Butrus v Minister for Immigration and Border Protection
[2019] AATA 239
•28 February 2019
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 (28 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0177
Re:Najeeb Abdo Butrus
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:28 February 2019
Place:Sydney
The decision under review is affirmed.
..........................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship test exemption – whether the applicant suffered from a permanent or enduring physical or mental incapacity – evidence of mental incapacity – tribunal not satisfied that there is evidence of mental incapacity – decision affirmed
LEGISLATION
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Farhan v Minister for Immigration and Citizenship [2010] AATA 36
Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
Laalaa v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579
Rahman v Minister for Immigration and Citizenship [2010] AATA 930
Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463
Shao v Minister for Immigration and Citizenship [2012] AATA 709
Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (American Psychiatric Association, Washington, D.C. 2013)
Australian Citizenship Test Review Committee, Moving forward…improving pathways to citizenship (R Woolcott, chair), Australian Citizenship Test Review Committee, 2008.
Kim Rubenstein: Australian Citizenship Law (Lawbook, 2017, second edition)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
28 February 2019
Mr Najeeb Abdo Butrus (the Applicant) appeals to this Tribunal to review a decision made by a Delegate of the Minister (the Respondent) to deny his claim for citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (the Act).
The Applicant’s application for citizenship was made on 29 December 2016 and refused by the Delegate on 8 January 2018. On 16 January 2018 the Applicant lodged his appeal with this Tribunal which heard his case on 22 February 2019.
The basis upon which the Delegate refused the application was that the Applicant failed to pass the citizenship test as required by s 21(2A) of the Act.
The Applicant’s response to this determination has been to advance his claim for citizenship by reliance upon s 21(3)(d) of the Act which establishes eligibility for citizenship where an applicant “has a permanent or enduring physical or mental incapacity, at the time the person made the application” and is thus not otherwise able to meet the general requirements which are related to the taking and passing of the citizenship test.
The Respondent contests that the Applicant does not have this degree of incapacity.
It is unfortunate, especially given the nature of the claims advanced by the Applicant that he was unrepresented at the Tribunal hearings, although assisted by a highly competent translator in the Arabic language.
In order to assess these competing claims and requirements it is necessary to set out the scheme of grants of citizenship by conferral under the Act. The relevant legislative provisions are found in s 21 of the legislation.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 21
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) 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) 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
(g) 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
(h) is of good character at the time of the Minister's decision on the application.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period ) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
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.
In short, the system is such that:
1)A person may make an application for citizenship and, under s 24(1) of the Act the Minister must make a decision to grant or not grant that application. The Minister is obliged to make a decision and has no power to defer such decision-making.[1]
2)In order for an application to be granted, an applicant must satisfy all of the 8 requirements that are listed in s 21(2);
3)Subsections (d), (e) and (f) of s 21(2) can only be satisfied if the applicant understands the nature of their application, possesses a basic knowledge of the English language and has an adequate knowledge of the responsibilities and privileges of citizenship;
4)This is established by the applicant having to undertake and pass the citizenship test established by s 21 (2A). Ministerial Determination (Instrument) 11/088 provides that: “There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless a person has commenced a Course-Based Test.”[2];
5)However, if the Minister is satisfied that an applicant cannot meet the requirements of ss 21(2)(d),(e) or (f) due to having “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, then the Minister may proceed to grant the citizenship application.
[1] The Australian Citizenship Instructions state: 39.2 Deferral of decision not possible: “Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The new Act does not allow for the deferral of decisions.”
[2] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012.
THE APPLICANT’S CIRCUMSTANCES
Mr Butrus is an Iraqi citizen, he is 53 years old. He arrived in Australia in 2011 as the holder of a Refugee (Subclass 200) visa.
It appears from the evidence of both Dr Abu-Arab[3] and Mr Thomas O’Neill[4] who are respectively a clinical psychologist who has been treating the Applicant, and an Independent Consultant Psychologist engaged by the Respondent, that the Applicant is illiterate in both English and his own native-tongue, Arabic. However he speaks fluent Arabic and also speaks Kurdish and “Caldonian.”[5]
[3] Report of Dr Abu-Arab dated 22 March 2018 at Applicant’s Submission [Tab 1] and Supplementary Section 37 Tribunal Documents at [500]-[505].
[4] Report of Mr O’Neill dated 17 July 2018 attached to the Respondent’s Statement of Facts, Issues and Contentions.
[5] This is an error, the third language spoken by the Applicant is Chaldean.
