El Cheikh and Minister for Home Affairs (Citizenship)

[2019] AATA 4544

El Cheikh and Minister for Home Affairs (Citizenship) [2019] AATA 4544 (7 November 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6368

Re:Kamel El Cheikh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:7 November 2019

Place:Sydney

The decision of the delegate of the Minister for Home Affairs dated 25 October 2018 is set aside. The matter is remitted to the Respondent with a direction that the Applicant meets the criteria in s 21(3)(d)(iii) of the Australian Citizenship Act 2007 (Cth) as he had a permanent or enduring mental capacity at the time he made his application for Australian citizenship that meant that he was not capable of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time.

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

Mr Rob Reitano, Member

CATCHWORDS

CITIZENSHIP – conferral of Australian citizenship – permanent or enduring physical or mental incapacity – not capable of understanding the nature of the application – not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship – major depressive disorder – panic disorder – fibromyalgia – persistent disability – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

CASES

Khodeir and Minister for Immigration and Border Protection [2015] AATA 499

REASONS FOR DECISION

Mr Rob Reitano, Member

7 November 2019

1. Mr Kamel El Cheikh suffers from major depressive illness, persistent depressive disorder, panic disorder and fibromyalgia. He says the incapacity caused by those illnesses meant that on 24 October 2017, when he made his application for Australian citizenship, he was not capable of understanding the nature of that application and was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. He seeks a review of the delegate’s decision dated 25 October 2018 that found to the contrary.

2. I have decided to set aside the decision under review on the basis that Mr El Cheikh qualifies under s 21(3)(d)(iii) of the Australian Citizenship Act 2007 (Citizenship Act) to be exempted from undertaking the Australian Citizenship Test and what follows are my reasons for doing so.

   BACKGROUND

3. Mr El Cheikh was born in Lebanon. He is 38 years of age. He is a citizen of Lebanon. He first arrived in Australia in February 2005. He lives with his wife (even though they are separated) and his three young children.

4. He applied for Australian citizenship on 24 October 2017. In doing so he sought to be exempted from the requirement to sit the Australian Citizenship Test because he said he had a permanent or enduring physical or mental incapacity. He said at the time he lodged his citizenship application that he was not capable of understanding the nature of his application or was not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship because of that incapacity.

5. Mr El Cheikh suffers from major depressive illness, persistent depressive disorder, panic disorder and fibromyalgia. He was diagnosed with those conditions in about August 2014.

6. Mr El Cheikh wants to be an Australian citizen because his wife and children are Australian citizens and he wants to share that with them. He says many of his friends were ‘Aussies’ and ‘he wanted to be like them’ even though he felt like he was one of them already. He says he loves Australia, that he lives here, and he regards Australia as home. Another reason he wants to be an Australian citizen is so that he does not have to apply to remain a resident every five years.

7. Mr El Cheikh has attempted the Australian Citizenship Test many times on a free application he had on his phone and has failed it many times. He claimed he had ‘not even got close to fifty per cent’. He said he had never formally sat the Australian Citizenship Test. He says he knows if he sits the Australian Citizenship Test he will fail it.

8. Mr El Cheikh was honest and frank when giving his evidence. I have no hesitation in accepting his evidence as truthful.

   LEGISLATION

9. Sub-section 21(3) of the Citizenship Act provides the eligibility criteria a person must meet to become an Australian citizen if they have a permanent or enduring physical or mental incapacity. It 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.

   ISSUES

10. Mr El Cheikh sought to satisfy the Minister that he is a person to whom ss 21(3)(d)(i) or (iii) apply. The Minister does not dispute the fact that Mr El Cheikh has a permanent or enduring mental incapacity and that Mr El Cheikh had that incapacity at the relevant time, namely when he made his application on 24 October 2017.[1]

    [1] Respondent’s Statement of Facts, Issues and Contentions dated 29 July 2019 at [12].

11. I accept that Mr El Cheikh had a permanent or enduring mental incapacity at the time he made his application due to his major depressive illness, persistent depressive disorder, panic disorder and fibromyalgia.

12. The Minister contends that Mr El Cheikh’s mental incapacity does not mean that he is not capable of understanding the nature of the application at the time he made his application and nor does it mean that Mr El Cheikh is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time. The Ministers contention is that there is no causal connection between any permanent or enduring mental incapacity and the relevant states of awareness and knowledge to which ss 21(3)(d)(i) and (iii) direct attention[2].

    [2] Khodeir and Minister for Immigration and Border Protection [2015] AATA 499 at [2].

