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

[2020] AATA 3979

Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3979 (8 October 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2732

Re:Yaqut Shah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner AM LVO (Retd), Member

Date:8 October 2020

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier A G Warner AM LVO (Retd), Member

CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – unfit for citizenship examinations – whether Applicant has permanent or enduring incapacity – specialist qualifications – relevance of recent medications – decision under review affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 21(3)(d)

Health Insurance Regulations 1975 (Cth) – sch 4

Health Insurance Regulations 2018 (Cth) (commenced 1 November 2018) – sch 1

CASES
Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669

SECONDARY MATERIALS
Department of Immigration and Border Protection Citizenship Policy Chapter 7
(1 June 2016)
Department of Immigration and Border Protection Revised Citizenship Procedural Instruction No 2 - Australian Citizenship by Conferral - Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

Brigadier A G Warner AM LVO (Retd), Member

8 October 2020

INTRODUCTION

1. Mr Shah seeks review of a decision made by a delegate of the Respondent on

   
   

   29 April 2019 to refuse Mr Shah’s application for citizenship by conferral approval under

   
   

   s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not satisfied in respect of s 21(3)(d) of the Act which required that Mr Shah suffer from a permanent or enduring physical or mental incapacity which meant that he was not capable of understanding the nature of the citizenship application, or demonstrating a

   
   

   basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (T2/7-12).

2. The hearing was conducted on 22 September 2020 by telephone conference.

3. Mr Shah was self-represented and gave evidence on affirmation. He was assisted by his son, Mr Adil Shah, who also gave evidence.

4. Mr Abdul Esaqzai, a Pashto language interpreter, assisted the Tribunal.

5. Ms Sara Anicic represented the Respondent.

   BACKGROUND

6. Mr Shah arrived in Australia on 8 October 2009 as a holder of a Refugee (Subclass 200) visa (T2/7).

7. On 16 October 2014, Mr Shah was granted a Resident Return (Subclass 155) visa (T2/7).

8. On 12 September 2016, Mr Shah applied for Australian citizenship by conferral under

   
   

   s 21(1) of the Act (T5/67-89). In his application form - Form 1290 Application for Australian citizenship - Other situations Mr Shah indicated at question 21 that he had a permanent or enduring physical or mental incapacity (T5/69). In support of this response, Mr Shah provided a medical certificate from Dr M Moussa, general practitioner, dated 25 July 2016 (T5/87) and a letter from Dr R Goodheart, consultant neurologist, dated 30 July 2014 (T5/88).

9. On 12 May 2017, the Department of Home Affairs (the Department), wrote to Mr Shah advising him that he had not provided sufficient evidence that he suffered from a permanent or enduring physical or mental incapacity. The letter detailed the Department’s policy requirements in regard to who must provide this evidence and what specific information would need to be included (T7/92-96).

10. On 19 July 2017, Mr Shah provided a number of documents (T8/97-138), including a further medical certificate from Dr Moussa dated 24 May 2017 (T8/138).

11. On 29 April 2019, the delegate refused to approve Mr Shah’s application because

    
    

    ‘…you do not meet sub-section 21(3)(d) as you have not provided sufficient evidence that you suffer from a permanent or enduring physical or mental incapacity’ (T2/7).

12. On 20 May 2019, Mr Shah sought review in this Tribunal. Mr Shah claims the delegate’s decision is wrong as follows:

    …i just think that i provide enough evidence to support the case. In clouding they asking for new certificates from specialist, I am on Government allowance I cannot afford it. I provided medical letter from Dr Ross S Goodheart
    M.B., B.S., F.R.A.C.P. Consultant Neurologist dated 31 July 2014. 12 September 2016.

    *At the time of lodgement you indicated that you suffer from a permanent or enduring physical or mental incapacity. In support of this you provided a medical certificate from Dr Mina Moussa dated 2 September 2016* (T1/4).