The Applicant was raised in Iraq where, for family financial reasons, he completed only 3 years of primary school. He served in the Iraqi army for some 6 years, initially as a volunteer, but was then conscripted during the Gulf War and was exposed to combat. He lost a number of friends during this period, including one close friend whose death, as a result of an explosion, severely traumatised him. He fled Iraq to Turkey after he and his family were threatened with death by terrorists and remained there for in excess of 18 months before being accepted as a refugee by Australia.
He is the youngest of 8 children and appears to keep in close contact with most of them, including a brother living in Germany. He married in 1983 and has four adult children in Australia.
Apart from issues arising from his traumatic experiences in the Iraqi army, he suffers from a number of physical health problems including degenerative problems with his knees and shoulder pain resulting from previous surgery. Some of these physical problems require him to need assistance with routine daily activities (including dressing and showering) which is provided by his wife and daughter.
He can drive (and in Iraq worked as a mechanic) but has problems with public transport and he does not engage in any degree of social activity outside the home. There is some discrepancy in the two reports about the nature of the Applicant’s relationship with his family members. Dr Abu-Arab reports that he fights with family members and avoids unnecessary contact whereas Mr O’Neill reports that he communicates with and sees family members regularly.
He has been as assessed as unfit for any kind of productive work and is in receipt of the disability support pension.
THE CITIZENSHIP TEST
Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A (4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)) and the time limits within which the test must be completed (s 23A(5A)).
Passing the citizenship test is an integral requirement for the consideration of grant of citizenship. The test is designed to establish that an applicant both understands what citizenship is all about and what their application actually means. It also establishes a basic requirement in regard to competency in the English language.
There are actually several versions of the test. The Standard Test is simply computer-based. The Assisted Test is available for persons with low literacy skills and is conducted on the computer but with the assistance of a test administrator. The Course-Based Test is used for those who have failed the Standard or Assisted Test on three or more occasions and involves a detailed tuition programme.
The Instrument to which reference has already been made provides that a score of 75% is required and this minimum threshold cannot be varied.[6] This arrangement has been in place since the Instrument was made in March 2012.
[6] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [10], [26], [43)(iii)].
The Applicant sat the citizenship test on three separate occasions: 22 February 2017, 15 September 2017 and 20 October 2017 but failed on each occasion.[7] It was on this basis that the Delegate rejected the citizenship application.
[7] Section 37 Tribunal Documents at [12] and [16] and at [Annexure A].
In his application for review of that decision, the Applicant states:
“English language is not my main language. Even I cannot read or write in my own language.”[8]
[8] Ibid at [4].
The Applicant may have been able to obtain assistance prior to his first sitting for the Citizenship Test had his citizenship application form not provided the answer “No” to the question “Do you need help with the citizenship test?”[9] Apparently this was the result of the application being filled out by some third party in his behalf. The Tribunal notes nevertheless, that this form appears to carry a signature rather than a just a mark, which apparently was entered by the Applicant.[10]
[9] Ibid at [35].
[10] Ibid at [47].
The Applicant subsequently advances his claim for citizenship by conferral under the grounds provided in s 21(3)(d), namely that he has a permanent on enduring physical or mental incapacity which vitiates the requirements of ss 21(2)(d),(e) and (f).
It should be noted that while applicant’s who fail the Standard Test can apply (there is no automatic entitlement to) for support to undertake the Assisted Test, there is a requirement that in order to be eligible they must complete at least 400 hours of supervised English language tuition or have a physical or cognitive impairment.[11] It would, give the Applicant’s current position, not be possible for him to meet these requirements.
[11] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [20].
SECTION 21(3)(D)
This section of the Act resulted from the government’s consideration of the Australian Citizenship Test Review Committee (Woolcott Committee) report, Moving Forward …Improving Pathways to Citizenship which reported in August 2008.
Prior to that date s 21(3)(d) established citizenship eligibility where the person had
“a permanent physical or mental incapacity, at the time the person made the application, that means the person is not capable of understanding the nature of the application at that time.”
The Woolcott Committee recommended as follows:
In looking closely at the legislation, the Committee believes that there is scope for improving the exemption provisions regarding “mental incapacity”.
For survivors of torture and trauma, the use of a formal test which requires a high level of English proficiency, a large amount of study and familiarity in the use of a computer, significantly disadvantages them. There are many people who come to Australia under the Humanitarian Program who fall into this category.
The Committee considers the current exemption criteria do not take into consideration the effect of severe and chronic symptoms resulting from the experience of torture and trauma. These may include strong anxiety associated with learning difficulties, and while some symptoms are permanent, others, though severe, are not necessarily permanent.
Section 23A sets out the process for a citizenship test and it states in the note that the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d) understanding the nature of the application, (e) a basic knowledge of the English language and (f) an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
Therefore, “mental incapacity” is only being used as an exemption in relation to section 21(2)(d) (understanding the nature of the application) but is not included in section 21(2)(e) and (f) which require a basic knowledge of the English language and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. However, they are all relevant to citizenship testing.
Moreover, permanent physical and mental incapacity uses the words “at that time” in relation to when an application for Australian citizenship is lodged. The Committee considers that the use of “permanent” and “at that time” are contradictory when discussing mental incapacity, and in light of the consultations, is of the view that the physical and mental incapacity may not need to be permanent to satisfy the principle underpinning this exemption.
The Committee believes there will be people in this enlarged group who may never fit into the suggested alternative pathways discussed earlier in this report because their past traumatic experiences affect their ability to retain the necessary information required to pass a test.[12]
[12] Australian Citizenship Test Review Committee, Moving forward…improving pathways to citizenship (R Woolcott, chair), Australian Citizenship Test Review Committee, 2008 at [34] – [35].
It is suggested that section 21(3)(d) could be amended in the spirit of the existing Act to read:
“has a physical or mental incapacity at that time means the person is not
capable due to the physical or mental incapacity of:
• understanding the nature of the application at that time; or
• demonstrating a basic knowledge of the English language at that time; or
• demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.”[13]
[13] Australian Citizenship Test Review Committee (Woolcott Committee) Moving Forward …Improving Pathways to Citizenship at [35].
In specific reference to the citizenship test, the Committee recommended:
Section 21(3)(d) of the Australian Citizenship Act 2007 be amended in the spirit of the Act to include an inability to demonstrate a basic knowledge of English and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship due to mental incapacity, resulting in those individuals not being required to sit a test.[14]
[14] Ibid at [38].
The Government accepted the recommendations of the Committee agreeing to amend section 21(3)(d) to
“ensure that the test does not disadvantage vulnerable people who most need our support.”[15]
[15] Department of Immigration and Citizenship, Australian Test Review Committee, Recommendations and Government Responses. Cited in Kim Rubenstein: Australian Citizenship Law (Lawbook, 2017, second edition) at [177].
The change to the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009.
The Australian Citizenship Policy outlines the policy approach taken by the government in relation to applications under s 21(3)(d).
“For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
·understanding the nature of their application
·demonstrating a basic knowledge of the English language or
·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
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.
……….
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
……………
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.” [16]
[16] Australian Citizenship Policy at [71]-[74].
There have been a number of cases decided which address several of the requirements outlined above.
In Ravichandran[17] the Tribunal accepted that the applicant suffered from a permanent mental incapacity, namely chronic schizophrenia. However other requirements of the section were not met by the applicant. The Tribunal stated:
[7] A copy of a report prepared by Mrs Ravichandran’s treating psychiatrist, Dr Bernard St George was tendered in these proceedings. Dr St George provided a diagnosis of schizophrenia and stated that Mrs Ravichandran had been suffering from the condition when she made her application for citizenship. He did not provide an opinion on whether the nature of her condition meant that she was incapable of understanding the nature of that application or prevented her from learning English.
[8] The material before me does not support a finding that when she made her application for citizenship Mrs Ravichandran was incapable of understanding the nature of that application. Indeed, the evidence revels that at the relevant time she had a broad understanding of the nature of the application made.
[9] It is argued for Mrs Ravichandran that she lacks capacity for the purpose of s 21(3)(d) because she does not have a basic knowledge of the English language. It does not necessarily follow that a person with a permanent mental incapacity who has limited English is incapable of understanding the nature of an application for Australian citizenship. Whether that will be the case depends, among other things, on the nature of the person’s condition. As the evidence reveals in this case despite her medical condition and language problems Mrs Ravichandran was capable of understanding the nature of an application for citizenship.
[10] It follows that the second limb of s 21(3)(d) is not satisfied and therefore the decision under review to refuse Mrs Ravichandran’s application for citizenship, must be affirmed.
[17] Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463.