    MEDICAL EVIDENCE

13. The medical evidence was directed to these issues. It is necessary to refer to some of the more salient aspects of it.

14. Ms Wajma Ebrahimi, Clinical Psychologist, said in a report dated 16 July 2018:

    In his recent assessment Mr El Cheikh reported that his symptoms of depression have worsened over the past few years which include low mood, loss of appetite, poor memory, lack of concentration, lack of energy and motivation, difficulty sleeping and sleep disturbances, feelings of hopelessness and loneliness, excessive worrying, and feelings of worthlessness. Based on these reported symptoms Mr El Cheikh meet (sic) criteria for Major Depressive Disorder, Recurrent (severe; DSM-5)

    I am writing in regards (sic) to Mr El Cheikh’s application for the Disability Support Pension. In particular, Mr El Cheikh’s psychological condition is an enduring mental health issue within the chronic and severe range. Given this longevity of the condition and poor treatment prognosis this is unlikely to change in the near future.

    Mr El Cheikh reported that his depressive illness has significantly decreased his cognitive functioning and his ability to effectively perform mentally straining tasks. It has also been noted that Mr El Cheikh has had these mental issues over the past few years which has significantly impacted his overall functioning.[3] (emphasis added)

    [3] Exhibit 2, Report of Ms Wajma Ebrahami dated 16 July 2018.

15. Doctor Andrew Jordan, Consultant Rheumatologist, said in a report dated 21 November 2018:

    I have diagnosed and been treating Kamel for fibromyalgia and chronic pain. This condition results in significant cognitive and memory impairment. This will make it difficult to retain and learn information and make it likely he will find the Citizenship test very difficult.

    …

    Kamel has seen me since December 2017. He has severe fibromyalgia and depression. He has been treated with Endep, Palexia, Cymbalta, Lyrica, Gabapentin, NSAIDS and paracetamol. He either develops side effects or the medications are not effective. His current medications are Lexapro, Inderal and Panadeine Forte. He has not adequate control of his symptoms on any medication and I do not think adjusting medications will make a difference. I believe his condition is permanent, fully assessed and fully treated. He has had a wide range of investigations in the past and these have all essentially been normal, as is expected for fibromyalgia. He has multi system problems but the pain and depression limit his function the most. I do not think he has the capacity to work eight hours per week for at least the next two years.[4] (emphasis added)

    [4] Exhibit 10, Report of Dr Andrew Jordan 21 November 2018.

16. In a letter dated 23 March 2019 Dr Jordan said:

    I have diagnosed and been treating Kamel for fibromyalgia and chronic pain. This condition results in significant cognitive and memory impairment. This means he is not capable of understanding the nature of his citizenship application questions.[5] (emphasis added)

    [5] Exhibit 9, Report of Dr Andrew Jordan 3 March 2019.

17. The reference to ‘citizenship application questions’ is a little curious in that it is not referable to the objects of ss 21(3)(d)(i) or (iii). Dr Jordan considered that the condition that ‘fibromyalgia and chronic pain’ had the result for Mr El Cheikh of ‘significant cognitive and memory impairment’. The inability to understand the nature of the ‘citizenship application questions’ probably means no more than Mr El Cheikh was incapable of ‘demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ (s 21(3)(d)(iii): if he could not understand the nature of the questions it would follow that he could demonstrate the requisite knowledge.

18. Dr Patricia Jungfer, who is a psychiatrist, provided a comprehensive report on Mr El Cheikh’s mental incapacity. Dr Jungfer diagnosed Mr El Cheikh as having major depressive illness (DSMV 296.22), persistent depressive disorder (DSM V 300.4), panic disorder (DSM 300.01) and fibromyalgia (chronic pain disorder).[6]

    [6] Exhibit 11, Report of Dr Patricia Jungfer 2 May 2019 at [8].

19. There are several observations by Dr Jungfer that are important. Dr Jungfer in assessing Mr El Cheikh’s mental state concluded:

    The extent and nature of the cognitive impairments that Mr El Cheikh demonstrated on testing was severe and profound. It is my opinion that his performance on the testing was inconsistent with aspects of his performance in the interview, for example on tests of attention he did extremely poorly, he gave the history of performing poorly at home yet could sit and watch a movie on his computer and was able to attend the appointment for a duration on one hour and 40 minutes, in which he did not lose concentration or display distractibility that should be event (sic) when considering his test scores. Throughout that time there were no fluctuations of concentration that were noted. Other areas of inconsistency in terms of his assessment was the absence of knowledge of autobiographical material, particularly autobiographical material that is of significance such as the year of birth of his children. This inconsistency raises areas of concern and is suggestive of incomplete effort. This lack of effort could be due to mental illness or a deliberate attempt to underperform.[7] (emphasis added)

    [7] Supra at [5.10].