13. On 17 June 2020, Mr Shah provided a draft report of Dr Haroon Riaz, consultant psychiatrist, dated 25 February 2020 (Exhibit A1). Under cover of an email dated

    
    

    21 September 2020, Mr Shah provided copies of the packaging of two medications which he described as ‘new medication which was Given to me’ (Exhibit A2).

    ISSUE

14. The Tribunal must decide whether Mr Shah had a permanent or enduring physical or mental incapacity, at the time he made the citizenship application. That means Mr Shah was not capable of understanding the nature of the application at that time;
    or demonstrating a basic knowledge of the English language at that time; or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    LEGISLATION AND POLICY FRAMEWORK

15. The relevant legislation is found in the Act. Section 21(3)(d) of the Act provides:

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

    …

    (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…

16. Pursuant to s 21(3)(d), the person must have a permanent or enduring physical or mental incapacity, at the time the person made the application. Further, that incapacity must mean that the person is not capable of understanding the nature of the application at that time, or demonstrating a basic knowledge of the English language at that time,

    
    

    or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time. There must be a connection between the incapacity and not being capable of understanding or demonstrating the matters set out in s 21(3)(d)(i) to s 21(3)(d)(iii).

17. Chapter 7 of the Citizenship Policy and Instructions (the Policy) lists Permanent or enduring physical or mental incapacity under s 21(3)(d) of the Act as one of the seven conferral pathways by which a migrant can acquire Australian citizenship (T4/42).

    
    

    The Tribunal must follow the policy contained in Chapter 7 unless there are cogent reasons not to do so.

18. In relation to incapacity, the Policy relevantly provides:

    …

    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.

    …

    Physical incapacity

    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. The specialist must also be a fellow of a specialist organisation as defined in Schedule 4 of the Health Insurance Regulations 1975 (which may be found on the website ( or the Federal Register of Legislation website ( incapacity

    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.

    Specialist’s [sic] qualifications can be confirmed by using the credentials which appear on the medical certificate, or by contacting the specialist concerned.
    For example, a psychiatrist who is a fellow of the Royal Australian and
    New Zealand College of Psychiatrists should have FRANZCP on the evidence provided.

    It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

    General Practitioners

    General practitioners who also could be fellows of the Royal Australian College of General Practitioners (FRACGP) or the Australian College of Rural and Remote Medicine (FACRRM), are not defined as specialists under Schedule 4 of the Health Insurance Regulations 1975. Access issues for rural and regional clients should be addressed on a case by case basis. In such instances the case officer could accept evidence from a doctor who is a fellow of the Australian College of Rural and Remote Medicine.

    (Original emphasis.)

19. Citizenship Procedural Instruction No 2 - Australian Citizenship by Conferral -
    Permanent or Enduring Physical or Mental Incapacity (CPI 2) (Exhibit R2),
    provides further guidance:

    3.4 Assessing incapacity

    Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case. Decision-makers should consider whether it is necessary to query any inconsistency or ambiguity that may bear on the question of whether paragraph 21(3)(d) is satisfied.

    When applicants are requested to provide reports from a specialist they should be given the Incapacity form (under development at the time of publication of this instruction).
    This will assist the specialist to identify what should be included in the report.

    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.

    oWhen assessing applicants who suffer from physical or mental condition [sic], such as broken limbs, postnatal depression, or grief over the passing of a close relative, one consideration would be whether these are short term or long term conditions. Short term conditions would not usually meet this criterion.

    ·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).

    (Original emphasis.)

    EVIDENCE

20. The Tribunal had before it the following evidence:

    ·The ‘T Documents’ (T1-T9, pp1-143);

    ·Draft report by Dr Haroon Riaz dated 25 February 2020 (Exhibit A1);

    ·Copies of medication packaging filed 21 September 2020 (Exhibit A2);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 17 July 2020 (Exhibit R1);

    ·CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (Exhibit R2);

    ·the oral evidence of Mr Adil Shah, son of the Applicant; and

    ·the oral evidence of the Applicant.

