Farhan and Minister for Immigration and Citizenship [2010] AATA 36 (20 January 2010)

Last Updated: 20 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1480

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ISTIKLAL FARHAN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr G. L. McDonald, Deputy President

Date 20 January 2010

Place Melbourne

Decision

The Tribunal affirms the decision under review.

..............................................
Deputy President

CITIZENSHIP – whether the applicant was suffering from a permanent mental incapacity which rendered her incapable of understanding the nature of citizenship – Tribunal satisfied the applicant suffers from a mental incapacity – Tribunal satisfied the applicant understands nature of the application for citizenship – decision under review affirmed.

Australian Citizenship Act 2007 s 21

REASONS FOR DECISION

20 January 2010

Mr G L McDonald, Deputy President

1. The applicant is a citizen of Iraq and is applying for the review of a decision of a delegate of the respondent made under the Australian Citizenship Act 2007 (the “2007 Act”) refusing her application for Australian citizenship.
2. The applicant’s application for Australian citizenship records that she entered Australia on 14 January 2002 from Iran and was granted a permanent residency visa on 22 February 2006.[1] The applicant’s husband and four children have all been granted Australian citizenship.
3. The applicant claimed to suffer from a permanent mental incapacity which rendered her incapable of understanding the nature of citizenship.[2] The Tribunal heard telephone evidence from Dr Samir Ibrahim, a consultant psychiatrist, who gave evidence through an interpreter. Dr Ibrahim had seen the applicant on two occasions and was able to communicate with her in Arabic. He diagnosed her as suffering from post traumatic stress disorder (“PTSD”) as the result of things she witnessed or experienced in the Iran Iraq war. He said that following that war the applicant had spent 10 years in an Iranian refugee camp before coming to Australia.
4. It was the Dr Ibrahim’s evidence that her condition adversely affected the applicant’s concentration and memory functions and that the condition manifested through her suffering major depression. The doctor described the condition as being chronic saying she had probably suffered from PTSD since the 1990s. The doctor said that he preferred not to use the term ‘permanent’ saying ‘chronic’ meant that the applicant had suffered the condition for long time and that the there was generally a poor prognosis associated with achieving a full recovery. Dr Ibrahim said that the added pressure from trying to learn English in order to pass the written test had adversely affected the applicant’s recovery and exacerbated her underlying condition.
5. The Tribunal also heard evidence from Dr Michael Chabbou, the applicant’s general medical practitioner in Cobram, the town where she and her family live. Dr Chabbou had been treating the applicant for the last seven years and saw her on average once a month. He also told the Tribunal that there was history of members of the applicant’s family suffering from depression. He said that he had been prescribing medication for her mental condition (Effexor XR) over the last two years. Dr Chabbou spoke Arabic and was originally from Syria. He told the Tribunal it was considered to be a matter of shame to admit to having such a condition in Arabic culture and this was why it took so long for the applicant to tell him and seek and accept treatment. Dr Chabbou confirmed that the applicant suffered depression and that she experienced memory problems which had stood in the way of learning English.
6. Dr Chabbou told the Tribunal that treatment had relieved the symptoms and that her condition had stabilised. However he stated that the applicant would continue to suffer from her underlying diagnosed condition and would lack the ability to concentrate sufficiently to learn English.
7. The applicant, with the assistance of her son Muhammad who translated her evidence into English, told the Tribunal that she wanted to be granted Australian citizenship so that she could vote in Australian elections, obtain a passport and be “like everyone in the community”. In particular she expressed she would feel secure having an Australian citizenship and hence an Australian passport when she returned to Iran which she was proposing to do in order to see relatives who had been suffering ill health.
8. The evidence of both Dr Ibrahim and Dr Chabbou leaves the Tribunal satisfied that the applicant suffers from a mental incapacity. However her answers to questions as to what resulted from a grant of citizenship leave the Tribunal satisfied that the applicant understands the nature of the application for citizenship. Since the application was lodged on 19 June 2008 the Tribunal is satisfied that it is more likely than not that she had the understanding at the time of lodgement.
9. Ms Linacre told the Tribunal that the 2007 Act had been amended in the period after the applicant had lodged her application with the respondent. The current requirement found in s 21(3)(d)(i)-(iii) expanded the alternatives under which a person found to be suffering from a enduring or permanent mental incapacity could qualify for citizenship. An inability to demonstrate a basic knowledge of the English language is now a ground on which a person who suffers from a mental incapacity can rely to obtain citizenship. The applicant’s application was lodged before the 2007 Act was amended and her application cannot be considered under the amended provisions.
10. There is nothing to stop the applicant submitting a fresh application for citizenship which has to be considered under the amended provisions. The applicant told the Tribunal that she proposed to do this. Since the fact of a person suffering from a permanent or enduring mental incapacity is common to both the 2007 Act and that Act as amended the Tribunal indicated that it would make a declaration that the evidence satisfied it that as on the last day of the hearing, being 13 January 2010, it was satisfied that the applicant suffered from an enduring mental incapacity. It is not possible for the Tribunal to remit this case for reconsideration on the basis that the applicant suffers from the mental capacity it has described. It would however seem a waste of resources for this issue to reinvestigated given the Tribunal’s consideration of the current medical evidence.
11. For the reasons expressed, while the Tribunal is satisfied that the applicant meets the first limb of the s 21(3)(d) of the 2007 Act in both its unamended and amended forms, that is that the applicant suffers from an enduring mental incapacity, it is obliged to affirm the decision under review as the applicant does not meet the requirements of the unamended 2007 Act because she understands the nature of what is involved in applying for Australian citizenship.
    

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 14 October 2009 in Melbourne and

13 January 2010 in Cobram

Date of Decision 20 January 2010

For the Applicant Self represented

Solicitor for the Respondent Ms A. Linacre, Clayton Utz

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[1] T documents, T5, page 31.
[2] Section 21 of the 2007 Act.