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

[2021] AATA 2883

Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2883 (3 August 2021)

Division:GENERAL DIVISION

File Number(s):      2019/7938

Re:Kaniz Raza Shah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:3 August 2021  

Date of written reasons:        13 August 2021

Place:Adelaide

For the reasons delivered orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the Tribunal is satisfied that, at the time of her citizenship application, the applicant met the eligibility criteria set out in s 21(3)(d) of the Australian Citizenship Act 2007 (Cth).

.............................[Sgnd]...........................................

Senior Member Dr N A Manetta

CITIZENSHIP – applicant refused citizenship – applicant has mental incapacity - whether incapacity was permanent or enduring at the time she made her application for citizenship under s 21(3)(d) of the Australian Citizenship Act 2007- whether “permanent or enduring physical or mental incapacity” is confined to an incapacity that cannot be alleviated by treatment – applicant has not sought treatment – applicant is unlikely to seek treatment in the future – incapacity considered to be permanent or enduring – decision set aside and new decision substituted that the applicant met the eligibility criteria in s 21(3)(d) at the time of application.  

Legislation

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Senior Member Dr N A Manetta

13 August 2021

1. After I delivered my oral decision, I received a request for written reasons. The following reasons are those I delivered orally with minor edits.

2. This is an application by Ms Kaniz Raza Shah seeking a review of a decision of the respondent’s delegate. The delegate refused Ms Shah’s citizenship application under the Australian Citizenship Act 2007 (the “Act”).  Ms Shah’s application was not further assessed because the delegate found that her alleged physical incapacity was not adequately substantiated by specialist evidence and was not sufficiently serious to excuse her from the statutory requirement by which a person must demonstrate a sufficient understanding of the nature of a citizenship application of and the privileges and responsibilities of citizenship and also demonstrate a sufficient command of basic English.

   CRITICAL QUESTION

3. The critical question before me ended up being whether Ms Shah has a permanent or enduring mental incapacity.  In addressing that question, I have conducted what is known as a de novo hearing on the merits. This means that hearing the matter afresh on the evidence adduced before me, I may set aside the decision under review notwithstanding the absence of any discernible error in the reasons of the delegate if that is the correct or preferable decision on the evidence before me; equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Ms Shah was represented at the hearing by her son Mr Shah; the respondent, by Mr Ellison. I acknowledge the assistance that I received from Mr Ellison and am grateful for the measured and reasonable way in which the respondent’s case was presented to the Tribunal by him.

   STATEMENT OF CONCLUSION 

4. I have decided to set aside the decision under review. I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

5. Ms Shah is 56 years of age and immediately before her arrival in Australia some years ago she lived in Afghanistan. The evidence before me suggests she had no formal education there, not even the religious education commonly offered to residents.  I understand Ms Shah holds a refugee visa entitling her to remain in Australia indefinitely.  She is married and has children in Australia, some of whom live in Melbourne as I understand the file material and one son, Mr Shah, who lives in Adelaide.

6. Ms Shah has very poor English. She is unable to speak or write in English at any level other than the most basic. The hearing before me was conducted with the aid of an interpreter in the Dari language, but she has no written Dari. 

7. Ms Shah does not work: she is in receipt of a disability support pension. She is, it would appear, almost entirely dependent on family members in her daily life. There is no doubt that Ms Shah has suffered some degree of physical incapacity in the past. These are referred to in the medical reports that were tendered by the applicant and in the T Documents (Exhibit R2 and Exhibit R3).

8. Ms Shah’s case before the Tribunal was that the various physical ailments from which she suffers cause severe pain and prevent her from engaging meaningfully in English-language courses and in courses about Australia and the rights, responsibilities, and duties accompanying citizenship. 

9. Ms Shah lodged her application for citizenship in April 2018.  She asked to be excused from the prerequisites concerning language, knowledge of Australia, and citizenship rights and responsibilities because of her incapacity, attributable to her physical ailments.  As I am giving my decision orally today, and as my decision has been reached by reference to a mental incapacity, I shall not detail these ailments.

   Dr Gunapu’s evidence

10. I note that prior to the hearing, the respondent arranged for Ms Shah’s mental state to be assessed by a psychiatrist, Dr Gunapu. He was called to give evidence before the Tribunal. Dr Gunapu prepared a report, dated 8 September 2020, which was in evidence before me (Exhibit R1).

11. I found Dr Gunapu to be a measured and credible expert. I accept his material expert conclusions of fact, expressed both in his report and in his oral evidence to the Tribunal.  I summarise what those material conclusions are. First, Ms Shah most likely suffered from depression of a mild nature from 2011 onwards. Secondly, the depression worsened and became moderate to severe in about 2016/2017, that is, before Ms Shah lodged her citizenship application. Thirdly, depression often amplifies the experience of pain, and Ms Shah’s depression has aggravated Ms Shah’s experience of pain from her physical ailments. Her psychomotor functioning has been substantially affected. Fourthly, Ms Shah would benefit from psychotherapy and an improvement in her overall psychomotor functioning could be expected within 9 months. Twelve psychotherapeutic sessions at least were recommended. Fifthly, Ms Shah understands the concept of citizenship to the extent that it involves living somewhere permanently, but she does not presently have the capacity to acquire basic English or basic knowledge in respect of the rights and responsibilities of Australian citizenship. However, Ms Shah would benefit from a therapeutic medicinal regime involving antidepressants and pain-modulators.  Sixthly, with appropriate treatment, Ms Shah could improve her functioning to a level where the acquisition of basic skills in language and knowledge of society and of citizenship rights and responsibilities would be within her capacity.