    The medical evidence

21. In a letter to Dr Mina Moussa, Mr Shah’s general practitioner, dated 30 July 2014,

    
    

    Dr R Goodheart, consultant neurologist, stated that:

    (a)

    A cranial MR scan performed on 20 July 2014 showed scattered regions of previous cerebral ischaemia and a lacune adjacent to the right corona radiata,

    
    

    and that there appeared to be no additional or recent pathology;

    (b)

    He had obtained notes from Royal Perth Hospital showing Mr Shah suffered a stroke in August 2012 and was admitted for a period of five days, and that the

    
    

    MR scan findings were consistent with the evolution of the ischaemic lesions since that time.

    (c)Mr Shah should continue with antiplatelet therapy into the future and retry Aspirin or Clopidogrel as an alternative (T5/88).

22. Dr Moussa stated in a medical certificate dated 25 July 2016 that Mr Shah ‘has a medical condition ischaemic heart disease cerebrovascular accident and will be unfit for citizenship examinations due to poor memory’ (T5/87).

23. In a further medical certificate dated 24 May 2017, Dr Moussa stated that Mr Shah:

    (a)had a poor understanding of English;

    (b)had been seen by Dr Goodheart and an MRI scan of his brain showed scattered areas of cerebral ischemia; and

    (c)had suffered strokes in 2012 and was not medically fit for citizenship examinations (T8/138).

24. Dr Riaz, consultant psychiatrist, stated in a draft report dated 25 February 2020 that:

    (a)Mr Shah could not communicate much in English hence the mode of communication was Urdu;

    (b)He was not able to find any past history of any psychiatric illness;

    (c)Mr Shah’s mental state was suggestive of mood being okay, affect generally being reactive and speech being normal with normal rate, rhythm and syntax;

    (d)there was no formal thought disorder, no feature suggestive of psychosis or mania, no history suggestive of self-harm or suicide attempts in the past and Mr Shah had never attended a psychiatric facility or attempted any self-harm;

    (e)Mr Shah had never been educated or schooled, hence his ability to read or write any language was zero, and he could not participate in the Mini Mental State examination portion where reading and writing were required;

    (f)Mr Shah appeared as someone who could be cognitively slow, and his mental state did not show any particular deficits or psychopathology;

    (g)

    Mr Shah was oriented in date, space and person, he did ‘serial 7s’ reasonably okay, his recall was only two out of three, registration was reasonably okay,

    
    

    he could recognise subjects and things but could not copy a design or the picture given to him. Mr Shah’s English was limited;

    (h)

    he did not feel that Mr Shah fulfilled the criteria for any particular psychiatric illness but according to Mr Shah his inability to read and write may compromise his ability to sit for any examination that involves reading or writing in English.

    
    

    Mr Shah’s capacity to sit for a citizenship examination may be lower, hence he supported Mr Shah’s application to be exempted from the citizenship test or examination; and

    (i)he had not booked Mr Shah for any further reviews (Exhibit A1).

25. Exhibit A2 indicates that on 13 June 2020 Dr Moussa prescribed Mr Shah the antidepressant Mirtanza (Mirtazapine) (15mg), and that on 18 September 2020,
    Dr Syed Yasir Jehan prescribed Lexam (Escitalopram) (10mg), a medication also used to treat depression.

    CONSIDERATION

26. The Respondent contends that the Tribunal cannot be satisfied that Mr Shah has a permanent or enduring physical or mental incapacity that means he is not capable of understanding or demonstrating the matters set out in s 21(3)(d)(i) to s 21(3)(d)(iii).

27. Mr Adil Shah told the Tribunal that his father’s story started with his stroke in 2012 and since then his father has been taking medications for his heart, blood pressure, cholesterol and diabetes. He said these medications were permanent and his father would be taking them ‘…until he’s dead’ (Transcript p13). Mr Adil Shah stated that when his father went to see the psychiatrist ‘…his mental capacity is all good, like, we live with him so we don’t see any difference in that. But his memory is weak which we can see in daily life.’ (Transcript p14).

