Yaqo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2024] AATA 2775
•6 August 2024
Yaqo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] AATA 2775 (6 August 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0121
Re:Ms Basima Yousif Jameel Yaqo
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:6 August 2024
Place:Melbourne
The decision under review is set aside on the basis that the Tribunal finds that the Applicant qualifies under s 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking the Australian Citizenship Test.
.....................................[sgd]...................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – citizenship test exemption – whether Applicant suffers from a permanent or enduring mental incapacity at the time of application –medical evidence considered – decision set aside and remitted to Department
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harbi and Minister for Immigration and Border Protection, Citizenship, Migrant Services and Multicultura Affairs [2020] AATA 1347
Sahar and Minister for Home Affairs [2019] AATA 1232
Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3979Secondary Materials
Australian Citizenship Procedural Instructions
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (2020)REASONS FOR DECISION
Ms A E Burke AO, Member
6 August 2024
Ms Basima Yaqo (the Applicant) is a 37-year-old Iraq citizen who arrived in Australia on 23 January 2014 on a permanent residence (subclass XB-200) visa.
On 12 July 2019, Ms Yaqo lodged an application for Australian citizenship by conferral under s 21(2) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). On 11 March 2021, Ms Yaqo’s application was refused under subsection 21(2A) and paragraphs 21(2)(d), (e) and (f) of the Act as she did not pass the Australian Citizenship test.
On 26 October 2021, Ms Yaqo lodged a second application for Australian citizenship by conferral – other situations under subsection 21(3) of the Act, as she claimed she had a permanent or enduring mental incapacity. Ms Yaqo’s application was again refused as the Respondent was not satisfied on the evidence that her claimed mental incapacity met the requirements of the citizenship policy’s guidance for assessing paragraph 21(3)(d) of the Act.
On 11 May 2023, Ms Yaqo lodged a third application for Australian citizenship by conferral under subsection 21(3) of the Act. On 25 August 2023, the Respondent requested more information via email from Ms Yaqo as her application did not demonstrate she met the physical or mental incapacity component. On 11 September 2023, Ms Yaqo responded to this request. On 27 October 2023, the Respondent requested more information via email from Ms Yaqo, to which Ms Yaqo provided additional information on 31 October 2023 and 9 November 2023.
On 12 December 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused Ms Yaqo’s third application for citizenship as she did not meet the criteria under s 21(3) of the Act (the Reviewable Decision) stating:
Assessment of evidence provided
In your application lodged on 11 May 2023, you provided the following evidence of your incapacity:
Letter from Fadia Isaac, Clinical Psychologist, dated 4 March 2023
Letter from GP, Dr Azhar Al Sadii (FRACGP), dated 22 March 2023
Letter from Soorah Albatat, Clinical Psychologist, dated 1 March 2023
Letter from Sam Asadi, Consultant psychiatrist (FRANZCP), dated 24 November 2022
Letter from Clinical Social Worker/Counsellor, dated 8 June 2022
On 25 August 2023 you were sent a letter requesting further evidence of your incapacity.
On 11 September 2023, you responded and provided the following evidence of your incapacity:
A second letter has been provided from Dr Fadia Isaac, Clinical Psychologist dated 31 August 2023
On 27 October 2023 you were sent a letter requesting further evidence of your incapacity.
On 9 November 2023, you responded and provided the following evidence of your incapacity:
A third letter from Fadia Isaac, Clinical Psychologist dated 07 November 2023
In support of your application you have provided evidence from:
Letter from Fadia Isaac, Clinical Psychologist 4 March 2023
- you have attended three telehealth sessions, beginning on 16 February 2023.
- you report an inability to learn and retain new information
- you reported suffering sleeping difficulties, nightmares, lack of motivation, fear, lethargy. Currently taking several medications for the treatment of depression, psychosis, anxiety and schizophrenia as prescribed by a psychiatrist. Dr Fadia Isaac is unsure as to why these medications have been prescribed.
- Client scored normal results on the DASS (Depression Anxiety and Stress Scale).
- Diagnosis: Insomnia, Major Depressive Disorder, Obsessive compulsive disorder
- Recommends the client is in need of a psychiatrist to reassess medications and monitor mental health.
- Psychiatrist Dr Raid Al Humrany has been suggested.
Letter from GP, Dr Azhar Al Sadii (FRACGP), dated 22 March 2023
- you have issues with concentration, cannot register new information
- you have lots of stressors in your life including son with Autism and husband with depression and bipolar.
Letter from Soorah Albatat, Clinical Psychologist 1 March 2023
- You have attended regular counselling sessions since February 2022
- You have not been able to attend English classes due to caring for family members with disability
- You report severe cognitive incapacity, including issues with concentration and memory
- Made very limited progress in therapy
- Symptoms of PTSD and adjustment disorder
Letter from Sam Asadi, Consultant psychiatrist (FRANZCP), dated 24 November 2022 (2nd visit)
- Diagnosis, Adjustment disorder with mixed anxiety and depressed mood.
- Attended limited schooling as she did not enjoy it and her mother could not take her due to work commitments, therefore is illiterate
- Medication has been increased.
Letter from Clinical Social Worker/Counsellor, 08 June 2022
- Husbands mental health issues, and child with autism are significant psychosocial stressors to the client
- Anxiety and stress
- Cognitive behavioural therapy, Intrapersonal Psychotherapy and Psychoeducation have been administered.
- Poor concentration, memory and difficulty articulating information.
- Illiterate, cannot speak English.
No evidence of testing has been provided to support the claim that you have cognitive impairment including memory and concentration issues. I believe the information provided does not demonstrate a permanent/enduring incapacity that means the client cannot understand the nature of the application, demonstrate a basic knowledge of English or demonstrate an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
On 25 August 2023 you were sent a letter requesting further evidence of your incapacity.
