REFUSAL OF CITIZENSHIP BY CONFERRAL – WHERE APPLICANT HAS A PERMANENT OR ENDURING PHYSICAL OR MENTAL INCAPACITY

In Khaled and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 1412, the Applicant is a citizen of Lebanon, who arrived in Australia on 31 August 1999 and was granted a Partner (Residence)(subclass 801) visa on 27 June 2011.

On 28 October 2015, the Applicant lodged an application for Australian citizenship on the basis that she suffered from a permanent or enduring physical or mental capacity.  On 8 November 2017, a delegate refused to grant the application for Australian citizenship.  The delegate was not satisfied that the Applicant had a permanent or enduring physical or medical incapacity that meant that she was not capable of understanding the nature of the application, not capable of demonstrating a basic knowledge of English or not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

Relevant Legislation

Subsection 21(3) of the Act provides:

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

 

AAT Considerations

The Applicant provided a number of medical reports from various qualified medical practitioners to support her application. The ultimate diagnosis was one of chronic depression.  A medical report stated:

 

given her extremely poor cognitive skills and significant long-standing mental health issues she is:

not capable of understanding the nature of the Australian citizenship application,

not capable of demonstrating a basic knowledge of the English language,

unable to also demonstrate the ability to understand the knowledge of Australia and of the responsibilities and privileges Australian citizenship.

 

Relevantly, the provisions of paragraph 23(d) of the Act requires a causal connection to be established between the permanent or enduring physical or mental incapacity and one of three stated categories of incapacity in paragraph (d). It is not merely sufficient to identify a permanent or enduring physical or mental incapacity.  The incapacity must affect the person’s ability to understand the nature of the application at the time of making the application. 

 

Although there was substantial evidence of mental incapacity, it has not been demonstrated on a proper analysis on that evidence that there is a causal connection between the incapacity that affect subparagraphs 21(3)(d)(i), (ii) or (iii).

 

The Tribunal was not satisfied that the mental incapacity substantiated any physical disability which can be shown to affect the Applicant’s abilities under subsection 21(3) of the Act.

 

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