Shahrabifarahani and Minister for Home Affairs (Citizenship)

[2019] AATA 4358

Shahrabifarahani and Minister for Home Affairs (Citizenship) [2019] AATA 4358 (25 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2899

Re:Tahereh Shahrabifarahani

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date: 25 October 2019

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – citizenship test – whether applicant has permanent or enduring mental incapacity – depression & anxiety –improvements in applicant’s mental health – capacity to learn & retain information – decision under review affirmed

LEGISLATION

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

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Mr S Evans, Member

25 October 2019

OVERVIEW

1. This is an application by Mrs Tahereh Shahrabifarahani (“the applicant”) for a review of a decision of the Minister for Home Affairs (“the respondent”) to deny her claim for Australian citizenship by conferral.

2. The applicant applied for Australian citizenship in June 2015 and contends that the requirement to undertake the citizenship test should be waived due to an enduring mental incapacity.

3. The matter was heard in Sydney on 9 September 2019. The applicant attended the hearing and was well represented by her daughter. The applicant gave evidence with the assistance of an interpreter. Dr Gary Banks and Dr Alyosha Jacobson gave evidence at the hearing and I found both to be reliable and helpful witnesses.

4. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the applicant.

   LEGISLATIVE FRAMEWORK AND POLICY

5. Generally, a person is eligible to become an Australian citizen if they meet the criteria in s 21(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”). In order to satisfy the requirements of ss 21(2)(d), (e) and (f) a person is required to sit what is known as the ‘citizenship test’.

6. Section 21(3) of the Act provides for people who the Minister is satisfied had a permanent or enduring physical or mental incapacity at the time of their application for citizenship. Under s 21(3) a person is eligible to become an Australian citizen if, at the time the person made the application, they had a permanent or enduring physical or mental incapacity which means that they were not capable of understanding the nature of the application at that time, or not capable of demonstrating a basic knowledge of the English language at the time, or were not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time. If they satisfy the criteria in s 21(3) an applicant is not required to take the citizenship test.

7. The Citizenship Policy (“the Policy”) contains guidance for decision-makers in relation to paragraph 21(3). At pages 71 to 73 it states:

   For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

   ·understanding the nature of their application

   ·demonstrating a basic knowledge of the English language or

   ·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

   To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.

   A temporary physical or mental condition does not meet the requirement.

   …

   Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.

   …

   Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

   ·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

   ·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

   ·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

   …

   It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.[1]

   [1] Australian Citizenship Policy, pp. 71-73.

   ISSUES FOR THE TRIBUNAL

8. The key issues for the Tribunal to determine are:

   (a)at the time of her citizenship application, did the applicant have a medical condition which meant that she was not capable of understanding the nature of the citizenship application, or demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and if so

   (b)is the condition permanent or enduring.

   BACKGROUND

9. Mrs Shahrabifarahani is a citizen of Iran who holds a five year resident return (subclass BB-155) visa. She first arrived in Australia in 2011 as a tourist.

10. At the hearing Mrs Shahrabifarahani confirmed that the primary reason she is seeking Australian citizenship is in order to obtain an Australian passport to facilitate travel. She currently has no plans to travel but approximately one year ago her son, who was previously refused a visitor visa to Australia, asked her to travel to France in order to visit him.

11. The applicant contends that she is unable to sit the citizenship test because of her permanent mental incapacity, specifically her ‘major clinical depression, OCD and generalized [sic] anxiety disorder’.[2]

    [2] A2.

    EVIDENCE AND HEARING

12. The applicant has been seeing consultant psychiatrist Dr Alyosha Jacobson since October 2013 and he reports he has seen her ‘on over 20 occasions’.[3] He has diagnosed the applicant with generalised anxiety disorder and major depression. He writes that these conditions have been present since ‘at least 2011’. In addition, Dr Jacobson’s report states that Mrs Shahrabifarahani exhibits traits of dependent personality disorder.

    [3] T1, p. 10.

