Abou-Azar and Minister for Immigration and Border Protection (Citizenship)

Abou-Azar and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 572 (6 August 2015)

Division

General Division

File Number

2014/1747

Re

Rita Abou-Azar

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 6 August 2015

Place Sydney
The decision under review is affirmed.

........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
MIGRATION AND CITIZENSHIP – Australian citizenship application – refusal to grant citizenship – whether applicant suffers from permanent or enduring mental incapacity that meant she was not capable of demonstrating a basic knowledge of the English language – reliability of applicant’s assertions – no serious attempts to learn English – evidence which suggests some capacity to learn English – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 s 21(3)(d)
REASONS FOR DECISION
Ms N Isenberg, Senior Member
6 August 2015

The applicant, Rita Abou-Azar, is a citizen of Lebanon. She became a permanent resident of Australia on 10 December 2008, having first come to Australia in 2007.
On 19 December 2013, she lodged an application for Australian citizenship. In this application, the applicant indicated that she suffered from a permanent or enduring physical or mental incapacity within the meaning of s.21(3)(d) of the Australian Citizenship Act 2007 (the Act).
In support of her application, the applicant provided a letter from Dr Medhat Guirguis, her GP, dated 4 December 2013. Dr Guirguis wrote that the applicant is “‘suffering from poor memory due to her general ill health after a major surgery and looking after her sick disabled husband and her 2 young children”. Dr Guirguis further stated that the applicant “‘does not have enough time to attend English school due to the full time caring for her family and her disabled husband”.
On 10 January 2014, the delegate asked the applicant to provide evidence from a specialist addressing her claim that she has a permanent or enduring physical or mental incapacity. In response, on 21 January 2014 the applicant provided a letter of the same date from Dr Fadi Anjoul, clinical psychologist, which stated:
…
[The applicant] is currently unable to read or write English, has very poor maths skills, and continues to experience a high level of impairment with written expression in Arabic.
It is my opinion that Mrs Azar satisfies the criteria for a Specific Learning Disorder as specified in the Diagnostic and Statistical Manual of Mental Disorder 5^th Edition.
It is also my opinion that she is unlikely to learn even with intensive support.
It is also my opinion that she has a mental incapacity that renders her not capable of demonstrating a basic knowledge of the English language.
On 27 March 2014, her application for Australian citizenship was refused on the basis that she did not satisfy s.21(3)(d) of the Act.
The applicant seeks review of that decision.
At a directions hearing the Tribunal directed that the applicant be independently assessed. The applicant attended Dr Gary Banks, consultant clinical psychologist, who provided a comprehensive 19 page report dated 17 November 2014, following a five hour assessment on 28 October 2014, conducted with the assistance of an interpreter. Dr Banks also provided a supplementary report dated 27 January 2015.
RELEVANT LEGISLATION AND POLICY
The applicant’s eligibility for Australian citizenship is to be assessed against s.21(3) of the Act, which relevantly 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...
ISSUE
Does the applicant satisfy s.21(3)(d) of the Act, that is, did she have a permanent or enduring mental incapacity at the time she made her application for citizenship?
CONSIDERATION
The applicant gave evidence with the assistance of an interpreter.
She said that she sought citizenship because all her family are Australian citizens, but she could not recall who had completed the application form. She did not know what being an Australian citizen entailed, and claimed not to understand when I asked her what she had done about finding out, finally saying that she “did not know what to say”. She said she did not know what she was supposed to do.
I asked if she had attended an English course since coming to Australia. In response, she spoke of having no education in Lebanon, but when pressed, said someone was to come to the home to teach her English but as she had to have surgery, “it did not happen”. In contrast, she then referred to the lady having come twice and teaching her from a book. She said she is illiterate and did not have the capacity to comprehend, even though the lady was showing her pictures. She did not know how the lady had come to be giving her English lessons in her home. She could not recall when the sessions were, nor their duration. She stated “my brain does not help me”. As to what she had done since then to learn English she said she “did not wish to learn any more” and has done nothing. Nor has she taken any steps to learn to read or write Arabic as an adult.
