Demiri and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 279

Demiri and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 279 (2 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2607
Re	Mylazim Demiri
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr Gordon Hughes, Member
Date	2 May 2016
Place	Melbourne

The Tribunal affirms the decision under review

........................................................................

Dr Gordon Hughes, Member

Application for Australian citizenship – permanent or enduring mental incapacity – whether cognitive difficulties attributable to lack of schooling – ability to hold down certain types or employment – no evidence of ongoing medical treatment

Legislation

Australian Citizenship Act 2007 sections 21(3)(d), 24

REASONS FOR DECISION

Dr Gordon Hughes, Member

2 May 2016

1. The Applicant is seeking a review of a decision by a Delegate of the Minister for Immigration and Border Protection, made under section 24(1) of the Australian Citizenship Act 2007 (Cth) ("the Act"), to refuse to approve his application for Australian citizenship.  The Applicant disputed the Minister's contention that he did not meet the requirements of section 21(3)(d) of the Act in relation to the existence of a permanent or enduring physical or mental incapacity. 

   Legislation

2. Section 21(3) of the Act provides:

   (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.

3. Section 24 of the Act provides, relevantly:

   (1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

   Background

4. The Applicant is aged 25 and is a citizen of Macedonia.  He was granted permanent residency in August 2012. 

5. On 19 November 2014, the Applicant applied for Australian citizenship by conferral under section 21 of the Act, claiming he had a permanent or enduring mental incapacity. 

6. Relevant to the application, section 21(3) of the Act sets out the general eligibility criteria for a person who has a permanent or enduring physical or mental incapacity. It was not in contention that the Applicant satisfied the other requirements of section 21(3).

7. It is a requirement under section 21(3)(d) that the person's permanent or enduring physical or mental incapacity exists at the time of the application, meaning that the person is either not capable of understanding the nature of the application, not capable of demonstrating a basic knowledge of the English language or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. 

8. In support of his application, the Applicant relied, for the purposes of section 21(3)(d), on medical reports provided by a consultant psychiatrist, Dr Pasan Manawadu, clinical psychologist, Dr Michael Haywood and consultant forensic psychologist, Elizabeth Warren.  It was the Respondent's contention that, based on the available evidence, it could not be demonstrated that the Applicant was suffering from a permanent or enduring physical or mental incapacity at the time he made his application for Australian citizenship on 19 November 2014. 

   Discussion

9. The Applicant told the Tribunal, through an interpreter, that he could not recall undertaking any schooling as a child.  He said he was currently employed in a factory, stacking pallets, but he could not recall how long he had held this job.  He acknowledged that he had some understanding of English but had difficulty speaking it.  The Tribunal was told he possessed a driver's licence.

10. Dr Manawadu's report was dated 11 June 2013.  The key conclusion to the report stated:

    "He does not report any family psychiatric history or any past psychiatric history.  He performed poorly in cognitive assessment.   His comprehension was adequate.  He could not perform cognitive tasks well when it came to reading, writing, copying or checking construction capabilities.  It appears that he had been a slow learner.  It is evident that he has some degree of cognitive difficulties including poor reading and writing.  Whether it is due to cultural reasons related to inadequate schooling or whether the schooling was disrupted because of his poor learning skills is a bit unclear at this stage.  Whether he has a low IQ needs to be determined by a more thorough psychological assessment using rating scales by a psychologist.  However I could confirm that he cannot read or write due to his ongoing cognitive restrictions." 

11. The Tribunal considers it relevant that, according to Dr Manawadu, the Applicant's lack of schooling, rather than a permanent psychiatric or physiological condition, could be the cause of his cognitive difficulties.

12. Dr Haywood conducted an IQ test on the applicant on 9 October 2014.  The relevant conclusion in his report dated 20 October 2014 was:

    "The test indicated that Mr Demiri has an IQ of 85.  This places him within the 1^st SD [standard deviation].  This means that despite being a low score, Mr Dimiri's IQ is within the normal range."

13. Taking into account Dr Manawadu's report, this leads to the conclusion that the Applicant has an IQ within the normal range, and that his lack of basic education is more likely to account for his learning difficulties.

14. Elizabeth Warren conducted a psychological assessment of the Applicant on 7 August 2015.  The tests took the form of a WASI-II (Webster Abbreviated Scale of Intelligence), and thus differed from the IQ assessment conducted by Dr Haywood. The outcome of her assessment also differed from Dr Haywood's, noting that intellectual testing as assessed by the WASI-II produced scores which were consistently all within the "extremely low" range and as such provided an overall IQ score which was within the same "extremely low" classification. Ms Warren estimated that the Applicant possessed an IQ equivalent to 40.

15. Ms Warren remarked:

    "The current results are possibly consistent with his limited schooling and limited literacy but markedly below expectations of an individual who is able to maintain stable employment.  However, the stable employment he maintains is reported as simple labouring and as such is consistent with [the] observation of [referring GP] Dr Soares that he '…had no difficulty learning tasks by observation'."

16. Clearly Ms Warren's assessment is more favourable to the Applicant's claim than Dr Haywood's assessment.

17. The Respondent contended that Ms Warren's findings should be treated with some caution given that the report was dated approximately 20 months after the time of application for citizenship and did not make a diagnosis that the Applicant suffered from a mental incapacity, stating instead that a further assessment needed to be undertaken.

18. Regardless, the Tribunal notes that even Ms Warren concedes that the Applicant's difficulties might be related to his lack of education, and that he is capable of holding down certain types of employment.

    Conclusion

19. The Tribunal accepts the Respondent's contention that, having regard to the totality of the evidence before the Tribunal, it cannot be satisfied that the Applicant had a permanent or enduring physical or mental incapacity at the time of his application for citizenship. 

20. For this reason, the decision under review is affirmed. 

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of:

21.     Dr Gordon Hughes, Member

.........................[sgd]...............................................

Associate

Dated 2 May 2016

Date of hearing	7 March 2016
Applicant	In person
Advocate for the Respondent	Bromley Hornsby
Solicitors for the Respondent	Spark Helmore