Abugharaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 3986

Abugharaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3986 (9 October 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2253

Re:Sulaiman Abugharaba

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:9 October 2020

Place:Sydney

The decision of a delegate of the Respondent dated 9 April 2019 to refuse the Applicant’s application for Australian citizenship by conferral is affirmed. 

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Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal to approve application – whether applicant has a permanent or enduring mental incapacity at the time of application – citizenship test – PTSD – where applicant ceased treatment – CBT – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 18B

Australian Citizenship Act 2007 (Cth) s 21

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016

Revised Australian Citizenship Procedural Instructions, CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity, 1 January 2019

REASONS FOR DECISION

Mr S Evans, Member

9 October 2020

INTRODUCTION

1. The applicant, Salaiman Abugharaba (“the Applicant”) was born in Palestine in 1971. He arrived in Australia in January 2013 as the holder of a TO-300 subclass visa and currently holds a subclass BS-801 visa. On 18 January 2018 the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). On 9 April 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused the application having determined that he did not meet the requirements to be exempt from undertaking and passing the citizenship test.

2. Ordinarily, a person who applies to become an Australian citizen is required to satisfy the Respondent that, amongst other things, they understand the nature of an application, possess a basic knowledge of the English language and have an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. A person can only be taken to have satisfied these requirements if he or she has successfully completed an approved test, known as the citizenship test.

3. An exemption exists under paragraph 21(3)(d) of the Act for applicants who have a permanent or enduring physical or mental incapacity at the time the application was made, which would render them incapable of passing the citizenship test. The Applicant contends that he meets the criteria for such an exemption on account of a permanent or enduring mental incapacity. 

   HEARING

4. The matter was heard on 8 July 2020 and both the Applicant and the representative for the Respondent appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). The Applicant was effectively represented by his wife and he provided evidence under affirmation with the aid of an interpreter.

   BACKGROUND

5. The Applicant first married at 18 years of age and has four children to his first wife, all of whom currently reside in Palestine. Following separation from his first wife, the Applicant met his current wife online through Facebook. In May 2011 the Applicant travelled to Malaysia to meet with his now wife. In September 2011 they were married in Egypt. In January the following year the applicant migrated to Australia to live with his wife and they now have a six year old son.

6. In a statutory declaration dated 30 May 2017 the Applicant writes that as a consequence of his experiences in life he now suffers from ‘a severe depression disorder’. He cites ‘war stricken Palestine’ where he witnessed death and bloodshed as contributing to his conditions. He writes that the passing of his mother and failure to see her before she died was also a cause of his ‘stress and anxiety’. He also writes that he has general fatigue and suffers from ‘sleeping disorders’ and ‘all this has affected my learning and understanding of the English language’. He believes that his concentration and ability to focus is ‘severely lacking’.

7. The Applicant unsuccessfully sat the citizenship test five times between May and October 2017.

   LEGISLATIVE FRAMEWORK AND POLICY

8. Generally, a person is eligible to become an Australian citizen if they meet the criteria set out in subsection 21(2) of the Act which reads in part:

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

   …

   (d)         understands the nature of an application under subsection (1); and

   (e)         possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

   …

9. Subsection 21(2A) of the Act provides that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied if a person sits and passes what is known as the citizenship test.

10. Subsection 21(3) of the Act provides for people who the Minister is satisfied had a permanent or enduring physical or mental incapacity at the time of their application for citizenship:  

    Permanent or enduring physical or mental incapacity

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

    (a) is aged 18 or over at the time the person made the application; and

    (b) is a permanent resident:

    (i)  at the time the person made the application; and

    (ii) at the time of the Minister’s decision on the application; and

    (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; 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) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (f)  is of good character at the time of the Minister's decision on the application.

11. The Act does not define “permanent or enduring physical or mental incapacity”. The Citizenship Policy (“the Policy”) contains guidance for decision-makers in relation to paragraph 21(3)(d). The Policy states:

    … 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.

    …

    Mental incapacity

    Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

    ·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

    ·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

    ·psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.

    …

    It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.

12. Although the Tribunal is not strictly bound by the Policy, the Tribunal as decision-maker will generally apply policy unless there are cogent reasons not to do so. The Policy is supplemented by the Revised Australian Citizenship Procedural Instructions (“the Instructions”).

13. The Instructions relevantly provide:

    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 particular case.

14. In practical terms, subsection 21(3) of the Act operates to allow a person who is not capable of successfully completing the citizenship test, to satisfy the criteria contained in paragraphs 21(2)(d), (e) and (f) if they have a permanent or enduring physical or mental incapacity. Such an incapacity means they were not capable of understanding the nature of the application at that time, or not capable of demonstrating a basic knowledge of the English language at that time, or were not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time.

15. If an applicant satisfies the criteria contained in subsection 21(3) of the Act, they are not required to successfully complete the citizenship test.

    ISSUES FOR THE TRIBUNAL

16. The issues for the Tribunal to determine are:

    (a)whether the Applicant had a permanent or enduring physical or mental incapacity at the time of his citizenship application; and, if so

    (b)that this meant the Applicant was not capable of understanding the nature of the application at that time; or was not capable of the demonstrating a basic knowledge of the English language at that time; or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    MEDICAL AND OTHER EVIDENCE

    Evidence of the Applicant

17. At the hearing the Applicant explained that he has been receiving treatment for his mental health conditions for ‘two to three years’. He confirmed that he did not seek the assistance of a psychologist until after he had been living in Australia for five years.

18. The Applicant first saw clinical psychologist Emad Girgis on 4 January 2017. He explained that he saw Mr Girgis because he failed the citizenship test and was hoping that Mr Girgis might help improve his memory. He told the Tribunal that Mr Girgis has a good reputation and he wanted to see him on the recommendation of friends who had received therapy from him and had told the Applicant that Mr Girgis ‘can reach the patient with his words’.

19. The Applicant has taken medication to treat his mental health condition since age 20. Asked to describe his condition and how it impacts him, the Applicant detailed his difficult past, the fear he experienced while living in Palestine and the trauma of not being able to see his mother before she passed away because he was unable to travel without a passport. He said that being unable to visit his family in Palestine has made his condition worse.  The Applicant did not provide any additional specific information about how his mental health condition impacts his life or those around him. 

20. The Applicant went to school as a child in Palestine and prior to immigrating to Australia he worked first as a farmer before working as a security guard at a school.

21. The Applicant’s wife is in receipt of the disability support pension and the Applicant has been her designated carer since arriving in Australia. He explained that whilst it was not his preference to be his wife’s carer, he had no choice in the matter. He added that he would have continued to be a farmer had his wife not been so ill. With some enthusiasm he told the Tribunal that his backyard ‘looks like paradise’.

22. During cross-examination it was put to the Applicant that medical reports indicated that treatment had improved his condition.  He told the Tribunal that regardless of what may be written by Mr Girgis, his condition has worsened rather than improved. During the hearing he confirmed that he has stopped therapy due to additional stresses in his life which include the death of his mother and not being able to see his grandchildren in Palestine.

23. He takes medication to treat his depression which he says calms him and makes him less aggressive. Asked if he considered this an improvement, he said there is a difference between calming him down and memory loss, and that the treatment had only helped him manage the former.

24. The Applicant insists that he tries to study but whatever he studies he forgets. Regarding his attendance at English classes he said that he attended some classes with his wife but that he chose not to attend further classes because he would forget what he had learnt.

    Mr Girgis – Clinical Psychologist

25. Clinical psychologist Emad Girgis writes in a report dated 10 January 2018 that the Applicant has ‘been attending his sessions on a regular basis’. He reports that the Applicant ‘presented with symptoms of anxiety, depressive mood, lack of self-esteem, and reported sleep disturbance, nightmares and flashbacks, lack of energy and fatigue, with symptoms in the severe level range’.

26. Mr Girgis diagnosed the Applicant with Post-Traumatic Stress Disorder (“PTSD”) ‘in the severe range’ and details some of the traumatic situations the Applicant experienced in Palestine, which included being shot at. Mr Girgis reports treatment primarily consisting of cognitive behavioural therapy (“CBT”). He opines that ‘the excessive flashbacks and trauma’ experienced by the Applicant have ‘significantly interfered with his daily living and his ability to retain information’. He notes also that the Applicant reported that he has a lack of energy and fatigue caused by sleep disturbances. In relation to his ability to learn new information, Mr Girgis states that although the Applicant completed primary education in Palestine and can communicate in Arabic, ‘his literacy skills are not strong’. Mr Girgis also writes that the Applicant ‘reported struggling to learn a new language, as he is [sic] struggles to comprehend his mother language’. He confirms that the Applicant is ‘not capable of demonstrating basic knowledge of the English language as he already struggles with his native language due to minimal schooling’.

27. In a letter dated 27 September 2019 Mr Girgis confirms that having administered the Depression, Anxiety and Stress Scale the Applicant’s score indicates that he experiences severe levels of stress, anxiety and depression. Having concluded that it is important the Applicant ‘prioritizes treating his PTSD’ Mr Girgis recommends that he continue to attend ‘fortnightly/monthly’ consultations with his treating general practitioner and Mr Girgis and  continues taking psychiatric medication.

    STARTTS

28. NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) provided a psychological assessment of the Applicant dated 3 July 2017. Winnie Cheptoo Kamakil is a provisional psychologist and she writes that the Applicant reported feeling ‘hopeless’ about not being able to see his family in Palestine for a long time. She also records that the Applicant reported that he has ‘difficulty with memory and concentration and finds it hard to remember things’ and that as a consequence the Applicant had failed the citizenship test. 

29. STARTTS completed a Functional EEG Observations report on the Applicant, the purpose of which was to ‘identify patterns in brain activity that may help better understand current symptoms, while suggesting … interventions which could be used to support recovery’. The report, dated 9 March 2018, confirms that the EEG findings ‘could have relevance’ for the Applicant’s ‘insomnia, depressed mood, concentration problems, learning difficulties, mild irritability and panic attacks’.

30. Dr Jacqueline Youssef is a Mental Health Specialist who wrote on 22 May 2017 that the Applicant ‘is displaying and reporting symptoms consistent with a diagnosis of Adjustment Disorder with depressed, severe post-traumatic stress’. She noted that the Applicant also suffers from ‘poor sleep, general fatigue and loss of appetite and anxious mood’ which she attributes as a response to ‘the uncertainty associated with the welfare of his family… in war-stricken Palestine and his medical issues’. She writes that the Applicant has reported difficulty with concentrating in his English classes because his cognitive functioning has been compromised by the stress of his ‘current mental and physical condition’.

    Ms Baker – Forensic Psychologist

31. On 30 March 2020 the Applicant was examined by Clair Baker of the Sydney Counselling Centre following referral by the Respondent. Ms Baker produced a report for the purposes of the Applicant’s application for review before the Tribunal. She also gave evidence by video link. 

32. Ms Baker outlines in her report the Applicant’s circumstances, family background and medical history. The report refers to the tests administered to the Applicant which forms the basis on which Ms Baker concludes that the Applicant ‘would not be deemed to be suffering from a permanent or enduring physical or mental incapacity’ which satisfies the requirements for exempting him from the usual application processes for Australian citizenship. Notably, this conclusion is in part reached by considering the Applicant has passed both the written and practical NSW driving tests, which she concludes indicates that he has some capacity and ability to learn and retain new information.

33. Ms Baker confirms that the Applicant’s symptoms are consistent with a diagnosis of major depression and PTSD. She concludes also that his ‘general intellectual ability’ places the Applicant in the ‘extremely low range’ as compared to an age-matched population. However, her report reinforces that indications from the reports of Mr Girgis and STARTTS confirm that ‘following treatment Mr Abugharaba had demonstrated signs of gradual improvement’.

34. At the hearing Ms Baker told the Tribunal that CBT is one of the most effective treatments for PTSD. The condition leaves the person in a heightened emotional state and reduces executive functions and CBT can assist by reducing emotional systems in the brain. Noting that the Applicant ceased CBT in 2019, Ms Baker she said that without consistent application it is not possible to conclude with certainty that the Applicant has a permanent or enduring mental incapacity. She told the Tribunal that recovery from PTSD is a slow process. She explained that over time the heightened emotional state associated with PTSD can be cognitively taxing and overwhelming. Consequently, the Applicant would be expected to lose confidence and may cease trying to learn new skills. Ms Baker submits that the difficulty the for Applicant in relation to his application for citizenship was more likely attributable to ‘cognitive malaise’ than a general intellectual inability.

