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

[2021] AATA 2763

Samad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2763 (9 August 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5022

Re:Badri Samad

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Bellamy

Date:9 August 2021

Place:Brisbane

The decision under review is affirmed

............................[SGD]............................................

Member R Bellamy

CATCHWORDS

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – section 21(3)(d) of Australian Citizenship Act 2007 – whether Applicant had relevant permanent or enduring physical or mental incapacity at the time of application – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Minister for Home Affairs v G [2019] FCAFC 79

SECONDARY MATERIALS

Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019), CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

Member R Bellamy

9 August 2021

1. On 12 July 2013, the Applicant, a citizen of Afghanistan who had been living for some time in Pakistan, arrived in Australia as the holder of a Woman at Risk (subclass 204) visa with her two daughters and one of her two sons.[1] The other son is in France and is unable to obtain a visa to come to Australia.

   [1]     Exhibit 1, Section 37 T documents, T10, page 62.

2. In January 2018, the Applicant lodged an application for conferral of Australian citizenship (“the application”) that was accompanied by a letter from her doctor to the effect that she was not capable of learning English. The Applicant’s son subsequently provided further medical and psychiatric evidence to the effect that the Applicant would have difficult sitting the citizenship test.[2]

   [2]     Exhibit 1, Section 37 T documents, T8 to T9.

3. The Australian Citizenship Act 2007 (Cth) (“the Act”) effectively provides that a person can be eligible for citizenship without passing an approved test if:

   ·they have a permanent or enduring physical or mental incapacity, at the time they made the application, that means the person:

   ois not capable of understanding the nature of the application at that time; or

   ois not capable of demonstrating a basic knowledge of the English language at that time; or

   ois not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

   ·they meet some other conditions.

4. On 21 July 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused the Application.[3] The Applicant seeks review of that decision.[4] The Tribunal has jurisdiction under s 52(1)(b) of the Act which provides that a decision under s 24 of the Act to refuse to approve a person becoming an Australian citizen may be reviewed by the Administrative Appeals Tribunal.

   [3]     Exhibit 1, Section 37 T documents, T10, pages 61 to 74.

   [4]     Exhibit 1, Section 37 T documents, T2, pages 6 to 14.

5. The hearing of this matter took place on 14 July 2021. The Applicant did not have legal representation although her son provided some documentary evidence prior to the hearing and he made some submissions at the conclusion of the hearing. The Applicant gave evidence through an interpreter. The Applicant’s son and a psychologist, Mr Otero Forero, also gave evidence. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE SCHEME

6. Under s 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen. Section 21(2) of the Act identifies applicable criteria that an Applicant must satisfy in order to be eligible to become an Australian citizen.

7. Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of subsections 21(2) to (8) of the Act.

8. Subsection 21(3) of the Act provides that:

   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.

9. Under s 24(2) of the Act, the Respondent may refuse to approve an Applicant becoming an Australian citizen despite being eligible to become so under ss 21 (2), (3), (4), (5), (6) or (7). Section 24(1) of the Act confers a broad and unfettered discretion to approve or refuse an application made under s 21 of the Act.[5]

   [5]     Minister for Home Affairs v G [2019] FCAFC 79 at [64].

10. In applying s 21(3)(d) of the Act, I have had regard to the Revised Citizenship Procedural Instructions “CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity” (“the Policy”).[6] This is a departmental policy that was not made under a legislative power but in an exercise of executive power. Its expressed purpose is to:

    “identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for conferral of Australian citizenship under subsection 21(3) of the Australian Citizenship Act 2007 (the Act)”.

    [6]     Exhibit 1, Section 37 T documents, T11.

11. The Policy states the following in section 3.4 Assessing Incapacity:

    Each limb of the provision must be met

    There are two limbs to this provision

    ·“The Applicant must have a permanent or enduring incapacity at the time of application. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.

    oExamples include but are not limited to where a person has a congenital birth defect or suffered a stroke and their prognosis of recovery is not predictable.

    oWhen assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression. These are factors that need to be addressed specifically in the evidence provided by the Applicant.

    …

    ·The incapacity must be the direct cause of the Applicant not being capable of:

    ounderstanding the nature of the application; or

    odemonstrating a basic knowledge of English; or

    odemonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.

    A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).

    Mental incapacity

    …

    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.

    …

    Reports should also:

    ·articulate a clear basis for the diagnosis and opinions expressed in them, including how the incapacity links to the person not being able to:

    ounderstand the nature of the application; or

    odemonstrate a basic knowledge of English; or

    odemonstrate that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship;

    ·be signed and dated by the specialist and contain their professional credentials or accreditation or registration with an appropriate organisation.

    …

    Applicants claiming a permanent or enduring physical incapacity must demonstrate that because of their physical incapacity they are not:

    ·capable of understanding the nature of the application; or

    ·capable of demonstrating a basic knowledge of English; or

    ·capable of demonstrating that they have adequate knowledge of Australia, and the responsibilities and privileges of Australian citizenship.”

    THE EVIDENCE  

12. The material time in terms of whether s 21(3)(d) is satisfied is the time when the Applicant applied for citizenship. She signed the declaration in her application on 12 July 2017 and she signed the application on 12 August 2017. The application was received by the Respondent on 18 January 2018. I do not think it is necessary or helpful to determine exactly when the Applicant made the application for the purpose of s 21(3)(d) as the evidence does not indicate any significant change in her physical or mental health in the period between July 2017 and January 2018.

    Evidence of psychiatrist Dr Sidney Cabral

13. Before me are two letters from Dr Sidney Cabral. Dr Cabral is a senior psychiatrist at the Queensland Transcultural Mental Health Centre which is a Queensland Government body. As a fellow of the Royal Australian and New Zealand College of Psychiatrists, Dr Cabral meets the qualification requirements in the Policy.