12. For this reason, Dr Gunapu concluded that the operative feature in Ms Shah’s incapacity at the present time is mental (that is, her incapacity results from her seriously depressed state rather than from her physical ailments).  I accept this conclusion.

    REASONS

13. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsections (2) to (8) specify eligibility requirements in seven different categories, each dealt with in a separate subsection. Subsection (2) requires, in paragraphs (d), (e) and (f), that an applicant must understand the nature of his or her application, possess a basic knowledge of English and have an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. There are other requirements in the subsection but these are the three that are relevant to the application before the Tribunal.

14. Subsection (3) sets out a different pathway and eligibility is more generously specified. Rather than having to demonstrate the three matters referred to in paragraphs (d), (e), and (f) of subsection (2), it is sufficient if at the time the person made his or her citizenship application, the applicant was incapable of understanding the nature of the application or was not capable of demonstrating a basic knowledge of the English language or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. There is a further requirement; namely, that the lack of capability in one or more of these regards must be referable to “a permanent or enduring physical or mental incapacity”: see s 21(3)(d).

15. I accept Dr Gunapu’s assessment that Ms Shah is not capable today of demonstrating a basic knowledge of the English language or of demonstrating an adequate knowledge of Australia or of the responsibilities and privileges of Australian citizenship. His examination was, however, conducted in 2020. His oral evidence to the Tribunal indicated that he believed the onset of Ms Shah’s severe depression occurred before her citizenship application was filed in 2018. I infer, and the contrary was not put to me by Mr Ellison, that what Dr Gunapu said in respect of the situation in 2020 also applies to Ms Shah’s situation at the time her citizenship application was made. It is not necessary for me to go this far given the terms of s 21(3)(d),[1] but I would also find that Ms Shah was not capable of understanding the application she made in 2018. I accept the finding of Dr Gunapu that Ms Shah understood that citizenship involved permanent residence but I think that even a basic understanding of the concept of citizenship extends beyond merely residential privileges. Moreover, it is not necessary to be a citizen in order to enjoy permanent rights of residence in Australia.  Dr Gunapu did not apparently explore the nature of citizenship further with Ms Shah. I think the legal criterion of “understanding the nature of the [citizenship] application” requires a deeper level of knowledge.  So, whilst I accept Dr Gunapu’s conclusion that Ms Shah seemed to understand the concept of citizenship at a superficial level in terms of living in a country permanently, I do not think this level of knowledge meets the statutory criterion.

    [1] Paragraph (d) specifies alternatives.

16. But the question that has proved critical in this case is whether or not the lack of capability that existed at the time of the citizenship application in respect of one or more of the three matters nominated in section 21(3)(d)(i), (ii), and (iii) is the result of a permanent or enduring mental incapacity.

17. Dr Gunapu believed, as I have said, that Ms Shah’s mental incapacity was of a temporary nature only, and was not permanent or enduring. It is often important to pay close attention to the context in which a conclusion is expressed so as to understand exactly what is meant. Dr Gunapu believed that Ms Shah’s mental incapacity was not of a permanent or enduring nature because it was more likely than not treatable within a relatively short period of time.  I accept that expert medical opinion.

18. The legal question, however, for the Tribunal− and, self-evidently, it is one for the Tribunal and not the medical expert−  is whether the statutory criterion of “permanent or enduring physical or mental incapacity” is confined to an incapacity that cannot be alleviated by treatment within a reasonable timeframe.  Mr Ellison submitted that it was.  I was not referred to binding authority on this question. 

19. I accept that in some contexts, one would not say that a person has a permanent or enduring physical or mental incapacity if that person could alleviate the incapacity by engaging in a therapeutic regime.  For example, a person who refuses reasonable treatment which could alleviate an incapacity might not be properly described as “permanently incapacitated” for the purposes of a statutory compensation scheme.

