Ibrahim and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3381 (22 September 2023)

20 October 2023

  1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties, with minor amendments.
  1. This is an application by Ms Muslima Ibrahim seeking a review of a decision of the respondent’s delegate dated 7 November 2022.[2] By this decision, the delegate refused Ms Ibrahim’s application for Australian citizenship dated 9 November 2021. The delegate decided that Ms Ibrahim did not fulfil the eligibility criteria specified in section 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (“the Act”). Having reached that decision, the delegate was required under section 24(2) of the Act to refuse the application. Ms Ibrahim maintains that she meets the criteria in section 21(3)(d).

TRIBUNAL’S TASK

  1. In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
  1. At the hearing before me, Ms Dedijer assisted the applicant in the presentation of her case;[4] Ms Hardie appeared for the respondent. I acknowledge their assistance to me.

PRELIMINARY OBSERVATIONS ON THE ACT

  1. The Act sets out eligibility requirements for those wishing to become Australian citizens. One set of eligibility requirements appears in section 21(3), which includes six paragraphs, (a) to (f). I am concerned only with paragraph (d) in this review, which is in the following terms:

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

(a) …

(c) …; 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) …; and

(f)… .

  1. I would make the following points in respect of the proper construction of section 21(3)(d). First, in earlier decisions, including KXDZ and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] AATA 175 (“KXDZ”), I indicated my view that the concept of being “satisfied” should be understood as requiring a decision-maker (and also this Tribunal standing in the shoes of the decision-maker) to have an “actual persuasion” of the matter in question. I shall not recapitulate my reasoning in KXDZ, but I would note that it was informed and governed by the High Court’s decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1(2021) 270 CLR 430.
  1. Secondly, I do not believe that I am legally obliged to apply the Citizenship Procedural Instructions to which the respondent referred me.[5] The respondent has developed these for the use of departmental officers. I have explained in earlier decisions, including KXDZ, why I hold this view. I accept, of course, the respondent’s right to issue instructions to departmental officers to guide them in their work; but I do not believe the Instructions bind this Tribunal in law when it is exercising a non-discretionary function as it is when it applies section 21(3)3(d). In this regard, I also refer to the reasoning in KXDZ.
  1. Thirdly, the expression “has a permanent or enduring physical or mental incapacity” implies several things in my opinion. “Enduring” must mean in context something less stringent than “permanent”. Otherwise, the word would be redundant and have no function. In context, “enduring” means, in my opinion, likely to persist for a lengthy period of time, and perhaps permanently, with no predictable end date. Next, the expression “physical or mental incapacity” should be read as a whole and should not be taken to exclude a situation where an incapacity might arise from both physical and mental causes. The wording and context clearly indicate that an incapacity, whether of mental or physical origin, is sufficient.[6] It makes no sense to exclude an incapacity that is, or might be, caused partly by physical ailments and partly by mental ones. Finally, I do not see any reason why the concept of “incapacity” should not include a simple lack of ability. The expression “mental incapacity” should, it seems to me, include cases where there is insufficient intellectual acuity. There is no reason given by the context for excluding cases of low intellectual acuity from the purview of the paragraph.
  1. I accept the respondent’s submission that paragraph (d) of section 21(3) of the Act requires the incapacity to be assessed as of the date on which the application for citizenship was made. Incapacity that arises after the citizenship application is made may not be considered. This follows from a plain construction of the paragraph. This does not mean, however, that medical or other expert opinions obtained after the date of the application are to be excluded as necessarily irrelevant. To the contrary, in any given case they may prove relevant to the question of the applicant’s capacity when the citizenship application was made, and they may also shed light on whether any incapacity that existed at the time the application was made should be assessed as permanent or enduring.