    CONSIDERATION

35. The Applicant explained that he is suffering from severe depression and PTSD which is tied to past traumas experienced in Palestine and exacerbated by his inability to see his family members who are in Palestine. He contends that these conditions render him incapable of demonstrating a basic knowledge of the English language.

36. The evidence presented supports a finding that the Applicant suffers from PTSD and depression that is a symptom of this condition. The Policy requires that applicants claiming permanent or enduring physical or mental incapacity are required to provide evidence from a suitably qualified medical practitioner. Mr Girgis is a specialist in the field and has an endorsement in an area relevant to the claimed incapacity, therefore meeting the evidentiary requirements set out in the Policy. He has diagnosed severe PTSD and based on his diagnosis I am satisfied that the Applicant had a mental incapacity at the time of his application.

1. The Applicant submits that his condition is ‘permanent or enduring’ and has rendered him ‘not capable of demonstrating a basic knowledge of the English language’.  In order to meet the requirements for an exemption under subsection 21(3) the Instructions require that an applicant’s incapacity ‘must be the direct cause’ of an applicant not being capable of demonstrating a basic knowledge of English.

2. The Instructions also provide that when assessing whether a person is suffering from a permanent or enduring physical or mental incapacity, decision makers are to consider whether the condition can be treated and to what extent the person is incapacitated as a result of the condition. These are factors that need to be addressed specifically in the evidence provided by the applicant. Further, the Instructions stipulate that a person who is illiterate would not necessarily have an incapacity of the kind that would meet the requirements of paragraph 21(3)(d) of the Act.

3. In this regard the Respondent argues that the report of Mr Girgis dated 27 September 2019 states the Applicant had continued to be involved in CBT and that he had benefited from it and reported ‘some improvement’. At hearing, this was confirmed by the Applicant’s representative who expressed frustration at the slow progress but confirmed there had been improvement.

4. The issue of treatment was also considered by Ms Baker who reported that the Applicant’s progress was a ‘positive prognostic outcome’ and opined that had the Applicant continued with treatment it was likely that the he would have continued to experience psychological gains. The Respondent contends that this evidence supports the conclusion that the Applicant’s mental incapacity is not of a kind that is ‘permanent or enduring’.

5. The Respondent challenges Mr Girgis’ conclusions as to the Applicant’s cognitive ability and his reported difficulty learning new information. The Respondent submits that there is no evidence as to what testing has been conducted regarding the Applicant’s memory and ability to learn basic English. It is also noted that Ms Baker expresses caution in accepting the opinion as to the Applicant’s limited memory recall and concentration in circumstances where he was able to practice for and pass the New South Wales driver licence test in Arabic on the first attempt.

6. With the exception of Ms Baker’s report, there is no evidence before the Tribunal that testing has been performed regarding the Applicant’s ability to learn and retain new information. In considering the evidence it is apparent that the focus of the Applicant’s treatment has been his PTSD and depression and alleviating the symptoms of these conditions. In her report, Ms Baker concludes that the Applicant was able to learn and retain limited information, and that with ‘repeated exposure and applied practice’ it was likely that his performance may improve.

7. I also note that the Applicant did not seek treatment for his conditions until he had been in Australia for five years. As such his treatment commenced relatively recently and ceased in late 2019. The failure to seek treatment until 2017 and ceasing treatment having noticed improvement to his condition weighs against a finding that the condition was permanent or enduring such that it is sufficiently long-term that there cannot be a predicted recovery.

8. Having considered the evidence and particularly that of Mr Girgis, Ms Baker and the Applicant, I find that the Applicant had an incapacity at the time his application for Australian citizenship was made but it was not permanent or enduring in so much as it was able to be treated and improvement was made until treatment ceased.

9. The Tribunal must also consider if there is direct causation between the Applicant’s mental incapacity and his inability demonstrate a basic knowledge of English. The Respondent does not accept that there is sufficient evidence to conclude that the Applicant’s diagnosis of PTSD and depression are the direct cause of his poor English skills.