It was suggested that a first step towards citizenship would be to undertake some English classes, and she acknowledged that she had not done so in the previous three years. Her attention was invited to a free program offering 500 hours of English tuition. She said that if she did the 500 hours her head might become worse, and she has a family to look after and the problem in her head might escalate.
The applicant said Dr Guirguis had been her GP since she first arrived in Australia, and that she had been seeing Dr Anjoul for three years, but she could not recall why she first consulted him, although in cross-examination conceded it was subsequent to a car accident. She said she feels comfortable with Dr Anjoul; he helps her with her problems and gives her strength to face the problems that she encounters in her life. She sees him every two to four weeks for about an hour. He had not prescribed any medication.
She said she had a drivers’ licence but that her husband had taught her all the questions for the driving test on his computer, although it had taken a long time, and had then helped her memorise the answers. At the test, there was an interpreter to assist her. She said she failed the driving test nine times, but had obtained her learners’ permit on the first attempt. She said she had obtained her licence within the last 12 months although she could not recall which month. She had previously held a licence in Lebanon. She said she had never driven by herself, and likes her husband to come with her.
In relation to the Australian citizenship test she said she was aware that she would need to memorise a lot of questions. When it was suggested that if she could learn for a driver’s licence test, she could do the citizenship test, a shorter and potentially easier test consisting of 20 questions, she said she might be capable of trying if an interpreter were provided. When it was suggested that she would not need to speak or write in English in the test, she said she did not know anything about the test.
At the hearing Dr Anjoul appeared to give evidence. He also sought to appear on the applicant’s behalf. The respondent objected to this dual role. Although it was an unusual course to take, I decided that, in circumstances where it is alleged that the applicant has enduring mental incapacity, I would permit Dr Anjoul to give his account of his findings in relation to the applicant and also to speak on her behalf. I discussed that I would have to weigh his evidence and differentiate it from his submissions.
Dr Banks also gave evidence and was ‘cross-examined’ by Dr Anjoul.
Dr Banks’ evidence was that throughout the assessment, the applicant reiterated difficulties with concentration, memory impairment and difficulties recalling significant dates and number facts, although she remained attentive and did not evince lapses in concentration at interview. She demonstrated ability to concentrate during a lengthy assessment, even though there was considerable resistance to attempt most tasks. Despite her reluctance to recall or provide significant dates, she was able to name her siblings and their ages in chronological order, name most of her nieces and nephews as well as their ages, recall her children’s birthdays accurately, identify the year she was married and the year she relocated to Australia and, contrary to her evidence, the year that she attained her driver’s licence.
In the course of the interview, he said, she would often turn to her husband and seek his assistance, but when he did not respond, she was subsequently able to provide accurate responses. Dr Banks observed, however, a lack confidence in her cognitive abilities, particularly memory and recall. By her own account, her husband’s account and Dr Anjoul’s reports, she appeared to be demonstrating complete dependence on her husband in regards to all aspects of language and cognitive abilities. He noted they reportedly do not travel anywhere without each other, and her husband reads out the road signs and instructs her while she drives.
The applicant did not complain to Dr Banks of sleep difficulties, though reported that she often woke up feeling tired. He reported she had difficulty meeting the needs of her children. Dr Anjoul’s letter of 25 June 2014 reported that Ms Abou-Azar experiences difficulties in daily functioning. Upon clarification at interview, Dr Banks reported that the applicant appeared able to maintain a daily routine for the children, including waking them at the same time every morning, ensuring they have clean uniforms, providing meals, and taking them to and from school. She stated that she had never forgotten to pick the children up.