20. The suggestion of the possibility that Mr El Cheikh ‘bombed the test’ is more than faint, but the conclusion to be drawn from that suggestion, the possibility of ‘mental illness or a deliberate attempt to underperform’ begs the question: which one was it? Dr Jungfer’s opinion does not appear to favour one conclusion over the other; at least at this point in her discussion.

21. Later when directing attention to the specific issues with which this review is concerned Dr Jungfer says:

    On the basis of the assessment Mr El Cheikh demonstrated an understanding of the nature of the citizenship application, he was aware of the need for documentation, he was choosing to apply for citizenship, so he did not have to complete every five years the permanent residency documentation. He has aware of the requirements regarding English language and the need to complete a knowledge test. He stated that he struggled to complete the documentation due to his concentration and memory impairments and that his wife had assisted him, but he had overall an understanding of the concept.

    …

    Mr El Cheikh reports problems with regards to cognition stating that he is unable to acquire adequate knowledge of Australia or adequate knowledge of learning the responsibilities and privileges of Australian citizenship. His statement about his inability to learn would be supported by the poor testing on cognition that was completed in the assessment. There are inconsistencies in his behaviour and testing, there are also inconsistencies in his real-world functioning and the test scores and there are inconsistencies with the reported literature on cognitive change and his medical conditions. He has more extensive impairments in range and nature than those typically seen clinically or described in the literature.

    Based on his testing and his history he is not capable of demonstrating an adequate knowledge of Australia, the responsibilities and privileges of citizenship. I have concerns regarding his effort in testing and the validity of his performance and history. The degree of impairment is greater than expected in a major depressive illness and his day to day functioning.[8] (emphasis added)

    [8] Supra at [10] pp 18 -19

22. Dr Jungfer confirmed in her report that Mr El Cheikh’s condition had persisted since 2014 and therefore would have existed at the time of his application for citizenship.

    AWARENESS

23. The first issue is whether Mr El Cheikh’s mental incapacity means that he is not capable of understanding the nature of the application at the time he made it (s 21(3)(d)(i)).

24. I do not accept that Mr El Cheikh’s mental incapacity means that at the time he made his application for citizenship he was unable to understand the nature of the application because he demonstrated in his evidence a good understanding of the nature of the application he was making. He also demonstrated that to Dr Jungfer whose evidence I have extracted earlier which I accept.

25. Mr El Cheikh’s evidence indicated that he had an understanding of the nature of the application – he was well aware that Australian citizenship would confer on him the privilege of being Australian with which came a sense of increased community and identification with his fellow Australians including his wife, children and friends. He was aware it meant he would not need to apply for residency every five years. I do not consider the fact that he did not know about the attendant right to vote and to be called for jury duty that citizenship carries with it meant that he did not understand the nature of his application: there is a distinction between understanding the nature of an application and understanding the consequences of an application being successful.

26. Nor does the medical evidence point against Mr El Cheikh’s ability to understand the nature of the application. I have referred earlier to Dr Jungfer’s report that affirmatively found that Mr El Cheikh understood the nature of his application for citizenship. None of the other medical practitioners said anything that really bore directly on this issue, but problems with cognition and memory do not necessarily materialise in a lack of understanding about what a person is doing.

27. I am not satisfied that Mr El Cheikh’s permanent or enduring mental incapacity means that he was unable to understand the nature of his citizenship application at the time he made it on 24 October 2017.

    KNOWLEDGE

28. The second issue is whether Mr El Cheikh’s mental incapacity means that he is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time he made his application (s 21(3)(d)(iii)).

29. I have concluded that Mr El Cheikh’s mental incapacity does mean at the time he applied for citizenship on 24 October 2017 he was unable to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. There are several reasons for this conclusion.

30. First, and significantly, Dr Jungfer expressed the opinion that Mr El Cheikh was not capable of demonstrating the knowledge required to be demonstrated by s 21(3)(d)(iii). Her finding was unambiguous:

    Based on his testing and his history he is not capable of demonstrating an adequate knowledge of Australia, the responsibilities and privileges of citizenship.[9]

    [9] Supra at [10], p 19.