10. Mr Girgis notes that the Applicant reported ‘struggling to learn a new language’ because he ‘struggles to comprehend his mother language’. Mr Girgis’s clinical notes also confirm that the Applicant reported anxiety due to his ‘inability to learn a new language due to his limited ability to read and write in his own language’.

11. However, the Respondent argues that it cannot be concluded that the Applicant is incapable of demonstrating a basic knowledge of the English language where on his own concession he had not attended the 500 hours of free English classes to which he is entitled. Whilst the Applicant’s failure to attend English classes does not indicate that he is capable of demonstrating a basic knowledge of English, it makes it significantly more difficult for the Tribunal to conclude that his condition prevents him from satisfying the requirements under paragraph 21(3)(d) of the Act.

12. As mentioned, the Respondent also submits that the Applicant’s ability to obtain a NSW driver licence indicates he is able to learn new information. The Applicant argues that it was easy for him to obtain his NSW driver license because he had initially obtained a driver license in Gaza when he was younger, and he was able to complete the written test in Australia in Arabic.

13. On 4 January 2018, 14 days prior to his citizenship application, Mr Girgis notes that despite the Applicant reporting poor memory and concentration he ‘did not present any memory deficits… psychomotor abnormalities’ and ‘was oriented at the time goal directed and had sound judgement’. More than a year later, on 3 September 2019, Mr Girgis records that the Applicant did not demonstrate any issues with concentration and ‘was able to engage throughout the 60 minute assessment’.

14. I consider these observations are broadly consistent with and support the findings of Ms Baker who concluded that the Applicant’s general intellectual ability was on the ‘extremely low range’ compared to an age-matched population but that it was not a valid representation of his mental incapacity. Rather, she concluded that his general inability to complete tasks required of him was more likely attributable to a ‘cognitive malaise’.

15. I also give weight to the fact that the Applicant met his wife online and was able to travel to Malaysia and Egypt to meet with her and that before coming to Australia he was able to maintain employment. 

16. In circumstances where the Applicant has been able to pass his driving test, has not completed his English language training and medical evidence suggests he has an ability to engage for an extended period, I am not satisfied that the Applicant’s conditions are the ‘direct cause’ of him not being capable of demonstrating a basic knowledge of the English language at that time.    

17. I should also note that whilst there is considerable medical evidence relating to the Applicant’s claimed inability to demonstrate a basic knowledge of the English language, it is apparent to the Tribunal that he understands the nature of the citizenship application and the privileges of being an Australian citizen. The Applicant concedes that his application for citizenship is in large part due to his desire to travel back to Palestine. He says that in order to travel to Gaza he is currently required to go via Egypt. He is frank about his desire for an Australian passport being a significant motivation for his application as it will facilitate his travel.

18. In July 2018, following notification of refusal for a previous citizenship application, the Applicant wrote to the Respondent that his wife’s mother was very ill and he and his wife wished to ‘visit her gravely ill mother and I cannot Travel to Lebanon unless I obtain an Australian passport’.  In a letter to the Respondent dated 2 October 2018 he writes requesting ‘priority’ be given to his application to ‘waive the requirement’ he sit the citizenship test because ‘[m]y citizenship certificate is extremely important for me because I hold a Palestinian passport which I cannot use to travel to Lebanon with my wife’.

    CONCLUSION

19. For the reasons stated above I am not satisfied that the Applicant has a permanent or enduring physical or mental incapacity such that he meets the requirements of paragraph 21(3)(d) of the Act and is therefore not exempt from taking the citizenship test.

20. The Applicant will no doubt be disappointed by this decision. Australian Citizenship: Our Common Bond contains all the information needed to sit the Australian citizenship test. It states that ‘it takes courage, endeavour and commitment to live in a new country and participate fully as a citizen’. Should he wish to do so, there is nothing to prevent the Applicant from choosing to pursue Australian citizenship in the future.

    DECISION

21. The decision of a delegate of the Respondent dated 9 April 2019 to refuse Mr Abugharaba’s application for Australian citizenship by conferral is affirmed. 

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 9 October 2020

Date(s) of hearing:	8 July 2020
Advocate for the Applicant:	Ms F Abugharaba
Solicitors for the Respondent:	Sparke Helmore Lawyers