14. In the first letter, dated 12 June 2020,[7] Dr Cabral stated that he assessed the Applicant in 2014 and on 4 June 2020. He noted that she was reviewed by the Mental Health, Acute Care Team in 2018 and was diagnosed with adjustment disorder and depressed mood. In 2020, she presented with symptoms of depression, memory/cognitive difficulties and recurrence of post-traumatic stress disorder (“PTSD”) symptoms that “worsen in the context of stressors which include financial, citizenship related issues and reuniting with her son”. She also appeared to have very limited English language skills. Dr Cabral said the Applicant had registered to study English via TAFE but dropped out due to concentration issues, depressive symptoms and multiple physical/medical comorbidities. His letter concluded with the words “I support any consideration to exempt her from a formal citizenship test”. Unfortunately, while Dr Cabral referred to the citizenship test, he did not directly address the matters in s 21(3)(d) of the Act.

    [7]     Exhibit 1, Section 37 T documents, T8, page 51.

15. Dr Cabral provided a second letter, dated 13 July 2021[8] after having assessed the Applicant in April and then June 2021, and having obtained some information from her children, her General Practitioner (“GP”), “Culture in Mind”, and the Queensland Program of Assistance to Survivors of Torture and Trauma. He said:

    “Further history obtained from [the Applicant] and her children points to a very long-standing history of depression and PTSD since her time in Pakistan, prior to moving to Australia…

    She reports difficulties with low mood (sadness), sleep difficulties, nightmares and suicidal thoughts while in Pakistan, however, did not have the financial resources or support from extended family to seek any treatment for mental health issues due to stigma/shame associated in their culture about mental illness. She reports multiple traumas to her head, perpetrated by her in-laws.

    It has become evident that [the Applicant] focuses on physical health and minimises her psychiatric symptoms due to stigma and potential shame it would bring and has been ambivalent about seeking ongoing psychological help.

    …

    Her symptoms worsen in the context of stressors. She worries that without a valid Australian passport she may never be able to meet her son, who is overseas. She reports feeling worse if she forgets to take/stop her medication. Her GP has increased her Duloxetine with some benefit. Her care is further complicated by having numerous physical issues for which she has been prescribed multiple medications. She is currently on a long list of medications. I have also recommended to her GP that an MRI of the brain is warranted to rule out organic causes.

    …

    [The Applicant] did register to study English. She found it difficult to engage with the learning process to enhance her language skills due to her depressive and PTSD symptoms, concentration/cognitive difficulties and pain symptoms associated with multiple physical co morbidities.”

    (Emphasis added)

    [8]     Exhibit 7, Report of Dr Sidney Cabral, Senior Psychiatrist dated 13 July 2021.

16. Dr Cabral concluded that the Applicant presented with long-standing mental health issues and that she suffered from major depressive disorder with PTSD. He opined that because of the complexity of her conditions it was very likely that her illness would be of a long-standing nature. He recommended that dementia or other organic causes for her cognitive issues should be ruled out. He again supported any consideration to exempt the Applicant from a formal citizenship test but did not directly address the matters in s 21(3)(d) of the Act.  

    Evidence of psychologist, Mr Andres Otero Forero

17. There is a report before me, from Mr Andres Otero Forero, Psychologist – Clinical Educator, of Queensland Transcultural Mental Health, dated 13 July 2021.[9] He has a Master’s degree in Psychology specialising in Sports and Exercise. He does not have a practice endorsement in any area,[10] however he has been working in the Transcultural Mental Health service since at least 2014 as that was the year when he first encountered the Applicant through that service. He therefore has several years of relevant experience.

    [9]     Exhibit 6, Report of Andres Otero Forero, psychologist dated 13 July 2021.

    [10]    Exhibit 8, Screenshot of the Australian Health Practitioner Regulation Agency – Register of Practitioners retrieved 14 July 2021; Transcript, page 8.

18. Mr Otero Forero said that he has known the Applicant since 2014 and seen her intermittently since then. Since May 2020, when she was referred to the service by her GP, he has followed her more closely. He described the Applicant as presenting with long-standing depressive symptomatology and said that she has constantly scored low on the “Patient Health Questionnaire-9” which is consistent with the longitudinal assessment of her mental status. He said she has shown minimal response to antidepressant medication as well as cognitive-behavioural therapy. He opined that her symptoms are perpetuated by stressors related to her citizenship status, limited supports external to her home, and her physical health. He opined that her depression with comorbid PTSD was linked to “profound mental, physical, occupational, and functional impairment”. He said it was well-established that survivors of torture and trauma have a higher prevalence of impairment in cognitive functioning.

19. Mr Otero Forero administered the Rowland Universal Dementia Assessment Scale (“RUDAS”): A Multicultural Cognitive Assessment Scale. He described the RUDAS as a short cognitive screening instrument designed to minimise the effects of cultural learning and language diversity on the assessment of baseline cognitive performance. The test is made up of six facets that each focus on a different aspect of cognitive function.[11] The test included the following tasks:

    ·the Applicant was asked to memorise five grocery items as though she was going shopping. After five minutes, she was asked which ones she remembered. She remembered two, scoring two points out of five;

    ·the Applicant was asked to identify and show different parts of her body, e.g. “with your left hand touch your right ear”. She scored five points out of five;

    ·the Applicant was asked to execute a series of motions, e.g. “one hand in fist, the other palm down on table, alternating simultaneously by initially copying me”. She scored zero indicating that she was unable to perform the task;

    ·the Applicant was shown a drawing of a cube and asked to draw one herself. She scored zero out of three indicating that she was unable to perform the task;

    ·the Applicant was asked to describe what she would do to get across a busy street without a pedestrian crossing or traffic lights. She scored one out of four; and

    ·the Applicant was asked to name as many animals as she could in one minute, with one point for each animal. She scored six out of eight.

    [11]    Transcript, page 14, lines 25 to 30.

20. The test typically takes 10 minutes to complete. It took the Applicant 45 minutes. Any score of 22 or less should be considered to indicate a possible cognitive impairment. The Applicant scored 14.

21. Mr Otero Forero opined that the Applicant’s cognitive impairment was partly due to her emotional experience of psychological trauma at an early age. He said the Applicant showed deficits in memory, attention, planning and problem-solving. He added that the Applicant would have difficulty studying for the citizenship test and would require support beyond translating. He said traditional Western-style psychotherapy, which is heavily based on cognitions, is unlikely to be of any benefit to the Applicant. He recommended exploring alternative forms like community group support but added that the long-term impact on complex presentations such as the Applicant’s is unknown.