28. Mr Shah submitted that he was not able to do the citizenship test because of memory loss (Transcript p5). He said that taking all his medications was affecting his mental and physical health, and that his health was deteriorating (Transcript p17).

29. As required by the Policy and set out above, Mr Shah must produce evidence from an appropriately qualified medical practitioner that he has a permanent or enduring physical or mental incapacity that means he is not capable of understanding the nature of the application, or demonstrating a basic knowledge of the English language or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

30. Dr Moussa provided two medical certificates (T5/87, T8/138). Dr M Moussa is a general practitioner and fellow of Royal Australian College of General Practitioners (FRACGP). This fellowship is not prescribed under Schedule 1 of the Health Insurance Regulations 2018 (see also prior Schedule 4 of the Health Insurance Regulations 1975).

    
    

    In her certificates, Dr Moussa’s does not provide a clear opinion as to which inability

    
    

    Mr Shah has under s 21(3)(d)(i) to s 21(3)(d)(iii), or why Mr Shah’s cerebral ischemia would result in him not being capable of understanding or demonstrating the matters set out in s 21(3)(d)(i) to s 21(3)(d)(iii) of the Act, beyond stating that Mr Shah would be

    
    

    ‘unfit for citizenship examinations due to poor memory’ (T5/87). The Tribunal assigns minimal weight to Dr Moussa’s evidence as it does not satisfy the requirement for permanent or enduring incapacity.

31. As a consultant neurologist and fellow of the Royal Australasian College of Physicians (F.R.A.C.P.), Dr Goodheart satisfies the requirements of Schedule 4 of the

    
    Health Insurance Regulations 1975.

32. Section 21(3)(d) of the Act requires that the person have a permanent or enduring incapacity at the time the person made the application. Dr Goodheart’s report is dated

    
    

    30 July 2014 (T5/88), being more than two years prior to Mr Shah’s citizenship application. Although Dr Goodheart states in his report: ‘I will speak to Mr Shah again depending upon progress’, there is no later report before the Tribunal. Dr Goodheart’s report is not sufficient for the Tribunal to find that Mr Shah had any incapacity at the time of making his citizenship application.

33. Although Dr Goodheart states that Mr Shah had a stroke in 2012 and his MR scanning was consistent with that and with no additional or recent pathology, he does not give any opinion regarding physical incapacity or whether any incapacity is permanent or enduring.

34. Dr Goodheart does not provide any opinion as to the functional impact of any incapacity. In particular, Dr R Goodheart does not give any opinion as to whether any incapacity means that Mr Shah lacks the ability to demonstrate or understand any of the matters specified in s 21(3)(d)(i) to s 21(3)(d)(iii) of the Act.

1. The Tribunal concludes that Dr Goodheart’s evidence is not sufficient for the purposes of s 21(3)(d) of the Act.

2. The evidence is that Dr Riaz is a consultant psychiatrist and a fellow of the

   
   

   Royal Australian and New Zealand College of Psychiatrists. Accordingly, Dr Riaz meets the requirements of the Policy. Dr Riaz states that he saw Mr Shah on 25 February 2020 (Exhibit A1/1) and that Mr Shah was not booked for any further reviews (Exhibit A1/2). There is no evidence that Dr Riaz saw Mr Shah prior to this appointment.

3. Dr Riaz’s evidence is that Mr Shah did not fulfil the criteria for any particular psychiatric illness nor did his mental state show any particular deficits or psychopathology.

   
   

   Dr Riaz states that Mr Shah appeared as someone who ‘could be cognitively slow’ (Exhibit A1/2), but this comment does not point to the existence of a permanent or enduring mental incapacity.