13. Dr Jacobson’s report of April 2018[4] further states that the applicant’s ‘mental illnesses are fully treated and are unlikely to further improve’. He indicates that Mrs Shahrabifarahani’s current medication regime has made her ‘somewhat better over the past 18 months…but [the applicant] continues to suffer from the…symptoms, though not as severely as previously’.

    [4] T1, p. 10.

14. Dr Jacobson also reports that the applicant has ‘ongoing body pain’ as a consequence of sciatica and problems with her L3 and L4 discs. These conditions do not form the basis of her applying for citizenship by conferral under s 21(3) but it is noted as a contributing factor in her overall state of mental wellbeing. A letter from Professor Milton Cohen at St Vincent’s Hospital dated 29 November 2013 indicates that ‘[the applicant] does not need surgical intervention’ and prescribed movement combined with extended release paracetamol. Of relevance to the matter being considered, Professor Cohen notes the following:

    There are a number of ongoing psychosocial stressors, the most relevant of which are the translocation from Iran, the separation from her son, the sad circumstances of her leaving Iran and the social isolation which she encounters here.

    Allied to this, appears to be a significant degree of fear-avoidance behaviour, again arising out of her perception that a disaster might happen to her back.

15. Mrs Shahrabifarahani has also been receiving treatment from clinical psychologist Dr Reza Pishyar. Dr Pishyar also states that Mrs Shahrabifarahani is suffering ‘from a permanent and enduring mental incapacity’.[5] He describes Mrs Shahrabifarahani as suffering from ‘major clinical depression, obsessive-compulsive disorder and generalized anxiety disorder with panic attack’.  

    [5] T1, p. 12.

16. Dr Pishyar reported in May 2015 that the applicant has been under his care since February 2012 and has been ‘receiving her regular psychological treatment to maintain her mental stability and preventing her mental deterioration’.[6]

    [6] T4, p. 103.

17. Dr Fatemeh Nazaran is the applicant’s GP and he writes that Mrs Shahrabifarahani ‘suffers from chronic major depression, anxiety, poor memory, poor concentration, insomnia, lower back pain radiating to left leg causing chronic sciatic pain with parasthesia [sic], GORD, osteoarthritis and osteoporosis. She under care [sic] of neurologist and on regular medication for above conditions’.  

    How these conditions affect the applicant

18. The applicant contends that she should be exempted from the requirement to sit the citizenship test under the provisions of s 21(3)(d). Mrs Shahrabifarahani contends that her primary incapacity is her inability to retain information. The applicant points to her experience attending over 500 hours of English classes with her husband as evidence of her inability to learn and retain information. She explained to the Tribunal that whilst she was able to remember some words in English she would forget them soon after. Consequently she did not pass the tests which were part of the course and she claims she did not progress through the course in spite of continued attendance. She compared her experience unfavourably to that of her husband who attended the same course and she said progressed and improved his English language skills. At the hearing, Mrs Shahrabifarahani conceded that she does know some basic English.

19. The applicant also confirmed that she can read and write Farsi, that she completed her primary schooling and that as an adult she went to night school in Iran. In reference to night school, she indicated that it was a positive experience as the coursework was conducted in her mother tongue and she could understand it.

20. At the hearing the applicant testified that she can perform some tasks independently including grocery shopping. She can also take the train by herself and regularly does so in order to attend medical appointments in Parramatta and Auburn, both of which are located a considerable distance from her home.

21. Dr Jacobson writes that Mrs Shahrabifarahani’s illness impacts her ability to gain citizenship. Specifically he writes:[7]

    Major Depression, Anxiety and Dependence lead to low energy, motivation, a sense of being overwhelmed and hence a difficulty and avoidance of facing stress. These factors make learning, practicing and accessing services very significantly [sic] more difficult.

    Given the limited improvement over a course of 5 years of treatment including reasonable extensive trials of medications and psychotherapy, I would consider [the applicant’s] illnesses as stated above, to be permanent.

    [7] T1, p. 11.

