records indicate that the Applicant has only seen Dr Alhajali infrequently, with consultations occurring in 2012, 2015, 2018, and most recently in 2019. Dr Alhajali has not therefore provided treatment to the Applicant on a regular basis, which is contrary to what is expected of an applicant with a permanent or enduring mental incapacity as outlined in the Citizenship Policy.[46]
[45] Respondent’s Statement of Facts, Issues and Contentions, para 20.
[46] Respondent’s Statement of Facts, Issues and Contentions, para 29.
Further, the Respondent contends that Dr Alhajali’s evidence indicates that the Applicant has other contributing causes to his inability to improve his English skills, in particular the underlying and pre-existing limitation of his cognitive ability, which significantly impairs his ability to improve his skills. Whereas Dr Alhajali conducted a mini mental state examination on the Applicant some years ago, he did not conduct a further examination for the purposes of his January 2019 report.
The Respondent contends that the Tribunal should not give any weight to Dr Abaie’s reports in circumstances where he has not provided any evidence that he has the relevant specialist qualifications as outlined under the Citizenship Policy. The Respondent further argues that while Dr Abaie has diagnosed the Applicant with chronic PTSD and sleeping disturbance, Dr Abaie does not state that the Applicant's mental incapacity is permanent or enduring such that he is not capable of understanding the nature of the application, demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. Accordingly, the reports do not support the Applicant's claim that he has an enduring or permanent mental incapacity for the purposes of section 21(3)(d) of the Act.[47]
[47] Respondent’s Statement of Facts, Issues and Contentions, para 18.
The Respondent contends that no weight should be given to Dr Kalid’s reports as he is a general practitioner and therefore does not have the specialist qualifications required under the Citizenship Policy.[48] It further contends that, as Dr Kalid is not a specialist in the relevant field, he is not qualified to make a diagnosis in relation to the Applicant's mental incapacity and the reports do not provide any details regarding the basis of Dr Kalid’s opinion.[49]
[48] Respondent’s Statement of Facts, Issues and Contentions, para 17(a).
[49] Respondent’s Statement of Facts, Issues and Contentions, paras 17(b) and 17(c).
The Respondent contends that Dr Ismail’s 17 August 2018 report does not support the Applicant’s claim for reason that Dr Ismail had only reviewed the Applicant on one occasion.[50] It further argues that there is no evidence that an IQ assessment had been undertaken, and the report does not establish that the Applicant has a permanent or enduring physical or mental incapacity for the purposes of section 21(3)(d) of the Act.[51]
[50] Respondent’s Statement of Facts, Issues and Contentions, para 16(a).
[51] Respondent’s Statement of Facts, Issues and Contentions, para 16(b).
The Respondent notes that while Dr Opacic’s report supports that the Applicant had PTSD and major depression, it does not provide support to the claim that the Applicant has a permanent or enduring incapacity for the purposes of section 21(3)(d) of the Act.[52] The Respondent contends that Dr Hassan’s also does not support the Applicant’s claim that he has a permanent or enduring mental incapacity for the purposes of section 21(3)(d) of the Act.[53]
[52] Respondent’s Statement of Facts, Issues and Contentions, para 14.
[53] Respondent’s Statement of Facts, Issues and Contentions, para 15.
The Respondent contends that Dr Hanna’s report does not support the Applicant's claim, as he has only reported on the Applicant's migraine and spinal conditions. Furthermore, the Respondent notes that the report does not comment on the permanency or enduring nature of any incapacity.[54]
[54] Respondent’s Statement of Facts, Issues and Contentions, para 13.
The Respondent argues that Dr Ali’s report does not support the Applicant’s claims for reason that Dr Ali had only seen the Applicant on one occasion seven years ago,[55] and the diagnosis does not support the Applicant’s contention in relation to post-traumatic stress and depression.[56] The Respondent further contends that there is nothing to suggest that the diagnosis provided would impact on the Applicant’s ability to understand the nature of his citizenship application or stop him from demonstrating a basic knowledge of Australia or the English language.[57]
[55] Respondent’s Statement of Facts, Issues and Contentions, para 12(a).
[56] Respondent’s Statement of Facts, Issues and Contentions, para 12(b).
[57] Respondent’s Statement of Facts, Issues and Contentions, para 12(c).
The Respondent submits that no weight should be given to the reports of Mr Mattar and Mr Ahmad, as they do not appear to hold the specialist qualifications required under the Citizenship Policy.
CONSIDERATION AND REASONS
The Tribunal is required to determine whether or not the Applicant qualifies under s 21(3)(d) of the Act to be granted an exemption from having to undertake the Citizenship Test.
As Senior Member Puplick observed in Butrus and Minister for Immigration and Border Protection [2019] AATA 239 at [61]: in order for the requirements of s 21(3)(d) to be satisfied, there must be established a ‘clear causal connection’ between a permanent or enduring physical or mental incapacity at the time of the citizenship application and one of the three requirements in s 21(2)(d), (e) and (f) termed by Senior Member Taylor in Khodeir as awareness, English and knowledge. The evidence must support a finding that the Applicant has a permanent or enduring physical or mental incapacity, and that there is a direct causal link between this incapacity and his lack of understanding of the nature of the citizenship application (‘awareness’), or his lack of a basic knowledge of the English language (‘English’), or his lack of an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship (‘knowledge’).
Did the Applicant have a permanent or enduring mental incapacity at the date of his citizenship application?
On the basis of the evidence before it, the Tribunal is satisfied that, at the date of his application for citizenship in May 2015, the Applicant suffered a permanent and enduring mental incapacity. It makes this finding on the basis of the evidence provided by Dr Hecham Alhajali, a consultant psychiatrist, and fellow of the Royal Australian and New Zealand College of Psychiatrists. Dr Alhajali holds the required qualifications recognised in the Citizenship Policy to provide an opinion in relation to the Applicant’s mental incapacity.[58] The Tribunal notes that the Citizenship Policy recognises that evidence provided by one relevantly qualified medical practitioner is sufficient to satisfy its requirements.[59]
[58] Australian Citizenship Policy, pp. 71-74.
[59] Ibid.
The Tribunal notes that the Citizenship Policy anticipates that the person claiming a permanent or enduring incapacity ‘will have been seeing a specialist on a regular basis.’ The evidence before the Tribunal is that the Applicant has seen Dr Alhajali on five occasions on 16 June 2012, 14 July 2012, 31 October 2015, 21 July 2018 and 19 January 2019. On the basis of this record of appointments, the Tribunal is satisfied that the Applicant has seen Dr Alhajali ‘on a regular basis’.
The evidence provided by Dr Alhajali in relation to the Applicant’s mental incapacity is that he ‘has a permanent and enduring mental incapacity with cognitive deficits’ and his condition is ‘chronic’ and ‘unlikely to improve’. This opinion was provided by Dr Alhajali in his written report on 7 November 2015, six months following the Applicant’s citizenship application, and confirmed in his subsequent report in January 2019 and in his oral evidence at the Tribunal hearing. The Tribunal is therefore satisfied that the Applicant has a mental incapacity that is ‘either permanent or sufficiently long-term as to be enduring’ and ‘one for which there cannot be a predicted recovery’ as contemplated by the Citizenship Policy.
For the reasons outlined above, the Tribunal is satisfied that, at the time he made his application for citizenship, the Applicant had a permanent or enduring mental incapacity.
Is there a causal link between the Applicant’s permanent or enduring mental incapacity and his inability to demonstrate one of the three requirements of awareness, English or knowledge?
The evidence before the Tribunal provided in the reports and oral evidence of Dr Alhajali is that the Applicant is incapable, by reason of his mental incapacity, of understanding the nature of his citizenship application, demonstrating a basic knowledge of the English language and demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
The Tribunal notes that in order to satisfy the requirements of s 21(3)(d), the Applicant need only establish a causal connection between his mental incapacity and one of the requirements of awareness, English or knowledge.
In relation to demonstrating a basic knowledge of the English language, the evidence of Dr Aljahali is that while the Applicant had some pre-existing learning difficulties or limited cognitive abilities which would have affected his ability to study and learn English, his mental incapacity made these difficulties more profound and severe. His mental illness has impaired further his cognitive skills and affected his ability to learn new information. On the basis of this evidence, the Tribunal is satisfied that there is the required causal connection between the Applicant’s permanent or enduring mental incapacity and his incapacity to demonstrate a basic knowledge of the English language. Accordingly, the Tribunal is satisfied that the Applicant meets the criteria in s 21(3)(d) and is therefore exempt from the requirement to undertake the Citizenship Test.
Having made this finding, it is unnecessary for the Tribunal to consider whether there is the requisite link between the Applicant’s permanent or enduring mental incapacity and his inability to understand the nature of his citizenship application or his inability to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
DECISION
The decision under review is set aside on the basis that the Tribunal finds that the Applicant qualifies under s 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking the Australian Citizenship Test.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[sgd]............................
Associate
Dated: 7 June 2019

Date of hearing: 1 April 2019

Applicant: In person

Solicitors for the Respondent: Ms J Liang, Clayton Utz

Date of hearing:	1 April 2019
Applicant:	In person
Solicitors for the Respondent:	Ms J Liang, Clayton Utz