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

[2021] AATA 1699

Dawood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1699 (11 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1051

Re:Nadhal Dawood

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Mr S Evans, Member 

Date: 11 June 2021

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 policy considered – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Policy

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

REASONS FOR DECISION

11 June 2021

Mr S Evans, Member

1. The applicant, Nadhal Dawood, seeks review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) to refuse her application of 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 he or she has 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. The Respondent has determined that Mrs Dawood has not provided sufficient evidence to demonstrate that she has an incapacity that would satisfy the criteria required to be exempt from taking the citizenship test. Mrs Dawood claims 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”). 

   BACKGROUND

4. Mrs Dawood was born in 1975 in Iraq. She immigrated to Australia in June 2014 with her husband and three children and applied for Australian citizenship on 29 June 2018 using a Form 1290 application. She requested that her application be assessed against paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (“the Act”) as she has a permanent or enduring physical or mental incapacity. 

5. On 29 January 2020 a delegate of the Respondent refused to approve Mrs Dawood becoming an Australian citizen under subsection 24(1) of the Act because the delegate was not satisfied that Mrs Dawood had a permanent or enduring mental incapacity as required by paragraph 21(3)(d) that prevented her from satisfying the criteria in s21(3)(2)(i)-(ii) of the Act. 

6. On 25 February 2020 Mrs Dawood applied for review of the delegate’s decision by the Tribunal.

   ISSUES TO BE DETERMINED

7. The issues for the Tribunal to determine are:

   (a)whether Mrs Dawood had a permanent or enduring physical or mental incapacity at the time of her citizenship application on 29 June 2018; and, if so

   (b)is there is a causal relationship between the incapacity and Mrs Dawood 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 was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

   LEGISLATION AND POLICY

8. Section 21 of 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) and include at paragraphs 21(2)(d) to 21(2)(f) 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. 

9. 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. 

10. 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 …

11. 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. The applicable policy is CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (“the Instructions”) which sets out the requirements for assessing incapacity and determining whether paragraph 21(3)(d) is satisfied. 

12. 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.

13. 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.

14. 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

15. Mrs Dawood told the Tribunal that she began treating her mental health whilst she was in Syria where she saw a psychologist and took medication, which she said was helpful. She gave evidence through an interpreter and confirmed that she speaks no English. Though she attended some English classes, she claimed that that she did not learn anything and forced herself to go in order to be eligible for Centrelink benefits which were tied to her attendance. She would cry when she attended the classes.  

16. In her application she writes that the material used to make the reviewable decision included incorrect information regarding her attendance at English language classes. Specifically the class provider records that she attended for 232 hours when she only attended for 144 hours. Mrs Dawood claims even 144 hours is an overstatement of her attendance as she would regularly leave the classes after the first hour due to “her bad health conditions”. A subsequent letter from the class provider dated 12 February 2020 records that Mrs Dawood was enrolled in the Adult Migrant English Program from October 2014 to April 2015 and completed 144 hours of the course hours and had 366 hours remaining. I accept this evidence.

17. Mrs Dawood holds a NSW driver’s licence which appears to have been issued in February 2016. When questioned about this during the hearing she claimed she was unable to recall when she obtained her licence and does not recall studying for it. She claims to have driven only on one or two occasions. 

18. Mrs Dawood described a normal day for her as staying at home. She cannot cook because she risks cutting or burning herself. She watches television. Asked why she could not sit the citizenship test she told the Tribunal that if she knew the language that she could do it.  Asked by the Respondent’s representative why she wanted to become an Australian citizen she replied that the rest of her family are citizens and asked rhetorically if she was not entitled to it as well. She also expressed concern that she may need to return to Iraq. 

19. Mrs Dawood owns a smartphone which she says she uses to speak to her younger sister and other relatives in Iraq. She said that she only ever leaves her home to visit the doctor go to hospital. 

20. In support of her application Mrs Dawood has provided correspondence and reports from medical specialists regarding her mental incapacity. 

