El Mobayed and Minister for Home Affairs (Citizenship)
[2019] AATA 2447
•7 August 2019
El Mobayed and Minister for Home Affairs (Citizenship) [2019] AATA 2447 (7 August 2019)
Division:GENERAL DIVISION
File Numbers: 2018/3605
Re:Fayez El Mobayed
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:7 August 2019
Place:Sydney
The Tribunal sets aside the decision made by the respondent on 4 May 2018 and remits the matter to the respondent for final determination with the direction that the Applicant satisfies the requirements of s 21(3)(d) of the Australian Citizenship Act 2007 (Cth).
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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – permanent or enduring physical or mental incapacity – whether applicant suffered from permanent or enduring physical or mental incapacity – whether applicant not capable of demonstrating a basic knowledge of the English language – consideration of medical evidence – whether grounds for excluding certain medical evidence under the Citizenship Policy – where applicant suffering from an enduring mental incapacity meaning that he was not capable of a basic understanding of the English language at that time – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
CASES
Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179SECONDARY MATERIALS
Citizenship Policy, June 2016
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
7 August 2019
On 19 February 2016 the applicant applied for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (“the Act”).
Under s 21(3)(d)(ii) of the Act a person is eligible to become an Australian citizen if the Minister is satisfied that the person has a permanent or enduring physical or mental incapacity at the time the person made the application, that means that the person is not capable of, inter alia, demonstrating a basic knowledge of the English language at that time.
The applicant requested an exemption from the citizenship test by reference to s 21(3)(d)(ii), on the basis that he had an enduring mental incapacity resulting in “low levels of English literacy skills”.
On 4 May 2018 a delegate of the Minister for Home Affairs made a decision (“the reviewable decision”) refusing to grant Australian citizenship to the applicant. The delegate was not satisfied that the applicant had a permanent or enduring physical or mental incapacity that meant that he was not capable of demonstrating a basic knowledge of the English language.
On 19 June 2018 the applicant applied to the Tribunal for a review of the reviewable decision.
The Tribunal has decided that the correct or preferable decision is to find that the applicant satisfies the requirements of s 21(3)(d) and, subject to any other requirements, is entitled to Australian citizenship by conferral.
BACKGROUND
The applicant was born in 1972 in a small town in Lebanon, during the civil war. He is the twelfth of seventeen children. He says that he attended school up until the equivalent of year one and repeated this level approximately ten times. He did not attend high school and is illiterate in Arabic. He left school early to work on his father’s farm.
The applicant entered Australia on a valid permanent residence visa in February 2009 and married Ms Fatmah Kassem in May 2009.
Eight of the applicant’s siblings live in Australia. The applicant works seven days a week as a cement renderer.
The applicant’s brother in law, Mr Zeyad Kassem, assisted him with the application for citizenship. In an undated covering letter, Mr Kassem stated:
“Fayez El Mobayed …is applying for Australian citizenship and is requesting an exemption from the citizenship test on grounds on enduring mental incapacity. Relevant medical documentation supporting his case for exemption are attached”.
The applicant provided, as part of his application for citizenship, medical evidence from an Arabic speaking psychiatrist, Dr Mohir Younan, to support the contention that, at the time he made the application for citizenship, he had an enduring mental incapacity meaning that he was not capable of demonstrating a basic knowledge of the English language.
By letter dated 22 January 2016 Dr Younan stated that he had:
“[d]iagnosed him with a chronic psychiatric disorder and learning disability. He is permanently incapable of demonstrating a basic knowledge of the English language. He will never be able to pass the citizenship [test]”. T4, at p. 45.
In a letter dated 28 January 2016 Dr Younan confirmed that he had seen the applicant on 22 January 2018 for “quite a lengthy visit”. Dr Younan opined that the applicant, when young, had a learning disability, resulting in illiteracy in Arabic. He also indicated that “as a result of psychosocial stressors, he developed major depression.”
In a follow up letter dated 22 July 2016, Dr Younan asserted:
·the applicant had been under his care since 22 January 2016;
·he was suffering from an enduring mental incapacity, because of which he is not capable of demonstrating a basic knowledge of the English language; and
·he is permanently incapable of passing the citizenship test.
DECISION RECORD
The Decision Record notes the following reasons for rejecting the application:
·Dr Younan was not a fellow of the Royal Australian and New Zealand College of Psychiatrists. His evidence was therefore inadmissible under the Citizenship Policy;
·at the time of application the applicant was not seeing a medical specialist on a regular basis. The applicant had seen Dr Younan only once, and specifically for the purpose of obtaining evidence to support his application;
·Dr Younan did not categorically state that the enduring mental capacity attributed to the applicant was the sole reason preventing him from doing the Citizenship test: T 3, at 20.