31. It is true, as the Minister pointed out, that Dr Jungfer expressed ‘concerns’ about Mr El Cheikh’s effort in testing and the validity of his performance and history; that she said that the test results might have been ‘unreliable’; and that Mr El Cheikh was ‘atypical’, but none of these factors appear to have deterred her from expressing her opinion in certain and unequivocal terms in terms of the legislative requirement. In a matter of such significance it is more likely than not that had Dr Jungfer had real or significant doubts about expressing the conclusion she did she would not have done so. In any event, her finding irrespective of her concerns leads to the conclusion that it was at least more probable than not that Mr El Cheikh was not able to demonstrate the requisite knowledge.

32. Second, Dr Jungfer’s evidence was corroborated in respect of Mr El Cheikh’s level of cognitive impairment and worsening condition over time by the evidence of the other medical practitioners Ms Ebrahimi, Ms Sahagian and Dr Jordan. Conclusions like those of Dr Jordan that his ‘condition results in significant cognitive and memory impairment’ and that he will find the Citizenship test ‘very difficult’ sit neatly with the conclusion of Dr Jungfer. It is more than of passing interest that Dr Jordan appears not to have doubted the reality of Mr El Cheikh’s condition.

33. Third, the medical evidence is confirmed by Mr El Cheikh’s evidence, which I accept, that he has attempted to do the Citizenship test on the freely available application and failed many times. This fact also establishes the ‘adequacy’ of the knowledge that Mr El Cheikh is unable to demonstrate because the application poses questions that are the same as those posed by the actual test.

34. Finally, it is necessary to say something about the suggestion that Mr El Cheikh’s ability to do many other things suggests he would be able to demonstrate an adequate knowledge in terms of s 21(3)(d)(iii). The matters to which the Minister referred included being able to file the application before the Tribunal, engage with government services, maintain a bank account, ‘go to the shops’, correspond with the Tribunal and government Departments and so on. There are two aspects to this.

1. The first is that so far as some of the matters concern proceedings in this Tribunal Mr El Cheikh said that at least in respect of the preparation of some the documents he was assisted by his wife. The second is that there is a world of difference between demonstrating an adequate knowledge of Australia under exam conditions (relying generally as it does on memory and learning) and completing tasks associated with everyday living. Going to the shops, filling out forms and maintaining a bank account are, in ordinary human experience, nothing like sitting a Higher School Certificate exam.

2. There was another suggestion concerning Mr El Cheikh having been able to undertake a knowledge and driver’s test in order to obtain his driver’s licence. It is different in nature to the other things that Mr El Cheikh proved capable of doing and is a much closer and probably a fairer comparator to the Australian Citizenship Test.

3. The Minister suggested Mr El Cheikh obtained his driver’s licence on 28 April 2015. Mr El Cheikh said he obtained his driver’s licence about 5 years before then on 3 December 2010. The timing is significant as the earlier date is well before Mr El Cheikh was diagnosed with his conditions and the latter is well after his diagnosis. Mr El Cheikh’s evidence was confirmed by a NSW Roads & Maritime Services Online Driving Record which recorded that he obtained his provisional drivers licence on 3 December 2010.[10] It also records that he had been driving for almost 2 years before then on a learner’s permit. It was his unrestricted driver’s licence that he obtained on 28 April 2015.

   [10] Exhibit 10, Online Driving Record from Roads & Maritime Services, dated 26 December 2018.

4. Mr El Cheikh said he did a knowledge and drivers test to obtain his provisional drivers’ licence. The only evidence about what was needed to obtain an unrestricted drivers’ licence was that of Mr El Cheikh. He said that he did not have to do anything as far as he could recall to obtain his unrestricted drivers’ licence. In any event, without evidence I cannot presume a test of any kind was required in order to obtain an unrestricted drivers’ licence as distinct from what Mr El Cheikh said he was required to do to obtain his provisional drivers’ licence.

5. It is significant that Mr El Cheikh obtained his provisional licence four years before he was diagnosed. His capacity to successfully sit a drivers knowledge test and pass a driving exam drivers licence does not fairly reflect upon his inability to demonstrate an adequate knowledge of Australia, the responsibilities and privileges of citizenship some seven years later on 24 October 2017.

6. Mr El Cheikh’s mental incapacity means that he is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time he made his application.

   CONCLUSION

7. The decision under review is set aside and remitted to the Respondent with a Direction that Mr El Cheikh qualifies under s 21(3)(d)(iii) of the Citizenship Act to be exempted from undertaking the Australian Citizenship Test.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 7 November 2019

Date(s) of hearing:	25 September 2019
Date final submissions received:	2 October 2019
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz