Sibai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 957 (17 April 2020)

Last Updated: 27 April 2020

Sibai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 957 (17 April 2020)

Division: GENERAL DIVISION

File Number(s): 2018/6276

Re: Mr Sibai

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: The Hon. John Pascoe AC CVO, Deputy President

Date: 17 April 2020

Place: Sydney

The reviewable decision of the delegate is affirmed.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring physical or mental incapacity – citizenship test – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 63

SECONDARY MATERIALS

Citizenship Policy (1 June 2016)
Australian Citizenship Procedural Instructions – CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

The Hon. Deputy President Pascoe CVO


17 April 2020

BACKGROUND

1. The applicant is 42 years old and is a citizen of Syria. He arrived in Australia on 9 July 2007 on a sub class UL-679 visa and was subsequently granted a sub class BC-100 spouse (permanent) visa on 6 February 2012.
2. The applicant lodged an application for Australian citizenship by conferral on 22 March 2017. In his application, the applicant indicated that he needed assistance with the citizenship test. On 6 August 2018, the Department wrote to the applicant requesting further information and drawing his attention to the fact that the information he had provided did not comply with the requirements of the Citizenship Policy (‘the Policy’). The applicant did not reply.
3. Subsequently, on 5 October 2018, a delegate of the Minister (‘the delegate’) refused the application for citizenship on the basis that the delegate was not satisfied that the applicant meet the requirements of section 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The delegate was not satisfied that the applicant had any permanent or enduring physical or mental incapacity that meant he was not capable of meeting the requirements of section 21(3)(d)(i-iii) of the Act.
4. On 27 October 2018, the applicant applied to the Tribunal for a review of the delegate’s decision.

THE LEGISLATIVE REGIME

5. Section 21(1) of the Australian Citizenship Act 2007 (Cth) provides that a person may make an application to the Minister to become an Australian citizen.
6. Pursuant to subsection 24(1) of the Act:

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.

7. Section 21(2) provides the general eligibility criteria and requires the Minister be satisfied that the applicant meets eight criteria set out at s 21(2)(a) to (h), including, relevantly, that the person:
   • (a) understands the nature of an application under s 21(1): s 21(2)(d);
   • (b) possesses a basic knowledge of the English language: s 21(2)(e); and
   • (c) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship: s 21(2)(f).
8. Pursuant to subsection 21(2A) of the Act, paragraphs 21(2)(d), (e) and (f) of the Act are met if, and only if, a person has sat and successfully completed a citizenship test.

Permanent or enduring physical or mental incapacity

9. Section 21(3) of the Act sets out the requirements for a person who has a permanent or enduring physical or mental incapacity and 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

10. In practical terms, s 21(3)(d) of the Act operates to exempt persons who have the said incapacity from being required to pass a citizenship test.

POLICY

11. The Citizenship Policy (‘the Policy’) provides policy guidance to decision-makers on the interpretation of, and the exercise of powers under the Act, and is supplemented by operational instructions in the Revised Citizenship Procedural Instructions (‘the Instructions’). Although the Tribunal is not strictly bound by the Policy, the Tribunal as a decision-maker will generally apply policy unless there are cogent reasons not to do so.^[1]
12. Relevantly, the Policy provides the following guidance on the evidence required to establish a permanent or enduring incapacity for the purpose of s 21(3):^[2]

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.

13. The Instructions provide 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 on the facts of the specific case.^[3]
14. The Instructions also note that, when assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration for the decision maker is whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression.^[4]
15. The Instructions also highlight that the incapacity in question must be the direct cause of the applicant not being capable of understanding the nature of the application, not being capable of demonstrating a basic knowledge of English, or not being capable of demonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.⁶

ISSUES

16. The issue for determination in this case is whether at the time of his application for citizenship the applicant had a permanent or enduring physical or mental incapacity as set out in section 21(3)(d) of the Act so as to satisfy the eligibility criteria in section 21(3) of the Act

