Zarib and Minister for Home Affairs (Citizenship)

[2019] AATA 2708

Zarib and Minister for Home Affairs (Citizenship) [2019] AATA 2708 (19 August 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1712

Re:Zaia Zarib

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:19 August 2019

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – citizenship test – whether applicant has permanent or enduring physical or mental incapacity – PTSD – limited evidence of treatment – Tribunal not satisfied of applicant’s lack of English proficiency – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

19 August 2019

1. The applicant is a citizen of Iraq and arrived in Australia on 5 June 2010 as the holder of a Global Special Humanitarian (XB-202) visa.

2. On 20 May 2015, the applicant applied for Australian citizenship by conferral. He indicated in his application form that he had a permanent or enduring physical or mental incapacity. The applicant provided a letter from Dr Leo Tsang, psychiatrist, dated 28 April 2015, which indicated that the applicant suffered from “residual symptoms of Post-traumatic Stress Disorder (“PTSD”) as a result of his experiences in the Iraq Army”. On this basis, the applicant’s application for citizenship was considered pursuant to section 21(3) of the Australian Citizenship Act 2007 (Cth) (“the Act”). 

3. On 22 March 2018, a delegate of the Minister for Home Affairs (“Minister”) refused the applicant’s application for Australian citizenship, having not been satisfied that the applicant had a permanent or enduring physical or mental incapacity as required by section 21(3)(d) of the Act (“reviewable decision”). The applicant seeks review of this decision.

4. The issues for determination in these proceedings are whether the applicant:

   (a)Satisfied the general eligibility criteria in section 21(2) of the Act; and/or

   (b)Had a permanent or enduring physical or mental incapacity at the time he made his application for citizenship such that he may satisfy the eligibility criteria in section 21(3)(d) of the Act.

   Relevant Legislative Provisions

5. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of subsections 21(2) to (8) of the Act.

6. Section 21(2) provides for general eligibility and requires the Minister be satisfied that the applicant meets eight criteria set out at paragraphs 21(2)(a) to (h), including, relevantly for the present matter, that the person understands the nature of an application under subsection (1) (section 21(2)(d)); possesses a basic knowledge of the English language (section 21(2)(e)); and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (section 21(2)(f)).

7. Section 21(2A) of the Act provides that paragraphs 21(2)(d), (e) and (f) are satisfied if and only if, the applicant has sat and successfully completed a citizenship test. Subsection 23A(1) provides that the Minister must approve a citizenship test for the purposes of section 21(2A) and that the Minister may provide for certain other matters including at section 23A(5A): “…the period within which a person must start the test and for the period within which a person must complete the test”.

8. The Citizenship Policy (“Citizenship Policy”) provides policy guidance to decision-makers on the interpretation of, and the exercise of powers under, the Act. The Tribunal is not bound to strictly apply the Citizenship Policy however, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.

9. The Citizenship Policy provides that the citizenship test is designed to assess whether a person understands the nature of the application they are making, whether they have an adequate knowledge of Australia and the responsibilities and privileges of citizenship, and a basic knowledge of the English language.

10. Section 21(3) of the Act sets out the requirements for a person who has a permanent or enduring physical or mental incapacity. Paragraph 21(3)(d) provides:

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

    …

    (d)  has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

    (i)  is not capable of understanding the nature of the application at that time; or

    (ii)  is not capable of demonstrating a basic knowledge of the English language at that time; or

    (iii)  is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

    … [Emphasis added]

11. Section 21(3)(d) of the Act operates to excuse a person who has a permanent or enduring physical or mental incapacity from being required to pass a citizenship test.

12. In regards to section 21(3) of the Act, the Citizenship Policy relevantly outlines:

    “…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, posttraumatic stress disorder, or where a person has suffered a stroke.

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

13. The Citizenship Policy also relevantly provides that “it is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis”.

    Consideration

14. Dr Leo Tsang, the applicant’s consultant psychiatrist, has provided three reports in these proceedings dated 28 April 2015, 27 March 2018 and 11 August 2018.

15. In the report dated 28 April 2015, Dr Tsang relevantly advised:

    “Our consultation was undertaken in English. [The applicant] does have enough English proficiency such that he can communicate adequately. He said he had undertaken over 800 hours of English lessons. However, he said he has a fear of exams and cannot read or write properly in English.

    …

    For some reason, [the applicant] said he has become very forgetful and unable to learn enough new knowledge to undertake the Citizenship Test.

    …

    I consider [the applicant] to suffer from residual symptoms of a Post-traumatic Stress Disorder as a result of his experiences in the Iraqi army.

    From our interview, I think [the applicant] would have a good chance to pass his Citizenship Test if it can be conducted verbally…” [Emphasis added]

16. Dr Tsang’s reports in 2018 paint a much bleaker picture of the applicant’s condition and his English proficiency skills.