FACTUAL FINDINGS

  1. Having made these preliminary remarks, I now turn to my findings of fact. Ms Ibrahim was born on 1 October 1971 and was, therefore, 51 years of age at the time of the hearing before me. She was born in Somalia. Ms Ibrahim had three children with her husband. Ms Ibrahim became physically separated from her husband while they were living in Somalia, and she is reported to have undertaken the upbringing of their three children alone in Kenyan refugee camps.[7] It would appear that a militiaman killed her son when he was a youngster. Her eldest daughter was kidnapped from school and disappeared without a trace for a very long time.
  1. Ms Ibrahim and her other daughter arrived in Australia in 2015 and were reunited at that point with Ms Ibrahim’s spouse, who had earlier arrived. Unfortunately, his own mental unwellness and alcohol addiction signalled the end of the marriage, as his domestic violence towards Ms Ibrahim grew. Since her arrival in Australia, Ms Ibrahim has learned that her kidnapped daughter is still alive. It appears that the daughter had been forced into sexual and domestic servitude by one of her kidnappers. The daughter is now living in Mogadishu, having been “divorced” by the kidnapper.[8]
  1. Ms Ibrahim has engaged frequently with the Survivors of Trauma and Torture Assistance and Rehabilitation Service (“STTARS”). She has consulted counsellors and qualified experts though STTARS.
  1. In 2017 Ms Ibrahim experienced a sudden hearing loss. She has consulted various specialists in this regard, including Dr Schembri, an ENT specialist.
  1. I note also that Ms Ibrahim does not speak English and made no progress at all when she attended English classes after her arrival in Australia. She does not write Somali, but speaks the Somalian Mai-Mai dialect fluently. She had no formal schooling in Somalia to speak of.
  1. Ms Ibrahim’s application for citizenship is dated 16 November 2021,[9] and this is the date, therefore, which is critical for the assessment of the presence and severity of any physical or mental incapacity. The medical information I have before me suggests as follows. First, there is a letter on the respondent’s file, dated 16 November 2020, by a consultant psychiatrist, Dr Daya Somasundaram.[10] That letter records that Ms Ibrahim has been diagnosed with a post-traumatic stress disorder and depression, and she is also recorded as having some intellectual impairment. There is a reference also to severe hearing problems and multiple physical disorders.
  1. The psychiatrist notes that Ms Ibrahim expressed the view that it was important to her to gain Australian citizenship. The professional opinion is then expressed that “she has an enduring mental incapacity which means she is not capable at this time of understanding the nature of the application; [d]emonstrating a basic knowledge of the English language; and (sic) demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship”.[11] The psychiatrist was clearly addressing the criteria in subsection (3)(d) of section 21 of the Act when expressing this opinion.
  1. Unlike the delegate,[12] I do not see any necessary contradiction between Ms Ibrahim expressing that it is important to her to gain Australian citizenship and the psychiatrist’s opinion that she is not able to understand the nature of the application. I agree with the delegate that the psychiatrist’s letter might have been more persuasive if greater attention had been given to recording the observations that informed the opinion.[13] But the psychiatrist does refer to having first treated Ms Ibrahim in June 2018 and then having seen her a further eleven times. This considerable number of consultations would have enabled him, I believe, to form a reliable opinion concerning her capacities.
  1. The opinion is consistent, moreover, with the later opinion expressed on 7 July 2023 by another psychiatrist, Dr Vani Kaler.[14] Dr Kaler refers to an established diagnosis of post-traumatic stress disorder and depression and that Ms Ibrahim has had trials of adequate doses of Selective Serotonin Reuptake Inhibitor medications together with counselling without much response. Her mental state had not improved despite medical and psychological management for some seven years. Dr Kaler also refers to Ms Ibrahim’s persistent difficulties with cognition, making learning English impossible for her to achieve when the treatment-resistant nature of her illness and hearing loss (as well as her limited learning abilities) are also taken into account. There is a clear statement in this letter that the psychiatrist believes “with clinical certainty” that Ms Ibrahim “does not have any capacity to learn English due to her permanent and enduring mental health issues”.[15]
  1. This view was largely corroborated by a clinical psychologist, Ms Jessica Evans, in her report, which is undated but which was filed with the Tribunal on 10 July 2023.[16] It must be a relatively recent report as it refers to an assessment on 30 June 2023.
  1. Turning now to Mr Ibrahim’s hearing loss, I note that Exhibit A1, which is a letter from Dr Schembri dated 7 May 2019, refers to Ms Ibrahim having no functional hearing in her left ear and a moderate to mild hearing loss in her right ear, which would impact her ability to communicate. On 31 March 2023, Dr Schembri further wrote as follows:

In summary Mrs Ibrahim has no serviceable hearing in the left ear… She has a significant hearing loss in the right ear, the cause of which is unknown. She is reliant on a hearing aid for auditory perception, and this level of hearing loss would be associated with impaired speech discrimination. Coupled with her mental health issues, she will no doubt have profound difficulties in communication.[17]

  1. I accept these reports; and I note that the respondent has not had Ms Ibrahim re-examined from either a physical or mental/psychological viewpoint.
  1. There is no doubt, in my opinion, that Ms Ibrahim suffered, as at the date of her application for citizenship, from both mental and physical ailments. These have been shown to be of an enduring nature and they have had, and continue to have a profound effect upon her. As Dr Schembri implied,[18] these may operate jointly to inhibit her.
  1. I am satisfied on the evidence adduced before me that, as a result of both mental and physical ailments, Ms Ibrahim lacked capacity as at 16 November 2021 to acquire and then demonstrate a knowledge of Australia and of the responsibilities and privileges of Australian citizenship. That is the most demanding, I believe, of the three subparagraphs ((i), (ii), and (iii)) in section 21(3)(d) of the Act, and only one of them, of course, needs to be satisfied; but I do not believe that she had the capacity to acquire and then demonstrate a basic knowledge of the English language or even had an understanding of the nature of the citizenship application. I do not believe her situation is likely to improve in the future, and it may be said to be “enduring”.
  1. Overall, I am satisfied of these matters on the evidence adduced before me. I note again that the respondent has not led any contrary evidence.

FINAL DECISION

  1. Given my conclusion, it is appropriate to set aside the decision under review and to substitute a decision that the applicant fulfils paragraph (d) of section 21(3) of the Act.

Written by Ross Ahmadzai

27 Oct, 2023

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