·the applicant held a valid NSW Drivers’ Licence. This was inconsistent with the presence of a permanent or enduring mental incapacity meaning that the applicant was not capable of engaging in the citizenship test process.
PSYCHOMETRIC TESTING
By letter dated 7 February 2019 the Respondent asked Dr Banks, a clinical psychologist, to carry out psychological testing on the applicant, with a view to assisting the Tribunal in the present review process. The Respondent’s letter stated:
“[9] The issue for the Tribunal to determine is whether the applicant had, pursuant to section 21(3)(d) of the Act, a permanent or enduring mental incapacity at the time the person made the application such that he was not capable of demonstrating a basic knowledge of the English language.” (emphasis added)
The resulting Report is dated 3 April 2019.
Dr Banks interviewed the applicant on 21 February 2019, almost three years to the day after the applicant applied for citizenship on 19 February 2016.
At the specific request of the Respondent, an Arabic interpreter was present. The applicant was supported by his brother in law Mr Zeyad Kassem during the preliminary stages of the process, including the clinical interview, although Mr Kassem left the room during the cognitive testing. The interview lasted four hours.
Dr Banks conducted psychological tests intended to assess the applicant’s cognitive ability. The individual tests are not described in the Report. Dr Banks refers simply to a “battery of standardised measures to assess his current level of cognitive functioning and his capacity to learn new information” (at [30]).
The applicant was also tested for so-called “memory malingering”, which is designed to identify deliberate underperformance by a subject. This test is known by its acronym TOMM (standing for “test of memory malingering”).
The applicant was also tested for memory recall. In this test the subject is required to choose between two pictures according to whether the picture has been previously displayed. The applicant did not do well on this test, and indeed, the number of incorrect responses was, according to Dr Banks, much greater than that which statistically could be attributed to “chance”. Dr Banks noted (at [23]) that had the applicant simply guessed his answer to every item he would still have scored 50% regardless of whether he had just shut his eyes and picked either option one or option two.[1] He inferred from this that the applicant was learning from his “mistakes” and improving his error rate in order to demonstrate impaired ability. This meant that the applicant was increasingly “correct at being incorrect”. Dr Banks inferred that the applicant had a capacity to learn basic skills.
[1] There is no guarantee that a random selection between disconnected events (for example, a series of coin tosses) will inevitably result in a success rate of 50%, although there is a high probability of convergence to 50% in the long run. A random choice between two unconnected events is not guaranteed to produce a 50% result for any sample size.
His ability to sustain concentration over a four hour interview was seen as part of his desire to prove his impairment, rather than other possible explanations, such as a simple desire to please those who controlled his destiny. Dr Banks concluded that:
“his efforts to produce such an impaired profile, actually confirmed not just intact cognition, but sustained learning ability as well” (at [24]).
The applicant received such a low score for the various cognitive tests that Dr Banks concluded (at [21]) that the applicant presented as an individual who was:
“capable of learning and remembering test items, even after a break, though he was apparently determined to present the impression that his memory is profoundly impaired”. [27]
And that
“the only plausible explanation for his performance during cognitive testing was …that [the applicant] was deliberately attempting to provide incorrect answers”.
Dr Banks found (at [28]) that the applicant displayed symptoms of depression:
“though the assessed level of distress is not considered to be persuasive enough to impact his learning as shown during test”,
and that his
“psychological profile would not be considered sufficient to warrant excluding him from the application processes for Australian citizenship”.
Dr Banks concluded that:
“On the basis of supplied documentation, information attained at [the applicant’s] interview, administration of measures to assess [the applicant’s] cognitive functioning, it is my view that he does not appear to be suffering from a permanent or enduring physical or mental incapacity, nor to have been suffering from such a condition that would mean that he was not capable of:
Understanding the nature of the application; or
Demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.”
Unfortunately, Dr Banks did not make any finding as to whether the applicant was incapable of demonstrating a basic knowledge of the English language.
THE HEARING
The applicant and his wife Ms Kassem gave evidence before the Tribunal.
The applicant stated that he had attended English classes but that he was not able to learn anything. He was able to drive and had done the driving test with the help of an interpreter.
Ms Kassem said that the applicant was illiterate in Arabic and had very little understanding of English, although he had familiarised himself with some English words.
Ms Kassem gave evidence as to his level of English proficiency. She asserted that his lack of English had been little improved by attending English classes, which she thought was related to his fatigue after doing a full days’ work as a cement renderer.
Ms Kassem said that she had been undergoing fertility treatment since September 2014 (letter dated 27 May 2019 from Dr G. Tang). As of May 2019 that treatment is ongoing (letter dated 28 May 2019 from A/Professor Chan).
In February 2018 Ms Kassem gave birth to a still-born child. She stated that due to an administrative error by the hospital she and her husband attended the wrong funeral and had to go through the funeral ceremony twice. This caused trauma and distress to both of them.
Dr Younan, the applicant’s psychiatrist, gave evidence by telephone. Dr Younan was registered as a psychiatrist in NSW in 1982. Dr Younan stated that the applicant was suffering from depression to a moderate degree. It was mild or moderate but not major. It did not of itself prevent him from functioning, going to work every day, driving and so on. It did however, in conjunction with his acute anxiety (which was also highly variable) make it impossible for him to engage in meaningful learning activities such as those required to acquire even a basic knowledge of the English language.
Dr Younan stated that the applicant also had a phobia of learning. He administered an abstraction test designed to test a person’s ability to abstract concepts from one (known) language to another. He gave as an example the saying “People in glass houses should not throw stones”. When translated into Arabic the applicant had difficulty understanding this saying, even though there was a well-known saying with similar import in Arabic.
Dr Younan was dismissive of Dr Banks’ report. He said that he “would expect a different result had the interview and the tests been run in the Arabic language”. It is not clear to the Tribunal why this is so. An interpreter was present to assist the applicant, and in any event, he claimed to be illiterate in Arabic. Moreover, many of the tests administered by Dr Banks relied substantially on symbols rather than language.
ANALYSIS OF THE MEDICAL EVIDENCE
Unfortunately, Dr Banks was not called to give evidence to the Tribunal. The Tribunal is slow to draw from the material contained in the Report the same inferences of memory malingering drawn by Dr Banks. In particular, the Tribunal is disinclined to draw from the TOMM test results the inference drawn by Dr Banks as to the veracity of the applicant’s efforts. No evidence was put to the Tribunal as to the reliability of the TOMM test where the patient suffers from depressive or anxiety conditions, or indeed more serious mental health problems. The Tribunal is reluctant to place too much reliance on the TOMM test in the absence of evidence as to its reliability.
Dr Banks did not consider other possible explanations for the test results, such as the distraction and distress felt by the applicant at being subjected to the tests at a time when, according to Mr Kassem’s statement, he should have been at a funeral; or indeed, his possible indifference to, and frustration with, the entire psychometric testing exercise. The Tribunal notes that Ms Kassem, the applicant’s wife, stated that the applicant was distressed after the interview and that:
“no consideration was made to the traumatising miscarriage experience and that he went to the appointment instead of attending a brother in law’s funeral”. [Statement of Fatmah Kassem, dated 1 June 2019, para 15].
There is another difficulty in relying too heavily on the psychometric testing carried out by Dr Banks. Regrettably, Dr Banks did not relate his Report to the issue before the Tribunal, namely, whether in February 2016 the applicant had a permanent or enduring mental incapacity that means that he is not capable of demonstrating a basic knowledge of the English language at that time.
Turning to the material and evidence provided by Dr Younan, in a letter dated 11 December 2018 addressed “to whom it may concern” Dr Younan provided a substantial five page report. In this letter he set out his history of consultations with the applicant, and provided a background and mental state examination, and the medication prescribed. He recorded his conclusion as follows:
“I was convinced that [the applicant] had a learning disability since he was young. On top of this, he developed major depression mixed with anxiety – “major depressive disorder with anxious distress”. Both conditions reinforce each other. Being unable to learn causes him frustration and anxiety. Depression and anxiety affect his ability to learn. His learning disability is life long and his depression proved to be resistant to treatment. This is mainly because the reason for this depression has not resolved and his capacity to accept and adapt is poor and particularly so for cultural reasons. It was mainly on this basis that he has a learning difficulty combined with depression that I provided him with two hand-written letters indicating that he is incapable of passing the citizenship test. Now since his depression has not resolved despite just under three years being under my care, this depression together with the learning disability are endurable conditions.”
By letter dated 28 May 2019 Dr Younan wrote again on behalf of the applicant. He noted that he had seen him more than 30 times, most recently on 24 May 2019. At the hearing he confirmed that he had seen him numerous times and, consulting his diary, counted at least six instances in 2016, nine in 2017 and eight in 2019. Most of these consultations took place after the date of application for citizenship. However, Dr Younan’s evidence, based on this lengthy period of therapy, supported his original diagnosis, made on 22 January 2016; namely, that the applicant was suffering from an enduring mental incapacity at the time of the citizenship application.
In this letter Dr Younan also clarified issues relating to his qualifications and expertise. He said that he has been a member of the Royal College of Psychiatrists, London since 1975 and was recognised as a consultant psychiatrist in New South Wales in 1982. He is not however a fellow of the Royal Australian and New Zealand College of Psychiatrists.