22. Similarly, Dr Pishyar writes that Mrs Shahrabifarahani is unable to ‘fulfil all the requirements of her citizenship application’. He writes:[8]

    In regards to her long standing history psychiatric and psychological complications and her mental health incapacity and impairment, it is unlikely that her English language improving [sic]. In my opinion Mrs. Shahrabifarahani is not capable of understanding and memorising English language learning due to her poor memory and expecting her to prepare herself and sit for the citizenship test will cause more psychological and psychiatric distress for her and preventing [sic] further recovery.

    [8] T4, p. 103.

23. Dr Pishyar later writes in February 2019 that he has assessed the applicant ‘as having a lack of understanding of basic English usage although there is a minimal degree of understanding she can speak in simple English to the best of her limited ability but her chronic mental health condition she is unlikely to improve any further within the next two years or more’.

24. Regarding the applicant’s ability to study and learn, Dr Jacobson writes:[9]

    With difficulty, she [Ms Shahrabifarahani] has managed to trial studying over the past 5 years, but describes ongoing difficulty with concentrating, comprehension and retaining information as a result of her depression and anxiety. She has not been able to pass beyond a basic level and knows that she would not pass an English assessment test. In Iran she only went to school until age 10 and was excessively disciplined, so writing makes her anxious.

    I would support the claim that she has a permanent and enduring mental incapacity. Her chronic anxiety, helplessness and depression affect her concentration, focus, comprehension and motivation. As a result she is unable to learn sufficient English to pass the Australian citizenship requirements.

    [9] T6, p. 115.

25. Dr Jacobson provided testimony under oath at the hearing. During his testimony Dr Jacobson said that in regards to the applicant’s ability to learn English he sees the main problem is her difficulty persisting, poor concentration, poor frustration tolerances and easily becoming overwhelmed. He said that further cognitive testing in 2018 revealed that the applicant has borderline intellectual functioning and it is difficult for her to learn a new language particularly as she lacks the self-confidence to do so. He said that her current state is likely to persist; this is how it is and how it will be. Dr Jacobson confirmed that he has not treated the applicant since February 2019.

    Dr Banks’ assessment

26. After the rejection of Mrs Shahrabifarahani’s citizenship application in May 2018 and the commencement of the present review application, the Minister arranged for Mrs Shahrabifarahani to be assessed by Dr Gary Banks.  Dr Banks is a clinical psychologist, and he provided a detailed report based on a clinical interview and psychometric testing with Mrs Shahrabifarahani which was conducted on 5 December 2018 and assisted by a Farsi-speaking interpreter.  His full report was provided to the Tribunal.  

27. Dr Banks notes that ‘taken together her [Ms Shahrabifarahani’s] symptoms are considered sufficient to meet diagnostic criteria for Depressive disorder (mild to moderate)’[10].

    [10] R2, paragraph 62

28. Dr Banks’ report details the applicant’s education and vocational training. He notes that Mrs Shahrabifarahani described her academic performance in school and stated that ‘I was OK, normal, average’.[11] After she was married Mrs Shahrabifarahani became a housewife and then ‘with the encouragement of her husband, she completed her high school education through night school…estimating the course had been from 1995 to 2001’. He writes:

    She [Ms Shahrabifarahani] reported that she attended night school two nights per week for 6 years, and studied sewing one night and reading one night…Ms Shahrabifarahani described that this course had been ‘easy, there was not much pressure’. Ms Shahrabifarahani stated that these studies had been prompted by her daughter’s suggestion that she should ‘do something’ as she ‘wasn’t doing anything at home’… she indicated that she had enjoyed her studies, however that now she ‘can’t remember what she studied’.

    [11] R2, paragraph 24-26

29. Dr Banks also notes[12] that ‘Mrs Shahrabifarahani’s narrative of her educational background and efforts to engage in and complete subsequent studies in adult/vocational training level is at odds with her history as reported by Dr Jacobson’.

    [12] R2, paragraph 25

    CONSIDERATION AND REASONS

30. I accept that Mrs Shahrabifarahani has been diagnosed with depression and anxiety but I do not accept that she suffers from a permanent and enduring mental incapacity.  I note that the applicant has experienced some difficulties adjusting to life in Australia, such as her current accommodation, which have had a deleterious impact on her mental health. These have been compounded by personal challenges including the death of her mother with whom she was close, and being apart from her son.