By her own account, Dr Banks recorded, she relies on her husband to communicate in English, she is unable to understand or pay bills unless reminded; she is limited in her ability to withdraw money from the bank and to pay for goods when grocery shopping. Most importantly, she is unable to communicate with the children in English and assist them with their schoolwork.
Dr Banks considered that Ms Abou-Azar’s:
“…level of motivation and pattern of responding indicated that she potentially engaged in efforts to exaggerate her level of impairment”. She remained resistant to making attempts at tasks presented throughout testing and was observed to engage in avoidance strategies, such as stating that she was cold despite the regulated air conditioning at the clinician’s office, emphasising that she had a headache only during psychometric testing and started shivering when he clinician suggested she attempt the first task. She was noted to stop soon after when she became engaged in the task, but given her reduced level of application, her results should be interpreted with caution”.
When asked to elaborate on how he came to that view he observed that she had “failed quite spectacularly” tasks on recognition memory, scoring below random which meant that she was deliberately choosing the wrong answers. In neuropsychological testing there was also clear evidence of Ms Abou-Azar’s failure to apply herself at an optimum level. In another, relatively simple test which relied on picture identification in a non-verbal culturally-neutral test, she also performed at below average level.
Dr Banks also considered that Ms Abou-Azar potentially has a greater command of receptive English than what she presently indicates because, on more than two occasions, she responded in Arabic to the interpreter before the doctor’s question was translated. She also responded to the assessment task prior to the interpreter translating the instructions to her in Arabic. In her evidence the applicant said she had been looking at the doctor and that was why he thought she understood the questions.
Somewhat extraordinarily, it seemed to me, Dr Anjoul agreed that Ms Abou‑Azar would have deliberately responded incorrectly but he did not see that as a problem. He explained that she had “picked up on the fact that she’s being asked to recall some words which [were not] to do with assessing whether or not she has a test of Specific Learning Disorder [(SLD)]”, and that it was not measuring what she was reporting. She would be worried about the doctor, a person of authority undertaking measurements that have no relevance whatsoever to whether or not she has SLD. She was being guarded and fearful of what generalisations might be made from such testing. She was under genuine threat that the test results would be inappropriately applied to suggest that she does not have a mental incapacity. He denied that that was a very sophisticated line of thought for someone who has SLD.
He was referred to aspects of Dr Banks’ report which noted inconsistencies between what Ms Abou‑Azar says about her ability and what her ability actually was. He was critical of Dr Banks having taken isolated examples of calculations to reach a general conclusion. He also considered the calculations she was asked to make were irrelevant to the situation at hand. Everyone with a learning disability, he said, is unmotivated to learn. The likelihood that she would be able to pick up English language skills is unlikely.
Dr Banks reported:
“Throughout the interview and assessment, Ms Abou-Azar did not evince any symptoms associated with thought disorders. She remained attentive throughout her two-and-a-half hour interview and subsequent two‑hour psychological testing. Ms Abou-Azar did not report any discomfort during the interview; however was noted to immediately furrow her brow and emphasised that she had ‘a headache’ prior to commencing psychological testing. She did not report feeling cold or demonstrating shaking or shivering during interview. However, upon entering the assessment room, she began shivering and stated that she was cold (despite the clinician’s office air conditioning being regulated at 21 C”.
Dr Anjoul saw no problems with that behaviour. He considered the discussion of a ‘thought disorder’ to be irrelevant as she had made no claims to that effect. Insofar as her responses of feeling cold, he thought that perfectly understandable, because, in terms of human physiology one of the symptoms of the “fight or flight response” was feeling cold. As to why she apparently did not have that response when she first attended the medical appointment, he said that, at that time, she obviously did not feel under threat.
As to her ability to remain attentive throughout her two and a half hour interview and subsequent two‑hour psychological testing, he did not think that was inconsistent with some of his evidence and Ms Abou‑Azar’s evidence that she had difficulty concentrating, because of the duration. Dr Anjoul doubted that anyone could be attentive to anything for four consecutive hours.