22. Mr Otero Forero did not specifically address whether the Applicant’s cognitive impairment was permanent and enduring, although he indicated that her psychological symptoms fluctuated. Nor did he explain how her cognitive impairment would have resulted in her satisfying any of the limbs in s 21(3)(d) of the Act. 

23. Mr Otero Forero gave evidence in the hearing, clarifying and expanding on his report. He said the Transcultural Mental Health service provides only short term intervention and he has seen the Applicant around six times in total.[12]

    [12]    Transcript, page 9, lines 7 to 18.

24. Mr Otero Forero said before he administered the RUDAS, he had attempted to administer a Test of Nonverbal Intelligence called the “TONI-4”, but he could not get past the instruction stage with the Applicant. He said this could have meant the Applicant has a lot of cognitive impairment or that the test was not valid.[13] I took “not valid” to mean, in the context of the rest of his evidence, “not appropriate for the Applicant”, as he talked about cultural and language factors potentially influencing the utility of some tests of cognitive function. In relation to the Applicant’s apparently good score on the sixth facet of the RUDAS (naming animals), he pointed out that she only managed to name six animals in one minute, adding “if I ask you, you know, the names of eight animals, you probably take 10 seconds”.[14]

    [13]    Transcript, page 13, lines 20 to 25.

    [14]    Transcript, page 13, lines 35 to 43.

1. With respect to Mr Otero Forero’s recommendation that the Applicant try group therapy, he said traditional cognitive therapy is more adapted towards middle-class, educated people in the Western world. For the Applicant, who has difficulties with concentration and attention, it is hard for her to engage in that kind of therapy. He said group therapy may benefit the Applicant because she comes from a collective society. Group therapy for her might involve things like a group of women just talking, cooking, walking around or doing some sort of group activity without the focus on talking formally with a stranger about thoughts, feelings and behaviours.[15]

   [15]    Transcript, page 10.

2. Mr Otero Forero was asked what he thought the stressors for the Applicant were in relation to her citizenship application. He replied that she gets stressed about having to sit the test because she will not be able to do it, and she is stressed because she may not be able to get a passport from Afghanistan and she wants to travel to France to see her son. He said:

   “when she thinks about the citizenship test she thinks about meeting with family that are overseas, which is a very important goal for her.  And not being able to travel, it kind of - really that is her main concern.”[16]

   [16]    Transcript, page 12, lines 23 to 44.

   The Application of the Policy

3. The expert evidence falls short in its content of the recommended evidential standards in the Policy because it does not directly address the matters in s 21(3)(d) of the Act and because Mr Otero Forero does not have a practice endorsement in a relevant area. It is no small thing to grant someone an exemption from having to pass the citizenship test, so I should require strong, credible evidence in order the reach the requisite state of satisfaction under s 21(3)(d). The Policy provides guidance in that regard. However, it is only guidance. My task is to apply the legislation. That is, I am to determine whether I am satisfied that the requirements of any of the limbs in s 21(3)(d) of the Act are met. If adhering to the Policy would result in cogent evidence being disregarded or given insufficient weight because it does not meet the standard in the Policy, thus constraining my decision-making function, then I should not apply the Policy. This is another way of expressing the well-known principle enunciated in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[17] that decision-makers should apply executive policies unless there are cogent reasons not to do so. The Policy itself recognises that where it states that it should not be applied inflexibly.

   [17] (1979) 2 ALD 634 at [640] per Brennan J.

4. There may be situations when an expert report that does not directly address the matters in s 21(3)(d) of the Act nevertheless contains sufficient information for sound inferences to be drawn about those matters. Further, it may be that reliable evidence about those matters is found in sources not endorsed by the Policy such as longitudinal clinical notes or the testimony of lay witnesses. It may be that the totality of evidence properly supports a finding that one or more of the limbs in s 21(3)(d) of the Act is satisfied. I have before me longitudinal clinical notes and I have the benefit of the oral evidence given by the Applicant and her son. This evidence warrants consideration.

   Clinical notes from the Elizabeth Street Medical Centre[18]

   [18]    Exhibit 2, Supplementary section 37 T documents, ST18 pages 28 to 94.

5. The Applicant attended the Elizabeth Street Medical Centre on numerous occasions between 2013 and 2020. She presented with numerous medical complaints and also sought assistance to obtain various government benefits. I have included below some notes that relate to the latter and to the Applicant’s efforts to learn English:  

6. In September 2013, two months after arriving in Australia, the Applicant wanted to apply for the disability support pension. In October 2013, a doctor noted that the Applicant was “angry that she has been cut off by Centrelink saying that she has all these medical problems and demanding that I give her a year off”. The doctor noted that she was not prepared to fill out a pension form when she had never seen the Applicant before, and that the Applicant already had a certificate that was valid to January 2014 for Centrelink, but the Applicant did not seem to accept that.

7. Also in October 2013, Dr Susan Heijm (the Applicant’s GP) noted that the Applicant had said that Centrelink was asking her to study, but she could not because of aches and pains. In November 2013, Dr Heijm noted that the Applicant had brought in a Disability Support Pension Medical Report, she was “now studying English”, and that she had been contacted by Multicultural Mental Health and had told them she did not have a mental illness as she was feeling a lot better. The following day, Dr Heijm noted that the Applicant had said her case manager was arranging a tutor to come to the house.

8. In January 2014, Dr Heijm noted “form completed for Housing Dept”, and later that month, she noted that Centrelink had not accepted the Applicant’s application for disability allowance.

9. In February 2014, Dr Heijm noted that the Applicant had a form for the spectacle subsidy scheme to take to an optometrist.

10. In March 2014, Dr Heijm recorded that Centrelink had again declined the Applicant’s application for disability allowance, and that another form was completed for housing assistance.

11. On 5 August 2014, Dr Heijm noted that the Applicant was required to attend Jobseeker every two weeks and that she was unable to look for work. The other option was to go to English classes. She noted that the Applicant “Won’t see males – also won’t go in a car with a male”.

