El Mobayed and Minister for Home Affairs (Citizenship)

The Administrative Appeals Tribunal considered an application for Australian citizenship by conferral made by Mr Fayez El Mobayed. The Minister for Home Affairs opposed the application, arguing that Mr El Mobayed did not satisfy the requirements of section 21(3)(d) of the *Australian Citizenship Act 1948* (Cth). This section requires an applicant to demonstrate a basic knowledge of English, unless they are unable to do so due to a permanent or enduring physical or mental incapacity.

The primary legal issue before the Tribunal was whether Mr El Mobayed suffered from a permanent or enduring mental incapacity at the time he applied for citizenship, which rendered him incapable of demonstrating a basic knowledge of the English language. This required the Tribunal to assess the weight and admissibility of medical evidence provided by a psychiatrist, Dr Younan, and psychometric testing conducted by a clinical psychologist, Dr Banks. The Tribunal also had to consider whether certain medical evidence was excluded by the Citizenship Policy.

The Tribunal found that Dr Younan's evidence, while indicating a chronic psychiatric disorder and learning disability, was initially deemed inadmissible under the Citizenship Policy because he was not a Fellow of the Royal Australian and New Zealand College of Psychiatrists. Furthermore, the Tribunal noted that Dr Younan's initial consultations were limited, and he did not definitively state that the mental incapacity was the sole reason for the applicant's inability to pass the test. The Tribunal also considered Dr Banks' psychometric testing, which suggested the applicant might be deliberately underperforming. However, the Tribunal expressed reservations about the reliability of these tests given the applicant's potential distress and the lack of evidence regarding the tests' validity in cases involving mental health conditions. The Tribunal ultimately concluded that the decision to reject the application was not preferable and set aside the decision, remitting the matter for reconsideration.