On 11 September 2023 you responded to the Department and provided a medical report from Dr Fadia Isaac, Clinical Psychologist:
- you met the clinical diagnosis of Major Depressive Disorder Single Episode severe, with anxious distress features, Insomnia Disorder, and Obsessive-Compulsive Disorder with poor insight.
- you first presented to Dr Isaac 16 February 2023
- you do not see Dr Isaac on a regular basis - she has performed a clinical assessment only. You do not have a treatment plan
- The DASS showed a normal elevation on all subscales
- You did not show any signs of cognitive delay for Dr Isaac to warrant the need for a cognitive testing
- Diagnostic and Statistical Manual of Mental Disorders (DSM-5) was used as the main tool to reach clinical diagnosis. Your symptoms include depressed mood and concentration difficulties
- You claimed you have limited capacity to learn and retain information
- Your highest educational qualification was completing year 4. Your knowledge in the Arabic language is limited, so this can be an obstacle to your ability to learn English and succeed in passing the Australian Citizenship test
- Dr Isaac stated it is outside her professional boundaries to answer if you are expected to show improvement
- recommended seeing a psychologist specialising in OCD treatment and a psychiatrist to monitor and oversea your medications
- advised without regular and continued treatment recovery will not be possible
A person who is illiterate in their native language and English may not necessarily have an incapacity. Only if the illiteracy was due to an incapacity, such as an acquired brain injury or a learning disorder, would the person meet the requirements of paragraph 21(3)(d).
I found the information provided does not demonstrate a permanent/enduring incapacity that means the client cannot understand the nature of the application, demonstrate a basic knowledge of English or demonstrate an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
On 27 October 2023 you were sent a letter requesting further evidence of your incapacity.
On 11 September 2023 you responded to the Department and provided a medical report from
Dr Fadia Isaac, Clinical Psychologist:
- Mental incapacity affects your daily living.
- Diagnosis: Depression anxiety clinical insomnia OCD
- Conditions believed to have started in 2014
- Treatment with this Dr began 16 February 2023 for an assessment only. As of 06 November 2023 will be having regular therapy sessions as an ongoing client on a fortnightly basis.
- The applicant has sought a referral to Psychiatrist Dr Raid Al Humrany, however after referral discovered this Dr has no appointments available until 2024 due to being fully booked.
- Insomnia and depression may be treatable with therapy and medical treatment over time, but OCD may not be able to be treated effectively and may be ongoing 2-3 years therapy recommended currently for the OCD. It has been recommended you also seek treatment from a Psychiatrist for medical intervention for OCD
- Addresses how does the applicant’s incapacity link to the person not being able to demonstrate:
o an understanding of the nature of the application for Australian citizenship; or
o a basic knowledge of English; or
o an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
There are two factors that should be considered when addressing the above question:
1. The diagnosis of depression, insomnia and OCD all involve concentration difficulties, which can make learning new materials challenging and to some extent impossible. I believe that Ms Jameel has severe concentration difficulties.
2. Ms Jameel’s highest education in her country was completing year
4. Whilst Ms Jameel can speak Arabic, she cannot read and write Arabic. Further to that, when Ms Jameel arrived to Australia, she attended English classes for a few months before she became pregnant with her youngest son. After the birth of her child, she needed to provide full time care to him hence his diagnosis of autism. She never attended any further English classes afterwards.
The above two points suggest that Ms Jameel’s incapacity links to the following: she cannot demonstrate a basic knowledge of English.
- A Case Management Plan has been put in place:
o Twenty sessions to treat insomnia and depression.
o Twenty-five additional sessions to treat OCD. Reassessment end at of 2024
o Treatment will be therapy based.
o Referral to a psychiatrist for medical intervention will be made
- A Mini-Mental State Examination (MMSE) test was done on 6 November 2023
o Result: 20/30 on scale. 20 is the lower score for mild impairment and the upper score for moderate impairment Mild cognitive impairment (Formal assessment may be helpful to better determine pattern and extent of deficits)
o Mild impairment may require some supervision, support and assistance.
I am not satisfied that the information in the report/s provided is sufficient to demonstrate that you have an incapacity that is permanent or enduring in nature.
Your treating psychologist Fadia Isaac has stated that your medical conditions are treatable. They will be reassessing your progress at the end of 2024.
Fadia Isaac also has recommended treatment from a psychiatrist to manage your medical conditions. No evidence has been provided of you committing to this treatment
The MMSE test result suggests a formal assessment may be beneficial in assessing the incapacity
I am not satisfied that the information in the report/s provided is sufficient to demonstrate that the described incapacity is the direct cause for you not being able to understand the application, demonstrate a basic knowledge of English, demonstrate an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship. When assessing if a person suffering from long-term depression would be considered to have an enduring incapacity, one consideration would be whether the depression can be treated and to what extent the depression has caused the person to be incapacitated.
Your medical conditions have been described as one of two factors causing you not being able to demonstrate a basic knowledge of English.
Other reasons given are limited schooling for yourself as a child, and not having time to study English due to you providing care for your child who has autism.
The evidence provided does not show that your medical conditions are permanent or enduring
On the basis of the evidence provided, I am not satisfied that you are suffering from a permanent or enduring physical or mental incapacity that impacts on your ability to understand the nature of the application, demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of the responsibilities and privileges of Australian citizenship. I therefore find that paragraph 21(3)(d) has not been satisfied.
On 7 January 2024, Ms Yaqo applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision, stating:
The applicant has claimed that she is unable to comprehend the nature of the Citizenship test. The applicant has been unable to pass the test. The applicant has provided medical reports in support of her claim. The Department of Home Affairs has requested evidence from the applicant in support of her claims.