In Shao[18] the Tribunal found that, contrary to the requirements of the Citizenship Policy the applicant had not been seeing a relevant specialist on a regular basis, did not have an enduring mental incapacity generally, nor one that specifically meant that the applicant could not learn to speak English.
[18] Shao v Minister for Immigration and Citizenship [2012] AATA 709.
SATISFYING THE 21(3)(D) CRITERIA
To meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizen application, acquiring basic English language competency or being able to understand the responsibilities and privileges of citizenship.
In order to demonstrate this, the applicant must, in line with the Citizenship Policy, produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
Evidence from Dr Abu-Arab[19]
[19] Applicant’s Submission. Report dated 22 March 2018.
In summary, Dr Abu-Arab makes the following findings in relation to the Applicant:
1)He needs support and assistance with matters of self-care and personal hygiene which is provided by his daughter;
2)He avoids social contacts, no longer going to Church, leaving home or exchanging visits with friends and family;
3)He drives locally to familiar places but cannot use public transport;
4)He has poor (and confrontational) relationships with family members who he tends to avoid;
5)He is unable to concentrate even watching television, has only attended 10 hours of English classes and finds that he gains no benefit from (attempted) study;
6)He is unable to participate in any meaningful decision-making activities; and
7)He has no capacity to undertake meaningful employment or work of any kind.
From these findings and observations, Dr Abu-Arab concludes that the Applicant suffers from Post-Traumatic Stress Disorder (PTSD), largely occasioned by his traumatic experiences in Iraq and further that he has a secondary diagnosis of major depression.
He concludes:
“I believe that his psychiatric condition as well as his illiteracy problem would affect his ability to concentrate on tasks and retain new learnt material. The patient’s condition is chronic and long lasting because it has been present for many years. I do not expect significant improvement even with thorough and extensive training.
…..
I believe that his current psychiatric condition following the numerous traumatic events he experienced in the past and his illiteracy problem would affect his ability to learn and retain new material/information. Therefore, I recommend exempting him from the knowledge test for new citizens.
Based on my observations, I am satisfied that Mr Butrus’ condition is permanent and long lasting. Therefore, I am confident it is unlikely that with further training his condition may change.
In my view, he doesn’t have the basic knowledge of the English language to enable him to learn and retain information, such as the information required to pass the Citizenship exam. I further believe he is unable to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.”
Dr Abu-Arab also provided a letter to the Tribunal dated 4 February 2019 in which he states:
“I supported (Mr Butrus) in his application because he suffers with PTSD, The condition of PTSD is associated with worsening in memory and concentration. Therefore his condition would be an obstacle for him to learn and retain huge amount of information such as learning a new language and learning information required to pass the Citizenship Test.”[20]
[20] Tribunal Evidence at [A1].
The Respondent challenges Dr Abu-Arab’s conclusions and recommendations within the context of s 21(3)(d) requirements. Specifically, the Respondent averts that:
1)A diagnosis of PTSD and depression does not indicate that these are the cause of the Applicant’s poor English skills which should, the Respondent urges, be more properly attributed to his general level of illiteracy, even in his own native language;
2)The diagnoses appear to be based on little more than self-reporting and give no indication that any clinical testing was conducted;
3)There is no evidence that the Applicant has received any ongoing treatment for his conditions (as required by the Citizenship Policy supra) or that Dr Abu-Arab proposes any treatment plan or further referrals; and
4)That, even if Dr Abu-Arab’s diagnosis and prognosis is accepted (which the Respondent does not) then his analysis fails to satisfy the requirement of s 21(3)(d) which requires that the applicant have an “incapacity .. that means” that they are incapable of satisfying the knowledge requirement, In this respect the Respondent asserts that “It is not sufficient that his (the applicant’s) claimed condition merely affected his ability to satisfy the requirements.”[21]
[21] Respondent’s Statement of Facts, Issues and Contentions at [28].
Furthermore, in oral submissions the Respondent attacked the general credibility of Dr Abu-Arab’s reports. The Respondent pointed out that his reports on the Applicant dated 25 November 2014, 23 November 2016, 1 July 2017 and 23 March 2018[22] are all, in many respects absolutely identical – down to the point of the Applicant’s weight being exactly the same in each. It is obvious from the numbering of certain sub-paragraphs that a cut-and-paste exercise has been undertaken and that there is no evidence that from one report to the next any new tests or evaluations were undertaken.
[22] Supplementary Tribunal Documents at [526-527]; [523-525]; [520-522] and [516-519] respectively.
