Zahidy and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3249

Zahidy and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3249 (6 September 2024)
Division:GENERAL DIVISION
File Number:2023/5306
Re:Shamail Zahidy
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:6 September 2024
Place:Perth

The decision of a delegate of the Respondent dated 17 July 2023, to refuse to grant the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth), is affirmed.
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L M Gallagher
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 21(3)(d) – whether Tribunal satisfied Applicant had permanent or enduring physical or mental incapacity – Applicant a citizen of Afghanistan – where Applicant allegedly suffers from anxiety, mental stress, PTSD, traumatic brain injury and language learning difficulties – Tribunal cannot be satisfied Applicant had permanent or enduring physical or mental incapacity – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 21(1), 21(3)(d), 21(3)(h), 24, 24(1A), 52(1)(b)
CASES
Butrus and Minister for Immigration and Border Protection [2019] AATA 239
SECONDARY MATERIALS
Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (1 January 2023)
REASONS FOR DECISION
L M Gallagher, Member
6 September 2024
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated 17 July 2023, to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).[1]
[1] R3, T1, p 1.
The basis for the refusal was that the delegate was not satisfied that at the time of the decision the Applicant had a permanent or enduring physical or mental incapacity, for the purposes of s 21(3)(d) of the Act.
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
ISSUE
The issue is whether the Tribunal is satisfied that the Applicant meets the requirements for Australian citizenship set out in s 21(3)(d), being whether the Applicant had a permanent or enduring physical or mental incapacity at the time of making her citizenship application.
BACKGROUND
The Applicant is a 40-year-old citizen of Afghanistan.[2]
[2] R3, T2, p 12.
The Applicant first arrived in Australia on 12 January 2016 as the holder of a Refugee (subclass 200) visa.[3]
[3] R3, p 73.
Applicant’s claim history
On 21 June 2022, the Applicant applied to the Department of Home Affairs (the Department) for Australian citizenship by conferral.[4] The Applicant used ‘Form 1290 – Application for conferral of Australian citizenship – other situations’. On her application form, the Applicant answered ‘yes’ to the question:[5]
Is the Applicant permanently physically or mentally incapacitated and is not capable of understanding the nature of the application?
[4] R2, T3.
[5] R3, T3, p 20.
On 17 April 2023, the Department requested further information from the Applicant, in particular, evidence of her incapacity.[6]
[6] R3, T5.
On the same day, the Applicant advised the Department by email that she had no further information or documents to submit.[7] The Applicant then provided a photograph of her Medicare card.[8]
[7] R3, T7.
[8] R3, T8.
On 17 July 2023, a delegate of the Respondent made the Reviewable Decision.[9]
[9] R3, T1, p 7 to 8. See [1] above.
On the same day, the Applicant applied to the General Division of the Tribunal seeking review of the Reviewable Decision.[10]
[10] R3, T1.
LEGISLATIVE AND POLICY FRAMEWORK
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian Citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(3)(d) of the Act provides that 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…
Further, s 24 of the Act provides:
(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.
…
(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).
Accordingly, under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘has a permanent or enduring physical or mental incapacity, at the time the person made the application’, that being the requirement of s 21(3)(d) of the Act.
The meaning of a permanent or enduring physical or mental incapacity
The term ‘permanent or enduring mental incapacity’ is not defined by the Citizenship Act. However, the Revised Citizenship Procedural Instructions (CPI) provides guidance on what is meant by this phrase.
According to the CPI Chapter 2 (CPI 2),[11] an enduring incapacity is one for which there cannot be a predicted recovery, or if there is, it is long-term.[12] An example is where a person has a congenital birth defect or has suffered a stroke and their prognosis of recovery is not predictable.[13]
[11] Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2).
[12] CPI 2 at [6.2].
[13] CPI 2 at [6.2].
Further, the CPI 2 states that 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 in the circumstances.[14]
[14] CPI 2 at [6].
The CPI 2 also states that there are two limbs to s 21(3)(d) which an applicant must satisfy:[15]
(a)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;[16]
(b)The incapacity must be the direct cause of the applicant not being capable of:
(i)understanding the nature of the application; or
(ii)demonstrating a basic knowledge of English; or
(iii)demonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
[15] CPI 2 at [6.1].
[16] See [19] above.
In Butrus and Minister for Immigration and Border Protection [2019] AATA 239 at [61], Senior Member Puplick explained that the evidence must demonstrate a clear causal connection between the 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 basic knowledge of the English language.