At the hearing, Ms Yaqo was represented by Migration Agent Mr Robert McMahon, with Ms Kate Ervin Lawyer at Clayton Utz appearing on behalf of the Respondent. The Tribunal was assisted by a Syrian interpreter.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether Ms Yaqo satisfies Section 21(3)(d) of the Act, that is, did she have a permanent or enduring mental incapacity at the times she made her application for citizenship?
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 21(2A) of the Act sets out the citizen test criteria:
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Section 21(3) of the Act defines permanent or enduring physical or mental incapacity:
(3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
(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.
Section 24 of the Act provides, in part:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person
The Citizenship Policy
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Aston:[1] ‘Policy is not law. A statement of policy is not a prescription of binding criteria’.
[1] Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 [367].
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so.[2]
[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 [645].
In relation to s 21(3), the Citizenship Policy states:
For applications received on or after 9 November 2009 for consideration under s 21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
…
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
...
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
...
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or
·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
...
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
In relation to s 21(2)(d), (e) and (f), the Citizenship Procedural Instruction 26 - Australian Citizenship Test states:
4.2 Accessibility and the test
All test computers are equipped with headsets for audio, which is compliant with web accessibility guidelines. Applicants can choose this option when sitting the standard or assisted test.
If the headset is not available or does not work and the applicant requests or require assistance, a Test Administrator may:
·Read the questions and multiple-choice answers aloud to the applicant,
·Ask the applicant for their response,
·Select the answer on the computer that the applicant indicates.
A printout of the computer-based Standard Test will also be available in certain circumstances (for example, for people sitting the test outside of Australia or where the computer-based Standard Test is not available electronically).
A Test Administrator must not translate the questions for the applicant.
The Test Administrator may operate the computer for applicants with poor computer or literacy skills or an injury, if the applicant requests or requires assistance.
·For example, if an applicant does not know how to use a computer mouse, the Test Administrator may conduct a brief tutorial on how to use the mouse; or
·If an applicant has an impairment that prevents their use of the mouse, the Test Administrator may operate the mouse in accordance with the applicant’s response to the questions.
4.3 Eligibility to sit the standard test
As provided in the Determination, to be eligible to sit the standard test the applicant must:
·Be a permanent resident of Australia
·Have lodged a valid application for citizenship by conferral (refer to Citizenship Instruction 18 – Application requirements for guidance), and
·Satisfy the Minister or the Minister’s delegate under subsection 23A(4) of the Act as to their identity by:
oAllowing a photograph to be taken by the Minister’s delegate of their face and shoulders; or
oProviding such other documentary evidence of identity as is requested by the Test Administrator, such as original copies of scanned documents provided with the application that may include birth certificate, foreign passport, driver’s licence etc.
4.4. Eligibility to sit the assisted test
As provided in the Determination, to be eligible to sit the assisted test the applicant must:
·Meet the eligibility requirements to sit the standard test (section 4.3 Eligibility to sit the standard test above refers); and
·Have low literacy skills as measured by:
oBoth:
§Completion of at least 400 hours of English language tuition under Adult Migrant English Program (AMEP); and
§Assessment by the AMEP provider as having less than basic reading skills in English (AMEP attendance and English reading level can be confirmed by accessing the AMEP Reporting Management System (ARMS), which can be accessed through the Citizenship Assisted Test system (CATS); or
·Have a physical or cognitive impairment, whether temporary or permanent, that prevents them from sitting the standard test, even with the assistance of the Test Administrator (see section 4.2 above).
…
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the AAT Act, referred to as the ‘T documents’ and additional medical reports submitted by Ms Yaqo.
In a Psychological Treatment Review for Basima Jameel dated 1 Oct 2022, prepared by a Psychologist at Psych Essence Psychological Services, they opined:
Thank you for your recent referral of Basima Jamel. I wish to inform you that I have so for had 6 consultations with Basima under your referral dated 26 Feb 2022. Basima has presented to therapy with various symptoms of adjustment disorder as well as features of PTSD. Her symptoms include sleep disturbance, persistent feelings of sadness, high levels of worry, lack of motivation, and social withdrawal. During therapy she was provided with psychoeducation and CBT and mindfulness techniques to help with managing and lowering severity of her symptoms. However limited progress was achieved. Basima has now begun psychiatric treatment with Dr Sam Asaadi and she, is keen on trying medications and wants to improve her mental wellbeing.
On 22 November 2022, Dr Sam Asadi provide an update of treatment for Ms Yaqo to her general practitioner in it her opined:
I am writing to provide an update regarding Mrs Basima Jameel whom l saw today for the second time.
Basim is suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood. It seems that Basima's psychological condition is secondary to a few psychosocial stresses.
On 1 March 2023, Ms Soorah Albatat, Registered Clinical Psychologist, provided the following report in support of Ms Yaqo’s application for conferral of Australian citizenship under section 21(3) of the Act. Ms Albatat opined:
Basima's reported symptoms are consistent with the DSM-5 criteria for Adjustment Disorder with mixed anxiety and depressive symptoms. Her symptoms include difficulties with adjusting to the charges surrounding the health of her family members, high levels of worry, sleep disturbance, feelings of helplessness, lack of motivation, loss of interest in activities she used to enjoy doing and social isolation. Basima also reported features of the DSM-5 criteria for Post Traumatic Stress Disorder (PTSD) including having nightmares, flashbacks, overly negative thoughts about herself, and poor concentration and memory skills. She does not however meet the full criteria due to absence of Criterion C (avoidance). Nevertheless, the trauma has evidently impacted on her ability to fully concentrate and attend to presented information.