The Tribunal feels compelled to note that evidence from Dr Abu-Arab in relation to patients of his who have brought matters before the Tribunal specifically related to claims touching upon s 21(3)(d) of the Act, has been rejected consistently.
In August 2015 Member Ettinger was critical of Dr Abu-Arab’s reliance upon inappropriate and inadequate testing of an applicant before making his diagnosis and she rejected his conclusions.[23]
[23] Laalaa v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579 at [40].
In July 2015 Senior Member Taylor SC expressed numerous difficulties in accepting Dr Abu-Arab’s findings which he found “convincingly demonstrate that Dr Abu-Arab’s opinions … had no adequate basis and cannot be accepted.”[24]
[24] Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499 at [22].
In June 2016 Senior Member Isenberg found that Dr Abu-Arab’s “reports do not articulate a clear basis for the diagnosis and opinions expressed in them.”[25]
[25] Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [44].
Dr Abu-Arab was unavailable to give evidence to the Tribunal hearing and, as a result, the Tribunal must deal with both his report and the challenges to it by the Respondent on the basis of the material as submitted.
Evidence from Mr O’Neill
Mr O’Neill provided a lengthy report which was based on both his interview with the Applicant (assisted by an interpreter) and the conduct of a series of “psychological inventories” or tests.
His conclusions are as follows:
1)No secure diagnosis can be provided, and while the Applicant may have symptoms of PTSD and depression there were clinical inconsistencies in both presentation and reporting of symptoms;
2)The Applicant himself denied suffering from PTSD and that although he had bouts of natural grief related to traumatic events in Iraq he managed to cope with them, and, contrary to the finds of Dr Abu-Arab he did not have recurring nightmares as a result;
3)As a patient the Applicant was difficult to assess, displayed signs of passive aggression and disengagement when attempts were made to assess his cognitive functions and did not see any need for ongoing treatment from his psychologist.
In addition, Mr O’Neill reported that:
“Individuals with severe trauma and multiple mental health problems, although sometimes having least (sic) compromised capacity to engage in a rage (sic) of cognitive tasks that involve literacy and language, would not present as being impaired as Mr Butrus is claiming.
…
Thus, I would conclude that if there was a Post-Traumatic Stress Disorder or long term depression present, these in and of themselves would not account for the level of claimed illiteracy or difficulties comprehending the tasks Mr Butrus was required to complete in his application for citizenship. It is uncertain why he pursued 3 applications given his first failed attempt.”
Mr O’Neill also mentioned that on several occasions during the interview the Applicant
“made reference to the process being challenging, and during the interview he did comment that he did not want Australian citizenship given the circumstances.”
Mr O’Neill gave lengthy testimony at the Tribunal hearing. That testimony was clear, articulate and compelling. In addition to his written report, he provided testimony to the effect that:
1)Even patients well diagnosed with PTSD are capable of learning language and acquiring a degree of literacy, the condition itself does not preclude this;
2)The level of failure of the Applicant on the various standard and proven tests administered in his examination is inconsistent with the demonstrated capacity of the Applicant to function as a soldier, mechanic and car driver and should be attributed not to any clinical incapacity on his behalf but rather on the Applicant’s deliberate unwillingness to be assessed or to co-operate in the process of assessment;
3)That while the Applicant may, as other medical reports have suggested, have “low cognitive functions, slow thinking and slow physical activity”[26], none of these presents a barrier to acquiring language and literacy skills.
It should be noted that while “concentration difficulties, including difficulty remembering daily events (e.g. forgetting one’s telephone number) at attending to focussed tasks (e.g. following a conversation for a sustained period of time) are commonly reported”[27], the authoritative Diagnostic and Statistical Manual of Mental Disorders (DSM-5) does not list basis learning or language difficulties as among the symptoms, presentations or diagnostic features of people with PTSD.[28]
[26] Centrelink Medical Report of Dr Nameen Hanna, dated 2 May 2012, Supplementary Tribunal Documents at [340]-[347]
[27] Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (American Psychiatric Association, Washington, D.C., 2013) page [276].
[28] Ibid pages [274]-276].
Mr O’Neill was particularly critical of Dr Abu-Arab’s report for its obvious lack of being based on any relevant formal testing or evaluation, certain internal inconsistencies and the articulation of findings and conclusions which do not appear to be supported by probative evidence.
ASSESSMENT OF EVIDENCE
The Tribunal is confronted with evidence from Dr Abu-Arab and from Mr O’Neill which is at significant variance.
Dr Abu-Arab holds degrees as MA, PhD, MAPS and is a clinical psychologist and member of the APS College of Clinical Psychologists. Mr O’Neill holds degrees as BA (Hons) M (CLIN) PSYCH, FAPsP as is an independent consultant, a Fellow of the Australian Psychological Society and a Member of the College of Clinical Psychology (APS). He also told the Tribunal that he has conducted tests akin to those on the Applicant on more than 2000 occasions and evaluated more than 2500 children in relation to language skills and learning.
There is no doubt in the mind of the Tribunal that the evidence of Mr O’Neill is entirely to be preferred to that of Dr Abu-Arab. Mr O’Neill gave evidence to the Tribunal, which was subjected to discussion and cross- examination by the Tribunal and Dr Abu-Arab did not. The Tribunal places reliance upon the fact that Mr O’Neill’s conclusions are clearly based on detailed and rigorous testing of the Applicant and Dr Abu-Arab’s are not. It also accepts that Mr O’Neill analysis of the comparative status of the Applicant’s cognitive capabilities in terms of the experience of other subjects should be preferred to that advanced by Dr Abu-Arab. The Tribunal cannot ignore the findings of other Tribunal’s in relation to Dr Abu-Arab’s methodologies and conclusions, nor the unsatisfactory nature of so many of his reports on the Applicant over a period of several years looking like mere cut-and-paste templates differing only in their dates.
This leads the Tribunal to adopt Mr O’Neill’s expert evidence to the effect that whatever difficulties the Applicant may be suffering (and noting his conclusion that no conclusive diagnosis of these can be made), none of them are such that they would preclude or prevent the Applicant from acquiring language and literacy skills at least sufficient to be able to understand both the nature of the application for citizenship which he has made and the responsibilities and privileges of Australian citizenship.
OTHER CONSIDERATIONS
Among the factors taken into account by the Tribunal, in addition to the medical evidence, the following may be highlighted:
·The Applicant may be functionally illiterate in his native language (Arabic) but he has nevertheless been able to learn and be fluent in at least two others: Kurdish and Chaldean.
·In making the point to the Tribunal that one of the reasons he wanted Australian citizenship was that he would acquire an Australian passport which would somehow make it easier for him to visit his brother in Germany, and that he “would be like everyone else in this country”, he displays some understanding of the value of citizenship. Similar findings in relation to travel rights on an Australian passport were held to be an important element in denying s 21(3)(d) claims in Ravichandran[29], Khodeir,[30] Farhan[31] and Rahman.[32]
·The Applicant obtained an Australian drivers’ licence[33] and continues to drive, so that the Tribunal presumes that he possesses at least some ability to understand road signs and directions.
[29] Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463 at [5] and [9].
[30] Khodeir v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499 at [18].
[31] Farhan v Minister for Immigration and Citizenship [2010] AATA 36 at [7].
[32] Rahman v Minister for Immigration and Citizenship [2010] AATA 930 at [13].
[33] Section 37 Tribunal Documents at [31].
CONSTRAINTS V CAUSATIONS
There is no doubt that the Applicant suffers under a number of constraints in terms of his ability to meet the requirements of Australian citizenship. However these constraints derive primarily from his illiteracy in either Arabic or English. He has learned to speak other languages, albeit as a child (or at least younger person) rather than as an adult where learning is recognised to be more difficult. He started to learn English on his arrival in Australia but his reasons for not persisting with this effort are unpersuasive given his then situation and circumstances.
In order to meet the requirements of s 21(3)(d) what needs to be established is the clear causal connection between a significant physical or mental incapacity and the inability to understand either the nature of the citizenship application or the privileges and obligations of citizenship and the ability to demonstrate a basis knowledge of the English language.
The diagnosis of PTSD and severe depression from Dr Abu-Arab has been called into question by the diagnosis of Mr O’Neill whose evidence the Tribunal finds to be the more impressive. It also accepts Mr O’Neill’s evidence to the effect that neither of those conditions, in and of themselves, prevents the acquisition of language or literacy skills.
The Tribunal thus cannot make a finding to the effect that the Applicant suffers from a permanent and enduring mental incapacity, or at least one that would prevent the Applicant from either acquiring some basic English language skills and/or some understanding of the nature of Australian citizenship.
DECISION
The decision under review is affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 28 February 2019
Date(s) of hearing: 22 February 2019 Applicant: In person Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
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