On balance, the Tribunal is satisfied based upon the evidence provided by Dr Younan that, at the time of application, the applicant was suffering from an enduring mental incapacity meaning that he was not capable of a basic understanding of the English language at that time.
The question is whether the Tribunal is precluded from giving any weight to Dr Younan’s evidence by virtue of the Citizenship Policy.
THE POLICY
The Citizenship Policy (p 71 of 237) states that applicants “must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity…”.
In relation to mental incapacity the Policy States:
“applicants claiming permanent or enduring mental incapacity may provide evidence from a:
oPsychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
omedical practitioner who is a fellow of the Australian Society of Psychological Medicine or
opsychologist 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.”
The Citizenship Policy is not binding on the Tribunal but it should be applied unless there are good reasons for departing from it. As noted by Brennan J (as he then was) in Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179, “there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if Parliament has in fact scrutinized and approved that policy”.
As noted above [para 15] the delegate rejected the applicant’s claim, inter alia, because Dr Younan was not a fellow of the Royal Australian and New Zealand College of Psychiatrists. The delegate therefore proceeded on the basis that his evidence was inadmissible under the Citizenship Policy.
Dr Younan’s evidence is the only contemporaneous medical evidence before the Tribunal bearing on whether the applicant suffered from an enduring or permanent mental incapacity at the time he made the application.
The disposition of this case turns largely on the credence to be given to the psychiatric evidence given by Dr Younan. It is not unchallenged. The report by Dr Banks stands to some extent in opposition. However, both the psychiatrist Dr Younan and the psychologist Dr Banks agree that the applicant suffers from depression. The difference relates to the question of degree. Moreover, much of Dr Banks’ report deals with psychometric testing of cognitive ability. But the evidence of Dr Younan suggests that it is a complex of factors including depression, an acute anxiety condition, psycho-social and cultural stress factors that produce the learning difficulties that inhibit complex language learning.
The Tribunal notes that Dr Younan has a long record of service as a psychiatrist, that he was registered in New South Wales in 1982, based upon his United Kingdom credentials. He has stated that he is the only Arabic speaking psychiatrist registered in New South Wales, and given the nature of this case, involving a person who is illiterate in English and Arabic, it seems to the Tribunal that to dismiss his evidence would not serve the interests of justice.
It was suggested by the respondent that the applicant’s difficulty in completing and benefitting from the 500 hours of structured English lessons offered to him was that he was working such long hours and therefore was too tired to concentrate. To some extent this is borne out by the evidence of Ms Kassem that he was too tired to study after working long hours daily as a cement renderer. Those long hours were driven by the need to pay for the couple’s expensive fertility treatment. The fact that the applicant worked long hours does not of itself mean that fatigue was the explanation for his poor performance as a student of English. It would be unrealistic to think that it did not play a part, but given the applicant’s track record for learning, it would be optimistic to assume that his performance when fresh would have been very different.
The delegate also saw significance in the fact that the applicant had acquired and held a valid NSW Drivers’ Licence. This was seen to be inconsistent with the presence of a permanent or enduring mental incapacity. There was however evidence that the written component of the driving test had been completed with the assistance of an interpreter and Ms Kassem gave evidence as to the support provided to her husband in setting up navigational aids for driving. The specific psychiatric condition deposed to by Dr Younan (depression, acute anxiety and learning difficulties) is not inconsistent with performing the tasks associated with passing a driving test.
The applicant is a diligent hard working individual, preoccupied and disappointed by issues of infertility. Evidence from Dr Younan supports a finding that these preoccupations have taken on a pathological nature, producing depression and acute anxiety. In such a state whatever limited capacity the applicant had for learning English has evaporated. At the time he made the application for citizenship, by reason of this enduring mental incapacity, he was not capable of demonstrating a basic knowledge of English, a language notorious for its difficulty, and especially so for one who has failed to develop any facility in his home language.
It is clear that illiteracy alone does not satisfy the requirements of s 21(3)(d): see Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669. However, in this case the Tribunal has a body of material before it capable of supporting a finding that the applicant had, at the relevant time, a permanent or enduring mental incapacity meaning that he was not then capable of demonstrating a basic knowledge of the English language.
The Tribunal therefore finds that the applicant satisfies the requirements of s 21(3)(d)(ii) of the Act.
Finally, there was much to point to the applicant’s good character. The applicant has provided various letters of support including from his employer and accountant supporting his application. Mr Nigel Cousens, a friend of Ms Kassem, appeared at the hearing and gave character evidence in favour of the applicant.
The matter is remitted to the Department for determination on this issue.
59. I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 7 August 2019
Date(s) of hearing: 8 July 2019 Applicant: In person Solicitors for the Respondent: K Gawidziel, Australian Government Solicitor
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