12. In September 2014, Dr Heijm noted that the Applicant’s Centrelink payments had been cut off again, and that a person who had been helping the Applicant had phoned Centrelink and also spoken to a teacher from Milperra (being the language school) saying that the Applicant was unsuitable because she missed classes and her “mind was not there”.

13. In February 2015, Dr Heijm reported that the Applicant needed a letter for her son to get an exemption from having to complete the required “100-hour course” to get his license.

14. in May 2015, Dr Heijm reported that the Applicant’s case worker had arranged for public housing and that:

    “Young Carers paid for removalist, gardening, new curtains, uniforms, school fees, drivers licence

    also attended foodbank at Acacia Ridge”

    and that the Applicant:

    “also wants to be driven around everywhere

    she wants more money

    she is generally dissatisfied with everything

    didn’t continue to attend TAFE & was taken off the books

    found fault with the food at foodbank

    wasn’t happy with the carpet & curtains in her new house & wanted things replaced”.

15. In June 2015, Dr Heijm reported that the Applicant had moved to a new house two to three months ago which was better but a long way from the TAFE and she did not continue to attend due to transport problems. She said the Applicant was again attempting to get disability pension.

16. In July 2015, Dr Heijm reported that the Applicant:

    “has new glasses – says they are no good – reading glasses – she wants other glasses called optometrist – explained her distance vision is not sufficiently severe to qualify for free glasses has been to World Wellness Centre to see a psychologist and psychiatrist during school holidays but not since – son drives her”

17. In January 2016, Dr Heijm reported that the Applicant “claims she is 64 years old – long discussion – explained it is not possible to get her date of birth changed”. According to her citizenship application form and her medical records, the Applicant was born on 1 January 1968,[19] which is consistent with her being of child-bearing age when she had her four children between 1991 and 1999.[20] Accordingly, in January 2016, she was 48 years old. It is not apparent why the Applicant told Dr Heijm she was 64 years old and whether it was related to claiming some sort of benefit or exemption. In the hearing I asked her if she recalled saying she was 64 and she said she could not.  

    [19]    It is likely that the Australian Government has treated the Applicant as having been born on 1 January because she did not know, or could not prove, her exact date of birth as that is common practice.  

    [20]    Exhibit 1, Section 37 T documents, T4, page 22.

18. In May 2016, Dr Heijm reported that another GP had applied for a disability pension for the Applicant.

19. In July 2017, Dr Heijm reported that the Applicant

    “needs a letter for housing – problem is the bathroom is unsuitable – has trouble getting into the bath daughters share a room & they fight

    3 bedroom house”.

20. In October 2017, Dr Heijm noted that:

    “…Dr Tran Mater psychiatrist – Refugee Complex Care Clinic – has been having sessions at New Access – ? unable to continue – If so I am advised to refer her to a psychologist…”

    and:

    “wants a letter to explain why she can’t answer questions for the citizenship test”.

21. In November 2017, Dr Heijm noted “wants a letter for eldest son (Liaquat Mir) to immigrate to Australia from France”.

22. In February 2018, Dr Heijm noted:

    “case manager at MDA working with lawyer to get son a permanent visa

    feeling down – depressed

    son in Paris

    Pushtu telephone interpreter requested talking about atrocities in Afghanistan today – Taliban – beheadings, bombings, hospital blown up

    2 brothers were hiding from Taliban – went to Pakistan – had to go back – not safe in Afghanistan – he has had a lot of anxiety & been to India for treatment

    Asking for letter from the doctor – needs 35 points – I have a lot of illnesses & I am going to die – would like me to add haemorrhoids & asthma to her list of conditions

    Talking about the housing problem – explained I have written the letter”

23. In May 2018, Dr Heijm noted that the Applicant was:

    “requesting letter to Housing Dept re house is too old & has lots of snakes, bath is slippery.

    asking for Centrelink to pay her more money as she has bills for medicine & cannot afford a special diet – explained not possible to alter payments”.

24. On 22 June 2018, Dr Heijm wrote “wants a letter of support for son to come here”.

25. On 27 June 2018, a nurse reported:

    “lengthy consult, difficult to keep her on track. Vague answers. Clearly needs more mental health assistance – ? psychology input. MH seems to rule her health outlook and poor self-management. Clearly needs to improve self-management of health, but just moans and lies around…”.

26. I have not included entries after this date as they do not relate to the Applicant’s physical and mental health at the time of her application.

    Queensland Government Health Records

27. In August 2013, the Applicant was assessed by the Darling Downs Hospital and Health Service at the Refugee Health Assessment Clinic by a nurse.[21] The only chronic disease identified in the assessment was diabetes. Furthermore, no mental health or specialist referral was made as a result of this assessment.

    [21]    Exhibit 2, Supplementary Section 37 T documents, ST16.

28. In July, August and October 2014, following referrals from Dr Heijm, the Applicant was examined by a rheumatologist, a cardiologist and a gastroenterologist.

29. The rheumatologist, Dr Martin Devereaux, provided a report dated 7 August 2014 [22] in which he said, under the heading “Social History”:

    “She is apparently on unemployment benefits through Centrelink and has been advised to seek work, but feels that her medical condition prevents her from finding any employment. She does not speak English and has also been advised to go to TAFE, but she feels she is unable to attend due to her medical problems.”

    and concluded that:

    “I do not consider that there was any evidence for an inflammatory arthritis. Her elevated ESR [erythrocyte sedimentation rate] is probably due to her underlying metabolic syndrome. I did feel that she would benefit from a program of physiotherapy and increasing her mobility. Perhaps this could be organised through a health care plan. She does need psychology (sic) assistance to work through problems. I am uncertain whether there is an Afghan refugee social worker who could help assist in her own language. I did explain that weight reduction would help with her lower lib (sic) joint problems and mobility. I have suggested that she returned to you and I would not regard her as being totally and completely unemployable.”

    [22] Exhibit 4, Applicant’s Bundle of Medical Evidence.

30. The Cardiology Department at the QEII hospital reported, on 19 August 2014, that:

    “It is quite difficult to separate this chest pain from her other problems. She is complaining of joint pain all over her body in particular arms, legs and back.