Due to the severity of Basima's mental wellbeing, she is also currently under the care of a psychiatrist, and she is currently on Desvenlafaxine (150mg), Quetiapine (25mg) and Temazepam (10mg).
Basima has made very limited progress in therapy. She has been presented with various therapeutic techniques of Psychodynamic therapy, CBT and mindfulness.
However due to the severity and permanent nature of her presented problems, Basima has not made much progress in managing her symptoms of PTSD and adjustment disorder. Basima is highly dependent on her psychiatric medications for managing her symptoms of PTSD and adjustment disorder.
In a Psychological Treatment Review for Basima Jameel dated 1 May 2023 prepared by a Psychologist at Psych Essence Psychological Services, they opined:
Thank you for your recent referral of Basima Jameel. I wish to inform you that I have so far had 6 consultations with Basima under your referral dated 30 Jan 2023. As you are aware Basima has continued to suffer from adjustment disorder with underlying features of PTSD and this has worsened in the past few months due to her current pregnancy. Basima's mental wellbeing has deteriorated due to fears of having another with cognitive and developmental delays.
I have presented various techniques of CBT and mindfulness techniques to help improve her mental wellbeing. Unfortunately, limited progress has been made and Basima remains to be anxious and depressed about her future baby. Basima has established good rapport and uses therapy as supportive therapy to talk about her poor mental wellbeing. Basima has shown interest in continuing with therapy.
Ms Fadia Isaac, Clinical Psychologist has assessed Ms Yaqo mental health status on several occasions and has been provided clinical treatment to Ms Yaqo since November 2023.
On 4 March 2023, Ms Issac opined:
During our sessions Mrs Jameel reported the following symptoms: depressed mood most of the da nearly every day, feeling emotional, severe concentration difficulties, disconnection with others lo s of interest in activities or hobbies that used to be enjoyable, lack of energy, low motivation. no tolerance with others, feelings of w01thlessness and hopelessness, lack of sleep, feeling stuck, low self-esteem excessive worry about what might happen to her and her younger son and her husband, difficulties in controlling the worry, feeling agitated and restless, easily fatigued, lack of trust of others, and feeling dissatisfaction with life.
Mrs Jameel' above reported symptoms are consistent with the diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders for a Major Depressive Disorder single episode severe, with anxious distress features (296.33, F33.2).
Mrs Jameel’s also reported the followings symptoms: dissatisfaction with quality and quantity of sleep, inability to maintain sleep despite available opportunity for sleep, feeling sleepy and tired during the day which causes significant distress in her personal life. the sleep difficulties occur 7/7 nights in a given week, sleep difficulties have been present since the birth of hr younger son, her sleep difficulties are not attributable to physiological, substance abuse or any other known or diagnosed sleep disorders.
Mrs Jameel 's above reported symptoms are consistent with the diagnosis listed in the Diagnostic and statistical Manual of Mental Disorders for Insomnia Disorder (persistent, 307.42, F51.01).
Further to the above diagnoses, Mrs Jameel reported the following symptoms: presence of unwanted and persistent obsessions/thoughts of the need to check doors, windows and the stove, and compulsions of repetitive behaviour of checking and rechecking of the doors, windows, and stove every 10 minutes throughout the night, the rechecking is to ease the anxiety and lessen the worry Mrs Jameel experiences at night, the obsessions and the compulsions take place day and night, however, they are more bothersome for Mrs Jameel during the night, the obsessions or compulsions are time-consuming, they occur every 10 minutes and affect the quality of her life, the obsessive-compulsive symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical conditions, and the disturbance is not better explained by the symptom of another mental disorder.
Mrs Jameel’s above reported symptoms are consistent with the diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders for Obsessive-Compulsive Disorder DSM-5 (300.3) (F42) with poor insight.
Recommendations
Mrs Jameel suffers from multiple health conditions that are currently not monitored by a psychiatrist who can oversee the severity of her conditions and monitor her medications. Mrs Jameel's lack of knowledge and poor insight into her mental health created an uncertainty for me as to the purpose of the medications prescribed by the previous psychiatrist during our sessions. When I asked her about the diagnosis she was given by her psychiatrist, she informed that she is upset and tired, however she couldn't identify what her diagnoses were.
Her general partitioner monitors her current medications and provides ongoing medical care. In my clinical view, Mr Jameel is in need of a psychiatrist who speaks Arabic or Syriac to re-assess her medications and monitors her mental health struggles. I strongly believe that she needs an ongoing care due to the severity and the ongoing nature of her mental health conditions…
Mrs Jameel has no life dreams, goals or future plans. Her only wish is for her symptoms to ease. Her inability to carry out simple tasks such as cooking and cleaning due to her lack of motivation, reinforces a sense of low self-esteem, low self-confidence and low self-worth.
Given the presentation of Mrs Jameel, her background information, the diagnose highlighted on pages 3 and 4, the ongoing nature of her mental health condition and the significant psychological factors highlighted above, I strongly support Mrs Jameel’s application for an exemption from sitting the Australian citizenship test. I strongly believe that sitting the test will cause an escalation of her current symptoms. Furthermore, during our sessions, Mrs Jameel was unable to demonstrate a basic knowledge of the English language. The concentration difficulties, and the impact of the trauma of receiving death threats severely impacted on her ability to acquire new information. Mrs Jameel has ongoing, significant and severe mental health conditions of depression, insomnia and OCD, that are not successfully treated and/or monitored by a mental health professional/ psychiatrist. It is very likely that sitting the Australian Citizenship test will cause further stress and it would be detrimental to Mrs Jameel's mental health.
On 31 August 2023 Ms Issac opined:
I assessed Ms Jameel’s mental health status as having a mental health incapacity that affects her daily living. Her mental incapacity is attributable to multiple events in her life including, severe trauma related to receiving death threats, her husband’s mental health status, and her younger child’s diagnosis of autism. In the referral letter, Dr Lamia Jasim from LAMIA Medical Centre reported diagnosis of both depression and anxiety for Ms Jameel. Upon my clinical assessment, I have found that Ms Jameel’s diagnosis go beyond depression and anxiety to include clinical insomnia and obsessive-compulsive disorder (OCD).
I can confirm, with clinical confidence, that when Ms Jameel presented to my service in February of 2023, she has exhibited and experienced symptoms that met the clinical diagnosis of Major Depressive Disorder Single Episode severe, with anxious distress features (296.33, F33.2), Insomnia Disorder (persistent, 307.42, F51.01), and Obsessive-Compulsive Disorder DSM-5 (300.3) (F42) with poor insight.
…..
Ms Jameel’s incapacity links to the following: she cannot demonstrate a basic knowledge of English. As stated in my report, her highest educational qualification was completing year 4. Her knowledge in the Arabic language is limited, so this can be an obstacle to her ability to learn English and succeed in passing her Australian Citizenship test. In addition, due to the nature of her mental health conditions at the time of my engagement with her, I strongly believe that she has limited capacity to learn and retain new information. Furthermore, her mental health conditions of depression, insomnia and OCD will have a negative impact on her ability to learn new information.
On 7 November 2023, Ms Issac opined:
12. In your opinion, is the applicant expected to show improvement?
As stated previously, both insomnia and depression disorders can be successfully treated by using cognitive behavioural therapy over a period of time where the client is committed to their psychological and medical treatment if medical intervention is warranted. However, the prognosis around OCD is complex and recovery may not be possible on some occasions. In my clinical practice, I have offered psychological treatment to clients presenting with OCD. However, recovery was not always achievable and many of those clients had to learn to live with the disorder by managing their symptoms for years after their initial diagnosis.
Ms Jameel may show some improvements in terms of depression and insomnia symptoms. However, with her OCD symptoms I will need to engage with Ms Jameel in therapy for the duration of 2 years to observe if her symptoms of OCD will respond to treatment. OCD is a complex mental health condition that is unpredictable. My suggestion to Ms Jameel to see a psychiatrist was for the purpose of providing Ms Jameel with medical treatment to help with the treatment of her OCD hence therapy alone is not sufficient to treat the condition.
13. If yes, how long is it likely to take the applicant to improve?
My clinical knowledge suggests that we need ongoing therapy for 2-3 years to observe if any improvements of her OCD symptoms can be seen.
14. How does the applicant’s incapacity link to the person not being able to demonstrate:
•an understanding of the nature of the application for Australian citizenship; or
• a basic knowledge of English; or
• an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.
There are two factors that should be considered when addressing the above question:
1. The diagnosis of depression, insomnia, and OCD all involve concentration difficulties, which can make learning new materials challenging and to some extent impossible. I believe that Ms Jameel has severe conce[n]t[r]ation difficulties.
2. Ms Jameel’s highest education in her country was completing year 4. Whilst Ms Jameel can speak Arabic, she cannot read and write Arabic. Further to that, when Ms Jameel arrived to Australia, she attended English classes for a few months before she became pregnant with her youngest son. After the birth of her child, she needed to provide full time care to him hence his diagnosis of autism. She never attended any further English classes afterwards.
CONTENTION
Ms Yaqo
Ms Yaqo representative contented that:
·At the time she made her application for Australian citizenship by conferral, she had been suffering a long-term mental incapacity, which had been diagnosed by a psychiatrist and numerous clinical psychologists.
·She has been diagnosed and is being treated for Major Depressive Disorder Single Episode severe, with anxious distress features, Insomnia Disorder and Obsessive-Compulsive Disorder.
·That her long-term mental health issues mean she is not capable of 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.
·She is illiterate in her own language and whilst she had attempted to learn English, she had found it impossible and gave up going to English classes.
·That the stress impacting on her mental health status of caring for her young son with severe autism, her husband’s chronic mental health issues requiring ongoing medication, her elderly mother-in-law and new baby, are not going to resolve any time soon.
·Her condition is chronic and she believes she will never recover; that she gets no benefit from seeing her psychologist but continues to see her as it seems to assist her with coping with her condition.
Ms Yaqo’s representative in his written Statement of Facts, Issues and Contentions submitted that Ms Yaqo:
·was not equipped with the necessary faculties and intelligence to complete the test for Australian citizenship.
·had attempted and failed the Citizenship test on a number of separate occasions for the following reasons:
·She has been diagnosed with Major Depressive Disorder Single Episode severe, with anxious distress features (296.33, F33.2), Insomnia Disorder (persistent, 307.42, F51.01), and Obsessive-Compulsive Disorder DSM-5 (300.3) (F42) with poor insight.
·Her Cognitive Assessment Instrument for Obsessions and Compulsions (CAIOC-13) score of 68 indicates significant cognitive impairments, affecting her ability to acquire, process, and retain new information.
·Has a 10-year-old son diagnosed with severe autism and a husband struggling with chronic mental health issues.
·Left school in grade 3 in Iraq and never learnt comprehension and how to read and write in Arabic.
·Is suffering from a number of psychological issues and is receiving treatment for her issues.
Respondent
The Respondent contended that the decision under review should be affirmed on the basis that the evidence before the Tribunal does not demonstrate that Ms Yaqo had a “permanent or enduring physical or mental incapacity”, that means that she does not have the capacity to understand the nature of the application or demonstrate a basic knowledge of the English language or demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, as required under s 21(3)(d) of the Citizenship Act.
The Respondent acknowledged that Ms Yaqo had provided numerous reports from various medical practitioners in support of her application for review. With the following reports being provided by suitability qualified specialists in accordance with CPI 2:
(a) report of Dr Sam Asadi, Consultant Psychiatrist, dated 24 November 2022.
(b) reports of Soorah Albatat, Clinical Psychologist, dated 12 October 2022, 1 March 2023 and 1 May 2023.
(c) reports of Fadia Isaac, Clinical Psychologist, dated 4 March 2023, 31 August 2023, 7 November 2023 and 22 April 2024.
The Respondent accepted that Ms Yaqo has been diagnosed with major depressive disorder single episode severe, with anxious distress features, insomnia disorder, and obsessive-compulsive disorder with poor insight prior to making her application for citizenship on 11 May 2023, and therefor had these conditions at the time of her citizenship application.
The Respondent acknowledged that Ms Isaac expressed the view in her 22 April 2024 report that she considered Ms Yaqo’s mental health condition to be "permanent".
However, the Respondent submitted in Ms Isaac’s 7 November 2023 report that she stated patients generally require two to three years of therapy before an assessment can be made as to whether their symptoms will improve. At the time of Ms Isaac's 22 April 2024 report, Ms Yaqo had been following her treatment plan for a period of only six months.
Accordingly, the Respondent contended that while Ms Yaqo had been diagnosed with certain conditions prior to making her application for Australian citizenship, she has not yet completed the treatment recommended by Ms Isaac for the period that Ms Isaac considers is necessary to ascertain whether her symptoms may improve.
In these circumstances, the Respondent contended that it is too soon to determine whether Ms Yaqo’s mental incapacity is permanent or enduring, and that the Tribunal should accordingly not be satisfied that she has a permanent or enduring mental incapacity, nor that she had such an incapacity at the time she applied for Australian citizenship.
The Respondent submitted the second part of the test in paragraph 21(3)(d) of the Citizenship Act requires that Ms Yaqo’s mental incapacity is the direct cause of her not being 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.
The Respondent submitted Ms Yaqo had not provided any specific evidence that suggests she is not capable of understanding the nature of her application or demonstrating her knowledge of Australia and Australian citizenship. Additionally, the Respondent submitted Ms Yaqo has also not been assessed specifically on her ability to learn and retain English.
The Respondent submitted Ms Yaqo had supplied reports from various medical practitioners which noted Ms Yaqo had issues with concentration and memory. However, the Respondent submitted whilst the reports indicated she had a significant cognitive impairment that affects her ability to acquire, process and retain new information, none had stated that this impairment prevented Ms Yaqo from understanding the application for Australian citizenship (s 21(3)(d)(i)), demonstrating a basic knowledge of the English language (s 21(3)(d)(ii)), or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (s 21(3)(d)(iii)).
The Respondent submitted Ms Yaqo’s evidence had been that her ability to learn English had been impacted by the fact she had only received four years of schooling in Iraq, and that she cannot read or write Arabic. In this regard, the Respondent contended that CPI 2 relevantly provides in paragraph 6.3 that a person's illiteracy in their native language or English does not necessarily constitute a mental incapacity for the purposes of paragraph 21(3)(d) of the Citizenship Act.
The Respondent acknowledges that Ms Yaqo has not learned and retained the English language. However, the Respondent submitted Dr Asadi attributes Ms Yaqo’s limited English to her having attended English classes for a period of only four months and making little progress, and that this was consistent with the view of Ms Albatat, who states that Ms Yaqo 'has had very limited opportunity to learn the English language as she has been occupied with the care she provides to her son'; with the effect that 'Basima has not been able to attend English classes and as such she is currently illiterate in the English language'.
Accordingly, the Respondent contended that Ms Yaqo’s inability to demonstrate a knowledge of English is the result of her limited education and study of the English language. The Respondent contended that just because Ms Yaqo does not currently have a basic knowledge of English, it does not necessarily follow that she incapable of learning English, even if it may be difficult for her to do so.
Additionally, the Respondent submitted at the time of her application, Ms Yaqo held a Victorian driver's licence. The Respondent contended the Tribunal has previously considered that obtaining a licence 'requires a degree of functional capacity or literacy in English. Although the Respondent acknowledged this was not determinative, the Tribunal has found that holding an Australian driver's licence 'is not consistent with the type of incapacity and lack of capability contemplated by s 21(3)(d)’.
On the balance, the Respondent contended that Ms Yaqo had provided insufficient evidence that her mental incapacity is a direct cause of her not being capable of learning English.
CONSIDERATION
Fundamentally, as numerous Members at the AAT had previously observed, the Tribunal is required to determine whether or not Ms Yaqo qualified under s 21(3)(d) of the Act at the time of her application, to be granted an exemption from having to undertake the Citizenship Test.
The Tribunal concurred with the Respondent that Senior Member Kirk’s determination in Sahar[3] outlines that there needs to be a clear causal connection between Ms Yaqo’s mental incapacity and her inability to meet one of the three requirements of in section 21(2)(d), (e) or (f).
As Senior Member Puplick observed in Butrus and Minister for Immigration and Border Protection [2019] AATA 239 at [61]: in order for the requirements of s 21(3)(d) to be satisfied, there must be established a ‘clear causal connection’ between a permanent or enduring physical or mental incapacity at the time of the citizenship application and one of the three requirements in s 21(2)(d), (e) and (f) termed by Senior Member Taylor in Khodeir as awareness, English and knowledge. The evidence must support a finding that the Applicant has a permanent or enduring physical or mental incapacity, and that there is a direct causal link between this incapacity and his lack of understanding of the nature of the citizenship application (‘awareness’), or his lack of a basic knowledge of the English language (‘English’), or his lack of an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship (‘knowledge’).
