Al-Sabaawi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 144

Al-Sabaawi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 144 (3 February 2022)

Division:GENERAL DIVISION

File Number(s):      2020/3513

Re:Saadiyah Al-Sabaawi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:3 February 2022

Place:Sydney

The decision under review is affirmed.

.............................[SGD]...........................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – applicant claiming permanent or enduring physical or mental incapacity within the meaning of paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) – applicant’s medical and personal history considered – relevant law and policy considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Policy

Citizenship Procedural Instruction 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

Public Interest Criterion 4007

REASONS FOR DECISION

Mr S Evans, Member

3 February 2022

INTRODUCTION

1. Saadiyah Al-Sabaawi (‘the Applicant’) seeks review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse her application for Australian citizenship by conferral. 

2. Ordinarily, a person who applies to become an Australian citizen is required to satisfy the Minister that, amongst other things, they understand the nature of the 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 they have successfully completed the citizenship test. An exemption exists for applicants who have a permanent or enduring physical or mental incapacity which renders them incapable of satisfying these requirements by successfully sitting the citizenship test.   

3. On 22 May 2020 a delegate of the Minister refused the Applicant’s application for Australian citizenship as they were not satisfied she had provided sufficient evidence to demonstrate that she has an incapacity that would satisfy the criteria required to be exempt from taking the citizenship test. The Applicant contends that she meets the criteria for such an exemption on account of a permanent and enduring mental incapacity and seeks review by the Administrative Appeals Tribunal (‘the Tribunal’).  

4. On 9 June 2020 she applied to the Tribunal for review of the delegate’s decision. The Applicant was represented at the hearing by her daughter Maryam Abdulkareem and I greatly appreciate the assistance she provided.  

   ISSUES TO BE DETERMINED

5. 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 her citizenship application on 4 April 2019; and, if so

   (b)is there is a causal relationship between the incapacity and the Applicant not being capable of understanding the nature of the application at that time; or was not capable of demonstrating a basic knowledge of the English language at that time; or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

   LEGISLATION AND POLICY

6. Section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) sets out the requirements for Australian citizenship by conferral. The general eligibility requirements for Australian citizenship by conferral are set out in subsection 21(2). Paragraphs 21(2)(d) to 21(2)(f) include requirements that a person understands the nature of an application for Australian citizenship, possesses a basic knowledge of the English language and has adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. 

7. Ordinarily the criteria at paragraphs 21(2)(d), 21(2)(e) and 21(2)(f) are satisfied by the applicant being eligible and successfully completing the citizenship test provided for in section 23A of the Act. 

8. A person who applies for Australian citizenship under subsection 21(1) of the Act is eligible for conferral in accordance with subsection 21(3) if the Minister is satisfied that the person meets each of the requirements in paragraphs 21(3)(a) to 21(3)(f). Paragraph 21(3)(d) requires 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 …

9. The Act does not define permanent or enduring physical or mental incapacity, but the Citizenship Policy (‘the Policy’) and the Citizenship Procedural Instructions provide guidance to decision makers on the interpretation of and exercise of powers under the Act. CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (‘the Instructions’) sets out the requirements for assessing incapacity and determining whether paragraph 21(3)(d) is satisfied. 

10. Although the Tribunal is not strictly bound by the Policy and the Instructions, the Tribunal as decision-maker will generally apply policy unless there are cogent reasons not to do so.

11. In relation to incapacity the Policy relevantly provides: 

    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.

12. The Instructions also specify that the incapacity must be the direct cause of the applicant meeting the requirements in paragraph 21(3)(d) of the Act. 

    EVIDENCE AND FACTS

13. The Applicant was born in 1966 in Iraq and arrived in Australia on 30 July 2013 as the holder of a Permanent Women at Risk (subclass 204) visa.

14. When she applied for Australian citizenship by conferral on 4 April 2019 she indicated that as a consequence of a permanent or enduring physical or mental incapacity she was not capable of understanding the nature of the application.

15. Ms Abdulkareem told me that the Applicant came to Australia in order to provide a better life for her children. Ms Abdulkareem recalls that when she and the Applicant immigrated to Australia, the Applicant was able to take care of her children and manage the family’s affairs including their settlement in Australia. The Applicant cooked, shopped and did what was required to ensure her daughter attended school. There was, she said, ‘nothing wrong with her’.