21. Consultant psychiatrist Dr Hecham Alhajali has written a letter dated 28 April 2018 which states that Mrs Dawood is unable to communicate in English and only able to communicate in Arabic. He writes that she has not been able to learn English on account of her “limited cognitive abilities, difficulty learning and poor education and schooling history”.  Dr Alhajali also reports that Mrs Dawood was unable to sustain attention for more than ten minutes during cognitive testing and sought the assistance of her husband. He writes in part:

    Mrs Dawood suffers chronic symptoms of anxiety and depression for which she has received different types of antidepressant and antipsychotic medication as well as psychotherapy for several years, but with limited response. She required admission to Liverpool Hospital Psychiatric Ward in 2016 due to exacerbation of symptoms and high risk of suicide. She received follow up by Community Mental Health Team.

    She continues to experience chronic anxiety and depressive symptoms with predominant low mood, insomnia, nightmares, flashbacks and intrusive memories of past trauma that she endured during the war in Iraq. She has limited attention and concentration as well as poor memory which has gradually declined more so in the last few years.

22. In a further report dated 7 December 2019 Dr Alhajali writes that Mrs Dawood’s condition had not improved in 18 months and that she has ongoing “chronic symptoms of PTSD [post traumatic stress disorder] with prominent insomnia, tension, worries, fear, difficulty relaxing and nightmares.” He states that she has “ongoing fears and paranoia and frequently check[s] doors and windows are locked”. He claims that the rejection of her citizenship application caused Mrs Dawood distress and increased her anxiety and fears. He provides a diagnosis of Mrs Dawood exhibiting chronic symptoms of anxiety, PTSD and depression with limited cognitive abilities and poor recall. 

23. A report from clinical psychologist Dr Mahmoud Abu-Arab dated 28 October 2019 records that he has seen Mrs Dawood since March 2015 and that she has been under his care since that time. He writes that Mrs Dawood has a diagnosis of “Severe Chronic Major Depression with Psychotic Features” and chronic PTSD. He confirms that over the time he has treated Mrs Dawood her condition has not improved.   

24. Dr Abu-Arab writes that Mrs Dawood has very basic reading and writing skills in Arabic but not in English. She has never performed paid work. He writes in part: 

    As a result of the above described traumatic events including the migration process, [Mrs Dawood] started experiencing anxiety, insomnia and depressed mood. Her memory and concentration have worsened significantly. She continues to experience depression and Post-traumatic symptoms. She lost interest in pleasant activities. She feels helpless and hopeless. She lacks motivation and she lost her self esteem.

25. In a subsequent letter addressed to the Respondent, Dr Abu-Arab writes that although he had encouraged Mrs Dawood to attempt the citizenship test, he felt it was highly unlikely that she would pass due to her conditions. However, he considered that attempting the test “would give her and everyone involved in the testing process a better understanding to her capacity and her chances to pass the test”. 

26. On 29 September 2020 Mr Dawood was examined by forensic psychologist Clair Baker following referral by the Respondent. Ms Baker has produced a report for the purposes of the Tribunal’s review of Mrs Dawood’s citizenship application and gave evidence at the hearing. Ms Baker is a fellow of the Australian Psychological Society’s College of Forensic Psychologists and spent five and a half hours with Mrs Dawood during which she performed a series of cognitive and psychological tests. 

27. Ms Baker concludes that it was not possible to determine if Mrs Dawood is, or was at the time of her application, suffering from a permanent and enduring mental incapacity. She notes that Mrs Dawood reported taking medications for her mental health including mirtazapine and escitalopram. She reports that Mrs Dawood saw Dr Abu-Arab every “one or two months” and notes that whilst he has reported she has undertaken a “CBT program to help her overcome her psychological problems”, Dr Abu-Arab does not provide information on the number of sessions they have had together or the regularity of the sessions. 

28. However, Ms Baker states with a “reasonable level of confidence” that Mrs Dawood is currently suffering from a mental incapacity which left untreated is likely to continue to render her unwilling and quite possibly eventually incapable of meeting the requirements in paragraphs 21(2)(d) to 21(2)(f) of the Act. Ms Baker considers that at the time of her consultation Mrs Dawood was experiencing symptoms of the “requisite severity to meet the diagnostic criteria for Post Traumatic Stress Disorder”. She considers it likely that the diagnosis of PTSD was present prior to her application for citizenship as it relates back to events which occurred whilst she was living in Iraq, Syria and Turkey. However, Ms Baker concludes there is insufficient detail regarding ongoing structured psychological therapy to state with “surety” that Mrs Dawood’s condition is permanent or enduring.

29. Ms Baker performed a variety of cognitive and psychological tests with Mrs Dawood to assess her current level of cognitive functioning. She reports that during the testing Mrs Dawood experienced “dramatic emotional outbursts” but was able to calm herself relatively easily. Ms Baker observed that Mrs Dawood’s responses during the testing indicated a lack of effort and random responding. She reports that during one memory task, Mrs Dawood made “minimal effort to provide correct responses” and her results decreased during the testing.  This outcome led Ms Baker to observe that Mrs Dawood “showed a very well attuned capacity to choose the incorrect answer”.

30. In a separate verbal learning and memory test Mrs Dawood was only able to recall three words on the first trial.  Ms Baker reported that the outcome indicates that Ms Dawood’s  inability to recall placed her in the extremely low range or may have been indictive of unwillingness to try. The possibility of the latter was strengthened as Mrs Dawood was less successful when the test was repeated which indicates a negative learning curve which Ms Baker claims is “nearly impossible”. Ms Baker concludes:

    Also, due to Ms Dawood’s lack of adequate engagement with the assessments, her lack of motivation and effort, and the repeated evidence of malingering behaviours during the assessments (such as getting 84% wrong in a 50/50 chance based assessment), her results cannot be considered to represent her actual cognitive ability.

31. Ms Baker gave evidence during the hearing that Mrs Dawood was uncooperative during the testing. She reports that Mrs Dawood’s behaviour was unusual and very dramatic and that she refused to answer some questions. Ms Baker conceded that cognitive testing could be tiring but in her opinion Mrs Dawood did not put sufficient effort into the testing and as a result she did not have enough information to make an accurate assessment. 

32. Ms Baker also reported that when tasked with performing a test that a pre-school child could complete,  Mrs Dawood was unable to do so. Mrs Dawood’s result in the Rey 15 Item Visual Memory Test was 5/15, where 9/15 is considered to be indicative of a positive level of effort. Similarly, Ms Baker observed that Mrs Dawood’s decreasing score in the Test of Memory Malingering was indicative of a “well attuned capacity to choose the incorrect answer”. 

33. Ms Baker opined that with structured treatment Major Depressive Disorder (“MDD”) and PTSD were treatable conditions.  She gave evidence that the frequency of treatment that Mrs Dawood had received was not regular enough to conclude that her condition would not improve. She also expressed a view that these conditions should not prevent her from learning English. 

    CONSIDERATION

34. The first issue to be determined is whether Mrs Dawood had a permanent or enduring physical or mental incapacity at the time she made the application for citizenship.    

35. The Instructions at item 3.4 require that when assessing evidence of mental incapacity, decision makers consider information which includes when the incapacity commenced, how many sessions the applicant may have had with the specialist and the results of cognitive or clinical testing. Reports are expected to articulate a clear basis for the diagnosis and opinions expressed in them, including how the incapacity links to the person not being able to meet the requirements in paragraphs 21(2)(d) to 21(2)(f). 

36. When considering Mrs Dawood’s diagnosis of PTSD and MDD, the Respondent contends that as Dr Alhajali has not provided detailed information into how he reached his diagnosis or details of the treatment and whether any formal testing or assessments were administered, his report does not assist in establishing that Mrs Dawood has a permanent or enduring mental incapacity. The Respondent notes there is no reasoning provided by Dr Alhajali as to why he considers the conditions to be permanent or enduring. Furthermore, there is no clear indication of when the diagnosis was made, and specifically whether Mrs Dawood had a diagnosis at the time of her application for citizenship. 

37. In relation to the evidence from Dr Abu-Arab, the Respondent argues the reasons why Dr Abu-Arab considers Mrs Dawood has a permanent or enduring mental incapacity are not set out. Further, it is unclear if the condition was present at the time of the citizenship application. Specifically, the Respondent argues that Dr Abu-Arab’s reports do not indicate whether any formal psychometric, cognitive or clinical assessments or tests were administered. There is also limited discussion as to the prospects of recovery and limited detail of the treatment programs recommended or prescribed to Mrs Dawood. Consequently, it is submitted that limited weight should be given to his reports. 

    Did Mrs Dawood have a permanent or enduring physical or mental incapacity? 

38. Dr Alhajali is a specialist in the field of Mrs Dawood’s claimed medical condition and a fellow of the Royal Australian and New Zealand College of Psychiatrists and therefore meets the evidentiary requirements set out in the Instructions. Similarly Dr Mahmoud Abu-Arab is registered with the Psychology Board of Australia and has a practice endorsement in an area relevant to the condition and is registered with Medicare for these purposes, meaning he too meets the evidentiary requirements set out in the Instructions.   

1. Both Dr Alhajali and Dr Abu-Arab report having seen Mrs Dawood since 2015.  Both provide similar diagnosis, of anxiety, depression and PTSD. Ms Baker similarly concludes that Mrs Dawood currently suffers from a mental incapacity which may be Major Depressive Disorder or PTSD. On the basis of this evidence I am satisfied that Mrs Dawood has a current diagnosis of PTSD and MDD. 

2. In order to meet the requirement in paragraph 21(3)(d) of the Act, Mrs Dawood was required to have had that condition on 29 June 2018 when she made her application for citizenship. The Respondent contends there is not sufficient evidence to make such a determination. It is specifically noted that in making their diagnosis neither Dr Alhajali nor Dr Abu-Arab appear to have undertaken the relevant psychological tests which are outlined in the Instructions. Further, they have not provided evidence of a treatment plan or ongoing assessment and monitoring of Mrs Dawood’s treatment. 

3. Mrs Dawood’s representative submits that Dr Alhajali first began treating her in June 2015 and performed the tests required in order to assist her. He notes also that Dr Abu-Arab has seen Mrs Dawood on 26 occasions since March 2015. 

4. It is apparent that Mrs Dawood has a long history of attempting to treat her mental health prior to arriving in Australia. It is submitted on behalf of Mrs Dawood that she is struggling to avoid thinking of events that occurred in the past. The nature of these events is detailed in the material before the Tribunal and does not need to be set out in full. It is sufficient for the purpose of these reasons to note that the traumatic events which give her “flashbacks and intrusive memories of past trauma” as Dr Alhajali reported in April 2018, relate to the past trauma that she experienced during the war in Iraq, prior to her arrival in Australia in June 2014. 

5. In his April 2018 report, shortly before Mrs Dawood’s June 2018 application for citizenship, Dr Alhajali provides a diagnosis of chronic anxiety and depression. I am satisfied that she has been receiving treatment for the condition since she first consulted Dr Alhajali in 2015. Mrs Dawood has provided a list of dispensed medications from her pharmacist which demonstrates that she has consistently been taking a range of medications for her mental health since at least January 2016 and continues to do so. 

6. Having considered the evidence I am satisfied that Mrs Dawood was suffering PTSD and MDD at the time of her application. 

   Is there a causal link between the condition and Mrs Dawood’s inability to satisfy the criteria in subsection 21(2)

7. I must next consider if the evidence supports there being a causal link between Mrs Dawood’s condition and her inability satisfy the criteria in subsection 21(2) of the Act.  

8. As noted previously, medical reports are expected to “articulate a clear basis for the diagnosis and opinions expressed in them, including how the incapacity links to the person not being able to [meet the requirements]”. 

9. Both Dr Abu-Arab and Dr Alhajali assert that Mrs Dawood has an inability to demonstrate a basic knowledge of the English language. In his April 2018 report Dr Alhajali identifies Mrs Dawood’s limited cognitive abilities as the cause of her inability to learn English and identifies her attention, concentration and memory as being factors which render her incapable of demonstrating a basic knowledge of the English language. 

10. Dr Alhajali states in his April 2018 report that Mrs Dawood is incapable of demonstrating an adequate knowledge of Australian history, and of the responsibilities and privileges of Australian citizenship. Whilst Dr Abu-Arab considers that Mrs Dawood is not capable of understanding the nature of her application for Australian citizenship based on his observations, I place limited weight on this as he provides no reasoning or a clear basis for his conclusion.  

11. The Respondent contends that Ms Baker’s evidence demonstrates Mrs Dawood has the capacity to learn and that it is not currently possible to conclude that with structured, regular treatment Mrs Dawood could not sit the citizenship test. The Respondent notes that Mrs Dawood was able to sit and pass her driver’s licence testing.  Mrs Dawood’s representative reasons that the test was in Arabic and included illustrations and photos,  It is also relevant that she passed the test only after failing numerous times. 

12. The Instructions provide that when considering evidence of mental incapacity, decision makers are to have reference to the results of any cognitive or clinical testing that has been undertaken. The only results of such testing that are before the Tribunal are those undertaken by Ms Baker, who concludes that Mrs Dawood’s results cannot be considered to represent her actual cognitive ability. 

13. The medical reports of Dr Abu-Arab and Dr Alhajali outline the nature of Mrs Dawood’s condition and conclude that she satisfies that criteria for an exemption under paragraph 21(3)(d), but they do not articulate a clear basis for these findings. Mrs Dawood contends that she is unable to learn English as a result of her condition, but it is unclear how her conditions would prevent her from doing so. 

14. This is particularly pertinent in circumstances where Mrs Dawood attended just 144 hours of English classes. She gave evidence that she ceased attending classes as she did not learn anything and found attendance upsetting. This may be the case, but in the absence of cognitive or clinical testing of the nature outlined in the Instructions, I am unable to conclude that there is a causal link between Mrs Dawood’s condition and her inability to satisfy the criteria in subsection 21(2) of the Act. 

    CONCLUSION

15. Whilst I accept that Mrs Dawood was suffering from MDD and PTSD at the time of her application for Australian citizenship, I am not satisfied that the evidence demonstrates she is able to meet the requirements in paragraph 21(3)(d) of the Act because there is insufficient evidence of a causal link between the incapacity and her inability to demonstrate a basic knowledge of the English language. 

16. Whilst the medical evidence provides an opinion that she is incapable of meeting the requirements, it does not specify any testing which informed these conclusions. That Mrs Dawood was able to obtain her driver’s licence does not demonstrate that she is capable of learning English to a level that would enable her to successfully sit the citizenship test. However, it does indicate that she may be able to do so and compels me to consider carefully how the medical evidence supports her assertion that she cannot. Satisfactory completion of the testing required to obtain a driver’s licence also indicates that Mrs Dawood was able to learn new information at that time.   

17. I also place some weight on Ms Baker’s observation that Mrs Dawood was not willing to engage appropriately with the testing and that consequently her results cannot be considered to represent her true cognitive ability at the time of testing. The evidence of Mrs Dawood was that she was traumatised by the process of undertaking the testing, which I accept, particularly in light of her evidence that she rarely leaves the house. 

18. However, Ms Baker reported that Mrs Dawood was unable to perform a cognitive test which a pre-schooler would be able to complete. I find this supports her conclusion that Mrs Dawood did not complete the testing to the best of her ability. 

19. Based on the evidence I am unable to conclude that a causal relationship exists between Mrs Dawood’s mental health conditions and her inability to demonstrate a basic knowledge of the English language. Consequently, the decision under review will be affirmed. 

20. As his wife’s carer and advocate, Mr Alkalaney helps to manage her condition on a daily basis. He indicated that becoming an Australian citizen may help ameliorate Mrs Dawood’s fear of being forced to return to Iraq. Regarding this concern, I note the Tribunal’s decision does not remove any rights that Mrs Dawood currently has to remain in Australia. 

21. Exempting an applicant from the citizenship test on the basis of an inability to demonstrate a basic knowledge of the English language means accepting that person will be excluded from the benefits of sharing a common language with the Australian community. The high evidentiary threshold reflects the seriousness of this proposition. 

22. Whilst Mrs Dawood may be disappointed in this decision, it is open for her to apply for Australian citizenship again in the future if she so chooses. 

    DECISION

23. The decision under review is affirmed. 

62.     I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member  

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Associate

Dated: 11 June 2021

Date(s) of hearing:	13 April 2021
Advocate for the Applicant:	Mr H Alkalaney
Solicitor for the Respondent:	Ms K Crawford, Clayton Utz