    …

    She does have multiple risk factors for cardiac disease include (sic) being overweight, high cholesterol, impaired glucose tolerance and hypertension. She had a normal ECG today and her echo in October 2013 shows some mild LVH and possibly some impaired diastolic function but no regional wall motion abnormalities.”[23]

    [23]    Exhibit 4, Applicant’s Bundle of Medical Evidence.

31. On 15 October 2014, a gastroenterologist, Dr Sunny Lee, reported that the Applicant had attended with her community support officer and a Pashto interpreter. He said it had been somewhat difficult to elicit the Applicant’s specific symptoms and his report included that:

    “The main issue does appear to be very poorly-defined abdominal pain. It is very unspecific in nature and at times can be positional… Her weight has actually gradually been increasing over the past few years.

    …

    On examination today [the Applicant] appeared reasonably well.

    …

    I think her obesity is the main cause of a lot of her discomfort.”[24]

    [24]    Exhibit 4, Applicant’s Bundle of Medical Evidence.

32. There are some records from around the time of the application.[25] They indicate that on 31 January 2018, the Applicant was referred to the Mental Health service because of suicidal ideation. In an assessment on 1 February 2018 the Applicant presented as:

    “agitated, demanding, irritable, developed superficial rapport, engaged superficially with review and was behaviourally was (sic) loud, demanding, difficult to redirect and entitled”.

    [25]      Exhibit 2, Supplementary Section 37 T Documents, ST17.

33. It was further noted:

    “thought content is largely reality-based, normal stream of consciousness, nil psychotic Sx reported or evidenced. Expressing themes of hopelessness, helplessness and despair, would not answer direct questions about current suicidal ideation, plan or intent, simply repeatedly stated is fed up, not wanting to live. Insight poor. Judgement poor. Not taking AD medication appropriately, can’t get out to fill scripts. Children not helpful with chores, requires services to assist with daily functioning and chronic disease management.”

34. The Applicant was recommended for a psychiatric assessment to review her medications.

35. On 9 February 2018, a psychologist recommended a mental health care plan. The notes in relation to that recommendation included a history of trauma including an abusive husband and in-laws and the Applicant having witnessed atrocities in Afghanistan, along with current problems including chaotic family relationships and separation from her youngest[26] child. It was noted that her psychiatric history included long-term issues with anxiety/stress/low mood. There was said to be a high level of conflict in the household, and that her eldest[27] son “acts very proactively and helps out where he can”. Notes about her history included that she was married at age 18, had her first child at age 20, had her fourth child at age 28, that her husband disappeared at age 28, that she spent many years as a refugee and that she came to Australia at age 41.

    [26]      This appears to be a mistake as her youngest child is in Australia. Her older son is overseas: see Exhibit 1  Section 37 T documents, T4, page 20.

    [27]      This appears to be a mistake - see previous footnote.

36. In that assessment, the Applicant was described as having engaged well, given substantial answers to most questions, and been “very proactive in trying to recruit help for various things such as trying to get a new home from housing commission due to snakes in area”. She was described as “engaged, polite and forth coming (sic) with information” and “oriented to time person and place (sic), some mild memory issues reported”. The notes include that there was a high level of conflict in the household. She was diagnosed with “PTSD, secondary low mood, complicated by family conflict, chronic pain and mobility issues”.

37. On 23 July 2018 the Applicant presented to the Princess Alexandra Hospital Emergency Department. The presenting problem was noted as “Unsettled” and the diagnosis was “Acute reaction to stress”. The notes include that the Applicant presented after an episode of not speaking and hyperventilation having received some stressful news. She had some tests including a CT scan which was normal, and she was discharged into the care of her family.[28]

    [28]    Exhibit 4, Applicant’s Bundle of Medical Evidence.

38. There are some records indicating that there was some investigation into the Applicant’s heart in late 2018 and no abnormality was found.[29]

    [29]    Exhibit 4. Applicant’s Bundle of Medical Evidence.

39. On 17 January 2019 the Princess Alexandra Hospital Department of Gastroenterology & Hepatology conducted further investigations and concluded that the Applicant’s long-standing symptoms were most consistent with “functional dyspepsia”. The report stated:

    “[The Applicant] reports strong dietary associations with her symptoms with cold liquids and foods in particular triggering her symptoms and her GI as well as rheumatological and general well-being improving with warm soup and ginger supplementation. She has a lot of psychosocial stressors and family tension and in fact after the phone interpreter disconnected her daughter asked if the doctors are able to intervene and speak to her sons as there is a lot of family tension and she felt that a medical doctor asking the sons to be kinder to her mother and stop questioning her medical ailments would alleviate the situation.

    …

    With regards to managing her functional dyspepsia aside from optimising her mental health and anxiety levels, dietary management will be the mainstay with small regular meals and avoiding trigger foods such as cold liquids or foods.”[30]

    (Emphasis in original)

    [30]    Exhibit 4, Applicant’s Bundle of Medical Evidence.

40. While these investigations occurred around a year after the application, the findings are relevant as they relate to long-standing symptoms and causative factors. 

41. A progress note signed on 3 June 2020 by Mr Otero Forero[31] stated that the Applicant had been referred by Dr Heijm for a psychiatric opinion and continuing management. The note states:

    “[The Applicant] has been kncoked (sic) back for her citizenship application. [the Applicant] requires an interpreter (Pashto), and has poor understanding of the Australian culture as reported by GP.

    [The Applicant] only went to school to grade 4 in Pakistan, as an adult.

    History of PTSD. Ongoing family conflicts.

    Multiple physical chronic conditions.”

    [31]    Exhibit 2, Supplementary Section 37 T Documents, ST17, page 27.

    Evidence of Dr Sue Heijm, General Practitioner, Elizabeth Street Medical Centre

42. There are three letters from Dr Heijm before me.

43. The first letter dated 27 October 2017[32], said “Thank you for seeing Ms Badri Jamala Samad for her citizenship application”. It said the Applicant was not able to learn English due to her chronic health problems, including: obesity, depression, disc degeneration, gastro-oesophageal reflux disease (“GORD”), hypertension, arthritis, diabetes, fibromyalgia and hyperlipidaemia. 

    [32]    Exhibit 1, Section 37 T documents, T4, page 37.

44. The second letter dated 2 May 2020[33], reported that, in addition to the above conditions, the Applicant suffered from asthma, haemorrhoids, menopause, irritable bowel syndrome and urinary incontinence. Dr Heijm stated that the Applicant:

    “…has limited ability to comprehend, concentrate and remember new advice and information. She has done the round of specialists and psychologists in her years in Australia.

    …

    She did not understand what she was applying for or the reasons for the application. She was not capable of demonstrating an adequate knowledge of Australia or her responsibilities of citizenship due to her limited understanding of English and isolation from the wider community”.

    [33]    Exhibit 1, Section 37 T documents, T8, page 49.

1. The third letter, dated 8 August 2020,[34] reported that “the Applicant has a permanent state of chronic ill health both mental and physical” and she:

   “…has virtually no English after living here for 7 years…She cannot travel alone in the community except by walking…She does not learn easily. She does not listen to advice. She does not understand what she is told. She is not likely to have the capacity to undertake the test for citizenship, or any other test. She cannot read or write in any language, including her own. She cannot use a computer. She is not able to learn, and this is a life long problem…Her condition is not temporary.”

   [34]    Exhibit 1, Section 37 T documents, T2, page 12.

2. Although Dr Heijm said the Applicant “has a permanent state of chronic ill health both mental and physical” and that her “condition is not temporary”, the report did not identify how those conclusions had been reached and did not identify precisely which conditions were not temporary. Nor did the letter detail the nature of treatment, if any, attempted by the Applicant in relation to her conditions.

3. While Dr Heijm opined that the Applicant was not capable of demonstrating an adequate knowledge of Australia or the responsibilities of citizenship due to her limited understanding of English and isolation from the wider community, she did not explain how she thought  those factors were linked to the Applicant’s physical and/or mental impairments. Nor did Dr Heijm indicate the basis for her opinion that the Applicant is not able to learn. She did not refer to any formal cognitive or psychometric testing. 

   Evidence of the Applicant and her son in the hearing

4. The Applicant gave the following evidence (through an interpreter) in narrative form in her evidence in chief as she was not legally represented:

   “I am a broken heart person. I have no brain in my skull, and I am suffering from a lot of illness. If I would tell you, I would say I have got 21 illness. I’m taking way too much medication. And I’m suffering from this problem – from these illnesses. The Centrelink payment that I’m getting – that benefit is spend most of the money on my medication, because I’m taking too many medications. I am suffering a lot. Please tell them that I would love to have a better life, I would love to have a better lifestyle. I was wishing to speak English. I was thinking that I would be able to drive a car. And I can work. That was my wishes…Myself then suffering from this back pain. The backbone is gone, and I am just lying down on my bed…When I was…young my uncle have torture me, and they take me – they bump the big entry door on me. And I am suffering since then with my head

   …

   I have very tough life with my children. I have attempted two occasions to do the suicide…”[35]

   [35]    Transcript, page 16, line 36 to page 17, line 20.

5. In the rest of her evidence, she spoke about ill-treatment in Afghanistan and physical ailments such as feeling sick and having back pain.

6. Given the evidence in Dr Cabral’s report about the Applicant’s desire to see her son overseas, I asked her how she would be able to travel overseas. She said her other son or her daughter would go with her and the “airline people” would help with a wheelchair.[36] She added that she has brothers in London and a sister in Germany and they were always telling her that if she makes a trip she should see them “and that would be another kind of holiday, or you can change the place, that will help you psychologically. It will help you. They also offer that one to me.”[37] She then said that her mother is extremely sick, seeing her would give her some peace, and “If I had this citizenship I would able to travel and see my mother”.[38] The Applicant’s citizenship application indicated that her mother lived in Afghanistan[39] and there is no evidence that she has relocated since the form was completed.  

   [36]    Transcript, page 18, lines 36 to 42.

   [37]    Transcript, page 18, line 46 to page 19, line 3.

   [38]    Transcript, page 19, line 6 to 14.

   [39]    Exhibit 1, Section 37 T documents, T4, page 22.

7. When asked why she wanted to become an Australian citizen, the Applicant said:

   “My children and myself are safe in this country. They have studied in the country and they are living in this country. Where else I can go live?...this country, it’s safe for me and I want to be a citizen of this country. So in a way my children are safe from the enemies we have – they are safe from the other people.”[40]

   [40]    Transcript, page 20, lines 11 to 15.

8. I asked the Applicant some questions about her efforts to obtain various benefits over the years. When asked how she got Centrelink payments, she said her case officer took her to Centrelink. When asked “What do you know about Centrelink? Why do you get paid by Centrelink?”, she said “What I understand is Centrelink is the place where people get paid. It’s the government”. When asked “Get paid for what?”, she said “They pay people to spend the money for their expenses”.[41]

   [41]    Transcript, pages 23.

9. When asked if she remembered getting her GP to help her ask the Department of Housing for a house, she said she remembered and that her GP had helped her to fill in all the paperwork. She said she was given a “tiny little house” and pointed to some other things she did not like about it. When asked about her attempt to get an exemption for her son in relation to obtaining a driving license, she said she could not recall that. Nor could she recall asking for eyeglasses or telling her doctor that she was 64 years old.[42]

   [42]    Transcript, pages 23 to 24.

10. The Applicant had access to 510 hours of English language training at no cost through the Adult Migration English Program. She attended 42.1 hours.[43] When asked if she would make another attempt to learn English, she said that when she looks down, she feels pain in her eyes and her hands shake. She said she cannot remember things in her own language and that English is another difficult language for her to learn. She said when she arrived new to the country, she was attending three or four English classes (presumably per week) but she could not sit on the chair. When asked if she could learn at home using a computer or an iPad, she said because of her medical conditions she could not focus. She said she could not hold the phone that she was using in order to participate in the hearing and she was swapping it from one hand to the other because of the severe pain and her hands shaking, but she would love to learn English.

    [43]    Exhibit 2, Supplementary Section 37 T documents, ST14, page 12.

11. The Applicant was asked if she had tried to learn English at home on a computer or an iPad at the time she applied for citizenship. She said:

    “I always try and I always wish to learn English. Even though someone was coming to my home to support me to learn the English but I always having difficulties learning and focusing because of my mental situation, putting my concentration away. I cannot focus or I cannot look down and that gives me headache. I always – that takes my anxiety and my other worries, it takes me away from focusing study. I always attempt but I’m always having those illness throughout my life. When I look at something down or I look at something…my sinus area is painful. My right shoulder is swollen. It is extremely painful. That also triggered to my arms and I cannot move arms due to the swelling. My arm is extremely painful as it is broken or there is a fracture there. It is extremely painful.”[44]

    [44]    Transcript, page 21, line 25 to page 22, line 44.

12. The Applicant agreed that her mental and physical condition have worsened in the past year.[45] Accordingly, her current condition is not representative of her condition when she applied for citizenship.

    [45]    Transcript, page 20, lines 20 to 45.

13. The Applicant said she had not started group therapy, but when she feels a bit better, she will, and that transport is also a problem for her.[46]

    [46]    Transcript, page 21, lines 15 to 24.

14. My overall impression of the Applicant in the hearing was that, while she appeared to understand some English words and phrases, she could not communicate in English and she had some difficulty giving responsive answers and understanding what was relevant in the proceedings.  

15. The Applicant’s younger son, Mr Mir, is 25 years old. He submitted her citizenship application for her[47] and he obtained some medical and psychological evidence for these proceedings. He also gave evidence.

    [47]    Transcript, page 20, lines 5 to 7.

16. He said the Applicant had health and psychological problems linked to trauma from her past.[48] According to him, she got worse each year and there were times when she had pain all over her body or in a specific part of her body. She would be taken to hospital and she would have “all sorts of tests and scans and they…were not able to find anything”. He said that happened on many occasions.

    [48]    Transcript, page 30.

17. Mr Mir said that in around 2014 or 2015 the Applicant was diagnosed with fibromyalgia and the doctor said she would not get better. He said she is supposed to take pain medication but it does not help.[49] Because of her diabetes, she could not read or see things properly – an optometrist had said that.[50] He said the Applicant takes up to 15 different types of medication and she does not remember the names of them so “we” (her children) have to give her medications to her.

    [49]    Transcript, page 31, lines 1 to 21.

    [50]    Transcript, page 31, lines 35 to 46

18. Mr Mir said there were tutors coming to the home to assist the Applicant to learn English but “my mum wasn’t able to learn anything at all”.[51]

    [51]    Transcript page 32, line 24 to 25.

19. When asked if the Applicant had told him why she wants to be a citizen of Australia, Mr Mir said she does not fully understand so he has to explain it to her.[52] However, when he was asked if the Applicant was upset about not being a citizen, he said yes because it means she cannot travel to see his brother, explaining that the Department of Immigration has refused to grant his brother a visa.[53]

    [52]    Transcript, page 33, lines 33 to 39.

    [53]    Transcript, page 34, lines 1 to 5.

20. Mr Mir agreed that the Applicant’s mental health has declined in the past year.[54]

    CONSIDERATION

    [54]    Transcript, page 34, lines 9 to 16.

    Applicant’s capacity to understand the nature of the Application

21. While the Applicant’s son helped her with her application and he submitted it for her, that does not necessarily mean she did not understand the nature of it. Indeed, there is evidence in the records of the Elizabeth Street Medical Centre that, at the time the Applicant made her application, she knew she was applying for Australian citizenship and that she would have to sit a test unless she could get an exemption. I am not satisfied that this limb of

    
    

    s 21(3)(d) of the Act is satisfied.

    Applicant’s capacity to demonstrate a basic knowledge of the English language

22. It is not in dispute that the Applicant cannot speak basic English and that this was the case at the time she made her application. However, that alone does not mean she lacked the capacity to demonstrate a basic knowledge of English. I note that the Policy advises that illiteracy alone will not necessarily satisfy s 21(3)(d)(ii) of the Act.

23. There is evidence from Dr Cabral and Dr Heijm that the Applicant’s medical and mental health conditions impacted her capacity to engage in the learning process. Dr Heijm thought she was not capable of learning at all.  

24. I accept that the Applicant suffered from PTSD and depressive symptoms at the time of her application. There is evidence of historical head injuries and it is not known whether these resulted in brain damage although she had a clear CT scan in 2018. I accept that the Applicant’s results on the RUDAS in 2021 indicates markedly impaired cognitive functioning. The totality of the evidence indicates that her cognitive impairment is not a recent development, although her mental health has declined in the past year. I am satisfied that the Applicant suffered from impaired cognitive functioning at the time of the application.  

25. Dr Cabral reported that the Applicant dropped out of English classes because of concentration issues, depressive symptoms and multiple physical/mental comorbidities, and he later said she found it difficult to engage in the learning process because of those matters. However, he did not explain precisely how these factors impacted the Applicant’s ability to engage in classes or to absorb and remember information. Nor did he say that those factors made it impossible for the Applicant to learn English.

26. Dr Heijm did not state how the Applicant’s conditions meant she was unable to learn English as opposed to making the process inconvenient or challenging. It is significant that Dr Heijm also said that the Applicant did not understand what she was applying for and the reasons she was applying (for citizenship), but there is evidence that the Applicant did know those things, as this tends to undermine the accuracy of Dr Heijm’s assessment of the Applicant’s mental capacity.   

27. While the Applicant claimed that she had tried to learn English, the longitudinal evidence indicates that the Applicant did not want to attend classes. The Elizabeth Street Medical Centre records show that the Applicant initially started English classes because she was required to do so by Centrelink. Before she even started, she said she could not do it because of aches and pains and home tutoring was subsequently arranged. The Applicant then appears to have experienced a problem with her eyesight. Later, in August 2014, she was required by Centrelink to look for work or study English, but she would not see males or go in a car with a male. The following month her case worker said she was unsuitable for the language school because she missed classes and her “mind was not there”. She later would not attend TAFE after moving to a new house because it was too far away, given her health complaints. 

28. There is no evidence of the Applicant attempting to learn English after 2015. It is not apparent why the home tutoring did not continue or why whatever learning surface or materials the Applicant was required to look at were not placed at eye level.