16. In mid-2014 the Applicant’s brother was the victim of a violent robbery whist driving his tax in Iraq. He died shortly after. Whilst the Applicant had experienced mental health issues in the past, notably following the divorce of her husband and migration to Syria, it was after her brother’s death that her depression began. 

17. Almost immediately following her brother’s passing the Applicant’s mental health began to deteriorate. On the night she received the news from Iraq that he had died, the Applicant had difficulty breathing and sought treatment in hospital. She subsequently stopped eating and her mental health worsened to the point where she made attempts to self-harm. 

18. The family decided to have the Applicant’s eldest son come from Iraq to look after her, which he did from 2016. In 2017 the Applicant returned to Iraq to visit relatives. Upon her return she reported feeling lonely.

19. The Applicant stated that she is unable to understand any English. She gave evidence that she initially attended English language tuition when she arrived in Australia but stopped doing so after a month as she was very busy. She claimed not to remember her arrival in Sydney and told me that she cannot cook and that Ms Abdulkareem takes care of the shopping. 

20. Asked which of her conditions prevent her from learning English, the Applicant said she is unable to focus, she immediately forgets what she has learnt and does not know how to write. She is able to write a little in Arabic, but still forgets everything. 

21. The Applicant was able to confirm that she came to Australia with her two children and that she did not know anyone when she arrived. Whilst she has held a drivers licence since 2013, the Applicant does not drive as she is too ‘scared’ to do so. She claims to be very unwell on account of the medication she is taking and claims not to leave the house, in part because her children prevent her from doing so.

22. She also told the Tribunal that her brother who was murdered ‘comes to [her] in [her] dreams’ and she cannot sleep as she imagines him being killed.

    Medical Evidence

23. The Applicant has provided medical reports in support of her application. The evidence includes a report dated 17 June 2020 from Joseph Golany regarding her hearing. Mr Golany confirms that the Applicant was diagnosed with mild to moderate bilateral sensorineural hearing loss and fitted with a hearing aid. I note that the Applicant’s hearing impairment is not the stated cause of her inability to learn English or sit the citizenship test.

    Dr Ashraf Philips, Consultant Psychiatrist

24. Consultant psychiatrist Dr Philips has been caring for the Applicant since 26 May 2017. In a medical report dated 11 June 2020 he writes that the Applicant suffers from PTSD and ‘chronic depression’, and she does not have the capacity to learn a new language at ‘[t]his stage of life’. 

25. On 29 March 2019 Dr Philips reports that he had seen the Applicant on 13 occasions in relation to ‘psychotic and depressive symptoms’. However, the Applicant ‘continues to have severe, chronic permanent, unremitting symptoms that are not responding to treatment’. Relevantly, Dr Philips identifies the Applicant’s symptoms as including ‘lack of concentration and short-term memory issues’. 

26. In a separate report dated 20 November 2020 Dr Philips notes that on the MMSE test, the Applicant scored low on items related to concentration and memory and ‘[t]here is clinical evidence of below average intelligence’.  In an earlier report dated 11 June 2020 Dr Philips observed that the Applicant ‘suffers from chronic low mood, anxiety, fearfulness, disturbed sleep and appetite’, experiences suicidal thoughts and has attempted to commit suicide. He reported that:

    [o]n examination, [the Applicant] was casually and appropriately dressed. She was pleasant, cooperative, and easy to engage. No psychomotor agitation or retardation was noticed. She spoke with a normal rate, tone and volume. Her affect was reactive and appropriate. She described her mood as “low”. There was no evidence of formal thought disorder, delusions or current suicidal ideas. There were no perceptual disorders detected during the assessment other than visual perceptions which are likely to be trauma based.

27. Dr Philips also confirms that the Applicant is treated with antidepressant medication and medication to help her sleep, as well as regularly attending psychotherapy with a psychologist.

    Dr Jacqueline Youssef, Clinical Social Worker

28. Dr Jacqueline Youssef is a clinical social worker, counsellor, psychotherapist and hypnotherapist. She considers that the Applicant is ‘displaying and reporting symptoms consistent with a diagnosis of PTSD, Adjustment Disorder with depressed and anxious mood in response to her psychological condition and to the very little education she has had since his [sic] young childhood’. She reports that the Applicant scored ‘extremely severe on all three scales of Depression, Anxiety and Stress of the DASS-42 and hence, it is not surprising that her capacity to learn is extremely low’.

    Dr Sanaa Guirguis, General Practitioner

29. Dr Guirguis has been treating the Applicant since she arrived in Australia. She writes that the Applicant suffers from severe stress, family problems, tension and cannot sleep at night or concentrate. She also has conditions which cause joint pain and severe lower back pain, palpitations, headaches and shortness of breath and dizziness. 

    Dr Hussain Alseneid, General Practitioner

30. Dr Alseneid has been treating the Applicant since 7 May 2019 and reports that ‘[s]he is known with PTSD with chronic major depression with psychotic perceptual experiences and insomnia’, for which she takes medication and receives ongoing psychotherapy.

    Thomas O’Neill, Clinical Psychologist

31. The Minister has provided an independent expert report from Mr O’Neill dated 18 June 2021. Mr O’Neill assessed the Applicant on 18 June 2021 and meets the qualification requirements set out in the Policy. Mr O’Neill also gave evidence at the hearing.

32. Mr O’Neill gave evidence that the Applicant had a history of mental illness relating to the experiences she had prior to arriving in Australia. Her conditions included depression following the death of her father. Mr O’Neill was unable to conclude that the Applicant had a permanent or enduring mental incapacity but considers that she may have psychiatric disorders. He opined that conditions such as depression and PTSD may be associated with a personal history such as the Applicant’s, particularly given her vulnerability.

33. Whist he acknowledged her history of mental illness, Mr O’Neill opined that the conditions are treatable conditions which do not preclude learning or indicate a total impairment or incapacity. He considers that with active engagement in treatment, rehabilitation, support, community participation and appropriate treatment, the Applicant may build and enhance her capacity to learn.

34. Mr O’Neill concedes the Applicant could expect difficulties learning a new language at this stage of her life, but he considers that learning a new language depends on a combination of factors including motivation to learn, receptiveness to learning and access to appropriate support and tuition. Based on the Applicant’s medical reports, Mr O’Neill said it was difficult to tell if she had been engaged in appropriate and active treatment of her conditions.

35. Mr O’Neill conducted a psychometric test, ‘Test of Memory Malingering’, which he describes as a simple visual memory and retention test requiring no language. In his opinion, the results and his observations during the assessment support a conclusion that the Applicant exaggerated her concentration and memory problems.

36. He told the Tribunal that the test of memory malingering is the gold standard assessment used for screening of cognitive deficiencies and individuals with Alzheimer’s disease and severe brain disorders obtain near normal scores of 50/50 after a second trial. The Applicant’s first score was 19/50 and 13/50 on the second trial. He notes that her deteriorating performance in the subsequent test was significantly below chance indicating a blindfolded person would do a lot better than she did. In Mr O’Neill’s opinion, two conclusions are appropriately drawn from these results. Firstly, they indicate significantly suboptimal effort in engaging in the testing. Secondly, the results indicate that the Applicant knew the correct answers and actively chose the opposite, which in itself indicates a degree of cognitive ability.

37. In relation to medical evidence which suggested the Applicant is of below average intelligence, Mr O’Neill observed that having a low average intelligence or limited formal education or schooling is not a disability and does not render an individual incapacitated to learn.

    CONSIDERATION

38. The first issue to be determined is whether the Applicant had a permanent or enduring physical or mental incapacity at the time of her citizenship application such that she meets the requirements in paragraph 21(3)(d) of the Act. 

39. I accept that the Applicant suffers from medical conditions associated with depression and PTSD as reported by Dr Philips. As a psychiatrist, Dr Philips meets the evidentiary requirements set out in the Instructions. Whilst there are additional reports before the Tribunal, I place limited weight on them as the practitioners do not meet the relevant qualifications set out in the Policy.

40. The Minister contends that whilst Dr Philips has provided a diagnosis of depression and PTSD, he has not identified how these diagnoses have caused any incapacity which would enable the Applicant to satisfy the criteria in paragraph 21(3)(d) of the Act. Further, his observations that there is ‘clinical evidence of below average intelligence’ and that the Applicant ‘doesn’t have the capacity to learn or understand a new language at [t]his stage of life’ indicates that her difficulty in learning a new language is not caused by her claimed incapacity.