20. It seems to me, however, that the Australian Citizenship Act provides a very different context in which the concepts of “permanent” and “enduring” fall to be considered. The Act is not one that provides compensation or ongoing financial support to a disabled person: it specifies eligibility criteria for citizenship. I note in passing that demonstrating a basic knowledge of English and of the rules responsibilities and privileges of Australian citizenship does not figure in subsection (4), (5), (6), (7), or (8) as an eligibility criterion. It seems to me that when s 21(3)(d) refers to a “permanent or enduring physical or mental incapacity”, the sole question that needs to be answered is whether the incapacity is likely to be permanent or enduring for the particular person in question.  A person may for these purposes have an enduring incapacity where, for example, the person refuses to undertake reasonable treatment, as he or she is legally entitled to do, or where the person is simply unable to make a choice to seek treatment.  That is to say, in my opinion, the “permanent or enduring incapacity” referred to in s 21(3)(d) is concerned solely with a prognosis of recovery having regard to the likely decisions, reasonable or otherwise, taken by the unwell person with respect to future treatment or by others on his or her behalf.  It follows, in my opinion, that a person may have an enduring incapacity for the purposes of s 21(3)(d) even though his or her incapacity could be alleviated by therapeutic treatment.

21. Accordingly, I do not agree with the respondent’s construction of s 21(3)(d).  The critical question to my mind is whether Ms Shah was, at the time she made her citizenship application, likely at some future time to become less incapacitated. I accept that the question must be judged as at the time of the citizenship application; but in making that decision I am entitled, I believe, to have regard to the trajectory of Ms Shah’s incapacity in the years after her application for citizenship.  This will assist me to decide whether as a matter of fact I should be satisfied that she was suffering from an enduring incapacity at the time she made her citizenship application. 

22. In this regard, I have decided that I am satisfied that Ms Shah did have an enduring mental incapacity as at the time of her application. I would note in particular that Ms Shah is severely depressed, culturally isolated in Australia with very limited English, and more or less completely dependent on relatives to assist her with basic tasks.  She is today, and was at the time of her citizenship application, unable to engage meaningfully with medical professionals. She has never seen a psychiatrist for her underlying mental problems. Dr Gunapu’s medico-legal assessment was, apparently, the first evaluation of her psychological state.  Ms Shah indicated to the Tribunal that she could not even remember seeing Dr Gunapu last year and had no recall at all of ever having had the contents of his report explained to her.

23. I do not believe Ms Shah has ever taken an active decision to fail to seek appropriate medical treatment for her underlying psychological problems.  Rather, I believe her psychological problems, compounded as they are by her cultural isolation and poor education, are so severe that she will not receive appropriate mental health treatment unless someone assists her to take the first steps to engage with mental health services. At a practical level, this assistance could only come from a family member. On the evidence before me, however, the most likely family member to offer that assistance is her son, Mr Shah, who represented her at the hearing, and who speaks English fluently and commands her trust. Mr Shah no doubt has the best interests of his mother at heart.  Nevertheless, and whilst I appreciate he was not called to give evidence, I take into account Mr Shah’s strong disagreement (expressed in his submissions) with Dr Gunapu’s assessment: Mr Shah strongly disputed that his mother had a mental incapacity. That surprised me, I must say, given Dr Gunapu’s clear and reasonable evidence.  Moreover, I take into account the fact that Mr Shah has not apparently explained to his mother the contents of the medical report, including its therapeutic recommendations- at least not in a way that has allowed her to retain them.  As a result, I do not believe Mr Shah will act in the foreseeable future to assist his mother to obtain the treatment recommended by Dr Gunapu.

24. So far as Ms Shah’s application to this Tribunal is concerned, my conclusion is that it is most unlikely that Ms Shah will receive mental health services in the foreseeable future. Dr Gunapu was clear that Ms Shah’s mental health problems are unlikely to resolve by themselves without intervention. In my opinion, therefore, for an indefinite period of future time Ms Shah is likely to suffer the level of incapacity that she presently suffers because of an untreated mental health condition, namely severe depression.  In my opinion, that mental health condition can be said to be “enduring”.

25. It follows, in my opinion, that Ms Shah does have an enduring mental incapacity for the purposes of s 21(3)(d), and I find that she had this enduring condition at the time she made her citizenship application.  As I have said, I think it is reasonable to have regard to the trajectory of Ms Shah’s depression since she has made her citizenship application in deciding whether her incapacity was enduring at the time she made her citizenship application.  She has not sought help, and is unlikely to do so in the future, and her condition has not improved over the years.

26. I would also find− and this was not controversial− that Ms Shah was not capable at the time of making her application of demonstrating a basic knowledge of English and was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. It is not necessary for me to make a further finding in respect of Ms Shah’s capability of understanding the nature of the citizenship application she has made under subsection (1), but for the reasons already given (at [15] above) I do not believe she was capable of understanding the nature of her application at the time it was made.

    FORMAL DECISION

27. Given these conclusions, the appropriate order is to set aside the decision under review and to substitute a decision that the Tribunal is satisfied that Ms Shah met the eligibility criteria in s 21(3)(d) of the Act at the time of her application.  A formal decision to this effect has been signed and will be forwarded to the parties in the course of the day.

28.     I certify that the preceding 27  [twenty-seven]  paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

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Administrative Assistant Legal

Dated:   13 August 2021  

Dates of hearing:  2 & 3 August 2021

Advocate for the Applicant:  Syed Shah, son of the Applicant

Advocate for the Respondent:                   Tom Ellison, AUSTRALIAN GOVERNMENT SOLICITOR