THE EVIDENCE

The applicant

17. The applicant gave evidence that he learnt his trade, welding, when working with his father after he had left school in Syria. Under cross-examination by counsel for the respondent, the applicant said that he left primary school after approximately six years. He gave evidence that he preferred to learn through practical experience rather than formal education or learning. He was able to read Arabic but was not very good at writing.
18. The applicant gave evidence that he had suffered from severe trauma as a result of events he and his family experienced in Syria during the Civil War, particularly when he visited the town of Homs in 2011. He had returned to Syria from Australia in 2010 and 2011. He gave evidence that he previously had a Syrian passport but that he had been unable to obtain a new one. In recent times he has maintained contact with his family in Syria by way of regular telephone conversations.
19. Since coming to Australia, the applicant had learned conversational English, primarily from interaction with those at his place of work. He said that he had learnt the skills required for his ongoing work as a welder from practical demonstrations.
20. The applicant said that his business affairs were managed by his accountant and that he simply signed where his accountant told him to in relation to documents and cheques. The applicant was the sole director and shareholder of his company, MS Welding Pty LTD, which was registered in July 2015.
21. He holds a New South Wales driver’s license and gave evidence that he had been able to read all the requirements for the driver’s license test in Arabic. The applicant gave evidence that he has not attended any English classes since living in Australia as he does not like to study.
22. In response to questions from counsel for the respondent, the applicant gave evidence that he understood the benefit of having an Australian passport, and that he wants to have a passport so that he was able to travel overseas. He said he had been unable to travel to Bali with his family because he did not have an Australian passport.
23. The applicant said that he had made a number of attempts to pass the citizenship test. He had downloaded material for the test and had attempted to read it in English and Arabic but said that he was not able to understand it. He said he had only made one attempt to sit the citizenship test in 2014. He did not recall that he had told Dr Benjamin in 2019 that he had sat the test twice in 2016.
24. The applicant gave evidence that he informed Dr Benjamin in 2019 at the time of his first consultation that he had been prescribed medication for anxiety by his General Practitioner, but said that he had stopped taking it because he thought that it had not helped him. He said, however, that the medication prescribed by Dr Benjamin had made him feel much better.
25. Prior to seeing Dr Benjamin, the applicant gave evidence that his General Practitioner referred him to two psychologists, Dr Mohammed and Dr Abu-Arab. Dr Mohammad saw the applicant in 2016, but the applicant could not remember whether he had sat the citizenship tests before seeing him. The applicant said he saw Dr Mohammad approximately eight times but stopped seeing him when he moved to Newcastle and did not go to any other psychiatrist or psychologist.
26. The applicant agreed that Dr Abu-Arab is a clinical psychologist and therefore unable to prescribe any medication. Under cross-examination the applicant agreed that his purpose in going to see Dr Abu-Arab was in relation to his citizenship test and that he had informed him of the problems he had experienced with the test. Dr Abu-Arab did not otherwise treat him.
27. The applicant emphasised that Dr Benjamin was much more useful to him than any of the other psychiatrists, and therefore he continued to see Dr Benjamin because of the benefit he received.
28. The applicant gave evidence that he had seen the psychologist, Dr O’Neill, in September 2019. He said he arrived about 10:00AM and left at approximately noon. He said he filled out some forms in Arabic and answered some questions.

Dr Benjamin’s evidence

29. Dr Benjamin gave evidence that he had seen the applicant on 10 occasions since 24 May 2019. In his opinion, the applicant was suffering from chronic Post Traumatic Stress Disorder (‘PTSD’) since his trip to Syria in 2011, and his underlying health concerns were not being treated at the time he presented to Dr Benjamin.
30. He also believed that the applicant suffered from chronic learning disabilities since childhood. In Dr Benjamin’s opinion, this learning difficulty is likely to continue. In his opinion, the applicant was able to engage with his work because he had excellent manual skills, but reading, writing and comprehension posed problems for the applicant. Dr Benjamin said this was not unusual.
31. In Dr Benjamin’s opinion it was therefore difficult for the applicant to complete the citizenship test online because he had to guess the meaning of the various questions. In contrast, Dr Benjamin said that the applicant was able to obtain his driver’s license because he was able to complete the test in Arabic and he had received significant assistance. It was also much easier for the applicant to learn practical skills like driving.
32. Although the applicant has superficial spoken English language skills, he is best able to learn through practical examples and practice. It is difficult for him to memorise specific information. Under cross-examination, Dr Benjamin stated that his diagnosis of a learning disorder was based on his experience and interactions with the applicant. He has been unable to find a psychologist to conduct detailed tests on the applicant in Arabic. As a result, Dr Benjamin considered his diagnosis to be highly likely to be an accurate assessment but based on observation.
33. Dr Benjamin gave very clear evidence that although the applicant suffered numerous conditions when he first saw him, all of which were capable of improvement. Moreover, the applicant is continuing to benefit from treatment. The applicant is now on two medications for anxiety and depression and for tremors.

Mr O’Neil’s Evidence

34. Mr O’Neil is a clinical psychologist who has been in practice for some 35 years. He gave evidence of his long experience working with people with learning difficulties, saying that he had made some three to 4000 diagnoses in relation to mental health and capacity.
35. When assessing the applicant, Mr O’Neill used an Arabic interpreter. He gave evidence that the interpreter understood the relevant protocols. Mr O’Neil notes that a normal diagnosis takes about two to three hours. In the applicant’s case, the assessment took approximately two hours and Mr O’Neill noted that it proceeded smoothly with no lack of understanding of the various questions on the part of the applicant. Mr O’Neill said the applicant was focused, responsive and cooperative.
36. Mr O’Neill said that he diagnosed the applicant as possessing normal intelligence and did not believe he experienced problems with comprehension. He accepted that the applicant did not like school but felt that he was able to learn despite his dislike of learning and his PTSD, which may mean that his rate of learning is slower. Mr O’Neil did not believe the applicant has a current psychiatric or psychological disorder that would negatively impact his ability to learn or normal functioning. Mr O’Neill gave evidence that in his opinion PTSD is a condition which is very treatable with a wide range of trauma focused interventions.
37. Mr O’Neil said that any symptoms exhibited by the applicant, such as sleep difficulty, were not at a very high level and would not stop the applicant from learning English. Mr O’Neil pointed to the applicant’s ability to drive a truck for 10 hours a day with the view that he was capable of learning with the right supports.
38. Mr Neil did not support Dr Benjamin’s diagnosis of a learning disorder. He said that the applicant had been able to learn in Arabic to an adult level. He would not have been able to do this if he had a significant learning disability.
39. Mr O’Neill said there was a clear distinction to be drawn between a learning disorder and a willingness to learn. Under cross-examination from counsel for the applicant, Mr O’Neill said that he believed that the applicant had elected not to learn English and had limited exposure to training and study in English, but that in his opinion the applicant is able to learn English if he has the motivation to do so.

CONSIDERATION

40. The Act sets out a number of eligibility requirements which must normally be met in order for citizenship to be granted. These are as follows:

(a) understands the nature of an application under s 21(1): s 21(2)(d);

(b) possesses a basic knowledge of the English language: s 21(2)(e); and

(c) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship: s 21(2)(f).

41. An applicant is taken to have satisfied these requirements if the applicant has successfully completed the citizenship test which is set by the Department.
42. However, the above requirements do not apply to an applicant who is eligible for citizenship by conferral under section 21(3) of the Act. A person meets the requirements of section 21(3) if the person “has a permanent or enduring physical or mental incapacity at the time the person made the application”, which means the person:

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

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

(c) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities of Australian citizenship at that time.

43. In this case, the applicant claims that he falls within requirements of section 21(3) of the Act because he has a permanent or enduring physical or mental incapacity which means that he is incapable of understanding the nature of the citizenship application, demonstrating a basic knowledge of the English language or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of citizenship.
44. There are therefore three key issues that must be dealt with in relation to this matter.

(a) is there incapacity?

(b) is the incapacity permanent or enduring?

(c) is it the cause of the inability to understand the nature of the citizenship application, demonstrating a basic knowledge of the English language or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship?