41. It is the case that the medical reports in evidence do not provide any diagnostic assessment that demonstrate the Applicant’s mental health has prevented her from learning the English language. 

42. The Minister notes that a Form 884: Opinion of a Medical Officer of the Commonwealth dated 20 May 2013 states that the Applicant was assessed against the Public Interest Criterion 4007 (‘PIC 4007’) and met the heath requirements for a permanent stay in Australia. PIC 4007 sets out that an applicant is free from, amongst other things, a disease or condition for which the person would be likely to require health or community care services that would result in a significant cost to the Australian community.

43. I place limited weight on the findings contained in the form. Whilst it does not identify any chronic medical conditions which may result in significant cost to the community, it was performed prior to the stated deterioration of the Applicant’s mental health. There is also no information as to the extent to which the Applicant’s mental health was considered by the medical officer.

44. The Instructions provide that the Applicant’s incapacity must be the direct cause of an applicant not being capable of fulfilling the requirements in paragraph 21(3)(d) of the Act. In this case it would require the medical evidence to demonstrate the Applicant’s mental incapacity is the direct cause of her inability to learn English.

45. Mr O’Neill’s opinion is that Applicant’s experiences and conditions would not prevent her from learning English. He also considered that his testing indicated that the Applicant was exaggerating her concentration and memory problems, and his evidence in this regard was persuasive. 

46. I am mindful that the Applicant holds a drivers licence which she obtained before she learnt of her brother’s death, the point at which her mental health reportedly deteriorated significantly. It was also submitted on behalf of the Applicant that a condition of her licence is that she is not able to travel more than 10 kilometres from her home. This may be so, but I accept that obtaining a drivers licence indicates the Applicant had some capacity to learn and retain information at the time. 

47. As mentioned, the Applicant’s mental health was more robust prior to 2014. Her ability to function at that time was confirmed by the evidence of Ms Abdulkareem. That she was able to arrange and manage the successful relocation of her and her children to Australia and navigate their settling in a country in which they had no connections supports this evidence.    

48. The Applicant had the opportunity to participate in English lessons before the deterioration in her mental health but chose not to do so. By her own account she was busy, and studied English for less than a month. 

1. The Applicant submits that her drivers licence was conditional and obtained prior to 2014, after which her mental health declined significantly. The medical evidence submitted by the Applicant does not indicate that the events to which the Applicant refers were significant in terms of her condition. Nor does the medical evidence speak to the deterioration in the Applicant’s condition generally.

2. The medical evidence indicates that the Applicant’s PTDS and depression are permanent and unlikely to improve. However, there is an absence of evidence which details how her diagnosed conditions relate to her inability to learn English. Notably, Dr Philips states that the Applicant does not ‘have the capacity to learn or understand a new language at [t]his stage of life’, but there is no information as to how this was determined, any testing which was performed or the basis on which this opinion was reached.

3. In the same report, dated 11 June 2020, Dr Philips observed that the Applicant was ‘casually and appropriately dressed’ and ‘pleasant, cooperative, and easy to engage’. Her affect, he observed, as ‘reactive and appropriate’. 

4. These observations do not undermine a finding that the Applicant has the mental health conditions referred to, but they do support Mr O’Neill’s observation that she may be capable of learning English with an appropriate level of suitable support from others and engagement on her part. Considered in the context of what the Applicant has been able to achieve in the past, and the lack of detailed evidence as to how her depression and PTSD prevent her from learning English, I am not satisfied that these conditions are the cause of her inability to learn English.

   CONCLUSION

5. On balance, I am not satisfied that the evidence supports a finding that the Applicant’s PTSD and depression are the cause of her inability to learn English or that with appropriate support and engagement on the part of the Applicant, she would not be capable of sitting the citizenship test. As such, the requirements of paragraph 21(3)(d) of the Act have not been met and the decision under review will be affirmed.

6. I note that should the Applicant choose to do so, she may make a further application for Australian citizenship by conferral. 

   DECISION

7. For the reasons stated above, the decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...................................[SGD].....................................

Associate

Dated: 3 February 2022

Date(s) of hearing:	14 October 2021
Advocate for the Applicant:	Ms M Abdulkareem
Solicitor for the Respondent:	Ms M Kelly, Sparke Helmore