Ms Abou-Azar asserted that she had limited knowledge of the English language and was adamant that she does not have the capacity to learn even with intensive support. Dr Banks noted, however, that this appears to be more reflective of her failure to undertake English classes. Ms Abou-Azar also reported to Dr Banks that she has not obtained any of the resources or materials that are readily available on the Internet or from the Department regarding the Australian Citizenship test. He considered she does not appear to have engaged in any efforts to access resources or attend classes.
Dr Banks referred to the applicant’s high level of perseverance in her efforts in gaining a NSW driver’s licence, “which required learning, processing and retaining new information, to adequately complete the theoretical elements and similarly to be able to do the same for the applied component”. Though she reported having extensive support from an interpreter and her husband, her efforts to gain her licence, in his view, demonstrated her capacity to learn.
Specific Learning Disorder
Dr Anjoul referred to his two reports dated 21 January 2014 and 25 June 2014. He concluded that the applicant satisfies the criteria for SLD as specified in the Diagnostic and Statistical Manual of Mental Disorder 5th Edition (DSM-V), and that she has a mental incapacity that renders her not capable of demonstrating a basic knowledge of the English language.
In his report of 25 June 2014, in his phone interview with Dr Banks on 28 October 2014, and in his evidence, Dr Anjoul was of the view that based on Ms Abou-Azar’s ”persistent difficulties with reading, writing, arithmetic, mathematical reasoning, poor written expression, and difficulties remembering facts”, she would meet criteria for SLD according to DSM-V. Dr Banks conceded in cross-examination that SLD may constitute an “enduring mental incapacity”.
Dr Banks, however, considered that the symptoms the applicant reports would not be considered sufficient to meet diagnostic criteria for SLD. He had assessed hundreds of patients for SLD, under both DSM-IV and DSM-V. According to the DSM-V, symptoms associated with SLD include difficulties with “slow and effortful reading”, “understanding the meaning of what is read”, “difficulties with spelling”, “difficulties mastering number sense, number facts, or calculation”, and “difficulties with mathematical reasoning”. The applicant had reported that she was unable to read in English and Arabic, hence, Dr Banks found, she does not show ‘slow or effortful reading’. Dr Anjoul considered, and I agree, this is a fine distinction; if one cannot read, then their reading skills are less than ‘slow or effortful’. Dr Banks observed in his evidence that, in any event, this criterion refers to dyslexia.
She reported that she is unable to write, which, Dr Banks considered, is distinct from having difficulties with spelling. As Dr Anjoul pointed out, if one cannot write, there is no call for spelling.
Dr Banks also observed that though she showed some difficulties with numbers, she demonstrated an ability to mentally problem solve and calculate years and ages during assessment. He considered her abilities with number facts and calculation appear to be associated more so with her lack of confidence and absence of cognitive skills in her daily activities. Given her tendency to depend on her husband, coupled with her lack of schooling and vocational activities, it is likely that she has not had many (if any) opportunities to develop, practice and maintain cognitive skills. Dr Banks reports that the fact that her husband:
“…reportedly reads out road signs to her suggests that she is either so cognitively impaired that she [is] unfit to drive and/or that her confidence in her ability is so low she requires his assistance and that she has slipped into a habit of relying on him, such that she doesn’t see the need to alter this... she reported during psychometric testing that she was aware and is able to recall the road rules and signs; however prefers to have him present in the car, thereby suggesting the latter explanation has greater weight”.
Dr Banks considered that even if the applicant has SLD, she would she be capable of understanding the nature of a citizenship application: s:21(3)(d)(i) of the Act. Similarly, she would she be capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship: s.21(3)(d)(iii) of the Act. When asked if she would be capable of demonstrating a basic knowledge of the English language (per s.21(3)(d)(ii) of the Act) his response was that “that remains open to further testing” and he would need to see evidence of her undergoing supported training and assistance to overcome that SLD and, obviously, fail in her efforts to do so.