EVIDENCE
The matter was heard in Perth on 1 May 2024. The Applicant was self-represented and appeared with the support of her husband, Riza Zahidy and with the assistance of a Hazaraghi interpreter. The Respondent was represented by Ms Madisen Scott of Australian Government Solicitors. Both parties appeared in person. The interpreter appeared via Microsoft Teams video.
The Tribunal received the following evidence:
(a)Letter from Mr Seyed Hosseinipur, Psychologist, dated and filed 19 October 2023 (A1);
(b)Letter of Support from Mr Rhian Healy, South Metropolitan TAFE, undated and filed 18 December 2023 (A2);
(c)Respondent’s Statement of Facts, Issues & Contentions dated and filed 14 February 2024 (R1);
(d)Respondent’s letter containing questions to Applicant’s Psychologist dated 28 September 2024 and filed 2 October 2023 (R2); and
(e)Respondent’s Section 37 T Documents (T1-T14, consisting of 140 pages) filed on 11 August 2023 (R3).
The Tribunal heard oral evidence from the Applicant with the assistance of the interpreter. No other witnesses were called.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
The Applicant claims that her difficulties learning English prevent her from passing the citizenship test. In her application for review, the Applicant claims the Reviewable Decision is wrong because:[17]
I have problems with learning English, I attended TAFE but my problem got worse, and always have a headache and can’t sleep properly.
Every time [sic] attended my citizenship test [sic] had too much stress and was sick [sic] few days after each appointment. Finally saw my family doctor and he gave me medication which I’m still using it [sic], and he referred me to a psychologist, first I saw a psychologist in Kalamunda here in WA because I didn’t know any English she referred me to a psychologist in Sydney who was speaking Farsi, I had consultation with him via Zoom for 5 weeks, at [sic] he gave a certificate which I will including [sic] to this application.
And during the appointment I tried to get my husband with me but they didn’t allowed [sic] because of COVID-19, that’s why I didn’t understand [sic] the counter, they might ask me [sic] or [sic] told me something but I didn’t understand.
In the last appointment I thought the lady said they will send me another appointment but instead they refused my application.
For more details of my learning problems you can contact the psychologist or my family doctor. I really need your assistance please I am unable to pass the test.
[17] R3, T1, p 5.
Letter from Dr Masoud Davatgaran Tabriz, General Practitioner
The Applicant provided a letter from Dr Masoud Davatgaran Tabriz (general practitioner), dated 2 February 2021.[18] The letter states that the Applicant is suffering from medical conditions which “affects her preparation for the citizenship exam”, being “anxiety disorder more than 2-3 years”, a thyroid issue and iron deficiency.[19] The letter also states that the Applicant’s medical conditions and language barrier make it very hard for her to pass the citizenship exam.
[18] R3, T3, p 43.
[19] R1, p 2.
The Applicant also provided a letter from Mr Hosseinipour dated 17 December 2021.[20] In his letter, Mr Hosseinipour states that:
(a)Dr Tabriz indicated that the Applicant’s mental health has significantly declined as her application for citizenship has been rejected several times due to failing the English knowledge test;
(b)The Applicant’s learning difficulty could be the result of a fall the Applicant had in Afghanistan when she was seven years old. However, due to the lack of evidence of a brain injury, the Applicant did not go to the hospital. Further, a lack of comparison with other children, makes it difficult to determine the Applicant’s age when her learning difficulty arose; and
(c)It is likely the Applicant suffers from post-traumatic stress disorder (PTSD), however she has never been diagnosed and it is not diagnosable.
[20] R3, T1, p 9.
At hearing, the Applicant gave evidence that if she tries to concentrate on anything when under pressure, she gets mental stress and a headache.[21] The Applicant said that every time she attended her citizenship test,[22] she had too much stress.[23]
[21] Transcript, p 8.
[22] The Applicant confirmed she lodged two applications for citizenship, attending three of four times to take those tests. The present matter relates to the second of those applications.
[23] Transcript, p 8.
When asked, the Applicant said she had attended English classes three times per week.[24] The Applicant said that when she would leave her English classes she would forget everything she had read or learned.[25]
[24] Transcript, p 8.
[25] Transcript, p 8.
As to her driving test, the Applicant said she also got headaches when undertaking this test, that she failed the test three times and then retook the test with the assistance of an interpreter.[26]
[26] Transcript, p 9.
When asked about her consultations with Dr Hosseinipour, the Applicant said she had consulted with his via Zoom for five weeks and that was the only time she saw him.[27] The Applicant said that she takes regular medication to help manager her stress, but she has not had any ongoing therapy.[28]
[27] Transcript, p 9.
[28] Transcript, p 9.
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant had, as at 21 June 2022,