31. In order to meet the requirements for exemption, s 21(3) requires that the incapacity must be permanent or enduring. I acknowledge that Dr Jacobson states that ‘[Mrs Shahrabifarahani’s] mental illnesses are fully treated and are unlikely to further improve’. I must also consider however, that by her own account Mrs Shahrabifarahani’s mental health condition has improved markedly, to the point she has not seen Dr Jacobson since February 2019. Dr Jacobson wrote as early as April 2018, after listing her medication regime at that time[13], that ‘she [the applicant] has been somewhat better over the past 18 months on this treatment, but continues to suffer from the above symptoms, though not as severely as previously’. Consequently, I have concluded that further improvements in the applicant’s psychological conditions may be possible with the resumption of ongoing treatment. In this context it is pertinent to note Dr Banks’ observation that ‘[the applicant’s] level of confidence, or lack thereof however, may actually be having a more adverse impact [on] her motivation to learn and study the English language than her symptoms of depression and as such should be addressed as specific goals in any future psychological therapy’.

    [13] T6, p. 114-115.

32. I also accept the finding of Dr Banks that the applicant ‘remained entrenched in her perceptions of herself as unable due to her reported medical conditions’[14]. I find that the applicant is more capable of meeting the requirements of citizenship than she herself believes and is prepared to concede.

    [14] R2, paragraph 41

33. Even if I were to find that these conditions were permanent or enduring they would not, however, render Mrs Shahrabifarahani unable to learn and retain information. This finding is supported by Dr Banks who states that ‘[Ms Shahrabifarahani] demonstrated a reasonable capacity to learn and retain new information, recall such information over time and in the presence of distraction, as well as answer questions from the Citizenship test sample items correctly’. Dr Pishyar also notes that whilst the applicant has a ‘lack of understanding of basic English usage’, he concedes that Mrs Shahrabifarahani can ‘speak in simple English to the best of her limited ability’. Dr Jacobson concedes, in the context of a letter supporting the applicant’s exemption from the citizenship test, that ‘she [the applicant] can learn’, ‘in this situation of high pressure and being highly supported and encouraged to continue to persevere…’. This is borne out by Mrs Shahrabifarahani’s adult schooling in Iran which she completed in 2001.

34. In reaching this conclusion I took into account the opinions of the applicant’s treating specialists but other factors are also persuasive. Mrs Shahrabifarahani testified that she has the ability to navigate public transport and to go shopping by memorising timetables, words and other markers. She has also demonstrated her capability through engaging with a variety of health professionals, only one of whom she noted was able to speak Farsi.

35. I note that many applicants for exemption under s 21(3)(d) sit for, and fail, the citizenship test and then apply to have the test requirement waived. Mrs Shahrabifarahani, however, is yet to take the citizenship test. Dr Banks’ report indicates that the applicant was unaware resource materials for sitting the citizenship test were available in Farsi.

    CONCLUSION

1. Based on the material before me and with the benefit of Mrs Shahrabifarahani’s personal testimony, I am not satisfied that the applicant had a permanent or enduring physical or mental incapacity at the time she made her application for Australian citizenship such that she was not capable of understanding the nature of the application; was unable to demonstrate a basic knowledge of the English language; or was unable to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

2. Consequently, Mrs Shahrabifarahani does not meet the requirements set out in s 21(3) of the Act.

3. Australian Citizenship, Our Common Bond[15] contains all the information needed to sit the Australian citizenship test. It states that ‘it takes courage, endeavour and commitment to live in a new country and participate fully as a citizen’. There is nothing to prevent Mrs Shahrabifarahani from choosing to pursue Australian citizenship in the future. If she does so by taking the citizenship test she will have demonstrated all of these qualities. More importantly, if successful, she will have exceeded her own expectations of herself and realised the promise that ‘Australian citizenship is a privilege that offers enormous rewards’.

   [15]

   DECISION

4. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 25 October 2019

Date of hearing:	9 September 2019
Advocate for the Applicant:	Ms S Shahrabi
Solicitors for the Respondent:	Ms R Noronha, Clayton Utz