DSM-V also states that “for individuals aged 17 years and older, a documented history of impaired learning difficulties may be substituted for the standardised assessment”. Whilst Ms Abou-Azar’s school records are unavailable, she reported that she was held back in several classes and made to repeat them. However, at assessment, she demonstrated a considerable lack of motivation and resistance during psychometric testing. It is possible that she may have demonstrated a similar level of resistance and lack of motivation whilst at school, thereby suggesting that her history of poor academia may be attributed to lack of effort rather than learning difficulties.
The final criterion for SLD outlined in DSM-V states that “the learning difficulties are not better accounted for by intellectual disabilities, uncorrected visual or auditory acuity, other mental or neurological disorders, psychosocial adversity, lack of proficiency in the language of academic instruction, or inadequate educational instruction”. Ms Abou-Azar reported that she attended school until Year 5 and also reported a lack of proficiency in both English and Arabic. Thus, in Dr Banks’ view, she does meet this criterion and therefore on the basis of “inadequate educational instruction”, does not meet criteria for SLD.
Dr Anjoul said he had seen the applicant 15 times between 2011 and December 2013, and he considered himself to be her treating psychologist. In the report of 25 June 2014, six months after he had last seen her, he had not diagnosed her as suffering from SLD. He said he did not find it necessary in the course of his treatment to make a diagnosis. He said he has no patients who suffer SLD who can nonetheless learn another language, but he did not exclude that as possible, but highly improbable.
Dr Anjoul wrote that he had been “unable to test [the applicant] formally for a SLD”. He said he did not know of any “standardised and culturally appropriate test of aptitude or academic achievement that would be appropriate to this matter”. He said these were two different tests as there is a difference between aptitude and achievement.
As to how he came to his diagnosis of SLD he conceded he had conducted no tests, although he gave evidence in which he addressed the diagnostic criteria. He relied on a ‘documented’ history of impaired learning difficulties but this may have been only the applicant’s self-report.
Dr Anjoul was critical of Dr Banks for not conducting testing but conducted no formal tests himself. He observed that she had inaccurate, slow and effortful word reading in Arabic, (thus satisfying one criterion), but could not demonstrate how he came to that view, in circumstances where the applicant claims to be illiterate in Arabic. As to why he did not conduct cognitive testing, as he claimed Dr Banks should have done, he said he thought Dr Banks was going to do the testing.
He suggested she be given a “culturally appropriate test of academic achievement that is norm referenced or criterion referenced”, such as being asked to read out a list of Arabic words, and there would be a numerical measure of how many she got right compared to her peers, and that would give an indication of her academic achievement; or she could be read a sentence or two and asked to respond, and her responses would be compared to her peers. Neither was administered by him. He agreed that at no time did he perform any formal testing of her cognitive ability.
Dr Banks accepted at face value that the applicant is illiterate in English and noted her claim of being illiterate in Arabic so he looked at her cognitive abilities to be able to learn, memorise and problem solve.
Dr Banks was asked to comment on the fact that notwithstanding that the applicant had received seven years of schooling she remained illiterate in Arabic. He observed that inadequacy or lack of education does not confirm an individual’s inability to learn, only that the person had an impoverished or restricted educational background, without opportunity. Hence, he focused on the specific cognitive domains required for an individual to learn, regardless of language.
Dr Anjoul conceded that it was possible the applicant’s problems with learning English, at least in part, is explained by the fact that she had very poor education as a child and the fact that she is currently illiterate. However he was of the view that those matters could not be overcome with education and persistence if she has SLD.
One feature of DSM-V that it appears Dr Anjoul did not address was that in the introduction, the symptoms must “persist despite the provision of interventions that target those difficulties”.
When Dr Anjoul was asked about her having passed her learner driver’s test on the first attempt and that that had involved, on her own evidence, learning questions and answers off by heart, he said this conflated an intellectual disability with SLD. It is in the nature of SLD that despite the fact that a person has normal levels of intelligence they have difficulty learning. The fact that she demonstrated an ability to learn motor vehicle rules and has an ability to drive is, in fact, supportive of the claim that she has SLD. He explained, that one of the diagnostic criterion for SLD says “the learning difficulties are not better accounted for by an intellectual disability”.
As to why he contended that she could learn for her rigorous driver’s test but was incapable of preparing for 15 multiple choice questions in the citizenship test, he referred to material from the Roads and Maritime Service’s website. In particular he referred to sections of the website regarding a driver’s licence application with “Special Needs or Learning Difficulties”, and in particular, “If you have trouble understanding or reading questions our staff can assist by reading questions to you and explaining the test’s questions to you” and that can be done in Arabic. He did not understand such assistance to be offered in relation to the citizenship test, which is administered in English. He contended that in the citizenship test there is no provision for interpreting the questions into Arabic.
The respondent noted that it had informed the applicant in the decision under review :
“There is assistance with the standard test for those who claim poor literacy skills, an assisted test, and for a small group of disadvantaged clients a citizenship course based test is designed to assist people who are finding it difficult to prepare for an(sic) pass the standard or assisted test, in particular individuals with a low level of English literacy and schooling”.
Dr Anjoul acknowledged however that there is a preparatory DVD in the Arabic language which is specifically prepared for people who cannot read or write.
Dr Anjoul, as the applicant’s treating psychologist, had not told the applicant to attempt the test because he thought it would be futile. He said that if a person with SLD is placed in situations where they have a sense of incompetence and non‑mastery of the task at hand, they are going be subjected to adverse feelings about themselves, and unnecessary stress.
Dr Anjoul was firm in his view that even with effort and 500 hours of free support in her own language, Ms Abou-Azar would still be incapable because she has SLD that renders her incapable of demonstrating a basic knowledge of English. He had also diagnosed the applicant’s son with SLD, but agreed he is nonetheless able to speak both English and Arabic, but said, in effect, that children are more capable of picking up languages.
If the applicant does not have SLD, did she have some other permanent or enduring mental incapacity at the time she made the application?
In respect of whether the applicant had some other cognitive impairment, Dr Banks gave an example of verbal word memory testing he had administered to the applicant in Arabic. Her results, when age-corrected and taking into account her education level and Arabic background, showed that her performance is lower than same aged-matched individuals from a poor education background. Nonetheless it demonstrated the applicant’s ability to learn and retain information.
Dr Anjoul did not consider the applicant’s cognitive abilities generally to be relevant to this matter, although he conceded mental incapacity includes cognitive ability. He also conceded that he was aware that in the last three years the applicant had made no attempt to learn English formally, in spite of there being an offer of programs that might assist her. He thought it would be unreasonable to expect her to attend those courses because she had SLD. He referred to published research material in support of his contention that as she has a learning disability there is no point putting her through English classes if she is incapable of learning.
Dr Banks considered that Ms Abou-Azar has demonstrated the capacity to learn and retain new information in regards to her driving and the ability to care for her husband and two children. Further, she demonstrated significant resistance during testing, and her performance during testing reflected her diminished motivation rather than her true abilities and capabilities. Currently, she appears to demonstrating a similar level of resistance to accessing resources available to her, whereby she has yet to demonstrate substantive effort in attending English classes and acquiring the Australian Citizenship Test Resources.
CONCLUSION
In summary, the applicant’s contention was that she suffers SLD which is a mental incapacity that means she is not capable of demonstrating a basic knowledge of the English language.
The respondent submitted that whether or not the applicant suffers from SLD is irrelevant because the question is one of capacity to learn, irrespective of any diagnosis. To some extent I agree with this contention. However, I accept that the applicant, through Dr Anjoul, asserts a permanent or enduring mental incapacity that means she was not capable of demonstrating a basic knowledge of the English language at the time she made the citizenship application.