45. I accept that the applicant suffers from numerous conditions associated with PTSD and depression, which are long-term. I also accept that he has learning difficulties which make it hard for him to study and learn a new language. However, there was agreement between Dr Benjamin and Mr O’Neill in relation to the question of whether the applicant’s medical conditions were of an enduring nature or capable of improvement. The evidence demonstrates clearly that the applicant’s conditions were capable of treatment and that the improvement is continuing.
46. I note that in addition to the reports of Dr Benjamin and Mr O’Neill, reports were submitted to the tribunal by Dr Abu-Arab and Dr Mohammed. I place little weight on either of these reports. Neither Dr Abu-Arab nor Dr Mohammed appeared at the hearing for cross-examination. Dr Mohammed’s report did not address the legislative criteria and seemed to indicate that the applicant is capable of sitting the citizenship test if he had appropriate support. Further, Dr Mohammed is not a psychologist and does not meet the professional requirements set out in the policy.
47. Dr Abu-Arab also declined to give evidence at the hearing. His only diagnosis appears to be that the applicant suffered from PTSD and depression but appears to not recommend any treatment plan. Further, Dr Abu-Arab first saw the applicant on 13 November 2018, some 18 months after the relevant time of the citizenship application, namely 22 March 2017.
48. I found both Dr Benjamin and Mr O’Neill to be credible witnesses. Mr O’Neill had conducted more rigorous testing then Dr Benjamin, who appeared to rely substantially on what the applicant had told him. However, in a number of important areas, both the doctor’s evidence was consistent.
49. The first area in which there was consistent medical opinion relates to the question of whether the applicant had a permanent and enduring disability at the time of the application. It was apparent from Dr Benjamin’s evidence that, although the applicant had a disability at that time, it had not permanent or enduring. Rather, it has not been properly diagnosed or effectively treated. The applicant had improved over time as a result of the treatment he received from Dr Benjamin, and Dr Benjamin was quite clear in his evidence that there was the capacity for further improvement.
50. Mr O’Neill gave evidence that the applicant’s residual symptoms of PTSD were not enough to stop him from learning English, and he pointed to the applicant’s ability to function in various other aspects of his life, including being able to drive a truck for some 10 hours a day. There was no evidence that the applicant had any learning difficulties in Arabic. I note that Dr Benjamin agreed that it was appropriate to look at how the applicant functions in other areas of his life when determining the extent of his learning difficulties and the extent to which his learning abilities were able to be improved.
51. I also placed weight on the applicant’s own evidence that he did not like learning and had never formally undertaken any English language studies for that reason. Both doctors agreed that the applicant had been able to master conversational English.
52. Both Dr Benjamin and Mr O’Neill believe PTSD does not inhibit a person’s ability to learn. It was simply a question of the amount of support required, which in turn depended on the severity of the PTSD symptoms.
53. After considering the evidence of both Dr Benjamin and Mr O’Neill I find that the applicant does have disabilities, but that they are not permanent or enduring. Rather, they were capable of improvement at the relevant date of the application and continue to improve.
54. The applicant’s PTSD and depression are not the cause of his inability to learn basic English, although it may mean he needs more support. Indeed, in my opinion, the applicant is capable of learning basic English with appropriate support and sitting the citizenship test, again with appropriate support.
55. In his evidence the applicant was quite clear that he understood the nature of the citizenship application and the privileges of being an Australian citizen. He said that he had read and understood the material in Arabic. In oral evidence he said that he wanted to become an Australian citizen to have an Australian passport, vote and travel.
56. I also give weight to the fact that despite his difficulties the applicant is a company director and is able to live his life relatively normally despite his ongoing PTSD and depression, both of which are responding to treatment. It is therefore reasonable to assume that, if the applicant were sufficiently determined to learn the basics necessary for the citizenship test, he would be capable of sitting the test with appropriate support.
57. Having considered all the available evidence, I find that the applicant does not satisfy the requirements of section 21(3) of the Act, and therefore is not exempt from sitting the citizenship test.

DECISION

58. The reviewable decision of the delegate is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 17 April 2020

Date of hearing:	30 and 31 March and 3 April 2020
Representative for the Applicant: Counsel for the Respondent:	Mr Abouzaid Ms Donald

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^[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 63.

^[2] T6/104-105.

^[3] TB3/12.

^[4] TB3/12.