Did Ms Yaqo have a permanent or enduring physical or mental incapacity at the time of her application.
[3] Sahar and Minister for Home Affairs [2019] AATA 1232.
The Tribunal was satisfied on the extensive medical evidence before it that, at the date of Ms Yaqo’s application for citizenship by conferral on 11 May 2023, she suffered a permanent and enduring mental incapacity.
The Tribunal, as guided by the Citizenship Policy, relied upon the diagnoses of Dr Asadi, Ms Albatat and Ms Issac, as all are specialists in their field, and whom Ms Yaqo had seen following referral from her general practitioner. The Tribunal in its determination that Ms Yaqo suffered from a mental incapacity relied upon:
(a)Ms Issac’s assessment that Ms Yaqo’s reported symptoms were consistent with the diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders for a Major Depressive Disorder single episode severe, with anxious distress features (296.33, F33.2) and additional Obsessive-Compulsive Disorder DSM-5 (300.3) (F42) with poor insight.
(b)Ms Albata’s assessment that Ms Yaqo’s reported symptoms were consistent with the DSM-5 criteria for Adjustment Disorder with mixed anxiety and depressive symptoms.
(c)Dr Asadi’s assessment that Ms Yaqo was suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood.
The Tribunal guided by the Citizenship Policy, which anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis, accepted the evidence of various practitioners that Ms Yaqo had been receiving treatment for her mental health conditions under a mental health care plan from February 2022 until the present.
The Tribunal did not concur with the Respondent that it was too early to determine if Ms Yaqo’s incapacity was permanent or enduring, nor that it could not determine that Ms Yaqo had such an incapacity at the time she applied for Australian citizenship.
The Tribunal relied on the evidence of Dr Asadi, Ms Albatat and Ms Issac that Ms Yaqo’s mental incapacity was permanent, that she suffered from both cognitive and psychological deficits that are of chronic and of an on-going nature. The consistent evidence before the Tribunal was that Ms Yaqo had made no progress in her treatment and that the underlying psychosocial stresses in her life are a complete barrier to her symptoms improving.
The Tribunal did not find that the report of Ms Issac gave rise to an expectation that with time Ms Yaqo’ mental health condition would improve. The Tribunal noted Ms Issac’s observation that:
My clinical knowledge and research suggest that both insomnia and depression disorders can be successfully treated by using cognitive behavioural therapy over a period of time where the client is committed to their psychological and medical treatment if medical intervention is warranted. However, the prognosis around OCD is complex and recovery may not be possible on some occasions. In my clinical practice, I have offered psychological treatment to clients presenting with OCD. However, recovery was not always achievable and many of those clients had to learn to live with the disorder by managing their symptoms for years after their initial diagnosis. A longitudinal study that followed sufferers of OCD for 40 years found that a complete recovery was observed in only 20% of the sample and most participants continued to have clinical and subclinical symptoms (Shoog & Shoog, 1999).
Additionally, the Tribunal relied upon the report of Ms Albatat who opined:
Due to the severity of Basima's mental wellbeing, she is also currently under the care of a psychiatrist and She is currently on Desvenlafaxine (150mg), Quetiapine (25mg) and Temazepam (10mg) .
Basima has made very limited progress in therapy. She has been presented with various therapeutic techniques of Psychodynamic therapy, CBT and mindfulness. However due to the severity and permanent nature of her presented problems, Basima has not made much progress in managing her symptoms of PTSD and adjustment disorder. Basima is highly dependent on her psychiatric medications for managing her symptoms of PTSD and adjustment disorder.
The Tribunal also relied upon Ms Yaqo’s presentation and evidence before the Tribunal which reinforced the numerous medical reports that Ms Yaqo had difficulty comprehending and concentrating; displayed poor memory skills and had difficulty following or digesting information. Ms Yaqo presented as a credible witness who appeared totally ground down by her personnel circumstances.
The Tribunal did not doubt Ms Yaqo’s evidence that she:
·Was mentally tired, depressed, had several problems, suffered memory loss, was isolated from society.
·That she had been trying to get help for her mental condition, but nothing worked, that she does not believe she ever improve.
·She feels hopeless, can’t sleep and her compulsive disorder was impacting her greatly.
·Is caring for her husband who has his own severe mental health issues; her severely autistic son, elderly mother-in-law and baby.
·That she is constantly vigilant and distressed particularly about fearing her baby son may also suffer from autism.
·That she has no capacity to read and write in Arabic.
·That she has no capacity to learn English.
·That she sat the citizenship test on at least 5 occasions and was unable to understand or complete the test.
·No one offered her assistance during the test, given that she cannot read/write or use a computer.
The Tribunal, based on all the evidence, was therefore satisfied that Ms Yaqo had at the time of her citizenship application a mental incapacity that was ‘either permanent or sufficiently long-term as to be enduring’, and ‘one for which there cannot be a predicted recovery’ as contemplated by the Citizenship Policy.
Is Ms Yaqo’s mental incapacity the direct cause of the applicant not being 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 citizenship.
The Tribunal was satisfied on the extensive medical evidence before it that, at the date of Ms Yaqo’s application for citizenship by conferral on 11 May 2022, she was incapable, by reason of her mental incapacity, 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.
The Tribunal relied upon the evidence of Ms Albatat and Ms Issac that Ms Yaqo was incapable, by reason of her mental incapacity, of sitting the citizenship test:
(a)Ms Albatat
Due to the complex nature of Basima's presented problems; underlying trauma and adjustment disorder, I do not believe Basima has the mental and/or cognitive capacity to perform the Australian citizenship test. It is important to note that Basima had tried to conduct the test but failed 4 times. It is clear that Basima is suffering from both cognitive and psychological deficits that are of chronic and on-going nature and are most likely a barrier to passing the Australian citizenship test. I therefore support Basima's application for conferral of Australian citizenship with exemption of testing.
(b)Ms Issac
Mrs Jameel has no life dreams, goals or future plans. Her only wish is for her symptoms to ease. Her inability to carry out simple tasks such as cooking and cleaning due to her lack of motivation, reinforces a sense of low self-esteem, low self-confidence and low self-worth.
Given the presentation of Mrs Jameel, her background information, the diagnoses highlighted on pages 3 and 4, the ongoing nature of her mental health conditions and the significant psychological factors highlighted above, I strongly support Mrs Jameel's application for an exemption from sitting the Australian citizenship test. I strongly believe that sitting the test will cause an escalation of her current symptoms. Furthermore, during our sessions, Mrs Jameel was unable to demonstrate a basic knowledge of the English language. The concentration difficulties, and the impact of the trauma of receiving death threats severely impacted on her ability to acquire new information. Mrs Jameel has ongoing, significant and severe mental health conditions of depression, insomnia and OCD, that are not successfully treated and/or monitored by a mental health professional/ psychiatrist. It is very likely that sitting the Australian Citizenship test will cause further stress and it would be detrimental to Mrs Jameel's mental health.
It should be noted that that in order to satisfy the requirements of section 21(3)(d) of the Act, Ms Yaqo need only establish a causal connection between her mental incapacity and one of the requirements of awareness, English or knowledge.
The Tribunal was not persuaded by the Respondent’s contention that Ms Yaqo’s inability to demonstrate a knowledge of English was simply the result of her limited education and study of the English language. The Tribunal did not find Ms Yaqo’s circumstances were analogous to those determined by Senior Member Puplick in the matter of Butrus:[4]
There is no doubt that the Applicant suffers under a number of constraints in terms of his ability to meet the requirements of Australian citizenship. However these constraints derive primarily from his illiteracy in either Arabic or English. He has learned to speak other languages, albeit as a child (or at least younger person) rather than as an adult where learning is recognised to be more difficult. He started to learn English on his arrival in Australia but his reasons for not persisting with this effort are unpersuasive given his then situation and circumstances.
In order to meet the requirements of s 21(3)(d) what needs to be established is the clear causal connection between a significant physical or mental incapacity and the inability to understand either the nature of the citizenship application or the privileges and obligations of citizenship and the ability to demonstrate a basis knowledge of the English language.
[4] Butrus and Minister for Immigration and Border Protection [2019] AATA 239.
The Tribunal considered on the evidence that Ms Yaqo’s mental incapacity and persistent psychosocial stresses made her incapable of demonstrating or gaining in time a basic knowledge of the English language. The Tribunal considered that Ms Yaqo’s chronic mental health conditions which have proved resistant to improvement, were the cause of her impaired cognitive skills which affected her ability to learn new information. The Tribunal found Ms Yaqo’s circumstances were analogous to those determined by Senior Member Kirk in the matter of Sahar:[5]
In relation to demonstrating a basic knowledge of the English language, the evidence of Dr Aljahali is that while the Applicant had some pre-existing learning difficulties or limited cognitive abilities which would have affected his ability to study and learn English, his mental incapacity made these difficulties more profound and severe. His mental illness has impaired further his cognitive skills and affected his ability to learn new information. On the basis of this evidence, the Tribunal is satisfied that there is the required causal connection between the Applicant’s permanent or enduring mental incapacity and his incapacity to demonstrate a basic knowledge of the English language. Accordingly, the Tribunal is satisfied that the Applicant meets the criteria in s 21(3)(d) and is therefore exempt from the requirement to undertake the Citizenship Test.
[5] Sahar and Minister for Home Affairs [2019] AATA 1232.
The Respondent correctly observed that Ms Yaqo had been able to obtain her Victorian driver’s licence which the Respondent contended implied Ms Yaqo must have been able to demonstrate a basic understanding of English. It should be noted there is no requirement that an individual has the ability to read or write English to pass their driver’s licence.
The Tribunal enquired of how Ms Yaqo had been able to obtain her driver’s licence given her complete lack of English and her mental health issues. Ms Yaqo’s evidence was she had obtained her driver’s licence not long after she had arrived in Australia and at that time she was not suffering as she is now from her mental health conditions. Ms Yaqo advised she had sat the written components of her driver’s license test with the aid of an interpreter who had read her the questions and entered Ms Yaqo’s answers.
The Tribunal notes Ms Yaqo’s driver’s licence has an expiry date of December 2029, which would indicate she obtained her licence in or prior to 2019 as Victorian licenses require renewal every 10 years. Given the evidence demonstrates Ms Yaqo commenced seeking help for her mental health conditions in 2022, this would support Ms Yaqo’s contention that she was in a better state of mental health when she sat and passed her driver’s licence test.
On the balance, the Tribunal is satisfied that Ms Yaqo has provided sufficient evidence that her mental incapacity is a direct cause of her not being capable of learning English, as such she fulfills the criteria in section 21(3)(d) of the Act and is therefore exempt from the requirement to undertake the Citizenship Test.
DECISION
The decision under review is set aside on the basis that the Tribunal finds that the Applicant qualifies under s 21(3)(d) of the Citizenship Act 2007 (Cth) to be exempted from undertaking the Australian Citizenship Test.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
...................[sgd].......................
Associate
Dated: 6 August 2024
Date of hearing: 19 July 2024 Advocate for the Applicant:
Mr Robert McMahon Advocate for the Respondent: Ms Kate Ervin Solicitors for the Respondent: Clayton Utz
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