4. Dr Riaz’s reports that Mr Shah informed him that he had never been educated or schooled, hence his ability to read or write any language was zero. Dr Riaz states that

   
   

   Mr Shah’s English language skills were limited and that his consultation with Mr Shah was conducted in Urdu. On this basis, Dr Riaz supports Mr Shah’s application to be exempted from the citizenship test.

5. Section 21(3)(d)(ii) requires that the person not being capable of demonstrating a basic knowledge of the English language must be as a result of the person having a permanent or enduring incapacity. No such causal link is indicated in Dr Riaz’s report.

   
   

   Therefore, Dr Riaz stating that Mr Shah was not capable of demonstrating basic knowledge of the English language does not satisfy s 21(3)(d)(ii) in circumstances where the reason for that inability is not a result of a mental incapacity. It follows that Dr Riaz’s support for Mr Shah’s exemption is irrelevant to the Tribunal’s assessment of whether

   
   

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

6. The copies of antidepressant medication packaging (Exhibit A2) show dates

   
   

   (see para [25] above) well after Mr Shah’s application for citizenship. There is no evidence of related circumstances, diagnosis or symptomology, and a condition of depression is not evident in the medical reports. The Tribunal finds that Exhibit A2 is not relevant to the present consideration.

7. The Tribunal has regard to the CPI 2 guidance which anticipates ‘that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis’. The medical evidence from Dr Goodheart and Dr Riaz does not indicate this to be the case with Mr Shah.

8. Finally, the Tribunal notes the CPI 2 guidance that an applicant’s illiteracy does not necessarily amount to an incapacity. Relevantly, the Respondent cites the case of Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669 where the applicant was illiterate, could not write in his own language or in English, and did not have a good command of English. These circumstances are similar to those of Mr Shah in the present matter, and in Ahmadzai at [20] the Tribunal did ‘not accept that illiteracy amounts to permanent or enduring physical or mental incapacity contemplated by s. 21(3)(d).’

9. There is evidence that at the time he lodged his application for citizenship on

   
   

   12 September 2016, Mr Shah held a Western Australia Driver’s Licence with an expiry date of 17 March 2020 (T5/86). Mr Shah told the Tribunal that he renewed the licence and continues to drive a car occasionally. Although the Tribunal does not see this evidence as determinative, the Tribunal considers that it is not consistent with the type of incapacity and lack of capability contemplated by s 21(3)(d).

10. There is very limited medical evidence relating to Mr Shah’s memory such that a conclusion of incapacity could be drawn. Although in her 25 July 2016 letter Dr Moussa opines that Mr Shah is unfit for citizenship examinations because of poor memory (T5/87), she does not mention memory in her later medical certificate (T8/138). Dr Goodheart does not mention memory in his letter dated 30 July 2014. In his draft report dated 25 February 2020, Dr Riaz states: ‘He claimed that his memory has been poor as a result of a stroke that he sustained five years ago. I am unable to comment further on that’ (Exhibit A1/2).

    CONCLUSION

11. Having carefully considered all the evidence before it, the Tribunal remains unclear as to whether Mr Shah suffers from any incapacity. The evidence is not sufficient to show that Mr Shah suffers from a permanent or enduring incapacity and does not support a contention that Mr Shah lacks any of the abilities specified in s 21(3)(d)(i) to s 21(3)(d)(iii) of the Act as a direct cause of any incapacity. The Tribunal therefore finds that Mr Shah does not satisfy the requirements for Australian citizenship set out in s 21(3)(d) of the Act.

    DECISION

12. It follows from the above that the correct and preferable decision is to affirm the decision under review, that being the decision of the delegate of the Respondent dated

    
    

    29 April 2019 to refuse citizenship by conferral.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner
AM LVO (Retd), Member

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

Associate

Dated: 8 October 2020

Date of hearing:	22 September 2020
Applicant:	In person
Counsel for the Respondent:	Ms Sara Ancic
Solicitors for the Respondent:	The Australian Government Solicitor