From Dr Anjoul’s clinical notes it appears he first saw the applicant in relation to a motor vehicle accident, and consultations for this reason continued for some time. Dr Anjoul’s notes in relation to any diagnoses or treatment of SLD appear to be limited to concerns about stress and anxiety arising from the motor vehicle accident. The respondent submitted that the absence in Dr Anjoul’s notes of any detailed exploration of any permanent or enduring mental incapacity casts considerable doubt on the basis for his conclusions.
Dr Banks’ evidence was based on a nearly five-hour interview with Ms Abou-Azar for the specific purpose of assessing her mental capacity. His conclusions are based on objective testing and clinical observations. On the other hand, Dr Anjoul conceded that he did not perform any formal testing on Ms Abou-Azar, and has never prescribed her with any medication or particular therapy. Furthermore, his notes do not refer to any mental incapacity.
The applicant has made no serious efforts to learn English, bearing in mind that only a basic level needs to be demonstrated in order to pass this test. She has not taken advantage of the 500 hours of free English tuition which is available. In order to obtain her drivers’ licence she had her husband teach her all the questions and help her to memorise the answers, and although it took a long time, she passed the test on the first attempt. I accept that involved learning, adapting to a new language, and adapting to new rules, signs and conditions. I accept that that in itself is evidence of some ability to learn, and this is indeed a requirement before a diagnosis of SLD can be made.
Ms Abou-Azar conceded that she might be capable of trying to do the citizenship test if she was provided with an interpreter, and she offered to do the 500 hours of free tuition. In those circumstances I do not accept that she is incapable of learning when she has not yet exhausted the resources that are available to her. To paraphrase Dr Banks, capacity can only be finally assessed once there has been an effort to learn.
In addition, Dr Banks’ observations were that, when being assessed, the applicant deliberately mis-answered some questions. I reject Dr Anjoul’s contention that she deliberately adopted this course because she was under threat that her responses would be misinterpreted. Her answers at hearing were vague and unresponsive. This conduct, in my view, necessarily gives rise to concerns about the applicant’s reliability as to her assertions of her previous academic performance, and her claimed inability to learn. It must also cast doubt on her preparedness to make an effort in anticipation of taking a citizenship test. Also, the applicant’s responses to Dr Banks before being translated for her are especially telling, that is, that she appeared to understand at least some of the English that was being put to her.
Dr Anjoul submitted that ‘capacity to learn’ is different to ‘capacity to learn English’ which is the proper enquiry for the purpose of the Act. Her illiteracy in Arabic, he submitted, makes it a considerable, if not an impossible task, for her to learn English when she cannot even read in her native language. He submitted that the heart of the issue is whether or not Ms Abou-Azar has the capacity to learn to read English so that she can demonstrate a sufficient knowledge of the English language to be able to pass the citizenship test. This is to be differentiated from her passing of the drivers’ test. Under the conditions of the drivers’ test there is an interpreter who is able to translate the questions.
Dr Anjoul submitted that the applicant is quite happy to be fully informed in Arabic about the requirements of the test, and to review DVDs to make sure she knows exactly what her roles and responsibilities as an Australian citizen are and that she was highly motivated to do that. That does not accord with my impression of her evidence, in which, as I have observed, I found to be vague and unresponsive. It seemed to me, she had little idea of what might be required of her to become an Australian citizen.
After weighing all of the applicant’s circumstances and the available psychological evidence, on balance, I find that, at the date of application, the applicant did not have a permanent or enduring mental incapacity, whether SLD or any other mental incapacity, that meant she was not capable of demonstrating a basic knowledge of the English language at that time, thereby not satisfying s.21(3)(d) of the Act. Accordingly, the applicant is not eligible for Australian citizenship.
DECISION
The decision under review is affirmed.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
...................................[sgd].....................................
Associate
Dated 6 August 2015

Dates of hearing 17 December 2014 and 29 June 2015

Advocate for the Applicant Dr F Anjoul

Solicitors for the Respondent Australian Government Solicitor

[2015] AATA 572

6 August 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Division	General Division
File Number	2014/1747
Re	Rita Abou-Azar
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	6 August 2015
Place	Sydney

Dates of hearing	17 December 2014 and 29 June 2015
Advocate for the Applicant	Dr F Anjoul
Solicitors for the Respondent	Australian Government Solicitor