a permanent or enduring physical or mental incapacity, for the purposes of s 21(3)(d) of the Act.
This issue begs two further questions:
(a)Did the Applicant have a permanent or enduring incapacity at the time of her citizenship application on 21 June 2022, an enduring incapacity being one for which there cannot be a predicted recovery, or where if there is, it is long-term?
(b)If so, is the permanent or enduring incapacity the direct cause of the Applicant not being capable of:
(i)understanding the nature of the application; or
(ii)demonstrating a basic knowledge of English; or
(iii)demonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
Whether the Tribunal is satisfied that the Applicant has a permanent or enduring physical or mental incapacity
The Tribunal has considered the Applicant’s evidence in support of her claim, including the letter from Dr Tabriz[29] and the three letters provided by Mr Hosseinipour.[30] The Tribunal has also considered the letter from Mr Healy[31] and the Applicant’s evidence at hearing.[32]
[29] See [28] above.
[30] A1 (being the letter dated 19 October 2023) and R3, T1 pp 9 to 11 (being letters dated 7 July 2021 and 17 December 2021).
[31] A2.
[32] Transcript, pp 8 to 10.
The Applicant would like the Tribunal to accept her position that she meets the criteria set out above[33] such that the Tribunal ought to be satisfied that she suffered a permanent or enduring physical or mental incapacity at the time she made her citizenship application, for the purposes of s 21(3)(d) of the Act.
[33] See [35].
The Respondent considers, however, that while the Applicant has difficulties understanding English and participating in the citizenship test, there is no evidence before the Tribunal to demonstrate that she suffers a mental incapacity which is causing this.[34] The Respondent also maintains that while the evidence refers to multiple different conditions, it falls short of indicating how those conditions impact the Applicant or lead her to be incapable of demonstrating a basic knowledge of the English language.
[34] The Tribunal notes the Respondent’s related submissions at R1 [18] to [43].
The letter from Dr Tabriz expresses his appreciation for the Applicant to be exempt from the citizenship exam. Dr Tabriz goes on to the list the conditions from which the Applicant suffers. However, Dr Tabriz does not seek to explain how these conditions render the Applicant incapable of demonstrating or understanding the matters set out in s 21(3)(d) of the Act, or specify that these conditions are permanent or enduring. As such, the Tribunal affords Dr Tabriz’s letter little weight.
The letters from Mr Hosseinipour acknowledge that the Applicant has never attended school, has been assessed for learning difficulties and that she requires appropriate special education to learn English.
There is no suggestion from Mr Hosseinipour that the Applicant’s illiteracy itself is due to any incapacity.[35] Mr Hosseinipour’s opinion that the Applicant’s language learning disability indicates a traumatic brain injury is in reference to the Applicant’s statement that she fell off a roof when she was seven years of age. However, Mr Hosseinipour does not seek to specifically explain how the Applicant’s difficulties result from this event or from any the Applicant’s circumstances more broadly. For example, Mr Hosseinipour considers the Applicant very likely suffers from PTSD, due to her childhood, however states this has not been diagnosed and is undiagnosable.
[35] CPI 2 at [6.3] states that a person who is a person who is illiterate in their native language and English may not necessarily have an incapacity. Para [6.3] goes on to states that 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 s 21(3)(d) of the Citizenship Act.
In the Tribunal’s view, Mr Hosseinipour’s letters indicate that while the Applicant may require assistance to do so, she is capable of learning English and that while she lacks motivation to undergo special treatment for her learning difficulties, there are treatment options available to the Applicant should she wish to undertake them. The lack of diagnosis of PTSD or any other formal learning disability adds to the Tribunal’s difficulty in making a finding that the Applicant suffered a permanent or enduring mental incapacity at the time of making her citizenship application.
Similarly, Mr Healy’s letter does not serve to demonstrate this either. While Mr Healy considers the Applicant’s progress as a student in his English program as slow and intermittent, this does, in the Tribunal’s view, indicate some progress in her learning.
Having considered the available evidence, the Tribunal cannot be positively satisfied that at the time of making her citizenship application, any of the Applicant’s claimed conditions referred to the evidence (PTSD, traumatic brain injury, language learning difficulty etc) are permanent and enduring. There is no evidence to indicate the Applicant has undergone any treatment options available, or indeed that there are no such options or that she would be incapable of undergoing treatment for her conditions, or indeed continuing with her English education. Similarly, there is no evidence to demonstrate that any condition the Applicant may suffer from is causally connected to her inability to demonstrate a basic knowledge of the English language. As such, the Applicant fails to meet the criteria of s 21(3)(d) of the Act
CONCLUSION
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant has a permanent or enduring physical or mental incapacity for the purpose of s 21(3)(d) of the Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 July 2023, to refuse to grant the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth), is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

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Associate:
Dated: 6 September 2024

Date(s) of hearing: 1 May 2024

Advocate for the Applicant: Self-represented

Solicitors for the Respondent: Ms Madisen Scott, Australian Government Solicitors

Date(s) of hearing:	1 May 2024
Advocate for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms Madisen Scott, Australian Government Solicitors