29. The evidence about the Applicant’s physical ailments and their manifestations is nebulous.  Adding further confusion is that, while the Applicant considered that her physical conditions precluded her from attending local English classes, she thinks she will be able to travel overseas, including it seems to Afghanistan. 

30. It appears that learning English was inconvenient and difficult rather than impossible. It may be that the Applicant’s lack of interest or her defeatist attitude was a function of her mental impairment, especially her depression, such that she really was not capable of engaging in the learning process. However, there is not any direct expert evidence of that, and I am not prepared to draw such an inference on the evidence that is before me. I am not satisfied that the Applicant was not capable of demonstrating a basic knowledge of English at the time of the application.

    Applicant’s capacity to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship

31. As the Applicant’s GP, Dr Heijm has had many interactions with her over the years including the period when she made her application for citizenship. Dr Heijm said the Applicant was not capable of demonstrating an adequate knowledge of Australia or the responsibilities of citizenship due to her limited understanding of English and isolation from the wider community. I have already addressed the shortcomings in Dr Heijm’s evidence about this issue.

32. Further, there is some evidence that tends to suggest that the Applicant did have the ability to learn certain things about Australia. For example, she agitated to get a disability support pension because she wanted that income support payment rather than Jobseeker, and in the hearing, she demonstrated a basic understanding of Centrelink. She knew Australian citizenship would give her the ability to travel on an Australian passport. On 9 February 2018, a few weeks after the Applicant’s application was lodged, she was described as being “very proactive in trying to recruit help for various things” which suggests knowledge of some of the assistance that could have been available to her in Australia.

33. The Applicant’s ability to learn some things about Australia suggests that she had some capacity to learn other things about Australia, although the extent to which she was capable of learning, and whether she was capable of demonstrating adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at the time of her application, is unclear. As the evidence before me does not strongly indicate that the Applicant was not capable of demonstrating adequate knowledge, I am not satisfied that limb (iii) of s 21(3)(d) of the Act is satisfied. 

    Permanent or Enduring Incapacity

34. I would add that the legislation requires the impairment that causes the relevant incapacity in s 21(3)(d) of the Act to be permanent or enduring. There is strong evidence that the Applicant’s PTSD and depression are longstanding and unlikely to resolve. However, it seems implicit in the word “impairment” that it is the manifestation of the psychological conditions, not the mere existence of the conditions, that is relevant. The Applicant’s symptoms fluctuate, worsening under stress and when the Applicant does not take her medication. The Applicant gave evidence that when she was “a little better” she was “going out with family, hanging around with a lot of Afghan [families]”[55], which indicates that there was a time, or there were times, when she was mobile and able to engage with others. When I asked her when she was doing that, she quickly reverted to her complaints about her current physical condition.

    [55]    Transcript, page 17, line 48 to page 18, line 14.

35. The Applicant has not consistently engaged in mental health treatment and it was noted in February 2018, just after the application was lodged, that she had not been taking her anti-depressant medication. Mr Otero Forero thought typical cognitive therapy was not suitable for the Applicant but group therapy might bring some improvement. The Applicant is yet to try that. Given the fluctuating nature of the Applicant’s mental health conditions and the fact that treatment options had not been exhausted at the time of the application, it is not possible, on the evidence before me, to identify in any way that is meaningful for the purpose of s 21(3)(d), a permanent or enduring mental impairment that existed at the time of the application.  

36. With respect to the Applicant’s physical ailments, the expert evidence from the rheumatologist, cardiologist and gastroenterologist in 2014 was to the effect that much of the Applicant’s pain and discomfort was probably due to her diet and obesity. The evidence from the Elizabeth Street Medical Centre indicated that between May 2014 and May 2018, the Applicant’s weight increased from around 88.5kg to 90.5kg and her BMI (Body Mass Index) increased from 41 to 41.9,[56] indicating that she remained obese. In 2019, the Princess Alexandra Hospital Department of Gastroenterology & Hepatology concluded that there was a strong association between the Applicant’s diet and her longstanding physical symptoms including her rheumatological symptoms. Accordingly, some of her physical ailments can be treated with diet. Some of the Applicant’s conditions, such as fibromyalgia, are permanent however there is no evidence before me that they are untreatable such that the symptoms cannot be alleviated to some extent. There is not sufficient evidence for me to identify the nature and extent of any permanent or enduring physical impairment at the time of the application.      

    [56]    Exhibit 2, Supplementary Section 37 T documents, ST18, pages 45 and 80.

    CONCLUSION

1. The Applicant undoubtedly has physical, cognitive and psychological difficulties. It may well be that she, in fact, satisfies one or more of the criteria in s 21(3)(d) of the Act. However, there is not sufficient evidence before me that she does. In saying that, I do not mean any criticism of the Applicant’s son who went to a lot of effort to obtain medical and psychiatric evidence and was met with some resistance. It is open to the Applicant to make a fresh application supported by contemporaneous evidence that adequately addresses the statutory criteria at a later date.   

2. The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member R Bellamy

..........................[SGD]..............................................

Associate

Dated: 9 August 2021

Date(s) of hearing:

14 July 2021

Applicant:

By telephone

Solicitors for the Respondent:

Mr Samuel Cummings

Sparke Helmore

ANNEXURE 1 – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 37 T-Documents (T1 to T12 page 1 to 86)	R	-	6 October 2020
2	Supplementary Section 37 T Documents (ST13 to ST18 pages 1 to 94)	R	-	28 May 2021
3	Respondent’s Statement of Facts, Issues and Contentions (11 pages)	R	28 May 2021	28 May 2021
4	Applicant’s Bundle of Medical Evidence (41 pages)	A	-	9 July 2021
5	Applicant’s List of Prescriptions for period 30 September 2013 to 10 May 2021 (5 pages)	A	-	9 July 2021
6	Report of Andres Otero-Forero, Psychologist	A	13 July 2021	13 July 2021
7	Report of Dr Sidney Cabral, Senior Psychiatrist	A	13 July 2021	13 July 2021
8	Screenshot of the Australian Health Practitioner Regulation Agency – Register of Practitioners	R	14 July 2021	14 July 2021