17. In the report dated 27 March 2018, Dr Tsang notes that “in this review, an Arabic interpreter was used so that [the applicant] could clearly understand our communication”. Dr Tsang relevantly advised:

    “As far as I am aware, I was the first psychiatrist who diagnosed him in 2015.

    As [the applicant] has complained of symptoms for over 30 years, I consider that the condition is permanent and enduring. It is unlikely the condition will respond to active treatment.

    As a result of his psychiatric condition, [the applicant] complained of inability to concentrate and poor short-term memory. He said he also has an enduring anxiety associate with any tests or examinations.

    As a result of his psychiatric condition, I consider [the applicant] might meet the second criteria under subsection 21(3) of the Australian Citizenship Act 2007. He is not capable to learn English to the proficiency required by the Citizenship Test”.

18. In the report dated 11 August 2018, Dr Tsang outlined a number of reasons which the applicant wanted to emphasise, to explain why he felt he would never be able to pass the citizenship test. Dr Tsang relevantly advised:

    “I consider [the applicant’s] fear of examination is to the extent that it is a Phobia. He had mentioned this anxiety in the past, and I had stated it in my previous reports. However, the severity of it is only made clear in this last consultation.

    ….

    [The applicant] said he has become very forgetful and unable to concentrate as a result of his PTSD. His conversational English is adequate but he does not think he can ever learn to read and write English to the level of passing the Citizenship Test.

    The opinion I had stated in the two previous reports is consistent with this.

    …

    I am of the opinion that [the applicant] is not capable to pass the Citizenship Test as he has a phobia for examinations with severe avoidance behaviour. This is exacerbated by his PTSD”. [Emphasis added]

19. At hearing, the applicant was self-represented and had the assistance of an Arabic interpreter.  He confirmed that his first consultation with Dr Tsang was in English however he said that they were talking very slowly. The applicant advised that in late 2010 he started taking medication for his PTSD and had previously been diagnosed by a psychiatrist however he never advised Dr Tsang of that fact. In regards to a treatment plan for his mental health condition, the applicant said at hearing that there was no treatment plan in place because he was already on medication.

20. The applicant confirmed that he had not attempted the citizenship test; was not aware of any assistance available to him in sitting the test; and hadn’t made any inquiries about possible assistance. He said that his basic English verbal skills were okay however writing and spelling was very difficult. He said his listening skills were okay in English, he could understand “maybe 75%”.

21. Despite the applicant’s evidence that he has been taking medication for his PTSD since late 2010, there is no other evidence before me of treatment that the applicant has received by a psychiatrist. I place limited weight on the reports of Dr Tsang because firstly, he was not available for cross-examination and secondly, it was made clear at the hearing from the applicant’s evidence, that Dr Tsang was not aware of the applicant’s full medical history in regards to his mental health condition. None of the reports of Dr Tsang provide information about any past or current treatment that the applicant has been receiving and how this recommended treatment may remedy or stabilise the applicant’s symptoms. Nor is there any evidence to demonstrate that the applicant has been seeing an appropriate specialist on a regular basis for his mental health condition. As stated in the Citizenship Policy, “it is anticipated people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis”.

22. In regards to the applicant’s English proficiency, section 21(3)(d) provides that this must be considered as at the time the person made their application for Australian citizenship; in this case on 20 May 2015. The first report of Dr Tsang dated 28 April 2015, is the most contemporaneous report. The consultation for this report was conducted in English and Dr Tsang reported that the applicant had sufficient English proficiency to communicate adequately. He opined that based on the interview he had with the applicant, he “would have a good chance to pass his Citizenship Test if it can be conducted verbally”. In later reports, the applicant’s English proficiency appears to be based on the applicant’s self-reporting. There is no explanation provided as to why Dr Tsang’s impression and opinion about the applicant’s English proficiency skills changed so markedly since 2015.

23. In Dr Tsang’s most recent report, he offers a new diagnosis of “Phobia for examinations with severe avoidance behaviour”. This is the first time that this condition has been raised by Dr Tsang and there is insufficient evidence as to how this constitutes a permanent or enduring mental incapacity. Other than self-reporting of the applicant, there is no evidence about the symptomology or the impact this condition has on the applicant such that he is incapable of satisfying the requirements of section 21(3)(d) of the Act; nor is there sufficient evidence about appropriate treatment or prognosis such that this condition can be understood to be permanent or enduring.  

24. On the available evidence I am not satisfied that the applicant had a permanent or enduring physical or mental incapacity at the time he made his application for Australian citizenship such that he 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.  

    Decision

25. The decision under review is affirmed.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 19 August 2019

Date(s) of hearing:	1 March 2019
Applicant:	In person
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers